Ervin Stapleton v. Eastern Coal Corporation

Sixth Circuit

Ervin Stapleton v. Eastern Coal Corporation

815 F.2d 80, 1987 U.S. App. LEXIS 18073, 1987 WL 36449

CourtCourt of Appeals for the Sixth Circuit

DecidedFebruary 25, 1987

Docket86-3871

StatusUnpublished

This text of 815 F.2d 80 (Ervin Stapleton v. Eastern Coal Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ervin Stapleton v. Eastern Coal Corporation, 815 F.2d 80, 1987 U.S. App. LEXIS 18073, 1987 WL 36449 (6th Cir. 1987).

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815 F.2d 80

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Ervin STAPLETON, Petitioner,
v.
EASTERN COAL CORPORATION, et al., Respondents.

No. 86-3871.

United States Court of Appeals, Sixth Circuit.

Feb. 25, 1987.

Before MERRITT, WELLFORD and MILBURN, Circuit Judges.

ORDER

Respondent corporation has filed a motion to dismiss for lack of jurisdiction this petition to review the final order of the Benefits Review Board of the Department of Labor, which affirmed the decision of the Administrative Law Judge denying petitioner Blaack Lung benefits pursuant to Title IV of the Federal Coal Mine Health and Safety Act, as amended, 30 U.S.C. 901 et seq.

Our review of the record indicates that, as pointed out in the motion to dismiss, the petition for review was filed with the court on September 22, 1986, three days after expiration of the sixty day period for the filing of such petitions; 20 C.F.R. 802.410(a). The requirement that the petition be timely filed is jurisdictional and cannot be waived; Wellman v.-Director OWCP, 706 F.2d 191 (6th Cir.1983); Hardesty v. Benefits Review Board, 783 F.2d 138 (8th Cir.1986). We are unpersuaded by the argument of the petitioner in opposition to the motion to dismiss that by having mailed his petition for review on the sixtieth day following issuance of the decision of the Board he has substantially complied with the requirement of timely filing; cf. Rich v. Director, OWCP, 798 F.2d 432 (11th Cir.1986).

For the foregoing reasons the motion of the respondent is found to be well taken, and it is therefore

ORDERED that the petition for review is hereby dismissed for Want of jurisdiction.

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815 F.2d 80

Unpublished Disposition
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.
Ervin STAPLETON, Petitioner,
v.
EASTERN COAL CORPORATION, et al., Respondents.

No. 86-3871.

United States Court of Appeals, Sixth Circuit.

Feb. 25, 1987.

Before MERRITT, WELLFORD and MILBURN, Circuit Judges.

ORDER

Respondent corporation has filed a motion to dismiss for lack of jurisdiction this petition to review the final order of the Benefits Review Board of the Department of Labor, which affirmed the decision of the Administrative Law Judge denying petitioner Blaack Lung benefits pursuant to Title IV of the Federal Coal Mine Health and Safety Act, as amended, 30 U.S.C. 901 et seq.

Our review of the record indicates that, as pointed out in the motion to dismiss, the petition for review was filed with the court on September 22, 1986, three days after expiration of the sixty day period for the filing of such petitions; 20 C.F.R. 802.410(a). The requirement that the petition be timely filed is jurisdictional and cannot be waived; Wellman v.-Director OWCP, 706 F.2d 191 (6th Cir.1983); Hardesty v. Benefits Review Board, 783 F.2d 138 (8th Cir.1986). We are unpersuaded by the argument of the petitioner in opposition to the motion to dismiss that by having mailed his petition for review on the sixtieth day following issuance of the decision of the Board he has substantially complied with the requirement of timely filing; cf. Rich v. Director, OWCP, 798 F.2d 432 (11th Cir.1986).

For the foregoing reasons the motion of the respondent is found to be well taken, and it is therefore

ORDERED that the petition for review is hereby dismissed for Want of jurisdiction.

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