On Petition for Review of a Decision and Order of the Benefits Review Board, BRB Docket No. 85-1067 BLA.
Mansmann, Hutchinson and Van Dusen, Circuit Judges. On Reargument: Gibbons, Chief Judge, Higginbotham, Sloviter, Becker, Stapleton, Mansmann, Greenberg, Hutchinson, Scirica Cowen, Nygaard and Van Dusen, Circuit Judges
HUTCHINSON, Circuit Judge.
Dissatisfied with the decision of the Benefits Review Board (Board) dated April 15, 1987 that denied his claim for black lung benefits, Stephen Shendock (Shendock) filed a petition for review in this Court on January 20, 1988, a little more than seven months after the sixty days that § 21(c) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.A. § 921(c) (West 1986), allows a party seeking review of a Benefits Review Board decision in black lung cases.*fn1 Shendock contends that we have power to entertain his petition for review on its merits because § 921(c)'s requirement that petitions for review be filed within sixty days of the Board's decision is not a jurisdictional prerequisite to review, but merely a statute of limitations that can and should be tolled under the circumstances of this case. Respondent, Director of the Office of Workers' Compensation Programs (Director), contends that the sixty-day requirement is jurisdictional and that therefore this Court is without power to entertain Shendock's petition and to extend the sixty-day time for filing, despite the equitable considerations that Shendock says the circumstances of this case present.
The issue of whether § 921(c)'s sixty-day time limit is jurisdictional is a matter of first impression in this Circuit. The statute itself uses the term "jurisdiction," and there is no indication either in its structure or in the scant legislative history available that Congress did not mean what it said when it used that term. Therefore, in harmony with all the other courts of appeals that have considered the issue, we hold that we lack judicial power to consider Shendock's petition. Accordingly, we cannot consider the circumstances of this case even though the Director concedes they would justify tolling the sixty-day time period if it were merely a statute of limitations. Likewise, we cannot consider the merits of Shendock's case.*fn2
Shendock is a seventy-two year old resident of Edwardsville, Luzerne County, Pennsylvania. Luzerne is one of six counties in northeastern Pennsylvania containing large deposits of anthracite coal. In common with many other older residents of those counties, Shendock spent a number of his years laboring in the mines that produced anthracite. More than nine years ago, on December 9, 1980, he filed an application for benefits under the Black Lung Benefits Act, 30 U.S.C.A. §§ 901-945 (West 1986). A claims examiner in the Department of Labor denied his claim on April 24, 1981. He then sought an informal conference in accordance with the administrative procedure that the Department's regulations provide for the processing of such claims. One was held on July 24, 1981, before a deputy commissioner of the Department of Labor. The deputy commissioner agreed with the claims examiner and informally denied Shendock's claim.
Acting through counsel, Shendock asked for a formal hearing before an administrative law judge (ALJ). After that informal hearing in Wilkes-Barre, Pennsylvania, the ALJ issued a decision and order denying benefits on April 12, 1985. In denying benefits, the ALJ concluded that Shendock did not establish the existence of pneumoconiosis, and also did not establish that any respiratory disease he may have had was attributable to past coal mine employment or that he was disabled as a result of pneumoconiosis.
Shendock, still acting through counsel, then appealed the ALJ's decision to the Board. On April 15, 1987, the Board held that the ALJ, in deciding that Shendock did not have pneumoconiosis, had not properly considered the presumptions that Shendock was entitled to because of the length of his employment in the anthracite industry. The Board also held, however, that the ALJ's error was harmless because he had correctly found that Shendock had not presented sufficient medical evidence to show his pneumoconiosis was disabling. Thus, the Board affirmed the ALJ's denial of benefits.
Notice of this decision and of Shendock's right to appeal to the appropriate court of appeals was sent to the office of Gifford S. Cappellini (Cappellini), the attorney who had represented Shendock in the proceedings before the ALJ and the Board. However, Cappellini could no longer represent Shendock because he had become a state court judge. The attorney who apparently took over Judge Cappellini's practice, Thomas S. Cometa (Cometa), was unwilling to represent Shendock on appeal to this Court. The supplemental record*fn3 shows that Cometa wrote to Shendock on April 23, 1987, enclosing "a copy of the correspondence I received from the US Dept. of Labor, Benefits Review Board denying you benefits." Director's Supplementary Appendix at 18.*fn4 Cometa went on to say that he did not think an appeal would be successful and that he would therefore "be unable to assist [Shendock] in an appeal to the US Court of Appeals should [he] decide to pursue an appeal." Id. He went on to expressly state that the decision of the Board would become final if an appeal were not taken within sixty days of April 15, 1987 and told Shendock that if he wanted to retain another attorney, that attorney should contact Cometa immediately. Id. The supplemented record also shows that Cometa received a phone call from Shendock's wife a few days later, on April 27, 1987. Id. at 16. He reiterated to her his opinion that an appeal would not bring a favorable decision but advised her again of Shendock's right to appeal and suggested that she contact the Wilkes-Barre Black Lung Field Office for assistance in filing it. Id.
Shendock did not retain the services of another attorney.*fn5 Instead, on May 4, 1987, his wife went to the local black lung office with a letter he had signed and dated that day. The letter was addressed to the U.S. Department of Labor, Benefits Review Board, 1111 20th St., N.W., Suite 757, Washington, DC 20036. Speaking "to whom it may concern," it stated simply: "I would like to appeal my case to the U.S. Court of Appeals. I do not agree with the decision of the Benefits Review Board dated 4-15-87." Addendum to Brief for Petitioner at 4. The letter also gave Shendock's social security number and the Benefits Review Board number assigned to his case.
Shendock's wife gave the letter to Jack Geller (Geller), an employee in the Wilkes-Barre black lung office. Geller told her that he would forward the letter to the Board "right away." Id. at 2. Despite this assurance, the postmark on the letter shows that it was not sent to the Board until June 5, 1987. Id. at 3. The Board received the letter on June 15, 1987, the last day of the sixty-day time period that § 921(c) provides for filing a petition for review.*fn6
After the Board received the letter, Shendock heard nothing further about his claim for almost seven months. Then, on January 7, 1988, he was sent a letter from the Clerk of the Benefits Review Board giving him the address of the Clerk of this Court and advising him that his appeal had to be filed there. Shendock followed that advice and sent a ...