Coastal Coal-West Virginia v. DOWCP

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 13-0213 BLA Copies to all parties and the district court/agency. [999581590].. [14-2012]

Appeal: 14-2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2012

COASTAL COAL-WEST VIRGINIA, LLC,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; RICHARD L. MILLER,
Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(13-0213 BLA)

Submitted:

April 28, 2015

Decided:

May 12, 2015

Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Petition dismissed by unpublished per curiam opinion.

Jeffrey R. Soukup, JACKSON KELLY PLLC, Lexington, Kentucky, for
Petitioner. Otis R. Mann, Jr., Charleston, West Virginia; Sean
Gregory
Bajkowski,
UNITED
STATES
DEPARTMENT
OF
LABOR,
Washington,
D.C.;
Helen
Hart
Cox,
OFFICE
OF
WORKERS’
COMPENSATION PROGRAMS, Washington, D.C., for Respondents.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Coastal

Coal-West

Virginia

(“Employer”)

petitions

this

court for review of the Benefits Review Board’s (“Board”) orders
affirming the Administrative Law Judge’s (“ALJ”) order awarding
former miner Richard L. Miller benefits under the Black Lung
Benefits Act (“Act”), 30 U.S.C. §§ 901-945 (2012), and denying
its

motion

for

reconsideration

and

rehearing

en

banc.

We

dismiss the petition for lack of jurisdiction.
Our

jurisdiction

to

review

the

Board’s

final

orders

is

defined by statute:
Any person adversely affected or aggrieved by a final
order of the Board may obtain a review of that order
in the United States court of appeals for the circuit
in which the injury occurred, by filing in such court
within sixty days following the issuance of such Board
order a written petition praying that the order be
modified or set aside.
33 U.S.C. § 921(c) (2012); see 20 C.F.R. § 802.406 (2014).

If,

however,

for

the

aggrieved

party

files

a

timely

motion

reconsideration of the Board’s order, the sixty-day period runs
from

the

§ 802.406.

Board’s

disposition

of

that

motion.

20

C.F.R.

To be timely, a motion for reconsideration must be

filed within thirty days after issuance of the Board’s decision.
20 C.F.R. § 802.407 (2014).

The sixty-day period for seeking

review of the Board’s order in this court is jurisdictional.
Adkins v.

Dir.,

Office

of

Workers’

1360, 1363 (4th Cir. 1989).
2

Comp.

Programs,

889

F.2d

Appeal: 14-2012

Doc: 43

In

this

Filed: 05/12/2015

case,

the

Board

Pg: 3 of 3

issued

its

order

ALJ’s award of benefits on December 23, 2013.

affirming

the

Employer did not

file its motion for reconsideration until January 24, 2014, two
days after expiration of the thirty-day reconsideration period.
Thus, Employer’s motion did not toll the sixty-day period for
filing

a

petition

for

review

in

this

court,

and

Employer’s

petition for review, dated September 25, 2014, was filed more
than seven months beyond expiration of the sixty-day period.

As

a result of Employer’s untimely filing, we lack jurisdiction to
review the Board’s order affirming the ALJ’s award of benefits.
Additionally, to the extent that Employer seeks review of
the Board’s order denying reconsideration — the only order for
which the petition for review was timely — that order is not
reviewable by this court.
Workers’

Comp.

Programs,

(stating

that

an

order

Betty B Coal Co. v. Dir., Office of
194

F.3d

491,

of

the

496

Board

(4th

that

Cir.

merely

1999)
denies

reconsideration is not reviewable).
Accordingly, we dismiss Employer’s petition for review for
lack of jurisdiction.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the
materials

before

this

court

and

argument

would

not

aid

the

decisional process.
PETITION DISMISSED

3