Unpublished Dispositionrichard Windom, Petitioner, v. Director, Office of Workers' Compensation Programs; Benefitsreview Board, Respondents, 758 F.2d 654 (6th Cir. 1985)

This matter is before the Court upon respondents' motion to dismiss or, in the alternative, transfer petitioner's appeal from a Benefits Review Board decision denying him benefits under the Black Lung Benefits Act, as amended, 30 U.S.C. §§ 901-962. Petitioner responded and also requests this Court transfer the case.

The court of appeals for the circuit in which the injury occurs has exclusive jurisdiction to review final orders of the Benefits Review Board. Louisville & Nashville Railroad v. Donovan, 713 F.2d 1243 (6th Cir. 1983), cert. denied, ---- U.S. ----, 104 S. Ct. 1908 (1984). The record reveals that petitioner's coal mining experience was limited to work in West Virginia. Jurisdiction to hear the petition, therefore, lies in the United States Court of Appeals for the Fourth Circuit, which includes the state of West Virginia.

28 U.S.C. § 1631 permits a court of appeals to transfer a pending case to the circuit in which the case could have been brought, if the Court determines that the transfer is in the interests of justice. This Court also has the inherent power to transfer a case to another circuit. Dayton Power & Light Co. v. EPA, 520 F.2d 703, 708 (6th Cir. 1985). Petitioner took a timely appeal in this Court. If the appeal is dismissed, any attempt to refile would not be timely.

Accordingly, it is ORDERED that respondents' motion to dismiss is denied, the motion to transfer the petition is granted and the petition is transferred to the United States Court of Appeals for the Fourth Circuit.