837 F. 2d 1091 - York v. Director Office of Workers' Compensation of Programs United States Department of Labor

Paul York petitioned for review of the decision of the Benefits Review Board affirming the administrative law judge's decision that he was not entitled to Black Lung Benefits. The Board's order was entered September 30, 1986. Judicial review of that order would have been secured by filing a petition for review with the court within sixty days of September 30, 1986, that is by November 30, 1986. 33 U.S.C. Sec. 921(c). On October 18, 1986, petitioner filed a letter with the Benefits Review Board requesting an appeal and asking for instructions on how to file an appeal in a court of appeals. The Board on January 8, 1987, issued an order advising petitioner that appeal of the Board's order lay with the United States Court of Appeals for the Eleventh Circuit. On January 20, 1987, petitioner filed a petition for review in the Eleventh Circuit.

By order filed May 27, 1987, the Eleventh Circuit transferred the case to this court and specifically reserved ruling on the timeliness of the petition for review. In Memorandum of Law filed with the Eleventh Circuit on April 3, 1987, the Director briefed the timeliness issue. In that Memorandum of Law, the Director noted that York's letter could be viewed as a request for reconsideration en banc and made the alternative suggestion that this case be remanded to the Board "to allow the Board to determine whether en banc consideration is appropriate, giving the Board the opportunity to cure the apparent jurisdictional defect present here."

Accordingly, it is ORDERED that this case be remanded to allow the Board to consider whether the apparent jurisdictional defect may be cured. Rule 9(b)(3), Rules of the Sixth Circuit.