Of the Sixth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-1633

KENNETH RUCKER,

Plaintiff, Appellant,

v.

LEE HOLDING CO., D/B/A LEE AUTO MALLS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Circuit Judge,

Siler, Senior Circuit Judge, *

and Lipez, Circuit Judge.

Allan K. Townsend, with whom Law Offices of Peter Thompson was

on brief, for appellant.

Barbara Eby Racine, Attorney, United States Department of

Labor, Howard M. Radzely, Solicitor of Labor, Steven J. Mandel,

Associate Solicitor, and Paul L. Frieden, Counsel for Appellate

Litigation, on brief for the Secretary of Labor, amicus curiae.

Jeffrey Neil Young and McTeague, Higbee, Case, Cohen, Whitney

& Toker, P.A. on brief for Maine AFL-CIO and Maine Employment

Lawyers Association, amici curiae.

Elizabeth J. Ernst, with whom James E. Fortin and Douglas

Denham Buccina & Ernst were on brief, for appellee.
Ann Elizabeth Reesman, McGuiness Norris & Williams, LLP, Robin

S. Conrad, Shane Brennan, and National Chamber Litigation Center,

Inc. on brief for Equal Employment Advisory Council and Chamber of

Commerce of the United States of America, amici curiae.

December 18, 2006
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LYNCH, Circuit Judge. Eligibility for leave under the

Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.,

depends in part on an employee having been employed by the relevant

employer "for at least 12 months." 29 U.S.C. § 2611(2)(A)(i).

This case of first impression among the courts of appeals raises

the issue of whether and under what circumstances an employee who

has had a break in service may count previous periods of employment

with the same employer toward satisfying this 12-month requirement.

Kenneth Rucker worked as a car salesman for Lee Auto

Malls (Lee) in Maine for five years. Rucker then left Lee, and

five years later rejoined Lee as a full-time employee. Seven

months after rejoining Lee, Rucker took medical leave.

Approximately two months later, Rucker's employment was terminated.

Rucker filed suit claiming that the termination was in violation of

the FMLA. The district court granted Lee's motion to dismiss,

holding that Rucker could not combine his previous period of

employment with his more recent period, and thus could not satisfy

the FMLA's 12-month employment requirement.

We hold that the FMLA itself is ambiguous as to whether

previous periods of employment count toward the 12-month

requirement, but regulations promulgated by the United States

Department of Labor (DOL), as interpreted by the DOL, establish

that previous periods of employment do count. Accordingly, we

reverse the judgment of the district court.
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I.

Because we are reviewing the district court's granting of

a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

our review is de novo, and we recite and take as true the facts

alleged in Rucker's complaint, drawing all reasonable inferences in

his favor. See Ramirez v. Arlequin, 447 F.3d 19, 20 (1st Cir.

2006).

Rucker worked for Lee as a car salesman for approximately

five years and then left Lee for approximately five years. On June

5, 2004, Rucker began working for Lee again. On or about January

20, 2005, approximately seven and a half months after Rucker

rejoined Lee, he ruptured a disc in his back. Over the next month

and a half, he received medical treatment for his back injury, and

he took medical leave at various times because pain prevented him

from working. On March 7, 2005, Lee terminated Rucker's

employment; at that point, Rucker had missed a total of thirteen

days of work since his injury, and he was still out on medical

leave.

On January 5, 2006, Rucker filed a complaint in federal

district court in Maine, alleging that Lee had terminated him for

taking medical leave to which he was entitled, in violation of the

FMLA. The FMLA provides that "an eligible employee" is entitled to

leave for, inter alia, "a serious health condition that makes the

employee unable to perform the functions of the position of such
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employee." 29 U.S.C. § 2612(a)(1)(D). The issue before us is

whether Rucker, at the time he took medical leave, was an "eligible

employee." An "eligible employee" is one who has been employed

(i) for at least 12 months by the employer

with respect to whom leave is requested . . .;

and

(ii) for at least 1,250 hours of service with

such employer during the previous 12-month

period.

