                          PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


LONNIE D. JOHNSON,                      
                          Petitioner,
                v.
ROYAL COAL COMPANY; WEST
VIRGINIA COAL-WORKERS’                          No. 02-1400
COMPENSATION PROGRAMS; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
                     Respondents.
                                        
               On Petition for Review of an Order
                 of the Benefits Review Board.
                (BRB-01-0388, 1999-BLA-1015)

                     Argued: February 26, 2003

                      Decided: April 8, 2003

  Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.



Reversed and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judge Williams and Judge Michael joined.


                            COUNSEL

ARGUED: James McPherson Talbert-Slagle, WASHINGTON &
LEE UNIVERSITY SCHOOL OF LAW, Lexington, Virginia, for
Johnson. Helen Hart Cox, UNITED STATES DEPARTMENT OF
2                 JOHNSON v. ROYAL COAL COMPANY
LABOR, Washington, D.C., for Director. Robert Weinberger,
EMPLOYMENT PROGRAMS LITIGATION UNIT, Charleston,
West Virginia, for Royal Coal, et al. ON BRIEF: James M. Phem-
ister, WASHINGTON & LEE UNIVERSITY SCHOOL OF LAW,
Lexington, Virginia, for Johnson. Eugene Scalia, Solicitor of Labor,
Donald S. Shire, Associate Solicitor, Patricia M. Nece, Counsel for
Appellate Litigation, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Director.


                              OPINION

LUTTIG, Circuit Judge:

   Petitioner Lonnie Johnson, a coal miner, filed a claim for benefits
under the Black Lung Benefits Act. His former employer, Royal Coal
Company ("Royal"), was identified as potentially liable for payment
of benefits. In advance of the hearing, petitioner submitted a request
for admissions to Royal, pursuant to 29 C.F.R. § 18.20 (2002). Royal
expressly admitted to several of the matters in the request but
remained silent on the remainder. Although petitioner properly admit-
ted the request and the response into evidence, the administrative law
judge ("ALJ"), in denying benefits, did not address the effect of the
admissions. The Benefits Review Board ("BRB") concluded that the
ALJ did not err in failing to address the admissions and held, first,
that 29 C.F.R. § 18.20 did not apply to black lung proceedings, and
second, that petitioner had waived his right to rely on the admissions.
We conclude that the BRB erred on both scores, and reverse.

                                   I.

   On August 27, 1998, petitioner filed a claim under the Black Lung
Benefits Act, as amended, 30 U.S.C. §§ 901-945. A district director
in the Department of Labor’s Office of Workers’ Compensation Pro-
grams identified petitioner’s former employer, Royal Coal Company,
as the coal mine operator potentially liable for payment of benefits.
The district director initially determined that petitioner was not enti-
tled to benefits, but petitioner disagreed and requested a hearing. The
district director, pursuant to 20 C.F.R. § 725.463(a) (2002), prepared
                   JOHNSON v. ROYAL COAL COMPANY                       3
                                    1
a list of issues contested by Royal, and referred the case to the Office
of Administrative Law Judges ("OALJ").

   Approximately two and a half months prior to the hearing, peti-
tioner served upon Royal a set of interrogatories, requests for produc-
tion of documents, and a request for admissions. In particular,
petitioner requested that Royal admit the truth of ten statements: 1)
that the claim was timely filed; 2) that petitioner was a miner within
the meaning of 20 C.F.R. § 725.202; 3) that petitioner worked in or
around coal mines for at least fifteen years; 4) that petitioner had
pneumoconiosis within the meaning of 20 C.F.R. § 718.201; 5) that
petitioner’s pneumoconiosis arose at least in part out of his coal mine
employment within the meaning of 20 C.F.R. § 718.203; 6) that peti-
tioner was totally disabled from a respiratory standpoint or a pulmo-
nary standpoint from performing his last coal mine employment
within the meaning of 20 C.F.R. § 718.204; 7) that petitioner’s total
respiratory disability was due at least in part to his pneumoconiosis
within the meaning of 20 C.F.R. § 718.204; 8) that petitioner had one
dependent, within the meaning of 20 C.F.R. § 725.204 and 20 C.F.R.
§ 725.205; 9) that petitioner’s most recent period of cumulative
employment within the meaning of 20 C.F.R. § 725.493 of not less
than one year was with Royal; and 10) that Royal was the Responsi-
ble Operator within the meaning of 20 C.F.R. § 725.490-493.

