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

• Decision Date: 25 June 1990
• Docket Number: No. 88-3521,88-3521
• Parties: Anna WISNIEWSKI, Widow of Edward Wisniewski, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 952

929 F.2d 952

19 Fed.R.Serv.3d 110

Anna WISNIEWSKI, Widow of Edward Wisniewski, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.

No. 88-3521.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

June 25, 1990.

Decided April 3, 1991.

Anna Wisniewski, Mount Carmel, Pa., pro se.

Michael J. Denney, Brian E. Peters, Elizabeth J. Shapiro, U.S. Dept. of Labor, Office of the Sol., Washington, D.C., for respondent.

Before STAPLETON, SCIRICA and GARTH, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Petitioner, Mrs. Anna Wisniewski, seeks review of an order of the Benefits Review Board affirming an administrative law judge's Decision and Order denying Benefits under the Black Lung Benefits Act, as amended, 30 U.S.C. Secs. 901-945 (1982). As an initial matter, we have considered whether the petition for review was filed in a timely manner, pursuant to section 21(c) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 921(c)(1982), as incorporated by section 422(a) of the Black Lung Benefits Act, 30 U.S.C. Sec. 932(a), and have concluded that the petition for review was timely. Therefore, we have jurisdiction in this matter. However, we will deny the petition for review.

I.

Edward Wisniewski, acting pro se, filed an application for benefits under the Black Lung Benefits Act (the Act), on May 10, 1971. ¹ The Social Security Administration denied this claim on March 28, 1975. On April 13, 1978, Mr. Wisniewski elected to seek review of the denied claim by the Department of Labor, under the Black Lung Benefits Reform Act of 1977. Mr. Wisniewski died on January 2, 1979, before the Department of Labor had issued a decision regarding his claim.

His widow, Anna Wisniewski, filed a pro se application for survivor's benefits on January 4, 1979. The Department of Labor denied both the survivor's claim and Mr. Wisniewski's claim on June 5, 1980. Mrs. Wisniewski was informed at that time that this decision would become final if she did not take any action within sixty days; she also was told that she could request reconsideration of her claim within one year, on the ground that a mistake had been made in denying the claims, if she submitted proof in support of that request. Although Mrs. Wisniewski sent a letter to the Department within sixty days, seeking an extension of time to submit evidence, she neither submitted new evidence nor requested reconsideration of the claims in the year following the Department's decision. ²

Mrs. Wisniewski, represented by counsel, filed a second application for survivor's benefits on September 4, 1981. The Department of Labor denied this claim on October 15, 1982. The case then was forwarded to the Office of Administrative Law Judges for a formal hearing. The ALJ held a hearing on May 13, 1986 and filed a Decision and Order denying benefits on June 25, 1986. Mrs. Wisniewski filed a timely appeal to the Benefits Review Board (the "Board"). The Board affirmed the denial of benefits, by unpublished opinion dated May 31, 1988.

On June 30, 1988, this court received from Mrs. Wisniewski a letter seeking review of the Board's decision. Mrs. Wisniewski was requested to furnish the court additional copies of this document; to provide the court with the names and addresses of counsel for respondent; and to pay the docketing fee or file a motion to proceed in forma pauperis. Mrs. Wisniewski paid the docketing fee and provided the requisite copies and information on August 10, 1988. Her petition for review was docketed on that date.

On October 12, 1988, respondent (the Director) filed a motion to dismiss for lack of jurisdiction. We held disposition of this motion pending our decision on rehearing in Shendock v. Director, Office of Workers' Compensation Programs, 893 F.2d 1458 (3d Cir.) (in banc), cert. denied, --- U.S. ----, 111 S.Ct. 81, 112 L.Ed.2d 53 (1990). ³

II.

In his brief, the Director withdrew his motion to dismiss for lack of jurisdiction. The question of our jurisdiction is still at issue, however, because we must determine whether we have jurisdiction before we rule on the merits of a case. See Shendock, 893 F.2d at 1461 & n. 7; Smith v. Evans, 853 F.2d 155, 157 (3d Cir.1988).

