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Kephart v. Director


decided: February 25, 1983.



Gibbons, Higginbotham, and Becker, Circuit Judges.

Author: Becker


BECKER, Circuit Judge.

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 shown for the failure to timely submit the petition for review and brief. 20 C.F.R. § 802.217(b) (1981).

Respondent's Brief at 6.

Although petitioner eventually submitted her petition and brief on January 4, 1982 (eighty-seven days after her request for a thirty-day extension), the BRB filed an order dismissing the appeal on January 29, 1982. The opinion accompanying the order was conclusory: following a brief recitation of the procedural history subsequent to the filing of petitioner's notice of appeal, the BRB dismissed simply because "claimant ha[d] not shown valid cause for the failure to file a timely Petition for Review and brief, . . . 20 C.F.R. §§ 802.217, 802.402 [1981]." App. at 1, 2.



The rules of practice and procedure of the BRB are codified at 20 C.F.R. § 802.101-411 (1982). The portions of those rules relevant to this appeal provide as follows. First, a notice of appeal from an order of an ALJ must be filed within thirty days. "Failure to file within the period specified . . . 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."*fn6 Id. § 802.205(a), (c).

Once the BRB has received the notice of appeal, the clerk of the BRB must acknowledge the notice "as expeditiously as possible."*fn7 Id. § 802.209. The petitioner then has thirty days from receipt of the acknowledgment to submit a petition for review. Id. § 802.210(a). That petition, which must be accompanied by a supporting brief, id. § 802.210(b), "shall contain a statement indicating the specific contentions of the petitioner and describing with particularity the substantial questions of law or fact to be raised by the appeal," id. § 802.210(a). "Failure to submit a petition for review within the 30-day period described in this section may, in the discretion of the Board, cause the appeal to be deemed abandoned (see § 802.402)." Id.

Despite the suggestion contained in the language of section 802.210, the BRB cannot deem an appeal to be abandoned immediately upon the passing of the thirty-day deadline. Rather, "when a petition for review and brief has not been submitted to the Board within the time limitation prescribed by § 802.210, . . . the petitioner shall be ordered to show cause to the Board why his or her appeal should not be dismissed pursuant to § 802.402." Id. § 802.217(b).

Finally, section 802.402 provides: "Upon the Board's own motion, an appeal may be dismissed upon its abandonment by the party or parties who filed the appeal. Within the discretion of the Board, a party may be deemed to have abandoned an appeal if neither the party nor his representative participates significantly in the review proceedings." Id. § 802.402(a).


As noted above, the BRB did not find explicitly that petitioner had abandoned her appeal; it merely stated that she had failed adequately to excuse the tardiness of her Petition for Review. We nevertheless assume that the BRB based its dismissal on an abandonment theory because its opinion cited section 802.402 and because we can find no other rule under which the BRB could have dismissed petitioner's claim at this stage of the proceedings.*fn8

Respondent Director argues that petitioner's course of conduct following the filing of her notice of appeal constituted a failure to "participate[] significantly in the review proceedings" sufficient to sustain a finding of abandonment. In particular, the Director points to petitioner's response to the BRB's order to show cause and notes that "petitioner did not cite 'inadvertence,' 'oversight,' or any other reason for the failure to timely file her papers." Respondent's Brief at 11. He concludes that "the Benefits Review Board, if not given an adequate excuse or reason [for the failure to timely file a brief], may find that the petitioner has not 'participate[d] significantly in the review proceedings' and properly dismiss an appeal before it." Id. at 10-11.

The Director correctly characterizes petitioner's response to the Order to Show Cause. He also accurately describes the BRB's power to make a finding of abandonment if "neither the party nor his representative participates significantly in the review proceedings." But the BRB is not required to do so; indeed the rule states explicitly that a failure to participate " may be deemed" abandonment at the discretion of the Board.

In this case, neither petitioner's failure to timely file her Petition for Review nor her failure to provide an excuse for that omission would suffice, either alone or together, to sustain the BRB's decision to deem petitioner's appeal abandoned.*fn9 First, the representation of petitioner's counsel in his response to the Order to Show Cause that he would file the petition and brief within thirty days strongly suggested that petitioner did not intend to abandon her appeal.*fn10 More importantly, a finding of abandonment does not comport with petitioner's dogged pursuit of her claims. Petitioner's husband originally filed his claim eleven years before the denial was appealed to the BRB. The additional claim filed by petitioner has been pending for seven years. There is nothing in the record to suggest, nor did the BRB find, that petitioner's participation had ever been less than timely, cooperative, or complete. It would be inconsistent with the spirit of the Act, as well as the liberality with which it is to be construed,*fn11 to allow this one instance of unexplained tardiness*fn12 to defeat the clear intention petitioner's overall course of conduct.*fn13

Because we conclude that the BRB abused its discretion in deeming petitioner's claim abandoned, we will vacate the BRB's dismissal and remand for further proceedings.

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