The opinion
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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-11260
____________________
JEFFREY HAYES,
Petitioner,
versus
DIRECTOR, OWCP,
UNITED STATES DEPARTMENT OF LABOR,
Respondents,
COWIN & COMPANY, INC.,
Intervenor.
____________________
Petition for Review of a Decision of the
Benefits Review Board
Agency No. 2023-brb-0287-BLA
____________________
Before WILLIAM PRYOR, Chief Judge, and ABUDU and TJOFLAT, Cir-
cuit Judges.
WILLIAM PRYOR, Chief Judge:
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2 Opinion of the Court 24-11260
This appeal requires us to interpret a regulation that defines
a “year” under the Black Lung Benefits Act. Ermine Hayes worked
for Cowin & Company for nearly 30 years, often in coal mines con-
structing mine shafts and exposed to coal dust. Long after his em-
ployment, he filed for benefits under the Act. He alleged total disa-
bility from pneumoconiosis or “black lung disease” caused by his
work in the coal mines. To obtain benefits, he relied on a regula-
tion creating a presumption that claimants suffer from pneumoco-
niosis when they have a disabling breathing impairment and were
employed for fifteen years in coal mines. A separate regulation de-
fines a year. The Benefits Review Board interpreted that regulation
to require a claimant to prove that he was engaged in coal mine
employment for a 365/366-day period and that 125 of those days
were spent working. Under that interpretation, an administrative
law judge denied Hayes benefits. Because the plain text of the reg-
ulation requires the claimant to prove only that he worked for 125
days in coal mines during a calendar year, we vacate and remand.
I. BACKGROUND
Cowin & Company employed Ermine Hayes as a construc-
tion worker from 1955 to 1986. Ermine intermittently worked un-
derground in various mines constructing mine shafts. By the end
of those shifts, he “would be covered with coal dust.” But not all
his time working for Cowin & Company was spent in coal mines.
In January 2015, Ermine filed a claim with the Office of
Workers’ Compensation Programs against Cowin & Company for
benefits under the Black Lung Benefits Act. An administrative law
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24-11260 Opinion of the Court 3
judge initially granted Ermine benefits under the Act. The judge
determined that “the record support[ed] 15 years of coal mine em-
ployment” and that Ermine was “totally disabled due to a respira-
tory or pulmonary condition.” So he was “entitled to a rebuttable
presumption that he is totally disabled due to pneumoconiosis.” To
calculate how long Ermine engaged in coal mine employment, the
judge applied the formula provided by a regulation, 20 C.F.R.
§ 725.101(a)(32)(iii), and found that Ermine identified 15 years “in
which he worked for the entire year, or in excess of 125 days in coal
mine employment.” Finally, the judge ruled that Cowin & Com-
pany “failed . . . to rebut the presumption” under section 718.305.
Ermine died in February 2019. His wife, Wynona, continued his
case for benefits as his surviving spouse.
Cowin & Company appealed to the Benefits Review Board.
The Board vacated in part and remanded with instructions to re-
calculate the length of Ermine’s coal mine employment. Specifi-
cally, the Board did not find “substantial evidence [that] sup-
port[ed] the administrative law judge’s finding that the discrepan-
cies concerning [Ermine’s] length of coal mine employment made
it necessary to apply the [section 725.101(a)(32)(iii)] formula.” But
the Board affirmed the ruling that Cowin & Company failed to re-
but the presumption under section 718.305 if it applied.
