Billy J. Fuller v. National Energy Corporation Director, Office of Workers' Compensation Programs, United States Department of Labor

37 F.3d 1493, 1994 U.S. App. LEXIS 34810, 1994 WL 542790

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 6, 1994
• Docket: 93-1227
• Status: Published

Opinion

37 F.3d 1493
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Billy J. FULLER, Petitioner,
v.
NATIONAL ENERGY CORPORATION; Director, Office of Workers'
Compensation Programs, United States Department of
Labor, Respondents.

No. 93-1227.

United States Court of Appeals, Fourth Circuit.

Submitted: July 13, 1993
Decided: Oct. 6, 1994.

On Petition for Review of an Order of the Benefits Review Board. (91-1821-BLA)

Billy J. Fuller, Petitioner Pro Se.

Michael Francis Blair, Penn, Stuart, Eskridge & Jones, Abingdon, VA; Robert P. Hines, Barbara J. Johnson, United States Department of Labor, Washington, DC, for Respondents.

Ben.Rev.Bd.

DISMISSED.

Before WIDENER, HALL, and WILKINSON, Circuit Judges.

PER CURIAM:

Billy Fuller seeks review of the Benefits Review Board's decision and order affirming the administrative law judge's denial of black lung benefits pursuant to 30 U.S.C.A. Secs. 901-945 (West 1986 & Supp.1992). The applicable filing period for appeals to this Court from decisions of the Board is sixty days. 33 U.S.C. Sec. 921(c) (1988). We have held that the failure to file a petition for review in the Circuit Court within the time period prescribed by Sec. 921(c) deprives this Court of jurisdiction to consider the appeal. See Adkins v. Director, Office of Workers' Compensation Programs, 889 F.2d 1360 (4th Cir.1989).

The Board issued its decision on December 24, 1992. Fuller filed his petition for review sixty-three days later, on February 25 1993. We acknowledge Fuller's contention that his petition for review was timely mailed, but note that Adkins permits no exceptions to the sixty-day filing requirement. We therefore dismiss this appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.*

* Our dismissal of Fuller's petition does not prejudice his right to seek modification of the claim denial under 20 C.F.R. Sec. 725.310(a). Jessee v. Director, OWCP, No. 92-2279, --- F.3d ---- (4th Cir. Sept. 2, 1993)