Unpublished Dispositionewing W. Miracle, Petitioner, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Respondent, 831 F.2d 296 (6th Cir. 1987)

The petitioner seeks review of a Benefits Review Board order denying his claim for black lung benefits. The Director now moves to dismiss on grounds that the petitioner failed to file a timely notice of appeal. The petitioner has not responded to the motion.

The Benefits Review Board's decision denying benefits was entered on April 16, 1987. By letter to the Board dated May 31, 1987, the petitioner indicated a desire to appeal from that denial. The Board notified the petitioner, by letter dated June 12, 1987, that his appeal was due in this Court by June 16, 1987. The petitioner's request for review was filed with the Court on June 18, 1987.

Under 33 U.S.C. § 921(c), a petition for review of a Benefits Review Board order must be filed in the court of appeals within sixty (60) days following issuance of that order. The time for filing the instant notice of appeal expired on June 15, 1987. (Although the Board erroneously informed the petitioner that his petition was due by June 16, 1987, this error is irrelevant. The petition was filed three days late. Thus, the petitioner clearly did not detrimentally rely upon the Board's pronouncement.) Because the petitioner's request was not filed within the statutory period, this Court lacks jurisdiction to review the Board's order. Bolling v. Director, Office of Workers' Compensation Programs, 823 F.2d 165 (6th Cir. 1987). Even if we construe the petitioner's letter of May 31, 1987 as a petition for review, we must still dismiss the appeal for lack of jurisdiction because the request was improperly filed with the Benefits Review Board. Id. Accordingly,

It is ORDERED that the motion to dismiss is granted.