Margie Allen v. Wellmore Coal Corporation

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 10-0568-BLA Copies to all parties and the district court/agency. [998838606]. Mailed to: Breeskin and Allen. [11-2130]

Appeal: 11-2130

Document: 21

Date Filed: 04/24/2012

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2130
MARGIE ALLEN, widow of Arvil L. Allen,
Petitioner,
v.
WELLMORE COAL CORPORATION; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order of the Benefits Review Board
(BRB No. 10-0568 BLA).
Submitted:

April 19, 2012

Decided:

April 24, 2012

Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Margie Allen, Petitioner Pro Se.
Ronald Eugene Gilbertson,
HUSCH BLACKWELL, LLP, Washington, D.C.; Jeffrey Steven Goldberg,
Patricia
May
Nece,
UNITED
STATES
DEPARTMENT
OF
LABOR,
Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Margie Allen seeks to petition this court for review
of the decision and order of the Benefits Review Board (“Board”)
affirming

the

Administrative

Law

Judge’s

decision

and

order

denying survivor’s benefits under the Black Lung Benefits Act,
30 U.S.C. §§ 901-945 (2006), and the Board’s order summarily
denying reconsideration.

We dismiss the petition for review for

lack of jurisdiction.
To the extent that Allen petitions for review of the
Board’s denial of her motion for reconsideration, the Board’s
summary denial is unreviewable.

See Betty B Coal Co. v. Dir.,

Office of Workers’ Comp. Programs, 194 F.3d 491, 496 (4th Cir.
1999) (“Where a party petitions an agency for reconsideration on
the ground of material error, i.e., on the same record that was
before the agency when it rendered its original decision, an
order which merely denies rehearing is not itself reviewable.”)
(internal quotation marks, brackets, and ellipses omitted).
Turning

to

the

underlying

Board

decision

and

order

affirming the denial of benefits, we conclude that Allen failed
to timely file a petition for review of that decision.

The

Board’s decision becomes final sixty days after it is issued
unless a claimant files a petition for review with this court or
files a timely motion for reconsideration with the Board.
C.F.R.

§ 802.406

(2012).

The
2

claimant’s

motion

20
for

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reconsideration is timely if it is filed within thirty days of
the

Board’s

order.

20

C.F.R.

§ 802.407(a)

(2012).

If

the

claimant files a timely motion for reconsideration, the sixtyday

period

will

reconsideration.
filing

a

run

from

the

20 C.F.R. § 802.406.

petition

jurisdictional.

for

Adkins

review
v.

Board’s

on

The sixty-day period for

from

Dir.,

decision

a

Office

Board
of

order

Workers’

is

Comp.

Programs, 889 F.2d 1360, 1363 (4th Cir. 1989).
Here, the Board’s order was entered on June 21, 2011,
and Allen filed her motion for reconsideration with the Board
on July 22, 2011, one day beyond the thirty-day limit for filing
such

a

motion.

See

20

C.F.R.

§ 802.407(a).

Thus,

Allen’s

motion for reconsideration did not toll the sixty-day period for
filing

a

petition

for

review

in

this

court,

and

Allen

was

required to file her petition no later than August 22, 2011.*
Allen did not file her petition until October 14, 2011.
Because Allen failed to file a timely petition for
review of the underlying Board decision and order, we dismiss
the petition for review.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the

*

Because the sixtieth day fell on a Saturday, Allen had
until Monday, August 22, to file her petition for review.
See
20 C.F.R. § 802.221 (2012).

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materials

before

Date Filed: 04/24/2012

the

court

and

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argument

would

not

aid

the

decisional process.
PETITION DISMISSED

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