Unpublished Dispositionoval T. Clark, Petitioner, v. Director, Office Workers Compensation Programs, U.s.department of Labor, Benefits Review Board, Respondents, 755 F.2d 931 (6th Cir. 1985)

This matter is before the Court upon consideration of respondents' motion to dismiss the petition for review of a June 11, 1984 order of the Benefits Review Board denying petitioner's case brought under the Black Lung Benefits Act, 30 U.S.C. 932(a). Petitioner also moves the Court to proceed in forma pauperis on appeal.

The Longshoreman's and Harbor Workers Compensation Act, 33 U.S.C. 921(c), made applicable to cases arising under the Black Lung Benefits Act, and 20 C.F.R. 802.410(a) provide in relevant part that a petition for review in the appropriate court of appeals must be filed within 60 days of a Board decision. Rule 25(a), Federal Rules of Appellate Procedure, states that filing shall not be timely unless the papers are received by the clerk within the filing period. Accord Kahler-Ellis Co. v. Ohio Turnpike Commission, 225 F.2d 922 (1955). A court of appeals is without jurisdiction to entertain an untimely petition for review. Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 42-46 (2nd Cir. 1976), aff'd sub nom. Northeast Marine Co., Inc. v. Caputo, 432 U.S. 249 (1977). The petition for review was received on August 13, 1984 three days late, and this Court lacks jurisdiction to hear the appeal.

Accordingly, it is ORDERED that the motion to dismiss is granted and the appeal is dismissed. It is further ORDERED that petitioner's motion to proceed in forma pauperis is granted.