UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60554
Summary Calendar
PRIDE OFFSHORE, INC., EMPLOYER;
SIGNAL MUTUAL INDEMNITY ASSOCIATION LIMITED, CARRIER;
Petitioners,
v.
JIMMY ROGERS;
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS,
U.S. DEPARTMENT OF LABOR;
Respondents,
Petition for Review of an Order
of the Benefits Review Board
(98-1410)
July 23, 1999
Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
This is an appeal from an order of the Benefits Review
Board (“BRB”) dismissing an appeal from an Administrative Law Judge
(“ALJ”) for lack of jurisdiction. We affirm the decision of the
BRB.
I.
The facts pertinent to this appeal are as follows:
1. On June 9, 1998, the ALJ filed his order disposing of the
merits of the underlying dispute with the Office of the
Deputy Commissioner.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
2. On June 23, 1998 – 14 calendar days after the order was
filed – the petitioners filed a motion for
reconsideration with the ALJ.
3. On July 9, 1998, the petitioners appealed the ALJ’s
original benefits decision to the BRB. This appeal was
designated No. 98-1335.
4. On July 10, 1998, the ALJ filed an order dismissing the
petitioners’ motion for reconsideration as untimely.
5. On July 21, 1998, the petitioners filed a second appeal
with the BRB – No. 98-1410. In this appeal, the
petitioners sought review of the ALJ’s original decision
awarding benefits and the second order dismissing the
petitioners’ motion for reconsideration as untimely.
6. On August 4, 1998, the BRB issued an order dismissing the
petitioners’ second appeal, No. 98-1410, for lack of
jurisdiction due to the untimely filing of the motion for
reconsideration. The appeal of the merits of the ALJ’s
benefit decision, No. 98-1335, remains pending before the
BRB.
II.
This is an appeal from No. 98-1410, which the BRB
dismissed for lack of jurisdiction. Citing Fed. R. Civ. P.
81(a)(6) and 6(a), the petitioners argue that their motion for
reconsideration was timely filed. Under the computation method of
Rule 6(a), intermediate weekends and holidays are excluded from the
computation period when the prescribed time period is less than 11
days. A motion for reconsideration of an ALJ’s decision awarding
benefits must be filed within 10 days pursuant to 20 C.F.R. §
802.206(b)(1). If, however, Rule 6(a) applies, the petitioners’
motion for reconsideration would be timely.
Unfortunately for the petitioners, the Code of Federal
Regulations explicitly sets forth the means of computing time
periods in actions before the BRB. In Bogdis v. Marine Terminals
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Corp., 23 BRBS 136, 138 n.1 (1989), the BRB applied 20 C.F.R. §
802.221(a) to calculate the timeliness of a motion for
reconsideration and to determine whether the filing of the motion
for reconsideration tolled the time period for filing a notice of
appeal. The BRB ruled that § 802.221(a) governed the computation
of the time period prescribed for filing motions for
reconsideration under 20 C.F.R. 802.206(b)(1). See Bogdis, 23 BRBS
at 138 (discussing calculation of time period). The application of
§ 802.221(a) to the filing of motions for reconsideration comports
with the regulation’s plain language. See 20 C.F.R. § 802.221(a)
(“In computing any period of time prescribed or allowed by these
rules . . . .). Accordingly, the petitioners had until June 19,
1998, to file a timely motion for reconsideration. Their filing on
June 23, 1998, was four days late and deprived the BRB of
jurisdiction over No. 98-1410.
AFFIRMED.
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