On remand, the judge again awarded Ermine benefits. The
judge acknowledged that not all the time Ermine worked for
Cowin & Company was “coal mine employment.” Cowin & Com-
pany offered evidence that, for parts of his employment, Ermine
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4 Opinion of the Court 24-11260
was “not regularly exposed to coal mine dust . . . in or around a coal
mine or coal preparation facility.” In any event, the judge found
that Ermine worked for six “full calendar years for [Cowin & Com-
pany] in qualifying coal mine employment.” And he found that Er-
mine worked in “qualifying coal mine employment” for “partial
periods totaling one year, during which he worked in or around a
coal mine . . . for at least 125 working days,” for another 11.55
years. To arrive at the latter finding, the judge applied the formula
of section 725.101(a)(32)(iii) where the record established that Er-
mine’s “employment in or around coal mines lasted less than a cal-
endar year.” Where Ermine’s “earnings exceed[ed] the industry av-
erage for 125 days, he [was] credited with one year of coal mine
employment.” But where his earnings were “less than the industry
average,” the judge “divide[d] his earnings by the industry average
for 125 days to credit him with a portion of a year.” Six years plus
11.55 years equals 17.55 years—sufficient time to entitle Ermine to
the section 718.305 presumption which the Board had confirmed
had not been rebutted.
Cowin & Company again appealed Ermine’s award to the
Board, which again vacated it. The Board recognized that the judge
used the approach from the decision in Shepherd v. Incoal, Inc., 915
F.3d 392, 405–06 (6th Cir. 2019). The judge “credited [Ermine] with
a year of coal mine employment where his earnings indicated that
he worked for at least 125 days in a year.” The Board ruled that the
judge erred because “the Eleventh Circuit has not adopted the
Sixth Circuit’s view that 125 working days equals one calendar year
of coal mine employment.” Instead, the Board ruled that the judge
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should have “first determine[d] whether [Ermine] engaged in coal
mine employment for a period of one calendar year, or partial pe-
riods totaling one year.” Only after concluding that requirement
was satisfied should the judge “determine whether [Ermine]
worked for at least 125 working days within that one-year period.”
The Board instructed the judge to make this two-step inquiry on
remand. It also instructed the administrative law judge to consider
whether Ermine’s coal mine employment “beginning and ending
dates . . . could be ascertained,” without regard to “average earn-
ings statistics” under the formula of section 725.101(a)(32)(iii). Be-
tween the Board’s decision and remand, Wynona died, so her and
Ermine’s son, Jeffrey Hayes, pursued the claim.
On remand, a new administrative law judge denied Hayes
benefits. The judge acknowledged the Board’s instructions to “first
determine whether [Ermine] engaged in coal mine employment
for a period of one calendar year, or partial periods totaling one
year,” before determining whether he “worked for at least 125
working days within that one-year period.” As an initial matter, the
judge acknowledged that the Board affirmed that Ermine worked
at least 6.58 years of “qualifying coal mine employment.” So, to
trigger the presumption, Hayes needed to establish another 8.42
years. Based on Cowin & Company’s records of the dates and lo-
cations of Ermine’s employment and letters written by Ermine, the
judge found that Ermine worked another 7.18 years of coal mine
employment—placing him at 13.76 years, ineligible for the pre-
sumption provided by section 921(c)(4). Without a presumption of
disabling pneumoconiosis, the judge concluded that Ermine did
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6 Opinion of the Court 24-11260
not “suffer[] from legal pneumoconiosis” and denied Hayes bene-
fits under the Act. The Board affirmed the judge’s finding of 13.76
years of coal mine employment.
Hayes petitioned this Court for review of the final order af-
firming the denial of benefits and “all rulings and orders underly-
ing” the final order. We allowed Cowin & Company to intervene
in the appeal.
II. STANDARDS OF REVIEW
We review decisions of the Benefits Review Board de novo.
U.S. Steel Mining Co. v. Director, OWCP, 386 F.3d 977, 984 (11th Cir.
2004). We review the decision of the administrative law judge
“only as to whether [it is] in accordance with law and supported by
substantial evidence in light of the entire record.” Id. We review de
novo the administrative “interpretation[] of the regulations imple-
menting the Act,” Black Diamond Coal Mining Co. v. Director, OWCP,
95 F.3d 1079, 1082 (11th Cir. 1996), but we “defer[] to agencies’ rea-
sonable readings of genuinely ambiguous regulations.” Kisor v.
