Nidiffer v. Westmoreland Coal

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2234
LENA PERSON NIDIFFER, on behalf of and widow
of Alfred Rhea Nidiffer,
Petitioner,
versus
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR;
WESTMORELAND COAL COMPANY, INCORPORATED,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(05-126-BLA)
Submitted: April 28, 2006 Decided: June 30, 2006
Before WILLIAMS and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Lena Person Nidiffer, Petitioner Pro Se. Patricia May Nece, Barry
H. Joyner, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.;
Douglas Allan Smoot, JACKSON & KELLY, PLLC, Charleston, West
Virginia; Kathy Lynn Snyder, Ashley Marie Harman, JACKSON & KELLY,
PLLC, Morgantown, West Virginia; Vincent John Carroll, Richlands,
Virginia, for Respondents.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Lena Person Nidiffer petitions for review of the Benefits
Review Board’s (Board) Decision and Order affirming the
Administrative Law Judge’s (ALJ) denial of benefits on a living
miner claim for black lung benefits and vacating and remanding the
ALJ’s decision awarding benefits on her widow’s claim for benefits.
This court may exercise jurisdiction only over final orders, 28
U.S.C. § 1291 (2000), and certain interlocutory and collateral
orders, 28 U.S.C. § 1292 (2000); Fed. R. Civ. P. 54(b); Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949); Eggers v.
Clinchfield Coal Co., 11 F.3d 35, 38 (4th Cir. 1993). The order
Nidiffer seeks to appeal is neither a final order nor an appealable
interlocutory or collateral order with regard to her widow’s claim
for benefits. Accordingly, with regard to the Board’s order
vacating and remanding the widow’s claim, we dismiss the appeal for
lack of jurisdiction.
Because the miner’s claim is not inextricably intertwined
with the widow’s claim, we exercise jurisdiction over the Board’s
affirmance of the denial of benefits on the miner’s claim. Eggers,
11 F.3d at 39. Our review of the record leads us to conclude that
the Board’s decision is based upon substantial evidence and is
without reversible error. Accordingly, we affirm the denial of
benefits on the miner’s claim on the reasoning of the Board. See
Nidiffer v. Westmoreland Coal Co., Nos. 05-0126 BLA, 05-0126 BLA-A
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(BRB Sept. 30, 2005). We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART
AND AFFIRMED IN PART
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