Petition for Writ of Certiorari — Valdivieso v. Atlas Air, Inc

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OFFICE OF THE CLER«

No.

In The

Supreme Court of the United States

BRANDON VALDIVIESO and DAVID KICKZALES, on

behalf of themselves and all others similarly situated,

Petitioners,

vs.

ATLAS AIR, INC.,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

WILLIAM R. AMLONG

Counsel of Record

AMLONG & AMLONG, P.A.

Attorneys for Petitioner

500 Northeast Fourth Street

Second Floor

Ft. Lauderdale, FL 33301

(954) 462-1983

QUESTION PRESENTED FOR REVIEW

I. Are wage-and-hour actions brought in state

courts pursuant to the Fair Labor Standards Act, which

provides that such actions"may be maintained in any

court of competent jurisdiction," non-removable?

II. | Doesthelegislative history of the Fair Labor

Standards Act — which Congress amended to exempt

transportation workers (seamen, railread employees,

over-the-road truck drivers and air-carrier «mployees)

whose maximum hours were regulated by other federal

‘laws — show an intention not to exempt from overtime

protection those non-pilot air-carrier employees whose

overtime is rot otherwise regulated?

LIST OF PARTIES ©

The parties to the proceedings in the court whose

judgment is sought to be reviewed here include only those

who appear in the caption of the case.

ill

TABLE OF CONTENTS

Page

II his o 06s bbb SCAbSa sacesoweds i

I eis CO Oks Jude va sess codecs ii

i Sve eve b ewevdd vave eevee ili

Table of Cited Authorities ...........ccccceeccees Vv

eG EN cid sb Wik seals ba ve ee aedeeee 2

Statement OF PUTISGICHON ...... 06. cccccccccccncs 2

s.r eeneacesns 2

nec sb vhasaeveeseuenes 5

Reasons for Granting the Writ ................... 6

S The United States Court of Appeals

for the Eleventh Circuit has entered

a decision that is in conflict with the

decision of another United States

Court of Appeals on the issue of

whether actions brought in state

courts pursuant to the Fair Labor

Standards Act are subject to removal

II. The United States Court of Appeals

for the Eleventh Circuit has decided

an important question of federal law

concerning an exemption to the Fair

Labor Standards Act, one which

should be, but has not been, decided

by this Court, i.e.: does the "air-

carrier" exemption remove

maximum-hour protection from all

air-carrier employees, regardless of

whether any federal agency polices

ey ID, os code sc ucees keeasde 15

GIN vp.ndinns 5 03806k kes ae 19

TABLE OF CITED AUTHORITIES

Cases Cited: Page

A. H. Phillips, Inc. v. Walling,

SEA UD. GOO CIGD occ ccscccceces erab an 19

Baldwin v. Sears, Roebuck & Co.,

667 F.2d 458, 459-461 (5th Cir. 1982)..... 9,13

Breuer v. Jim's Concrete of Brevard, Inc.,

292 F.3d 1308 (11th Cir. 2002), petition

for cert. filed, 71 U.S.L.W. 3169

(U.S. Sept. 3, 2002) (No. 02-337) ..... passim

Carter v. Hill & Hill Truck Line, Inc.,

259 F.Supp. 428 (S.D. Tex. 1966) .......... 12

Castillo v. Texans Can!,

Slip Copy, No. CIV.A.3:02-CV-0587-R,

2002 U.S.Dist. LEXIS 13555, 2002

WL 1733727 (N.D. Tex. July 25, 2002) ....... 8

Caterpillar, Inc. v. Lewis,

OD Si Te CE 56h ih dhs ch oda 12

Collins v. Horizon Training Centers, L.P.,

Slip Copy No. CIV 3:02-CV-1310-L, 2002

U.S. Dist. LEXIS 19493, 2002 WL 31305105

(N.D. Tex. October 10, 2002) ............... 8

Cosme Nieves v. Deshler,

786 F.2d 445 (ist Cir. 1986) .......... passim

George Moore Ice Cream Co. v. Rose,

as Oe NN is oo ooo eds cs 14

Haun v. Retail Credit Co.,

420 F.Supp. 859 (W.D. Pa. 1976) ........... 12

Johnson v. Butler Bros.,

162 F.2d 87 (8th Cir. 1947)............ passim

LeMay v. Budget Rent A Car Systems, Inc.,

993 F.Supp. 1448 (M.D. Fla. 1997) .......... 9

Lisai v. Chevron Stations,

Slip Copy No. CIV 3:97-CV-1288-G,

1997 U.S. Dist. LEXIS 20841, 1997 WL

694705 (N.D. Tex. Nov. 4,1997) ............ 9

Lloyd v. Classic Chevrolet, Inc.,

Slip Copy No. CIV 4:01-CV-896-Y,

2002 U.S. Dist. LEXIS 1604, 2002

WL 989470 (N.D. Tex. Jan. 31, 2002) ....... 9

Maloy v. Friedman,

80 F.Supp. 290 (N.D. Ohio 1948) .......... 14

Maranto v. Ken Jenne,

Slip Copy No. 00-7463-Civ-Dimitrouleas

(B.D. FER BO. Os WOOF kins ko hick e 00 505 ac ks 9

Northwest Airlines, Inc. v. Jackson, |

185 F.2d 74 (8th Cir. 1950) ...............- 16 |

Pan American World Airways, Inc.

v. United Brotherhood of Carpenters

& Joiners of America,

924 F.ad 217 (otha Cle. 1968) .cccccccccccces 16

Roland v. United Airlines, Inc.,

75 F.Supp. 25 (N.D. Ill. 1947) .............. 16

Vii

St. Francis College v. Al-Khazraji,

481 US 604 (1987)... ccc ccc cece cece, 19

Smallwood v. Gallardo,

7B UB. BB AGG) oon cccccccccccecccecees 14

United States v. American Trucking

Association, Inc.,

310 U.S. 534 (1940) ................... 16, 19

Valdiviseo v. Atlas Air, Inc.,

305 F.3d 1283 (11th Cir. 2002)........... 2,13

Valdiviseo v. Atlas Air, Inc.,

128 F. Supp. 2d 1371 (S.D. Fla.2001) ........ 2

Verrett v. The Sabre Group, Inc.,

70 F.Supp.2d 1277 (N.D. Okla. 1999) ....... 16

Wilkins v. Renault Southwest, Inc.,

227 F.Supp. 647 (N.D. Tex. 1964) ....... 12-13

Statutes Cited: Page

Age Discrimination in Employment Act,

9D UBC. §GO1, OP 900. 0... ccc cccsccccccs 8-9

viii

Fair Labor Standards Act of 1938 ............ passim

Family Medical Leave Act, 29 U.S.C. § 2601 et seg. ... 9

| BUT TTCCT TT eT T TET TT Te 18

National Labor Relations Act .................... 16

Railway Labor Act, 45 U.S.C. § 181, et seq. .... 2, 16,17

A Ee SD hb 0 cb bach pedbadciee doves 17

Op Ss EE os bw ob hie ded emke hs cuencecenace 2

6G ci bce Sle wd ee Rikske ce Cbseecs 6

0 Ue ck. chet eb raerWbee eek 10, 11

Sr ee ED 6 sw 508 ecdeeedeeséencess 5, 7, 8, 10

ge te EOE TT eT CET ET Tr eT Tere Se tT ere 10

EE Ss cb cchuaneaeshiveecéaeuea 10

Se PO G0 bs caw eeeN ei duececésbbandansen 2

eee ee ae ee 3,4

aes EE 6.00 0600nicded des debicestsead 3,4,5

STE, Se hic ackae Wii ec cde esseebek 17

SEG Se 5 6 ose SRK eee ENO eA 17

SPURL. SO aa benstsensdv ccd cies 2, 6,17

Re ee I Sh hiv Pi oa esd 0 sd les cakcieiecd 17

Sk a rr ee 3-4, 5, 7, 10

OD ae eI ok 05s Fs akc ds veicccdbcnce. 9

Federal Rules Cited: Page

Federal Rule of Civil Procedure 12(h)(3) .......... 12

Regulations Cited: Page

14 C.F.R., Ch. I, Subch. G., Part 121, Subpart R ..... 17

Rr ED Fb 5 SbliWi bss daiioeecidcae 17-18

Decision No. 83, National Labor Board

RRS pe ee aera ee 16-17

Miscellaneous: Page

81 CONG. REC. 7875 (1937) .........ccceeese 16-17, 18

CONF. REP., 83 CONG. REC. 9249 (1938) ........ 14,17

WIIG. RG, SIGS (HOB) isi vck occ ove vwccccee 14

BUREAU OF LABOR STATISTICS, DEPARTMENT OF LABOR,

NATIONAL OCCUPATIONAL EMPLOYMENT AND

WAGE ESTIMATES (2000) ...........ccccccccccecs 15

FEDERAL JUDICIAL CASELOAD STATISTICS (2001) ..... 11

FEDERAL JUDICIAL CASELOAD STATISTICS (2002) ..... 11

H.R. 7200, 75th Cong., ist Sess. (1937) ....... 13-14, 17

H. R. Rep. No. 2182, 75th Cong., 3d Sess. (1938) ... 18

S. 2475, 75th Cong,., ist Sess. (1937) ........... 13, 17

APPENDIX

Appendix A — Opinion of the United States Court of

Appeals for the Eleventh Circuit, Dated September

OE DOD on koe A ee vines 1a

Appendix B — Order Denying Motion to Remand, United

States District Court for the Southern District of

Florida, Dated January 18,2001 ........... ga

Appendix C — Order Granting Defendant's Motion for

Summary Judgment, United States District Court

for the Southern District of Florida, Dated

POOUIGT BI, BOGE oo oc cccccnsevecssceees 17a

Appendix D — District court cases, collected in Breuer v.

Jim's Concrete of Brevard, Inc., holding that claims

brought pursuant to the Fair Labor Standards Act of 1938

I io nein hndsandenmckees een eee 29a

Appendix E — District court cases, collected in Breuer v.

Jim's Concrete of Brevard, Inc., holding that claims

brought pursuant to the Fair Labor Standards Act of 1938

SUD DEON 6 6 io hI 32a

No.

In The

Supreme Court of the United States

BRANDON VALDIVIESO and DAVID KICKZALES, on

behalf of themselves and all others similarly situated,

Petitioners,

US.

ATLAS AIR, INC.,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Brandon Valdivieso and David

Kickzales, respectfully petition for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Eleventh Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

Valdiviseo v. Atlas Air, Inc., 305 F.3d 1283 (11th Cir.

2002) and is reproduced in the Appendix filed herewith

(“App.”) at 1a. The opinion of the district court

concerning removal is reported at Valdiviseo v. Atlas Air,

Inc., 128 F. Supp. 2d 1371 (S.D. Fla. 2001) and is

reproduced at 9a. The opinion of the district court

granting defendant's motion for summary judgment was

not reported; it is reproduced at 172.

