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    Wagner v. Consolidation Coal, 4th Cir. (2005)

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal for lack of jurisdiction. The Court of Appeals was petitioned to review a decision by the Benefits Review Board (BRB) denying black lung benefits to Herman Wagner. However, the petition for review was filed 61 days after the BRB issued its decision, exceeding the 60-day limit to seek Court of Appeals review set by statute. As such, the Court of Appeals dismissed the appeal for lack of jurisdiction since the petition was not timely filed within the required 60 days.

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    Wagner v. Consolidation Coal, 4th Cir. (2005)

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal for lack of jurisdiction. The Court of Appeals was petitioned to review a decision by the Benefits Review Board (BRB) denying black lung benefits to Herman Wagner. However, the petition for review was filed 61 days after the BRB issued its decision, exceeding the 60-day limit to seek Court of Appeals review set by statute. As such, the Court of Appeals dismissed the appeal for lack of jurisdiction since the petition was not timely filed within the required 60 days.

    Original Description:

    Filed: 2005-08-12 Precedential Status: Non-Precedential Docket: 04-1379

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal for lack of jurisdiction. The Court of Appeals was petitioned to review a decision by the Benefits Review Board (BRB) denying black lung benefits to Herman Wagner. However, the petition for review was filed 61 days after the BRB issued its decision, exceeding the 60-day limit to seek Court of Appeals review set by statute. As such, the Court of Appeals dismissed the appeal for lack of jurisdiction since the petition was not timely filed within the required 60 days.

    Copyright:

    Public Domain
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    6 views3 pages

    Wagner v. Consolidation Coal, 4th Cir. (2005)

    Uploaded by

    Scribd Government Docs
    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal for lack of jurisdiction. The Court of Appeals was petitioned to review a decision by the Benefits Review Board (BRB) denying black lung benefits to Herman Wagner. However, the petition for review was filed 61 days after the BRB issued its decision, exceeding the 60-day limit to seek Court of Appeals review set by statute. As such, the Court of Appeals dismissed the appeal for lack of jurisdiction since the petition was not timely filed within the required 60 days.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 04-1379

    HERMAN W. WAGNER, deceased, by Fred Wagner,


    Executor,
    Petitioner,
    versus
    CONSOLIDATION COAL COMPANY; DIRECTOR, OFFICE
    OF WORKERS COMPENSATION PROGRAMS, UNITED
    STATES DEPARTMENT OF LABOR,
    Respondents.

    On Petition for Review of an Order of the Benefits Review Board.


    (03-398-BLA)

    Submitted:

    July 25, 2005

    Decided:

    August 12, 2005

    Before WILKINSON, MICHAEL, and KING, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    James Hook, Waynesburg, Pennsylvania, for Petitioner. William S.


    Mattingly, JACKSON KELLY, PLLC, Morgantown, West Virginia, for
    Respondent Consolidation Coal Company.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Fred Wagner (Wagner), Executor of the estate of Herman W.
    Wagner,

    seeks

    to

    appeal

    the

    Benefits

    Review

    Boards

    (Board)

    decision affirming the Administrative Law Judges decision denying


    black lung benefits on a living miner claim filed by Herman Wagner.
    We dismiss the appeal for lack of jurisdiction because the petition
    for review was not timely filed.
    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 within sixty days after the order is
    issued.

    33 U.S.C. 921(c) (2000).

    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 Boards decision was issued and served
    on the parties on January 23, 2004.

    Wagners petition for review

    was not filed until March 24, 2004, sixty-one days later.
    therefore dismiss the appeal.

    We

    We dispense with oral argument

    because the facts and legal contentions are adequately presented in

    - 2 -

    the materials before the court and argument would not aid the
    decisional process.

    DISMISSED

    - 3 -

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