Ruby , 1969 U.S. Ct. Cl. LEXIS 104 ( 1969 )

Military gay; active duty gay; res judicata; limitation of actions. — Plaintiff, a former enlisted man in the Navy, was released with an undesirable discharge on December 15, 1931. He claims the discharge was invalid and seeks active duty pay. On May 17, 1965, plaintiff filed a petition in the United States District Court for the Northern District of California, Southern Division, No. 43638, in which he made the same allegations as those in the petition in this court. The District Court on June 17, 1965, granted defendant’s motion to dismiss, and on August 3, 1965, an order was entered dismissing the action. On June 2, 1966, the Court of Appeals for the Ninth Circuit denied plaintiff’s appeal, 365 F. 2d 385, and on December 19, 1966, the same circuit denied plaintiff’s appeal, 369 F. 2d 404, certiorari also being denied, 386 U.S. 1011 (1967). The case comes before this court on defendant’s motion for summary judgment. Upon consideration thereof, together with the opposition thereto, without oral argument, the court concludes that plaintiff’s alleged claim is barred under the doctrine of res judicata and by the statute of limitations, 28 U.S.C. § 2501, citing Kirk v. United States, 164 Ct. Cl. 738 (1964). On November 26, 1969, the court granted defendant’s motion and dismissed the petition.