STATEMENT OF JURISDICTION

The decision of the United States Court of Appeals

for the Eleventh Circuit was rendered on September 20,

2002. No rehearing was sought.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

STATUTES INVOLVED IN THIS CASE

The pertinent provisions of the Fair Labor

Standards Act of 1938, as amended, (FLSA) 29 U.S.C. §

201, et seq., are set forth below:

§ 213 Exemptions

(b) Maximum hour requirements. The provisions

of section 7 shall not apply with respect to —

(3) any employee of a carrier by air subject

to the provisions of title II of the Railway

Labor Act....

§ 216 Penalties

(b) Damages; right of action; attorney's fees and

costs; termination of right of action

Any employer who violates the provisions of

section 206 or section 207 of this title shall be

liable to the employee or employees affected in the

amount of their unpaid minimum wages, or their

unpaid overtime compensation, as the case may be,

and in an additional equal amount as liquidated

damages. Any employer who violates the

provisions of section 215(a)(3) of this title shall be

liable for such legal or equitable relief as may be

appropriate to effectuate the purposes of section

215(a)(3) of this title, including without limitation

employment, reinstatement, promotion, and the

payment of wages lost and an additional equal

amount as liquidated damages. An action to

recover the liability prescribed in either of

the preceding sentences may be

maintained against any employer

(including a public agency) in any Federal

or State court of competent jurisdiction by

any one or more employees for and in

behalf of himself or themselves and other

employees similarly situated. No employee

shall be a party plaintiff to any such action unless

he gives his consent in writing to become such a

party and such consent is filed in the court in

which such action is brought. The court in such

action shall, in addition to any judgment awarded

to the plaintiff or plaintiffs, allow a reasonable

attorney's fee to be paid by the defendant, and

costs of the action. The right provided by this

subsection to bring an action by or on behalf of any

employee, and the right of any employee to become

a party plaintiff to any such action, shall terminate

upon the filing of a complaint by the Secretary of

Labor in an action under section 217 of this title in

which

(1) restraint is sought of any further delay in

the payment of unpaid minimum wages, or

the amount of unpaid overtime

compensation, as the case may be, owing to

such employee under section 206 or section

207 of ‘this title by an employer liable

therefor under the provisions of this

subsection or

(2) legal or equitable relief is sought as a

result of alleged violations of section

215(a)(3) of this title.

(Emphasis supplied.)

The pertinent provision of the removal statute, 28

U.S.C. § 1441, is set forth below:

§ 1441 Actions Removable Generally

(a) Except as otherwise expressly provided by Act

of Congress, any civil action brought in a State

court of which the district courts of the United

States have original jurisdiction, may be removed

by the defendant or the defendants, to the district

court of the United States for the district and

division embracing the place where such action is

pending. For purposes of removal under this

bs)

chapter, the citizenship of defendants sued under

fictitious names shall be disregarded.

STATEMENT OF THE CASE

Brandon Valdivieso and David Kickzales worked

for Atlas Air, Inc. as in-flight load masters (both) and a

ramp supervisor (Valdivieso). Their jobs were to oversee

the loading of cargo planes and (as load masters) to

accompany cargo on flights for Atlas Air's clients, which

generally were airlines to whom Atlas Air outsourced

planes and crews. Both Valdivieso and Kickzales worked

in excess of 40 hours a week without being paid overtime.

They were not subject to any regulation by the Federal

Aviation Administration.

Valdivieso and Kickzales filed suit pursuant to the

overtime provisions of the FLSA, 29 U.S.C. § 207, in the

Circuit Court of the Seventeenth Judicial Circuit, in and

for Broward County, Florida. Atlas Air removed the case

to the United States District Court for the Southern

District of Florida. The district court, Hon. Adalberto

Jordan, J., denied Valdivieso and Kickzales' motion to

remand. The district court held that the 1948 amendment

to the removal statute provided that federal-claim cases

may be removed from state court "[e]xcept as otherwise

expressly provided by Act of Congress..." 28 U.S.C. §

1441(a). That amendment, according the district court,

trumps the language of 29 U.S.C. § 216(b) that provides

that an action brought by an employee pursuant to the

FLSA "may be maintained against any employer ... in any

Federal or State court of competent jurisdiction."

The district court, Hon. Ted E. Bandstra, United

States Magistrate Judge, held on December 21, 2002, that

Valdivieso and Kickzales, even though their maximum

hours were regulated by no federal agency, were exempted

from the overtime protections of the Act by the "air-

carrier" exemption, 29 U.S.C. § 213(b)(3).

The Circuit Court of Appeals had jurisdiction

pursuant to 28 U.S.C. § 1291 to review the district court’s

final decision.

A panel of the circuit court affirmed the denial of

the motion to remand based upon another panel's

decision in Breuer v. Jim's Concrete of Brevard, Inc., 292

F.3d 1308, 1309 (11th Cir. 2002), petition for cert. filed,

71 U.S.L.W. 3169 (U.S. Sept. 3, 2002) (No. 02-337), which

was handed down subsequent to Valdiviseo and Kickzales'

initial brief. The panel also affirmed the grant of

summary judgment concerning the scope of the air-carrier

exemption.

REASONS FOR GRANTING THE WRIT.

The United States Court of Appeals for the

Eleventh Circuit has entered a decision that is in

conflict with the decision of another United States

Courts of Appeals on the issue of whether actions

brought in state courts pursuant to the Fair Labor

Standards Act are subject to removal.

The Court should grant the petition for a writ of

certiorari to establish uniformity amongst the circuits on

the issue of whether actions brought in state courts

pursuant to the Fair Labor Standards Act of 1938 are

removable. The conflict is whether the Act's provision

that an action brought pursuant to it "may be maintained

against any employer ... in any Federal or State court of

competent jurisdiction," 29 U.S.C. § 216(b), constitutes an

express provision against removal, as envisioned by the

1948 amendment to the removal statute, 28 U.S.C. §

1441(a). The Court of Appeals for the Eighth Circuit, in a

case decided one year prior to the removal statute's

amendment, Johnson v. Butler Bros., Inc., 162 F.2d 87

(8th Cir. 1947), held that such cases are not removable.’

The Court of Appeals for the First Circuit held in Cosme

Nieves v. Deshler, 786 F.2d 445, 451. (ist Cir.), cert

denied, 479 U.S. 824 (1986), held that the 1948

amendment trumped Johnson The Court of Appeals for

the Eleventh Circuit this year followed Cosme Nieves in

'The Johnson court reasoned thus:

“{T]o maintain an action or suit may mean to commence or

institute it; the term imports the existence of a cause of action. *

* * Maintain, however, is applied to actions already brought, but

not yet reduced to judgment * * * . In this connection it means to

continue or preserve (persévere) in or with; to carry on. * * *”

BLACK’S LAW DICTIONARY, 3rd Ed., 1143. The usual dictionary

definition of the word “maintain” is: “To keep up or carry on (as,

to maintain an action or undertaking); persevere in; prosecute; also,

to keep in existence or continuance * * * .”

* x *

[It is our opinion that Congress, in providing that an “action to

recover such liability may be maintained in any court of competent

jurisdiction * * * “ and that “The court in such action shall, in

addition to any judgment awarded to the plaintiff * * * , allow a

reasonable attorney’s fee * * * and costs * * * ,” intended not only

that the action might be commenced in any court of competent

jurisdiction, but that it could be prosecuted to final judgment in the

court in which it was commenced. If that was not the intention of

Congress, the words “may be maintained in any court of competent

jurisdiction” merely state a truism and are surplusage.

162 F.2d at 88-89.

Breuer v. Jim's Concrete of Brevard, Inc., 292 F.3d 1308

(11th Cir. 2002), which it in turn followed in the case at

bar.

The depth and currency of the conflict

Although the source of the conflict is more than 50

years old — i.e., the 1948 amendment of the removal

statute, 28 U.S.C. 1441(a), one year after the Court of

Appeals for the Eighth Circuit decided in Johnson that

actions brought in state court pursuant to the FLSA are

not removable — its impact is as current as last month.

That is when one district court in the Northern District of

Texas followed Breuer and Cosme Nieves in denying a

motion to remand a claim brought pursuant to the FLSA.

Collins v. Horizon Training Centers, L.P., Slip Copy No.

CIV 3:02-CV-1310-L, 2002 U.S. Dist. LEXIS 19493, 2002

WL 31305105 (N.D. Tex. October 10, 2002). Another

Northern District ef Texas court, less than four months

earlier, had followed Johnson in remanding to state court

a similar complaint. Castillo v. Texans Can!, Slip Copy,

No. CIV.A.3:02-CV-0587-R, 2002 U.S.Dist. LEXIS 13555,

2002 WL 1733727 (N.D. Tex. July 25, 2002).

Cases interpreting the differences in language of

the two statutes stretch over several decades up to the

moment. The Breuer court collected 30 cases between

1946 and 2002 holding actions brought pursuant to the

FLSA to be removable, 292 F.3d at 1309, n. 1,” and 12

cases between 1948 and 2000 holding to the contrary. Id.

at n. 2.3 Cases offering the differing interpretations

include not only wage-and-hour suits, but also actions

*See App. D, at 29a.

3See App. E, at 32a.

brought in the relatively recent past pursuant to statutes

adopting the FLSA's enforcement mechanism, i.e., the Age

Discrimination in Employment Act, 29 U.S.C. § 621, et

seq.,* and the Equal Pay Act, 29 U.S.C. § 206(d),5 and

even the Family Medical Leave Act, 29 U.S.C. § 2601, et

seq.,° which adopted its "may be maintained" language.

See 29 U.S.C. § 2617(a)(2) ("Right of action").

The division, thus, clearly is wide and on-going,

giving to the conflict between the 1948 Johnson case and

the 1986 Cosme Nieves case a longer-lasting ripple effect

than one might expect. These are waves that only this

Court can calm through the grant of certiorari. As the

Court of Appeals for the Eleventh Circuit stated in Breuer:

“Compare, e.g., Baldwin v. Sears, Roebuck & Co., 667 F.2d 458,

459-461 (Sth Cir. 1982) (upholding removability of a claim under the Age

Discrimination in Employment Act, 29 U.S.C. § 621, et seg., and

specifically stating that it was not addressing claims brought under the

FLSA), and LeMay v. Budget Rent A Car Systems, Inc., 993 F.Supp. 1448,

1450, n. 3 (M.D. Fla. 1997), (denying remand of ADEA claim because

“instead of ‘maintained,’ Congress could have chosen to use the word

‘brought’ which has a decidedly different meaning.”.

“Compare, e.g., Lisai v. Chevron Stations, Slip Copy No. CIV

3:97-CV-1288-G, 1997 U.S. Dist. LEXIS 20841, 1997 WL 694705 (N.D.