   Royal responded to these requests within 30 days, and expressly
admitted to the first, second, eighth, ninth, and tenth statements listed
above. Royal did not respond in any way to the other five statements.
Nor did Royal object when petitioner introduced the request and the
response into evidence at the hearing.

   Noting that Royal’s failure to respond appropriately to the out-
standing admission request constituted admissions under the authority
of 29 C.F.R. § 18.20(b), petitioner urged the ALJ in his written clos-
  1
   The contested issues included: whether petitioner was a miner for at
least 14 years, whether petitioner had pneumoconiosis, whether any
pneumoconiosis arose out of coal mine employment, whether petitioner
was totally disabled, whether any disability was due to pneumoconiosis,
whether petitioner’s claim was timely, whether he was a coal miner, and
whether Royal was the responsible operator liable for any benefits.
4                  JOHNSON v. ROYAL COAL COMPANY
ing arguments to award benefits. He argued that these facts, admitted
by Royal’s failure to respond, established as a matter of law his enti-
tlement to black lung benefits. Royal, in contrast, in its closing argu-
ment, addressed only the medical evidence and not the effect of the
admissions.

  In an order dated September 20, 2000, the ALJ denied benefits
based on his weighing of the medical evidence. The ALJ made no
mention of the admissions.

   Petitioner appealed to the BRB, raising as his only issue the failure
of the ALJ to give conclusive (or, indeed, any) weight to Royal’s
admissions. The BRB (over a thorough dissent) rejected petitioner’s
argument on two grounds. First, the BRB stated that 29 C.F.R.
§ 18.20 (hereinafter "OALJ Rule 20") was inapplicable to black lung
proceedings in general, as it conflicted with several black lung pro-
gram regulations. Second, the BRB held that even if OALJ Rule 20
were applicable, petitioner waived his right to rely on the admissions
based on his behavior at the hearing.

   Petitioner, dissatisfied with the result of his appeal to the BRB,
now appeals to this court, again raising as the sole issue whether the
admissions made by Royal were binding and conclusive as to peti-
tioner’s eligibility for benefits.

                                   II.

   As noted above, the BRB and Royal present two arguments why
the admissions were not binding on Royal and thus why the ALJ did
not err by failing to consider them. We consider each in turn.

                                   A.

    OALJ Rule 20 states as follows:

      (a) A party may serve upon any other party a written request
      for the admission . . . of the truth of any specified relevant
      matter of fact. (b) Each matter of which an admission is
      requested is admitted unless, within thirty (30) days after
                   JOHNSON v. ROYAL COAL COMPANY                       5
      service of the request . . . the party to whom the request is
      directed serves on the requesting party [a written statement
      either denying specifically the matter or setting forth why he
      or she cannot admit or deny the matter, or written objections
      on the grounds of privilege, irrelevancy, or impropriety].

29 C.F.R. § 18.20(a)-(b) (emphasis added). The consequence of
admission is significant: "Any matter admitted under this section is
conclusively established unless the administrative law judge on
motion permits withdrawal or amendment of the admission." 29
C.F.R. § 18.20(e) (emphasis added).

   There is no dispute that Royal failed to respond to any of the state-
ments in petitioner’s request in the manner specified by OALJ Rule
20(b). OALJ Rule 20(e) thus directs that every matter of fact submit-
ted by petitioner has been "conclusively established." In particular,
then, if OALJ Rule 20 applies to the proceeding below, Royal has
admitted 1) that petitioner has been a coal miner for at least 15 years,
2) that petitioner suffers from a total respiratory or pulmonary disabil-
ity, 3) that petitioner has pneumoconiosis, 4) that petitioner’s pneu-
moconiosis is due at least in part to his coal mine employment, 5) that
petitioner’s total disability is due at least in part by pneumoconiosis,
and 6) that Royal Coal is the responsible operator. As a perusal of the
applicable black lung regulations reveals, and as no one has presently
contested, these admissions would conclusively establish petitioner’s
entitlement to benefits. See 20 C.F.R. §§ 725.201(a)(1), 725.202(d),
718.202, 718.203, 718.204 (2002). Hence, if OALJ Rule 20 applies
(and, of course, assuming neither a waiver of any right to rely on said
admissions, nor the existence of any granted motion to modify or
withdraw the admissions), petitioner is entitled to an award of bene-
fits and the ALJ erred by denying such.2
  2
   OALJ Rule 20, it should be noted, allows admission requests only for
the genuineness and authenticity of documents and for relevant "matters
of fact," the same limitation found in the pre-1970 version of Fed. R.
Civ. P. 36 (the Rule of Civil Procedure governing admissions, analogous
to OALJ Rule 20). See 8A Charles Allen Wright et al., Federal Practice
and Procedure: Civil 2d, 518 n.1 (2d ed. 1994) (setting forth the text of
the original Rule 36). The present Rule 36 allows for a much broader use
of admissions, in that "any matters within the scope of Rule 26(b)(1)"
6                  JOHNSON v. ROYAL COAL COMPANY
   The BRB and Royal both note that the Rules of Practice and Proce-
dure for the OALJ do not all apply in every proceeding in front of an
ALJ. See 29 C.F.R. § 18.1(a) ("[The OALJ procedural rules] are gen-
erally applicable to adjudicatory proceedings before the Office of
Administrative Law Judges . . . . To the extent that these rules may
be inconsistent with a rule of special application as provided by stat-
ute, executive order, or regulation, the latter is controlling."). And,
here, they argue, OALJ Rule 20 conflicts with a plethora of black
lung regulations and so should not be applied. They suggest 20 C.F.R.
§§ 725.413(a), 725.417(a), 725.421(b)(7) (1999), and 725.463(a)
(2002),3 taken together, conflict with OALJ Rule 20. They also iden-
tify 20 C.F.R. § 725.450 (2002) and § 725.455(a) (2002) as in conflict
with OALJ Rule 20.

