Margie Allen v. Wellmore Coal Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2130
MARGIE ALLEN, widow of Arvil L. Allen,
Petitioner,
v.
WELLMORE 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
(BRB No. 10-0568 BLA).
Submitted: April 19, 2012 Decided: April 24, 2012
Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Margie Allen, Petitioner Pro Se. Ronald Eugene Gilbertson,
HUSCH BLACKWELL, LLP, Washington, D.C.; Jeffrey Steven Goldberg,
Patricia May Nece, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Margie Allen seeks to petition this court for review
of the decision and order of the Benefits Review Board (“Board”)
affirming the Administrative Law Judge’s decision and order
denying survivor’s benefits under the Black Lung Benefits Act,
30 U.S.C. §§ 901-945 (2006), and the Board’s order summarily
denying reconsideration. We dismiss the petition for review for
lack of jurisdiction.
To the extent that Allen petitions for review of the
Board’s denial of her motion for reconsideration, the Board’s
summary denial is unreviewable. See Betty B Coal Co. v. Dir.,
Office of Workers’ Comp. Programs, 194 F.3d 491, 496 (4th Cir.
1999) (“Where a party petitions an agency for reconsideration on
the ground of material error, i.e., on the same record that was
before the agency when it rendered its original decision, an
order which merely denies rehearing is not itself reviewable.”)
(internal quotation marks, brackets, and ellipses omitted).
Turning to the underlying Board decision and order
affirming the denial of benefits, we conclude that Allen failed
to timely file a petition for review of that decision. The
Board’s decision becomes final sixty days after it is issued
unless a claimant files a petition for review with this court or
files a timely motion for reconsideration with the Board. 20
C.F.R. § 802.406 (2012). The claimant’s motion for
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reconsideration is timely if it is filed within thirty days of
the Board’s order. 20 C.F.R. § 802.407(a) (2012). If the
claimant files a timely motion for reconsideration, the sixty-
day period will run from the Board’s decision on
reconsideration. 20 C.F.R. § 802.406. The sixty-day period for
filing a petition for review from a Board order is
jurisdictional. Adkins v. Dir., Office of Workers’ Comp.
Programs, 889 F.2d 1360, 1363 (4th Cir. 1989).
Here, the Board’s order was entered on June 21, 2011,
and Allen filed her motion for reconsideration with the Board
on July 22, 2011, one day beyond the thirty-day limit for filing
such a motion. See 20 C.F.R. § 802.407(a). Thus, Allen’s
motion for reconsideration did not toll the sixty-day period for
filing a petition for review in this court, and Allen was
required to file her petition no later than August 22, 2011.*
Allen did not file her petition until October 14, 2011.
Because Allen failed to file a timely petition for
review of the underlying Board decision and order, we dismiss
the petition for review. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
*
Because the sixtieth day fell on a Saturday, Allen had
until Monday, August 22, to file her petition for review. See
20 C.F.R. § 802.221 (2012).
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materials before the court and argument would not aid the
decisional process.
PETITION DISMISSED
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