Nidiffer v. Westmoreland Coal

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 30, 2006
• Docket: 05-2234
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-2234

LENA PERSON NIDIFFER, on behalf of and widow of Alfred Rhea Nidiffer,

Petitioner,

versus

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; WESTMORELAND COAL COMPANY, INCORPORATED,

Respondents.

On Petition for Review of an Order of the Benefits Review Board. (05-126-BLA)

Submitted: April 28, 2006 Decided: June 30, 2006

Before WILLIAMS and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

Lena Person Nidiffer, Petitioner Pro Se. Patricia May Nece, Barry H. Joyner, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Douglas Allan Smoot, JACKSON & KELLY, PLLC, Charleston, West Virginia; Kathy Lynn Snyder, Ashley Marie Harman, JACKSON & KELLY, PLLC, Morgantown, West Virginia; Vincent John Carroll, Richlands, Virginia, for Respondents. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

- 2 - PER CURIAM:

Lena Person Nidiffer petitions for review of the Benefits

Review Board’s (Board) Decision and Order affirming the

Administrative Law Judge’s (ALJ) denial of benefits on a living

miner claim for black lung benefits and vacating and remanding the

ALJ’s decision awarding benefits on her widow’s claim for benefits.

This court may exercise jurisdiction only over final orders, 28

U.S.C. § 1291 (2000), and certain interlocutory and collateral

orders, 28 U.S.C. § 1292 (2000); Fed. R. Civ. P. 54(b); Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949); Eggers v.

Clinchfield Coal Co., 11 F.3d 35, 38 (4th Cir. 1993). The order

Nidiffer seeks to appeal is neither a final order nor an appealable

interlocutory or collateral order with regard to her widow’s claim

for benefits. Accordingly, with regard to the Board’s order

vacating and remanding the widow’s claim, we dismiss the appeal for

lack of jurisdiction.

Because the miner’s claim is not inextricably intertwined

with the widow’s claim, we exercise jurisdiction over the Board’s

affirmance of the denial of benefits on the miner’s claim. Eggers,

11 F.3d at 39. Our review of the record leads us to conclude that

the Board’s decision is based upon substantial evidence and is

without reversible error. Accordingly, we affirm the denial of

benefits on the miner’s claim on the reasoning of the Board. See

Nidiffer v. Westmoreland Coal Co., Nos. 05-0126 BLA, 05-0126 BLA-A

- 3 - (BRB Sept. 30, 2005). 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.

DISMISSED IN PART AND AFFIRMED IN PART

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