   None of these provisions, either individually or taken together, are
inconsistent with OALJ Rule 20. The collection of regulations rang-
ing from § 725.413(a) to § 725.463(a) all govern the procedures by
which a district director identifies and lists the contested issues to be
heard by the ALJ at the hearing. See 20 C.F.R. § 725.413(a) (operator

can be the subject of a request for admission. See Fed. R. Civ. P. 36(a).
This difference in phraseology is significant: pursuant to the pre-1970
version of Rule 36(a), requests "that were regarded as involving opinions
or conclusions or a mixture of law and fact" were generally held
improper. See 8A Wright et al., Federal Practice and Procedure § 2255,
at 530 (collecting cases). And, Rule 36 was amended in 1970 precisely
to avoid this limitation. See id. at 534. Many of the statements for which
petitioner requested admissions are at least arguably mixtures of law and
fact, and thus, perhaps, under the literal language of OALJ Rule 20 not
proper subjects for a request for admission. But Royal never objected to
the request as being "improper in whole or in part," 29 C.F.R.
§ 18.20(b)(3), and indeed, never objected to any aspect of the request for
admissions, and thus we need not now address the proper scope of OALJ
Rule 20.
   3
     The Secretary of Labor issued revisions to the black lung benefits pro-
gram regulations that became effective on January 19, 2001. Some of the
changes are prospective only, and some apply immediately to claims
pending on January 19, 2001. See 20 C.F.R. § 725.2(c) (2002). Hence,
different editions of the Code of Federal Regulations are cited throughout
as appropriate.
                   JOHNSON v. ROYAL COAL COMPANY                         7
must "indicate its agreement or disagreement with" each finding by
the district director upon being notified of a claim); § 725.417(a) (the
district director "shall prepare a stipulation of contested and uncon-
tested issues"); § 725.421(b)(7) (district director must deliver to the
ALJ the statement by the deputy director of "contested and uncon-
tested issues in the claim"); § 725.463(a) (the hearing "shall be con-
fined to those contested issues which have been identified by the
district director . . ., or on any other issue raised in writing before the
district director"). Because the ALJ is not to consider issues not
included on the director’s list except pursuant to exception, see 20
C.F.R. § 725.463(b), these provisions define the outer limit of the
scope of the hearing, preventing its expansion. But these provisions
in no way restrict the parties’ ability to narrow the scope of the hear-
ing. There is no inconsistency between the procedures that set the
outer limits for black lung hearings and a rule that allows the parties
to reduce the number of contested issues prior to the hearing. In fact,
the black lung regulations expressly allow for the parties to remove
issues from controversion at the hearing. See 20 C.F.R. § 725.462
(parties may, on the record, "withdraw his or her controversion of any
or all issues set for hearing"). Given that the removal of issues from
controversion is not foreclosed by, and indeed specifically allowed for
in, the black lung regulations, it cannot seriously be contended that
these regulations are inconsistent with another method by which par-
ties can eliminate issues from controversion.

