Antonio Russo, Petitioner, v. Director, Office of Workers Compensation Program, Unitedstates Department of Labor, Respondent, 898 F.2d 147 (4th Cir. 1990)

Antonio Russo, a coal miner, petitions this Court for review of the Benefits Review Board's (Board) dismissal of his case as untimely. The deputy commissioner denied benefits in a decision filed April 18, 1989. Russo's notice of appeal to the Board was dated June 30, 1989, and apparently postmarked July 3, 1989. Because the appeal was neither received nor postmarked within 30 days of the deputy commissioner's decision, the Board dismissed the appeal as untimely filed. See 30 U.S.C. §§ 921(a), 932(a); 20 C.F.R. Secs. 802.205, 802.207(b). Russo sought review with this Court. The Director filed a motion to dismiss the appeal without prejudice as moot and to hold the briefing schedule in abeyance, because he concluded that Russo is entitled to black lung benefits, even though the appeal was not properly before the Board.

Because the Director agrees that Russo is entitled to an award of black lung benefits, the jurisdictional issue is moot. See Greenwich Collieries v. Director, OWCP, 732 F.2d 343 (3d Cir. 1984), citing A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324 (1961). Under 20 C.F.R. Sec. 725.310, any party, or the deputy commissioner on his own initiative, may seek modification of a decision within one year of the denial of the claim. Because the Director agrees to seek modification of the previous decision denying benefits so that payment of benefits will begin within thirty days of this Court's dismissal, the motion to dismiss without prejudice and hold the briefing schedule in abeyance is granted. We dispense with oral argument because the decisional process would not be significantly aided.

IT IS SO ORDERED.