The U.S. Court of Appeals issued an unpublished, per curiam decision that provides a cautionary lesson about appellate procedure and deadlines in black lung cases.
In Coastal Coal-West Virginia v. Director, OWCP [Miller] (decision here), the Fourth Circuit held that it lacked jurisdiction over Coastal Coal’s petition for review because Coastal Coal’s lawyers were two days late in filing their reconsideration motion before the Department of Labor’s Benefits Review Board.
The Fourth Circuit explained that while parties have 60 days to file a petition for review with the Court of Appeals, they only have 30 days to file a reconsideration motion with the Board.
When a reconsideration motion is timely, it tolls the 60-day limit to seek review by the Court of Appeals.
But when a reconsideration motion is not timely, the Fourth Circuit held that the motion does not toll the deadline. Thus, after 60 days from the Board’s original decision, the Court of Appeals loses jurisdiction to hear a petition for review—just as if no reconsideration motion had been filed.
While jurisdictional holdings are always harsh lessons to parties, this lesson must be especially harsh to Coastal Coal for two reasons: (1) on the date that it filed its reconsideration motion, it could have filed a timely petition for review; and (2) the Board’s decision was split with Judge Boggs dissenting, which suggests that Coastal Coal’s challenge to the award of benefits may have been meritorious.
This will be a memorable decision for the attorneys from Jackson Kelly but should also be kept in mind by all attorneys who are considering their options from an adverse Board decision.
Mr. Miller was represented by Otis Mann.
Coastal Coal-West Virginia was represented by William Mattingly & Jeffrey Soukup of Jackson Kelly.
The Director, OWCP was represented by Sean Gregory Bajkowski and Helen Hart Cox of the Department of Labor’s Solicitor’s Office.