[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 10074 Non

- Argument Calendar

________________________ Agency No. BRB

- 2012

- 0559

- BLA

FLEETWOOD TRUCKING COMPANY, INC., Petitioner,

versus DIRECTOR, OWCP, JAMES GARY WARREN, Respondents.

________________________ Petition for Review of a Decision of t he Office of Workers Compensation Programs

________________________ (September 30, 2014) Before ED CARNES, Chief Judge , TJOFLAT and JORDAN , Circuit Judges.
PER CURIAM:

Case: 14-10074 Date Filed: 09/30/2014 Page: 1 of 72 Fleetwood Trucking Company appea ls the Benefit Review Board’s (BRB ) decision affirming an Administrative La w Judge’s (ALJ ) grant of benefits under the Black Lung Benefits Act

. I. James Gary Warren is a former truck driver who spent years hauling coal for various companies in Alabama. He was forced to stop working in 2009 when he was diagnosed with black lung disease. On October 23, 2009, Warren filed with the Department of Labor (DOL) a claim for black lung benefits. As part of that claim, he completed a standard DOL questionnaire that requested information about his employment history. Warren wrote that he had been self

- employed as a truck driver for his own business

— Gary Warren Trucking

— before he was forced to stop working . During the time that he was self

- employed, Warren worked on an independent

- contractor basis hauling coal for various companies. He used his own truck to transport the coal , and he did not have a supervisor. Before he worked as an independent contractor, Warren was employed by Fleetwood Trucking Company. When he worked for Fleetwood, he used the company’s trucks and equipment to h aul coal , his work was supervised by Fleetwood’s owner, and the company deducted payroll taxes from his wages

. On January 12, 2010, a DOL claims examiner sent a letter to Fleetwood’s owner, Lee Sellers. The letter notified Sellers that Fleetwood might be the

Case: 14-10074 Date Filed: 09/30/2014 Page: 2 of 73 “responsible operator” for Warren’s claim, 1 and it asked Fleetwood to submit financial information that would allow it to determine whether the company would
be financially able to assume liability fo r the payment of Warren’s benefits. The letter also stated, in bold print, that failure to respond within 30 days would result in a finding that Fleetwood was the proper “responsible operator” and was financially able to assume liability for any benefits Warren was entitled to receive

. See 20 C.F.R. § 725.408(a). Accompanying the letter was a “notice of claim,” which explained how Fl eetwood had been identified as the potential “responsible operator” and included Warren’s self

- reported employment history. F leetwood never responded to the letter. On August 31, 2010, the same DOL claims examiner issued a “schedule for the submission of additional evidence” related to Warren’s claim. A copy was mailed to Fleetwood and was received by the company on Septemb er 9, 2010. The schedule indicated that Fleetwood had been designated as the responsible operator liable for the payment of benefits. Pursuant to DOL regulations, it stated that Fleetwood had until September 3 0, 2010, to accept or reject the designation. If Fleetwood failed to respond, it would be deemed to have conceded its status as the

1 The Black Lung Benefits Act provides benefits to coal miners who are “totally disabled due to ” black lung disease , 30 U.S.C. § 901(a), and regulations provide that in most circumstances the responsible operator for the payment of benefits is the worker’s most recent coal

- related employer. 20 C.F.R. §§ 725.494, 725.495. Neither side disputes that Warren could not have been the “responsible operator” based on his time working as an independent contractor

. Case: 14-10074 Date Filed: 09/30/2014 Page: 3 of 74 “responsible operator” and to have “waive[d] its right to contest its liability in any further proceedings.” See 20 C.F.R. § 725.412(a)(2). Though Fleetwood did
event ually respond to the DOL’s notice , it did so more than three weeks after the September 30 deadline. Warren’s claim was referred to an ALJ for a hearing. After that hearing, the ALJ determined that Warren had established entitlement to black lung benefi ts. The judge also found that Fleetwood could not challenge its designation as the “responsible operator” liable for those benefits because it had failed to respond to the DOL’s notices and failed to submit evidence within the timeframes provided
for in D OL regulations. Fleetwood appealed the ALJ’s decision to the BRB , asserting that it was not Warren’ s last coal

