[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-13179

____________________

DORIS SLOAN, 

widow of Gurstle Sloan, 

Petitioner,

versus

DRUMMOND COMPANY, INC., 

DIRECTOR, OFFICE OF WORKER’S COMPENSATION 

PROGRAMS, 

U.S. DEPARTMENT OF LABOR, 

Respondents.

____________________

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2 Opinion of the Court 20-13179

Petition for Review of a Decision of the

Benefits Review Board

Agency No. BRB-2019-0056-BLA

____________________

Before WILLIAM PRYOR, Chief Judge, and JORDAN and BRASHER, Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether we have jurisdiction over a petition for review of a denial of survivor’s benefits under the Black Lung Benefits Act filed in this Court one day late. 

Because the filing deadline is jurisdictional and we have no jurisdiction to review the denial of a motion for reconsideration by the 

Benefits Review Board, we lack jurisdiction to review the petition. 

We dismiss the petition for lack of jurisdiction.

I. BACKGROUND

In 2006, Doris Sloan filed for survivor’s benefits under the 

Black Lung Benefits Act, 30 U.S.C. §§ 901–950, after the death of 

her husband, Gurstle Sloan, who had worked as a coal miner for 

Drummond Company for 16 years. An administrative law judge 

denied her claim, and that denial was reviewed twice. This petition 

concerns the Board’s third review of Sloan’s claim. Sloan argued to 

the Board that the administrative law judge improperly excluded 

evidence supporting her request to modify her claim and erred by 

finding that the evidence did not establish that her husband’s death 

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20-13179 Opinion of the Court 3

was due to pneumoconiosis. See Sloan v. Drummond Co., BRB No. 

19-0056 BLA, 2019 WL 7505673, at *2 (Ben. Rev. Bd. Dec. 3, 2019).

On December 3, 2019, the Board affirmed the administrative 

law judge’s denial of survivor’s benefits. See id. at *6. Sloan timely 

moved for reconsideration by the en banc Board. She argued that 

the administrative law judge erred by excluding and failing to consider certain evidence and by improperly relying on the opinion of 

the government’s expert witness. Sloan also argued that the administrative law judge failed to properly weigh the evidence as a whole.

On June 25, 2020, the Board denied Sloan’s motion for reconsideration en banc. It explained that it had considered Sloan’s 

arguments and reviewed the panel decision and that no member 

voted for reconsideration. On July 24, 2020, Sloan filed a second 

motion for reconsideration. She again asserted that certain evidence should have been considered; that reliance on a government 

witness was improper; and that all the evidence needed to be considered together.

On August 25, 2020, 61 days after the Board ruled on Sloan’s 

first motion for reconsideration, we received Sloan’s petition for 

review. Sloan challenges the Board’s December 2019 order. She 

acknowledges that the Board ruled on her original motion for reconsideration on June 25, 2020, and explains that she did not receive the Board’s order denying her first motion for reconsideration until July 20, 2020, because her attorney was sheltering in place 

because of COVID-19 and could not receive certified mail. 

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4 Opinion of the Court 20-13179

The Board sent a letter to this Court that explained that 

Sloan’s claim was still pending before the Board because Sloan had 

filed a timely second motion for reconsideration on July 24, 2020, 

and the Board retained jurisdiction over the case. The Board stated

that the parties would have 60 days after it ruled on the second motion for reconsideration to petition for review in this Court. A 

month later, the Board sent a second letter to this Court. In the 

second letter, the Board reiterated that it still had jurisdiction over 

the case and would forward the record to the Court after it ruled 

on the second motion for reconsideration. Based on these letters, 

we issued a jurisdictional question to the parties and asked them to 

address whether the Board was still considering the second motion 

for reconsideration; whether the second motion for reconsideration rendered the underlying Board decision nonfinal and precluded judicial review; whether the second motion for reconsideration tolled the time to petition for review of the underlying order;

and whether the present petition is otherwise timely, as it was filed 

61 days after the Board’s decision on the first motion for reconsideration.

