(a) Within 30 days after the receipt of an acknowledgment of a notice of appeal issued pursuant to § 802.210, the petitioner shall submit a petition for review to the Board which petition lists the specific issues to be considered on appeal.
(b) Each petition for review shall be accompanied by a supporting brief, memorandum of law or other statement which: Specifically states the issues to be considered by the Board; presents, with appropriate headings, an argument with respect to each issue presented with references to transcripts, pieces of evidence and other parts of the record to which the petitioner wishes the Board to refer; a short conclusion stating the precise result the petitioner seeks on each issue and any authorities upon which the petition relies to support such proposed result. The Longshore Desk Book and Black Lung Desk Book are not intended as final legal authorities and should not be cited or relied upon as such.
(c) Copies of the petition for review and accompanying documents must be served upon all parties and the Solicitor of Labor.
(d) Failure to submit a petition for review and brief within the 30-day period or to comply with any part of this section may, in the discretion of the Board, cause the appeal to be deemed abandoned (see § 802.402).
(e) When a party appears pro se the Board may, in its discretion, waive formal compliance with the requirements of this section and may, depending upon the particular circumstances, prescribe an alternate method of furnishing such information as may be necessary for the Board to decide the merits of any such appeal.
Notes of Decisions
Sims v. Apfel, 530 U.S. 103 (2000).
· cites it 2× “, 20 CFR § 802.211 (a) (1999) (petition for review to Benefits Review Board must "lis[t] the specific issues to be considered on appeal").”
Joe Fleming v. AGRI, 987 F.3d 1093 (D.C. Cir. 2021).
· cites it 3× “at 108 (quoting 20 C.F.R. § 802.211 (a)). These precedents make clear that the requirement in 7 C.”
Crockett Colleries, Inc. v. Barrett, 478 F.3d 350 (6th Cir. 2007).
· cites it 16× “Page 2 with the requirements set forth in 20 C.F.R. § 802.211 (b). It therefore refused to review the merits of Crockett’s petition and summarily affirmed the decision of the Administrative Law Judge (“ALJ”).”
Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620 (9th Cir. 2008).
· cites it 2× “2080 (quoting 20 C.F.R. § 802.211 (a)). And, when regulations impose such a requirement, "courts reviewing agency action regularly ensure against the bypassing of that requirement by refusing to consider unexhausted issues.”
Andrews, Jr. v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005).
· cites it 2× “As an example of a regulation that “require[s] issue exhaustion in administrative appeals,” the Court quoted 20 C.F.R. § 802.211 (a), which requires an appellant to the Department of Labor Benefits Review Board 4 to “list[ ] the specific issues to be considered on appeal [to the…”
Mabel Samons v. Nat'l Mines Corp., 25 F.4th 455 (6th Cir. 2022).
· cites it 2× “20 C.F.R. § 802.211 (a)–(b). If a party flouts this rule by raising a conclusory argument or an argument that does not identify any alleged errors in an administrative law judge’s decision, the Board has long held that the party forfeits any right to relief on the asserted…”
K & R Contractors, LLC v. Michael Keene, 86 F.4th 135 (4th Cir. 2023).
· cites it 2× “2022); see 20 C.F.R. § 802.211 (a). A party must “list[] the specific issues to be considered on appeal” and “present[] .”
Harry Calcutt III v. FDIC, 37 F.4th 293 (6th Cir. 2022).
“3d at 749 (quoting 20 C.F.R. § 802.211 (a)). However, there is an important difference between Bryan and this case.”
Alain Cuevas-Nuno v. William Barr, 969 F.3d 331 (6th Cir. 2020).
“3d at 749 (holding that 20 C.F.R. § 802.211 (a)’s requirement that petitions for review identify “specific issues to be considered” on appeal imposes an issue exhaustion requirement).”
Bradshaw v. Berryhill, 372 F. Supp. 3d 349 (E.D.N.C. 2019).
“(citing 20 C.F.R. § 802.211 (a) (1999) ). Other courts considering this issue have found that a regulation requiring a party to identify the specific issues it wishes to raise on appeal creates an issue-exhaustion requirement.”
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