Donovan Edward Ruby v. Secretary of the United States Navy
365 F.2d 385
9th Cir.
1966
Check Treatment

*2 BARNES, CHAMBERS, Before MERRILL, JERTBERG, HAMLEY, KOELSCH, BROWNING, DUNIWAY Judges.1 ELY, Circuit originally by panel Judges consisting Hamley, and Duni motion was Merrill heard way. Judge: assume HAMLEY, that he had choice but Circuit complaint. stand on his Marshall v. Ruby commenced Donovan Edward Sawyer, 643; 301 F.2d at Gardner Secretary against of the this action Newberry Inc., Co., J. J. adjudi- Navy to obtain States “ Ruby cation is entitled *3 discharge legal, proper or Examination of the record indicates a lawful and *» special that such separation circumstances do not and or retirement granting Navy. exist in this case. In the mo- Pursuant from the United States complaint tion to dismiss the 12(b), Civil on the to Rules of Rule Federal ground dispute Procedure, that the matter in is res to dismiss defendant moved judicata, granted complaint. the district court stated: the This motion was 17, 1965 June the district court on “The fact that an offi- administrative dispute ground on the matter that the government cial of the has written a Ruby judicata. July 8, 1965, is res On possibly ambiguous letter does re- not order, moved to and aside this vacate set plaintiff’s vive claim since there is no day it which motion was denied on the allegation complaint in the that the Ruby July 14, 1965, was filed. On authority official either had the or appealed from order of dismissal the intended to waive the statute limita- August entered on June 1965. On tions.” 3, 1965, an entered the district court This statement indicates to us that dismissing appeal order No the action. plaintiff possibly could have saved his was taken from the latter order. by amending cause of action his com- The has moved to United States plaint. (1) appeal arguing: the dismiss the that, regarding It follows the June district court order of appeal being notice of as taken from the complaint, not dismissed the did but non-appealable 17, 1965, order of June actio'n; (2) dismiss such an order the appeal the However, must be dismissed. meaning is not a final decision within the question the remains whether that notice (1964) of 28 1291 and is there- U.S.C. § appeal may regarded being also be as appealable; (3) fore not the subsequently-filed taken from the final 14, 1965, appeal July filed on August 3, 1965, dismissing order of the order, non-appealable directed to this action. appeal and no the has been taken from August dismissing 3, 1965, order of the question A similar was answered in action. the affirmative Firchau v. Diamond Corp., Cir., National 9 345 F.2d 269. In An a order which dismisses court, that case the district on June dismissing complaint expressly without 1964, dismissed the first amended com- special not, except the action is under plaint. July 21, 1964, plaintiff ap- On circumstances, appealable an order. pealed July 24, from that order. On Cir., Richardson v. 9 336 the district court dismissed the 266; Sawyer, F.2d Marshall v. action. No further notice of was Cir., 639, 643; 301 F.2d Javor v. filed. This court denied defendant’s mo- Brown, appeal, tion to holding dismiss the special permit will circumstances which regarded the notice of would be regard judgment this court to an order as as such directed to the final of dis- “ * * missal, overlooking final as a must be such as to affecting technical defect not substantial make it clear that the court determined rights, premature filing the of that no- the action could not be saved . tice.” any complaint amendment the which plaintiff reasonably expected the could be In assumed, the court without make, entitling thereby discussion, to ap- that since the notice of peal filed, 20, 1959, a when because was ineffectual November defendant filed the it did taken from a motion the district court to dismiss jurisdic- jurisdiction. Jan- not divest district court of action for lack of On the dismissing uary 20, 1960, a final district court entered tion enter order judgment dismissing In decisions for the action. two earlier a action court, that, prose- jurisdiction this was held in one under lack of and failure to judg- appealed court had cute. from the such circumstances the district Plaintiff ment of dismissal. been enter divested merits, and in order on the further appeal, plaintiff On contended other, had such the district court jurisdic had jurisdiction. when