Sloan v. Drummond Co.

• Docket Number: 20-13179
• Decision Date: 23 May 2024
• Citation: Sloan v. Drummond Co., 102 F.4th 1169 (11th Cir. 2024)
• Parties: Doris SLOAN, widow of Gurstle Sloan, Petitioner, v. DRUMMOND COMPANY, INC., Director, Office of Worker's Compensation Programs, U.S. Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

102 F.4th 1169

Doris SLOAN, widow of Gurstle Sloan, Petitioner, v. DRUMMOND COMPANY, INC., Director,Office of Worker's Compensation Programs, U.S. Department of Labor, Respondents.

No. 20-13179

United States Court of Appeals, Eleventh Circuit

Filed: May 23, 2024

Petition for Review of a Decision of the Benefits Review Board, AgencyNo. BRB-2019-0056-BLA

Joan B. Singleton, Singleton Law Office, Bessemer, AL, for Petitioner.

Will A. Smith, Katherine Collier, Maynard Nexsen, PC, Birmingham, AL, for RespondentDrummond Company, Inc.

Sarah Hurley, Jennifer Ann Ledig, Gary Stearman, U.S. Department of Labor, Office of the Solicitor, Washington, DC, Amanda Torres, U.S. Department of Labor, Division of Black Lung and Longshore Legal Services, Washington, DC, for RespondentDirector, Office of Worker's Compensation Programs.

Thomas Shepherd, Jr., USDOL Benefits Review Board, Office of the Clerk of the Appellate Board(OCAB), Washington, DC, for Respondent U.S. Department of Labor.

Before William Pryor, Chief Judge, and Jordan and Brasher, Circuit Judges.

William Pryor, Chief Judge:

This appeal requires us to decide whether we have jurisdiction over a petition for review of a denial of survivor's benefits under the Black Lung Benefits Act filed in this Court one day late.Because the filing deadline is jurisdictional and we have no jurisdiction to review the denial of a motion for reconsideration by the Benefits Review Board, we lack jurisdiction to review the petition.We dismiss the petition for lack of jurisdiction.

I.BACKGROUND

In 2006, Doris Sloan filed for survivor's benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-950, after the death of her husband, Gurstle Sloan, who had worked as a coal miner for Drummond Company for 16 years.An administrative law judge denied her claim, and that denial was reviewed twice.This petition concerns the Board's third review of Sloan's claim.Sloan argued to the Board that the administrative law judge improperly excluded evidence supporting her request to modify her claim and erred by finding that the evidence did not establish that her husband's death was due to pneumoconiosis.SeeSloan v. Drummond Co., BRBNo. 19-0056 BLA, 2019 WL 7505673, at *2(Ben. Rev. Bd.Dec. 3, 2019).

On December 3, 2019, the Board affirmed the administrative law judge's denial of survivor's benefits.Seeid. at *6.Sloan timely moved for reconsideration by the en banc Board.She argued that the administrative law judge erred by excluding and failing to consider certain evidence and by improperly relying on the opinion of the government's expert witness.Sloan also argued that the administrative law judge failed to properly weigh the evidence as a whole.

On June 25, 2020, the Board denied Sloan's motion for reconsideration en banc.It explained that it had considered Sloan's arguments and reviewed the panel decision and that no member voted for reconsideration.On July 24, 2020, Sloan filed a second motion for reconsideration.She again asserted that certain evidence should have been considered; that reliance on a government witness was improper; and that all the evidence needed to be considered together.

On August 25, 2020, 61 days after the Board ruled on Sloan's first motion for reconsideration, we received Sloan's petition for review.Sloan challenges the Board's December 2019 order.She acknowledges that the Board ruled on her original motion for reconsideration on June 25, 2020, and explains that she did not receive the Board's order denying her first motion for reconsideration until July 20, 2020, because her attorney was sheltering in place because of COVID-19 and could not receive certified mail.

The Board sent a letter to this Court that explained that Sloan's claim was still pending before the Board because Sloan had filed a timely second motion for reconsideration on July 24, 2020, and the Board retained jurisdiction over the case.The Board stated that the parties would have 60 days after it ruled on the second motion for reconsideration to petition for review in this Court.A month later, the Board sent a second letter to this Court.In the second letter, the Board reiterated that it still had jurisdiction over the case and would forward the record to the Court after it ruled on the second motion for reconsideration.Based on these letters, we issued a jurisdictional question to the parties and asked them to address whether the Board was still considering the second motion for reconsideration; whether the second motion for reconsideration rendered the underlying Board decision nonfinal and precluded judicial review; whether the second motion for reconsideration tolled the time to petition for review of the underlying order; and whether the present petition is otherwise timely, as it was filed 61 days after the Board's decision on the first motion for reconsideration.

