Holt v. Consolidation Coal Co.
| Decision Date | 16 January 2020 |
| Docket Number | 18-0351 BLA-A,BRB 18-0351 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | BEVERLY HOLT (obo THOMAS HOLT, deceased miner) Claimant-Respondent Cross-Petitioner v. CONSOLIDATION COAL COMPANY and CONSOL ENERGY, INCORPORATED Employer/Carrier-Petitioners Cross-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
On August 15, 2018, claimant file d a timely motion for reconsideration of the Board's Order in Holt v Consolidation Coal Co., BRB Nos. 18-0351 BLA/A (Aug. 9 2018) (Order). 20 C.F.R. §802.407. Claimant challenges the Board's dismissal of his cross-appeal, BRB No 18-0351 BLA-A.[1] He contends the Board did not fully address the appropriate appeal-filing deadline under 20 C.F.R. §802.205. Moreover, he avers the Board's cross-appeal deadline is not "jurisdictional," citing Hamer v. Neighborhood Housing Services of Chicago, 138 S.Ct. 13 (2017), and the Board erred in dismissing his cross-appeal. Employer responds, urging the Board to affirm its Order dated August 9, 2018, asserting the notice of cross-appeal was untimely filed and nothing in Hamer prevents an agency from enforcing its own regulations. Thus, employer urges the Board to deny claimant's motion for reconsideration. Claimant filed a reply brief in support of his motion for reconsideration. For the reasons that follow, we grant claimant's motion for reconsideration, but deny the relief requested.
20 C.F.R. §802.205 (emphasis added).
Claimant first contends the Board did not fully address Section 802.205(b) with regard to the timeliness of the notice of his cross-appeal, as it held only that the cross-appeal should have been filed on or before April 27, 2018, which is 14 days from April 13, 2018, the date employer filed its notice of appeal. Order at 2. Claimant is correct. The regulation provides an alternate time limitation which should have been considered: whether the notice of cross-appeal was filed within 30 days of the date the administrative law judge's Order on Reconsideration was filed in the district director's office. A cross-appeal is timely if filed within 14 days of the date the first notice of appeal was filed or within 30 days of the date the administrative law judge's decision and order was filed, "whichever period last expires." 20 C.F.R. § 802.205(a), (b).
The administrative law judge's Order on Reconsideration was filed in the district director's office on April 5, 2018. Thirty days from that date was May 5, 2018. Claimant's notice of cross-appeal should have been filed on or before May 7, 2018, as May 5 was a Saturday. 20 C.F.R §§802.205(a), (b), 802.221(a). Claimant's cross-appeal, filed with the Board on June 4, 2018, is not timely with respect to either employer's notice of appeal (deadline of April 27, 2018) or the date of filing of the administrative law judge's Order on Reconsideration (deadline of May 7, 2018). We therefore reaffirm our holding that claimant's notice of cross-appeal was untimely filed.
We next address claimant's argument that, pursuant to Hamer, 138 S.Ct. 13, the Board erred in dismissing, sua sponte, claimant's untimely cross-appeal. He asserts Section 802.205(b) is a non-jurisdictional, claim-processing rule that a party must raise in order to be implemented, and application of the rule may be waived or forfeited. As employer did not object to the timeliness of claimant's cross-appeal, he asserts the defense was forfeited and the Board must accept and address his cross-appeal. We disagree.
In Hamer, the petitioner filed two motions with the district court within the 30-day timeframe for filing an appeal of that court's decision to the court of appeals. The district court granted the petitioner's motions, allowing her attorney to withdraw from the case and giving her a two-month extension to file her appeal. The respondents did not move for reconsideration or enter any objections to the court's order. In the docketing statement filed with the United States Court of Appeals for the Seventh Circuit, the respondents stated the petitioner filed a timely notice of appeal from the district court's final order. However, the Seventh Circuit, on its own, questioned the timeliness of the notice of appeal and instructed the parties to address the issue. At that juncture, the respondents first raised untimeliness of the appeal as a defense. The court agreed with the respondents and dismissed the appeal for lack of jurisdiction. Hamer, 138 S.Ct. at 18.
