Arch Mineral Corp. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 11 August 1986
• Docket Number: No. 84-2633,84-2633
• Citation: 798 F.2d 215
• Parties: ARCH MINERAL CORPORATION, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 215

798 F.2d 215

55 USLW 2111

ARCH MINERAL CORPORATION, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR, Respondent.

No. 84-2633.

United States Court of Appeals, Seventh Circuit.

Submitted March 12, 1986.

Decided Aug. 11, 1986. ^*

Mark E. Solomons, Kilcullen, Wilson & Kilcullen, Washington, D.C., for petitioner.

J. Michael O'Neill, Ronald G. Ray, Office of Solicitor, Dept. of Labor, Washington, D.C., for respondent.

Before BAUER, CUDAHY, and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

This is a petition for review of an order of the Benefits Review Board of the United States Department of Labor, which affirmed an administrative law judge's decision to award benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901, et seq. Petitioner, Arch Mineral Corporation ("Arch Mineral"), challenges the award of benefits to the surviving spouse of one of its former employees. For the reasons that follow, we deny the petition.

I

The claimant, Jewell Degenhardt, applied for black lung benefits on February 26, 1981, and an administrative law judge (an "ALJ") subsequently determined that she was entitled to receive the benefits. Arch Mineral appealed and, on November 21, 1983, the Benefits Review Board (the "Board") affirmed the decision of the ALJ. Degenhardt v. Arch Mineral Corp., 6 B.L.R. 1-612 (1983) (per curiam). On December 1, Arch Mineral timely filed a motion for reconsideration with the Board which was denied on July 27, 1984. On September 24, 1984, Arch Mineral filed a petition for review in this court.

We must first consider questions of subject matter jurisdiction even if they have not been raised by the parties. Director, OWCP v. Alabama By-Products Corp., 560 F.2d 710, 715 (5th Cir.1977). If petitioner did not timely file the petition for review, we must dismiss the appeal for want of jurisdiction. Clay v. Director, OWCP, 748 F.2d 501, 503 (8th Cir.1984); Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 43-44 (2d Cir.1976), aff'd on other grounds sub nom., Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). Compare also Dawe v. Old Ben Coal Co., 754 F.2d 225, 227 (7th Cir.1985) (failure to appeal ALJ decision to Board within 30 days); Bennett v. Director, OWCP, 717 F.2d 1167, 1169 (7th Cir.1983) (same); Insurance Co. of North America v. Gee, 702 F.2d 411, 414 (2d Cir.1983) (same); Blevins v. Director, OWCP, 683 F.2d 139, 140-41 (6th Cir.1982) (same). The applicable statute provides that "[a]ny person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside." 33 U.S.C. Sec. 921(c). Arch Mineral's petition was filed within sixty days of the denial of reconsideration, but not within sixty days of the original decision on the merits by the Board. We must determine whether the timely filing of a motion for reconsideration suspends the time for filing the petition for appellate review. Apparently, no other court has yet considered this question. But cf. Director, OWCP v. Congleton, 743 F.2d 428, 429, 433 (6th Cir.1984) (petition for review apparently filed within sixty days after Board's denial of reconsideration, but not within sixty days after original Board decision; court reviewed original Board decision without mentioning jurisdictional question).

We must focus initially on the language of the statute, which provides for an appeal within sixty days of the "issuance" of the "final order." The case law makes clear that the relevant provision of section 921(c) measures the time for appeal from the date the decision is filed, pursuant to 20 C.F.R. Sec. 802.403(b), rather than from the date an aggrieved party receives notice of the decision. See Pittston Stevedoring, 544 F.2d at 44; INA v. Gee, 702 F.2d at 414; see also Dawe, 754 F.2d at 225 (applying 30-day period for appealing to Board). Neither the statute nor the cases make clear the effect, if any, upon the required time for filing an appeal, of an intervening motion for reconsideration of the Board's decision. ¹ We therefore turn to an examination of the administrative regulations, which are entitled to some deference. ² See Peabody Coal Co. v. Director, OWCP, 778 F.2d 358, 361 (7th Cir.1985); Clay, 748 F.2d at 502; INA v. Gee, 702 F.2d at 414.

Paralleling the statute, the regulations provide that:

Within 60 days after a decision by the Board has been filed pursuant to Sec. 802.403(b), any party adversely affected or aggrieved by such decision may file a petition for review with the appropriate U.S. court of appeals pursuant to [33 U.S.C. Sec. 921(c) ].

