Unpublished Dispositionvick Partin, Jr., Petitioner, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor. Respondent, 863 F.2d 49 (6th Cir. 1988)Annotate this Case
Before DAVID A. NELSON and BOGGS, Circuit Judges, and RICHARD A. ENSLEN, District Judge.*
This matter is before the court upon consideration of the respondent's motion to dismiss the appeal for lack of jurisdiction because of a late petition for review. Petitioner has filed a financial affidavit dated September 14, 1988, as a motion for leave to proceed in forma pauperis.
The decision of the Benefits Review Board (Board) was filed on March 28, 1988. By letter dated May 17, 1988, and received by the Board on May 24, 1988, petitioner requested an appeal. The Board advised petitioner by letter dated June 14, 1988, that the Board lacked jurisdiction to consider the request for an appeal but that an appeal could be taken by filing a request for an appeal directly with the appropriate United States Court of Appeals. A petition for review was filed in this court on July 5, 1988.
This court lacks jurisdiction in this appeal. A petition for review must be filed in the court of appeals within sixty days of the Board's decision as provided by 33 U.S.C. § 921(c). Fed. R. App. P. 15(a), governing review of agency orders, does not allow a court of appeals to accept the date a letter or petition was received by the Board as the date of filing in the court. Danko v. Director, Office of Workers' Compensation Programs, 846 F.2d 366 (6th Cir. 1988) (per curiam); Bolling v. Director, Office of Workers' Compensation Programs, 823 F.2d 165 (6th Cir. 1987) (order). The July 5, 1988, petition for review of the March 28, 1988, decision of the Board was 39 days late.
It is therefore ORDERED that the motion to dismiss be granted, the motion to proceed in forma pauperis be denied, and the appeal be dismissed. Rule 8, Rules of the Sixth Circuit.
The Honorable Richard A. Enslen, U.S. District Judge for the Western District of Michigan, sitting by designation