876 F2d 894 Parsons v. I & E Coal Company

876 F.2d 894

Eddie PARSONS, Petitioner,
I & E COAL COMPANY; Old Republic Insurance Companies;
Director, Office of Workers' Compensation
Programs, United States Department of
Labor, Respondents.

No. 89-3443.

United States Court of Appeals, Sixth Circuit.

June 14, 1989.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before NATHANIEL R. JONES and RYAN, Circuit Judges and JOHN W. PECK, Senior Circuit Judge.


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The petitioner seeks review of the order of the Benefits Review Board denying black lung disability benefits. The respondents, I & E Coal Company, Inc. and Old Republic Insurance Co., now move to dismiss the appeal on the grounds that it was untimely. The petitioner opposes that motion.


The Benefits Review Board affirmed the Administrative Law Judge's denial of benefits of March 21, 1989. The petitioner's appeal to this Court was filed May 24, 1989, sixty-four days after the entry of the Board's order.


The Black Lung Benefits Act provides that the Longshore and Harborworker's Compensation Act, 33 U.S.C. Sec. 901 et seq., governs appeals from the Board. 30 U.S.C. Sec. 932(a). Pursuant to the provisions of 33 U.S.C. Sec. 921(c), the petitioner had sixty (60) days from entry of the Board's order to file a notice of appeal. Rule 26(a), Fed.R.App.P. (made applicable to agencies by Fed.R.App.P. 20), provides that if the last day of the period falls on a Saturday, Sunday or legal holiday, the period extends until the end of next day which is not a Saturday, Sunday or legal holiday. In the instant appeal, sixty days from the entry of the order was Saturday, May 20, 1989, therefore the petitioner had until Monday, May 22, 1989 in which to file his appeal. The notice of appeal filed May 24, 1989 was not within that time period. The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. See Danko v. Director, Office of Worker's Compensation, 846 F.2d 366, 369 (6th Cir.1988).


It is therefore ORDERED that the motion to dismiss is granted.