Petition for Writ of Certiorari — Walters v. American Coach Lines of Miami, Inc.

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09-779 DEC 302008

No.

William KX. Suter, Clerk

Iu Whe

Supreme Court of the Anited States

ELMON WALTERS, ALIX PROVENCE,

CHARLENE BLACKSHEAR, CEDRIC JORDAN

and all others similarly situated,

Petitioners,

versus

AMERICAN COACH LINES OF MIAMI, 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

ROBERT A. ADER, ESQ.

ELIZABETH B. HITT, Esq.

Counsel of Record

LAW OFFICES OF ROBERT A. ADER, P.A.

100 S.E. 2nd Street, Suite 3550

Miami, Florida 33131-2154

305.371.6060

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does the current trend of expanding the scope

of the FLSA’s motor carrier exemption by reading into

49 U.S.C. § 13501 DOT jurisdiction over wholly

in-state transportation contravene fundamental con-

stitutional tenets forbidding judicial interpretation of

clear, unambiguous statutes, and vitiate jurispru-

dence that requires exemptions to the FLSA to be

construed narrowly and in favor of furthering the

humanitarian purpose of the FLSA?

2. Where we are instructed to construe the

FLSA’s motor carrier exemption narrowly, may

courts go beyond the plain language of 49 U.S.C.

§ 13506(aX8XA) to broaden DOT jurisdiction and

deny overtime rate pay to drivers of purely local,

wholly in-state transportation?

3. Does the denial of overtime rate pay to

drivers of purely local, wholly in-state transportation

comport with, or further, the legislative purpose of

the FLSA or. the MCA?

LIST OF PARTIES AND CORPORATE

DISCLOSURE STATEMENT

The following is a list of all parties to the pro-

ceeding in the circuit and district courts whose judg-

ment is sought to be reviewed, as well as a corporate

disclosure statement as required by Rule 29.6.

Petitioners:

Barrett, Teddy

BellaF leur, Jean F.

Blackshear, Charlene

Brown, Richard Kevin

Burns, Bennie

Chambers, Gilbert

Chapman, Gwendolyn

D’Elia, Joseph

Dobson, Pashun

Ferrer, Richard

Fletcher, David

Harper, Dwayne

Hernandez, Ricardo Nunez

Jackson, Felicia

Jefferson, Melvin

Jordan, Cedric

Lee, Christopher

Lee, Rogers

LIST OF PARTIES AND CORPORATE

DISCLOSURE STATEMENT — Continued

Legrand, Herve

Lewis, Rupert

McConico, Yvonne

Moran, Jome

Morejon, Israel

Moreno, Luis

Moreno, Ramon

Munoz, Francisco

Pedrozo, Scarllet

Price, Lloyd

Provence, Alix

Rosenthal, Brant

Roswess, Clifford

Saenz, Juan Carlos

Saunders, Dwayne

Sheffield, Buford

Sinclair, Charlie

Smith, Callisto

Valega, Oscar

Valera, Flor G.

Veliz, Carlos Eduardo

Walters, Elmon

LIST OF PARTIES AND CORPORATE

DISCLOSURE STATEMENT - Continued

Yera, Felix

Zeliner, Frederick

Counsel for Petitioners:

Robert Ader, Esq.

Elizabeth B. Hitt, Esq.

Law Offices of Robert Ader, P.A.

Respondent and Respondent’s Affiliates:

ACL Leasing, LLC

America Charters, Ltd.

American Coach Lines of Atlanta, Inc.

American Coach Lines of Jacksonville, Inc.

American Coach Lines of Miami, Inc.

American Coach Lines of Orlando, Inc.

American Coach Lines, Inc.

B & A Charter Tours, Inc.

Coach Am Group Holdings, Corp.

Coach Am Holdings, Corp.

Coach America Group Holdings, LP

Coach America Group, Inc.

Coach America Holdings, Inc.

CUSAASL, LLC

CUSA AT, LLC

CUSA AWC, LLC

LIST OF PARTIES AND CORPORATE

DISCLOSURE STATEMENT — Continued

CUSA BCCAE, LLC

CUSA BESS, LLC

CUSA CC, LLC

CUSA Corporate Travel, LLC

CUSA CSS, LLC

CUSA EE, LLC

CUSA ELKO, LLC

CUSA ES, LLC

CUSA FL, LLC

CUSA FTT, LLC

CUSA GCBS, LLC

CUSA GCT, LLC

CUSA KBC, LLC

CUSA K-TCS, LLC

CUSA Leasing, LLC

CUSA PCSTC, LLC

CUSA PRTS, LLC

CUSA RAZ, LLC

CUSA Transit Services, LLC

CUSA, LLC

KBUS Holdings, LLC

Lakefront Lines, Inc.

Midnight Sun Tours, Inc.

LIST OF PARTIES AND CORPORATE

DISCLOSURE STATEMENT -— Continued

Royal Tours of America, Inc.

Southern Coach Company

Southern Tours, Inc.

The McMahon Transportation Company

Tippett Travel, Inc.

Trykap Airport Services, Inc.

Trykap Transportation Management, Inc.

No publicly held corporation owns 10% or more of

the stock of American Coach Lines of Miami, Inc.

Counsel for Respondent:

Michael W. Casey, III, Esq.

Richard D. Tuschman, Esq.

Kevin E. Vance, Esq.

Epstein, Becker & Green, P.C.

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Vil

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................0....24. i

LIST OF PARTIES AND CORPORATE DIS-

CLOSURE STATEMENT ........................22.20005- ii

TABLE OF CONTENTS ....... inaduauecgisscernicconssnibods vii

SN CIEE sasdrapisasucncsancunpinssvaneniocseneanessnt l

STATEMENT OF JURISDICTION ..................... l

STATUTORY PROVISIONS INVOLVED............ l

STATEMENT OF THE CASE...... uskmadbienbensenne jaa ae

REASONS FOR GRANTING THE WRIT ........... 9

I. THIS COURT SHOULD CONSIDER THIS

CASE DUE TO THE TREND OF EX-

PANDING THE SCOPE OF THE FLSA’S

MOTOR CARRIER EXEMPTION BY

READING INTO 49 U.S.C. § 13501 DOT

JURISDICTION OVER WHOLLY IN-

STATE TRANSPORTATION, DESPITE

FUNDAMENTAL CONSTITUTIONAL

TENETS WHICH PROHIBIT JUDICIAL

INTERPRETATION OF CLEAR AND

UNAMBIGUOUS STATUTES, AND IN

CONTRAVENTION OF OUR OBLIGA-

TION TO CONSTRUE EXEMPTIONS TO

THE FLSA NARROWLY, IN FAVOR OF

FURTHERING THE HUMANITARIAN

jet) 6 26 gy. 9 P|) eon 10

Sew rwr a” .. Dee ee ££ Ov are ec Stet hi os

Vill

TABLE OF CONTENTS — Continued

Page

Il. THIS COURT SHOULD CONSIDER THIS

CASE TO RESOLVE AN IMPORTANT

QUESTION OF STATUTORY CON-

STRUCTION: WHETHER, CONSISTENT

WITH OUR FUNDAMENTAL DUTY

TO CONSTRUE THE FLSAS MOTOR

CARRIER EXEMPTION NARROWLY,

COURTS MAY GO BEYOND THE

PLAIN LANGUAGE OF 49 U.S.C.

§ 13506(aX8A) TO FIND DOT JURIS-

DICTION, THE DIRECT RESULT OF

WHICH BROADENS THE SCOPE OF

THE MOTOR CARRIER EXEMPTION

AND DENIES OVERTIME PAY TO

DRIVERS OF PURELY LOCAL TRANS-

III suiiic anicuilansbonigesguibneecnapecouneanss 17

Ill. THIS COURT SHOULD CONSIDER THIS

CASE TO DETERMINE WHETHER

APPLYING THE MOTOR CARRIER EX-

EMPTION TO PRECLUDE OVERTIME

RATE PAY FOR EMPLOYEES ENGAGED

IN PURELY LOCAL, WHOLLY IN-STATE

TRANSPORTATION FURTHERS THE

PURPOSE OF THE FAIR LABOR STAN-

DARDS ACT OR THE MOTOR CARRIER

TABLE OF CONTENTS — Continued

Page

TABLE OF APPENDICES

Walters v. American Coach Lines of Miami,

Inc., 575 F.3d 1221 (11th Cir. 2009) ................ App. |

Walters v. American Coach Lines of Miami,

Inc., 569 F.Supp.2d 1270 (S.D. Fla. 2008).....App. 31

Walters v. American Coach Lines of Miami,

Inc., Denial of Rehearing and Rehearing En

EDUTUC .100000scccevecencssesessenaeenealeaabaeeseeeesuenenes App. 109

49 CODE OF FEDERAL REGULATIONS

Te yy hy laanees App. 111

TABLE OF AUTHORITIES

Page

CASES

A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 65

fe ke | eee eee nase 16, 29

Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 80

S.Ct. 453 (1960)........ sscinatasaaialadassplaaimaiacasaimanae Secamed 9,10

Beggs v. Kroger Co., 167 F.2d 700 (8th Cir.

SN ihunaueskatausneuseiens nieueadindadaasidbkaadeidscamiaa sealnaae

Bilyou v. Dutchess Beer Distrib., Inc., 300 F.3d

Be Ne Ge Bei iktkccnsnictcktstenscusnnseessaasenns 12, 21, 22

Brewster v. Gage, 280 U.S. 327, 50 S.Ct. 115

unetlncasubecivenmnekausssanieéensennneensia 23

Citicorp Industrial Credit, Inc. v. Brock, 483

U.S. 27, 107 S.Ct. 2694 (1987)..........................11, 16

Conn. Nat. Bank v. Germain, 503 U.S. 249, 112

S.Ct. 1146 (1992)........... ‘i dgideaiaeemaneamadasioeuane 15, 23

Foxworthy v. Hiland Dairy Co., 997 F.2d 670

ERT EI’ TI cisinintnecceteebsiunevhadanmauinammaanniomnminadiain 12

Friedrich v. U.S. Computer Services, 974 F.2d

i he, Serene iamnanaie veeeDl

Hoffman ov. First Student, Inc., No. AMD

06-1882, 2009 WL 1783536 (D. Md. June 23,

Re eames sa ciauisdiiabenaaliss elielaisedanebaciaiieatanaas raed

King v. Asset Appraisal Services, Inc., 470

F.Supp.2d 1025 (D. Neb. 2006)........................20202-21

Klitzke v. Steiner Corp., 110 F.3d 1465 (9th Cir.

GNITTD ccinsiietnssiactemauarniia cagiieaaacokieneaeene PeCpe ena

TABLE OF AUTHORITIES — Continued

Page

Lamie v. United States Trustee, 540 U.S. 526,

124 S.Ct. 1023 (2OOAS).........ccccccccccccccescceccrees 15, 23, 24

Levinson v. Spector Motor Service, 330 U.S.

649, 67 S.Ct. 931 (1947).................. 12, 14, 15, 18, 27

Mielke v. Laidlaw Transit, Inc., 102 F.Supp.2d

988 (N_D. Ill. 2000).......-.c0ccccccecceceeseeeeeeeeees 21, 22, 23

Nicholson v. World Bus. Network, Inc., 105 F.3d

Rg ee See

Overnight Motor Transp. Co., Inc. v. Missel,

316 U.S. 572, 62 S.Ct. 1216 (1942)............. 25, 26, 27

Packard v. Pittsburgh Transp. Co., 418 F.3d

BAG (Sd Clr. BOOB) .....cccccccccccccsccccecccssees sae 13, 14, 15

Pyramid Motor Freight Corp. v. Ispass, 330

eB Re, , eee ee 12

Reich v. New Mt. Pleasant Bakery, Inc., No.

89-CV-581, 1993 WL 372270 (N.D.N_Y. Sept.

Sins TET cniddiisemienecnambediiinsisinnetlibaemdmeeiatdieiiame a ne iee eta 22

Southland Gasoline Co. v. Bayley, 319 U.S. 44,

I - 27

Tennessee Coal, Iron & Ry. Co. v. Muscoda

Local No. 123, 321 U.S. 590, 64 S.Ct. 698

6 ee ee AE Mn Eee 9,10

United States v. Granderson, 511 U.S. 39, 114

Fy Bg”. FREER EE ee mae ED arn 24

Wachovia Bank v. Schmidt, 546 U.S. 303, 126

Ee re ee PO one 19

TABLE OF AUTHORITIES — Continued

Page

Walling v. Jacksonville Paper Co., 317 U.S.

564, 63 S.Ct. 332 (1943)........ - . | 13

Walters v. American Coach Lines of Miami,

Inc., 569 F.Supp.2d 1270 (S.D. Fla. 2008)....... l

Walters v. American Coach Lines of Miami,

Inc., 575 F.3d 1221 (11th Cir. 2009) .. ae |

STATUTES

28 U.S.C. § 1254(1) masa

28 U.S.C. § 1331 4

29 U.S.C. § 207(aX1). ictanehaaneeel

RF Rg | SERS eee enone passim

49 U.S.C. § 303(aX 10) (1940) masaie

49 U.S.C. § 13501 ... .... passim

Sn na, Ut EIEN ons cntccucevcushessetecsobesensdoummapeseaesnenvenennela 2

49 U.S.C. § 13506 ....... ao Os £06 ee ee

49 U.S.C. § 13506(a\X 8A) passim

49 U.S.C. § 31502 ..... Jensdedaiiesiiaada LeseveeePASSLM

Pub. L. No. 110-244, § 306(a)&(c), 122 Stat

1620 (2008).............. | OLRM EOE EE

TABLE OF AUTHORITIES ~— Continued

Page

FEDERAL REGULATIONS

ge RS a ee 28

49 C.F-R. § 395.5(b\2) ........... i cinsaieabaadseasisninds aeloesieanageia 28

I os encenaiensinnanannnesesuess 18

OTHER AUTHORITIES

John J. George, The Federal Motor Carrier Act

of 1935, 21 CORNELL LAW QUARTERLY 265

Pl hcinabsaccsnsecadiavarsiobbenicequecieiomenminctarcees 26, 27

Labor Law — Inapplicability of The Fair Labor

Standards Act of 1938 To Employees Within

The Scope of The Motor Carrier Act of 1935, 1

VANDERBILT LAW REVIEW 306 (1947-48).................. 27

Pat Michael, Asleep At the Wheel: What’s Wrong

With Trucking, http://www.newbiedriver.com/

articles/WhatsWrongWithTrucking.htm................ 28

OPINION BELOW

The opinion of the United States Court of

Appeals for the Eleventh Circuit is reported at

Walters v. American Coach Lines of Miami, Inc., 575

F.3d 1221 (11th Cir. 2009). The decision of the U.S.

District Court, Southern District of Florida is

reported at 569 F.Supp.2d 1270 (S.D. Fla. 2008).

