Smith v. Sharples Coal

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 28, 1999
• Docket: 99-1906
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 99-1906

DANNY JOE SMITH,

Petitioner,

versus

SHARPLES COAL CORPORATION, DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order of the Benefits Review Board. (98-269-BLA, 96-1628-BLA)

Submitted: October 14, 1999 Decided: October 28, 1999

Before WIDENER and LUTTIG, Circuit Judges, and BUTZNER, Senior Cir- cuit Judge.

Dismissed by unpublished per curiam opinion.

Danny Joe Smith, Appellant Pro Se. Mary Rich Maloy, JACKSON & KELLY, Charleston, West Virginia; Dorothy L. Page, Christian P. Barber, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Danny Smith seeks review of the Benefits Review Board’s deci-

sion and order denying black lung benefits pursuant to 30 U.S.C.A.

§§ 901-45 (West 1994 & Supp. 1999). The applicable filing period

for appeals to this court from decisions of the Board is sixty

days. 33 U.S.C. § 921(c) (1994). The failure to file a petition

for review in this court within the applicable filing period de-

prives this court of jurisdiction to consider the appeal. See

Adkins v. Director, Office of Workers’ Compensation Programs, 889

F.2d 1360, 1363 (4th Cir. 1989).

The Board issued its decision in this case on October 28,

1998. Because Smith filed a motion for reconsideration, however,

the sixty-day period did not commence until January 21, 1999, when

the Board issued its order denying the motion. See 20 C.F.R.

§§ 802.406, 407 (1998); Midland Coal Co. v. Director, Office of

Workers’ Compensation Programs, 149 F.3d 558, 563 (7th Cir. 1998).

The appeal period thus expired on March 22, 1999. Because Smith

did not appeal until July 8, 1999, his appeal is untimely, and we

lack jurisdiction to review it.

Accordingly, we dismiss this appeal. 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