UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BIG TEN CORPORATION; OLD REPUBLIC
LIFE INSURANCE COMPANY,
Petitioners,

v.
                                                                   No. 98-1678
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
GRADY DINGUS,
Respondents.

On Petition for Review of
Orders of the Benefits Review Board.
(88-2527-BLA)

Argued: March 5, 1999

Decided: July 9, 1999

Before WILKINSON, Chief Judge, and WILKINS and
LUTTIG, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Laura Metcoff Klaus, ARTER & HADDEN, L.L.P.,
Washington, D.C., for Petitioners. Lawrence Lee Moise, III, VIN-
YARD & MOISE, Abingdon, Virginia, for Respondents. ON
BRIEF: Mark E. Solomons, ARTER & HADDEN, L.L.P., Washing-
ton, D.C., for Petitioners.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In November, 1979, Grady Dingus filed a claim for benefits under
the Black Lung Benefits Act, 30 U.S.C. §§ 901-945. An ALJ awarded
benefits, and the Benefits Review Board affirmed that award. Big Ten
Corporation filed two unsuccessful motions for reconsideration with
the Board, and then appealed to this court. Because Big Ten Corpora-
tion has not appealed from any reviewable order, we dismiss its peti-
tion for review for lack of jurisdiction.

In October, 1979, claimant-respondent Dingus retired after almost
twenty-five years working as a coal miner. At the time of retirement
he was working as a foreman for petitioner Big Ten Corporation. On
November 23, 1979, Dingus, who had smoked upwards of half a pack
of cigarettes a day for more than two decades, filed a claim with the
Department of Labor ("DOL") for benefits under the Black Lung
Benefits Act (the "Act"). DOL initially denied the claim, but later
changed course, issuing an initial finding of eligibility on February
23, 1981. Big Ten Corporation contested the claim, and the case was
referred by the Director, Office of Workers' Compensation Programs,
to the Office of Administrative Law Judges. Nearly seven years later,
a hearing was finally held before an ALJ. The ALJ concluded that
Dingus was entitled to invocation of the "interim presumption" found
at 20 C.F.R. § 727.203 and, because Big Ten failed to rebut that pre-
sumption, issued a Decision and Order awarding benefits on June 15,
1987.

Big Ten filed a timely appeal from the ALJ's decision to the Bene-
fits Review Board, which issued a Decision and Order affirming the
award of benefits on July 16, 1992, five years after the ALJ's deci-
sion. Within thirty days of that decision, the employer filed a timely
motion for reconsideration of the Board's order. Almost four years
later, on May 20, 1996, the Board issued a written Decision and Order

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denying the motion. Undeterred by the fact that the Board had twice
rejected its arguments, and the second time had taken four years to do
so, Big Ten Corporation again moved for reconsideration within thirty
days, and the Board, acting with what in the history of this case must
be considered relative dispatch, summarily denied that motion on
March 12, 1998, just under two years after it was filed. On May 6,
1998, Big Ten Corporation filed in this court a petition for review of
the denials of the two motions for reconsideration (the May 20, 1996
and March 12, 1998 decisions), some nineteen years after Mr. Dingus
applied for benefits.