These opinions are reproduced in the Appendix at

1-30 and 31-108, respectively.

STATEMENT OF JURISDICTION

The Eleventh Circuit filed its decision on July 23,

2009, and entered an order denying Petitioners’

motion for rehearing and rehearing en banc on

October 5, 2009. Appendix at 109-10. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1) to review

the circuit court’s decision on a writ of certiorari.

STATUTORY PROVISIONS INVOLVED

29 U.S.C. § 213(b)(1)

The Fair Labor Standards Act, at 29 U.S.C.

§ 213(b\1) provides, in pertinent part:

(b) Maximum hour requirements

The provisions of section 207 of this title

shall not apply with respect to —

(1) any employee with respect to whom the

Secretary of Transportation has power to

establish qualifications and maximum hours

of service pursuant to the provisions of

section 31502 of Title 49... .

49 U.S.C. § 31502

49 U.S.C. § 31502 provides, in part:

(a) Application. — This section applies to

transportation —

(1) described in sections 13501 and 13502

of this title. .. .

(b) Motor carrier and private motor

carrier requirements. — The Secretary of

Transportation may prescribe requirements

for —

(1) qualifications and maximum hours of

service of employees of ... a motor

carrier. ...

49 U.S.C. § 13501

49 U.S.C. § 13501 provides:

The Secretary and the Board have juris-

diction, as specified in this part, over

transportation by motor carrier ... to the

extent that passengers, property, or both, are

transported by motor carrier —

(1) between a place in —

(A) a State and a place in another State;

(B) a State and another place in the same

State through another State;

territory or possession of the United States

to the extent that transportation is in the

United States;

(D) the United States and another place in

the United States through a foreign country

to the extent the transportation is in the

United States; or

(E) the United States and a place in a

foreign country to the extent the trans-

portation is in the United States; and

(2) in a reservation under the exclusive

jurisdiction of the United States or on a

public highway.

49 U.S.C. § 13506(a)(8)(A)

49 U.S.C. § 13506(aX8)A), under the heading

“Miscellaneous motor carrier transportation exemp-

tions”, imparts, in significance:

(a) In general. — Neither the Secretary nor

the Board has jurisdiction under this part

over —

+ + +

(8XA) transportation of passengers’ by

motor vehicle incidental to transportation by

aircraft;

STATEMENT OF THE CASE

Petitioners are a group of shuttle bus drivers cur-

rently or formerly employed by Respondent American

Coach Lines of Miami, Inc. (“ACLM7”), a private motor

carrier company that provides for-hire ground trans-

portation of passengers.

Petitioners brought this action, in the USS.

District Court for the Southern District of Florida,

invoking the court’s jurisdiction over federal ques-

tions, under 28 U.S.C. § 1331, alleging that they were

not paid overtime rate pay as mandated by the

Fair Labor Standards Act (“FLSA”). See 29 U.S.C.

§ 207(aX1). Admitting that most of its drivers rou-

tinely work(ed) in excess of forty hours per week, and

that it does not pay its drivers overtime rate pay,

Respondent ACLM claimed that, as a motor carrier, it

is exempt from the FLSA’s overtime provisions,

pursuant to 29 U.S.C. § 213(bX1) — what has become

commonly known as the FLSA’s “motor carrier

exemption”.

Pursuant to its motor carrier exemption, the

FLSA specifically exempts from its overtime wage pay

requirement “any employee with respect to whom the

Secretary of Transportation has power to establish

qualifications and maximum hours of service pursu-

ant to the provisions of section 31502 of Title 49”.

29 U.S.C. § 213(bX1). 49 U.S.C. § 31502 provides that

the Secretary of Transportation may prescribe

requirements for qualifications and maximum hours

of service, but expressly limits its own application to

transportation described in 49 U.S.C. § 13501. In

turn, § 13501 provides the Secretary of Trans-

portation and the Surface Transportation Board

“General Jurisdiction” over deliberately enumerated

transportation, to wit, transportation by motor

carrier:

(1) between a place in —

(A) aState and a place in another State;

(B) a State and another place in the same

State through another State;

territory or possession of the United States

to the extent that transportation is in the

United States;

(D) the United States and another place in

the United States through a foreign country

to the extent the transportation is in the

United States; or

(E) the United States and a place in a for-

eign country to the extent the transportation

is in the United States; and

(2) im a reservation under the exclusive

jurisdiction of the United States or on a

public highway.

49 U.S.C. § 13501. The FLSA accordingly exempts

from overtime pay employees engaged in transporta-

tion over which the Secretary of Transportation has

explicit statutorily-derived jurisdiction.

As the vast majority of the transportation pro-

vided by Respondent ACLM occurred wholly within

the State of Florida, and was primarily localized,

ACLM argued that its ground transportation of

passengers to and from regional airports and seaports

constituted “interstate” transportation generating

entitlement to the motor carrier exemption from over-

time pay requirements.’ Respondent claimed that,

notwithstanding 49 U.S.C. § 13501’s specific delinea-

tion of the types of transportation over which the

Secretary of Transportation holds jurisdiction, the

scope of the FLSA’s motor carrier exemption has

been interpreted to include “interstate” transporta-

tion encompassing entirely intrastate transportation

which forms a part of an overall journey beginning or

ending out of state.

Petitioners countered by asserting that the

courts are bound by the plain, unambiguous language

of 49 U.S.C. § 13501, which explicitly limits DOT’

jurisdiction to transportation expressly set forth in

this statute and, particularly where we are admon-

ished to apply a narrow construction to the FLSA’s

motor carrier exemption, we cannot go beyond the

jurisdictional purview of the statute to read into

it a jurisdictional basis with which to employ the

‘ ACLM’s out-of-State trips amount to far less than one

percent of its overall trips. Appendix (hereafter “App.”) at 6, n. 7.

* Petitioner utilizes “DOT” interchangeably to reference the

Department of Transportation, as well as the Secretary of

Transportation.

exemption; thus, the DOT does not have jurisdiction

over ACLM’s local shuttle service for purposes of

denying local shuttle drivers their overtime pay.

Petitioners further argued that under 49 U.S.C.

§ 13506, Congress deliberately divested the DOT of

jurisdiction over the “transportation of passengers by

motor vehicle incidental to [their] transportation

by aircraft.” As ACLM’s airport-to-seaport ground

shuttle service fell squarely under the regulatory

definition of transportation “incidental to air”, Peti-

tioners claimed the DOT had no jurisdiction over the

shuttle service ACLM maintained was “interstate”,

and thus the motor carrier exemption did not apply.

The parties’ respective positions were fully

briefed in the district court on cross motions for

summary judgment. In ruling thereon, the court:

(1) declined to depart from what it considered the

majority view of circuit courts which have “‘explored

the scope of the Motor Carrier Act exemption via

inquiry into the presence or absence of interstate

commerce”, and thus refused to limit the jurisdic-

tional scope of DOT to transportation specifically

provided under the plain language of 49 U.S.C.

§ 13501, App. at 66, n. 13; and, (2) found that, not-

withstanding the statute’s clear language, in ratifying

49 U.S.C. § 13506(a)(8A), Congress really meant only

to repudiate DOT jurisdiction over economic issues,

not safety-related issues, such as qualifications and

maximum hours of service. App. at 83-92. Deciding

that the DOT held jurisdiction over ACLM’s local

airport-to-seaport shuttle service, the district court

ruled that the Petitioner drivers were not entitled to

their overtime pay.

On appeal, the Eleventh Circuit affirmed the

rulings of the district court, reasoning: (1) in light of

the stream of case law which has interpreted DOT

jurisdiction to include entirely in-state transportation,

the Petitioner/Appellants’ plain language reading of

49 U.S.C. § 13501 was “restrictive” and, therefore,

would not be adopted by the Circuit, App. at 18-20;

and, (2) because the scope of the DOT’s jurisdiction is

determined solely by the strictures of 49 U.S.C.

§ 13501, none of the exceptions to DOT jurisdiction,

including the incidental-to-air exception, are relevant,

and, in any event, despite the statutory wording,

Congress likely meant to deny only economic

jurisdiction over transportation incidental-to-air. App.

at 20-25.

Petitioners contend that the courts erred in going

beyond the plain language of § 13501 to read into the

statute a jurisdictional basis, and additionally erred

in looking beyond § 13506(a)(8XA)’s clear repudiation

of authority over transportation incidental-to-air, to

find jurisdiction for purposes of applying the FLSA’s

motor carrier exemption to drivers of Respondent’s

purely localized, wholly intrastate airport-seaport

shuttle service.

On October 5, 2009, the Eleventh Circuit denied

Petitioners’ petition for rehearing and rehearing en

banc. App. at 109-10.

——————————— —————e

REASONS FOR GRANTING THE WRIT

This case concerns the continued validity of

rulings of this Court, which clearly dictate that

exemptions to the Fair Labor Standards Act (“FLSA”)

must be narrowly construed in order to further the

remedial and humanitarian purpose of the Act. See

Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80

S.Ct. 453 (1960) (exemptions to the FLSA’s coverage

are to be narrowly construed as against the employer

asserting them); 7ennessee Coal, Iron & Ry. Co. v.

Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct.

698 (1944), superseded by statute on other grounds

(recognizing that the FLSA is a remedial statute,

humanitarian in purpose). Although axiomatic in

concept, these principles have waned in execution, in

the weke of various decisions of circuit and district

courts which have found it appropriate to go beyond

the plain language of statutes in order to broaden the

scope of the FLSA’s motor carrier exemption to the

overtime pay requirement.

Petitioners most respectfully assert that the cur-

rent practice of reading into pertinent statutes lan-

guage which appears nowhere therein, amounts

to a judicial bestowal of Congressionally-limited

jurisdiction, contravening fundamental constitutional

tenets, and inhibiting the determinedly wide humani-

tarian grasp of the FLSA, in favor of exemptions

thereto. Clearly this is not in accord with our charge

to construe FLSA exemptions narrowly and in favor

of the employee. The resultant deprivation of the right

to overtime pay for countless numbers of persons

providing wholly in-state, local transportation, was

not the intent of the framers in drafting either the

FLSA’s motor carrier exemption or the Motor Carrier

Act, 49 U.S.C. § 10101, et seq. (hereafter “MCA”).

I. THIS COURT SHOULD CONSIDER THIS

CASE DUE TO THE TREND OF EXPAND-

ING THE SCOPE OF THE FLSA’S MOTOR

CARRIER EXEMPTION BY READING

INTO 49 U.S.C. § 13501 DOT JURISDICTION

OVER WHOLLY IN-STATE TRANSPORTA-

TION, DESPITE FUNDAMENTAL CONSTITU-

TIONAL TENETS WHICH PROHIBIT

JUDICIAL INTERPRETATION OF CLEAR

AND UNAMBIGUOUS STATUTES, AND IN

CONTRAVENTION OF OUR OBLIGATION

TO CONSTRUE EXEMPTIONS TO THE

FLSA NARROWLY, IN FAVOR OF FUR-

THERING THE HUMANITARIAN PUR-

POSE OF THE FLSA.

In Tennessee Coal, 321 U.S. at 597, declaring the

FLSA a remedial statute with a humanitarian pur-

pose, this Honorable Court realized: “We are not here

dealing with mere chattels or articles of trade but

with the rights of those who toil. .. . Those are rights

that Congress has specifically legislated to protect.

Such a statute must not be interpreted or applied in a

narrow, grudging manner.” For that reason, the Court

has cautioned that exemptions from FLSA’s coverage

are to be narrowly construed against the employer

asserting them. Arnold, 361 U.S. at 392.

Indubitably, FLSA exemptions provided “in detail

and with particularity ... preclude enlargement by

implication”. Citicorp Industrial Credit, Inc. v. Brock,

483 U.S. 27, 35, 107 S.Ct. 2694, 2699 (1987). There is

nothing vague about the FLSA’s motor carrier exemp-

tion; 29 U.S.C. § 213(bX1) clearly provides that the

exemption only pertains to employees with respect to

whom the DOT has power to establish qualifications

and maximum hours of service “pursuant to the

provisions of section 31502 of Title 49”. In turn,

§ 31502 states, with precision, that the ability to

establish qualifications and maximum hours of

service is dependent upon the DOT's jurisdiction as

conferred by 49 U.S.C. § 13501. Tracking the statutes,

as we are instructed for purposes of the motor carrier

exemption, we find the plain language of § 13501

limits DOT jurisdiction to transportation expressly

listed therein — in short, transportation which crosses

a state line.

Despite the admonition to afford a narrow con-

struction to the FLSA’s motor carrier exemption,

courts, including the Eleventh Circuit, have broad-

ened the reach of 29 U.S.C. § 213(b)(1), by directly

expanding the scope of 49 U.S.C. § 13501 (the statute

which indisputably affords, and defines the param-

eters of, the Secretary of Transportation’s jurisdiction

over enumerated transportation’), by reading into its

> As the Eleventh Circuit recognized, “49 U.S.C

§ 31502(aX1) references § 13501 to determine the scope of the

(Continued on following page)

jurisdictional purview the term “interstate commerce”

and further defining this nebulous concept to include

wholly in-state transportation which forms a part of

the practical continuity of movement across state

lines. Courts, therefore, discount the fact that

Congress, through § 13501, has prescribed specific

limitations on the Secretary’s jurisdiction, conferring

jurisdiction only insofar as the transportation runs

cross-border. ’

While this Court long ago employed the term

“interstate commerce” in the few decisions it issued

concerning the motor carrier exemption,’ it has never

rendered an opinion which analytically discusses the

issue or provides any rationale to justify going beyond

the plain wording of § 13501 to find a jurisdictional

basis with which to widen the scope of the motor

carrier exemption to encompass employees engaged

in “interstate” transportation. Circuit courts, following

Secretary's authority under the MCA, ... to indicate to what

transportation the MCA applies.” App. at 21.

* See, e.g., Bilyou v. Dutchess Beer Distrib., Inc., 300 F.3d

217, 223 (2nd Cir. 2002); Klitzke v. Steiner Corp., 110 F.3d 1465,

1470 (9th Cir. 1997); Foxworthy v. Hiland Dairy Co., 997 F.2d

670, 672 (10th Cir. 1993); Beggs v. Kroger Co., 167 F.2d 700, 702-

03 (8th Cir. 1948).

* Had Congress wished the motor carrier exemption to

preclude the right to overtime pay for employees engaged in

“interstate commerce”, it would have so worded 29 U.S.C

§ 21% bX 1), or even 49 U.S.C. § 31502 or § 13501. It did not.