29 U.S.C. § 2611(2)(A). In his complaint, Rucker alleged that he

had worked for Lee for more than 12 months, since he had previously

been employed by Lee for five years. Rucker also alleged that he

had worked more than 1,250 hours since rejoining Lee in June 2004,

by working more than forty hours per week.

In response, Lee filed a motion to dismiss, in which it

asserted that Rucker was not an "eligible employee." Lee did not

dispute that Rucker had satisfied the hours-of-service requirement

in 29 U.S.C. § 2611(2)(A)(ii), but it argued that Rucker's prior

period of employment could not be counted toward satisfying the 12-

month requirement in 29 U.S.C. § 2611(2)(A)(i). Lee argued that

"nothing in the plain language of the statute" permitted a prior

period of employment, "remote in time," to be "tack[ed] on" to the

current period. Thus, because Rucker had taken the leave at issue

seven to nine months after rejoining Lee, under Lee's theory he had

not been employed "for at least 12 months."
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Lee also argued that a regulation addressing the 12-month

requirement, promulgated by the DOL under the FMLA, supported its

position. That regulation provides as follows:

The 12 months an employee must have been

employed by the employer need not be

consecutive months. If an employee is

maintained on the payroll for any part of a

week, including any periods of paid or unpaid

leave (sick, vacation) during which other

benefits or compensation are provided by the

employer (e.g., workers' compensation, group

health plan benefits, etc.), the week counts

as a week of employment. For purposes of

determining whether intermittent/occasional/

casual employment qualifies as "at least 12

months," 52 weeks is deemed to be equal to 12

months.

29 C.F.R. § 825.110(b). According to Lee, the second and third

sentences of the regulation modify the first sentence to give the

only circumstances under which the 12 months "need not be

consecutive months." It argued that because Rucker had had no

"continuing connection" with Lee, such as continuing benefits,

during his five years away, he could not rely on his prior

employment to satisfy the 12-month requirement.

Rucker, on the other hand, argued that "[u]nder the plain

language of the FMLA," he had worked for Lee for more than 12

months. Focusing on the first sentence of the DOL regulation, he

read the regulation to support his contention that gaps in

employment, including his own five-year gap, do not preclude

eligibility under the FMLA.
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On March 10, 2006, the district court granted Lee's

motion to dismiss, holding that Rucker's prior period of employment

did not count toward satisfying the 12-month requirement. Rucker

v. Lee Holding Co., 419 F. Supp. 2d 1, 3 (D. Me. 2006). The court

reasoned that "[t]he [DOL] regulation on its face does not give any

indication that two periods of employment, separated by a

conceivably limitless amount of time, can be grouped to make an

otherwise ineligible employee eligible." Id. at 2. Focusing on

the second and third sentences in the regulation, the court held

that the regulation provided for "brief interruptions in an

employee's attendance," but made "no allowance for an employee who

severs all ties with the employer for a period of years." Id. at

2-3.

The court also noted that there was a lack of legislative

history on point and inferred from this a lack of "legislative

intent to allow employees to accumulate time despite periods of

long separation from employment." Id. at 3. In the absence of

legislative discussion or debate, the court found that Congress did

not intend to impose on employers the "onerous requirement" of

"allowing an employee to leave an employer for years or decades,

only to return and immediately become an eligible employee under

the twelve-month requirement." Id.
 There is debate over the appropriate role of canons of 1

construction and legislative history in the first step of the

Chevron analysis. See Perez-Olivo v. Chavez, 394 F.3d 45, 50 n.2

(1st Cir. 2005); 1 Pierce, Administrative Law Treatise § 3.6, at

191 (4th ed. 2002). There is little reason, though, to question

the use of such tools of statutory construction when, as here, we

use them merely to confirm that the statute is ambiguous. See

Perez-Olivo, 394 F.3d at 50 n.2.

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II.

