Townsend v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

Decision Date09 October 1984
Docket NumberNo. 84-7371,84-7371
PartiesCecil TOWNSEND, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent. Non-Argument Calendar.
CourtU.S. Court of Appeals — Eleventh Circuit

J. Michael O'Neill, Washington, D.C., for Dir., OWCP, U.S. Dept. of labor.

Petition for Review of an Order of the Benefits Review Board.

Before HATCHETT, ANDERSON and CLARK, Circuit Judges.

PER CURIAM:

Cecil Townsend appeals from the summary dismissal of his claim for benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901, et seq. Townsend concedes that his notice of appeal from the Administrative Law Judge's denial of benefits on September 30, 1981, to the Benefits Review Board was filed outside the 30-day time limit under the statute. 1 However, Townsend contends that the ALJ's September 30 Order denying benefits failed to inform him of his appeal rights and this failure of notice should prevent strict application of the 30-day limit.

Every court that has considered the effect of the 30-day time limit in Sec. 21(a) has determined that the provision is jurisdictional and excusable neglect or equitable tolling cannot operate to enlarge the time for appeal to the Benefits Review Board. 2 The Regulations also state that the Board has no jurisdiction to consider an untimely appeal. 20 C.F.R. Sec. 802.205(c) (failure to file notice of appeal within 30 days "shall foreclose all rights to review by the Board with respect to the case or matter in question. Any untimely appeal will be summarily dismissed by the Board for lack of jurisdiction."). However, we need not decide whether or not the 30-day limit is jurisdictional. Even if equitable tolling is available under the statute, the only ground that Townsend asserts as justification for his untimely notice of appeal is that the ALJ's order did not notify him of his appellate rights or the time limits relevant thereto. The regulations under the statute do not require the ALJ to notify a claimant of his appeal rights. See 20 C.F.R. Sec. 725.477. Townsend was represented by counsel and could have easily determined the time for filing appeal, which is clearly stated on the face of the statute and regulations. Therefore, Townsend's failure to timely file his appeal was not on these facts justified by excusable neglect that might lead to an equitable tolling of the 30-day limit, even if such tolling is available under the statute.

Accordingly, the Board's dismissal of Townsend's untimely appeal is

AFFIRMED.

1 Section 21(a) of the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. Sec. 921(a)) is incorporated into the Black Lung Benefits Act by virtue of 30 U.S.C. Sec. 932(a), and provides as follows:

A compensation order shall become...

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8 cases
  • Patton v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor
    • United States
    • U.S. Court of Appeals — Third Circuit
    • June 3, 1985
    ...decision must be taken or lost. See Dawe v. Old Ben Coal Co., 754 F.2d 225, 227 (7th Cir.1985); Townsend v. Director, Office of Workers' Compensation Programs, 743 F.2d 880, 881 (11th Cir.1984); Trent Coal, Inc. v. Day, 739 F.2d 116, 117 (3d Cir.1984). The running of that period is triggere......
  • Justice v. U.S.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • November 15, 1993
    ...and could have determined that several legal channels were open to preserve his cause of action. See Townsend v. Director, Office of Workers' Compensation, 743 F.2d 880, 881 (11th Cir.1984). At the time of the original dismissal the law was settled in this circuit that filing an action gene......
  • Grimmett v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 8, 1987
    ... ... Sec. 932(a); Patton v. Director, Office of Workers' Compensation Programs, 763 F.2d 553, 556 (3rd Cir.1985); Townsend v. Director, Office of Workers' Compensation Programs, 743 F.2d 880, 880 n. 1 (11th Cir.1984); Bennett v. Director, Office of Workers' Compensation ... ...
  • Aetna Cas. & Sur. Co. v. Director, Office of Worker's Compensation Programs, U.S. Dept. of Labor, 95-60578
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 22, 1996
    ...881 F.2d at 159.20 See Illinois Central Gulf, 846 F.2d at 1102.21 881 F.2d at 159 (citing Townsend v. Director, Office of Worker's Compensation Programs, 743 F.2d 880 (11th Cir.1984)).22 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). Griggs, however, has been partially overruled by the ......
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