Wilkie, 139 S. Ct. 2400, 2408 (2019).
III. DISCUSSION
In 1969, Congress enacted the Black Lung Benefits Act to
“provide benefits . . . to coal miners who are totally disabled due to
pneumoconiosis and to the surviving dependents of miners whose
death was due to such disease.” Pub. L. 91-173, § 401, 83 Stat. 742,
792 (1969) (codified at 30 U.S.C. § 901(a)). Pneumoconiosis or
“black lung disease” is a “chronic dust disease of the lung and its
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sequelae, including respiratory and pulmonary impairments, aris-
ing out of coal mine employment.” 30 U.S.C. § 902(b). The Act al-
lows the Secretary of Labor, “in accordance with the [Act] . . . and
the regulations promulgated” under the Act, to “make payments
of benefits in respect of total disability of any miner due to pneu-
moconiosis.” Id. § 921(a). A claimant may file for benefits against
his employer with a district director of the Office of Workers’ Com-
pensation Programs. See 20 C.F.R. §§ 725.303(a)(1), 725.451. A
party who disagrees with the director’s decision may seek review
from an administrative law judge. Id. § 725.451. And a party who
disagrees with the administrative law judge’s decision may appeal
to the Benefits Review Board. Id. § 725.481.
The regulations provide that a “miner” is “any person who
. . . has worked in or around a coal mine or coal preparation facility
in the extraction, preparation, or transportation of coal, and any
person who . . . has worked in coal mine construction or mainte-
nance in or around a coal mine or coal preparation facility.” Id.
§ 725.202(a). The regulations also provide that “miners are eligible
for benefits if they can establish four things: (1) that they suffer
from pneumoconiosis (2) that arose out of their coal mine employ-
ment (3) and contributed to (4) their total disability.” Fairfield S. Co.
v. Director, OWCP, 161 F.4th 791, 795 (11th Cir. 2025) (citing 20
C.F.R. § 725.202(d)).
A miner is entitled to a “rebuttable presumption that . . . [he]
is totally disabled due to pneumoconiosis” if he “was employed for
fifteen years or more in one or more underground coal mines” and
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has “a totally disabling respiratory or pulmonary impairment.” 30
U.S.C. § 921(c)(4). The regulations implement section 921(c)(4) by
incorporating the presumption of disabling pneumoconiosis where
“[t]he miner engaged in coal[] mine employment for fifteen years,
either in one or more underground coal mines, or in coal mines
other than underground mines in conditions substantially similar
to those in underground mines.” 20 C.F.R. § 718.305(b)(1)(i).
The Act does not define “year” for establishing this pre-
sumption. Instead, the Board depends on the definition of “year”
in a regulation, id. § 725.101(a)(32), adopted by the Department of
Labor in 2000. See Regulations Implementing the Federal Coal
Mine Health and Safety Act of 1969, as Amended, 65 Fed. Reg.
79920, 79959–60 (Dec. 20, 2000). Section 725.101(a)(32) provides
that “[y]ear means a period of one calendar year (365 days, or 366
days if one of the days is February 29), or partial periods totaling
one year, during which the miner worked in or around a coal mine
or mines for at least 125 ‘working days.’” It also defines a working
day as follows:
A “working day” means any day or part of a day for
which a miner received pay for work as a miner, but
shall not include any day for which the miner received
pay while on an approved absence, such as vacation
or sick leave. In determining whether a miner worked
for one year, any day for which the miner received pay
while on an approved absence, such as vacation or
sick leave, may be counted as part of the calendar year
and as partial periods totaling one year.
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20 C.F.R. § 725.101(a)(32).
