Dorman E. Fairchild v. Director, Office of Workers' Compensation Programs, United States Department of Labor

863 F.2d 17, 1988 U.S. App. LEXIS 18780, 1988 WL 132311

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 18, 1988
• Docket: 88-3705
• Status: Published

Opinion

ORDER

This matter is before the court upon consideration of the respondent’s motion to dismiss the appeal for lack of jurisdiction because of a late petition for review. The petitioner has failed to respond.

A review of the administrative record shows that the decision of the Benefits Review Board (Board) was filed December 21, 1987. In a letter dated February 23, 1988 and received by the Board on March 2, 1988, claimant requested a review of his case. The Board advised the claimant by letter dated May 13, 1988, that the Board had no jurisdiction to consider the request for an appeal, but that an appeal could be taken by filing a request for an appeal directly with the appropriate United States Court of Appeals. A petition for review was received in this court on May 24, 1988, and docketed on August 8, 1988.

This court lacks jurisdiction in this appeal. A petition for review must be filed in the court of appeals within 60 days of the Board’s decision as provided by 33 U.S.C. § 921(c). Fed.R.App.P. 15(a) governing review of agency orders, does not allow a court of appeals to accept the date a letter or petition was received by the Board as the date of filing in the court. Danko v. Director, Office of Workers’ Compensation Programs, 846 F.2d 366, 369 (6th Cir.1988) (per curiam); Bolling v. Director, Office of Workers’ Compensation Programs, 823 F.2d 165, 166 (6th Cir.1987) (order). The May 24, 1988, petition for review of the December 21, 1987, decision of the Board was 95 days late.

It is ORDERED that the motion to dismiss be granted and the appeal be dismissed. Rule 8, Rules of the Sixth Circuit.