Opinion
No. 11503.
December 18, 1952.
Hiram H. Owens and Sampson B. Knuckles, Barbourville, Ky., for appellant.
Myles F. Gibbons, David B. Schreiber, Associate Gen. Counsel, Louis Turner, Asst. Gen. Counsel, and Ben Diamond, Chicago, Ill., for appellees.
Before ALLEN, MARTIN and McALLISTER, Circuit Judges.
This cause came on to be heard this day on the record, the motion to dismiss filed by appellee, and the briefs and oral arguments of the attorneys for both parties;
And it appearing that the motion to dismiss for lack of jurisdiction, for the reason that appellant has failed to exhaust his administrative remedies before the Railroad Retirement Board, is well grounded, see Shelley v. Railroad Retirement Board, 9 Cir., 185 F.2d 239, the motion to dismiss is granted.
Though unnecessary to decision, inasmuch as the appeal is dismissed for lack of jurisdiction, we think it advisable to say that had this court overruled the motion to dismiss it would have been compelled to decide this case against appellant on the merits, for the reason that the findings of fact upon which the Appeals Council of the Board based its decision are supported by the evidence in the case and are not based on any erroneous application of law.