John H. Berry, Petitioner, v. Director, Office of Workers Compensation Programs, Respondent, 867 F.2d 608 (4th Cir. 1989)

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U.S. Court of Appeals for the Fourth Circuit - 867 F.2d 608 (4th Cir. 1989) Submitted: Nov. 23, 1988. Decided: Jan. 12, 1989. Rehearing Denied Jan. 31, 1989

John H. Berry, petitioner pro se.

James Michael O'Neill, Michelle Seyman Gerdano, Barbara J. Johnson, Donald Steven Shire, Lawrence W. Rogers (U.S. Department of Labor), for respondent.

Before K.K. HALL, MURNAGHAN and ERVIN, Circuit Judges.


John H. Berry petitions for review of the Benefits Review Board's decision and order affirming the administrative law judge's order denying his application for disability benefits available under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. Our review of the record discloses that Berry's petition for review was not filed within the statutory period for invoking this Court's review jurisdiction. Consequently, we dismiss the petition for want of jurisdiction.

The time for filing a petition for review of a decision of the Benefits Review Board is governed by 33 U.S.C. § 921(c):

Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside....

See also, 20 C.F.R. Sec. 802.410(a).

The Board's order was issued 28 October 1987; Berry's petition for review was filed in this Court 63 days later, on 30 December 1987. Consequently, Berry's petition is untimely and is dismissed for want of jurisdiction. We dispense with oral argument since it would not significantly aid the decisional process.