859 F. 2d 922 - McLain v. Director Office of Workers' Compensation Programs United States Department of Labor

Ben.Rev.Bd.

DISMISSED.

Before WELLFORD and DAVID A. NELSON, Circuit Judges and RICHARD B. McQUADE, District Judge.*

This matter is before the court upon consideration of the respondent's motion to dismiss the appeal for lack of jurisdiction because of a late petition for review. The petitioner has failed to respond.

A review of the administrative record shows that the decision of the Benefits Review Board (Board) was filed March 30, 1988. By letter received by the Board on June 1, 1988, claimant stated that she "would like a review" of the case. The Board advised the claimant by letter dated June 29, 1988, that the Board had no jurisdiction to consider the request for an appeal, but that an appeal could be taken by filing a request for an appeal directly with the appropriate United States Court of Appeals. A petition for review was filed in this court on July 8, 1988.

This court lacks jurisdiction in this appeal. A petition for review must be filed in the court of appeals within 60 days of the Board's decision as provided by 33 U.S.C. Sec. 921(c). Fed.R.App.P. 15(a), governing review of agency orders, does not allow a court of appeals to accept the date a letter or petition was received by the Board as the date of filing in the court. Danko v. Director, Office of Workers' Compensation Programs, 846 F.2d 366, 369 (6th Cir.1988) (per curiam); Bolling v. Director, Office of Workers' Compensation Programs, 823 F.2d 165, 166 (6th Cir.1987) (order). The July 8, 1988, petition for review of the March 30, 1988, decision of the Board was 38 days late.

It is ORDERED that the motion to dismiss be granted and the appeal be dismissed. Rule 8, Rules of the Sixth Circuit.