                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-1379



HERMAN W. WAGNER, deceased, by Fred Wagner,
Executor,

                                                          Petitioner,


          versus


CONSOLIDATION COAL COMPANY; DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,

                                                         Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(03-398-BLA)


Submitted:   July 25, 2005                 Decided:   August 12, 2005


Before WILKINSON, MICHAEL, and KING, Circuit Judges.


Dismissed by unpublished per curiam opinion.


James Hook, Waynesburg, Pennsylvania, for Petitioner. William S.
Mattingly, JACKSON KELLY, PLLC, Morgantown, West Virginia, for
Respondent Consolidation Coal Company.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Fred Wagner (Wagner), Executor of the estate of Herman W.

Wagner,   seeks   to   appeal   the    Benefits    Review   Board’s   (Board)

decision affirming the Administrative Law Judge’s decision denying

black lung benefits on a living miner claim filed by Herman Wagner.

We dismiss the appeal for lack of jurisdiction because the petition

for review was not timely filed.

           In a black lung benefits case, a party seeking review of

a decision and order issued by the Board must file a petition for

review in the court of appeals within sixty days after the order is

issued.   33 U.S.C. § 921(c) (2000).              The sixty-day period for

seeking review is jurisdictional, and a petition for review must be

filed with the clerk of this court to stop the running of this

period.   Adkins v. Dir., Office of Workers’ Comp. Programs, 889

F.2d 1360, 1363 (4th Cir. 1989).          “[T]he sixty day filing period

begins to run with the filing of a Board opinion with the Clerk of

the Board.”   Mining Energy, Inc. v. Dir. Office of Workers’ Comp.

Programs, 391 F.3d 571, 575-76 (4th Cir. 2004).

           In this case, the Board’s decision was issued and served

on the parties on January 23, 2004.           Wagner’s petition for review

was not filed until March 24, 2004, sixty-one days later.                  We

therefore dismiss the appeal.            We dispense with oral argument

because the facts and legal contentions are adequately presented in




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the materials before the court and argument would not aid the

decisional process.



                                                    DISMISSED




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