“Appellants are required to present an argument and cita- tions to supporting authority for each contention in their brief. They must provide meaningful analyses for each issue and present more than con- clusory allusions as to their arguments for the issues to be properly raised on appeal.” (citing Fed. R. App. P. 28(a)(8)(A))
How later courts described this case
- “Appellants are required to present an argument and cita- tions to supporting authority for each contention in their brief. They must provide meaningful analyses for each issue and present more than con- clusory allusions as to their arguments for the issues to be properly raised on appeal.” (citing Fed. R. App. P. 28(a)(8)(A))
Written by the judges who cited it.
The opinion
Case: 23-20290 Document: 99-1 Page: 1 Date Filed: 08/08/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 23-20290 August 8, 2024
____________ Lyle W. Cayce
Clerk
Beau Kelley; Alvin Perez Lopez; Anthony Martin;
Austin Braswell; Carlos Perez, Et al.
Plaintiffs—Appellants,
versus
Alpine Site Services, Incorporated,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-1152
______________________________
Before Southwick, Haynes, and Graves, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
The Plaintiffs sued their former employer Alpine Site Services, Inc.
for violating the Fair Labor Standards Act (“FLSA”) by not paying them the
required overtime pay. Alpine argued no such pay was owed because the
Motor Carrier Act (“MCA”) exemption applied. The district court agreed
and dismissed the suit with prejudice. We AFFIRM.
The FLSA mandates that no employer shall require its employees to
work more than 40 “hours unless such employee receives compensation for
his employment in excess of [40] hours . . . at a rate not less than [1.5] times
Case: 23-20290 Document: 99-1 Page: 2 Date Filed: 08/08/2024
No. 23-20290
the regular rate” he is paid. 29 U.S.C. § 207(a)(1). This “overtime-pay rule
is subject to several enumerated exemptions.” Cunningham v. Circle 8 Crane
Servs., L.L.C., 64 F.4th 597, 600 (5th Cir. 2023) (citation omitted). One such
exemption is the MCA exemption, which excuses common and private motor
carriers from their obligation to pay overtime to any employee over “whom
the Secretary of Transportation has power to establish qualifications and
maximum hours of service pursuant to” 49 U.S.C. § 31502. 29 U.S.C.
§ 213(b)(1); 49 U.S.C. § 31502(b)(1)–(2); see 29 C.F.R. § 782.2.
The MCA exemption applies only to employees who “(1) [a]re
employed by carriers whose transportation of passengers or property by
motor vehicle is subject to” the Secretary of Transportation’s jurisdiction
“and (2) engage in activities of a character directly affecting the safety of
operation of motor vehicles in the transportation on the public highways of
passengers or property in interstate or foreign commerce within the meaning
of the [MCA].” 29 C.F.R. § 782.2(a). Four classes of employees are
typically covered by the MCA exemption if their work directly affects the
safety of motor vehicles in interstate commerce: drivers, driver’s helpers,
loaders, and mechanics. § 782.2(b)(1)–(2).
The Plaintiffs’ first issue is that the district court erroneously
classified them as “loaders” and therefore applied the MCA exemption. To
determine whether an employee falls into one of the covered employee
categories, “neither the name given to his position nor that given to the work
that he does is controlling”; it is the character of his job duties and activities.
§ 782.2(b)(2). For purposes of the MCA exemption, a loader is an employee
“whose duties include, among other things, the proper loading of his
employer’s motor vehicles so that they may be safely operated on the
highways of the country.” § 782.5(a). These duties “directly affect[] ‘safety
of operation’ so long as [the employee] has responsibility when such motor
vehicles are being loaded, for exercising judgment and discretion in planning
2
Case: 23-20290 Document: 99-1 Page: 3 Date Filed: 08/08/2024
No. 23-20290
and building a balanced load or in placing, distributing, or securing the pieces
of freight in such a manner” that the vehicles’ safety is not jeopardized. Id.
Numerous witnesses, including several Plaintiffs, testified at trial that
Alpine employees use their own judgment in loading vehicles; Alpine
employees regularly load vehicles; there is not always supervision and
direction as to loading; crew members like the Plaintiffs make independent
loading decisions; and every crew member is trained how to load trailers
safely and will be called on to do so as needed. The district court credited
this testimony and found that Alpine employees “load and secure”
equipment; the Plaintiffs “did in fact load” such equipment; and the
“Plaintiffs shared in the exercise of discretion regarding loading the trailers
and their loading duties had a significant effect on the safety of [Alpine’s]
vehicles.” The Plaintiffs presented no contradictory evidence to challenge
these findings. Without such evidence, they failed to establish clear error or
how the district court’s factual findings were inconsistent with the evidence.
See Guzman v. Hacienda Recs. & Recording Studio, Inc., 808 F.3d 1031, 1036
(5th Cir. 2015).