20 C.F.R. Sec. 802.410(a). The regulation applicable to motions for reconsideration provides, inter alia, that "failure to file a request for reconsideration shall not be deemed a failure to exhaust administrative remedies." Id. Sec. 802.407(b). But the regulations contain no specific provision on the effect, if any, of reconsideration on the time for filing a petition for review. See id. Secs. 802.407-.409. And, while the regulations provide that requests for reconsideration will be reviewed by the Board and granted or denied at its discretion, there is no specific provision that the Board's ruling on reconsideration be filed pursuant to Sec. 802.403(b), which governs the filing of Board decisions. Id. Sec. 802.409. The one section suggesting that a motion for reconsideration suspends the time for filing the petition for review is entitled "Finality of Board decisions" and reads as follows:

A decision rendered by the Board pursuant to this subpart shall become final 60 days after the issuance of such decision unless a [timely petition for court review is filed], or unless a timely request for reconsideration by the Board has been filed as provided in Sec. 802.407.

Id. Sec. 802.406. However, the term "final order" as used in the statute (33 U.S.C. Sec. 921(c)) should be construed as distinct from the term "final decision" as used in 20 C.F.R. Sec. 802.406. "Final order" seems to contrast with "interlocutory order" and refers to the question whether the Board decision is final in the sense that it "ends the litigation on the merits and leaves nothing for the trier to do but execute the judgment." Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399, 400 (5th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 88, 83 L.Ed.2d 35 (1984). At that point therefore the order becomes subject to judicial review. Id. When a Board decision is issued as a "final order," presumably the sixty days for taking an appeal begins running. "Final decision," on the other hand, seems to refer to the point at which the decision of the Department of Labor is no longer reviewable by any authority, judicial or administrative. See 33 U.S.C. Secs. 921(a), 921(d); INA v. Gee, 702 F.2d at 412; Blevins, 683 F.2d at 140-41. Since 20 C.F.R. Sec. 802.406 appears to govern "final decisions" rather than "final orders" (the term used in 33 U.S.C. Sec. 921(c)), the regulation does not directly govern the question before us. And any argument by analogy based on the tolling effect of a motion for reconsideration seems less than convincing.

Thus neither the statute nor the regulations address the effect of reconsideration on the time for petitioning for court review. The respondent cites various federal rules of appellate procedure that provide for the suspension of the time for filing an appeal while particular motions in the nature of reconsideration are pending in the lower court. See Fed.R.App.P. 4(a)(4), 4(b), 41(a). But compare Fed.R.Civ.P. 60(b). These court rules do not govern the matter before us although they are suggestive. In any event, we think closer analogies are to be found in cases involving appellate review of decisions of agencies other than the one before us. ³

A clear majority of cases involving appellate review of administrative decisions hold that, where the applicable statute and administrative regulations are silent, the filing of a motion for reconsideration suspends the time for filing a petition for review. See C.O.D.E., Inc. v. ICC, 768 F.2d 1210, 1211-12 (10th Cir.1985); Brotherhood of Locomotive Engineers v. ICC, 761 F.2d 714, 721 (D.C.Cir.1985), cert. granted, --- U.S. ----, 106 S.Ct. 1457, 89 L.Ed.2d 714 (1986); American Trucking Associations v. ICC, 697 F.2d 1146, 1148 & n. * (D.C.Cir.1983); B.J. McAdams, Inc. v ICC, 551 F.2d 1112, 1114-15 (8th Cir.1977); Tiger International, Inc. v. C.A.B., 554 F.2d 926, 931 n. 10 (9th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 532, 54 L.Ed.2d 467 (1977); Outland v. C.A.B., 284 F.2d 224, 227-28 (D.C.Cir.1960); Nordell v. Heckler, 749 F.2d 47, 48-49 (D.C.Cir.1984); Chung v. INS, 720 F.2d 1471, 1473-74 (9th Cir.1983), cert. denied, 467 U.S. 1216, 104 S.Ct. 2659, 81 L.Ed.2d 366 (1984); Tullman v. Udall, 324 F.2d 411, 416-17 (D.C.Cir.1963), rev'd on other grounds, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Samuel B. Franklin & Co. v. SEC, 290 F.2d 719, 723-24 (9th Cir.) (en banc), cert. denied, 368 U.S. 889, 82 S.Ct. 142, 7 L.Ed.2d 88 (1961); Montship Lines, Ltd. v. Federal Maritime Board, 295 F.2d 147, 151 (D.C.Cir.1961). But see Selco Supply Co. v. United States Environmental Protection Agency, 632 F.2d 863, 865 (10th Cir.1980),cert. denied, 450 U.S. 1030, 101 S.Ct. 1740, 68 L.Ed.2d 225 (1981); Nocon v. INS, 789 F.2d 1028, 1032-33 (3d Cir.1986); Nappi v. Commissioner, 58 T.C. 282, 283-84 (1972); Consolidated Flower Shipments, Inc.--Bay Area v. C.A.B., 205 F.2d 449, 451 (9th Cir.1953), overruled by, Franklin, 290 F.2d at 719. See also C.A.B. v. Delta Air Lines, 367 U.S. 316, 326, 81 S.Ct. 1611, 1619, 6 L.Ed.2d 869 (1961); K.C. Davis, Administrative Law Treatise ...