5th Circuit Decides FMLA Case Based on the "Grand Canyon Rule"

Bellum v. PCE Constructors, Inc. (5th Cir. 4/25/05)PCE is in the construction industry. Its principal place of business is Baton Rouge, Louisiana, though it takes on projects across several southern states. During the time giving rise to the events in this case, PCE was building a facility for Fabricated Pipe, Inc (FPI) in Fernwood, Mississippi. Bellum was an employee of PCE, working at the FPI site. PCE had a staff of 14 at its headquarters in Baton Rouge and 41 at the FPI site. The company terminated Bellum while he was on leave for heart surgery. Bellum filed an FMLA action.

The defendant did not dispute that Bellum's heart problems qualify as a "serious health condition." What they did dispute, however, is whether Bellum is an "eligible employee." PCE maintains that Bellum falls within the exception to the definition of eligible employee: "any employee of an employer who is employed at a worksite at which such employer employs less than 50employees if the total number of employees employed by the employer within 75 miles of that worksite is less than 50." 29 U.S.C. § 2611(2)(B)(ii). This exception applies, PCE contends, because its headquarters, as measured over public roads, is more than seventy-five miles from the FPI worksite. Bellum counters that the exception does not apply because the linear distance, i.e. "as the crow flies," between FPI and the Baton Rouge headquarters is less than 70 miles.

The Fifth Circuit sided with the employer. Obviously, that is not too surprising to anyone who practices in the Fifth Circuit. What is a little odd, however, is the rather creative reasoning used to support the decision. Here it is:

"The error in Bellum's [the employee] approach may be illustrated as follows. Suppose that Company A had its headquarters along the south rim of the Grand Canyon and a branch office on the other side only 25 miles away as the crow flies. Suppose further, quite plausibly, that the shortest distance between the two by public roads is 120 miles. Now, imagine that Company B has its headquarters next to a straight-line interstate highway and a branch office 80 miles away also right along the interstate. Under Bellum's reading of the statute, Company A would be bound by the FMLA but Company B would not be. Given that the purpose of the exception at 29 U.S.C. § 2611(2)(B)(ii) is to relieve the burden of FMLA compliance [i.e. unpaid leave for employee recovering from heart surgery] on companies with widely dispersed operations, it would make no sense to construe the statute in away that subjects Company A but exempts Company B."

I'm stunned.

Employee Bellum pointed out that this same court previously concluded that measuring "as the crow flies" is the proper method for measuring the 100-mile distance for service of process under what was then FED. R. CIV. P. 4(f) and is now FED. R. CIV. P. 4(k)(1)(B). In point of fact, the court had specifically rejected the use of road miles because "that standard lacks uniformity and simplicity." Sprow v. Hartford Ins. Co., 594 F.2d 412 (5thCir. 1979).

Not content to rely solely on the canyon argument, the court declares the phrase "75-miles" to be ambiguous and therefore subject to interpretation by administrative regulation. In this case, the Secretary of Labor issued a regulation stating that the "75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the eligible employee needing leave is employed." The regulation goes on to provide that the 75-miledistance should only be measured as the crow flies when there is no "available surface transportation between worksites." Giving the Secretary deference, the court elects to follow the regulation and pours the employee out.

This is interesting only in that the 5th Circuit is not known to be overflowing with deference for administrative agencies, Supreme Court opinions, etc. I am left wondering whether the same deference would have been shown if the Secretary's regulation conflicted with the court's Grand Canyon Rule.