Clay v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, 84-2026
| Decision Date | 28 November 1984 |
| Docket Number | No. 84-2026,84-2026 |
| Parties | Chester CLAY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
I. John Rossi, Des Moines, Iowa, for petitioner.
Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and FAGG, Circuit Judge.
This is a petition for review of an order of the Benefits Review Board of the Department of Labor. The question presented is whether the petition is timely. We agree with the Board that the petition was not filed within sixty days after the decision of the Board was "issued" within the meaning of 33 U.S.C. Sec. 921(c), 1 and we therefore dismiss the appeal for want of jurisdiction.
The decision of the Benefits Review Board was filed on June 11, 1984. The petition for review was filed on August 13, 1984, the sixty-third day after the filing of the Board's order. Petitioner suggests several reasons why we should hold that the petition was nevertheless timely. First, it is argued that the Board's decision was never "issued" within the meaning of the statute because the Board did not send a copy of its decision to "all parties" as required by 20 C.F.R. Sec. 804.403(b). The decision was not sent to all parties, petitioner says, because he personally did not receive a copy of it from the Board. Instead, the Board sent a copy to petitioner's attorney, who in turn forwarded it to his client. We do not accept this argument. When a party is represented by counsel, notice to counsel is, absent exceptional circumstances, notice to the client. 2 Therefore, the decision of the Board was in fact sent to "all parties," and this argument must fail.
Petitioner points out that when his lawyer mailed him a copy of the Board's decision, the cover sheet, quoting the relevant provisions of 33 U.S.C. Sec. 921(c), which sets the sixty-day time limit for the filing of petitions for review, bore the stamped date June 15, 1984. The suggestion is that petitioner believed that June 15, 1984, was the operative date from which the sixty-day period would be computed. It seems that the June 15, 1984 date stamp was affixed to the cover sheet not by the Board, but by petitioner's attorney when the Board's decision was received in his office. Petitioner, it is argued, did not realize that his lawyer had put the June 15, 1984 date on the cover sheet, but thought this date was an official representation by the Board of the date of the filing of its decision. The argument cannot withstand analysis, because the Board's decision itself, to which the cover sheet was attached, clearly states in two different places that it was filed for record on June 11, 1984.
Finally, petitioner claims that the term "issued" in the controlling jurisdictional statute is not the equivalent of "filed." Thus, that the opinion may have been filed for record in the offices of the Board on June 11, 1984, should not be controlling for purposes of determining when it was "issued." Rather, the argument runs, the "issuance" of the opinion should be held to take place on the date when the Board's decision was received by petitioner himself, or, perhaps, by his counsel. We disagree. The Board's regulations, 20 C.F.R. Sec. 802.410(a), use the word "filed" to describe the event from which the time for seeking review runs. Thus, the Board interprets the statutory term "issued" to mean "filed." We normally defer to the regulations of an administrative agency interpreting its own governing statute,...
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Sebben, In re
...Circuits, including this Circuit, have held that the sixty-day judicial appeal period is jurisdictional. Clay v. Director, Office of Workers' Compensation, 748 F.2d 501 (8th Cir.1984); Pittson Stevedoring Corp. v. Dellaventura, 544 F.2d 35 (2d Cir.1976), aff'd sub nom., Northwest Marine Ter......
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... ... Clay v. Director, OWCP, 748 F.2d 501, 503 (8th Cir.1984); Pittston Stevedoring Corp. v. Dellaventura, ... 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 ... ...
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