* See Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695,

67 S.Ct. 954 (1947); Levinson v. Spector Motor Service, 330 U.S

649, 67 S.Ct. 931 (1947).

sixty-year-old decisions of this Court, likewise apply

the motor carrier exemption to entirely in-state

transportation, without analyzing the propriety of

judicially creating DOT jurisdiction to deny workers

their overtime pay. As more courts feel constrained by

their predecessors’ rulings, the bevy of case law

finding that the motor carrier exemption applies to

workers involved in purely local, wholly intrastate

transportation continues to mount (in exponential

proportion), notwithstanding that the Nation’s High-

est Court has never addressed the issue.

One circuit court Judge has, however. In Packard

v. Pittsburgh Transp. Co., 418 F.3d 246 (3d Cir. 2005),

Judge Nygaard of the Third Circuit, in a well-

reasoned concurring opinion, acknowledged the

impropriety of looking beyond 49 U.S.C. § 13501’s

jurisdictional scope, where the statute’s plain lan-

guage is itself “dispositive.” 418 F.3d at 259 (Nygaard,

J., concurring). Judge Nygaard found it utterly

unnecessary (and impliedly improper) to interpret the

term “interstate commerce” where such a term never

appears in the statute itself. Jd. at 260-61 (providing

a history of the misdirected focus on “interstate com-

merce” with respect to the motor carrier exception).

Judge Nygaard’s unassailable analysis explains

that those circuit courts which have interpreted the

motor carrier exemption to include the term inter-

state commerce, have done so by erroneously relying

on this Court’s opinion in Walling v. Jacksonville

Paper Co., 317 U.S. 564, 63 S.Ct. 332 (1943), a

decision which spoke to the threshold requirements

for application of the FLSA, as found in §§ 206 and

207 of the Act, and did not consider the term inter-

state commerce in relation to exemptions from the

FLSA overtime pay requirements, codified under

§ 213 of the FLSA. Packard, 418 F.3d at 259, n. 11

(Nygaard, J. concurring). Thus, courts which have

expanded the contours of 49 U.S.C. § 13501 to include

the term “interstate commerce” in its jurisdictional

scope, have based their decision on faulty analysis.

Id.

The assumption that it is necessary to decipher

the term “interstate commerce” within the context of

the motor carrier exemption, is also derived, as Judge

Nygaard further explains, from language in the

renowned Levinson opinion, in which this Court held

that the Interstate Commerce Commission (now

DOT) had the power to establish qualifications and

maximum hours of service for employees of a motor

carrier whose emp’osyment “affects the safety of

transportation ... in interstate commerce.” Id. at 259

(quoting Levinson v. Spector Motor Service, 330 U.S.

649, 687, 67 S.Ct. 931 (1947)) (emphasis added). “It

would appear”, he adeptly reasons, that the Levinson

Court’s use of the term originated from “the then-

existing statutory definition” of interstate commerce

as: “commerce between any place in a State and any

place in another State ... whether such commerce

moves wholly by motor vehicle or partly by motor

vehicle and partly by rail, express, or water.” Id. at

260 (quoting 49 U.S.C. § 303(aX10) (1940)). Because

the current, relevant version of the Motor Carrier Act

contains a jurisdictional statute — § 13501, added

post-Levinson — we must look to the plain language of

that statute in order to determine the scope of the

motor carrier exemption. Jd.

Unfortunately, it appears that no other court has

endeavored to ascertain the suitability of applying an

obsolete statute, used back in the Levinson days, in

lieu of the current and unambiguous jurisdictional

statute, § 13501, to which the motor carrier exemp-

tion expressly directs us. Even in the case at bar,

when specifically asked to engage in such examina-

tion, the courts below both declined, opting instead to

look only to case law and regulatory opinion (which

provide no analysis of the issue), without further

scrutiny.

While Judge Nygaard’s Packard opinion faith-

fully comports with canons of statutory construction,

those courts that have thought it prudent to engage

in an interpretive analysis of a statute undeniably

clear on its face, fail to heed this Court’s continued

decree that we cannot go beyond the plain language

of a statute to supply language which alters its scope

or meaning, for to do so is to invade the province of

the Legislature. See, e.g., Lamie v. United States

Trustee, 540 U.S. 526, 538-39, 124 S.Ct. 1023 (2004)

(discussing the error of reading an absent word into a

statute to effectuate a change in its scope, noting

long-standing “deference to the supremacy of the

Legislature”); Conn. Nat. Bank v. Germain, 503 U.S.

249, 253-54, 112 S.Ct. 1146 (1992) (recognizing as the

“cardinal canon” of statutory interpretation the rule

that courts “must presume that a legislature says in

a statute what it means and means what it says

there.... When the words of a statute are unam-

biguous, then, this first cannon is also the last:

‘judicial inquiry is complete’.”). It is not within the

realm of the judiciary to travel outside clear statutory

prescriptions to judicially confer jurisdiction beyond

that which Congress specifically authorized. Respect-

fully, those courts that have inserted into § 13501’s

jurisdictional purview the term “interstate commerce”

and attempted to discern its meaning through case

law and regulatory definition, have acted beyond

their constitutional boundaries.’

This Court has repeatedly “refused ‘[t]o extend

an exemption to other than those plainly and

unmistakably within [the FLSA’s] terms and spirit.’”

Citicorp, 483 U.S. at 35 (quoting A.H. Phillips, Inc. v.

Walling, 324 U.S. 490, 493, 65 S.Ct. 807 (1945)). In

order to maintain the viability of this principle, and

because the Court has never rendered an opinion

which speaks to the propriety of extending the scope

of 49 U.S.C. § 13501 to include “interstate commerce”

for purposes of broadening the FLSA’s motor carrier

exemption, Petitioners most respectfully implore this

Honorable Court to consider the issue which will,

" As § 31502’s Revision Notes make clear: “Subsection (a) is

included te maintain the jurisdictional scope of the source

provisions from which subsections (b) and (c) of the revised

section are taken.”

undoubtedly, affect an untold many local shuttle

drivers.

il. THIS COURT SHOULD CONSIDER THIS

CASE TO RESOLVE AN IMPORTANT QUES-

TION OF STATUTORY CONSTRUCTION:

WHETHER, CONSISTENT WITH OUR FUN-

DAMENTAL DUTY TO CONSTRUE THE

FLSA’S MOTOR CARRIER EXEMPTION

NARROWLY, COURTS MAY GO BEYOND

THE PLAIN LANGUAGE OF 49 U.S.C.

§ 13506(a)(8)(A) TO FIND DOT JURISDIC-

TION, THE DIRECT RESULT OF WHICH

BROADENS THE SCOPE OF THE MOTOR

CARRIER EXEMPTION AND DENIES

OVERTIME PAY TO DRIVERS OF PURELY

LOCAL TRANSPORTATION.

Notwithstanding the general grant of jurisdiction

found under 49 U.S.C. § 13501, Congress has created

exceptions to DOT jurisdiction within the very same

chapter, Chapter 135 titled “Jurisdiction”, the effect

of which is to strip from the Secretary’s general

authority certain specified types of transportation. 49

U.S.C. § 138506(aX8XA) (2002) relates, “[nleither the

Secretary nor the Board has jurisdiction under this

part over ... transportation of passengers by motor

vehicle incidental to transportation by aircraft”.* Fre-

quently referred to as the incidental-to-air statute,

* Section 13506 is titled “Miscellaneous motor carrier

transportation exemptions”.

§ 13506(a)(8XA) specifically and unequivocally divests

from DOT jurisdiction the ground transportation of

passengers which is incidental to their air travel.

There is no question that Respondent ACLM’s

airport/seaport shuttle service falls squarely within

the statutory and regulatory definition of trans-

portation “incidental-to-air”.” Nor is there any dispute

that absent DOT jurisdiction over the transportation

in question, the motor carrier exemption will not

foreclose an employee’s right to overtime pay. See 29

U.S.C. § 213(bX1); see also, Levinson, 330 U.S. at 660.

As with their expansion of 49 U.S.C. § 13501’s

general grant of DOT jurisdiction, the district and

* DOT regulations codify the criteria for employing the

incidental-to-air statute:

(a) Passengers having an immediately prior or subse-

quent movement by air. The transportation of pas-

sengers by motor vehicle is transportation incidental

to transportation by aircraft provided (1) that it is

confined to the transportation of passengers who have

had or will have an immediately prior or immediately

subsequent movement by air and (2) that the zone

within which motor trausportation is incidental to

transportation by aircraft ... shall not exceed in size

the area encompassed by .a 25-mile radius of the

boundary of the airport at which the passengers

arrive or depart. .. .

49 C.F.R. § 372.117. App. at 111. There was no dispute that

ACLM’s shuttle service was confined to the transportation of

passengers having an immediate prior or subsequent movement

by air, nor any dispute that the subject airport-to-seaport

transportation was provided within a 25-mile radius of South

Fiorida airports.

circuit courts again stretched beyond plain statutory

language, this time finding that, despite its clear,

comprehensive repudiation of jurisdiction over trans-

portation incidental-to-air, § 13506(aX8XA) saves to

the Secretary the authority to regulate qualifications

and maximum hours of service of employees engaged

in the ground transportation of airline passengers. In

so determining, the courts opined that 49 U.S.C.

§ 31502 plainly meant to incorporate only the types of

transportation listed under § 13501," and not any

exceptions to the Secretary’s jurisdiction listed

elsewhere in the jurisdictional statutes, “which

therefore seem to be irrelevant.” App. at 21. But,

where § 13501 bestows jurisdiction “as specified in

this part”, exceptions to jurisdiction, contained in the

very same part, cannot be immaterial in determining

jurisdictional scope. See Wachovia Bank v. Schmidt,

546 U.S. 303, 315-16, 126 S.Ct. 941 (2006) (find, under

the rule of in pari materia, “statutes addressing the

* Notably, this view directly conforms with Petitioner’s

earlier argument (see, supra, Section I) that the DOT's juris-

diction is limited to the transportation specifically referenced in

§ 13501 — a reading the circuit court found too “restrictive” when

the court allowed the insertion of the term “interstate com-

merce” to be read into the statute. App. at 18. The circuit court

then conversely decided that, “[tJhere is no indication that

[§ 31502(aX1)] is meant to incorporate anything other than the

descriptions of transportation contained in § 13501”, App. at 21,

and found a “restrictive” reading of § 13501 appropriate to reject

Petitioners’ argument that § 13506(aX8\A) divests the DOT of

jurisdiction over transportation incidental-to-air. Petitioners

maintain that these two rulings cannot be squared.

same subject matter generally should be read ‘as if

they were one law.’”).

As further reason to beget jurisdiction, both

courts again thought it fitting to travel beyond clear

statutory language and engage in statutory inter-

pretation, by looking to the text of the predecessor

incidental-to-air statute, to derive language saving

to the DOT authority over safety-related issues

involving transportation incidental to air." To be

sure, in enacting the current, pertinent version of

§ 13506(aX8XA), Congress did not reserve to the DOT

the power to prescribe regulations regarding driver

qualification and hours of service; nowhere in the

statute does such a reservation of jurisdiction exist.

Still, the courts maintained that because the statute’s

predecessor expressly acknowledges such a reservation,

" A prior version of the incidental-to-air statute contained

limiting language, expressly retaining ICC regulatory authority

over qualifications and maximum hours of service, thereby

becoming what was referred to as an economic exclusion:

Nothing in this part, except the provisions of Section

204 relative to qualifications and maximum hours of

service of employees and safety of operations or

standards of equipment shall be construed to include

... the transportation of persons or property when

incidental to transportation by aircraft. . . .

203(bX7a) of the Interstate Commerce Act (emphasis added).

Through the years the statute was recodified and the limiting

language removed, and, in 1996, when the ICC was abolished, it

appeared in current form, as § 13506(aX8\A), mandating that

the DOT has no jurisdiction over transportation incidental to air.

the legislature must have meant the current version

to contain the same reservation.

Noting that no other court has addressed the

scope of 49 U.S.C. § 13506(aX8)A), the circuit court

relied on Bilyou v. Dutchess Beer Distributors, Inc.,

300 F.3d 217, 223 (2nd Cir. 2002), which similarly

looked to legislative history to reach its holding that

§ 13505 limited only the DOT's jurisdiction over

economic matters, for purposes of determining the

applicability of the FLSA’s motor carrier exemption.

App. at 22-25. But, Bilyou’s historical trek cannot be

utilized to support its notion that an antiquated

version of a statute applies to supplant a current

version of the statute. To the extent that the court

relied on Bilyou to do just that, Petitioners maintain

that such was improper.”

Mielke v. Laidlaw Transit, Inc., 102 F.Supp.2d

988 (N.D. Ill. 2000), unlike Bilyou, fully analyzed the

issue to find that were, pursuant to §$ 13506,

* The court additionally noted its reliance upon other cases

which have similarly determined the scope of DOT jurisdiction;

however, these opinions also fall exceedingly short in their analy-

sis, discussing only the obsolete version of the statute which,

again, expressly reserves jurisdiction relative to qualifications

and maximum hours of service. See King v. Asset Appraisal

Services, Inc., 470 F.Supp.2d 1025, 1031-32 (D. Neb. 2006) (re-

lying almost exclusively on Bilyou, and citing cases, likewise

deficient in analysis, involving the now obsolete version of the

statute); Klitzke, 110 F.3d at 1148 & n. 2 (relying on the statute’s

former codification); Friedrich v. U.S. Computer Services, 974

F.2d 409, 415 (3d Cir. 1992) (same).

Congress expressly denied the DOT jurisdiction over

certain transportation, such exceptions to jurisdiction

worked to strip the DOT of authority to regulate

driver qualifications and maximum hours of service,

thus the motor carrier exemption did not apply to

foreclose the right to overtime pay. Paying homage to

manifest principles of constitutional jurisprudence,

Mielke rejected the argument that § 13506’s exemp-

tions worked only to deny DOT jurisdiction over eco-

nomic regulations, recognizing that the legislature’s

deletion of the defunct statute’s limiting language cut

against the argument that the legislature meant to

reserve to the DOT the power to regulate quali-

fications and maximum hours of service: “we simply

cannot credit the argument that, although Congress

deleted the reservation language, it clearly intended

the reservation to continue.” Jd. at 991.

Mielke has never been overturned, is squarely on

point, well-reasoned, and remains good law.” Never-

theless, the circuit court opted to align itself with

Bilyou, finding it more “persuasive” to support its

decision. App. at 24. Yet, in adopting and utilizing

Bilyou’s analysis of antiquated statutes to employ an

expansive reading of the modern-day incidental-to-air

statute, the court concomitantly expanded the motor

" See also, Reich v. New Mt. Pleasant Bakery, Inc., No. 89-

CV-581, 1993 WL 372270, at *5 (N.D.N.Y. Sept. 13, 1993)

(concluding that what is now 49 U.S.C. § 13505 exempts from

DOT jurisdiction drivers delivering baked goods, such that the

FLSA’s motor carrier exemption did not apply).

carrier exemptic.. in contravention of its duty to

apply a narrow construction to the FLSA’s exemp-

tions. At least one other court has recognized the

incongruity this has caused, acknowledging, “[tlo be

sure, Mielke’s approach is fully consistent with the

well-settled doctrine that FLSA exemptions and ex-

ceptions are to be construed narrowly against the

employer seeking to assert them”; yet, that court, too,

has chosen to ignore this recognition, favoring instead

a broad construction. Hoffman v. First Student, Inc.,

No. AMD 06-1882, 2009 WL 1783536, at *6 (D. Md.