We begin, as always, with the language of the statute and

ask "whether Congress has directly spoken to the precise question

at issue." Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 842 (1984). "If the intent of Congress is

clear, that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed intent of

Congress." Id. at 842-43.

Here, there is no such statutory clarity expressing

unambiguous intent. The words "has been employed . . . for at

least 12 months by the [relevant] employer" can be read either to

refer to only the most recent period of employment by the relevant

employer or to all periods of employment by that employer. Asking

how long an employee "has been employed" at a particular company is

an ambiguous question if he or she has had more than one period of

employment.

None of the canons of statutory construction invoked by

either side eliminate the statutory ambiguity. The district court 1

invoked the canon of the "dog that did not bark," reasoning that if
 We note that the burden on employers in adopting Rucker's 2

interpretation is not that returning employees will be immediately

eligible for leave; such employees must still satisfy the hours-ofservice requirement.

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Congress had intended to impose the "onerous requirement" of

allowing employees to count their prior employment, it would have

said so explicitly. Rucker, 419 F. Supp. 2d at 3. The rationale

for the canon, however, is that some interpretations would have

been so controversial as to inevitably have drawn comment in

Congress; in such a situation, Congress's silence can be taken to

mean that it chose the noncontroversial path. See Chisom v.

Roemer, 501 U.S. 380, 396 & n.23 (1991).

That rationale does not apply in this case. The district

court found that Rucker's interpretation of the statute would be,

if not controversial, at least "onerous" for employers. There is 2

no indication, however, that the potential burden on employers

would be so extreme as to have inevitably provoked comment in

Congress. This is a case in which "[w]e have little sense whether

any Member of Congress would have been particularly upset" by

either result. See Exxon Mobil Corp. v. Allapattah Servs., Inc.,

125 S. Ct. 2611, 2627 (2005). As a result, the absence of

congressional commentary directly on point reveals nothing, except

perhaps that Congress gave little consideration to this issue.

Rucker, for his part, invokes the canon that when

Congress uses different language in parallel provisions, it must
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have intended different meanings. See, e.g., Russello v. United

States, 464 U.S. 16, 23 (1983). He points to the absence in the

12-month requirement of the language "during the previous 12-month

period," which appears in the hours-of-service requirement. From

this difference, he argues that if Congress had intended the 12-

month requirement to refer to the immediately previous 12 months,

it would have said so. See Bell v. Prefix, Inc., 422 F. Supp. 2d

810, 813 (E.D. Mich. 2006) ("[I]f Congress had intended to require

12 months of continuous employment, it could simply have done so by

using the same language in both provisions.").

The trouble with Rucker's argument is that the two

eligibility requirements are not sufficiently parallel to draw

definitive conclusions from the difference in language. See City

of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424,

435-36 (2002). The statute specifies a period over which to

measure the hours of service, but not as to the 12-month

requirement. That difference in language could mean, as Rucker

argues, that the 12-month requirement can be met over a limitless

period. But that linguistic difference is equally consistent with

the interpretation that while hours of service, so long as within

the specified period, need not be continuous, some form of

continuity is required to satisfy the 12-month requirement.

Indeed, Lee invokes a competing canon to derive the

opposite result from the same statutory language. Lee argues that
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the two statutory provisions should be read together, as a

harmonious whole. See, e.g., United Sav. Ass'n of Tex. v. Timbers

of Inwood Forest Assocs., 484 U.S. 365, 371 (1988). Under this

view, the 12 months in the 12-month requirement are the same months

as the "previous 12-month period" referred to in the hours-ofservice requirement. Thus, the requirements are read in sequence,

with the first one establishing a continuous period that includes

at least the last 12 months, and the second one counting hours of

service within that "previous 12-month period." Although both

parties argue that their reading of the statute is "plain," the

competing readings, both plausible, in fact demonstrate the

ambiguity in the statute.

