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Bennett v. Director

decided: September 26, 1983.

AVERY C. BENNETT, PETITIONER,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, RESPONDENT



Petition for Review of an Order of the Benefits Review Board.

Wood and Eschbach, Circuit Judges, and Gordon, Senior District Judge.*fn*

Author: Gordon

GORDON, Senior District Judge.

The petitioner seeks review of a decision of the United States Department of Labor Benefits Review Board (BRB) dismissing as untimely his appeal from the decision of a Labor Department Administrative Law Judge (ALJ). The latter denied benefits sought by Mr. Bennett under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. This court has jurisdiction pursuant to 30 U.S.C. § 932(a) and 33 U.S.C. § 921(c). For the reasons set forth below, we affirm the decision of the BRB.

I.

The relevant procedural history of this case is not in dispute. Review of the petitioner's claim for federal black lung benefits culminated in a formal hearing before ALJ Stewart A. Levin on December 3, 1979. On March 24, 1980, the ALJ issued his decision and order denying benefits. As required by 20 C.F.R. § 725.478, he served the decision on the petitioner and his counsel on the same date. The ALJ's decision did not contain any notice of the appeal rights specified in 20 C.F.R. § 725.481.

On October 10, 1980, the petitioner's newly retained counsel filed with the BRB a notice of appeal from the ALJ's decision. On February 27, 1981, the BRB issued its order dismissing the petitioner's appeal as having been untimely filed under 20 C.F.R. § 802.205.

II.

In enacting the Black Lung Benefits Act, Congress adopted the hearing and appeal procedures of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA). 33 U.S.C. §§ 919, 921, as incorporated by 30 U.S.C. § 932(a). Section 21(a) of the LHWCA provides:

(a) A compensation order shall become effective when filed in the office of the deputy commissioner as provided in section 919 of this title, and, unless proceedings for the suspension or setting aside of such order are instituted as provided in subdivision (b) of this section, shall become final at the expiration of the thirtieth day thereafter.

The thirty-day limitation on appeals of compensation orders established by this statutory provision is echoed in the regulations applicable to black lung claims issued by the Secretary of Labor. Under 20 C.F.R. § 725.479, an ALJ's decision and order becomes final thirty days after it is filed in the office of the deputy commissioner unless proceedings to suspend or set aside the order are instituted within that time period. According to 20 C.F.R. § 725.478, a decision of an ALJ is "considered to be filed in the office of the deputy commissioner" on the date it is issued and served on the parties. Under these regulations, the petitioner had thirty days after he was served with ALJ Levin's decision and order on March 24, 1980, in which to appeal the decision to the BRB. Since the petitioner's notice of appeal was not filed until October 10, 1980, it was clearly untimely.

The same conclusion is compelled by examination of the regulations issued by the Secretary of Labor as the Rules of Practice and Procedure of the Benefits Review Board, 20 C.F.R. Part 802. The applicable regulation is 20 C.F.R. § 802.205(a), which provides that a notice of appeal must be filed with the BRB within thirty days from the date the ALJ's decision is filed in the office of the deputy commissioner.

The consequences of failure to file a timely appeal are recited in § 802.205(c):

(c) Failure to file within the period specified in paragraph (a) or (b) of this section (whichever is applicable) shall foreclose all rights to review by the Board with respect to the case or matter in question. Any untimely appeal will ...


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