Connell Spain, Petitioner, v. Metro Machine Corporation; Director, Office of Workers'compensation Programs, Respondents, 898 F.2d 147 (4th Cir. 1990)

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US Court of Appeals for the Fourth Circuit - 898 F.2d 147 (4th Cir. 1990) Submitted: Nov. 30, 1989. Decided: March 2, 1990

On Petition for Review of an Order of the Benefits Review Board. (86-2082-BRB)

Connell Spain, petitioner pro se.

F. Nash Bilisoly, IV, Vandeventer, Black, Meredith & Martin; James Michael O'Neill, Karen Birnbaum Kracov, United States Department of Labor, for respondents.



Before K.K. HALL, CHAPMAN and WILKINS, Circuit Judges.


Connell Spain, a longshoreman, seeks review of the denial of a claim for benefits made pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act (the Act), as amended, 33 U.S.C. §§ 901 et seq. The Administrative Law Judge (ALJ) found that Spain failed to establish disability under the Act and denied benefits. The Benefits Review Board (Board) affirmed this finding as supported by substantial evidence and in accordance with applicable law in a decision filed March 31, 1989. Spain sought review with this Court on July 31, 1989. Spain contends that his petition for review should be considered timely since he did not receive formal notification of the Board's decision until July 20, 1989.

A decision of the Board becomes final 60 days after the issuance of the decision unless a petition for review is filed with the court of appeals within the 60-day period, or there is a timely motion for reconsideration filed with the Board. 33 U.S.C. § 921(c); 20 C.F.R. Secs. 802.406, 802.407. Ministerial failures by the clerk of the Board in connection with service of the Board's decision do not relieve a petitioner of his obligation to file within the statutory period. See Butcher v. Big Mountain Coal, Inc., 802 F.2d 1506 (4th Cir. 1986). We therefore lack jurisdiction to consider the appeal, and grant the motion to dismiss. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.