21 F. 3d 423 - Phipps v. Clinchfield Coal Company
21 F3d 423 Phipps v. Clinchfield Coal Company
Arthell PHIPPS, widow of Henry O. Phipps, Petitioner,
v.
CLINCHFIELD COAL COMPANY; Director, Office of Workers'
Compensation Programs, United States Department of
Labor, Respondents.
No. 93-2275.
United States Court of Appeals, Fourth Circuit.
Submitted Jan. 24, 1994.
Decided April 20, 1994.
21 F.3d 423
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
On petition for Review of an Order of the Benefits Review Board. (93-1462-BLA)
Arthell Phipps, petitioner pro se.
Monroe Jamison, Jr., Penn, Stuart, Eskridge & Jones, Abingdon, VA; Marta Kusic, Staff Attorney, Rita A. Roppolo, United States Department of Labor, Washington, DC, for respondents.
Ben. Rev. Bd.
DISMISSED.
Before HALL, WILKINSON, and HAMILTON, Circuit Judges.
PER CURIAM:
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Arthell Phipps appeals from a decision of the Benefits Review Board (Board) denying her claim for Black Lung survivor's benefits, but vacating and remanding the administrative law judge's (ALJ) denial of benefits in her deceased husband's miner's claim under 30 U.S.C.A. Secs. 901-45 (West 1986 & Supp.1992). Our review is limited to final orders of the Board under 33 U.S.C. Sec. 921(c) (1986). We recently determined that where, as in this case, a miner's claim and a survivor's claim are consolidated, and the Board order appealed from affirms the denial of survivor's benefits while vacating and remanding for further consideration the denial of benefits on the miner's claim, such an order is not final within the meaning of Sec. 921(c). See Eggers v. Clinchfield Coal Co., 11 F.3d 35 (4th Cir.1993). Hence, such an order is not reviewable.
Accordingly, the motion of the Director, Office of Workers' Compensation Programs, to dismiss this appeal is granted. Phipps's petition for review as to both the miner's claim and the widow's claim is dismissed as interlocutory. 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