CECIL TOWNSEND, PETITIONER,

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, RESPONDENT

11th Cir. | 1984-10-09

No. 84-7371

743 F.2d 880 Court of Appeals for the Eleventh Circuit (1984) Positive Treatment

Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

The court held that the claimant's failure to file a timely appeal was not justified by excusable neglect, even if equitable tolling were available, because the regulations do not require notice of appeal rights and the claimant was represented by counsel.

Facts & Procedural History

Cecil Townsend appealed the dismissal of his Black Lung benefits claim, conceding his appeal to the Benefits Review Board was untimely. He argued the …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

Topics

Notice Of Appeal Rights Appeal Rights Jurisdictional Time Limits Claim For Benefits

Explore caselaw by topic → Browse Notice Of Appeal Rights cases and more on FLexlaw

Opinion of the Court

PER CURIAM:

Cecil Townsend appeals from the summary dismissal of his claim for benefits under the Black Lung Benefits Act, 30 U.S.C. § 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 con tends that the AU'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 § 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. § 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 AU’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 AU to notify a claimant of his appeal rights. See 20 C.F.R. § 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.

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

A compensation order shall become effective when filed in the office of the deputy commissioner as provided in § 19, and, unless proceedings for the suspension or putting aside of such order are instituted as provided in subdivision (b) of this section, shall become final at the expiration of the ■ thirtieth day thereafter. . See Bennett v. Director, Office of Workers' Compensation Program, 717 F. 2d 1167 (7th Cir.1983); Wellman v. Director, Office of Workers' Compensation Program, 706 F. 2d 191 (6th Cir.1983); Insurance Company of North America v. Gee, 702 F. 2d 411 (2d Cir.1983); Blevins v. Director, Office of Workers’ Compensation Program, 683 F. 2d 139 (6th Cir.1982); Pittson Stevedoring Corp. v. Dellaventura, 544 F. 2d 35 (2d Cir.1976), aff’d sub nom Northeast Marine Terminal v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977).

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Justice v. United States, 6 F.3d 1474 (11th Cir. 1993)

…s quite modest when adequate legal remedies are available. Justice was represented by counsel 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 generally does not toll the statute of limitations when that action is dismissed for failure to prosecute after the statute’s exp…
Patton v. Dir., Off. of Workers' Comp. Programs, United States Dep't of Labor, 763 F.2d 553 (3d Cir. 1985)

…lear, section 921(a) fixes a thirty-day time period within which an appeal of an adverse 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 triggered by the filing of the ALJ’s decision “as provided in section 919.” 33 U.S.C. § 921(a); Trent Coal, supra, 739 F. 2d at 117-18.…
Tideland Welding Serv. & Liberty Mut. Ins. Co. v. Sawyer, 881 F.2d 157 (5th Cir. 1989)

…e thirtieth day thereafter. 33 U.S.C.A. § 921(a). This statute is jurisdictional and there is no equitable relief available if a party fails to object within the prescribed time period. Townsend v. Director, Office of Workers’ Compensation Programs, 743 F. 2d 880 (11th Cir.1984). Pursuant to the above statute, the Board promulgated regulations governing the effect of a motion for reconsideration on the time for filing a notice of appeal. The applicable regulations provide that “[a] timely motion for reconsi…

Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Ne. Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249 (U.S. 1977)
Pittston Stevedoring Corp. & the Home Ins. Co. v. Dellaventura, 544 F.2d 35 (2d Cir. 1976)
The Ins. Co. OF N. Am. v. Beatrice GEE [Widow of John I. Gee] and Director, 702 F.2d 411 (2d Cir. 1983)
Blevins v. Dir., Off. of Workers' Comp. Programs, United States Dep't of Labor, 683 F.2d 139 (6th Cir. 1982)
Avery C. Bennett v. Dir., Off. of Workers' Comp. Programs, United States Dep't of Labor, 717 F.2d 1167 (7th Cir. 1983)
Wellman v. Dir., Off. OF Workers' Comp. Program, United States Dep't of Labor, 706 F.2d 191 (6th Cir. 1983)

Full citator, related cases, and AI research tools

Open in FLexlaw