Bomer v. Ribicoff

Decision Date25 June 1962
Docket NumberNo. 14820.,14820.
Citation304 F.2d 427
PartiesJohn O. BOMER, Jr., Plaintiff-Appellant, v. Abraham RIBICOFF, Secretary of Health, Education and Welfare, Social Security Administration, Health, Education and Welfare Administration, Joe Eans, Manager, Local Office, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

John O. Bomer, Jr., Memphis, Tenn., in pro. per., and on the brief.

Edward N. Vaden, Asst. U. S. Atty., Memphis, Tenn. (Thomas L. Robinson, U. S. Atty., Joe N. Hopper, Asst. U. S. Atty., Memphis, Tenn., on the brief), for appellee.

Before MILLER, Chief Judge, and CECIL and WEICK, Circuit Judges.

SHACKELFORD MILLER, Jr., Chief Judge.

On August 4, 1959, the Appeals Council of the Office of Hearings and Appeals, Social Security Administration, Department of Health, Education and Welfare, denied appellant's request for a review of a decision of a referee (now designated as Hearing Examiner) denying appellant's claim for increased benefits under Title II of the Social Security Act as amended, Section 402, Title 42 U.S.C.A. The appellant was notified by letter of this ruling and was advised that the referee's decision stood as the final administrative decision on his claim, and that if he desired a review of the referee's decision he could file a civil action in the United States District Court in the judicial district in which he resided within sixty days thereafter, in accordance with the provisions of Section 205(g) of the Social Security Act, as amended. Section 405(g), Title 42 U.S.C.A.

On September 30, 1959, appellant filed an action in the United States District Court for the Western District of Tennessee designating Arthur S. Flemming, Secretary of Health, Education and Welfare, and others, as defendants, seeking a review of the above ruling. On May 5, 1960, at appellant's instance, the following order was entered in that action:

"In this cause, on motion of Plaintiff and by consent, it is Ordered that the complaint be dismissed, without prejudice, at Plaintiff\'s costs."

On May 1, 1961, appellant filed the present action in the same court, designating Abraham Ribicoff, Secretary of Health, Education and Welfare, and others, as defendants, seeking recovery of the benefits to which he claimed to be entitled, and, in effect, seeking a review of the prior adverse administrative ruling on his claim.

On June 23, 1961, the defendants moved to dismiss the action in that appellant failed to commence the action within the sixty-day period after notice of the final decision on August 4, 1959, as required by Section 405(g), Title 42 U.S.C.A.

On September 5, 1961, appellant filed a motion in this case to set aside the order of May 5, 1960, in the prior case dismissing that action and to reinstate that action in this case. He also made an oral motion in the present case for an order directing the Social Security Administration to extend the time for the filing of this action.

On September 29, 1961, the District Judge entered an order overruling the oral motion and also dismissing the present action. The record on this appeal does not show that any ruling was made on the motion to reinstate the prior action and that question is not before us on this appeal.

An action dismissed without prejudice leaves the situation the same as if the suit had never been brought. A. B. Dick Co. v. Marr, 197 F.2d 498, 502, C.A.2nd; cert. denied, 344 U.S. 878, 73 S.Ct. 169, 97 L.Ed. 680, rehearing denied, 344 U.S. 905, 73 S.Ct. 282, 97 L.Ed. 699; Bryan v. Smith, 174 F.2d 212, 214, C.A. 7th. In the absence of a statute to the contrary a party cannot deduct from the period of the statute of limitations the time during which the action so dismissed was pending. Humphreys v. United States, 272 F.2d 411, 412, C.A.9th; Willard v. Wood, 164 U.S. 502, 523, 17 S.Ct. 176, 41 L.Ed. 531; DiSabatino v. Mertz, 82 F.Supp. 248, 249-250, M.D.Pa.

The right of action here sought to be enforced is one created by statute and is...

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    ...without prejudice leaves the action as if suit had never been brought for purposes of the statute of limitations."); Bomer v. Ribicoff , 304 F.2d 427, 429 (6th Cir. 1962) ("In the absence of a statute to the contrary a party cannot deduct from the period of the statute of limitations the ti......
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    ...of limitations is deemed not to have been suspended during the period in which the suit was pending.") (citing Bomer v. Ribicoff, 304 F.2d 427, 428-29 (6th Cir.1962), and see Hall v. Kroger Baking Co., 520 F.2d 1204, 1205 (6th Cir.1975); Cleveland v. Douglas Aircraft Co., 509 F.2d 1027, 102......
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    ...v. Railway Express Agency, Inc., 489 F.2d 525 (6th Cir. 1974), aff'd 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Bomer v. Ribicoff, 304 F.2d 427 (6th Cir. 1962). Nor do we dispute that exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII and......
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    ...of Locomotive Firemen and Enginemen v. Florida E. C. Ry. Co., Case No. 64-237 Civ-J (M.D.Fla.), October 7, 1968. See, Bomer v. Ribicoff, 304 F.2d 427 (6th Cir. 1962); Andry v. Maryland Casualty Co., 244 F.Supp. 143 In both Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 ......
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