148 F.2d 935 | 5th Cir. | 1945
Unsuccessful below on his petition to the district court to set aside an order of the Railroad Retirement Board denying his application for an annuity, appellant is here attacking the order as without support in the evidence, and, therefore, “in violation of a legal right” of his. As plaintiffs had done in similar cases
If this were a case in which the Board had refused “to take action or to make a decision necessary for the enforcement of a legal right of the applicant”, upon allegation and proof that the Board was refusing to do its duty, the court below and this court on review would “have jurisdiction to entertain such application and to-grant appropriate relief”, 45 U.S.C.A. § 228k, but no such case is presented here. This is a proceeding to set aside an action or decision of the Board, claimed to be in violation of a legal right of the applicant, in which the only relief sought or available is to set its decision aside.
In South v. Railroad Retirement Board, 5 Cir., 131 F.2d 748, 750, a proceeding of this kind, we carefully pointed out that, in such a proceeding, the “jurisdiction and function of the court is supervisory and not original; that it is to review the findings and order for error and not to retry the matter; and that the order under review must stand, if supported by substantial evidence, and not in violation of law-.”
We need not restate here the limitations under which the court proceeds when conducting the review provided for by statute. Nor need we set out the evidence before the Board. For the disposition of this case, it is sufficient to say that a careful examination of the record made there fails to disclose any just ground for complaint against the Board. On the contrary, it shows that the Board could not reasonably have made any other finding than the one it made. Appellant’s claim that his admittedly formal and definite discharge, of which he was notified on July 2, 1930, wa's rendered ineffectual by the action of the Longview agent in sending him out on his run on the 4th and 5th, because there was no one to take his place, is purely fanciful. Not a syllable of evidence, including his own admissions and conduct thereafter, supports the claim now advanced that the action of the agent was, or that anybody thought it was, in effect, to re-employ him, and that he ha's since retained a re-employment status. Neither is there any basis whatever in the record for his claim that his discharge was wrongful, and, being wrongful, his employment continued. Indeed, by complaiij
South v. Railroad Retirement Board, 5 Cir., 131 F.2d 748; Ellers v. Railroad Retirement Board, 2 Cir., 132 F.2d 636; Bruno v. Railroad Retirement Board, D.C., 47 F.Supp. 3; Frawley v. Latimer, D.C., 57 F.Supp. 276.