The Director argues that we lack jurisdiction over Sloan’s 

petition because it was untimely filed by one day and the deadline 

for filing a petition is not subject to equitable tolling. The Director

contends that Sloan’s second motion for reconsideration does not 

toll the time to appeal the Board’s December 2019 decision. The 

Director also contends that we lack jurisdiction to review the decision to deny Sloan’s first motion for reconsideration because we 

have no jurisdiction to review such denials when the motion 

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20-13179 Opinion of the Court 5

alleges material error based on the same record that was before the 

administrative law judge. Drummond Company joined the Director’s response to the jurisdictional question. Sloan asserts that the 

Board was still considering her second motion when she responded

to the jurisdictional questions; that the Board had certified in its 

earlier letters to this Court that the second motion for reconsideration was timely; and that her petition for review was timely because three days were added to the appeal time under Federal Rule 

of Appellate Procedure 26(c). She also argues that her second motion for reconsideration tolled the time to petition for review of the 

December 2019 decision.

On January 12, 2021, the Board denied Sloan’s second motion for reconsideration. The Director then filed a supplemental response to the jurisdictional questions that reiterated her position 

that we lacked jurisdiction over Sloan’s petition. Sloan also filed a 

supplemental response, arguing that her petition for review was 

timely because it was postmarked August 24, 2020; that the Board 

said it retained jurisdiction until the second motion for reconsideration was decided; and that the Board denied Sloan’s second motion for reconsideration without addressing all the issues raised. 

We carried the jurisdictional questions with the petition.

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6 Opinion of the Court 20-13179

II. STANDARD OF REVIEW

We review our subject-matter jurisdiction de novo. Blanc v. 

U.S. Att’y Gen., 996 F.3d 1274, 1277 (11th Cir. 2021).

III. DISCUSSION

We divide our discussion into three parts. First, we explain 

that Sloan’s petition was untimely. Second, we explain that because 

the deadline to file a petition in this Court is jurisdictional, Sloan’s 

failure to meet it requires dismissal. Last, we explain that we lack 

jurisdiction to review the Board’s June 2020 denial of Sloan’s first 

motion for reconsideration. 

A. Sloan’s Petition Was Untimely.

A person challenging an adverse final order by the Board 

must file a petition for review in the court of appeals within 60 days 

of the issuance of the order. 33 U.S.C. § 921(c). An order is final and 

subject to the 60-day period when it “ends the litigation” and 

“leaves nothing for the court to do but execute the judgment.” 

Cooper Stevedoring Co. v. Dir., Off. of Workers’ Comp. Programs, 826 

F.2d 1011, 1014 (11th Cir. 1987) (citation and internal quotation 

marks omitted). If a timely motion for reconsideration is filed after 

the Board issues a decision, “the 60-day period for filing [a] petition 

for review [with the court of appeals] will run from the issuance of 

the Board’s decision on reconsideration.” 20 C.F.R. § 802.406. A 

motion for reconsideration is timely if it is filed within 30 days of 

the panel decision. Id. § 802.407(b).

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When an order becomes reviewable, the 60-day deadline is 

a hard deadline unaffected by service on the parties. Rich v. Dir., 

Off. of Workers’ Comp. Programs, 798 F.2d 432, 433 (11th Cir. 1986) 

(“Federal regulations explicitly provide that the Board must file its 

decision with the Clerk of the Board and judicial review must be 

sought within sixty days of that filing. . . . The date of filing is not 

affected by the date of service on [the petitioner] or [her] attorneys.” (citation omitted)). And a petition for review is considered 

filed on the date that the Clerk receives it. Id.

The Board issued its initial decision on December 3, 2019, 

and Sloan timely moved for reconsideration. The decision did not 

become final and reviewable until the Board denied Sloan’s first 

motion for reconsideration on June 25, 2020. So the deadline to petition for review was 60 days later, on August 24, 2020. We received 

Sloan’s petition on August 25, 2020, 61 days after the Board issued 

its order on Sloan’s first motion for reconsideration. Based on the 

text of the statute, Sloan’s petition is untimely.

