Seaward Marine v. DOWCP

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SEAWARD MARINE SERVICES,
INCORPORATED,
Petitioner,
v.
No. 96-2661
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondent.
On Petition for Review of an Order
of the Benefits Review Board.
(94-2323)
Submitted: October 28, 1997
Decided: December 4, 1997
Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
R. John Barrett, Kelly O. Stokes, VANDEVENTER, BLACK, MER-
EDITH & MARTIN, Norfolk, Virginia, for Petitioner. J. Davitt
McAteer, Acting Solicitor of Labor, Carol A. De Deo, Associate
Solicitor, Arthur F. Rosenfeld, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Seaward Marine Services, Incorporated ("Seaward Marine") peti-
tions this court for review of the summary affirmance by the Benefits
Review Board ("BRB") of the administrative law judge's ("ALJ")
decision denying Seaward Marine's application for relief under 33
U.S.C. § 908(f) (1994), as untimely filed and awarding benefits to
claimant under the Longshore and Harborworkers' Compensation Act
("Act"). Because we find that Seaward Marine filed its petition for
review after the applicable appeal period expired, we dismiss the
appeal for lack of jurisdiction.
Parties aggrieved by a decision of the BRB have sixty days to file
a petition for review in the court of appeals. See 33 U.S.C. § 921(c)
(1994). We have held that § 921(c) is jurisdictional and requires that
the petition for review be filed in the clerk's office of the court within
sixty days of the BRB's decision. See Adkins v. Director, Office of
Workers' Compensation Programs, 889 F.2d 1360, 1361-63 (4th Cir.
1989).
On September 12, 1996, the BRB sent the parties a notice stating
that all appeals to the BRB relating to claims under the Act which
were pending before the BRB for more than one year shall, if not
acted upon before September 12, 1996, be considered affirmed by the
BRB. See Omnibus Consolidated Rescissions and Appropriations Act
of 1996, Pub. L. No. 104-134, § 101(d), 110 Stat. 1321, 1321-219.
Seaward Marine's appeal met these criteria, and the BRB informed
the parties that the ALJ's decision had been effectively affirmed by
the BRB on September 12, 1996, for purposes of their rights to obtain
review in this court. Because the BRB issued its notice on September
12, 1996, the sixty-day appeal period expired on November 12,
1996.* Seaward Marine's petition for review was filed in this court
_________________________________________________________________
*The 60th day fell on November 11, 1996, a legal holiday. Under Fed.
R. App. P. 26(a), the parties had an additional day to file a petition for
review.
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on November 13, 1996--one day outside the applicable sixty-day
period. We therefore find that the petition for review is untimely.
Accordingly, we dismiss the appeal for lack of jurisdiction. We dis-
pense with oral argument based on our prior order granting the
motion to submit the case on briefs.
DISMISSED
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