Tex. Nov. 4, 1997) (denying remand of claim brought pursuant to Equal Pay

Act, 29 U.S.C. § 206(d)), and Christine Maranto vs. Ken Jenne, in his

official capacity as Sheriff of Broward County, Slip Copy No. 00-7463-Civ-

Dimitrouleas (S.D. Fla. Nov. 29, 2000 ) (remanding Equal Pay Act claim on

authority of Johnson).

“See Lloyd v. Classic Chevrolet, Inc., Slip Copy No. CIV 4:01-CV-

896-Y, 2002 U.S. Dist. LEXIS 1604, 2002 WL 989470 (N.D. Tex. Jan. 31,

2002) (granting motion to remand claim brought pursuant to Family Medical

Leave Act because of the Johnson interpretation of "may be maintained.").

Because of the long-standing difference

among the district courts and the apparent conflict

between the Eighth Circuit in Johnson v. Butler

Bros. and the First Circuit in Cosme Nieves, and

now with this Circuit, it would appear to be

important for either Congress or the United States

Supreme Court to resolve this issue and bring

uniformity to the federal courts in this regard.

Litigants should not be treated with such disparity

in our federal system.

292 F.3d at 1310.

While the Johnson/Cosme Nieves conflict has been

around since 1986, and has spawned dozens of conflicting

district court rulings, see notes 2 & 3, supra, its resolution

has been hampered because of the difficulty in obtaining

appellate review of the issue. Except in select civil rights

cases, a defendant whose case is remanded to state court

has no federal appellate remedy. See 28 U.S.C. § 1447(d).’

A remanded plaintiff, meanwhile, has no appellate

remedy other than through the district court's issuance of

a certificate of interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b),® see, e.g., Breuer, 292 F.3d at 1308,° or

"That section provides:

An order remanding a case to the State court from which

it was removed is not reviewable on appeal or otherwise, except

that an order remanding a case to the State court from which it was

removed pursuant to section 1443 of this title shall be reviewable

by appeal or otherwise.

*That section provides as follows:

(continued...)

following an adverse decision on the merits. Thus, the

universe of potential appellants concerning the removal

and/or remand of a FLSA case is substantially narrowed.

How else, then, would one explain the relative dearth of

appellate-level case law over a span of 50-plus years on a

subject that has engendered as many conflicting district

court opinions?

Private plaintiffs brought, during the 12 month

period ending March 31, 2002, 1,886 actions that either

were initiated in or removed to United States-district

courts, up from 1,791 the year before.*° For those cases

that were removed, as opposed to being initiated in

federal court, a denial of remand raises two undesirable

alternatives: either, One, continuing absence of

*...continued)

When a district judge, in making in a civil action an order

not otherwise appealable under this section, shall be of the opinion

that such order involves a controlling question of law as to which

there is substantial ground for difference of opinion and that an

immediate appeal from the order may materially advance the

ultimate termination of the litigation, he shall so state in writing in

such order. The Court of Appeals may thereupon, in its discretion,

permit an appeal to be taken from such order, if application is

made to it within ten days after the entry of the order: Provided,

however, That application for an appeal hereunder shall not stay

proceedings in the district court unless the district judge or the

Court of Appeals or a judge thereof shall so order.

*Breuer appears to be the only FLSA case, among all of those in

which remand was denied over the past 50-plus years, in which a 1292(b)

certification was granted.

"See, FEDERAL JUDICIAL CASELOAD STATISTICS, Table C-2, Cases

Commenced, by Basis of Jurisdiction and Nature of Suit, March 31, 2001

and March 31, 2002.

jurisdiction, see Caterpillar, Inc. v. Lewis, 519 U.S. 61, 76-

77 (1996),” resulting in the possibility of wasted judicial

labor, or, Two, (assuming Congress intended that state

court actions brought pursuant to the FLSA to be

nonremovable) the nullification of Congressional intent.

In addition, there is the difficult-to-quantify impact that

the district courts' trend towards favoring removal,

compare App. D and App. E, has on plaintiffs who view

any attempt to bring an FLSA action in state court as

being futile.

The majority rule in the district courts, which is

now precedent in the First and Eleventh Circuits, chills

what several district court have found to be important

Congressional policy considerations in having made FLSA

actions easier for working men and women to prosecute

by having made those actions nonremovable. See, e.g.,

Haun v. Retail Credit Co., 420 F.Supp. 859, 862-863

(W.D. Pa. 1976)("in FLSA cases that the amount in

controversy may be small and some plaintiffs in rural

areas may be 'removed' out of a suit if they are forced to

suffer the expense and inconvenience of maintaining their

suit in a federal court many miles away"); Carter v. Hill &

Hill Truck Line, Inc., 259 F.Supp. 428, 430 (S.D. Tex.

1966)(setting out in an appendix the American Law

Institute commentary noting that “[tJhese cases are

typically for a very small sum and would invite the use of

removal as a harassing tactic”); Wilkins v. Renault

"'The Caterpillar, Inc. court stated:

[D]espite a federai trial court's threshold denial of a motion to

remand, if, at the end of the day and case, a jurisdictional defect

remains uncured, the judgment must be vacated. See, Fed. Rule

Civ. Proc. 12(h\(3) ("Whenever it appears by suggestion of the

parties or otherwise that the court lacks jurisdiction of the subject

matter, the court shall dismiss the action.”)

Southwest, Inc., 227 F.Supp. 647, 648 (N.D. Tex.

1964)(Congress recognized in enacting the 1948 and 1958

amendments to the removal statute that "removal was an

obvious tactic by which the defendant could delay,

increase the costs of litigation and harass the plaintiff").

Effectuation of those policy reasons, especially

considering the ongoing tension between the lower courts

and the difficulty in obtaining appellate review,”

militates for this Court's intervention through the

issuance of a writ of certitoari.

The legislative history of the FLSA — which

curiously has never been addressed in any of the decisions

concerning removal — shows that Congress intended for

wage-and-hour actions brought in state courts to stay

there. Congress replaced a provision in the initial version

of the bill that called for concurrent jurisdiction with

state and territorial courts,* with language providing that

"The only appellate treatment of the issue over the past 50-plus

years has been in Valdiviseo, Breuer, Baldwin (ADEA), Cosme-Nieves and

Johnson.

- ?§ection 22(b) of Senate Bill 2475, as it passed the Senate Juiy 22,

1937, stated that

The district courts of the United States shall have

jurisdiction of violations of this act or the regulations or orders

thereunder, and, concurrently with State and Territorial Courts, of

all suits in equity and actions at law brought to enforce any liability

or duty created by, or to enjoin any violation of, this act or the

regulations or orders thereunder...

(Emphasis added.) As introduced May 24, 1937, both S. 2475 and its House

(continued...)

"an action to recover such liability may be maintained in

any court of competent jurisdiction..." See, e.g., CONF.

REP., § 16 (b), 83 CONG. REC. 9249 (1938). As one of the

House conference committee managers explained

immediately before the final vote: "[I]f there shall occur

violations of either the wages or hours, the employees can

themselves, or by designated agent or representatives,

maintain an action in any court to recover the wages due

them..." 83 CONG. REC. 9264 (1938) (remarks of Rep.

Keller) (emphasis added).

The conference committee's changing of the

language is particularly compelling considering that prior

to the enactment of the FLSA, as noted in Maloy v.

Friedman, 80 F.Supp. 290 (N.D. Ohio 1948), “[t]he

Supreme Court of the United States [had] twice held in

construing the word ‘maintained’ in a Federal statute that

‘to maintain a suit is to uphold, continue on foot and keep

from collapse a suit already begun.” 80 F.Supp. at 292,

citing Smallwood v. Gallardo, 275 U.S. 56 (1927) and

George Moore Ice Cream Co. v. Rose, 289 U.S. 373

(1933).

In summary, certiorari is necessitated by, One, the

divergence of the two lines of appellate authority,

Valdivieso/ Breuer/Cosme-Nieves on the one hand, and

Johnson on the other, concerning whether actions

brought pursuant to the FLSA are removable; Two, the

repeated and on-going controversy in the lower courts

which has eluded appellate review in all but three circuits

for more than 50 years; and, Three, the failure by any of

'3(__ continued)

companion, H.R. 7200, contained the concurrent-jurisdiction provision at

§ 26.

the numerous courts addressing the issue to consider the

legislative history.

II.

The United States Court of Appeals for the

Eleventh Circuit has decided an important

question of federal law concerning an exemption

to the Fair Labor Standards Act, one which

should be, but has not been, decided by this

Court, i.e.: does the "air-carrier" exemption

remove maximum-hour protection from all air-

carrier employees, regardless of whether any

federal agency polices their overtime.

The Court should grant the Petition for a Writ of

Certiorari to clarify whether Congress intended, in

enacting the air-carrier exemption to the FLSA, to create

an air-carrier workplace free of any federal overtime

regulation for the more than two-thirds of the industry's

employees who are neither pilots, co-pilots nor flight

engineers. This impacts more than 250,000 air-carrier

employees.“

The legislative history shows clearly that Congress

did not so intend. Such a totally unregulated air-carrier

"The Department of Labor's Bureau of Labor Statistics identifies

in its 2000 National Occupational Employment and Wage Estimates the

following numbers of persons as having been employed in the following

Standard Occupational Classifications: Aircraft Mechanics and Service

Technicians, SOC 49-3011, 135,730; Flight Attendants, SOC 39-6031,

126,380; Avionics Technicians, SOC 49-2091, 15,360; Aircraft Cargo

Handling Supervisors, SOC 53-1011, 9,960. By contrast, the BLS identified

94,820 persons as Airline Pilots, Co-Pilots and Flight Engineers, SOC 53-

2011, and 18,040 as Commercial Pilots, SOC 53-2012.

workplace, however, is precisely what the Eleventh

Circuit's holding sanctions.

While several circuits, as well as some district

courts, have addressed the air-carrier exemption in terms

of non-pilot employees,’> none have reviewed its

legislative history. That legislative history displays an

intent not to have an air-carrier industry that was

unregulated, but merely one that was not over-regulated.

The air-carrier exemption was amended onto the Act on

the Senate floor merely to ensure that the maximum

hours of air-carrier employees, just like those of over-the-

road truck drivers, not be regulated by two different

agencies.’° See Remarks of Sen. Black, 81 CONG. REC.

'SSee, e.g., Northwest Airlines, Inc. v. Jackson, 185 F.2d 74, 77

(8th Cir. 1950) (employees involved in the modification of military aircraft

were not exempted because they were not "engaged in the defendant's

transportation activities"); Roland v. United Airlines, Inc., 75 F.Supp. 25

(N.D. Ill. 1947) (modification-center case in which court adopted the logic

of United States v. American Trucking Association, Inc., 310 U.S. 534

(1940), which rejected a literal interpretation of § 204(a) of the Motor

Carrier Act to deny overtime to all trucking-company employees); Verrett

v. The Sabre Group, Inc., 70 F.Supp.2d 1277 (N.D. Okla. 1999) (applying

exemption to computer-reservation employees); cf. Pan American World

Airways, Inc. v. United Brotherhood of Carpenters & Joiners of America,

324 F.2d 217 (9th Cir. 1963) (caricaturing a hypothetical shoe factory

owned by an airline to illustrate that the Railway Labor Act, upon which the

air-carrier exemption is based, is not so all-inclusive as to deny employees

at nuclear research development facility the right to organize under the

National Labor Relations Act).