Sloan argues that Federal Rule of Appellate Procedure 26(c)

adds three days to her 60-day window to petition for review. 

Rule 26(c) states that “[w]hen a party may or must act within a 

specified time after being served, and the paper is not served electronically on the party or delivered to the party on the date stated 

in the proof of service, 3 days are added after the period would otherwise expire.” FED. R. APP. P. 26(c). Sloan argues that because she 

did not receive notice of the Board’s decision until July 20, 2020, 

she is entitled to the three-day extension.

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Our precedent forecloses her argument. We dismissed a petition for review of a final decision by the Board that was two days 

late because the deadline for filing a petition “is not affected by the 

date of service on [the petitioner] or his attorneys.” Rich, 798 F.2d 

at 433 (citation omitted). We explained that the statute and regulations make clear that the filing period is 60 days and that they do 

not incorporate the extension in Rule 26(c). See id. That Sloan’s attorney did not receive notice of the decision until July 20, 2020, has 

no effect on the deadline for a petition for review.

Moreover, that Sloan filed a second motion for reconsideration is of no consequence because her second motion did not extend her time to appeal from the Board’s December 2019 decision. 

The relevant regulations do not expressly contemplate successive 

motions for reconsideration, and other areas of law provide that 

only an initial motion for reconsideration renders an order nonfinal 

for purposes of extending a party’s time to appeal. See 20 C.F.R. 

§ 802.406; Finch v. City of Vernon, 845 F.2d 256, 259 (11th Cir. 1989); 

Wright v. Preferred Rsch., Inc., 891 F.2d 886, 889 (11th Cir. 1990); 

United States v. Rothseiden, 680 F.2d 96, 98 (11th Cir. 1982). That the 

Board deemed Sloan’s second motion for reconsideration timely 

with respect to the first order denying reconsideration is irrelevant; 

Sloan’s time to appeal continued to run as to the original order. See 

Peabody Coal Co. v. Abner, 118 F.3d 1106, 1108 (6th Cir. 1997); Midland Coal Co. v. Dir., Off. of Workers’ Compensation Programs, 149 F.3d 

558, 564 (7th Cir. 1998), overruled on alternative ground by Saban v. 

U.S. Dep’t of Lab., 509 F.3d 376 (7th Cir. 2007).

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B. We Lack Jurisdiction to Review Sloan’s Petition Because 

Section 921(c)’s Filing Deadline Is Jurisdictional.

Because Sloan’s petition was untimely, we must consider 

whether the statutory deadline to file a petition is jurisdictional or 

a claims-processing rule. The Supreme Court has explained the difference between those kinds of rules. A jurisdictional prescription 

sets the bounds of the “court’s adjudicatory authority.” Kontrick v. 

Ryan, 540 U.S. 443, 455 (2004). A claims-processing rule, by contrast, does not. Claims-processing rules “seek to promote the orderly progress of litigation by requiring that the parties take certain 

procedural steps at certain specified times.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). The distinction between 

the rules matters because “[h]arsh consequences attend the jurisdictional brand.” Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 

(2019) (citation and internal quotations marks omitted). For example, jurisdictional rules are not subject to equitable exceptions and 

cannot be waived or forfeited. Boechler, P.C. v. Comm’r of Internal 

Revenue, 142 S. Ct. 1493, 1497 (2022). 

Because jurisdictional rules have harsh consequences, a procedural requirement is jurisdictional only if Congress “clearly 

states” that it is. Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006). 

Congress need not “incant magic words,” Sebelius v. Auburn Reg’l 

Med. Ctr., 568 U.S. 145, 153 (2013), but the “traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences,” United States v. Kwai 

Fun Wong, 575 U.S. 402, 410 (2015).

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We consider three factors when determining whether Congress has clearly stated that a procedural requirement is jurisdictional: the text, the statutory context, and the degree of flexibility 

afforded to potential claimants. See Henderson, 562 U.S. at 438–41. 