Further, it is not required that a loader’s sole job responsibility be to
load and unload freight. Even full-duty loaders “may engage in some
activities which do not affect safety of operation” and are not recognized as
activities within the statutory definition of loading. Levinson v. Spector Motor
Serv., 330 U.S. 649, 670 (1947); see 29 C.F.R. § 782.5(a). All that is required
is for employees “to devote . . . a ‘substantial part’ of [their] time to activities
directly affecting safety of operation.” Levinson, 330 U.S. at 681. If loading
is no more than a “trivial, casual or occasional . . . part of an employee’s
activities,” the employee cannot be classified as a loader. Wirtz v. Tyler Pipe
& Foundry Co., 369 F.2d 927, 930 (5th Cir. 1966) (quoting Pyramid Motor
Freight Corp. v. Ispass, 330 U.S. 695, 708 (1947)). Here, trial testimony
established that one of a crew member’s regular duties is to load trailers on a
3
Case: 23-20290 Document: 99-1 Page: 4 Date Filed: 08/08/2024
No. 23-20290
weekly basis and that the Plaintiffs were regularly called upon to load. The
Plaintiffs testified they were required to load at least one to three times per
week and loading could amount to 40 percent of their job responsibilities.
There is no specific, minimum frequency with which an employee
must engage in work to which the MCA exemption would apply. We agree
with another panel’s assessment that “we do not require a particularly high
concentration of qualifying work.” Amaya v. NOYPI Movers, L.L.C., 741 F.
App’x 203, 206 (5th Cir. 2018). Because the work is evaluated on a class-
wide basis, we also agree that the MCA exemption can apply “to employees
who rarely, or never engage in” safety-affecting activities. Id. (citation
omitted). We conclude that, when loading at times amounts to 40 percent of
the work and employees are required to load at least one to three times per
week, the MCA exemption applies. Indeed, one of our precedents found the
MCA exemption applied when the degree of relevant work was comparable
to this case. See Songer v. Dillon Res., Inc., 618 F.3d 467, 475–76 (5th Cir.
2010). 1
The Plaintiffs also argue the MCA exemption must be determined on
a week-by-week basis. Under this exemption, “if the bona fide duties of the
job performed by the employee” subject the employee to be or to likely be
“called upon in the ordinary course of his work to perform, either regularly
or from time to time, safety-affecting activities . . . he comes within the
exemption in all workweeks when he is employed at such job.” 29 C.F.R.
§ 782.2(b)(3). This “rule applies regardless of the proportion of the
_____________________
1
The Supreme Court recently abrogated Songer and other related precedents. See
Encino Motorcars, LLC v. Navarro, 584 U.S. 79, 89 (2018). We agree, however, with
another panel that “the central analyses of these [abrogated] decisions remain unaffected
because they concern the interpretation and application of FLSA-implementing
regulations, not the statute itself.” Amaya, 741 F. App’x at 205 n.2 (referencing Encino
Motorcars, 584 U.S. at 89).
4
Case: 23-20290 Document: 99-1 Page: 5 Date Filed: 08/08/2024
No. 23-20290
employee’s time or of his activities which is actually devoted to such safety-
affecting work . . . and the exemption will be applicable even in a workweek
when the employee happens to perform no work directly affecting ‘safety of
operation.’” Id.
The MCA exemption thus applies in all work weeks, even those in
which the employee performs only non-safety-affecting duties, so long as an
employee’s continuing duties are safety-affecting. Songer, 618 F.3d at 475. It
was therefore not error for the district court to conclude Alpine was not
required to prove the MCA exemption applied to the Plaintiffs’ employment
on a week-by-week basis.
Because the Plaintiffs were regularly called upon in the ordinary
course of their work to perform, and did perform, safety-affecting work, they
qualified under the MCA exemption in all workweeks they were employed
with Alpine. It was thus not clearly erroneous for the district court to find on
this record that the “Plaintiffs, as part of their job duties, were expected to
and did in fact load” materials onto Alpine trailers, and “[t]hese job duties
were not so trivial . . . as to not affect the safety of Alpine’s operations.” See
Guzman, 808 F.3d at 1036.
The Plaintiffs’ second claim of error is that the district court abused
its discretion when it denied the Plaintiffs’ motion to amend the court’s
factual findings. See Fed. R. Civ. P. 52(b). The argument is made in one
sentence on the last page of their brief. In summary, which is not much
shorter than its entirety, the Plaintiffs argue it was error to deny the motion
“to add or amend findings of fact regarding the duties and responsibilities”
of the Plaintiffs.
Appellants are required to present an argument and citations to
supporting authority for each contention in their brief. Fed. R. App. P.
28(a)(8)(A). They must provide meaningful analyses for each issue and
5
Case: 23-20290 Document: 99-1 Page: 6 Date Filed: 08/08/2024
No. 23-20290
present more than conclusory allusions as to their arguments for the issues to
be properly raised on appeal. United States v. Scroggins, 599 F.3d 433, 446–
47 (5th Cir. 2010); see also Ard v. Rushing, 597 F. App’x 213, 221 n.7 (5th Cir.
2014). That did not occur here. We therefore do not consider this argument.
AFFIRMED.
6