   As to 20 C.F.R. § 725.450, it merely states that "[a]ny party to a
claim . . . shall have a right to a hearing concerning any contested
issue of fact or law unresolved by the district director." This regula-
tion only allows parties to request hearings on contested issues, and
does not touch upon the question as to which procedures (either pre-
hearing or hearing) can or cannot be used to remove issues from con-
troversion. 20 C.F.R. § 725.455(b) states: "The administrative law
judge shall at the hearing inquire fully into all matters at issue, and
shall not be bound by common law or statutory rules of evidence, or
by technical or formal rules of procedure, except as provided by 5
U.S.C. 554 and this subpart." This provision simply grants the ALJ
wide latitude to inquire into controverted issues, and releases the ALJ
from evidentiary and procedural rules that might limit such inquiry.
This provision does not foreclose (or even address) the use of pre-
8                  JOHNSON v. ROYAL COAL COMPANY
hearing procedural devices that remove issues from controversy.
Hence, neither of these provisions is inconsistent with OALJ Rule 20.4

   Having identified no black lung regulations that conflict with
OALJ Rule 20, 29 C.F.R. § 18.1(a) mandates that OALJ Rule 20
apply in black lung proceedings. Since OALJ Rule 20 applies in black
lung proceedings, and since Royal failed to deny or otherwise respond
to petitioner’s request for admissions, Royal has admitted that peti-
tioner is entitled to benefits. Only if it could be established that peti-
tioner somehow waived his right to rely on Royal’s admissions, or
that Royal withdrew or amended them, could Royal avoid liability for
payment of benefits. We now turn to this argument.

                                   B.

   The BRB held, and Royal now contends, that petitioner "waived
his right to rely on employer’s alleged admissions." J.A. 33. In partic-
ular, the BRB noted that "counsel for [petitioner] did not object to
[Royal] contesting the existence of pneumoconiosis or disability cau-
sation" at the hearing, "despite having [Royal’s] alleged admissions
in hand." Id. The BRB also relied upon the fact that the petitioner
"submitted evidence on [the admitted] issues" and "did not object to
the introduction of employer’s evidence relating to these issues." Id.

   Although the BRB accurately records petitioner’s conduct at the
hearing, we reject the BRB’s inference that petitioner thereby waived
any right to use of the admissions against Royal. First, the bulk of the
conduct the BRB cites as demonstrative of waiver occurred before
petitioner introduced the admissions into evidence. For example, peti-
tioner’s "failure" to object to Royal’s contest of the existence of pneu-
moconiosis or disability causation, see J.A. 9, occurred before the
    4
   Indeed, Royal’s counsel, perhaps without being fully aware of it, rec-
ognizes the consistency between the black lung regulations and OALJ
Rule 20, as evidenced by his concession at oral argument that Royal’s
express admission to five of the statements were binding on it. For, these
express admissions would be binding on Royal only if OALJ Rule 20
applied in the proceeding below. And, OALJ Rule 20 does not distin-
guish between admissions made by failure to respond and admissions
made by express statement. See 29 C.F.R. § 18.20(b).
                  JOHNSON v. ROYAL COAL COMPANY                       9
admissions were entered. But thereafter petitioner did enter the admis-
sions, thus making them effective. See Gilbert v. General Motors
Corp., 133 F.2d 997, 1003 (2d Cir. 1943) (admissions need to be
entered into the record to be effective).

   The BRB notes as well that petitioner did not object when Royal
later introduced evidence on matters "resolved" by the non-entered
admissions, and that petitioner himself presented evidence on matters
allegedly admitted. But, based on a consideration of the analogous
Fed. R. Civ. P. 36, an opposing party’s introduction of evidence on
a matter admitted does not constitute either a waiver by the party pos-
sessing the admissions, or as a constructive motion for withdrawal or
amendment of admissions. See American Auto. Ass’n v. AAA Legal
Clinic, 930 F.2d 1117, 1119-20 (5th Cir. 1991). Nor does a party’s
introduction of evidence on issues overlapping matters admitted by
the opposing party constitute a waiver of their right to rely on the
admissions. See Brook Village North Associates v. General Electric
Co., 686 F.2d 66, 71-72 (1st Cir. 1982).5

   Since petitioner properly admitted the admissions into evidence,
and as petitioner has not waived any right to rely on the admissions,
the admissions conclusively establish petitioner’s entitlement to bene-
fits.

                            CONCLUSION

   The judgment of the Benefits Review Board is reversed and the
case is remanded to the ALJ with instructions to enter an order award-
ing benefits to petitioner.

                                                           REVERSED

  5
   We need not address the question of whether Royal constructively
moved to amend or withdraw its admissions by its conduct, as Royal’s
counsel at oral argument expressly disclaimed any reliance on any theory
that Royal constructively moved to amend or withdraw the admissions.
