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DIRECTOR, OWCP, U.S. DEPT. OF LABOR v. GARDNER

No. 89-3052.

882 F.2d 67 (1989)

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. Frank I. GARDNER, Jr., Respondent, and Elgin National Industries, Employer/Respondent.

United States Court of Appeals, Third Circuit.

Decided August 14, 1989.

Attorney(s) appearing for the Case

Jerry G. Thorn, Acting Solicitor of Labor, Donald S. Shire, Associate Solicitor for Black Lung Benefits, Sylvia T. Kaser, Counsel for Appellate Litigation.

Richard Zorn (argued), U.S. Dept. of Labor, Office of the Sol., Washington, D.C., for employer/respondent.

William H. Howe, Daniel E. Durden (argued), Loomis, Owen, Fellman & Howe, Washington, D.C., for petitioner.

Before SLOVITER and COWEN, Circuit Judges, and ROTH, District Judge.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

This appeal presents the discrete legal issue of whether a Department of Labor regulation which assesses employer liability for Black Lung Benefits on a "responsible operator" which employed the miner for "not less than 1 year" can be construed to encompass employment of a Black Lung claimant for a period covering less than 365 days. The dispute in this case is between the employer which contends...

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