Nor does resort to legislative history demonstrate clear

congressional intent on the precise issue before us. The Senate

committee report specifically states that the 12 months in the 12-

month requirement "need not have been consecutive," but the report

provides no further guidance. S. Rep. No. 103-3, at 23 (1993), as

reprinted in 1993 U.S.C.C.A.N. 3, 25. Similarly, the DOL notes

that in years prior to the enactment of the FMLA, there had been

proposed bills that would have specifically required 12 consecutive

months of employment, but none of these bills was enacted. See

Family Leave Act of 1990, H.R. 5374, 101st Cong. § 101(1)(B)

(1990); Maternity Leave Act of 1989, H.R. 3445, 101st Cong.

§ 101(1)(B) (1989). In general, it is difficult to draw strong
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conclusions from Congress's failure to enact previous bills and

from the changes in language from one bill to another. See, e.g.,

NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 504-06 (1979)

(declining to infer from the rejection of a statutory amendment an

intent to enact the opposite view). More specifically, both of

these pieces of legislative history suggest that the 12 months can

be "not consecutive," but as we describe below, there remains an

issue of how broadly or narrowly to construe the words "not

consecutive." The legislative history does not resolve this issue.

We are, as a result, in a situation in which "Congress

has not directly addressed the precise question at issue," and in

which deference to a reasonable agency interpretation is

appropriate. Chevron, 467 U.S. at 843. Moreover, Congress

specifically instructed the DOL to "prescribe such regulations as

are necessary to carry out [the FMLA]," 29 U.S.C. § 2654, and the

regulations at issue here were promulgated under this statutory

authority after notice and comment, see 60 Fed. Reg. 2180, 2180

(Jan. 6, 1995). Congress clearly "expect[ed] the agency to be able

to speak with the force of law" in promulgating such regulations,

and courts must defer to the regulations' resolution of a statutory

ambiguity, so long as it is "reasonable." United States v. Mead

Corp., 533 U.S. 218, 229 (2001). Therefore, if the DOL regulation

at 29 C.F.R. § 825.110(b) clearly resolves this case, and is

reasonable, that would be the end of the matter.
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The parties, however, disagree on the proper

interpretation of the DOL regulation. Rucker focuses on the first

sentence -- stating that "[t]he 12 months . . . need not be

consecutive months" -- and reads it broadly to mean that all

periods of employment count toward the requirement. Lee instead

argues, and the district court accepted, that the first sentence is

limited by the second and third, so that non-consecutive months

count only when the employee maintains a continuing connection to

the employer, as through the continuing provision of benefits. 419

F. Supp. 2d at 2-3. Neither interpretation of the regulation is

unreasonable.

We are thus faced again with the task of interpreting

facially ambiguous language, this time contained in the DOL

regulation. When interpreting an agency regulation, courts must

give substantial deference to the agency's own interpretation of

its regulations, so long as that interpretation is consistent with

the regulation and "reflect[s] the agency's fair and considered

judgment on the matter in question." Auer v. Robbins, 519 U.S.

452, 461-62 (1997). In this case, the DOL has expressed the view

that the first sentence in its regulation, allowing for nonconsecutive months, is not limited by the sentences that follow,

discussing how to count weeks of employment. The DOL expressed

this view first in the regulatory preamble to the regulation and

then in an amicus brief filed in this case (as requested by this
The regulatory preamble was not brought to the attention of 3

the district court or of this court by the parties.

 Bridging rules in a pension plan determine the circumstances 4

under which a rehired employee can receive credit for previous

periods of employment in calculating the employee's pension

benefits. See, e.g., Marolt v. Alliant Techsystems, Inc., 146 F.3d

617, 618-19 (8th Cir. 1998). The rules can cover a wide variety of

circumstances, sometimes taking into account the length of prior

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court). Its views, which are consistently held and consonant with

the language of the regulation, are entitled to controlling weight

here.