The regulation also provides the steps that an adjudicator
must follow to calculate a miner’s employment based on the work-
ing days of a calendar year and the beginning and ending dates of
the miner’s employment as follows:
(i) If the evidence establishes that the miner worked
in or around coal mines at least 125 working days dur-
ing a calendar year or partial periods totaling one
year, then the miner has worked one year in coal mine
employment for all purposes under the Act. If a
miner worked fewer than 125 working days in a year,
he or she has worked a fractional year based on the
ratio of the actual number of days worked to 125.
Proof that the miner worked more than 125 working
days in a calendar year or partial periods totaling a
year, does not establish more than one year.
(ii) To the extent the evidence permits, the beginning
and ending dates of all periods of coal mine employ-
ment must be ascertained. The dates and length of
employment may be established by any credible evi-
dence including (but not limited to) company records,
pension records, earnings statements, coworker affi-
davits, and sworn testimony. If the evidence estab-
lishes that the miner’s employment lasted for a calen-
dar year or partial periods totaling a 365–day period
amounting to one year, it must be presumed, in the
absence of evidence to the contrary, that the miner
spent at least 125 working days in such employment.
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Id. § 725.101(a)(32)(i)–(ii).
The parties offer competing interpretations of sec-
tion 725.101(a)(32). Hayes argues that “where [Ermine] worked in
a coal mine for at least 125 days in one year,” the adjudicator
“should . . . consider[] [that year] a ‘year’ for the purposes of calcu-
lating the length of [his] coal mine employment.” The Director of
the Office of Worker’s Compensation Programs responds that the
text of section 725.101(a)(32) establishes that “‘year’ has two neces-
sary components”: a “full calendar year of [coal mine] employ-
ment” and “125 working days within that year.” We adopt Hayes’s
interpretation.
The text of section 725.101(a)(32)(i) provides that where the
“evidence establishes that the miner worked in or around coal
mines at least 125 working days during a calendar year or partial
periods totaling one year, then the miner has worked one year in
coal mine employment for all purposes under the Act.” Its plain
text supports Hayes’s interpretation that 125 working days in or
around coal mines within a 365/366-day period establishes a “year”
of coal mine employment. Contrary to the Director’s argument,
the text does not require that the 125 working days occur “during
a calendar year or partial periods totaling one year” within a 365 or
366-day employment relationship. That argument reads into sec-
tion 725.101(a)(32)(i) a new phrase that “calendar year or partial pe-
riods totaling one year” cannot bear. Accord Shepherd, 915 F.3d at
401 (adopting the same interpretation).
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Subsection (ii) confirms this reading. When a claimant
proves he was employed in coal mine employment for a calendar
year, he is entitled to a rebuttable presumption that he worked 125
days in that year. 20 C.F.R. § 725.101(a)(32)(ii). This presumption
does no work if the miner must come forward with evidence es-
tablishing both conditions—that the miner worked 125 days within
a calendar year and was employed for the entirety of that year.
Contrary to the Director’s argument, reading subsection (i)
according to its plain text does not render the clause “during a cal-
endar year” surplusage. For example, the clause dictates that a
miner who worked 125 days in coal mine employment over one and
a half years is not necessarily credited with a full year of coal mine
employment under subsection (i).
The Director also points to the “opening paragraph” of sec-
tion 725.101(a)(32) to argue that the third sentence, which provides
that when “determining whether a miner worked for one year, any
day for which the miner received pay while on an approved ab-
sence . . . may be counted as part of the calendar year,” 20 C.F.R.
§ 725.101(a)(32), “implies that a determination must be made as to
whether the miner was in fact employed for a full calendar year.”
But the text does not say that the adjudicator “must determin[e]
whether a miner was employed for a year”; it instead addresses
whether he “worked for one year.” Id. The sentence informs how
an adjudicator should review the evidence when applying sec-
tion 725.101(a)(32)(ii) to determine whether the miner was em-
ployed for 365/366 days.
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Cowin & Company maintains that “the use of the 125 day
approach” is “discretionary, not mandatory” because “the regula-
tions only require a reasonable method of calculation. But the
Board decision it cites does not support its argument. In Muncy v.