June 23, 2009) (ultimately ruling that § 13506(a)1)

does not usurp DOT's ability to regulate quailifi-

cations and hours of service for school bus drivers).

It is not the courts’ function to re-write statutes.

Once again, we cannot insert language into a statute

which would alter the meaning of its plain language,

as to do so would be to encroach on the distinct

province of the legislature. Lamie, 540 U.S. at 538-39.

Nor is it the judiciary’s function to engage in statu-

tory interpretation in order to reach what the judi-

clary presumes is the intent of the legislature. Conn.

Nat., 503 U.S. at 253-54. Particularly where the

legislature has chosen to excise language from a

predecessor statute, we must assume that Congress’

action in doing so was deliberate and with the intent

to effectuate a change. Brewster v. Gage, 280 U.S.

327, 337, 50 S.Ct. 115 (1930) (“deliberate selection of

language ... differing from that used in the earlier

Acts” indicates that “a change of law was intended”).

With the utmost respect, Petitioners submit that

the courts erred in reaching beyond the plain lan-

guage of the MCA’s incidental-to-air statute, to

employ an expansive interpretation of a statute,

already clear on its face. In the end, it is for the

Legislature, not the courts, to amend the incidental-

to-air statute, should it see fit. United States v.

Granderson, 511 U.S. 39, 68, 114 S.Ct. 1259 (1994).

Until that time, should it come, the incidental-to-air

statute is clear and requires no interpretation: the

DOT does not have jurisdiction (economic or other-

wise) over ground transportation which is incidental

to a passenger’s travel by air.

Insofar as Petitioners claim that their localized

airport-to-seaport passenger shuttle service is trans-

portation congressionally excluded from DOT juris-

diction, via 49 U.S.C. § 13506(a)(8XA), and thus

outside the reach of the DOT for purposes of the

FLSA’s motor carrier exemption, this case is one of

first impression. Given the far-reaching impact the

lower courts’ rulings will undoubtedly have on vir-

tually hundreds of thousands of persons engaged in

“ While courts may believe that Congress intended a re-

sult different from that clearly prescribed by 49 U.S.C.

§ 13506(aX8XA) when it drafted the legislation, “[i]t is beyond

our province to rescue Congress from its drafting errors, and to

provide for what we might think ... is the preferred result.”

Granderson, 511 U.S. at 68. “If Congress enacted into law

something different from what it intended, then [Congress]

should amend the statute to conform it to its intent.” Lamie, 540

U.S. at 542.

wholly localized transportation of airport passengers,

it 1s imperative that this Court address the issue.

Allowing courts to transcend the plain language of

the exceptions from DOT jurisdiction for purposes of

employing the motor carrier exemption serves to

sanction courts’ recent proclivity towards expanding

the exemptions to the FLSA — an Act already fraught

with exemptions — and permit employers to circum-

vent the FLSA’'s overtime pay mandate.

It. THIS COURT SHOULD CONSIDER THIS

CASE TO DETERMINE WHETHER APPLY-

ING THE MOTOR CARRIER EXEMPTION

TO PRECLUDE OVERTIME RATE PAY

FOR EMPLOYEES ENGAGED IN PURELY

LOCAL, WHOLLY IN-STATE TRANSPOR-

TATION FURTHERS THE PURPOSE OF

THE FAIR LABOR STANDARDS ACT OR

THE MOTOR CARRIER ACT.

This Court long ago recognized that the purpose

of the FLSA’s overtime wage provision was not to

altogether prohibit working excess hours, but to

financially pressure employers to reduce employee

hours, while at the same time spreading employment.

Overnight Motor Transp. Co., Inc. v. Missel, 316 U.S.

572, 577-78, 62 S.Ct. 1216 (1942), superseded by

statute on other grounds. “In a period of widespread

unemployment and small profits, the economy inher-

ent in avoiding extra pay was expected to have an

appreciable effect in the distribution of available

work. Reduction of hours was a part of the plan from

the beginning.” /d. at 578. Congress therefore

concerned itself with a pervasive problem in many

industries “the evil of ‘overwork’” and thus

produced legislation premised upon employee “pro-

tection from excessive hours”, by statutorily providing

a limitation on hours (40) which Congress determined

was reasonable. /d.

When discussing the initial codification of the

Motor Carrier Act of 1935, legislators specifically

considered including therein a provision limiting the

hours of service for employees of carriers. See John J.

George, The Federal Motor Carrier Act of 1935, 21

CORNELL LAW QUARTERLY 265 (1935-36). The center-

piece of their concern was for a more humane treat-

ment of employees who were then working upwards

of 18 to 20 hours a day: “‘Drivers’ drowsiness’ appears

a potent cause of highway accidents and the

contention is ably made that such a cause inevitably

results from the lengthy hours to which truck and bus

drivers are subjected.” Jd. While proponents of the

inclusion of a provision statutorily limiting driver

hours reasoned that excessive hours have deleterious

effects on drivers, and that these exhausted drivers

present a “serious endangering of life on the

highways”, id. at 266, those opposing a statutory

limitation of driver hours argued that the “particular

demands of truck and bus operation preclude a rigid

schedule of hours”. Jd. Ultimately, the opponents

prevailed and the MCA was passed with no provision

limiting the number of driver hours of service.

As legislative history recounts, the MCA was

intended to regulate the over-the-road or long-haul

trucking/busing industries which were under tremen-

dous constraints to timely deliver cargo (due to

spoilage issues and the like) or passengers traveling

great distances, in order to compete with the already

regulated cross-country railroads. Certainly, drivers

of inner-city shuttles, running purely localized

service, did not face these same issues requiring them

to expend “100-120 hours [working] with only 2 or 3

hours of rest.” Jd. at 265.

The goals of the MCA and the FLSA, and the

legislative purpose behind the Acts, are not incon-

sistent.” Rather, both Acts’ objectives are aligned -

protecting workers from excessive hours, in order to

promote the health and safety of workers for the good

of the public at large. See Southland Gasoline Co. v.

Bayley, 319 U.S. 44, 48, 63 S.Ct. 917 (1943) (identify-

ing as a consideration of the MCA, “[slafety through

establishment of maximum hours for drivers”); see

also Overnight Motor, 316 U.S. at 578. Moreover, the

FLSA’s overtime wage mandate furthers the purpose

* The alleged competing interests of the DOT and the DOL,

with regard to regulation of employees’ hours, is recognized to

have arisen from a reference in this Court’s Levinson opinion;

however, it is also noted that even the Levinson Court “did not

show any inconsistency” between the MCA’s safety program and

the overtime requirements of the FLSA. See Labor Law -—

Inapplicability of The Fair Labor Standards Act of 1938 to

Employees Within The Scope of The Motor Carrier Act of 1935, 1

VANDERBILT LAW REVIEW 306, 308, n.11 (1947-48).

of the MCA by financially incentivizing employer

carriers to curb drivers’ hours of service to 40 per

week, rather than the 70 hours per week allotted by

the MCA,” which carriers remain unmotivated to

enforce.”

Our Legislature appears to have begun to appre-

ciate that the FLSA’s motor carrier exemption was

not meant to attach to certain types of transportation.

On June 6, 2008, the Legislature enacted the

SAFETEA-LU Technical Corrections Act of 2008,

which, inter alia, modified the FLSA’s motor carrier

exemption by specifically affirming that the FLSA’s

overtime provisions apply to employees who drive

motor vehicles weighing 10,000 pounds or less and

transport eight or less passengers. Pub. L. No.

‘© Current DOT regulations permit drivers to drive ten

hours per day, and work an additional five hours a day in non-

driving time, for a total working day of 15 hours; see 49 C.F.R.

§ 395.5(aX1)&(2); the DOT allows drivers to work up to 70 hours

in an eight-day stretch, id. at § 395.5(bX2) — far from the 40-

hour workweek Congress deemed reasonable under the FLSA.

" As one former driver explains, drivers are routinely made

to falsify their driver logbooks to reflect fewer hours than

actually worked, in order that they may continue to work beyond

that allotted by federal and state departments of transportation.

See Pat Michael, Asleep At the Wheel: What’s Wrong With

Trucking, http://www.newbiedriver.com/articles/WhatsWrongWith

Trucking.htm. If the financial pressure contemplated by the

FLSA’s overtime wage provision were applied to motor carriers,

there can be no doubt that carriers would rise to their charge of

keeping track of, and strictly enforcing restrictions on, drivers’

hours of service, thus achieving the safety objectives of both the

FLSA and the MCA. Id.

110-244, § 306(a)&(c), 122 Stat. 1620 (2008). In doing

so, Congress thus has distinguished between light-

weight transportation, impliedly local in nature, and

heavyweight trucks and buses which, by their nature,

are meant for longer, cross-border transportation.

While it may not be practicable to limit long-haul

delivery drivers to 40 hours per week, such a

limitation is certainly feasible for local shuttle

drivers.

Petitioners do not herein ask this Honorable

Court to change or amend the FLSA’s motor carrier

exemption. Petitioners ask only that the Court

implement the existing statutes, relative thereto, in

accordance with their plain language — 49 U.S.C.

§ 13501’s statutory limitation to transportation which

runs across a state line — and in conformity with the

original legislative intent that worker safety be para-

mount. There is no reason to go beyond the clear

wording of the statutes, particularly when an expan-

sive interpretation of the statutes does not conform

with legislative intent. To date, no court has provided

any reason for the current practice of ignoring the

plain language of § 13501 to deny drivers of wholly

intrastate, purely local transportation their overtime

pay under the auspices of the motor carrier exemp-

tion. “To extend an exemption to other than those

plainly and unmistakably within its terms and spirit

is to abuse the interpretive process and to frustrate

the announced will of the people.” A.H. Phillips, 324

U.S. at 493. Likewise, no court has yet attempted to

square a 70-hour workweek for drivers of local

ground shuttle services with the health and safety

concerns of the legislature in enacting either the

FLSA or the MCA. “To read the FLSA blindly, without

appreciation for the social goals Congress sought,

would also do violence to the FLSA’s spirit.” Nichol-

son v. World Bus. Network, Inc., 105 F.3d 1361, 1364

(11th Cir. 1997).

The subject rulings of the lower courts will be

touted by virtually thousands of motor carriers

nationwide to initiate and support the denial of

overtime rate pay to countless employees whose

duties are strictly local in nature, and will subject

local drivers, as a requirement of their job, to work

well in excess of forty hours per week, presenting an

obvious and unnecessary danger to the general

public. This case presents the very opportunity for

this Honorable Court to render an opinion finding

that the subject statutes should be strictly construed,

in accordance with their plain language and the

social goals upon which they were premised, in order

to avoid such a glaring inequity.

CONCLUSION

For the reasons advanced, Petitioners most

respectfully ask the Supreme Court of the United

States to grant review of this Petition.

Respectfully submitted,

ROBERT A. ADER, Esq.

ELIZABETH B. HITT, Esq.

Counsel of Record

LAW OFFICES OF

ROBERT A. ADER, P.A.

100 S.E. 2nd Street,

Suite 3550

Miami, Florida 33131-2154

305.371.6060

Attorneys for Petitioners

App. 1

575 F.3d 1221

United States Court of Appeals,

Eleventh Circuit.

Elmo WALTERS, Alix Provence, Charlene

Blackshear, Cedric Jordan, and all others similarly

situated, Plaintiffs-Appellants,

Vv.

AMERICAN COACH LINES OF MIAMI, INC., a

Florida corporation, Defendant-Appellee.

No. 08-15636.

July 23, 2009.

Robert Ader, Elizabeth B. Hitt, Law Offices of Robert

Ader, P.A., Miami, FL, for Plaintiffs-Appellants.

Richard D. Tuschman, Michael W. Casey, III, Kevin

E. Vance, Epstein, Becker, Green, P.C., Miami, FL, for

Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of Florida.

Before DUBINA, Chief Judge, and BIRCH and

WILSON, Circuit Judges.

PER CURIAM:

This appeal requires us to determine whether

Appellants, who are all current or former bus drivers

for American Coach Lines of Miami (“ACLM7”), are

subject to a provision in the Fair Labor Standards Act

(“FLSA”), 29 U.S.C. §§ 201 et seqg., exempting from

the FLSA’s overtime requirements any employees

who fall under the jurisdiction of the Secretary of

Transportation under the Motor Carrier Act (“MCA”).

App. 2

The district court found Appellants to be eligible for

this “motor carrier” exemption and therefore granted

the portion of ACLM’s motion for summary judgment

addressing Appellants’ claims for overtime wages.

After reviewing the recurd and the parties’ briefs and

hearing oral argument, we AFFIRM the grant of

summary judgment.

I. BACKGROUND

ACLM is a private motor carrier providing for-

hire ground transportation for passengers that holds

itself out to be an “interstate” motor carrier. It is

licensed with the United States Department of

Transportation (“DOT”), ‘olds all the authorizations

from the Federal Motor’ Carrier Safety Adminis-

tration (““FMCSA”) necessary to be an interstate

passenger motor carrier, and has been issued a DOT

number. Since 2004, federal transportation agencies

have audited ACLM at least twice, on at least one

occasion in combination with Florida authorities.

ACLM also requires its drivers to meet DOT safety

standards, which Florida has adopted as well. See

Fla. Stat. § 316.302. ACLM does not pay its drivers

overtime wages.

ACLM primarily provides transportation within

the state of Florida, though some of its business is

between Florida and other states. Much of ACLM’s

revenue comes from shuttling cruise ship passengers

between the Miami and Fort Lauderdale airports and

local hotels and cruise ship ports. Since September

App. 3

2006, ACLM has had a written contract to be the sole

provider of such transportation for Royal Caribbean

Cruise Lines (“Royal Caribbean”) during daytime

hours. ACLM asserts that between April 2006 and

December 2007 it transported more than 500,000

Royal Caribbean passengers, trips that resulted in

over $4.4 million in revenues. Appellants contend

that there is no proof that ACLM provided such

transport prior to September 2006, though they

appear not to dispute the total revenue figure. In

addition to this written arrangement with Royal

Caribbean, ACLM maintains that it earned over

$700,000 from earlier informal agreements to provide

similar shuttle transportation for Costa Cruises and

Princess Cruises. Appellants likewise dispute the

existence of such arrangements.

