Johnny B. Turner v. Clinchfield Coal Company, Director, Office of Workers' Compensation Programs, United States Department of Labor

936 F.2d 567, 1991 U.S. App. LEXIS 19807, 1991 WL 113621

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 28, 1991
• Docket: 90-1145
• Status: Unpublished

Opinion

936 F.2d 567
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Johnny B. TURNER, Petitioner,
v.
CLINCHFIELD COAL COMPANY, Director, Office of Workers'
Compensation Programs, United States Department of
Labor, Respondents.

No. 90-1145.

United States Court of Appeals, Fourth Circuit.

Submitted March 18, 1991.
Decided June 28, 1991.

On Petition for Review of an Order of the Benefits Review Board. (87-2644-BLA)

Johnny B. Turner, petitioner pro se.

Michael F. Blair, Penn, Stuart, Eskridge & Jones, Abingdon, Va., Edward O. Falkowski, Marta Kusic, Barbara J. Johnson, United States Department of Labor, Washington, D.C., for respondents.

Ben.Rev.Bd.

DISMISSED.

Before MURNAGHAN and WILKINSON, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

PER CURIAM:

Johnny Turner 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. Secs. 901 et seq. The Director, Office of Workers' Compensation Programs ("Director"), however, has filed a motion to dismiss Turner's petition for review as untimely.

The applicable filing period for appeals to this Court from decisions of the Board is 60 days. 33 U.S.C. Sec. 921(c). 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 the court of jurisdiction to consider the appeal. See Adkins v. Director, OWCP, 889 F.2d 1360 (4th Cir.1989). The mistaken filing of a petition with the wrong party or judicial body cannot toll the expiration of the 60-day filing period. See Adkins, supra. See also Shendock v. Director, OWCP, 893 F.2d 1458 (3d Cir.1990) (en banc); Mussato v. Director, OWCP, 855 F.2d 513 (8th Cir.1988).

We are therefore constrained to grant the Director's motion and dismiss Turner's 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.