R.j. Jessee, Petitioner, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Respondent, 848 F.2d 185 (4th Cir. 1988)

R.J. Jessee appeals an order of the Benefits Review Board denying his application for benefits under the Black Lung Benefits Act, codified at 30 U.S.C. § 901 et seq. Westmoreland Coal Company moved to dismiss for lack of jurisdiction because the petition for review was not timely filed. We agree and grant the motion to dismiss.

Jessee filed his claim for black lung disability benefits on November 3, 1980. After the Department of Labor denied the claim, Jessee requested and received a hearing before an Administrative Law Judge (ALJ). The ALJ denied the claim, and the Benefits Review Board affirmed in an order issued on August 21, 1987. Jessee then filed his petition for review by this court on October 21, 1987.

33 U.S.C. § 921(c) establishes the time for appeal from a decision of the Benefits Review Board:

Any person adversely affected or aggrieved by a final order of the Board may obtain review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside.

This court received Jessee's petition for review of the Board's action on October 21, 1987, sixty-one days after the Board issued its decision. Jessee's appeal is therefore untimely. Rich v. Director, 798 F.2d 432 (11th Cir. 1986). Accordingly, this court lacks jurisdiction and thus we grant Westmoreland's motion to dismiss the petition.

DISMISSED.