Ervin Stapleton v. Eastern Coal Corporation

815 F.2d 80 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Ervin STAPLETON, Petitioner, v. EASTERN COAL CORPORATION, et al., Respondents. No. 86-3871. United States Court of Appeals, Sixth Circuit. Feb. 25, 1987. Before MERRITT, WELLFORD and MILBURN, Circuit Judges. ORDER [1] Respondent corporation has filed a motion to dismiss for lack of jurisdiction this petition to review the final order of the Benefits Review Board of the Department of Labor, which affirmed the decision of the Administrative Law Judge denying petitioner Blaack Lung benefits pursuant to Title IV of the Federal Coal Mine Health and Safety Act, as amended, 30 U.S.C. 901 et seq. [2] Our review of the record indicates that, as pointed out in the motion to dismiss, the petition for review was filed with the court on September 22, 1986, three days after expiration of the sixty day period for the filing of such petitions; 20 C.F.R. 802.410(a). The requirement that the petition be timely filed is jurisdictional and cannot be waived; Wellman v.-Director OWCP, 706 F.2d 191 (6th Cir.1983); Hardesty v. Benefits Review Board, 783 F.2d 138 (8th Cir.1986). We are unpersuaded by the argument of the petitioner in opposition to the motion to dismiss that by having mailed his petition for review on the sixtieth day following issuance of the decision of the Board he has substantially complied with the requirement of timely filing; cf. Rich v. Director, OWCP, 798 F.2d 432 (11th Cir.1986). [3] For the foregoing reasons the motion of the respondent is found to be well taken, and it is therefore [4] ORDERED that the petition for review is hereby dismissed for Want of jurisdiction.