On Petition for Review of a Decision and Order of the Benefits Review Board, BRB Docket No. 85-1067 BLA
Before: MANSMANN, HUTCHINSON and VAN DUSEN, Circuit Judges
VAN DUSEN, Senior Circuit Judge.
In this case we are presented with two issues. First, we must decide whether we have jurisdiction to review the petition for review of petitioner, Stephen Shendock, since it was not filed with this court until January 20, 1988, some five months after the expiration of the sixty-day period for filing provided by 33 U.S.C. § 921(c)*fn1 and 20 C.F.R. § 802.410. If we find that we have jurisdiction then, second, we must decide whether respondent, the Director of the Office of Workers' Compensation Programs of the United States Department of Labor, erred in resolving petitioner's application for disability benefits as provided for in the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., and the regulations promulgated thereunder. For the reasons which follow, we find both that we have jurisdiction and that respondent erred in resolving petitioner's application for Black Lung benefits.
On December 9, 1980, petitioner Stephen Shendock filed an application for disability benefits under the Black Lung Benefits Act. The Director denied the application on April 24, 1981. Following an informal conference held on July 24, 1981, at which both parties agreed that Shendock suffered from pneumoconiosis, a Department of Labor Deputy Commissioner recommended that Shendock's claim be denied again. Shendock subsequently requested a formal hearing, which was held on July 20, 1984, before an administrative law judge (ALJ). On April 12, 1985, the ALJ issued an order denying Shendock's claim. Shendock appealed this decision to the Benefits Review Board, which affirmed it on April 15, 1987.
Petitioner then wrote to the Benefits Review Board and requested review by the "U. S. Court of Appeals." He apparently believed, erroneously, that this was the correct procedure to follow in filing his petition for review. His letter was dated May 4, 1987, but postmarked June 5, 1987 (both within the sixty days he was allowed to file such a petition). On January 7, 1988, more than six months later, a clerk at the Benefits Review Board wrote back to Shendock and advised him that in order to seek judicial review he must file a petition with the "United States Court of Appeals for the Third Circuit." The clerk also advised Shendock of the court's address. Shendock then wrote to this court by letter received January 20, 1988, and requested judicial review of his case. The staff attorney's office wrote back to him and advised him of the procedure he had to follow, as well as the fact that there were filing deadlines imposed by law. Shendock eventually provided the staff attorney's office with all of the necessary papers and the jurisdiction issue was referred to a motions panel. The motions panel referred the case to the merits panel and ordered that Shendock's petition for review be filed nunc pro tunc as of January 20, 1988, "without prejudice to the merits panel adopting an earlier date," which we now do.
Under 33 U.S.C. § 921(c) and 20 C.F.R. § 802.410, petitioner was required to file his petition for review in this court by June 15, 1987 (sixty days after the filing of the Benefits Review Board's decision). This he did not do, although he did mail the petition to the Benefits Review Board in Washington D.C., on June 5, 1987 (fifty days after the filing of the Benefits Review Board's decision).
We first note that the sixty-day filing requirement is a statute of limitations and not jurisdictional. See Bowen v. City of New York, 476 U.S. 467, 478 (1986); Mathews v. Eldridge, 424 U.S. 319, 328 n.9 (1976); Weinberger v. Salfi, 422 U.S. 749, 763-64 (1975) (all holding that the sixty-day filing requirement for appeal of social security disability cases is a statute of limitations). We acknowledge that this sixty-day statute of limitations is a waiver of sovereign immunity and must be strictly construed. See Bowen, supra at 479 (citing Block v. North Dakota, 461 U.S. 273, 287 (1983)). However, where consistent with congressional intent and called for by the facts of the case, an equitable tolling principle may be applied by the courts. See id. (citing Honda v. Clark, 386 U.S. 484 (1967)).
In Bowen, the Supreme Court held that the sixty-day statute of limitations for appeals of social security disability cases could be tolled where the Social Security Administration had systematically denied benefits pursuant to an illegal policy. The Court noted that 42 U.S.C. § 405(g) (the statute requiring claimants denied social security disability benefits to file an appeal within sixty days) was designed to be "unusually protective of claimants." Bowen at 480 (citing Heckler v. Day, 467 U.S. at 106)). The Court then concluded that application of a "'traditional equitable tolling principle' to the 60-day requirement of § 405(g) is fully 'consistent with the overall congressional purpose' and is 'nowhere eschewed by Congress.'" Id. (citing Honda v. Clark, 386 U.S. 484, 501 (1967)).
The Black Lung Benefits Act is similarly designed to be protective of claimants. See In re Sebben, 815 F.2d 475, 479 (8th Cir. 1987) (reciting the legislative history of the Act and amendments to the Act passed to make it easier for miners to collect benefits under it). See also 30 U.S.C. § 801 (generally suggesting that the purpose of the Act is to protect the health and safety of miners). Therefore, we find, based on the Supreme Court's decision in Bowen, that an equitable tolling principle may be applied to the sixty-day statute of limitations for filing a petition for review of denial of Black Lung benefits.
We must then decide whether the facts in the present case are such that equity demands a tolling of the statute of limitations. Here we do not have any allegations that the Labor Department has systematically denied benefits pursuant to an illegal policy, as was the case with the Social Security Administration in Bowen. The Labor Department did fail to respond to petitioner's letter requesting review by "the U.S. Court of Appeals" for six months. However, given the fact that Shendock did not mail the letter until June 5, 1987 (10 days prior to the expiration of the sixty-day filing period), it seems that even if the Labor Department had responded promptly, it is unlikely that Shendock would have been able to file a timely petition for review.
The fact remains, however, that petitioner did attempt to file a petition for review within the sixty-day period allowed, albeit with the wrong "court." The primary purpose of requiring a petition for review to be filed within a limited period of time is to give the respondent notice that the petitioner is going to seek judicial review (so that they can plan accordingly), and, here, respondent had notice of Shendock's intention of filing a petition for review within the sixty-day time period, since Shendock served the "petition for review" on it instead of this court. For this reason, as well as the fact that the legal work product of ...