ON PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR.
Gibbons, Higginbotham, and Becker, Circuit Judges.
Petitioner Virginia Kephart seeks review*fn1 of an order of the Benefits Review Board ("BRB") of the Department of Labor dismissing her claim for black lung benefits filed under Title IV of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 901-902, 921-924, 931-936 (1976).*fn2 The BRB entered the dismissal sua sponte because it apparently deemed petitioner to have abandoned her claim when she failed to timely file a Petition for Review and supporting brief in her appeal from an adverse decision of an administrative law judge. Although the BRB has the discretion to so construe such a failure, we find that the BRB abused its discretion in this case. We therefore will reverse and remand for further proceedings.
On May 12, 1970, Raymond Kephart (petitioner's husband) filed a claim for black lung benefits with the Social Security Administration of the Department of Health, Education and Welfare.*fn3 Kephart's claim was denied on June 1, 1973; on May 16, 1974, Kephart died of pneumoconiosis (black lung disease). Four days after her husband's death, petitioner Virginia Kephart filed a new claim for benefits. This claim was informally denied by the Department of Labor on December 3, 1976.
On March 19, 1978, petitioner requested that the Social Security Administration review her husband's claim. The Administration again denied this claim on March 26, 1979, and subsequently transferred Kephart's file to the Department of Labor, where the two claims were joined for further consideration.
After initial review, the Department of Labor denied both claims on March 10, 1980. The Department found insufficient evidence of record to establish entitlement to benefits, even under the liberalized standards included in the 1977 amendments to the Act. Petitioner then requested a formal hearing before an administrative law judge ("ALJ").*fn4
The ALJ held a formal hearing on November 6, 1980, and issued a Decision and Order on March 11, 1981, rejecting petitioner's claims.*fn5 Petitioner then filed a timely notice of appeal with the BRB on March 30, 1981, and on June 5, 1981, the BRB sent petitioner a letter of acknowledgment. That letter, in addition to instructing petitioner's counsel to file a Petition for Review and supporting brief within thirty days, directed counsel's attention to two of the Board's Rules of Practice and Procedure, 20 C.F.R. §§ 802.210 and 802.215.
By October 1, 1981, the BRB had not yet received petitioner's petition and brief; it therefore ordered her to show cause why her appeal should not be dismissed. Petitioner's counsel responded on October 9. Offering no excuse for his tardiness, counsel instead noted that petitioner and her late husband had diligently prosecuted the claims and complied with applicable procedures since 1970, argued that the BRB would not be substantially prejudiced by petitioner's failure to file her brief within thirty days, and pointed out that the BRB had never before dismissed an appeal for failure to comply with the filing deadline. The response also requested an additional thirty days for petitioner to file her brief.
On October 30, 1981, the Director of the Office of Workers' Compensation Programs of the Department of Labor (respondent here) filed a reply in which he argued that petitioner's response to the order to show cause was insufficient. The Director first highlighted the fact that petitioner had given no reason for failing to file her petition and brief within thirty days. He then contended that
while the regulations in effect prior to 1978 provided that the failure to timely file a paper could, in the discretion of the Board, constitute a waiver of the right to further participation in the proceedings, 20 C.F.R. § 802.217 (1978), the applicable regulations, as amended, specifically contemplate that the Board will dismiss an appeal rather than apply such a lesser sanction where no valid cause is ...