The regulatory preamble explaining the regulation at

issue makes it clear that the DOL did not intend for nonconsecutive months to count only if the employee maintained a

continuing relationship with the employer. The preamble mentions 3

three proposed "limitations on a 12-month coverage test" that the

agency explicitly considered and rejected: (1) the exclusion of

"any employment experience prior to an employee resignation or

employer-initiated termination that occurred more than two years

before the current date of reemployment"; (2) the "limiting [of]

the 12 months of service to the period immediately preceding the

commencement of leave"; and (3) the computation of the "12 months

of service as computed under bridging rules applicable to [the]

employer's pension plans." 60 Fed. Reg. at 2185. This last

rejected limitation is particularly telling in that it indicates

that the DOL explicitly rejected tying the FMLA computation to the

computation used in providing pension benefits. The first 4
service, the length of the break in service, the length of the

current service, or some combination of the above. See id. 

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demonstrates that the DOL did not believe its regulation would

prevent employees from relying on previous periods of employment

even after a break measured in years.

Consistent with, and citing, its regulatory preamble, the

DOL maintains that a five-year gap in employment, such as the one

Rucker had, does not prevent an employee from using his earlier

employment to satisfy the 12-month requirement. Deference to this

view is appropriate here, where the views previously expressed in

the regulatory preamble are supported by the amicus brief. See

Auer, 519 U.S. at 462. Although the preamble does not explicitly

state that a five-year gap in employment would not be

disqualifying, it gives no indication that the agency would

distinguish between the two-year gap explicitly described as

permitted and a five-year gap. There is no risk here that the

agency's view is any sort of "post hoc rationalization," rather

than "the agency's fair and considered judgment," and thus there is

nothing that might undercut deference to the DOL on this point.

See id. (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212

(1988)) (internal quotation marks omitted).

Furthermore, for all the reasons we have described above,

the DOL's interpretation of its regulation is reasonable, and that

regulation, so interpreted, is a reasonable exercise of the DOL's
 The DOL reasons that one of the rationales it gave in the 5

regulatory preamble for permitting a gap of two years was that "the

information regarding previous employment with an employer . . .

[could] be confirmed by the employer's records." 60 Fed. Reg. at

2185. As the DOL notes, its regulations under the FMLA only

require that employers keep employment records for three years, see

29 C.F.R. § 825.500(b), with some states requiring as many as six

years, see N.J. Admin. Code § 12:56-4.4. Thus, after a gap of five

or six years, an employer might not have records of a returning

employee's previous employment, undermining the DOL's rationale for

permitting breaks in service. This rationale, though, is not

entirely consistent with other, competing rationales the agency

gave for permitting breaks in service. See 60 Fed. Reg. at 2185.

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statutory authority. Therefore, consistent with the DOL

regulation, as interpreted by the DOL, we hold that the complete

separation of an employee from his or her employer for a period of

years, here five years, does not prevent the employee from counting

earlier periods of employment toward satisfying the 12-month

requirement. As a result, Rucker pleaded sufficient facts in his

complaint to demonstrate that he was, at the time he took leave, an

"eligible employee" under the FMLA. Because the DOL has reasonably

interpreted the relevant period to include prior employment five

years earlier, we conclude that Rucker's complaint states a claim.

We go no further than deciding whether the dismissal in

this case was error. The DOL amicus brief states its view that a

break in service of over five years would be at the "outer bounds

of what is permissible," apparently suggesting that we state the 5

same as a judge-fashioned rule. That is not our role. We agree

with the DOL that there are important policy issues involved here;

the point of the Chevron doctrine is that the DOL, in the exercise
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of its statutory authority, must resolve these issues in the first

instance. For a court to fashion as a matter of law a limiting

rule not fairly contained in the existing regulatory language, but

only suggested in an amicus brief, ultimately undermines

administrative processes and places policy decisionmaking power in

the wrong institution. See Christensen v. Harris County, 529 U.S.

576, 587-88 (2000).

The judgment of the district court is reversed, and the

case is remanded for further proceedings consistent with this

opinion. Costs are awarded to Rucker.