On Petition for Review of an Order of the Benefits Review Board; Board No. 86-1898 BLA.
Stapleton, Scirica and Garth, Circuit Judges.
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. §§ 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. § 921(c) (1982), as incorporated by section 422(a) of the Black Lung Benefits Act, 30 U.S.C. § 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.
Edward Wisniewski, acting pro se, filed an application for benefits under the Black Lung Benefits Act (the Act), on May 10, 1971.*fn1 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.*fn2
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, 498 U.S. 826, 112 L. Ed. 2d 53, 111 S. Ct. 81 (1990).*fn3
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. § 921(c), incorporated by section 422(a) of the Black Lung Benefits Act, 30 U.S.C. § 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. § 921(c). The sixty-day time limit for filing a petition for review under § 921(c) is jurisdictional. ...