914 F. 2d 263 - Turner v. United States Welfare Department
914 F2d 263 Turner v. United States Welfare Department
914 F.2d 263
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Bernadette T. TURNER, Plaintiff-Appellant,
v.
UNITED STATES WELFARE DEPARTMENT, et al., Defendants-Appellees.
No. 89-35407.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 18, 1990.*
Decided Sept. 20, 1990.
Before GOODWIN, Chief Judge, HUG and BEEZER, Circuit Judges.
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MEMORANDUM**
Bernadette T. Turner appeals pro se the district court's order dismissing sua sponte her complaint without prejudice for lack of subject matter jurisdiction. We lack jurisdiction to hear this appeal and, therefore, dismiss the appeal.
Pursuant to 28 U.S.C. Sec. 1291, this court has jurisdiction over appeals from all "final orders" of the district court. See 28 U.S.C. Sec. 1291. "Ordinarily an order dismissing a complaint but not dismissing the action is not appealable under section 1291 unless circumstances make it clear that the court concluded that the action could not be saved by any amendment of the complaint." Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171-72 n. 1 (9th Cir.1984). An exception to this rule applies where "it appears that the district court intended the dismissal to dispose of the action." Id.; see also Gerritsen v. De La Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir.1987). We raise sua sponte the question of our jurisdiction to hear this appeal. See Abernathy v. Southern California Edison, 885 F.2d 525, 527 (9th Cir.1989).
In its order of dismissal, the district court expressly stated that Turner's complaint was dismissed without prejudice "to refile upon stating a proper basis for jurisdiction." Memorandum and Order at 2. The court's language indicates that Turner's action can be saved by amendment, and that the court did not intend to dispose of Turner's action. Thus, the district court only dismissed Turner's complaint.
We therefore hold that the district court's order is not a final, appealable order. See Hoohuli, 741 F.2d at 1171-72 n. 1. Accordingly, we lack jurisdiction to hear this appeal. See 28 U.S.C. Sec. 1291.1
DISMISSED.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Cir.R. 34-4. Accordingly, we deny Turner's request for oral argument
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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Pending disposition of her appeal, Turner has filed several motions and requests with this court. In addition, several Alaska state agencies, whose motion to dismiss was dismissed as moot by the district court, have moved for leave to file a brief in this appeal. Finally, a motions panel of this court previously had instructed the United States to brief the issue of whether the government had standing to participate in this appeal
In light of our disposition, we deny all motions and requests that were pending in this appeal. Furthermore, we decline to consider the issue of the federal government's standing.