Under ACLM’s contract with Royal Caribbean, it

provides ground transportation for passengers who

book vacation packages through travel agents or

Royal Caribbean. For those passengers, ground trans-

portation is included as part of the overall package

and is not priced or itemized separately. Passengers

who do not pre-purchase ground transportation can

request shuttle service when they arrive at the

airport or cruise ship terminal, which will then be

charged to that passenger’s Royal Caribbean ac-

count.. Under the agreement, Royal Caribbean

‘ We can find nothing in the record stating whether a copy

of the passenger’s bill for this account would contain a separate

price or listing for this charge.

App. 4

provides ACLM with weekly manifests listing the

expected time, date, and number of passengers for

each shuttle trip. Royal Caribbean employees greet

passengers on arrival, contact ACLM when a bus is

required, and collect vouchers from passengers before

they board the bus. Royal Caribbean does not keep

the vouchers nor does it give them to ACLM; rather, it

gives ACLM a “load slip” with a head count for each

trip. ACLM then uses these load slips to invoice Royal

Caribbean for the trips. The agreement stated that

ACLM would receive payment only if a passenger

actually boarded the bus, with Royal Caribbean

deciding whether to pay based on a per-person or per-

bus rate.” As a result, ACLM receives all of its

payments from Royal Caribbean, rather than the

passengers.

In addition to these local shuttle services, ACLM

also provided other forms of in-state and out-of-state

motor coach transportation, including driving shuttle

bus ryutes at the University of Miami. Between 2004

and 2407, ACLM drivers made at least 148 trips that

involved out-of-state travel, some for as long as 90

days.’ Both parties agree that approximately $1.7

* In February 2008, the parties amended the agreement so

that Royal Caribbean would guarantee ACLM a minimum num-

ber of passengers per bus and would pay ACLM at a reduced

rate for each passenger below this minimum.

* ACLM and the district court both cited the 148-trip figure,

though there appear to be 150 out-of-state trips listed on the

spreadsheet provided by ACLM. The discrepancy may reflect the

fact that two entries are missing some data.

App. 5

million, or 4.06% of ACLM’s total revenue during that

period, came from these out-of-state trips and that

about 19% of its drivers made such trips.“ There

appear to have been 75 ACLM drivers who made out-

of-state trips during the time frame, which consti-

tutes 19.08% of the 393 drivers employed by ACLM

for that period.” Nine of the 63 Appellants (14.29%)

made out-of-state trips for ACLM, and Appellants

spent less than 286 days on such trips during the

period in question.” ACLM does not keep records of

how many trips its drivers make on a daily or annual

basis, and there is no solid evidence regarding how

many overall trips ACLM drivers made between 2004

and 2007 nor of what percentage of those trips

involved out-of-state travel. One ACLM executive

agreed that 10,000 total trips a year would be a

reasonable estimate. He stated that, if this estimate

were correct, then around 100 of those trips would

involve out-of-state travel, which would mean that

* According to our calculations, the percentage of revenue

from these trips ranged from a low of 1.40% in 2004 to a high of

7.93% in 2005.

* The district court cited a figure of 74 drivers, but both

parties appear to agree that 75 is correct. In any event, the

lower figure would be 18.83% of ACLM’s total workforce, so the

net effect of this discrepancy is negligible.

* Of those Appellants who were employed by ACLM for

more than a year, 6 of 23, or 26.09%, made such trips.

App. 6

approximately 1% of ACLM’s total trips were out of

state.’

In August 2007, three ACLM drivers brought suit

against ACLM in the United States District Court for

the Southern District of Florida. They alleged that

ACLM had violated the FLSA’s minimum wage and

overtime provisions and Florida’s whistleblower act.

In December of that year, a fourth named plaintiff

joined the suit, and the district court conditionally

certified the class of all drivers employed by ACLM

from 6 August 2004 to the present, a class that

eventually comprised 63 plaintiffs." Both parties filed

motions for summary judgment. The drivers moved

for partial summary judgment on, inter alia, the

applicability of the motor carrier exemption, whereas

ACLM moved for summary judgment on all of the

claims. In ACLM’s motion, it asserted that, as a

" Appellants attempt to assert that the actual percentage

should be 0.25% or less, a figure based on a total number of trips

that they derived by multiplying the ACLM executive’s estimate

of the number of buses on the road each day by the number of

days in a year. This calculation would be accurate only if each

bus averaged one trip per day. There is no evidence to support

that inference since some out-of-state trips lasted more than one

day and ACLM has not indicated how many shuttle runs it

conducts per day. However, if one assumed that the 10,000 trip-

a-year estimate was reasonable for 2007, then the 58 out-of-

state trips actually taken that year would constitute about 0.6%

of ACLM’s total for the year.

* A total of 60 drivers decided to opt in to the case, although

one later voluntarily dismissed his claim, leaving a total of 63

plaintiffs.

App. 7

motor carrier, it was exempt from the overtime

requirements of the FLSA and thus did not have to

pay overtime to the employees.

The district court granted in part and denied in

part the parties’ respective summary judgment

motions. The court found that all of the drivers, with

the exception of those who predominately drove

shuttle bus routes at the University of Miami, were

exempt from the FLSA’s overtime requirements by

virtue of the motor carrier exemption.” It therefore

granted ACLM’s summary judgment motion with

respect to the motor carrier exemption for the non-

shuttle bus drivers. The drivers moved for recon-

sideration of the order, which the court denied. The

court then entered final judgment against the non-

shuttle bus drivers on their overtime claims. Appel-

lants appealed that portion of the order granting in

part ACLM’s motion for summary judgment on the

issue of whether it was eligible for the motor carrier

exemption.

Il. DISCUSSION

We review a district court’s grant of summary

judgment de novo. See Waters v. Miller, 564 F.3d 1355,

1356 (11th Cir.2009). In conducting our review, we

* The district court denied ACLM’s summary judgment

motion with respect to the shuttle bus drivers. That decision is

not a part of this appeal.

App. 8

construe all facts and draw all reasonable inferences

in favor of the non-moving party. See id.

A. “Motor Carrter” Exemption

The FLSA requires employers to pay employees

at time-and-a-half for any time worked in excess

of forty hours per week. See 29 U.S.C. § 207(a1).

However, the act specifically exempts from this

requirement “any employee with respect to whom the

Secretary of Transportation has power to establish

qualifications and maximum hours of service pur-

suant to the provisions of” the MCA. Id. § 213(b)1).

Congress created this exemption to eliminate any

conflict between the jurisdiction exercised by the

Department of Labor (“DOL”) over the FLSA and the

mutually exclusive jurisdiction exercised by the DOT

over the MCA. See Spires v. Ben Hill County, 980 F.2d

683, 686 (llth Cir.1993). Because of this congres-

sional intent, the Secretary of Transportation does

not have to exercise the authority granted to him by

the MCA for the motor carrier exemption to be

applicable; instead, his power to regulate under the

act merely needs to cover a particular group of

employees. See id.

We construe FLSA exemptions narrowly against

the employer.” See Jeffery v. Sarasota White Sox, Inc.,

” ACLM insists that this principle of construction should

not apply to the motor carrier exemption because Congress

intended that exemption to draw a boundary between the

(Continued on following page)

App. 9

64 F.3d 590, 594 (11th Cir.1995) (per curiam). The

employer bears the burden of showing its entitlement

to the exemption. See id. The Secretary of Trans-

portation has authority under the MCA “to regulate

the maximum hours of service of employees who are

employed (1) by a common carrier by motor vehicle;

(2) engaged in interstate commerce; and (3) whose

activities directly affect the safety of operations of

such motor vehicles.” Spires, 980 F.2d at 686; see also

49 U.S.C. §31502(bX1); 29 C.FR. § 782.2(a). The

MCA indicates that the Secretary has this power for,

inter alia, all transportation described in 49 U.S.C.

§ 13501. See 49 U.S.C. § 31502(a)(1). Section 13501 in

turn provides the Secretary with jurisdiction “over

transportation by motor carrier” in various contexts,

including between places in different states, between

places in the same state if the transport passes

through another state, and between the United

States and a foreign country to the extent that the

transportation occurs in the United States." Jd.

jurisdictions of the Secretaries of Transportation and Labor. It

contends that a narrow construction of the exemption would

impermissibly restrict the Secretary of Transportation’s MCA

jurisdiction. However, ACLM cites no cases supporting an alter-

nate rule, and the case it references for the notion of mutual

exclusivity explicitly construed the exemption narrowly. See

Spires, 980 F.2d at 689. We therefore see no reason to depart

from the traditional rule.

" For the period in question, the term “motor carrier” was

defined as “a person providing commercial motor vehicle (as de-

fined in [49 U.S.C.] section 31132) transportation for compen-

sation.” Id. § 13102(14) (2007). Section 31132 defines “commercial

(Continued on following page)

App. 10

§ 18501(1XA), (B), (E). The motor carrier exemption

applies only to those employees over whom the

Secretary of Transportation has this authority. See 29

C.F.R. § 782.2(a).

The applicability of the motor carrier exemption

“depends both on the class to which his employer

belongs and on the class of work involved in the

employee’s job.” Id. There are two requirements for

an employee to be subject to the motor carrier

exemption. First, his employer’s business must be

subject to the Secretary of Transportation’s juris-

diction under the MCA. See Baez v. Wells Fargo

Armored Serv. Corp., 938 F.2d 180, 181-82 (llth

Cir.1991) (per curiam); id. Second, the employee’s

business-related activities must “directly affect[] the

safety of operation of motor vehicles in the trans-

portation on the public highways of passengers or

property in interstate or foreign commerce within the

meaning of the Motor Carrier Act.” Baez, 938 F.2d at

182; see also 29 C.F_R. § 782.2(a). We address these

prongs in turn.

motor vehicle” as any “self-propelled or towed vehicle used on

the highways in interstate commerce to transport passengers or

property” that was “designed or used to transport more than

8 passengers (including the driver) for compensation.” /d.

§ 31132(1XB).

App. 11

B. Secretary’s MCA Jurisdiction over ACLM

For the first prong to be met, ACLM’s bus service

must be subject to the Secretary of Transportation’s

jurisdiction under the MCA. There are a number of

facts here to support such a finding. Most im-

portantly, ACLM was licensed by the DOT, has the

FMCSA authorizations necessary to be an interstate

motor carrier, and was audited in the past by the

DOT. As we have previously noted, the fact that a

company holds these kind of authorizations indicates

that the DOT has exercised jurisdiction over it. See

Baez, 938 F.2d at 182 (noting that the fact that

the Interstate Commerce Commission, which had

authority over the MCA at the time, issued a permit

to a company indicated that MCA jurisdiction already

had been exercised over that company). Additionally,

ACLM provided bus service that crossed state lines

and derived about 4% of its revenue from those trips.

It also held itself out as an interstate motor carrier.”

'* We acknowledge that the current version of the MCA no

longer contains language indicating that a company is subject to

the act if it “holds itself out to the general public” as an inter-

state motor carrier. 49 U.S.C. § 303(aX14) (1976); see Brennan v.

Schwerman Trucking Co. of Va., Inc., 540 F.2d 1200, 1204 (4th

Cir.1976) (finding that party was subject to the Secretary’s MCA

jurisdiction because it “at all times relevant hereto held itself

out as” an interstate motor carrier). It may be true, as Appel-

lants contend, that this change reflects Congress’ intent to

eliminate the possibility of the Secretary exercising jurisdiction

solely based on that factor. Nevertheless, we do not think it

completely eliminates our ability to consider what we deem a

relevant, albeit non-dispositive, factor.

App. 12

Appellants contend that a carrier must engage in

more than de minimus interstate commerce to fall

under the Secretary’s jurisdiction and that ACLM’s

small number of interstate trips would not meet this

standard. Appellants’ primary authority for such a

requirement is Morris v. McComb, 332 U.S. 422, 68

S.Ct. 131, 92 L.Ed. 44 (1947). In that case, the Su-

preme Court found a business to be subject to MCA

jurisdiction when about 3.65% of its total trips

stemmed from interstate commerce, along with 4% of

its revenues. See Morris, 332 U.S. at 427, 433-34, 68

S.Ct. at 133, 136-37. They also cite a number of other

district court cases imposing similar requirements.

See, e.g, Rossi v. Associated Limousine Servs., Inc.,

438 F.Supp.2d 1354, 1361 (S.D.Fla.2006). On the

whole, these cases suggest that a company’s inter-

state business is de minimus if it constitutes less

than one percent of the overall trips taken by the

company. See Turk v. Buffets, Inc., 940 F.Supp. 1255,

1261-62 (N.D.I11.1996) (summarizing cases).

The de minimus requirement may be inappli-

cable to situations such as this, where the company

has the appropriate federal licensing and there is

undisputed proof of some transportation that crosses

state lines. We can find no cases indicating that this

evidence, by itself, would not be enough to meet the

prong. Assuming arguendo that there is such a

requirement, we find ACLM to have met it. In ana-

lyzing the de minimus question, we find it pertinent

to consider both the number of interstate trips made

and the percentage of revenue the company earned

App. 13

from those trips. See Garcia v. Fleetwood Limousine,

Inc., 511 F.Supp.2d 1233, 1238 (M.D.Fla.2007). Al-

though Morris principally focused on the number of

trips made, we believe the amount of revenue derived

from those trips is likewise indicative of the degree to

which a business involves interstate transportation.

See Morris, 332 U.S. at 433-34, 68 S.Ct. at 137. In

this case, the actual number of trips that indis-

putably crossed state lines is relatively small, but the

percentage of revenues derived from those trips,

4.06%, is virtually identical to that which the

Supreme Court deemed sufficient to create MCA

jurisdiction in Morris.” We find this equivalency

adequate to justify the same conclusion with respect

to ACLM. We therefore find that ACLM has met the

first prong of the exemption test.

C. Secretary’s MCA Jurisdiction over Appel-

lants’ Work-Related Activities

Having found that the Secretary of Transpor-

tation has jurisdiction over ACLM, we turn to the

question of whether the Secretary’s jurisdiction also

encompasses Appellants’ work-related activities. As

previously noted, this would be the case only if they

were “engag{ing] in activities of a character directly

* Appellants question ACLM’s statements about its actual

revenues, which they assert reflect “turn-around” runs that

involved driving empty buses to and from a location. However,

as the district court noted, Appellants have not offered a legal

rationale for excluding these revenues.

App. 14

affecting the safety of operation of motor vehicles in

the transportation on the public highways of pas-

sengers or property in interstate or foreign commerce

within the meaning of the Motor Carrier Act.” 29

C.F.R. § 782.2(a). The parties do not dispute that

Appellants engaged in activities of a character that

directly affected the safety of operation of motor

vehicles. We thus need to determine whether these

activities constituted “interstate commerce” as that

term is understood in the MCA.

