Vernon M. Ellis v. Elliott L. Richardson, Secretary of Health, Education & Welfare

471 F.2d 720

Vernon M. ELLIS, Plaintiff-Appellant,
v.
Elliott L. RICHARDSON, Secretary of Health, Education &
Welfare, Defendant-Appellee.

No. 72-2952 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Jan. 4, 1973.

H. H. Gearinger, Chattanooga, Tenn., for plaintiff-appellant.

John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Kathryn Baldwin, Eric B. Chaikin, Dept. of Justice, Washington, D. C., for defendant-appellee.

Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.

PER CURIAM:

1

Appellant instituted this action in the district court seeking to review a denial of social security disability benefits. The district court issued an order of dismissal which was timely followed by appellant's Rule 59 motion1 to reconsider. Such motion was denied. Appellant filed another motion to reconsider under Rule 59 based upon substantially the same grounds as urged in the earlier motion. The second motion was likewise denied.

2

Pursuant to Federal Rules of Appellate Procedure 4(a), appellant had sixty days from the entry of the order of dismissal to file a notice of appeal. The filing of the first Rule 59 motion terminated the running of the time for the appeal, but the second such motion based upon the same grounds did not.

3

In this case appellant had sixty days from the denial of his first Rule 59 motion in which to file notice of appeal. Having failed to do so, we are therefore without jurisdiction to consider the merits of his claim and accordingly this appeal is hereby dismissed.

*

Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409

1

Fed.R.Civ.P. 59