Several weeks after oral argument, claimant-respondent Dingus,
relying on a decision of our sister circuit in Peabody Coal Co. v.
Abner, 118 F.3d 1106 (6th Cir. 1997), moved to dismiss the appeal
for want of jurisdiction. In Abner, the Sixth Circuit concluded that a
second motion for reconsideration will not toll the statutory period for
appellate review of an order by the Board. The Sixth Circuit reached
this conclusion by analogy to caselaw holding that successive motions
to alter or amend a judgment of the district court under Federal Rule
of Civil Procedure 59(e), where the first such motion was not granted,
will not toll the time within which a notice of appeal must be filed.
The Seventh Circuit has reached the same conclusion, but on different
reasoning. See Midland Coal Co. v. DOWCP , 149 F.3d 558 (7th Cir.
1998) (holding that second and successive motions for reconsidera-
tion did not toll the time to appeal the original decision because "the
applicable regulations do not expressly provide for multiple requests
to reconsider, followed by an appeal, and § 10(C) of the APA requires
such a provision be expressly stated"). Noting this court's recent
unpublished order of dismissal of the appeal in Faulkner v. Director,
OWCP, No. 98-2519 (4th Cir. Jan. 11, 1999) (order dismissing appeal
for lack of jurisdiction), apparently on these grounds, claimant argued
that dismissal was required. In response to claimant's motion, the
Director urged this court to follow the Sixth and Seventh Circuits and
dismiss the appeal, while employer argued that those decisions were
wrongly decided and unsupported by either the Act or the regulations
implementing it.

We need not reach the question whether a second motion for recon-
sideration will toll the time for appeal of an original decision, because
employer in this case has not appealed from the Board's original

                     3
judgment. Rather, in its petition for review, Big Ten clearly states that
it is petitioning this court for review of the Board's May 20, 1996 and
March 12, 1998 orders denying its motions for reconsideration. The
relevant jurisdictional question for this court, then, is not whether a
second motion for reconsideration tolls the time for appeal of the
original decision of the Board, but rather whether employer has
appealed from any reviewable decision at all. We hold that it has not,
and accordingly dismiss the appeal.

The applicable regulations authorize parties to file requests for
reconsideration within thirty days from the filing of a decision or non-
interlocutory order, 20 C.F.R. § 802.407, but explicitly commit the
decision to grant or deny such requests to the Board's discretion. 20
C.F.R. § 802.409. The Supreme Court has held that "where a party
petitions an agency for reconsideration on the ground of `material
error', i.e. on the same record that was before the agency when it ren-
dered its original decision, `an order which merely denies rehearing
of . . . [the original decision] is not itself review able.'" ICC v.
Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 279 (1987)
(quoting Microwave Communications, Inc. v. FCC, 515 F.2d 385,
387 n.7 (D.C. Cir. 1974) (alteration in original)). Concluding that it
was "irrelevant" that the Interstate Commerce Commission's order
denying reconsideration actually discussed the merits of the motion
at some length, the Court stated that "[w]here the Commission's for-
mal disposition is to deny reconsideration, and where it makes no
alteration in the underlying order, we will not undertake an inquiry
into whether reconsideration `in fact' occurred." Id. at 280. In deter-
mining whether an order is reviewable, the Court stated that the "for-
mal action, rather than [any] discussion,[i]s dispositive." Id. at 281.

Although in the May 20, 1996 order the Board did discuss, at some
length, the merits of Big Ten's motion, that discussion is not, as the
Supreme Court noted in Brotherhood of Locomotive Eng'rs, relevant
to the jurisdictional question. Because, as employer repeatedly
acknowledges in his submissions to this court, the Board's "formal
action" in both the May 20, 1996, and March 12, 1998, orders was
to deny employer's motions for reconsideration, and because in nei-
ther its first nor second motion for reconsideration did employer
allege anything other than "material error" on the part of the Board,
we lack jurisdiction over appeals from the Board's purely discretion-

                     4
ary decisions denying those motions for reconsideration. See Midland
Coal Co. v. Director, OWCP, 149 F.3d at 562; Schneider National,
Inc. v. Interstate Commerce Comm'n, 948 F.2d 338, 344 (7th Cir.
1991) ("An agency decision to deny reconsideration is dispositive as
long as the agency makes no alteration in the underlying order or the
petition requesting reconsideration is not based upon new evidence or
changed circumstances. This type of decision has been traditionally
committed to agency discretion and is unreviewable under 5 U.S.C.
§ 701(a)(2)."). And, because employer has not appealed the Board's
original decision, the only Board action over which jurisdiction even
arguably may lie, we must dismiss this appeal for lack of jurisdiction.

DISMISSED

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