- related employer . It also contended that the DOL had failed to sufficiently investigate whether the most recent company Warren had worked for as an independent contractor should be the responsible operator. The BRB affirmed the ALJ’s determination. It found that the ALJ’s decision was supported by substantial evidence and that Fleetwood ha d waived its right to contest liability by failing to do so within the prescribed time periods.
II. Fleetwood raises several arguments on appeal. First, it contends that it was denied due process and the BRB’s decision must be reversed because the DOL violated its own regulations by failing to adequately investigate wh ether Fleetwood

Case: 14-10074 Date Filed: 09/30/2014 Page: 4 of 75 was the proper “responsible operator.” See Gov’ t of Canal Zone v. Brooks , 427 F.2d 346, 347 (5th Cir. 1970) (“It is equally well established that it is a denial of due pro cess for any government agency to fail to follow its own regulations providing for procedural safeguards to persons involved in adjudicative processes before it.”). 2 Second, it asserts that the DOL regulations on which the ALJ relied
to conclude that Fleetwood had conceded liability should not apply because the DOL failed to perform an adequate investigation. 3 Those argument s present legal questions that we review de novo . Coleman , 345 F.3d at 865

. Fleetwood’s arguments necessarily fail because their underlying premise

— that the DOL failed to perform an adequate investigation

— is flawed. Under DOL regulations, a person seeking black lung benefits must provide the DOL with “a

2 In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.

3 F leetwood also asserts that its due process rights were violated because the BRB’s decision was based on a presumpt ion that Fleetwood was the responsible operator, which “relieve[d] the Government of having to adduce

. . . evidence” that Fleetwood actually was the responsible operator . We find Fleetwood’s argument meritless . The BRB’s decision did nothing to relieve the DOL of its obligation to find evidence concerning the identity of the responsible operator for Warren’s claim. The administrative record demonstrates that the DOL relied on probative evidence to identify the responsible operator, supplied that evidenc e to Fleetwood, and afforded Fleetwood multi ple opportunities to dispute the designation. Fleetwood failed to take advantage of those opportunities. As the respondents note, Fleetwood “was not deprived of due process” but instead “simply neglected to exe rcise its rights under the regulations.” See also Coleman v. Dir., OWCP , 345 F.3d 861, 865 (11th Cir. 2003) (finding no due process violation where petitioner was given “notice and an opportunity to respond to the Director’s argument that her claim was le gally barred”); Nash v. Auburn Univ. , 812 F.2d 655, 661 (11th Cir. 1987) (“An elementary and fundamental requirement of due process

. . . is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the act ion and afford them an opportunity to present their objections.”).

Case: 14-10074 Date Filed: 09/30/2014 Page: 5 of 76 complete and detailed history” of his employment. 20 C.F.R. § 725.404(a). That employment history forms the foundation of the DOL’s investigation and enables it to identify a potentially liable operator for the applicant’s claim. Id. § 725.407(a). The regulations do not identify any specific steps that the DOL must take to determine the potentially liable operator.
T he administrative record makes clear that the claims examiner engaged in a thorough investigation. She interviewed Warren on several occasions to determine the nature of his work while he was self

- employed and while he was working for Fleetwood. She asked Warren whether h e had a supervisor while he was working as an independent contractor. See id. § 725.493(a)(1) (noting that an operator qualifies as a former employer of the claimant if it “retain[ed] the right to direct, control, or supervise the work performed by” the c laimant). The examiner also corroborated Warren’s employment history by reviewing his social security earnings record. That record confirmed that Fleetwood had been Warren’s last employer before he became self

- employed. Finally, the claims examiner also sought information directly from Fleetwood to determine whether it was the responsible operator

. Fleetwood never responded to that request for information. In light of all the evidence , the DOL did not fail to comply with its own regulations
and it suff iciently investigated whether Fleetwood was the liable operator for Warren’s claims.

Case: 14-10074 Date Filed: 09/30/2014 Page: 6 of 77 For the reasons explained, the BRB’s decision is AFFIRMED

. Case: 14-10074 Date Filed: 09/30/2014 Page: 7 of 7