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BETHENERGY MINES INC. v. DIRECTOR, O.W.C.P.

No. 88-3021.

854 F.2d 632 (1988)

BETHENERGY MINES INC., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, and Frank R. Markovich, Respondents.

United States Court of Appeals, Third Circuit.

Decided August 4, 1988.

Attorney(s) appearing for the Case

John J. Bagnato, Spence, Custer, Saylor, Wolfe & Rose, Johnstown, Pa., for petitioner, Bethenergy Mines Inc.

Blair V. Pawlowski, Pawlowski, Creany & Tulowitzki, Ebensburg, Pa., for respondent, Frank R. Markovich.

George R. Salem, Solicitor of Labor, Donald S. Shire, Associate Solicitor, Barbara J. Johnson, Counsel for Appellate Litigation, Richard A. Seid, Counsel for Administrative Litigation and Legal Advice, U.S. Dept. of Labor, Office of the Solicitor, Washington, D.C., for the Federal respondent.

Before GIBBONS, Chief Judge, HIGGINBOTHAM, Circuit Judge and ROTH, District Judge.

Submitted Under Third Circuit Rule 12(6) June 24, 1988.

OPINION OF THE COURT

GIBBONS, Chief Judge:

This petition for review of an order of the Benefits Review Board of the Department of Labor awarding attorneys fees presents two questions for decision. Both questions involve interpretation of 33 U.S.C. § 928 (1982) and its implementing regulation, 20 C.F.R. § 725.367 (1987). First, where a coal mine operator receives an initial determination...

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