UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BELVIA G. BECKNER, Widow of

Robert Beckner,

Petitioner,

v.

HAWLEY COAL MINING CORPORATION;

No. 99-1667

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR; WEST

VIRGINIA COAL WORKERS'

PNEUMOCONIOSIS FUND,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(98-222-BLA)

Submitted: October 20, 1999

Decided: November 16, 1999

Before HAMILTON and WILLIAMS, Circuit Judges,

and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Belvia G. Beckner, Petitioner Pro Se. Konstantine Keian Weld,

OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,
Charleston, West Virginia; Patricia May Nece, Dorothy L. Page,

UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,

for Respondents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Belvia Beckner, the widow of Robert Beckner, a former coal

miner, petitions for review of a decision of the Benefits Review Board

("Board") affirming an administrative law judge's ("ALJ") decision to

deny her application for black lung survivor's benefits. The insurance

carrier for Hawley Coal Mining Corporation ("Hawley") is the West

Virginia Coal Workers' Pneumoconiosis Fund ("West Virginia

Fund"). The West Virginia Fund no longer contests Ms. Beckner's

entitlement to benefits. While we grant Ms. Beckner in forma

pauperis status, we dismiss this appeal as moot insofar as it relates to

entitlement. We note that either party may seek modification of the

Board's denial of benefits within one year of the date of dismissal.

See 20 C.F.R. § 725.310 (1998). The West Virginia Fund, however,

avers that the Black Lung Disability Trust Fund should be held liable

for the payment of Ms. Beckner's benefits.

We agree, however, with the Director, Office of Workers' Compensation Programs ("Director"), that Hawley waived this position by

forgoing numerous opportunities to raise it below. See 20 C.F.R.

§ 725.413(b), (c) (1998). See also Lane Hollow Coal Co. v. Director,

Office of Workers' Compensation Programs, 137 F.3d 799, 806-07

(4th Cir. 1998). Moreover, we disagree with Hawley's contention that

this case involves extraordinary circumstances that necessitate our

consideration of the responsible operator issue in spite of its waiver.

Hawley alleges that the Director improperly placed it in the position

of defending this claim by failing to enforce provisions of the Black

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Lung Benefits Act requiring coal mine operators to carry insurance

against the last coal company to employ the miner, H & S Coal Company. Hawley, however, was designated the responsible operator not

because H & S was uninsured but because H & S ceased operations,

according to the Director, approximately eight years before this claim

was filed. As Hawley offers no evidence to the contrary, there is no

apparent connection between the Director's alleged actions or inactions and Hawley's responsibility for payment of any benefits due to

Ms. Beckner.

Accordingly, we dismiss this appeal. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process.

DISMISSED

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