Ray O. Cook, Petitioner, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Party in Interest,shannon-pocahontas Mining Company, Respondent, 836 F.2d 545 (4th Cir. 1987)

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US Court of Appeals for the Fourth Circuit - 836 F.2d 545 (4th Cir. 1987) Submitted Nov. 9, 1987. Decided Dec. 21, 1987

Richard G. Rundle, Rundle & Rundle, for petitioner.

William T. Brotherton, III, Spilman, Thomas, Battle & Klostermeyer, for respondent.

Before WIDENER, SPROUSE, and ERVIN, Circuit Judges.


Petitioner Ray O. Cook seeks review of an order of the Benefits Review Board affirming the administrative law judge's denial of benefits under the Black Lung Benefits Act (as amended), 30 U.S.C. § 901 et seq. Respondent Shannon-Pocahontas Mining Company has moved to dismiss the petition as untimely filed. We grant the motion and dismiss.

Under 33 U.S.C. § 921(c), made applicable to the Black Lung Benefits Act by 30 U.S.C. § 932(a) (as amended), review may be obtained of a final order of the Board "by filing in [the court of appeals] within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside." The Board issued its decision in this case on August 10, 1987, and the 60-day period provided by Sec. 921(c) expired on October 9, 1987. Cook's petition for review, filed October 13, 1987, is untimely. His contentions that the time of mailing the petition governs and that justice requires consideration of the petition despite the date of filing are without merit. See Rich v. Director, Office of Workers' Compensation Programs, 798 F.2d 432 (11th Cir. 1986).

The motion to dismiss is granted and the petition is dismissed for lack of jurisdiction. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.