Cox v. Pond Creek Mining Company , 350 F. App'x 800 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1573
KAREN COX, Widow of George B. Cox, IV,
Petitioner,
v.
POND CREEK MINING COMPANY; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(05-6241-BLA; 08-0321-BLA)
Submitted: September 22, 2009 Decided: November 6, 2009
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Karen Cox, Petitioner Pro Se. Waseem Karim, JACKSON KELLY,
PLLC, Lexington, Kentucky, William Steele Mattingly, JACKSON
KELLY, PLLC, Morgantown, West Virginia; Steven D. Breeskin,
Jeffrey Steven Goldberg, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Karen S. Cox (Cox), seeks to appeal the Benefits
Review Board’s (Board) decision affirming the Administrative Law
Judge’s decision denying survivor’s black lung benefits, and the
Board’s subsequent decision denying reconsideration. We dismiss
the appeal for lack of jurisdiction.
In a black lung benefits case, a party seeking review
of a decision and order issued by the Board must file a petition
for review in the court of appeals “for the circuit in which the
injury occurred,” within sixty days after the order is issued.
33 U.S.C. § 921(c) (2006). The sixty-day period for seeking
review is jurisdictional, and a petition for review must be
filed with the clerk of this court to stop the running of this
period. Adkins v. Dir., Office of Workers’ Comp. Programs, 889
F.2d 1360, 1363 (4th Cir. 1989). “[T]he sixty day filing period
begins to run with the filing of a Board opinion with the Clerk
of the Board.” Mining Energy, Inc. v. Dir., Office of Workers’
Comp. Programs, 391 F.3d 571, 575-76 (4th Cir. 2004).
In this case, the Board’s decision was issued and
served on the parties on December 16, 2008. Cox filed a request
for reconsideration with the Board on January 22, 2009. This
request was not timely filed, however, and did not serve to toll
the sixty-day period for filing a petition for review in this
court. See 20 C.F.R. § 802.406, .407 (2009) (establishing
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thirty-day period for requesting reconsideration by the Board
and providing that timely reconsideration request tolls period
for filing petition for review). Absent tolling, the sixty-day
period for filing the petition for review expired on February
17, 2009. Cox’s petition for review was not filed until May 18,
2009.
Although Cox’s petition was filed within sixty days of
the Board’s order denying her request for reconsideration, that
order is not reviewable. Betty B. Coal Co. v. Dir., Office of
Workers’ Comp. Programs, 194 F.3d 491, 495-96 (4th Cir. 1999).
We therefore dismiss the appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
PETITION DISMISSED
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