762 F. 2d 1007 - Willie Hamilton Jr v. Director Office of Workers' Compensation Programs United States Department of Labor

This matter is before the Court upon consideration of respondent's motion to dismiss the petition for review of the July 30, 1984 order of the Benefits Review Board denying petitioner's case brought under the Black Lung Benefits Act, 30 U.S.C. Sec. 932(a). Petitioner also moves the Court for an order filing his petition as if it were received timely.

The Longshoreman's and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 921(c), made applicable to cases arising under the Black Lung Benefits Act and 20 C.F.R. Sec. 802.410(a) provides in relevant part that a petition for review in the appropriate court of appeals must be filed within sixty (60) days of a Board decision. Rule 25(a), Federal Rules of Appellate Procedure, states that filing shall not be timely unless the papers are received by the clerk within the filing period. Accord Kahler-Ellis Co. v. Ohio Turnpike Commission, et al., 225 F.2d 922 (6th Cir. 1955). A court of appeals is without jurisdiction to entertain an untimely petition for review. Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 42-46 (2nd Cir. 1976), aff'd. sub nom, Northeast Marine Co., Inc. v. Caputo, 432 U.S. 249 (1977). Further, the doctrine of excusable neglect, available in untimely appeals from the district court, is not statutorily permitted in Black Lung cases. Blevins v. Directors, Office of Workers' Compensation, 683 F.2d 139, 142 (6th Cir. 1982). The petition for review was received on October 1, 1984, three days late. This Court lacks jurisdiction to hear the appeal or to extend the time for filing the petition.

Accordingly, it is ORDERED that the motion to dismiss be granted and the appeal be dismissed. It is further ORDERED that the motion to file petition timely be denied.