Unpublished Dispositionarline Mcroy (widow of John W. Mcroy), Petitioner, v. Peabody Coal Company; Director, Office of Workers'compensation Programs, United States Department Oflabor, Respondents, 865 F.2d 259 (6th Cir. 1988)

Before MILBURN and ALAN E. NORRIS, Circuit Judges, and RICHARD F. SUHRHEINRICH, District Judge.^* 

ORDER

Petitioner appeals the decision of the Benefits Review Board (Board) vacating an award of benefits and remanding the case to the Office of Administrative Law Judges for a de novo hearing. Respondent, Peabody Coal Company, moves for dismissal. Petitioner has not responded.

The Board issued its order on December 31, 1987. Within sixty (60) days, the petitioner filed a timely petition for review. Subsequently, on the last day of the thirty (30) day period for filing a motion to reconsider, the Director served by mail a motion for reconsideration on the Board and with all the parties. Such service rendered the motion timely filed. 20 C.F.R. Secs. 802.221, 802.407. That motion was denied December 5, 1988.

Respondent argues that the time for filing an appeal was tolled by the filing of a timely motion for reconsideration with the Board. See Sec. 802.406; Arch Mineral Corp. v. Director, Office of Workers' Compensation Programs, 798 F.2d 215, 219 (7th Cir. 1986) (petition for review is timely if filed within sixty (60) days of the Board's denial of a timely motion to reconsider). See also Bolling v. Director, Office of Workers' Compensation Programs, 823 F.2d 165 (6th Cir. 1987) (order) (untimely motion for reconsideration does not toll appeal period). In the absence of any response by the petitioner, we agree with the respondent that this appeal is premature. Cf. Rule 4(a) (4), Fed. R. App. P.

It is ORDERED that the motion to dismiss be granted.