Under section 21(c) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 921(c), incorporated by section 422(a) of the Black Lung Benefits Act, 30 U.S.C. Sec. 932(a), a person adversely affected 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). The sixty-day time limit for filing a petition for review under Sec. 921(c) is jurisdictional. Shendock, 893 F.2d at 1462-65. ⁴

The procedures for obtaining review of agency orders are set forth in Fed.R.App.P. 15, which provides, in part:

(a) Petition for review of order; joint petition.--Review of an order of any administrative agency, board, commission or officer ... shall be obtained by filing with the clerk of a court of appeals which is authorized to review such order, within the time prescribed by law, a petition to enjoin, set aside, suspend, modify or otherwise review.... The petition shall specify the parties seeking review and shall designate the respondent and the order or part thereof to be reviewed. ....

....

(c) Service of petition or application.--A copy of a petition for review ... shall be served by the clerk of the court of appeals on each respondent in the manner prescribed by Rule 3(d), unless a different manner of service is prescribed by an applicable statute. At the time of filing, the petitioner shall furnish the clerk with a copy of the petition or application for each respondent. At or before the time of filing a petition for review, the petitioner shall serve a copy thereof on all parties who shall have been admitted to participate in the proceedings before the agency other than respondents to be served by the clerk, and shall file with the clerk a list of those served.

Fed.R.App.P. 15(a) and (c). ⁵ The procedures set forth in subsection (a) of Rule 15 are jurisdictional. Kowaleski v. Director, Office of Workers' Compensation Programs, 879 F.2d 1173 (3d Cir.1989) (citing Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988)), cert. denied, --- U.S. ----, 110 S.Ct. 1114, 107 L.Ed.2d 1021 (1990); see Harmar Coal Co. v. Director, OWCP, 926 F.2d 302, 309 (3d Cir.1991) (principles announced in Torres apply to black lung cases under Rule 15). In Kowaleski, the petition for review did not specify a real party in interest and counsel's motion to amend the petition to specify a proper party was not filed within the time prescribed by Sec. 921(c). ⁶ We concluded that the Rule 15 requirement that a petition for review "shall specify the parties seeking review" is jurisdictional. Because the petition was defective and the motion to amend was untimely, we lacked jurisdiction to review the Board's order.

The Board issued its order in this case on May 31, 1988. Mrs. Wisniewski's written request for review of the Board's order was received in this court on June 30, 1988. The petition for review was not docketed, however, until August 10, 1988, after Mrs. Wisniewski had submitted additional copies of her petition and informed the court of the names and addresses of counsel for respondent, in compliance with Rule 15(c), and had paid the docketing fee.

The question presented in this case, therefore, is whether a petition for review is timely if it is received in the court of appeals within the sixty-day period set forth in Sec. 921(c) but is not filed by the clerk until the petitioner has submitted additional copies of the petition and a list containing the names and addresses of counsel for respondent, in compliance with Rule 15(c), and has paid the docketing fee or filed a motion to proceed in forma pauperis. We will have jurisdiction if Mrs. Wisniewski's petition for review properly may be considered as filed upon its receipt in this court on June 30, 1988, within sixty days after issuance of the Board's order. If, instead, the petition for review is considered as filed on August 10, 1988, upon Mrs. Wisniewski's payment of the docketing fee and submission of additional copies of the petition, the petition was untimely and should be dismissed for lack of jurisdiction.

Unlike its counterpart, Rule 3, Fed.R.App.P., Rule 15 does not expressly state that a petitioner must pay to the clerk the fee established by statute, upon the filing of a petition for review. The payment of filing and docketing fees is not a jurisdictional requirement of Rule 3. Parissi v. Telechron, Inc., 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955) (per curiam) (payment of filing fee beyond thirty-day period for filing notice of appeal does not render appeal untimely); Gould v. Members of New Jersey Division of Water Policy and Supply, 555 F.2d 340 (3d Cir.1977) (citing Parissi ) (untimely payment of the filing fee does not vitiate the validity of notice of appeal received within the thirty-day period prescribed by 28 U.S.C. Sec. 2107 and Fed.R.App.P. 4).

Two courts of appeals have held that a petition for review is timely if received by the clerk of the court of appeals within the time prescribed by statute, despite petitioner's failure to forward the filing fee. In Long v. United States Department of the Air Force, 751 F.2d 339 (10th Cir.1984), the clerk of the court of appeals received a petition for review of an arbitrator's award upholding disciplinary action taken by the Department of the Air Force within thirty days of the date the petitioner received notice of the arbitrator's decision; ⁷ however, the clerk did not...