"Section 13 of the Air Mail Act of 1934 required "the rate of

compensation and the working conditions and relations for all pilots,

mechanics, and laborers employed by the holder of [any air-mail] contract

shall conform to decisions of the National Labor Board...." Section

401(k)(1) of the Civil Aeronautics Act of 1938, meanwhile, required

"[e]very air carrier [to] maintain rates of compensation, maximum hours,

(continued...)

7875 (1937). Thus, § 13(a)(4) of the Fair Labor Standards

Act of 1938, Conf. REP., §§ 13(a)(4), 83 CONG. REC. 9249,

provided that the maximum-hour provisions of the Act

would not apply to "any employee of a carrier by air

subject to the provisions of title II of the Railway Labor

Act."” Similarly exempted were seamen, § 13(a)(3), and

a large number of railroad and motor-carrier employees."®

See § 13(b); see also 29 C.F.R. 783.29(a) ("Adoption of

the exemption in the original 1938 Act").’? As Sen. Black

'6(_. continued)

and other working conditions and relations of all of its pilots and co-pilots

who are engaged in interstate air transportation...so as to conform with

decision numbered 83 of the national labor Board on May 10, 1934...,”

Those »rovisions continue in effect today, including the limitation to pilots

and co- »ilots of the Federal Aviation Administration's jurisdiction to control

maximum hours and compensation. See 49 U.S.C. § 42112(a)-(c). Indeed,

the only federal regulation of maximum hours in the airline industry appear

to be directed at pilots, co-pilots, navigators and flight engineers. See 14

C.F.R., Ch. I, Subch. G., Part 121, Subpart R.

"That exemption currently is codified at 29 U.S.C. § 213(b)(3).

"These exemptions currently are codified at 29 U.S.C. §§

213(b)(6), (1) and (2), respectively.

'°The Department of Labor's explanation of the exemptions is as

follows:

[T]he original bill considered by the congressional committees

contained no exemption for seamen or other transportation

workers. At the joint hearings before the Senate and House

Committees on Labor, representatives of the principa! labor

organizations representing seamen and other transportation

workers testified orally and by writing that the peculiar needs of

their industry and the fact that they were already under special

governmental regulation made it unwise to bring them within the

scope of the proposed legislation (see Joint Hearings before

Senate Committee on Education and Labor and House Committee

(continued...)

explained concerning the amendment to exempt over-the-

road truck drivers and air-carrier employees:

[I]t was the policy of the committee, in cases where

regulation of hours and wages are given to other

governmental agencies, to write the bill in such a

way as not to conflict with such regulation. That

action was taken with reference to maritime

workers. It was taken with reference to railroad

workers insofar as they were governed by the

Hours of Service Act.... So far as the pending

amendment is concerned, and so far as the

amendment to be submitted by the Senator from

New York [Mr. Copeland] with reference to certain

employees in the aviation service who are now

under the Railroad Labor Act, it is my own belief

that both of the amendments should be adopted.

81 CONG. REC. 7875 (1937).7°

In the context of such legislative history, the "plain

language" analysis used by the circuit court fails: courts

'9(_. continued) :

on Labor on S. 2475 and H.R. 7200, 75th Cong., Ist sess., pp. 545,

546, 547, 549, 1216, 1217). The committees evidently acquiesced

in this view and amendments were accepted (81 CONG. REC. 7875)

and subsequently adopted in the law, exempting employees

employed as seamen (sec. 13(a)(3)), certain employees of motor

carriers (sec. 13(b)(1)), railroad employees (sec. 13(b)(2)), and

employees of carriers by air (sec. 13(a)(4), now sec. 13(b)(3)).

20 When the bill went to the House, the Committee on Labor

moved the exclusion of these workers into the exemption portion of the bill

rather than leave them in the definition section, lest excluding any workers

from the definition of “employees” could complicate enforcement of the

bill's child-labor provisions. H.R., Rep. No. 2182, at 13 (1938).

must look at what the words used meant when Congress

originally used them, not what they might mean now.

See, e.g. St. Francis College v. Al-Khazraji, 481 US 604,

613 (1987) (tracing meaning of the word "race" and using

the contemporary, 19th Century understanding of that

word to examine the legislative history of the Civil Rights

Act of 1870, 42 U.S.C. § 1981); United States v. American

Trucking Association, Inc., 310 U.S. 534, 541-544 (1940)

(rejecting literal interpretation of exemption for trucking-

company employees and stating that courts reviewing

such legislation cannot look at words as stand-alone

strays, but rather must comprehend the context in which

the legislature used them).

Under the court of appeal's interpretation of the

air-carrier exemption, Atlas Air's load-master and ramp-

supervisor employees are not protected concerning

maximum hours by any federal agency, regulation or law.

That is at odds both with Congress’ intent and with this

Court's teachings about the expansive, remedial purpose

of the FLSA. See, e.g. A. H. Phillips, Inc. v. Walling, 324

U.S. 490, 493 (1945) ("Any exemption from such

humanitarian and remedial legislation must therefore be

narrowly construed, giving due regard to the plain

meaning of statutory language and the intent of

Congress.") Certiorari is necessary to correctly decide this

important question of federal law.

CONCLUSION

Based on the authorities cited and the argument

presented, petitioners request the Court to grant the

petition for a writ of certiorari as to each question

presented.

Additionally, because the Department of Labor

does not appear to have taken a position on either of the

issues raised in this petition, petitioners request the Court

to invite the Solicitor General to explain the view of the

United States.

Respectfully submitted,

WILLIAM R. AMLONG

Counsel of Record

AMLONG & AMLONG, P.A.

Attorneys for Petitioner

500 Northeast Fourth Street

Second Floor

Fort Lauderdale, Florida 33301

(954) 462-1983

APPENDIX

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APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT, DATED SEPTEMBER 20,

2002

United States Court of Appeals

Eleventh Circuit

No. 02-11185

BRANDON VALDIVIESO, DAVID KICKZALES, on

behalf of themselves and all others similarly situated,

Plaintiffs-Appellants,

ATLAS AIR, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of Florida. D. C. Docket No. 00-07426-

CV-AJ. Ted E. Bandstra, Judge.

Before BARKETT, WILSON and KRAVITCH, Circuit

Judges.

PER CURIAM:

Plaintiffs-appellants Brandon Valdivieso and David

Kickzales ("Appellants"), former employees of defendant-

appellee Atlas Air, Inc. ("Atlas Air"), brought an action on

behalf of themselves and all other similarly situated

loadmasters employed by Atlas Air alleging they were

denied the premium overtime compensation required by

the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201,

et seq.’ The magistrate judge granted Atlas Air's motion

for summary judgment on the ground that the air carrier

exemption to the FLSA, 29 U.S.C. § 213{b)(3), does not

require Atlas Air to pay Appellants overtime

compensation.’ Appellants appeal.

I. STANDARD OF REVIEW

"Because the question is purely one of law, this

court reviews de novo the district court's denial of a

motion to remand.” Lockard v. Equifax, Inc., 163 F.3d

1259, 1269 (11th Cir. 1998). "We review a summary

judgment ruling de novo, applying the same legal

standards used by the district court." Johnson v. Bd. of

Regents of Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir.

2001). In reviewing a motion for summary judgment, this

court views the materials presented and all factual

inferences in the light most favorable to the non-moving

party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26

L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The non-rmoving

party, however, "may not rest on mere allegations or

denials of the adverse party's pleading" when a motion for

summary judgment is made and supported by affidavits

or the other methods provided in Rule 56; "specific facts

showing there is a genuine issue for trial" must be

supported "by affidavits or as otherwise provided in this

'The Appellants initially filed suit in a Florida circuit court and

Atlas Air removed the case to federal court. The district court denied the

Appellants’ motion to remand to state court. See Valdivieso v. Atlas Air,

Inc., 128 F. Supp. 2d 1371 (S.D. Fla. 2001).

*The parties consented to the jurisdiction of the magistrate judge

for all proceedings in the case pursuant to 28 U.S.C. § 636(c).

rule" and provided by the non-moving party to avoid

summary judgment. Fed. R. Civ. P. 56(e).

I. BACKGROUND

Atlas Air is a commercial air carrier that owns,

operates, and maintains a fleet of freighter aircraft that it

uses to transport cargo. Specializing in long-term

outsourcing of its aircraft under "Aircraft, Crew,

Maintenance, and Insurance" ("ACMI") contracts, Atlas

Air provides ACMI for flights it operates on behalf of its

customers. The customers bear all other operating

expenses, including fuel, landing fees, and cargo and

ground handling. Atlas Air provides its services primarily

to other major international airlines and does so

indiscriminately.’ Atlas Air solicits other entities that may

*Atlas Air first filed an affidavit from Edmond Archer, director of

Atlas Air's Miami facility, in support of its motion for summary judgment.

In its reply brief, Atlas Air submitted an affidavit from Bruce Gillette, Atlas

Air's vice president of products and services. On appeal, the Appellants

claim that the magistrate judge erred by relying on the Gillette affidavit,

which they assert is inconsistent with the Archer affidavit. Because the

affidavits are not inconsistent, we reject this argument.

Atlas Air could have made this process less complex by presenting

both affidavits with its initial motion for summary judgment instead of

presenting the Gillette affidavit with its reply brief. The Appellants made a

motion before the magistrate judge to strike the Gillette affidavit on the

grounds that submitting it with a reply brief violated Local Rule 7.5 of the

Southern District of Florida. The magistrate judge did not rule on this before

issuing his order granting summary judgment and noted in his order that the

facts were taken from the class action complaint and the Archer affidavit.

However, in his conclusions of law, the magistrate judge relied on facts from

the Gillette affidavit; for example, he states that Atlas Air “regularly accepts

work from businesses that are not commercial airlines." The motion to strike

the Gillette affidavit was denied by the magistrate judge's order closing the

case. Appellants did not appeal this denial, and have not raised the alleged

(continued...)

need cargo transportation and accepts work from

businesses that are not commercial airlines; there is no

allegation that any member of the public that agrees to

Atlas Air's terms and prices will not be served, subject to

available resources. Customers contract with Atlas Air for

dedicated aircraft(s); in the case of airlines, this allows

them to expand their ability to meet cargo transportation

responsibilities without investing in additional equipment

and personnel.