A procedural requirement is jurisdictional if the statutory provision 

speaks in jurisdictional terms or refers to jurisdiction, is placed 

within a jurisdictional section of the statute, or is part of a scheme 

that is not designed to be flexible for claimants but instead places 

strict requirements on them, like statutes of limitations or burdens 

of proof or persuasion. See id.

Section 921(c) is jurisdictional. The text “speak[s] in jurisdictional terms” and “refer[s] . . . to the jurisdiction” of the courts of 

appeals. Id. at 438 (citation and internal quotation marks omitted). 

It states that courts of appeals “shall have jurisdiction” only if a petition for review is filed “within sixty days following the issuance” 

of a Board order. 33 U.S.C. § 921(c); see also Brown v. Dir., Off. of 

Workers’ Comp. Programs, 864 F.2d 120, 122 (11th Cir. 1989). Section 921(c) makes clear that a court of appeals has jurisdiction only 

upon the filing of a petition within 60 days of a final Board order. 

The statutory context also suggests that the provision is jurisdictional. The caption of section 921(c)—“Courts of appeals; jurisdiction”—clearly frames the statutory requirements as jurisdictional. See Henderson, 562 U.S. at 439 (explaining that a subchapter 

captioned “Jurisdiction; finality of decisions” was a jurisdictional 

provision (internal quotation marks omitted) (quoting 102 Stat.

4113, 4113–14)); see also Antonin Scalia & Bryan A. Garner, Reading 

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Law: The Interpretation of Legal Texts § 35, at 221 (2012) (“The title 

and headings are permissible indicators of meaning.”). The placement of section 921(c) also establishes that its 60-day deadline is jurisdictional. Unlike the statutory provision in Henderson, no other 

part of the Act is captioned “jurisdiction.” See 33 U.S.C. §§ 901–950; 

see also Henderson, 562 U.S. at 439 (explaining that the relevant provision was a claims-processing rule because Congress placed it in a 

subchapter captioned “Procedure” and not in the subchapter captioned “Organization and Jurisdiction” (citation and internal quotation marks omitted)). And the broader context of the statute does 

not suggest that section 921(c) is meant to be a claims-processing 

rule. There is no sign that Congress has a special solicitude for 

black-lung victims: the Act has a statute of limitations, 33 U.S.C. 

§ 913(a), and the initial burden is on the claimant to bring evidence 

to establish entitlement to benefits, see id. § 921(c); cf. Henderson, 

562 U.S. at 440 (explaining that Congress’s scheme governing veterans’ rights places a thumb on the scale in the veterans’ favor by 

allowing lenity as to the time to file for benefits and by not establishing burdens of proof and persuasion).

The language of section 921(c) sets it apart from statutes that 

the Supreme Court has held are not jurisdictional. In Hamer v. 

Neighborhood Housing Services of Chicago, for example, the Supreme 

Court noted that the filing deadline at issue did not appear in a statute; it came from the Federal Rules of Appellate Procedure. 138 

S. Ct. 13, 16, 19–21 (2017) (explaining that a deadline “prescribed 

only in a court-made rule”—and not in a statute—is not jurisdictional and is instead a claims-processing rule). But the deadline for 

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12 Opinion of the Court 20-13179

Sloan’s petition comes directly from the text of section 921(c). Section 921(c) also includes the word “jurisdiction.” In Henderson, by

contrast, the Supreme Court concluded that the deadline was a 

claims-processing rule because the statute at issue did not mention 

jurisdiction. See 562 U.S. at 438; see also Harrow v. Dep’t of Defense, 

No. 23-21, slip op. at 5, __ S. Ct. __ (May 16, 2024) (explaining that 

a time-bar provision is not jurisdictional because there was “no 

mention” of jurisdiction in the provision). Indeed, the Supreme 

Court has explained that clear statutory mention of jurisdiction—

like the statutory phrase “no court shall have jurisdiction”—signals 

that a statutory provision is a jurisdictional rule. See Santos-Zacaria 

v. Garland, 143 S. Ct. 1103, 1113 (2023) (citation and internal quotation marks omitted). And section 921(c) uses clear jurisdictional 

language. Because section 921(c) is jurisdictional, it is not subject to 

equitable tolling. See United States v. Johnson, 541 F.3d 1064, 1068 

(11th Cir. 2008).