The DOL’s regulations indicate that the defini-

tions of the MCA itself determine what constitutes

transportation in interstate or foreign commerce

sufficient to bring an employee within the Secretary

of Transportation’s purview. See 29 C.F.R. § 782.7(a).

The MCA and FLSA do not have identical conceptions

of what constitutes interstate commerce. See id.

However, to make enforcement easier, the regulations

assume that a movement that would constitute

interstate commerce under the FLSA would likewise

constitute interstate commerce under the MCA, “ex-

cept in those situations where the [Interstate Com-

merce} Commission has held or the Secretary of

Transportation or the courts hold otherwise.” Id.

§ 782.7(bX1). Accordingly, if “it has been authori-

tatively held that transportation of a particular

character within a single State is not in interstate

commerce” under the MCA, there would be no motor

carrier exemption even if the facts established a

“practical continuity of movement’ from out-of-State

App. 15

sources,” which would constitute interstate commerce

under the FLSA. Id.

Courts are “guided by practical considerations” in

determining whether an employee’s activities would

be part of interstate commerce for purposes of the

FLSA. Marshall v. Victoria Transp. Co., Inc., 603 F.2d

1122, 1123 (5th Cir.1979) (quotation marks and cita-

tion omitted). “When persons or goods move from a

point of origin in one state to a point of destination in

another, the fact that a part of that journey consists

of transportation by an independent agency solely

within the boundaries of one state does not make that

portion of the trip any less interstate in character.”

United States v. Yellow Cab Co., 332 U.S. 218, 228, 67

S.Ct. 1560, 1566, 91 L.Ed. 2010 (1947), overruled on

other grounds by Copperweld Corp. v. Independence

Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d

628 (1984). As a result, purely intrastate transpor-

tation can constitute part of interstate commerce if it

is part of a “continuous stream of interstate travel.”

Chao v. First Class Coach Co., Inc., 214 F.Supp.2d.

1263, 1272 (M.D.Fla.2001). For this to be the case,

there must be a “practical continuity of movement”

between the intrastate segment and the overall

Although Yellow Cab involved a Sherman Anti-Trust Act

claim, courts have looked to it for guidance regarding the scope

of interstate movement under different statutes including the

MCA. See, e.g., Packard v. Pittsburgh Transp. Co., 418 F.3d 246,

256-57 & n. 10 (3d Cir.2005). If anything, Yellow Cab’s concep-

tion of interstate commerce may be more restrictive than that

applicable for FLSA claims. See Marshall, 603 F.2d at 1124.

App. 16

interstate flow. Walling v. Jacksonville Paper Co., 317

U.S. 564, 568, 63 S.Ct. 332, 335, 87 L.Ed. 460 (1943);

see also Bilyou v. Dutchess Beer Distribs., Inc., 300

F.3d 217, 223 (2d Cir.2002) (applying this standard in

analyzing applicability of motor carrier exemption).

In Marshall, we addressed a city bus service in

Brownsville, Texas, which often transported people

who had walked across the Mexican border before

boarding the bus. See Marshall, 603 F.2d at 1123-24.

We characterized the transportation of people making

international journeys as “a regular, recurring and

substantial part” of the bus drivers’ overall workload.

Id. at 1125. Because the drivers’ work thereby was

“entwined with a continuous stream of international

travel,” we concluded that the drivers were engaged

in interstate commerce, even though their routes

were solely intrastate.” Jd. The Supreme Court

* We reached a similar conclusion in a case addressing

“interstate commerce” in the context of the Commerce Clause.

See Executive Town & Country Servs., Inc. v. City of Atlanta, 789

F.2d 1523 (11th Cir.1986). That case involved an airport limou-

sine service, which transported out-of-state or international

passengers who had arranged for pick-up, along with local

residents who had not made such arrangements. See id. at 1525-

26. We noted that taxicab service from the airport generally

would not be part of the stream of interstate commerce because

it would play only a minor role in the taxicab company’s overall

business. See id. However, we found that this particular service

did form part of that stream because the pre-arranged nature of

the rides meant that 90% of its passengers were making

interstate journeys of which the wholly intrastate cab rides were

part of a continuous stream. See id.

App. 17

reached a similar conclusion in United States uv.

Capital Transit Co., 338 U.S. 286, 70 S.Ct. 115, 94

L.Ed. 93 (1949). That case involved a bus service that

drove routes within the District of Columbia that took

commuters to locations where they then could board

buses bound for Virginia. See id. at 288, 70 S.Ct. at

116. The Court found that the Interstate Commerce

Commission (“ICC”) had regulatory authority under

the MCA over those intra-district bus routes because

they were “part of a continuous stream of interstate

transportation” and thus formed “an integral part of

an interstate movement.” Jd. at 290, 70 S.Ct. at 117.

These cases indicate that ACLM’s airport-to-

seaport routes would come under the Secretary’s

MCA jurisdiction. Its shuttle trips share a practical

continuity of movement with the interstate or

international travel of the cruise lines and their

passengers, just as the Brownsville bus routes did for

their riders’ cross-border journeys. For cruise ship

passengers arriving at the airport or seaport, ACLM’s

shuttle rides would be part of the continuous stream

of interstate travel that is their cruise vacation. The

Royal Caribbean patrons in particular would have no

reason to have any alternate view since the fee for the

shuttle ride would either be bundled as part of their

cruise vacation package or would be included on the

bill for their Royal Caribbean shipboard account.

App. 18

D. Possible Limitations on Secretary’s MCA

Jurisdiction

Appellants make three arguments as to why we

should find ACLM not to have met the second prong,

which we address in turn. First, they maintain that

we should not read the motor carrier exemption as

applying to “interstate commerce” when that term

does not appear in the relevant statute. Second, they

assert that the Secretary is divested of jurisdic-

tion over ACLM’s airport-to-seaport routes by the

“incidental-to-air” exemption, 49 U.S.C. § 13506(a\(8 XA).

Third, they contend that those routes could constitute

interstate commerce only if there was a through-

ticketing arrangement between ACLM and an air

carrier.

1. Statutory Text

Appellants assert that the applicability of the

motor carrier exemption should be governed by the

plain text of the statutes. They maintain that this

language specifically limits the Secretarys MCA

transportation solely to transportation that actually

crosses state lines. See 49 U.S.C. § 13501(1). Accord-

ing to Appellants, this is the only permissible inter-

pretation of the Secretary’s jurisdiction, particularly

in light of our dictate to narrowly construe FLSA

exemptions, and that the airport-to-seaport routes

would not qualify as interstate under this rationale.

We decline to adopt such a restrictive reading.

Courts consistently have interpreted the scope of

App. 19

MCA exemptions using the “interstate commerce”

understanding. See, e.g., Bilyou, 300 F.3d at 223;

Foxworthy v. Hiland Dairy Co., 997 F.2d 670, 672

(10th Cir.1993). In fact, the only authority Appellants

can cite for their reading, apart from the statutory

text itself, is a concurring opinion in a Third Circuit

case, which no court since has followed. See Packard,

418 F.3d at 259-60 (Nygaard, J., concurring in judg-

ment). Moreover, that rationale is at odds with our

past cases finding MCA exemptions to apply to

workers whose activities involved exclusively intra-

state transportation or handling of goods that were

bound for out-of-state destinations. See Baez, 938

F.2d at 181-82 (finding armored car drivers who made

intrastate deliveries of checks which ended up outside

the state to be subject to motor carrier exemption);

Galbreath v. Gulf Oil Corp., 413 F.2d 941, 942, 947

(5th Cir.1969) (finding that motor carrier exemption

applied to drivers who performed solely intrastate

transportation of petroleum products that originated

out-of-state). Additionally, the DOL’s own regulations

appear to support applying the exemption to situa-

tions in which the activity at issue does not involve

interstate transit." See 29 C.F.R. § 782.7(b\(1) (noting

that “it will ordinarily be assumed ... that the inter-

state commerce requirements of the section 13(b)\1)

‘* Appellants have cited no decisions, other than the

Packard concurrence, holding to the contrary, so there is no

reason to think that the FLSA’s conception of interstate

commerce would not apply. See 29 C.F_R. § 782.7(bX1).

App. 20

exemption are satisfied” when the employee’s intra-

state transportation “is part of an interstate move-

ment of the goods or persons being thus transported

so as to constitute interstate commerce within the

meaning of the Fair Labor Standards Act”).

2. “Incidental-to-Air” Exemption

Appellants also contend that, even if the airport-

to-seaport routes would be considered part of inter-

state commerce, Congress divested the Secretary of

Transportation of jurisdiction over those routes by

enacting the “incidental-to-air” exemption, 49 U.S.C.

§ 13506(aX8XA). That provision states that “[nJeither

the Secretary nor the Board has jurisdiction under

this part over ... transportation of passengers by

motor vehicle incidental to transportation by air-

craft.” 49 U.S.C. § 13506(aX8)\A). DOT regulations

provide that such transport would be “incidental” if it

is limited to those passengers “who have had or will

have an immediately prior or immediately subse-

quent movement by air” and if it occurs entirely

within a 25-mile radius of the airport. 49 C.F.R.

§ 372.117(a).

Appellants argue that this exemption divests the

Secretary of jurisdiction under § 13501 over ACLM,

because that statute is the only provision under that

subpart of Title 49 to address jurisdictional issues.

Since the applicability of the motor carrier exemption

depends on whether the Secretary has power over a

motor carrier under § 13501, this reading would

App. 21

mean that the incidental-to-air exemption would

make the motor carrier exemption inapplicable to

ACLM. See 49 U.S.C. §31502(aX1). The parties do

not dispute that ACLM’s airport-to-seaport drives

would fall under the terms of the incidental-to-air

exemption because the drives all are immediately

prior or subsequent to air travel and occur within a

25-mile radius of the airport. The only issue we must

decide is whether the exemption would bar the

Secretary from exercising jurisdiction over ACLM

with respect to FLSA issues, which would thereby

make the motor carrier exemption inapplicable to the

company.

As the district court noted, Appellants’ argument

appears to be at odds with the plain language of the

statute. Though 49 U.S.C. § 31502(aX1) references

§ 13501 to determine the scope of the Secretary’s

authority under the MCA, it does so only to indicate

to what transportation the MCA applies. See id.

There is no indication that this provision is meant to

incorporate anything other than the descriptions of

transportation contained in § 13501. Any exemptions

to § 13501 would therefore seem to be irrelevant. This

reading is supported by the fact that § 31502(a) also

cites 49 U.S.C. § 13502, which contains a specific

carve-out from the Secretary's jurisdiction for trans-

portation between Alaska and other states that

occurs in a foreign country, but does not reference any

other possible jurisdictional exceptions to § 13501.

See id. §§ 13502, 31502(a)\(1).

App. 22

An examination of the background of the

incidental-to-air exemption further indicates that it

was not intended to limit the Secretary’s jurisdiction

over overtime issues. The difficulty in analyzing the

scope of the exemption derives from the wording of

the current version of the MCA, the parts of which

have been amended and separated over the years.

The original version of the act specifically stated that

the incidental-to-air exemption did not apply to

regulations under Section 204 of the MCA that

discussed such topics as maximum hours.” See id.

§ 303(bX 7a) (1948 ed.); see also Bingham v. Airport

Limousine Serv., 314 F.Supp. 565, 570 (W.D.Ark.1970)

(noting that the exemption did not limit the Secre-

tary’s authority under the MCA to impose hours and

safety regulations). However, Congress later revised

the statute and removed the references to Section 204

and wage and hour issues. The current version now

discusses eliminating the Secretary’s jurisdiction

under “this part.” Jd. § 13506(a)\8)A).

No court appears to have addressed the scope of

this specific exemption, but a number have examined

" That version stated:

Nothing in this part, except the provisions of section

204 relative to qualifications and maximum hours of

service of employees and safety of operation or stan-

dards of equipment shall be construed to include .. .

the transportation of persons or property by motor

vehicle when incidental to transportation by aircraft.

See 49 U.S.C. § 303(bX7a) (1948 ed.).

App. 23

similarly worded MCA exemptions. In Bilyou, for

example, the Second Circuit examined the legislative

history of 49 U.S.C. § 13505, which divested the Sec-

retary of jurisdiction under “this part” over trans-

portation unrelated to a primary business. 49 U.S.C.

§ 13505; see Bilyou, 300 F.3d at 225-29. Based on the

court’s examination, it found that the p.ovision ad-

dressed solely economic matters and therefore did not

limit the Secretary’s jurisdiction over issues relating

to safety and hours. See Bilyou, 300 F.3d at 226. The

court also commented that § 31502 is in a different

part of the MCA from the exemption at issue and that

the jurisdictional limitation imposed by that exemp-

tion would not impact the Secretary’s authority under

§ 31502.” See id.

Appellants cite one case, Mielke v. Laidlaw

Transit, Inc., 102 F.Supp.2d 988 (N.D.I11.2000), reach-

ing a contrary holding, i.e., that such an exemption

would eliminate the Secretary's MCA jurisdiction

over all matters relating to a particular motor carrier,

including with respect to the regulation of hours and

safety.” See Mielke, 102 F.Supp.2d at 990-92. That

" As the Second Circuit noted, at least two other circuits

have reached similar conclusions, albeit without engaging in the

same examination of legislative history. See Bilyou, 300 F.3d at

225 (citing Klitzke v. Steiner, 110 F.3d 1465, 1468 (9th Cir.1997);

Friedrich v. U.S. Computer Servs., 974 F.2d 409, 413 (3d

Cir.1992)).

” They contend that we should read Spires as supporting

this interpretation as well; however, it addressed the motor

(Continued on following page)

App. 24

court focused principally on the statutory text and

found that the reference to “this part” had to be read

as referring to the totality of the Secretary’s regu-

latory power. See id. However, no other court appears

to have adopted this rationale, and the few that have

addressed this issue since Bilyou and Mielke have

followed the interpretation of the former. See, e.g.,

King v. Asset Appraisal Servs., Inc., 470 F.Supp.2d

1025, 1031-32 (D.Neb.2006).

We likewise find Bilyou’s statutory analysis more

persuasive than Mielke’s. Though the current version

of the exemption does not contain specific references

to hours and safety regulation, the elimination of that

language likely reflects the fact that the separation of

the various sections of the MCA rendered the

reference to Section 204 meaningless. There is no

indication in the legislative history that Congress

intended to alter its original view regarding the effect

of the incidental-to-air exemption. See H.R.Rep. No.

96-1069 at 19 (1980), U.S.Code Cong. & Admin.News

1980, pp. 2283, 2301 (noting that revisions to the

exemption were made to reflect the fact that certain

kinds of transportation were exempt from economic

regulation by the ICC). Furthermore, as the Second

Circuit noted, the other subsections of the relevant

part of the MCA all appear to be at least tangentially

related to matters involving economic regulation,

carrier exemption in general and did not engage in any form of

statutory interpretation. See generally Spires, 980 F.2d 683.