tion to order dismissal of action pending court’s from the was The earlier of two cases Merritt- prior vacating judgment. This order City Seattle, Chapman Corp. & Scott *4 saying rejected argument, that court Cir., 281 case the dis- F.2d 896. In that 818): (page 30,1959, court, entered trict on December general rule, course, an of once “As a dismissing complaint. On order the an appeal of has been notice taken —once January 6, 1960, appeal from a notice of timely appeal been dis- has filed —the January 28, that order filed. On was jurisdiction is court of trict divested 1960, an order the entered district court any except the action in aid of take dismissing day the action. On same the [citing appeal In the authorities]. appeal from filed a notice of the case, judge however, the instant trial 1959, 30, also December and the order of general not did believed that the rule January 28, 1960. of from the order apply, appeal not for the first was judgment, but taken from the final granted motion This court defendant’s vacating judgment. from an order that entirety, appeal hold- in to dismiss the its jurisdiction dis- The trial court’s ing, (1) effect, of De- in order that: the stronger on miss can be affirmed a (2) 1959, appealable, was not cember ground. already We have noted January appeal notice filed on the of vacating appeal the from the order against non-appeal- 1960, directed judgment invalid because order is the order, deprived of district court able the appealed interlocutory not from and is jurisdiction subsequent order to enter the final. action, dismissing (3) and reason the necessary thereof, improvident taking ap- it also to dismiss “The of an was appeal peal effectively destroy from latter order. au- the taken the cannot the thority charting proceed action the In this course of of the below to court court, Merritt-Chapman, upon [citing properly dis- in did not motions before it possibility appeal authority].” a that an from cuss the ought to be viewed order expressed in adhere to We the view light appeal an from in a different than Resnik, implicitly applied in determining an Merritt-Chapman and therefore overrule been de- has whether expresses contrary a view. insofar as it jurisdiction. prived of only thing accomplished is proper appeal court a In the decision of this notice of is to transfer later Ranch, jurisdiction v. Paz Guest of a ease from a district Resnik La appeals. If, by result was a different court a court of reason September 22, 1959, execution, the dis of in form or a notice reached. On defects setting appeal aside of does transfer trict court entered order not summary judgment. juris- previously-entered appeals, to the court of then such a court; 1959, plaintiff a filed diction must in the On October remain district appeal order. On it cannot of from this float in the air. notice America, deficiency in no UNITED STATES a Where the Appellee, untimeliness, appeal, by tice of reason recitals, or reference to lack of essential Seymour BOTTONE, Salb, and Caesar non-appealable order, is the clear to Appellants. Sharff, Nathan disregard pur court, may district it No. Docket 30343. ported proceed with case, knowing Appeals it has not been United States Court of Circuit. Second deprived jurisdiction. If district Argued June court inis doubt as to whether the notice 1966. inoperative reason of some Aug. Decided defect, may such decline to act further 5, 1966. Denied Dec. Certiorari purported appellee until the obtains dis See 87 S.Ct. ap missal of the court of peals. In the rare instance where the proceeds

district court with a case under ap

the mistaken that a belief notice of

peal inoperative, appellant may

apply appeals to the court of for a writ prohibition.

Where, here, as

correctly determines that its by purported

has not been ousted notice appeal, because the latter was not

taken from an a notice directed to regarded,

order will be inas as subsequently-entered

directed to the final

decision. motion to dismiss the

denied. CHAMBERS, Judge, Circuit concur-

ring.

I foregoing. concur in the Fundamen-

tally I do not believe or in our case,

Firchau I which message

concurred. But to me there is a I which must abide in United States al.,

v. State of Arizona et 346 U.S.

74 S.Ct. 98 L.Ed and Hoiness v. 335 U.S. 69 S.Ct.

93 L.Ed. that reaches in to Firchau Ruby.

I do wonder we shall hold how when a files his as an

appendage original complaint. his