C. We Lack Jurisdiction to Review the Board’s Order 

Denying Sloan’s First Motion for Reconsideration.

We also asked the parties whether we have jurisdiction to 

review the Board’s decision to deny Sloan’s first motion for reconsideration. This question concerns our jurisdiction to review the 

Board’s June 2020 decision. Because Sloan based her motion for reconsideration on the same arguments and the same record before 

the Board, we have no jurisdiction to review the denial of it.

The Supreme Court has held that when a party petitions an 

agency for reconsideration on the same record that was before the 

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agency when it rendered its original decision, the order denying the 

rehearing is not reviewable. ICC v. Bhd. of Locomotive Eng’rs, 482 

U.S. 270, 280 (1987). Although that decision did not involve a claim 

for black-lung benefits, one of our sister circuits has held, citing 

Brotherhood, that a Board decision to deny a motion for reconsideration in a black-lung case is not reviewable. See Betty B Coal Co. v. 

Dir., Off. of Workers’ Comp. Programs, 194 F.3d 491, 496 (4th Cir. 

1999). And we agree with our sister circuits that the language in 

Brotherhood applies to agencies generally, including the Board. See 

id.; see also Palacios v. Spencer, 906 F.3d 124, 126 (D.C. Cir. 2018); 

Vill. of Barrington v. Surface Transp. Bd., 892 F.3d 252, 268 (7th Cir. 

2018).

Like the motion in Brotherhood, Sloan’s first motion for reconsideration raised no new arguments. Sloan did not offer any 

“new evidence” or “changed circumstances.” See Brotherhood, 482 

U.S. at 278 (citation and internal quotation marks omitted). Instead, she argued that the administrative law judge erred in excluding and failing to consider certain evidence, failed to weigh the evidence as a whole, and improperly relied on the opinion of the government’s expert witness. Sloan based her motion “on the same 

record that was before the agency when it rendered its original decision.” Id. at 280. So the Board’s denial of Sloan’s motion for reconsideration “is not itself reviewable.” Id. (citation and internal 

quotation marks omitted).

IV. CONCLUSION

We DISMISS Sloan’s petition for lack of jurisdiction.

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20-13179 JORDAN, J., Concurring 1

JORDAN, Circuit Judge, Concurring:

I join the court’s opinion in full, and write separately to explain that, even if we had jurisdiction, I would vote to deny the petition on the merits. 

“Decisions of the ALJ are reviewable only as to whether they 

are in accordance with law and supported by substantial evidence 

in light of the entire record. This deferential standard of review 

binds both the [Benefits Review Board] and this Court.” Lollar v. 

Alabama By-Products Corp., 893 F.2d 1258, 1261 (11th Cir. 1990). The 

Supreme Court has defined “substantial evidence” as “more than a 

scintilla,” i.e., evidence that “reasonable mind[s] might accept as 

adequate.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 

Here, the ALJ weighed the competing evidence in determining that Ms. Sloan was not entitled to benefits. For example, in 

finding that Mr. Sloan did not have complicated pneumoconiosis, 

the ALJ placed greater weight on the autopsy report than on the xrays and CT scans. See Sloan v. Drummond Co., Inc., BRB No. 19-

0056 BLA, 2019 WL 7505673, at *3 (Ben. Rev. Bd. Dec. 3, 2019). 

Even if we disagreed with the ALJ’s evaluation of the competing 

evidence, we would not be able to substitute our view of the record 

for that of the ALJ. See Dir. Off. of Workers’ Comp. Programs v. Bethlehem Steel Corp., 620 F.2d 60, 63–64 (5th Cir. 1980). See also Island 

Creek Coal Co. v. Maynard on behalf of Maynard, 87 F.4th 802, 809 (6th 

Cir. 2023) (stating, in a black lung case, that a reviewing court 

“do[es] not reweigh the evidence or substitute [its] judgment for 

that of the ALJ”) (citation omitted).

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