The customers of Atlas Air are responsible for the

ground transportation of the cargo shipped by Atlas Air,

and they provide the agents who load and unload the

cargo. Atlas Air oversees the cargo loading process to

ensure that all cargo is secured within the aircraft for safe

flight. Loadmasters-trained professionals who specialize

in air cargo transportation - ensure that each cargo load

complies with the size and weight parameters for the

3(...continued)

Local Rule 7.5 violation on appeal; therefore, we do not consider it.

In his affidavit, Archer states that "Atlas Air's customers are other

major international airlines that focus principally on their passenger

operations" and that "each Atlas flight is dedicated to transporting cargo for

a single customer." The Gillette affidavit is clearly meant to be

supplementary to the Archer affidavit. Gillette sought to clarify that "most

of our work is performed for other commercial airlines because our services

hold the greatest appeal for that segment of the public. However, we provide

our services indiscriminately within that group, and we are available to

transport cargo for entities that are not commercial airlines." He further

stated that Atlas Air does not limit the customers for whom Atlas Air is

willing to work, subject to the obvious constraints of available resources and

the customer's agreement to Atlas Air's terms and prices. We note that in

neither their motion to strike the Gillette affidavit nor their appellate brief

do the Appellants contend, let alone provide support for the claim, that Atlas

Air is not willing to provides its services to anyone willing to accept its

business terms.

y ,

‘

’

aircraft, that the distribution of the load's weight meets

balance requirements, that any hazardous materials are

transported in compliance with regulations, and that the

load is properly secure. The essential services provided are

the same whether the loadmaster travels with the cargo or

is stationed on the ground at a particular airport.

Plaintiff Brandon Valdivieso performed loadmaster

services for Atlas Air from March 1999 until April 2000.4

At times he was responsible for and traveled with

individual flights; at other times he provided loadmaster

services exclusively on the ground in Miami, Florida.

Plaintiff David Kickzales provided loadmaster services to

Atlas Air from August 1998 to May 2000, andhe generally

traveled with the loads for which he was responsible.

Neither plaintiff performed any services for Atlas Air that

were not directly related to its air transportation activities.

III. DISCUSSION

Before us are two claims: that the district court

erred by denying Appellants' motion to remand to state

court, and that the magistrate judge erred by granting

Atlas Air's motion for summary judgment as to the

Appellant's FLSA overtime claim. Each will be considered

in turn.

A. Motion to Remand

The Appellants claim that the district court's denial

of their motion to remand to state court was error.

According to the Appellants, claims brought under the

“For purposes of the motion for summary judgment alone, Atlas Air

conceded that Appellants are "employees" of Atlas Air and reserved the

right to challenge this classification at a later stage if necessary.

FLSA in state court may not be removed to federal court.

Any civil action brought in state court, in which

jurisdiction would be proper in federal court, may be

removed "except as otherwise expressly provided by Act

of Congress.” 28 U.S.C. § 1441. At the time Appellants

filed their brief, whether or not § 216 of the FLSA

provides an express prohibition on removal was an open

question. Since the time the brief was filed, however, a

panel of this court held that § 216 was not an express

statutory prohibition against removal. See Breuer v. Jim's

Concrete of Brevard, Inc., 292 F.3d 1308, 1309 (11th Cir.

2002). Therefore, the district court did not err by denying

the motion to remand.

B. Air Carrier Exemption to the FLSA

The FLSA generally requires employers to pay

premium overtime provisions to employees who work in

excess of 40 hours per week. 29 U.S.C. § 207. There are

specific exceptions, however, to the overtime

requirements, including an exemption for "any employee

of a carrier by air subject to the provisions of title II of the

Railway Labor Act." Id. § 213(b)(3). Those subject to the

RLA include "every common carrier by air engaged in

interstate or foreign commerce ..." 45 U.S.C. § 181.

The Supreme Court has ruled that "one who

undertakes for hire to transport from place to place the

property of others who may choose to employ him is a

common carrier." Washington ex rel. Stimson Lumber

Co. v. Kuykendall, 275 U.S. 207, 211, 72 L. Ed. 241, 48 S.

Ct. 41 (1927). "The dominant factor in fixing common

carrier status at common law is the presence of a ‘holding

out' to transport the property or person of any member of

the public who might choose to employ the proffered

TR RE Rt oo ep ROR OK ole ENN Sa aa ok ee meee Ey NRE ONE LOA ep OEE PONT re ae

WR AT EE E NT TAGE RR Ig BE Ce Pea i ph

service." Las Vegas Hacienda, Inc. v. Civil Aeronautics

Board, 298 F.2d 430, 434 (oth Cir. 1962).

The plaintiffs argue that Atlas Air is merely an out-

source lessor of aircraft and flight crews to airlines; the

airlines that Atlas Air services are common carriers, but

Atlas Air itself is not. Appellants’ argument seems to

assume that because the public at large does not utilize

the services of Atlas Air, the company thereby loses

common carrier status. This is an inaccurate view of the

law. The Supreme Court has stated that "no carrier serves

all the public. His customers are limited by place,

requirements, ability to pay and other facts." Terminal

Taxi Cab Co. v. Kutz, 241 U.S. 252, 254, 60 L. Ed. 984, 36

S. Ct. 583 (1916); see also Las Vegas Hacienda, 298 F.2d

at 434 ("So long as the air carrier is competing

commercially in the market for the patronage of the

general public ... it is immaterial that the service offered

will be attractive only to a limited group[.]"). Status as a

common carrier is contingent on the carrier holding itself

out to the public and offering its services indiscriminately

to those interested in its services. See Woolsey v. Nat'l

Transp. Bd., 993 F.2d 516, 523 (5th Cir. 1993) (stating

that "the crucial determination in assessing the status of

a carrier is whether the carrier has held itself out to the

public or a definable segment of the public as being

willing to transport for hire, indiscriminately" (emphasis

in original)). Because Atlas Air offers its services

indiscriminately to anyone willing to accept its terms and

prices, we hold that it is a common carrier. We also note

that Atlas Air is licensed by the U.S. Department of

Transportation as a common carrier; furthermore, other

courts have considered Atlas Air a common carrier under

the RLA. See Atlas Air, Inc. v. Air Line Pilots Ass'n, 344

U.S. App. D.C. 1, 232 F.3d 218 (D.C. Cir. 2000); Beckett

v. Atlas Air, Inc., 968 F. Supp. 814 (E.D.N.Y. 1997).

The Appellants also claim that the air carrier exemption

should not apply to their positions with Atlas Air because

such a reading of the statute would leave these positions

with no maximum hour protection under federal law.

Based on the legislative history, the Appellants claim that

the congressional intent of the exemption was to prevent

the Department of Labor and the Civil Aeronautics Board

from having overlapping jurisdiction. Courts cannot,

however, consider legislative history when the statutory

language is unambiguous. See Conn. Nat. Bank uv.

Germain, 503 U.S. 249, 253-254, 117 L. Ed. 2d 391, 112 S.

Ct. 1146 (1992) (Stating that the "cardinal canon" of

statutory interpretation is that courts "must presume that

a legislature says in a statute what it means and means in

a statute what it says there. ... When the words of a statute

are unambiguous, then, this first canon is also.the last:

‘judicial inquiry is complete.” (citation omitted)). Here,

the statutory language is certainly unambiguous. The RLA

states that its provisions are extended to "every common

carrier by air ... and every pilot or other person who

performs any work as an employee or subordinate official

of such carrier ...." 45 U.S.C. § 181. Appellants do not

dispute that their positions as loadmasters are integral to

the transportation of cargo; therefore, these positions are

included in the air carrier exemption to the FLSA. See

Northwest Airlines, Inc. v. Jackson, 185 F.2d 74, 75 (8th

Cir. 1950).

IV. CONCLUSION

We AFFIRM the district court's denial of

Appellant's motion to remand and the decision of the

magistrate judge to grant Atlas Air's motion for summary

judgment on the Appellant's FLSA overtime claim.

AFFIRMED.

APPENDIX B — ORDER DENYING MOTION TO

REMAND, UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA,

DATED JANUARY 18, 2001

United States District Court for the Southern District of

Florida, Miami Division

No. 00-7426-Civ-Jordan

BRANDON VALDIVIESO and DAVID KICKZALES, on

behalf of themselves and all others similarly situated,

Plaintiffs,

ATLAS AIR, INC.,

Defendant

Adalberto Jordan, United States District J udge.

ORDER DENYING MOTION TO REMAND

Brandon Valdivieso and David Kickzales filed this

case in Florida circuit court alleging violations of the Fair

Labor Standards Act, 29 U.S.C. § 201 et seq. Atlas Air, Inc.

timely removed the case pursuant to 28 U.S.C. § 1441,

alleging that federal jurisdiction is proper under 28 U.S.C.

§ 1331. The plaintiffs have moved to remand the case to

state court, arguing that the FLSA forbids the removal of

cases to federal court. For the following reasons, the

motion to remand [D.E. 8] is DENIED.

10a

The plaintiffs argue that the language of the FLSA

prohibits defendants from removing cases filed in state

court. The FLSA provides that an action brought to

enforce its provisions "may be maintained against any

employer ... in any Federal or State court of competent

jurisdiction." 29 U.S.C. § 216(b). The plaintiffs place great

importance on the use of the word "maintained," and

argue that because the statute uses the word

"maintained," as opposed to "brought," FLSA suits filed in

state court are not removable. Atlas argues that the FLSA,

when read in conjunction with 28 U.S.C. § 1441, does not

prohibit removal. In relevant part, § 1441 states that any

civil action brought in state court, over which jurisdiction

would be proper in federal court, can be removed "except

as otherwise expressly provided by Act of Congress.” Atlas

contends that the FLSA is not an express prohibition

within the meaning of § 1441.

The authority on this point is currently divided,

and of the only two circuit courts to squarely consider the

question, one prohibited removal and one allowed it.

Compare Johnson v. Butler Bros., 162 F.2d 87, 88-90

(8th Cir. 1947) (prohibiting removal) with Cosme Nieves

v. Deshler, 786 F.2d 445, 450-51 (1st Cir. 1986) (allowing

removal). See also Emrich v. Touche-Ross & Co., 846 F.2d

1190, 1196 (9th Cir. 1988) (discussing removability

generally, and stating that the FLSA is an example of a

statute that allows cases to be brought in any court of

competent jurisdiction and "contain[s] no limitation on

removal, express or otherwise, to bar removal as required

under § 1441(a)"); Baldwin v. Sears, Roebuck & Co., 667

F.2d 458, 460-61(5th Cir. 1982) (holding that ADEA

actions, which are enforced under the FLSA, are

removable, but recognizing the split of authority on the

removability of FLSA actions and reserving ruling on that

question). In Johnson, which was decided over fifty years

11a

ago, the Eighth Circuit held that Congress’ use of the

phrase "may be maintained in any court of competent

jurisdiction" in § 216(b) indicated an intent to allow

plaintiffs asserting FLSA claims to prosecute them to final

judgment in whichever court they chose. 162 F.2d at 89.

