772 F.2d 906
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITEDSTATES DEPARTMENT OF LABOR, PETITIONER,v.GEORGE S. REBAR; BENEFITS REVIEW BOARD, RESPONDENTS.
NO. 84-3500
United States Court of Appeals, Sixth Circuit.
8/26/85

Ben.Rev.Bd.
REVERSED AND REMANDED

ORDER

1
BEFORE:  MARTIN and CONTIE, Circuit Judges; and HOGAN, Senior District Juge.*


2
The Director of the Office of Workers' Compensation Programs petitions for review of a decision of the Benefits Review Board.  The Director argues that the Board improperly assessed attorney's fees against the Black Lung Disability Trust Fund.  On the basis of this Court's recent decision in Director, Office of Workers' Compensation Programs v. Bivens, 757 F.2d 781 (6th Cir. 1985), the Director moves for summary reversal of the Board's decision.  The respondent's attorney does not oppose the Director's motion.  The case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit.  Upon consideration of the record, the Director's motion and the response thereto, this panel agrees unanimously that oral argument is not needed.  Rule 34(a), Federal Rules of Appellate Procedure.


3
In Director, Office of Workers' Compensation Programs v. Bivens, supra, this Court held that in the case of a claimant who had not worked in a coal mine after December 31, 1969, and whose initial claim for benefits had been granted and upheld, any attorney's fees granted should be subtracted from the award of benefits.  The present case falls squarely within the ambit of Bivens.  Respondent Rebar last worked in a coal mine in 1941.  Further, his initial claim for benefits was granted by a deputy commissioner and affirmed by the Benefits Review Board; the Director did not challenge respondent's entitlement to benefits.


4
For these reasons, it is ORDERED that the Board's decision regarding the award of attorney's fees be reversed.  Rule 9(d)(4), Rules of the Sixth Circuit.  The case is remanded to the Board with instructions that attorney's fees be subtracted from the award of benefits.



*
 The Honorable Timothy S. Hogan, Senior U.S. District Judge for the Southern District of Ohio, sitting by designation


