Donovan Edward Ruby v. Secretary of the United States Navy

365 F.2d 385 Donovan Edward RUBY, Appellant, v. SECRETARY OF the UNITED STATES NAVY, Appellee. No. 20473. United States Court of Appeals Ninth Circuit. June 2, 1966. Donovan E. Ruby, in pro. per. Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellee. Before CHAMBERS, BARNES, HAMLEY, JERTBERG, MERRILL, KOELSCH, BROWNING, DUNIWAY and ELY, Circuit Judges. 1 HAMLEY, Circuit Judge: 1 Donovan Edward Ruby commenced this action against the Secretary of the United States Navy to obtain an adjudication that Ruby is entitled to "* * * a legal, lawful and proper discharge or separation and or retirement * * *" from the United States Navy. Pursuant to Rule 12(b), Federal Rules of Civil Procedure, defendant moved to dismiss the complaint. This motion was granted by the district court on June 17, 1965 on the ground that the matter in dispute is res judicata. On July 8, 1965, Ruby moved to vacate and set aside this order, which motion was denied on the day it was filed. On July 14, 1965, Ruby appealed from the order of dismissal entered on June 17, 1965. On August 3, 1965, the district court entered an order dismissing the action. No appeal was taken from the latter order. 2 The United…

Donovan Edward Ruby commenced this action against the Secretary of the United States Navy to obtain an adjudication that Ruby is entitled to “ * * * a legal, lawful and proper discharge or separation and or retirement * * *» from the United States Navy. Pursuant to Rule 12(b), Federal Rules of Civil Procedure, defendant moved to dismiss the complaint. This motion was granted by the district court on June 17, 1965 on the ground that the matter in dispute is res judicata. On July 8, 1965, Ruby moved to vacate and set aside this order, which motion was denied on the day it was filed. On July 14, 1965, Ruby appealed from the order of dismissal entered on June 17, 1965. On August 3, 1965, the district court entered an order dismissing the action. No appeal was taken from the latter order.

The United States has moved to dismiss the appeal arguing: (1) the district court order of June 17, 1965, dismissed the complaint, but did not dismiss the actio'n; (2) such an order is not a final decision within the meaning of 28 U.S.C. § 1291 (1964) and is therefore not appealable; and (3) the notice of appeal filed on July 14, 1965, is directed to this non-appealable order, and no appeal has been…

concurring.

I concur in the foregoing. Fundamentally I do not believe in it or in our Firchau case, 345 F.2d 269 , in which I concurred. But to me there is a message by which I must abide in United States v. State of Arizona et al., 346 U.S. 907 , 74 S.Ct. 239 , 98 L.Ed 405, and Hoiness v. United States, 335 U.S. 297 , 69 S.Ct. 70 , 93 L.Ed. 16 , that reaches in to Firchau and Ruby.

I do wonder how we shall hold when a plaintiff files his notice of appeal as an appendage to his original complaint.