The Johnson panel concluded that cases under the FLSA

were excepted from the effect of § 1441, which, at that

time, did not contain the requirement that such statutory

exception be express. Id. at 89-90. On the other hand, the

First Circuit, in the only appellate opinion to address this

issue after the 1948 amendment to § 1441, decided that

cases brought under the FLSA in state court were

removable to federal court. See Cosme Nieves, 786 F.2d at

451. The First Circuit reasoned that the FLSA "lacked an

explicit statutory directive" which would prohibit removal,

and that the phrase “may be maintained" was

“ambiguous; at best [it is] suggestive." Id.

Unlike the circuit courts, district courts have not

been so evenly split on whether to permit removal of

FLSA cases that originate in state court. Some district

courts have followed Johnson, holding that Congress’ use

of the word "maintained" is an express exception to the

removal statute. See, e.g., Lopez uv. Wal-Mart Stores, Inc.,

111 F. Supp. 2d 865, 867 (S.D. Tex. 2000); Esquivel v. St.

Andrews Constr., 999 F. Supp. 863, 865 (N.D. Tex.

1998); LeMay v. Budget Rent A Car Sys., Inc., 993 F.

Supp. 1448, 1451 (M.D. Fla. 1997); Pauly v. Eagle Point

Software Co., 958 F. Supp. 437, 438-39 (N.D. Iowa 1997);

Courtwright v. Board of Regents, 1991 U.S. Dist. LEXIS

17238, No. 91-0846- CV-W-3, 1991 WL 255594, at *1

(W.D. Mo. Nov. 22, 1991); Wilkins v. Renault Southwest,

Inc., 227 F. Supp. 647, 647 (N.D. Tex. 1964). Several of

these courts have also based their holding on legislative

history, citing to a 1958 Senate Report which they

characterize as evidence of the congressional intent that

12a

FLSA actions not be removed. See Esquivel, 999 F. Supp.

at 865; Wilkins, 227 F. Supp. at 648. That Senate Report

states:

Congress itself has recognized the inadvisability of

permitting removal of cases arising under its own

laws which are similar to the workmen's

compensation acts of the states. In the Jones Act,

the Fair Labor Standards Act, and the Railway

Employers’ Liability Act, all of which are in the

nature of workmen's compensation cases, the

Congress has given the workman the option of

filing his case in either the state court or the

federal court. If filed in the state courts the law

prohibits removal to the Federal court.

S. Rep. No. 85-1830 (1958), reprinted in 1958

U.S.C.C.A.N. 3099, 3106. The courts relying on this

excerpt have concluded that the report is clear evidence of

congressional intent on the nonremovability of FLSA

claims after the amendment of § 1441. See Esquivel, 999

F. Supp. at 865 ("The report is a direct statement that

Congress clearly believed — even after it had amended §

1441 in 1948 — that 'the law prohibits removal (of FLSA

actions) to the Federal court.""); Wilkins, 227 F. Supp. at

648 ("The Senate report leaves no room for doubt that the

Congress, which creates and delineates the jurisdiction of

federal district courts, thought that the Johnson case

correctly stated the law.").

The developing majority view, however, is that

FLSA actions are removable. See, e.g., Bingham uv.

Newport News Shipbuilding & Drydock Co., 3 F. Supp.

2d 691, 692-94 (E.D. Va. 1998); Chapman v. 8th Judicial

Juvenile Probation Bd., 22 F. Supp. 2d 583, 584-86 (E.D.

Tex. 1998); H&R Block, Ltd. v. Housden, 24 F. Supp. 2d

13a

703, 705 (E.D. Tex. 1998); Troutt v. Stavola Bros., Inc.,

1994 U.S. Dist. LEXIS 19819, No. 4:94 CV00417, 1994 WL

773148, at *1-2 (M.D.N.C. Dec. 27, 1994); Winebarger v.

Logan Aluminum, Inc., 839 F. Supp. 17, 18 (W.D. Ky.

1993); Loutfy v. R.R. Donnelley & Sons Co., 1992 U.S.

Dist. LEXIS 6142, No. 92 C 01660, 1992 WL 97761, at *2

(N.D. Ill. May 4, 1992); Nesbitt v. Bun Basket, Inc., 780 F.

Supp. 1151, 1152 (W.D. Mich. 1991); Waldermeyer v. ITT

Consumer Fin. Corp., 767 F. Supp. 989, 990 (E.D. Mo.

1991). These district courts have found that the FLSA's

“may be maintained" language is not sufficiently explicit

in light of Congress' amendment to § 1441. These courts

have concluded, like Cosme Nieves, that the phrase "may

be maintained" is ambiguous at best, and is consequently

the very opposite of an express directive, as § 1441 now

requires. See, e.g., Bingham, 3 F. Supp. 2d at 693 (noting

that Congress failed to clearly and accurately express its

intent that FLSA claims were nonremovable) (citations

omitted); Winebarger, 839 F. Supp. at 18 (allowing

removal, and noting that "plaintiff's interpretation asks

too much of the word maintain"). A close consideration of

these issues compels me to agree with this conclusion.

The words "may be maintained" are not, in

common or legal parlance, an express exemption from the

general scope of the removal statute. I agree with the First

Circuit that "the words ‘expressly provided' [in § 1441]

must be construed to mean exactly that." Cosme Nieves,

786 F.2d at 451 (citing Pueblo Int'l, Inc. v. DeCardona,

725 F.2d 823, 827 (ist Cir. 1984)). For instance, Congress

has "expressly provided" in 28 U.S.C. § 1445, captioned

"Nonremovable cases," that cases arising under the

Federal Employers' Liability Act, 45 U.S.C. § § 51-60, may

not be removed to federal court. Additionally, Congress

has proven itself capable of imposing limits, rather than

absolute bars, on removal. See 28 U.S.C. § 1445(b)

14a

(providing that cases arising under 49 U.S.C. § 11707

cannot be removed unless the amount in controversy

exceeds $ 10,000).

Although the 1958 Senate Report appears

instructive at first blush, I do not find the reasoning of

those courts relying on it persuasive for a number of

reasons. As an initial matter, the context of the Senate

hearing was the amount in controversy for federal

diversity jurisdiction, not a discussion of either the FLSA

or § 1441. Moreover, Congress did not include the FLSA in

28 U.S.C. § 1445(c), which provides that actions brought

under state workmen's compensation laws are not

removable. Additionally, I agree with the observation of

the district court in Chapman that "the act of referring to

tangential legislative history merely underscores the fact

that the statute at issue is not explicit on its face." 22 F.

Supp. 2d at 586. And, as the Supreme Court has reminded

us recently, the best evidence of a statute's meaning is the

text itself. See Geier v. American Honda Motor Co., 529

U.S. 861, 120 S. Ct. 1913, 1932, 146 L. Ed. 2d 914 (2000)

(quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658,

664, 123 L. Ed. 2d 387, 113 S. Ct. 1732 (1993)).

The Eleventh Circuit has not yet weighed in on this

debate. The plaintiffs, however, argue that the Eleventh

Circuit has implicitly adopted the view that FLSA claims

are not removable in its discussion of the removability of

claims under the Fair Credit Reporting Act, 15 U.S.C. §

1681. See Lockard v. Equifax, Inc., 163 F.3d 1259 (11th Cir.

1998). Lockard holds that FCRA actions are removable,

and that the statute does no more than give state courts

concurrent jurisdiction. Jd. at 1264-65. In reaching that

decision, Lockard discussed the split of authority

surrounding removal in FLSA actions. See id. The

15a

plaintiffs place particular emphasis on the Eleventh

Circuit's observation that

it is arguable that allowing a plaintiff to ‘maintain’

an FLSA suit in state court is logically inconsistent

with allowing the defendant to remove the action

to federal court, and that when Congress chose the

word 'maintain,' it intended to create an exception

to the removal statute. ... The FLSA wording is

arguable.

Id. at 1264. Several points convince me that I need not

grant the motion to remand based on this excerpt from

Lockard. First, the Eleventh Circuit's discussion is dicta,

and no firm conclusion, much less a holding, was reached

about the removal of FLSA actions. See McDonald 's Corp.

vu. Robertson, 147 F.3d 1301, 1315 (11th Cir. 1998) (Carnes,

J., concurring) (offering several rationales for the rule

that "dicta in our opinions is not binding on anyone for

any purpose"). Second, § 1441 requires an express

provision to prohibit removal. The fact that the meaning

of a statute is arguable is enough to cast aspersion on the

contention that it is express. If the FLSA's phrasing were

truly an express prohibition, there would likely be no split

of authority, and the Eleventh Circuit could have pointed

out that the language was clear. Third, I read Lockard's

observation that the FLSA's language is arguably a

prohibition on removal as intended merely to highlight

the fact that the FCRA's text is not even arguable.

The plaintiffs also argue that two policy

considerations support the nonremovability of FLSA

clairas. First, the plaintiffs argue that workers attempting

to enforce wage and hour laws are better equipped to

bring such claims in state court. Second, the plaintiffs

argue that remanding such cases "unclogs" the federal

16a

courts. Although both of these matters may implicate

important policy considerations, they are reserved to

Congress for resolution, and the language of § 216(b)

simply cannot be stretched to meet the requirement in §

1441 that any exceptions to the general right of removal

must be express. I simply do not believe that Congress is

unable to be more express than the word "maintained,"

and I cannot disregard my interpretation of the statutory

language in favor of policy considerations, regardless of

how important or compelling the plaintiffs believe them

to be. See Cosme Nieves, 786 F.2d at 451 (finding that the

"express" requirement in § 1441 trumps the policy

arguments both for and against removal)

In sum, I conclude that § 1441 and the FLSA, read

together, permit the removal of FLSA actions. Although §

216(b) is certainly not a model of clarity, the rampant

disagreement and ambiguity regarding its text make a

convincing case that the FLSA was not intended to be an

express exception to § 1441. Accordingly, the motion to

remand [D.E. 8] is DENIED.

DONE and ORDERED in chambers in Miami,

Florida, this 18th day of January, 2001.

17a

APPENDIX C — ORDER GRANTING

DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT, UNITED STATES DISTRICT COURT

FOR THE SOUTHER DISTRICT OF FLORIDA,

DATED DECEMBER 18, 2001

United States District Court

Southern District of Florida

No. 00-7426-Civ-Jordan/Bandstra

BRANDO VALDIVIESO and DAVID KICKZALES, on

behalf of themselves and all other similarly situated,

Plaintiff,

ATLAS AIR, INC.,

Defendant.

ORDER GRANTING DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court on Defendant

Atlas Air, Inc.’s Motion for Summary Judgment (D.E. 38)

filed on June 5, 2001. On June 18, 2001, the parties

consented to the jurisdiction of the undersigned United

States Magistrate Judge for all proceedings in this case

pursuant to 28 U.S.C. §636(c). Accordingly, the

undersigned conducted a hearing on this motion on

October 9, 2001. Having reviewed the pleadings, and in

consideration of applicable law and oral argument of the

parties, the Court hereby GRANTS Defendant’s Motion

18a

for Summary Judgment and dismisses this action for

reasons stated below.