Hamer involved whether the court of appeals erred in dismissing the notice of appeal for lack of jurisdiction. The United States Supreme Court held that the rule setting the time limit for extending the time to file a notice of appeal, Federal Rule of Appellate Procedure (FRAP) 4(a)(5)(C), is a non-jurisdictional claim-processing rule which may be waived or forfeited, clarifying that an appeal deadline prescribed by Congress is jurisdictional, but one set forth only in court rules, like the FRAP, is not.[2] Hamer, 138 S.Ct. at 17;[3] Bowles v. Russell, 551 U.S. 205 (2007); Kontrick v. Ryan, 540 U.S. 443 (2004). Therefore, the Supreme Court held the circuit court erred in dismissing the appeal for lack of jurisdiction and remanded the case for further proceedings.[4] Hamer, 138 S.Ct. at 21-22.
Initially, claimant is correct, and employer agrees: Section 802.205(b), which governs the filing of cross-appeals with the Board, is a claim-processing rule and is not jurisdictional. Hamer, 138 S.Ct. at 21-22; Gunter v. Bemis Co., Inc., 906 F.3d 484, 492-493 (6th Cir. 2018) ().[5] Only the time for filing an initial appeal with the Board, as set forth by statute at 33 U.S.C. §921(a), (b)(5), involves a jurisdictional deadline. See Hamer, 138 S.Ct. at 20; Gunter, 906 F.3d at 492. Although the Board dismissed claimant's cross-appeal because it was untimely filed and not for "lack of jurisdiction," see Order at 2, to the extent Section 802.205(c) implies the time for filing a cross-appeal under Section 802.205(b) is jurisdictional, the regulation is overbroad.[6]
As claimant correctly argues, Section 802.205(b) is a claim-processing rule and must be applied if properly invoked but may be waived or forfeited. Based on this premise, claimant asserts employer forfeited its right to challenge the timeliness of the cross-appeal by not objecting to it in its initial brief in support of its appeal, the first pleading it filed with the Board after claimant filed his notice of cross-appeal. Absent any objection, he asserts there has been no invocation of the rule and the Board must accept the cross-appeal. Claimant's logic is flawed; we do not read Hamer as rendering the Board powerless to enforce its own rules.
Where a mandatory claim-processing rule has been "properly invoked, [it] must be enforced. . . ." Hamer, 138 S.Ct. at 17. If employer had objected to the untimely filing of claimant's cross-appeal in its brief, the Board would have been compelled to dismiss the cross-appeal. Because employer did not invoke the time limitation as a defense at that time, we are not compelled to reach the same result. Id. at 18; Eberhart v. United States, 546 U.S. 12, 19 (2005). But this does not mean the only way to invoke a court's rule is for the parties to raise it.[7] Rather, "a party's failure to comply with a [non-jurisdictional rule] may be excused by the reviewing court." Mathias v. Superintendent Frackville SCI, 876 F.3d 462, 472 (3d Cir. 2017) (emphasis added) (court excused untimely filing of cross-appeal; factors discussed); see also Iopa v. Saltchuk-Young Bros., Ltd., 916 F.3d 1298 (9th Cir. 2019) (). Thus, non-compliance with a non-jurisdictional rule need not be excused.
Section 802.217 gives the Board the discretion to accept late-filed papers, except notices of appeal. 20 C.F.R. §802.217. Claimant's notice of cross-appeal was untimely filed and he did not file a timely request for an extension of time to file his cross-appeal. 20 C.F.R. §802.217(b), (c). He also did not file an accompanying motion seeking acceptance of his cross-appeal out of time. 20 C.F.R. §802.217(e). As accepting a late-filed paper is within the Board's discretion, we address a party's reasons for such a late filing. 20 C.F.R. §802.217(c), (e);[8] see Hamer, 138 S.Ct. at 18 n.3 (); see also ...
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