Clarence Thompson, Jr. v. Director, Office of Workers' Compensation Programs, United States Department of Labor

995 F.2d 1067, 1993 U.S. App. LEXIS 21159, 1993 WL 206272

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 11, 1993
• Docket: 93-3133
• Status: Unpublished

Opinion

995 F.2d 1067

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Clarence THOMPSON, Jr., Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Respondent.

No. 93-3133.

United States Court of Appeals, Sixth Circuit.

June 11, 1993.

Before: GUY and SUHRHEINRICH, Circuit Judges; and JOINER, Senior District Judge.*

ORDER

The petitioner seeks review of a purported decision of the Benefits Review Board affirming the denial of his application for black lung disability benefits. The director now moves to dismiss on grounds that a final order has not yet been entered in this matter. The petitioner has not filed a response.

Following an administrative decision denying his application for black lung disability benefits, the petitioner, Clarence Thompson, Jr. (Thompson) filed a notice of appeal with the Benefits Review Board (the Board). Thompson failed to filed a timely petition for review and supporting brief and on October 27, 1992, the Board entered an order requiring him to show cause within ten days why his appeal should not be dismissed. Thompson did not respond to the show cause order. Perhaps assuming that his appeal before the Board was no longer viable, Thompson filed a petition for review in this court on February 5, 1993. In his petition he does not indicate the order appealed from, other than to state that the Board has affirmed the denial of his application of benefits. The director states, however, that Thompson's appeal is still pending before the Board and that no decision on the merits or order of dismissal has been entered. In the absence of a final order by the Board, this court is without jurisdiction to consider Thompson's petition for review. See Youghiogheny v. Ohio Coal Co. v. Baker, 815 F.2d 422, 424 n. 2 (6th Cir.1987).

It is therefore ORDERED that the director's motion to dismiss is granted. This order is without prejudice to the petitioner's right to perfect a timely petition for review upon entry of a final order by the Board.

* The Honorable Charles W. Joiner, U.S. Senior District Judge for the Eastern District of Michigan, sitting by designation