INTRODUCTION

This is an action for unpaid overtime compensation

brought pursuant to the Fair Labor Standards Act of 1938,

as amended [29 U.S.C. §201, et seqg.] (hereinafter, the

FLSA or the “Act”). Count I is brought by plaintiffs,

Brandon Valdivieso and David Kickzales, pursuant to

§16(b) of the Act, on behalf of themselves and all others

similarly situated in-flight loadmasters employed by

defendant Atlas Air, Inc. (“Atlas” or “Atlas Air”), who were

not paid overtime to which they were entitled between

1997 and 2000. Count II is brought by Valdivieso on

behalf of himself and all other ramp supervisors at Atlas

who were also denied overtime to which they were

entitled for hours worked over 40 hours per week.

Defendant Atlas Air has moved for summary

judgment on both claims on the ground that the FLSA

does not require Atlas Air to pay overtime compensation

to plaintiff because of the “air carrier exemption” to the

Act. Specifically, Atlas argues that under this exemption

employees’ such as plaintiffs who perform services related

to the transportation activities of a common carrier such

as Atlas Air are not entitled to overtime compensation.

Plaintiffs oppose summary judgment arguing, first,

that Atlas Air is not a “common carrier” as envisioned by

the FLSA; and, second, that they, as ramp supervisors and

loadmasters, are not among the narrow class of employees

‘Atlas Air concedes, for purposes of this motion only, that plaintiffs

are “employees” of Atlas Air, while reserving the right to challenge the

classification, if necessary, at a later stage of this case.

19a

to which the “air carrier excemption [sic]” was directed to

apply.

STANDARD OF REVIEW

The court in reviewing a motion for summary

judgment is guided by the standards set forth in Rule

56(c) of the Federal Rules of Civil Procedure which

provides as follow

- The judgment sought shall be rendered

forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together

with the affidavits, if any show that there is no

genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter

of law....

The moving party bears the burden of meeting this

exacting standard. Adickes v. S.H. Kress & Co., 398 U.S.

144, 157, 90 S.Ct. 1598, 1608 (1970). Further, in

addressing whether the moving party has satisfied this

burden, the court is required to view the evidence and all

factual inferences arising therefrom in the light most

favorable to the non-moving party. Clemons v. Doughtery

County, FA., 684 F.2d 1365, 1368 (11th Cir. 1982), citing,

Adickes v. S.H. Kress & Co., 398 U.S. at 157, 90 S.Ct. at

1608; Augusta Iron & Steel Works v. Employers

Insurance of Wausau, 835 F.2d 855, 856 (11th Cir. 1988).

If the record presents issues of material fact, the court

must deny the motion. Adickes v. S. H. Kress & Co., 398

U.S. at 157, 90 S.Ct. at 1608. The non-moving party,

however, cannot rest upon mere allegations, but must

rebut any facts properly presented by the moving party

through affidavits or other evidence demonstrating the

existence of a genuine and material issue of fact for trial.

20a

Id. at 398 U.S. 155, 90 S.Ct. at 1607. Moreover, summary

judgment is mandated if the non-moving party fails to

make a showing sufficient to establish the existence of an

element essential to that party’s case and on which that

party will bear the burden of proof at trial. Celotex Corp.

v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53

(1986).

UNDISPUTED FACTS’

Atlas Air is a commercial air carrier that owns,

operates and maintains a fleet of Boeing 747 freighter

aircraft that it uses to transport cargo to over 100 cities

worldwide. Atlas Air specializes in long-term outsourcing

of its aircraft under contracts known in the industry as

“ACMI” contracts. “ACM I” is an abbreviation for

“Aircraft, Crew, Maintenance and Insurance.” Atlas Air

provides the ACMI for flights it operates on behalf of its

customers, while its customers bear all other operating

expenses, including fuel, landing fees, and cargo and

ground handling expenses.

Atlas Air provides its outsourcing services to other

major international airlines to facilitate their cargo needs.

Each customer airline contracts with Atlas Air for one or

more dedicated aircraft, allowing those airlines to expand

their ability to meet their cargo transportation

responsibilities without investing in additional equipment

and personnel. Atlas Air is not a freight forwarder, which

? This statement of undisputed facts is taken from the Class Action

Complaint, and from the Affidavit of Edmond D. Archer, Director of Atlas

Air’s facilities at the Miami International Airport. Plaintiffs do not contest

this statement of facts for purposes of this motion — and defendant Atlas

Air accepts the allegations of the complaint stated above with the exception

noted in footnote 1 above.

21a

is a shipping company that collects shipments of goods for

multiple customers, consolidates them, and then reships

them in bulk.

Atlas Air operates its own aircraft. Atlas Air’s

customers are responsible for all ground transportation of

the cargo shipped by Atlas Air, and they provide the

handling agents who perform the physical work of loading

and unloading the cargo on the aircraft. However, Atlas

overseas the cargo loading process to ensure that all cargo

is situated and secured within the aircraft’s parameters

for safe flight.

Loadmasters are trained professionals who

specialize in air cargo transportation, and Atlas Air

employs or contracts with them to coordinate and

document all cargo-related functions on each of Atlas

Air’s flights. The safety of each flight depends on a

number of the services provided by the loadmaster

responsible for it. Specifically, the loadmaster ensures

that each cargo load transported by Atlas Air complies

with the size and weight parameters for the aircraft and

flight. The loadmaster also ensures that the load’s

distribution on the aircraft meets the aircraft’s balance

requirements, and that any hazardous materials are

packaged and transported in compliance with all

applicable regulations. Finally, the loadmaster ensures

that each load is properly secured to prevent it from

shifting during flight.

Before each flight, the loadmaster prepares ihe

flight’s load plan. First, the loadmaster determines the

appropriate distribution of the expected cargo on the

aircraft in order to safely transport it within the aircraft’s

weight restrictions and balance requirements. Once the

cargo distribution is calculated, the loadmaster completes

22a

the load plan by determining the sequence of the loading

process required to achieve the desired weight

distribution. The completed load plan is delivered to the

loading crew, and the loadmaster oversees compliance

with the plan during the crew’s process of organizing the

cargo on the ramp and loading it onto the aircraft. The

loadmaster is also responsible for ensuring that the load

is properly restrained, and for making any corrections to

the load plan to accommodate changes in the load.

Finally, before the flight can depart, loadmasters must

coordinate the preparations of flight-related documents

required by the flight crew.

The loadmaster’s duties do not end when the cargo

is loaded and the flight departs. If a loaded aircraft stops

en route to the cargo’s ultimate destination, whether or

not cargo has been on or offloaded during the stop, a

loadmaster inspects the cargo load and restraint systems

and corrects any deficiencies or deviations from the load

plan that may interfere with the flight’s safe operation.

When the load reaches it’s final airport destination, a

loadmaster overseas its safe offloading.

Many Atlas Air flights are assigned to a loadmaster

who travels with cargo and performs all of the loadmaster

functions related to the flight. In some cities, however,

loadmasters remain on the ground, where they perform

loadmaster duties for Atlas flights arriving and departing

from a particular airport. The essential services provided

by a Loadmaster are the same whether the loadmaster is

responsible for a particular flight or stationed on the

ground at a particular airport.

Plaintiff, Brandon Valdivieso performed

loadmaster services for Atlas Air from March 12, 1999

until April 10, 2000. During some of that period, he was

23a

responsible for and traveled with individual flights. At

other times, however, he provided load master services

only on the ground in Miami, Florida. Plaintiff David

Kickzales provided loadmaster services to Atlas Air from

approximately August 1 998 until May 2000. Kickzales

generally traveled with the loads for which he was

responsible. Neither plaintiff performed any services for

Atlas Air that were not directly related to its air

transportation activities.

CONCLUSIONS OF LAW

The sole issue raised by Defendant’s Motion for

Summary Judgment is whether loadmasters and ramp-

supervisors, such as Brandon Valdivieso and David

Kickzales, and the class they purportedly represent, are

excepted from the overtime provisions of the FLSA by the

“air carrier exemption” of the Act. Generally, Section 207

of the FLSA requires covered employers to pay premium

overtime provisions to covered employees who work in

excess of forty hours a week. However, the FLSA contains

specific exceptions to Section 207’s overtime

requirements, including an exemption for “any employee

of a carrier by air subject to the provisions of Title II of the

Railway Labor Act.” 29 U.S.C. § 217(b)(3).

Title II of the Railway Labor Act (“RLA”) governs:

every common carrier by air engaged in interstate

or foreign commerce... and every pilot or other

person who performs any work as an employee or

subordinate official of such carrier..., subject to its

-continuing authority to supervise and inspect the

manner of rendition of this service.

24a

45 U.S.C. § 181. Federal courts have uniformly applied the

FLSA “air carrier” exemption to employees of air carriers

whose work “bears more than a tenuous, negligible and

remote relationship to the transportation activities” of the

air carrier. See e.g. Northwest Airlines v. Jackson, 185

F.2d 74, 75 (8th Cir. 1950).

A. ir is a “ ier” f

Purposes

Applying the aircraft carrier exemption here, the

court first finds that Atlas Air is a common carrier as

envisioned by the Railway Labor Act. As found above,

Atlas Air is a commercial air carrier that owns, operates

and maintains a fleet of freight aircraft that it leases

(“outsources”) to other air carriers for the transportation

of cargo to over 100 cities worldwide. Atlas Air outsources

its aircraft under long-term “ACMI” contracts whereby

Atlas Air provides the aircraft, crew, maintenance and

insurance for flight operations of its customers. Thus,

Atlas Air is a company “that undertakes for hire to

transport to place to place the property of others who may

choose to employ [Atlas Air]” so that Atlas Air is a

common carrier for RLA purposes. See Washington v.

Kuykendall, 275 U.S. 207, 211 (1927). The fact that Atlas

Air performs most of its transportation services under

long-term ACMI contracts does not strip it of its common

carrier status. See Las Vegas Hacienda, Inc. v. Civil

Aeronautics Bd., 298 F.2d at 430 434 (9th Cir. 1962)

(holding that “it is immaterial that services offered may be

performed pursuant to special contract”); Woolsev v.

National Transportation Safety Bd., 993 F.2d 516 (5th

Cir. 1993) (holding that airline which operated according

to its customer’s schedule and desired flight destinations

was nevertheless entitled to common carrier status).

25a

Furthermore, Atlas Air’s common carrier status is

not affected by the specialization of its services to meet

the needs of and attract a particular segment of the

general public — commercial airlines that focus primarily

on passenger services.