The Director argues that we lack jurisdiction over Sloan's petition because it was untimely filed by one day and the deadline for filing a petition is not subject to equitable tolling.The Director contends that Sloan's second motion for reconsideration does not toll the time to appeal the Board's December 2019 decision.The Director also contends that we lack jurisdiction to review the decision to deny Sloan's first motion for reconsideration because we have no jurisdiction to review such denials when the motion alleges material error based on the same record that was before the administrative law judge.Drummond Company joined the Director's response to the jurisdictional question.Sloan asserts that the Board was still considering her second motion when she responded to the jurisdictional questions; that the Board had certified in its earlier letters to this Court that the second motion for reconsideration was timely; and that her petition for review was timely because three days were added to the appeal time under Federal Rule of Appellate Procedure 26(c).She also argues that her second motion for reconsideration tolled the time to petition for review of the December 2019 decision.

On January 12, 2021, the Board denied Sloan's second motion for reconsideration.The Director then filed a supplemental response to the jurisdictional questions that reiterated her position that we lacked jurisdiction over Sloan's petition.Sloan also filed a supplemental response, arguing that her petition for review was timely because it was postmarked August 24, 2020; that the Board said it retained jurisdiction until the second motion for reconsideration was decided; and that the Board denied Sloan's second motion for reconsideration without addressing all the issues raised.We carried the jurisdictional questions with the petition.

II.STANDARD OF REVIEW

We review our subject-matter jurisdiction de novo.Blanc v. U.S. Att'y Gen., 996 F.3d 1274, 1277(11th Cir.2021).

III.DISCUSSION

We divide our discussion into three parts.First, we explain that Sloan's petition was untimely.Second, we explain that because the deadline to file a petition in this Court is jurisdictional, Sloan's failure to meet it requires dismissal.Last, we explain that we lack jurisdiction to review the Board's June 2020 denial of Sloan's first motion for reconsideration.

A. Sloan's Petition Was Untimely.

A person challenging an adverse final order by the Board must file a petition for review in the court of appeals within 60 days of the issuance of the order.33 U.S.C. § 921(c).An order is final and subject to the 60-day period when it "ends the litigation" and "leaves nothing for the court to do but execute the judgment."Cooper Stevedoring Co. v. Dir., Off. of Workers' Comp. Programs, 826 F.2d 1011, 1014(11th Cir.1987)(citation and internal quotation marks omitted).If a timely motion for reconsideration is filed after the Board issues a decision, "the 60-day period for filing [a]petition for review[with the court of appeals] will run from the issuance of the Board's decision on reconsideration."20 C.F.R. § 802.406.A motion for reconsideration is timely if it is filed within 30 days of the panel decision.Id.§ 802.407(b).

When an order becomes reviewable, the 60-day deadline is a hard deadline unaffected by service on the parties.Rich v. Dir., Off. of Workers' Comp. Programs, 798 F.2d 432, 433(11th Cir.1986)("Federal regulations explicitly provide that the Board must file its decision with the Clerk of the Board and judicial review must be sought within sixty days of that filing. . . .The date of filing is not affected by the date of service on [the petitioner] or [her] attorneys."(citation omitted)).And a petition for review is considered filed on the date that the Clerk receives it.Id.

The Board issued its initial decision on December 3, 2019, and Sloan timely moved for reconsideration.The decision did not become final and reviewable until the Board denied Sloan's first motion for reconsideration on June 25, 2020.So the deadline to petition for review was 60 days later, on August 24, 2020.We received Sloan's petition on August 25, 2020, 61 days after the Board issued its order on Sloan's first motion for reconsideration.Based on the text of the statute, Sloan's petition is untimely.

Sloan argues that Federal Rule of Appellate Procedure 26(c) adds three days to her 60-day window to petition for review.Rule 26(c) states that "[w]hen a party may or must act within a specified time after being served, and the paper is not served electronically on the party or delivered to the party on the date stated in the proof of service, 3 days are added after the period would otherwise expire."FED. R. APP. P. 26(c).Sloan argues that because she did not receive notice of the Board's decision until July 20, 2020, she is entitled to the three-day extension.

Our precedent forecloses her argument.We dismissed a petition for review of a final decision by the Board that was two days late because the deadline for filing a petition "is not affected by the...