App. 25

such as registration of motor carriers, financial re-

porting requirements, and merger and acquisition

regulation. See, eg., 49 U.S.C. §§ 13901, 14123,

14303. More importantly, the DOT’s own regulations

define “exempt motor carriers” as those exempt from

economic regulation under § 13506 but still subject to

safety regulations, such as maximum hours laws. See

49 C.F.R. § 390.5. Accordingly, we find that the

incidental-to-air exemption does not eliminate the

Secretary's authority to regulate maximum hours

under the FLSA.

3. “Through-Ticketing” Requirement

Appellants also contend that airport-to-seaport

trips cannot constitute interstate commerce unless

they are part of a “through-ticketing” arrangement

with the airlines or cruise lines. A through-ticketing

arrangement involves an agreement “between the

motor carrier and the air carrier for continuous pas-

sage” of passengers. In Re Kimball, 131 M.C.C. 908,

918 (1980). Appellants cite a number of decisions by

the Surface Transportation Board (“STB”) and ICC,

as well as district court cases, in which swch an

arrangement was required for the Secretary to have

jurisdiction over an employer whose business in-

volved such intrastate trips. See, e.g., Morrison uv.

Quality Transps. Servs., Inc., 474 F.Supp.2d 1303,

1310 (S.D.Fla.2007); Rossi, 438 F.Supp.2d at 1362;

Kimball, 131 M.C.C. at 918; Motor Transp. of Passen-

gers Incidental to Transp. by Aircraft, 95 M.C.C. 526,

536 (1964). They maintain that ACLM’s relationships

App. 26

with Royal Caribbean and the other cruise lines do

not meet this requirement.

The parties dispute whether the through-

ticketing requirement even applies to the second

prong of the motor carrier exemption analysis here.

The STB and ICC decisions cited by Appellants indi-

cate that a through-ticketing or common arrange-

ment is required for intrastate transportation of

airplane passengers to be interstate commerce. See

Kimball, 131 M.C.C. at 918; Motor Transp., 95 M.C.C.

at 536. As ACLM notes, those cases involved disputes

over the applicability of the incidental-to-air exemp-

tion. See Kimball, 131 M.C.C. at 912; Motor Transp.,

95 M.C.C. at 529-30, 540. Since that exemption

addresses the Secretary of Transportation’s jurisdic-

tion over an employer, those decisions may say

nothing about whether there would be a similar

requirement for employees’ activities to be in inter-

state commerce. Furthermore, since those cases

discuss a through-ticketing requirement between a

motor carrier and an air carrier, they may be

inapplicable to an arrangement between a motor

carrier and a cruise line. See Kimball, 131 M.C.C. at

918; Motor Transp., 95 M.C.C. at 536. However, at

least one district court required a motor carrier to

have a through-ticketing arrangement with a non-air

carrier to meet the second prong of the analysis.” See

” Another district court considered the existence of a

through-ticketing arrangement during this stage of the analysis,

(Continued on following page)

App. 27

Morrison, 474 F.Supp.2d at 1310-12. Additionally, our

obligation to construe FLSA exemptions narrowly

would support requiring such an agreement when

there is some dispute about the applicability at this

stage of the analysis.

In an abundance of caution, we therefore decline

to decide whether a through-ticketing arrangement is

necessary and instead look at whether ACLM has

established that it has such an arrangement assum-

ing one would be applicable. Appellants maintain that

the requirement can be met only if there is a

formalized agreement between a motor carrier and an

air carrier. However, that approach does not accord

with the relevant precedent. In fact, the ICC appears

to deem it sufficient that there be some sort of

“common arrangement” with an out-of-state carrier,

which need not be an air carrier. See Motor Transp.,

95 M.C.C. at 536 (discussing requirement that there

be a common arrangement with “connecting out-of-

State carriers”). Courts generally have followed the

ICC’s interpretation and found the requirement to be

met even when there is no through-ticketing agree-

ment so long as there is evidence of a contractual

connection between the motor carrier and the inter-

state carrier. See, e.g., Pennsylvania Pub. Util. Comm’n

v. United States, 812 F.2d 8, 11-12 (D.C.Cir.1987)

(finding that a motor carrier had a common

although it did not require it to be present. See Chao, 214

F.Supp.2d at 1271-73.

App. 28

arrangement with an air carrier when it “operated

pursuant to an explicit contract” with the airline, and

that this was sufficient for the ICC to find the motor

carrier’s activities to be in interstate commerce,

despite the absence of a through-ticketing agree-

ment).

ACLM’s relationship with Royal Caribbean would

meet this common arrangement requirement. It had

a formal agreement with Royal Caribbean since Sep-

tember 2006 to transport passengers between hotels,

airports, and seaports. Under this arrangement,

ACLM did not operate as an independent part of the

cruise passengers’ overall transportation, even

though it involved a distinct mode of transport from

the plane flight and cruise ship. Instead, from the

perspective of the cruise passengers, ACLM’s trips

were an essential and intrinsic component of the

overall stream of interstate travel transporting the

passengers from their points of departure to the

cruise ships (and exotic foreign and out-of-state ports

of call) and back home again.

ACLM also has presented sufficient evidence that

it had common arrangements with cruise lines prior

to September 2006. Though it had no formal contract

with a cruise line before that date, it put forward

evidence showing that it had arrangements with

Princess Cruises and Costa Cruises during that time,

that those relationships were similar to that which it

now has with Royal Caribbean, and that it earned

substantial amounts of revenue from these con-

nections. According to a vice president for ACLM,

App. 29

these arrangements involved the cruise lines selling

pre-arranged tickets for airfare, ground transporta-

tion, occasionally accommodation, and the cruise

itself. The cruise lines agreed to pay ACLM a fixed

amount for its services, which was based on an hourly

figure that reflected the market rate at the time.

Appellants contest the existence of any relation-

ship between ACLM and these cruise lines. Notably,

though, they do not offer evidence to contradict

ACLM’s assertions about the nature of its ties with

the cruise lines or about the revenue earned from

these connections. In the absence of any clear indi-

cation that ACLM did not have the relationships it

claims, and bearing in mind the evidence ACLM

presented, we view it as having established that its

ties with the cruise lines were sufficient to constitute

a “common arrangement” throughout the period in

question. Compare with Powell v. Carey Int'l, 483

F.Supp.2d 1168, 1186 (S.D.Fla.2007) (finding no

through-ticketing arrangement because the evidence

indicated that the relationship was “a loose affiliation

between businesses”); Morrison, 474 F.Supp.2d at

1310 (denying employer’s summary judgment motion

regarding applicability of motor carrier exemption in

part because the employees contradicted the em-

ployer’s evidence regarding the terms of its alleged

through-ticketing arrangement).

Accordingly, even if a through-ticketing arrange-

ment is required for the airport-to-seaport routes to

constitute interstate commerce and thus come under

the Secretary's MCA jurisdiction, ACLM has shown

App. 30

that such an arrangement existeu throughout the

period in question. Since Appellants have conceded

that they reasonably could be expected to drive such

routes, we find ACLM to have met the second prong

of the motor carrier exemption test.”’ We therefore

conclude that the district court correctly granted

ACLM’s motion for summary judgment with respect

to the applicability of that exemption.

[il]. CONCLUSION

Appellants contend that the district court erred

in granting ACLM’s motion for summary judgment

with respect to the applicability of the motor carrier

exemption. We find ACLM to have provided sufficient

evidence both that it was subject to the Secretary of

Transportation’s jurisdiction under the MCA and that

the activities of its employees also fell under the

Secretary's MCA jurisdiction. We therefore AFFIRM

the district court’s grant of ACLM’s motion for sum-

mary judgment with respect to the motor carrier

exemption.

AFFIRMED.

™ ‘Because we reach this conclusion on the basis of ACLM’s

airport-to-seaport routes, we need not address ACLM’s alter-

native argument that the second prong would be met because

Appellants reasonably could be expected to drive trips that

indisputably crossed state lines.

App. 31

569 F Supp.2d 1270

United States District Court,

S.D. Florida.

Elmon WALTERS, Alix Provence, Charlene

Blackshear, and all others similarly situated,

Plaintiffs,

AMERICAN COACH LINES OF MIAMI, INC.,

a Florida corporation, Defendant.

No. 07-22000-CIV.

July 29, 2008.

Elizabeth B. Hitt, Robert Ader, Law Offices of Robert

Ader, P.A., Miami, FL, for Plaintiffs.

Michael W. Casey, II, Richard D. Tuschman, Kevin

E. Vance, Epstein Becker & Green, P.C., Miami, FL,

for Defendant.

ORDER ON MOTIONS

FOR SUMMARY JUDGMENT

URSULA UNGARO, District Judge.

THIS CAUSE is before the Court upon Plaintiffs’

Motion for Partial Summary Judgment As to De-

fendant’s Affirmative Defenses Regarding the Motor

Carrier Exemption, Statute of Limitations and

Liquidated Damages, filed April 17, 2008. (D.E.68.)

Defendant filed its Response on May 5, 2008,

(D.E.104), to which Plaintiffs replied on May 15,

2008. (D.E.125.) Also before the Court is Defendant’s

Motion for Summary Judgment, filed April 18, 2008.

App. 32

(D.E.73.) Plaintiffs filed their Response on May 2,

2008, (D.E.100), to which Defendant replied on May

12, 2008. (D.E.121.) The matters are ripe for dis-

position.

THE COURT has considered the motions and the

pertinent portions of the record and is otherwise fully

advised in the premises.

BACKGROUND AND FACTS'

Defendant is a motor carrier that provides for-

hire ground transportation of passengers. (Def.’s

Statement of Material Facts (Def.’s SMF) 491; Pils.’

Statement of Undisputed Facts in Support of their

Mot. for Partial Summ. J. (Pls.’ SMF) ¥ 1.) Defendant

' Defendant has submitted a statement of material facts in

support of its Motion, (D.E.74), and Plaintiffs have submitted a

response to Defendant's statement of facts. (D.E.101.) Likewise,

Plaintiffs have submitted a statement of material facts in sup-

port of their Motion, (D.E.69), and Defendants have submitted a

Response to Plaintiffs’ statement of facts. (D.E.105.) In addition,

Plaintiffs have submitted a statement of material facts in

opposition to Defendant’s Motion. To the extent that Plaintiffs do

not controvert the facts alleged by Defendant and those facts are

supported by the record, the Court adopts the facts contained

within Defendant's statement. Likewise, to the extent that

Defendant does not controvert the facts alleged by Plaintiffs and

those facts are supported by the record, the Court adopts the

facts contained within Plaintiffs’ statement. See S.D. Fla. L.R.

7.5.D (“All material facts set forth in the movant’s statement

filed and supported as required by Local Rule 7.5.C will be

deemed admitted unless controverted by the opposing party’s

statement... ”).

App. 33

has been in operation since September 2003. (Def.’s

SMF 41.) Plaintiffs are or were bus drivers for

Defendant. (Def.’s SMF { 2; Pls.” SMF 4 2.) Defendant

pays its drivers using a variety of different methods

but does not pay any of them at overtime wage rates.

(Pls. SMF ¥ 1.)

Defendant holds itself out as an “interstate” motor

carrier, advertises interstate services, is licensed with

the United States Department of Transportation

(USDOT), and holds all of the authorizations required

of interstate motor carriers of passengers issued by

the agency within the USDOT that regulates such

carriers, the Federal Motor Carrier Safety Adminis-

tration (FMCSA). (Def.’s SMF 493 & 5; Pls.’ SMF

{ 1.) Defendant holds operating authority from the

FMCSA in the form of an interstate motor common

carrier certificate, which gives Defendant authority

“to engage in transportation as a common carrier of

passengers in charter and special operations, by motor

vehicle in interstate or foreign commerce.” (Def.’s

SMF 44.) Defendant has peen issued a USDOT

number by the FMCSA evidencing its right to engage

in interstate commerce subject to the FMCSA’s safety

regulations. (Def.’s SMF 4 3.) Defendant requires that

its drivers become qualified to drive all types of

vehicles used by it for passenger transportation and

Defendant maintains a “driver qualification file” for

each driver as required by 49 C.F.R. § 391.51(a).

(Def.’s SMF 46.) Defendant is required to comply

with the Federal Motor Carrier Safety Regulations

(FMCSR), including the hours of service regulations

App. 34

governing drivers of vehicles used in interstate

commerce at 49 C.F.R. Part 395, and to maintain

required USDOT records evidencing such compliance.

(Def.’s SMF 4 3.) Logs and other records are main-

tained in accordance with the requirements of those

rules.’ (Def.’s SMF 46.) Defendant’s drivers are

subject to random drug alcohol testing required by

the FMCSR. (Def.’s SMF 4 6.)

Defendant provides transportation service be-

tween Florida and other states, as well as single-state

carriage of persons, including to and from the local

seaports and airports, and to and from the seaports to

local hotels. (Def.’s SMF 9495 & 10; Pls.’ SMF 4 21

n. 2.) Defendant does not keep records of the number

of trips that it makes during a given time frame,

i.e, on a daily, weekly, monthly, or yearly basis.

(Brittenum Dep. 67 & 116, Dec. 20, 2007; Brittenum

Dep. 41, Jan. 14, 2008.) Defendant has provided an

estimate that on a given day it may have 100 buses

on the road, and that annually it makes approxi-

mately 10,000 trips, including to and from airports

and seaports, university shuttle routes, and charters.

(Brittenum Dep. 67, Dec. 20, 2007; Brittenum Dep.

41, Jan. 14, 2008.)

* However, according to Plaintiffs, the logbooks are not an

accurate reflection of the number of hours Plaintiffs actually

worked. (Pls.’ SMF in Support of their Resp. to Def.’s Mot. for

Summ. J. (SMF IT) 44 16-17, 23, 27, 30, 35.)

App. 35

From August 2004 through December 2007,

Defendant made 148 trips across the State line, many

of which lasted several weeks and some of which

lasted between thirty-five and ninety days. (Def.’s

SMF 4 7.) These trips across the State line produced

over $1.7 million, or 4% of Defendant’s total revenues

for the period from August 2004 through December

2007.’ (Def.’s SMF 4 7; Pls.’ SMF 4 12.) Seventy-four

* Plaintiffs wish to subtract from the total revenues derived

from trips across the State line during the period from August

2004 through December 2007 the revenue derived from trips to

Louisiana made in September and October 2005, and August

and November 2006 for purposes of providing hurricane relief in

Louisiana. Plaintiffs argue that these trips should not be

included in calculating the total revenues derived from trips

across the State line during the period from August 2004

through December 2007 because the trips were “anomalous,”

and because at least some of these trips involved driving across

the State line with empty buses, and then either dropping off

the buses for third parties to use in providing hurricane relief, or

driving passengers within the State of Louisiana.

