James C. Cottongim v. Director, Office of Workers' Compensation Programs, United States Department of Labor , 891 F.2d 289 ( 1989 )

891 F.2d 289

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
James C. COTTONGIM, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Respondent.

No. 89-3138.

United States Court of Appeals, Sixth Circuit.

Dec. 8, 1989.

Before KEITH and ALAN E. NORRIS, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.

ORDER

1

Respondent moves to dismiss this appeal from an order of the Benefits Review Board regarding petitioner's claim for black lung benefits. Petitioner has filed a response.

2

Examination of the record discloses that petitioner, James C. Cottongim, originally filed a claim for black lung benefits pursuant to 30 U.S.C. § 901 et seq. in 1983. After initial administrative consideration resulted in the denial of benefits, petitioner sought further review of his claim by an administrative law judge. Based upon the testimony adduced at a hearing conducted on May 17, 1985, and the additional evidence provided by the parties, however, the administrative law judge again denied the claim for benefits. Petitioner then appealed that decision to the Benefits Review Board which, in an order entered on March 31, 1988, partially vacated the denial of benefits and remanded the case to the administrative law judge for consideration of whether x-ray evidence was sufficient to invoke the interim presumption of disability due to pneumoconiosis established in 20 C.F.R. § 727.203(a)(1). Upon the Board's subsequent refusal to reconsider that action, petitioner filed this appeal.

3

This court agrees with respondent that it lacks jurisdiction over the appeal. Specifically, this court's jurisdiction in black lung benefits cases is limited to the final orders and decisions of the Benefits Review Board. Youghiogheny & Ohio Coal Co. v. Baker, 815 F.2d 422, 424-25 (6th Cir.1987). The Board's order which is the subject of this appeal clearly does not satisfy that requirement as it remanded the claim for benefits to the administrative law judge for further consideration of the applicability of the interim presumption contained in 20 C.F.R. § 727.203(a)(1). Canada Coal Co. v. Stiltner, 866 F.2d 153, 155 (6th Cir.1989). As a result, this court lacks jurisdiction over the appeal.

4

Accordingly, it is ORDERED that respondent's motion to dismiss the appeal be and hereby is granted. Rule 8(a), Rules of the Sixth Circuit.