Brought under Section 111 of the Railroad Retirement Act of 1937,2 the suit was to set aside an order of the Railroad Retirement Board 3 denying plaintiff’s application for an annuity. The claim was that the decision of the Board that plaintiff was not entitled to an annuity because he was not on or after August 29, 1935 in the service of, or in an employment relation to, the carrier was erroneous and in violation of the legal right of plaintiff, in that, though, as the Board found, he was discharged in 1930, his discharge was wrongful because of his then total disability, and was, therefore, ineffective to terminate his employment relation within the intent and meaning of the act. The defense was that whether the discharge was rightful or wrongful was wholly immaterial, for plaintiff had in fact been discharged in 1930; and upon the undisputed facts he was not on or after the critical date either on active duty, on furlough, or on leave of absence or absent on account of sickness or disability, and, therefore, plaintiff was not in a position to prove the fact essential to his claim that on the critical date he was in an employment relation. In the trial court plaintiff insisted that the statute gave him a right to a trial de no-vo and the independent judgment of the court on the question whether on the record made before the Board he was on the critical date in an employment relation and entitled to his annuity. He further insisted that if wrong in this and the proceeding was one to determine if the Board’s findings were supported by evidence, the decision of the Board should be set aside, for the undisputed evidence showed that his discharge was wrongful, that he did, therefore, have an employment status, and that there was no basis for the Board’s decision that he did not. Submitted on the record taken before the Board to, and tried by, the court without a jury, there was a finding and conclusion; that plaintiff had adduced no evidence to show that on August 29, 1935, under established rules and practices “usu
Affirmed.
1.
45 U.S.C.A. § 228k. “Court Jurisdiction. An employee or other person aggrieved may apply to the district court of any district wherein the Board may have established an office or to the District Court of the United States for the District of Columbia to compel the Board (1) to set aside an action or decision of the Board claimed to be in violation of a legal right of the applicant or 12) to take action or to make a decision necessary for the enforcement of a legal right of the applicant. Such court shall have jurisdiction to entertain such application and to grant appropriate relief. The decision of the Board with respect to an annuity, pension, or death benefit shall not be subject to review by any court unless suit is commenced within one year after the decision shall have been entered upon the records of the Board and communicated to the person claiming the annuity, pension, or death benefit.”
2.
45 U.S.C.A. § 228a et seq.
3.
45 U.S.C.A. § 228j.