Earlier this year, the Benefits Review Board found that the thirty-day deadline to file an appeal in Section 21(a) is a claim-processing rule, meaning that the responding party bears the burden of timely raising the defense to an untimely notice of appeal, or it is waived. In a recent appeal, Wilton E. Bland, IV and Katie L. Fox successfully argued that a responding party can timely raise the defense in its responding brief.

The Benefits Review Board’s Decision in Dominguez

Under Section 21(a) of the Longshore Harbor Workers’ Compensation Act, a party has thirty days to appeal a compensation order. In Dominguez v. Bethlehem Steel Corp. et al., the Benefits Review Board was faced with the question of whether the thirty days specified in Section 21(a) is a jurisdictional requirement or claim-processing rule. If jurisdictional, then timeliness cannot be waived. If a claim-processing rule, then the defense must be asserted by the responding party, or it is subject to waiver and forfeiture.

The Board determined that the 30-day filing deadline provided in this section is a mandatory claim-processing rule and as such, the responding party must timely object to an untimely filed notice of appeal. See 59 BRBS 53 (2025).

Application of Dominguez Finding

Pending its ruling in Dominguez, the Board held other cases potentially impacted by the decision in abeyance, including one handled by Wilton E. Bland, IV and Katie L. Fox. In this particular case, counsel for claimant attempted to shift fees from his client to Employer and Carrier. In 2022, the District Director issued his order and found that the fees did not shift under Section 28(b) of the Act.

Counsel for claimant then referred the claim to the Office of Administrative Law Judges who ultimately found that she lacked jurisdiction as the decision was appealable to the Benefits Review Board and dismissed the claim. Forty-one days after this order was served, counsel for claimant filed his Notice of Appeal. The appeal was then held in abeyance.

Following the Board’s decision in Dominguez, the case was released from abeyance on February 19, 2026. Thirty days later, counsel for claimant filed his brief for the appeal. Counsel argued that because Section 21(a)’s deadline was a claim-processing rule and Employer and Carrier had not yet objected to the timeliness of his appeal, it had thus forfeited the defense and the appeal could proceed. The question ultimately became when can a responding party timely object to an untimely filed notice of appeal.

In response, Bland and Fox argued that an objection to an untimely appeal can occur at any point before the merits of the appeal are considered and raised the objection in its response brief, specifically noting that the Notice of Appeal was not filed until over a year from the District Director’s first decision and forty-one days after the second order had been served. The Board agreed and found that Employer and Carrier adequately raised the issue in the response brief and demonstrated that the appeal was untimely.

Takeaway

The claim-processing rule applied to Section 21(a)’s filing deadline discussed in Dominguez does not automatically permit untimely appeals to proceed. A responding party can raise the defense in its brief, prior to the merits being considered.