Elkay Mining Co., the Board stated that “[i]n determining the length
of coal mine employment, the administrative law judge may apply
any reasonable method of calculation.” BRB No. 11-0187, 2011 WL
6140705, at *4 (Nov. 30, 2011). Muncy rejected the contention that
the judge was “required to use the calculation method set forth” in
another provision because it provided “only that an administrative
judge ‘may’ use” that provision. Id. (emphasis added) (citing 20
C.F.R. § 725.101(a)(32)(iii)). The text of subsection (i) does not af-
ford an administrative law judge the same discretion. It states that
when the 125-day condition applies, “the miner has worked one
year in coal mine employment.” 20 C.F.R. § 725.101(a)(32)(i).
The Director next asks us to interpret section 725.101(a)(32)
in the light of its preamble in the Federal Register. The Director
cites Blanco v. Samuel, where we acknowledged that “a regulation’s
preamble can offer evidence of an agency’s contemporaneous un-
derstanding of its proposed rules.” 91 F.4th 1061, 1076 (11th Cir.
2024) (citation and internal quotation marks omitted). But Blanco
also reaffirmed that the language “the agency . . . formally use[d]
. . . in the regulation itself” always trumps “the language an agency
uses in a preamble.” Id. The “plain meaning” of the regulation has
the ultimate “persuasive value.” Id.
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In any event, the preamble does not clearly support the Di-
rector’s argument. The Director points to the following language
in the preamble as supporting his position:
The Department believes the partial periods must be
aggregated until they amount to one year of coal
mine employment comprising a 365-day period. Only
then should the factfinder determine whether the
miner spent at least 125 working days as a coal miner
during the year.
65 Fed. Reg. at 79960. But a few sentences earlier, the following
language of the preamble supports Hayes’s position: “If the miner
actually worked at least 125 days during a calendar year or partial
periods of different years totaling a 365-day period, then the miner
has worked one year for purposes of the program regulations.” Id.
Neither do section 725.101(a)(32)’s “predecessor regula-
tions” nor other circuits’ interpretations of them move the needle.
Those regulations materially differed from section 725.101(a)(32)
because they both barred a finding of a “year” when the miner did
not work 125 days during that year. See 20 C.F.R. § 725.493(b)
(1998); 20 C.F.R. § 718.301(a)–(b) (1998). By contrast, sec-
tion 725.101(a)(32)(i) makes 125 working days an alternative way
the adjudicator must find a “year.”
The Director finally argues that we should defer to his inter-
pretation of section 725.101(a)(32) if we think the regulation is am-
biguous. See Kisor, 139 S. Ct. at 2408. We decline to defer because
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subsection (i), by its “ordinary, everyday meaning[],” unambigu-
ously provides that if a coal miner worked in coal mine employ-
ment for 125 days during a 365/366-day period, he worked one
year under the Act. See ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS § 6, at 69
(2012).
Cowin & Company also argues that Hayes’s interpretation
of section 725.101(a)(32) would mean that the Secretary violated
the Administrative Procedure Act by enacting it. See 5 U.S.C.
§ 706(2)(A) (authorizing courts to “hold unlawful . . . agency ac-
tion” that is“not in accordance with law”). Yet Cowin & Company
does not ask us to invalidate the regulation. It instead asks us to
interpret section 725.101(a)(32) to avoid a purported conflict with
the Act. But avoidance doctrines “come[] into play only when, after
the application of ordinary textual analysis,” a provision is “found
to be susceptible of more than one construction.” Clark v. Martinez,
543 U.S. 371, 385 (2005). And, as explained earlier, Hayes’s inter-
pretation comports with the plain meaning of the text.
IV. CONCLUSION
We GRANT Hayes’s petition for review, VACATE the
Board’s decision, and REMAND for further proceedings.