As the Supreme Court noted in Terminal Taxi Cab

Co. v. Kutz, 241 U.S. 252, 254 (1916), “[n]Jo carrier serves

all the public. His customers are limited by the ‘place,

requirements, ability to pay and other facts.”’ Further,

“[s]o long as the air carrier is competing commercially in

the market for the patronage of the general public ... it is

immaterial that the service offered will be attractive only

toa limited group.” Las Vegas Hacienda, 298 F.2d at 434.

Moreover, to be a common carrier, Atlas Air is not

required to hold itself out to every member of the public.

Instead, it may hold itself out to “a definable segment of

the public as being willing to transport for hire,

indiscriminately.” Woolsey, 993 F.2d at 523. Here, it is

undisputed that Atlas Air is willing to transport air cargo

for any customer choosing to employ it. Although Atlas

Air primarily solicits and does business with other

commercial airlines, Atlas provides that service

indiscriminately within that group. Moreover, Atlas

solicits other entities that are likely to need air cargo

transportation and regularly accepts work from

businesses that are not commercial airlines. Thus, Atlas

Air meets the “holding out” requirement for common

carrier status.

Plaintiffs’ argument that Atlas Air is not acommon

air carrier contradicts both settled law and common

sense. Atlas owns and operates a fleet of aircraft that it

uses to transport cargo for as many customers as it can

attract and serve. Although its primary customers are

26a

other commercial airlines, Atlas Air is willing to and, does,

in fact, serve other entities. Finally, Atlas Air is licensed by

the United States Department of Transportation as a

common carrier, and other courts have found that Atlas

Air is subject to the RLA. See, e.g. Atlas Air Inc. v. Air

Line Pilots Ass n, 232 F.3d 218 (D.C. Cir. 2000); Beckett

v. Atlas Air. Inc., 968 F.Supp. 814 (E.D.N.Y. 1997).

Clearly, under the undisputed facts of this case, Atlas Air

operates as acommon air carrier and is, therefore, exempt

from the overtime provisions of the FLSA.

B. e “Ai ler”

Plaintiff

Plaintiffs next attempt to avoid application of the

air carrier exemption to their particular positions with

Atlas Air by arguing that the scope of the exemption

should be limited to pilots who are subject to maximum

hours of service limitations by the FAA. However, this

argument contradicts the plain language of the statute.

The FLSA exempts “any employee of a carrier by air

subject to the provisions of Title II of the Railway Labor

Act.” 29 U.S.C. § 213(b)(3) (emphasis added). Moreover,

the RLA expressly extends its coverage beyond pilots,

subjecting “every pilot or other person who performs any

work as an employee” to its provisions. 45 U.S.C. § 181

(emphasis added). Clearly, Congress did not intend to

limit the RLA or the corresponding air carrier exemption

to pilots or it would not have included such additional

broad-reaching language.

Federal courts that have analyzed the applicability

of the air carrier exemption have done so on the basis of

the employee’s relationship to the employer's

transportation activities, not on the existence of hours-of-

work regulations that overlap with the FLSA overtime

27a

provision. See e.g., Verrett v. The Sabre Group. Inc., 70

F.Supp.2d 1277 (N.D. Okla. 1999); Northwest Airlines v.

Jackson, 185 F.2d 74 (8th Cir. 1950); Roland v. United

Airlines, Inc., 75 F.Supp. 25 (N.D. III. 1947).

Here, plaintiffs are loadmasters and/or ramp

supervisors who perform services for Atlas Air that “bear

more than a tenous [sic], negligible and remote

relationship to the transportation activities” of Atlas Air.

Plaintiffs, as loadmasters, were responsible for assuring

that cargo transported by Atlas Air met the aircraft’s

parameters for safe flight. Ramp supervisors, as the job

title implies, acted in a supervisory capacity overseeing

ramp operations.* As a result, their work as both

loadmasters and ramp supervisors was integral to the

transportation activities of Atlas Air, and plaintiffs are

properly subject to the air carrier exemption to the

overtime provisions of the FLSA.

CONCLUSION

Atlas Air is entitled to summary judgment on

plaintiffs’ claims for overtime compensation under the

FLSA. As plaintiffs’ concede, there are no material

disputes of fact in this case; and, as the undisputed facts

demonstrate, Atlas Air is a common carrier by air subject

to the RLA. The undisputed facts also demonstrate that

the work performed by plaintiffs as loadmasters and ramp

supervisors was intimately related to Atlas Air’s

transportation activities so that the air carrier exemption

applies to them. As a result, plaintiffs are subject to that

* The parties make no distinction between loadmasters and ramp

supervisors in discussing the application of the air carrier exemption to this

case.

28a

exemption and cannot prevail on their claims for overtime

compensation in this case.

Accordingly, the Court hereby GRANTS

Defendant’s Motion for Summary Judgment as to both

counts of the Complaint.

DONE AND ORDERED in Chambers, at Miami,

Florida this 21st day of December, 2001.

TED E. BANDSTRA

United States Magistrate Judge

29a

APPENDIX D — DISTRICT COURT CASES,

COLLECTED IN BREUER uv. JIM'S CONCRETE OF

BREVARD, INC., HOLDING THAT CLAIMS BROUGHT

PURSUANT TO THE FAIR LABOR STANDARDS ACT OF

1938 ARE REMOVABLE.

. Ehle v. Williams & Boshea, L.L.C., 2002 U.S. Dist.

LEXIS 4142, Slip Copy, 2002 WL 373271 (E.D. La. 2002);

2. Hesni v. Williams & Boshea, L.L.C., 2002 U.S.

Dist. LEXIS 4138, Slip Copy, 2002 WL 373273 (E.D. La.

2002);

. Shaw v. CF Data Corp., 2001 U.S. Dist. LEXIS

16651, Slip Copy, 2001 WL 1326528 (N.D. Tex. 2001);

4. Roseman v. Best Buy Co., Inc., 140 F. Supp. 2d

1332 (S.D. Ga. 2001);

5. Valdivieso v. Atlas Air, Inc., 128 F. Supp. 2d 1371

(S.D. Fla. 2001);

6. Brown v. Sasser, 128 F. Supp. 2d 1345 (M.D. Ala.

2000);

7. Mincy v. Staff Leasing, L.P., 100 F. Supp. 2d 1050

(D. Ariz. 2000);

8. Chapman v. 8th Judicial Juvenile Prob. Bd., 22 F.

Supp. 2d 583 (E.D. Tex. 1998);

9. H & R Block, Ltd. v. Housden, 24 F. Supp. 2d 703

(E.D. Tex. 1998);

10. Lisai v. Chevron Stations, Inc., 1997 U.S. Dist.

LEXIS 20841, 1997 WL 694705 (N.D. Tex. 1997);

30a

11. + Barroisv. Hilton Title, 1996 U.S. Dist. LEXIS 8172,

1996 WL 312063 (E.D. La. 1996);

12. Brown v. Luk, Inc., 1996 U.S. Dist. LEXIS 7173,

1996 WL 280831 (N.D.N.Y. 1996);

13. Trouttv.StavolaBros.,Inc.,1994 U.S. Dist. LEXIS

19819, 1994 WL 773148 (M.D.N.C. 1994);

14. Loutfy v. R.R. Donnelley & Sons Co., 1992 U.S.

Dist. LEXIS 6142, 1992 WL 97761 (N.D. Il. 1992);

15. | Waldermeyer v. ITT Consumer Fin. Corp., 767 F.

Supp. 989 (E.D. Mo. 1991);

16. Nesbitt v. Bun Basket, Inc., 780 F. Supp. 1151

(W.D. Mich. 1991);

17. Isaacv. Wm. H. Pflaumer & Sons, Inc., 1990 U.S.

Dist. LEXIS 8892, 1990 WL 102808 (E.D. Pa. 1990);

18. Fraternal Order of Police, Red Rose Lodge No. 16

by Gainer v. City of Lancaster, 1989 U.S. Dist. LEXIS

6341, 1989 WL 60440 (E.D. Pa. 1989);

19. Spiethv. R & B Appliance Parts, 1989 WL 56486

(D. Ariz. 1989);

20. Jacobson v. Holiday Travel, Inc., 110 F.R.D. 424

(E.D. Wis. 1986);

21. Ramosv.H.E. Butt Grocery Co., 632 F. Supp. 342

(S.D. Tex. 1986);

31a

22. Taylor v. Brown, 461 F. Supp. 559 (E.D. Tenn.

1978);

23. Barrett v. McDonald's of Okla. City, 419 F. Supp.

792 (W.D. Okla. 1976);

24. Anthonyv. West Coast Drug Co., 331F. Supp. 1279

(W.D. Wash. 1971);

25. Hill v. Moss-Am., Inc., 309 F. Supp. 1175 (N.D.

Miss. 1970);

26. Goettel v. Glenn Berry Mfrs., Inc., 236 F. Supp.

884 (N.D. Okla. 1964);

27. Niswander v. Paul Hardeman, Inc., 223 F. Supp.

74 (E.D. Ark. 1963);

28. Buckles v. Morristown Kayo Co., 132 F. Supp. 555

(E.D. Tenn. 1955);

29. Rossiv. Singer Sewing Mach. Co., 127 F. Supp. 53

(D. Conn. 1953); and

30. Swettman v. Remington Rand, Inc., 65 F. Supp.

940 {S.D. Ill. 1946).

32a

APPENDIX E — DISTRICT COURT CASES,

COLLECTED IN BREUER v. JIM'S CONCRETE OF

BREVARD, INC., HOLDING THAT CLAIMS BROUGHT

PURSUANT TO THE FAIR LABOR STANDARDS ACT OF

1938 ARE NOT REMOVABLE.

4 Lopezv. Wal-Mart Stores, Inc., 111 F.Supp. 2d 865

(S.D. Tex. 2000);

2. Esquivel v. St. Andrews Constr., 999 F. Supp. 863

(N.D. Tex. 1998);

3. Pauly v. Eagle Point Software Co., Inc., 958 F.

Supp. 437 (N.D. Iowa 1997);

4. Courtwright v. Bd. of Regents of Cent. Mo. State

Univ., 1991 U.S. Dist. LEXIS 17238, 1991 WL 255594

(W.D. Mo. 1991);

5. Bintrim v. Bruce-Merilees Elec. Co., 520 F. Supp.

1026 (W.D. Pa. 1981);

6. Haun v. Retail Credit Co., 420 F. Supp. 859 (W.D.

Pa. 1976);

7. Carter v. Hill & Hill Truck Line, Inc., 259 F. Supp.

429 (S.D. Tex. 1966);

8. Wilkins v. Renault Southwest, Inc., 227 F. Supp.

647 (N.D. Tex. 1964);

9. Zorilla v. Puerto Rican Cement Co., 227 F. Supp.

159 (D.P.R. 1964);

334

10. Rolon v. Flexicore Co., 216 F. Supp. 954 (D.P.R.

1963);

11. Dando v. Stonhard Co., 93 F. Supp. 270 (W.D. Mo.

1950); and

12. Maloy v. Friedman, 80 F. Supp. 290 (N.D. Ohio

1948).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.