Plaintiffs have not, however, provided a legal basis for sub-

tracting the revenues derived from the hurricane-related trips to

Louisiana. Plaintiffs cite 49 U.S.C. § 13501, which provides in

relevant part that the Secretary of Transportation has “juris-

diction [as specified in Part B of Subtitle [V of Title 49] over

transportation by motor carrier and the procurement of that

transportation, to the extent that passengers, property, or both

are transported by motor carrier [] between a place in [} a State

and a place in another State; [] a State and another place in the

same State through another State; ... [or] the United States

and a place in a foreign country to the extent the transportation

is in the United States. .. .” 49 U.S.C. § 13501.

As defined by 49 U.S.C. § 13102(14), the motor carrier is the

“person providing commercial motor vehicle ... transportation

for compensation.” Where the motor carrier dispatches an empty

(Continued on following page)

App. 36

different drivers out of the 393 drivers employed by

Defendant during the period from August 2004

through December 2007 (approximately 18%) made

trips across the State line. (Def.’s SMF 4 7; Pls.’ SMF

q 13.) Of those drivers eight have driven across the

State line between five and fifteen times, and the re-

mainder average one or two trips each across the

State line. (Pls. SMF 4 13.)

According to Defendant, of the sixty-three Plain-

tiffs in this action, eleven (approximately 17%) have

driven across the State line while employed by

Defendant, and have spent a total of 286 days on such

trips across the State line. (Def.’s SMF 4 8; Kelly

Decl. 4 9 & Ex. B.) Plaintiffs have provided evidence

that at least two of the eleven Plaintiffs counted by

Defendant never traveled out of the State while em-

ployed by Defendant, so the calculation would be

adjusted, such that, of the sixty-three Plaintiffs in

this action, nine (approximately 14%) have driven

across the State line while employed by Defendant,

and have spent fewer than 286 days on such trips

across the State line. (Pls.’ SMF II 44 6-7; Kelly Decl.

49 & Ex. B; Burns Aff. 74 2-3; Smith Aff. 74 2-3.) Of

bus from State A into State B .» order to transport cargo or

passengers between two points in State B, the transportation

within State B constitutes interstate commerce. See Federal

Motor Carrier Safety Administration, interpretation for Part

390: General, § 390.3 General Applicability, Question 14, availa

ble at http//www.fmcsa.dot.gov/rules-regulations/administration/

fmesr/fmcsrruletext.asp?rule_toc=759&section=390.3&section_toc=

1738.

App. 37

the twenty-three Plaintiffs who were employed by

Defendant for one year or more during the period

from August 2004 through December 2007, six Plain-

tiffs (26%) drove across the State line while employed

by Defendant. (Kelly Decl. 79 & Exs. B & C; Burns

Aff. J 2-3.)

Of the Plaintiffs who have driven across the

State line while employed by Defendant, there is

evidence that four of these Plaintiffs drove empty

buses across the State line and did not transport

passengers on these trips (Zellner Aff. ¢ 3; Chambers

Aff. 93; Pedrozo Aff. 43; Sheffield Aff. 4 3); two of

these Plaintiffs either drove an empty bus across the

State line or flew out-of-state, and then remained at

their out-of-state destination to drive passengers

within that State (Jefferson Aff. 9 3; Saunders Aff.

7 3); and one of these Plaintiff drivers took two trips

across the State line while employed by Defendant,

transporting passengers across the State line on one

of those trips, and driving an empty bus across the

State line on the other trip, remaining there for a few

days to drive passengers within that State (Price Aff.

q 3).

Defendant was audited by the USDOT, FMSCA

on October 18, 2004. (2d Supplemental Brittenum

Decl. 92 & Ex. A.) Defendant also was audited in

May 2007 by the FMSCA and the Florida Department

of Transportation (FLDOT) to determine compliance

App. 38

with the FMSCR and State regulations.* (Def.’s SMF

4 3.) Defendant was cited by the FLDOT for viola-

tions of both federal and State regulations, including

ninety-five violations regarding drivers’ hours of

service. {Pls.’ SMF 4 39.) The violations were found in

only a sampling of Defendant’s drivers’ logbooks. (Pls.’

SMF { 39.) During the course of the audit, Sergeant

Michael Roberts of the FLDOT determined, based on

information provided by Defendant including thou-

sands of randomly sampled driver logbooks, that the

majority of Defendant’s trips were within the State,

and that Defendant conducted a limited number of

trips across the State line. (Pls. SMF 44 40-42.)

During the course of the May 2007 audit, Roberts

learned that sixty-seven of Defendant’s then-employed

drivers did not make any trips across the State line

while employed by Defendant, and out of thousands

of logbook entries, there were a total of nine trips

across the State line during the six-month period

preceding the May 2007 audit. (Pls.” SMF ¥ 44.)

On September 1, 2006, Defendant entered into a

written contract (the “Transportation Services Agree-

ment”) with Royal Carribean Cruise Lines (RCCL) to

provide ground transportation services to RCCL

cruise line passengers. (Def.’s SMF 4 17; Pls.’ SMF

47 19.) According to Defendant, it began providing

* Florida has adopted federal safety regulations, including

those that pertain to driver hours of service contained in 49

C.F.R. Part 395, for intrastate transportation within Florida.

Fla. Stat. § 316.302.

App. 39

ground transportation services to RCCL cruise line

passengers in April 2006, approximately five months

prior to the September 1, 2006 effective date of the

written contract. (Brittenum Decl. { 18(a); Brittenum

Supplemental Decl. ¥ 3 & Ex. A.) During the period

from April 2006 to December 2007, Defendant has

transported more than 500,000 RCCL cruise passen-

gers, yielding revenues in excess of $4.4 million.

(Britterum Decl. 4 18(a).) However, according to

Plaintiffs, RCCL did not use Defendant for ground

transportation services until the Transportation Ser-

vices Agreement became effective on September 1,

2006. (Trescastro Dep. 7:3-13; 45:1-4, Mar. 6, 2008.)

Defendant is the sole provider of airport-to-

seaport and seaport-to-airport grow” transportation

services for RCCL’s passengers during the day;

another company provides RCCL’s ground transporta-

tion services at night. (Brittenum Dep. 191:23-192:11,

Jan. 14,2008; Trescastro Dep. 6:10-23.) Under the

Transportation Services Agreement between Defendant

and RCCL, Defendant provides airport-to-seaport and

seaport-to-airport ground transportation for RCCL

cruise line passengers to and from Miami and Fort

Lauderdale airports to and from the Port of Miami

and Port Everglades in Fort Lauderdale. (Pls.” SMF

4 21.) The distance between these airports and

seaports does not exceed a twenty-five mile radius “as

the crow flies,” although the distance by road between

these airports and seaports is longer than twenty-five

miles. (Pls.” SMF 4 21; Def.’s Resp. to Pls.’ SMF § 21.)

Defendant also provides ground transportation for

App. 40

RCCL cruise line passengers to and from the seaports

to local hotels. (Pls.” SMF { 21 n. 22.)

Under the Transportation Services Agreement

between Defendant and RCCL, Defendant provides

RCCL cruise line passengers ground transportation

booked through travel agents or through packages

sold by RCCL, which include airfare and ground

transportation. (Pls. SMF 22.) RCCL also sells

hotel packages, which include ground transportation.

(Trescastro Dep. 11:17-20.) Approximately 85% of

RCCL’s bookings are sold through travel agents, and

the remaining 15% are sold directly through RCCL.

(Pls. SMF 4 22.) If an RCCL cruise line passen-

ger has not pre-booked ground transportation from

seaport to airport, passengers can purchase shuttle

service vouchers before disembarking. (Pls. SMF

{j 23.) Likewise, if an RCCL cruise line passenger has

not pre-booked ground transportation from airport to

seaport, passengers can, upon arrival at the airport,

request shuttle service from an RCCL representative,

and the ground transportation will be charged to the

passenger’s RCCL customer account. (Pls.” SMF 4 23.)

RCCL sends its cruise line passengers a booklet of

“guest vacation documents” describing the cruise

itinerary and providing a checklist, information on

what to expect on the cruise, the availability of shore

excursions, and other information, along with

“vouchers” for hotel stays and ground transportation

that the passenger has purchased. (Pls.’ SMF { 24.)

Under the Transportation Services Agreement,

RCCL provides Defendant with weekly shuttle

App. 41

manifests indicating the date and time of the re-

quested shuttle services, the number of passengers to

be shuttled, and the flight and vessel information.

(Pls.. SMF 426.) The manifests are provided to

Defendant one week in advance of the requested

transport. (Pls. SMF { 26.) When RCCL cruise line

passengers arrive at the airport, they are greeted by

RCCL representatives, who have a manifest indi-

cating the names of the RCCL cruise line passengers

to be transported by Defendant’s drivers. (Pls.” SMF

{ 27.) Once the RCCL representative has gathered all

of the arriving RCCL cruise line passengers upon

their arrival at the airport, the RCCL representative

contacts Defendant and requests a bus, providing

Defendant with the number of RCCL cruise line

passengers and the terminal pick-ups. (Pls.’” SMF

q 28.) Defendant and its drivers are not provided with

the RCCL cruise line passenger manifests or with the

identity of the passengers it transports. (Pls.’ SMF

q 26.)

At the airport, RCCL representatives collect

ground transportation vouchers from the cruise line

passengers and discard the vouchers. (Pls.’ SMF 29.)

Defendant does not receive the ground transportation

vouchers; insteed, RCCL provides Defendant with a

“load slip” with a passenger head count. (Pls.’ SMF

q 29.) Based on the load slip head count, Defendant

invoices RCCL at a specific rate for each RCCL cruise

line passenger it transports to and from the airport to

and from the seaport (Pls.. SMF 4 30.) Under their

Transportation Services Agreement, RCCL may pay

App. 42

Defendant at either a per-passenger or a per-bus rate.

(Pls. SMF 4 30.) The price RCCL charges its guests

for ground transportation is unrelated to the price

RCCL pays Defendant for its services. (Pls.’ SMF

{ 31.) There is no price indicated on the RCCL cruise

line passengers’ ground transportation vouchers;

RCCL cruise line passengers are charged a bundled

rate, with no line item prices as to the cruise, air

transportation, and ground transportation. (Pls.’ SMF

4 31.) RCCL cruise line passengers’ ground transpor-

tation vouchers are non-refundable if not used, but

passengers may receive an on-board credit for shore

excursions. (Pls.’ SMF ¥ 32.)

If an RCCL. cruise line passenger who has booked

and paid for a cruise, air transportation and ground

transportation cannot make’ his or her sailing date,

Defendant does not receive any of the revenue RCCL

collects from such a passenger; rather under their

agreement, Defendant only receives payment from

RCCL when Defendant actually transports a passen-

ger, despite the fact that the passenger has paid for

ground transportation as part of his or her cruise

package. (Pls. SMF 4 32.) In February 2008, De-

fendant and RCCL amended their Transportation

Services Agreement, providing that RCCL would

guarantee Defendant a minimum number of pas-

sengers it would be transporting, and would pay

Defendant at a rate of one-half of the per-passenger

price for the number of passengers short of the

guaranteed minimum. (Pls. SMF 4 33.)

App. 43

Under their Transportation Services Agreement,

RCCL retained the right to terminate the agreement

with one month’s notice to Defendant if, in its “sole

and absolute opinion” RCCL found Defendant’s

ground transportation services unsatisfactory. (Pls.’

SMF 435.) Where an RCCL cruise line passenger

books a cruise, air and ground transportation far in

advance, there is no assurance that the passenger’s

transportation will be provided by Defendant, as

there is no guarantee that the agreement between

RCCL and Defendant will be in force at that time.

(Pls.’ SMF ¥ 35.)

During 2003, 2004, and 2006, Defendant also had

arrangements with Costa Cruises and Princess

Cruises to provide ground transportation services to

Costa Cruises and Princess Cruises passengers who

purchased such services. (Brittenum Decl. {4 18(b)-

between Defendant and Costa Cruises or between

Defendant and Princess Cruises. (Brittenum Decl.

9{7 18(b)-(c).) According to Defendant, its revenues

from the arrangement with Costa Cruises exceeded

$500,000, and its revenues from the arrangement

with Princess Cruises exceeded $200,000. (Brittenum

Decl. 44 18(b)-(c).)

During 2006 and continuing through the present,

Defendant also has had arrangements with several

independent ground agents to provide ground trans-

portation services to Costa Cruises passengers, Prince

Cruise VIP groups, Cunard Cruises passengers, and

Crystal Cruises passengers who purchase ground

App. 44

transportation services. (Brittenum Decl. {J 18(d)-(f)

& Exs. H-J.) Defendant did not enter into written

agreements with any of these independent ground

agents. (Brittenum Decl. 7 18(d)(f).) In addition,

Defendant has arrangements with tour operators,

travel agents, and other entities that charter buses,

pursuant to which Defendant’s drivers transport

passengers to and from the local airports to and from

local hotels or other destinations. (Kelly Decl. 4 12 &

Ex. A.) There is no evidence in the record indicating

that Defendant entered into a written agreement

with any of these tour operators, travel agents, or

other entities.

Generally, Defendant’s drivers are assigned to

jobs on a rotating basis, and Defendant calls on its

drivers to do all different types of work. (Brittenum

Dep. 63:1-4, Jan. 14, 2008.) However, Defendant also

maintains a seniority list for all its drivers, and

drivers with seniority usually get first pick as to the

types of jobs they will be assigned. Where a driver

with seniority prefers to stay loca!, he can choose to

work a local route. (Pls. SMF 4{@ 15-16; Riley Dep.

19:7-10:7.) In an October 24, 2006 memorandum to

all Defendant’s drivers from Bret Brittenum, De-

fendant’s Vice President and General Manager,

Defendant explained its seniority policy as follows:

“Seniority will be used for granting time-off, vacations,

positioning of coaches at debark, some work and

vehicle assignments, route assignments on fixed

routes, and for other to be determined uses. Work is

App. 45

assigned on a rotation basis so that everyone has a

chance to work.” (Pls.’ SMF, Ex. 15.)

Defendant’s “Hiring Standards” form effective

October 7, 2003, states that drivers must “Be Able To

Work Various Jobs, Hours And Shifts (Local & Out of

Town).” (Pls. SMF, Ex. 16.) Defendant’s “Hiring

Standards” form effective October 7, 2003, was re-

vised sometime in 2006 and states that drivers must

“Be able to work various jobs, hours, shifts (local &

out of town) and be willing and able to drive inter-

state routes.” (Brittenum Decl. 9 11 & Ex. C.) Each

driver must sign Defendant’s Hiring Standards form

before they can perform any driving jobs for Defen-

dant. (Brittenum Decl. 4 11.) If a driver refuses to

perform an assignment without good cause, the refusal

is grounds for automatic termination. (Brittenum

Decl. ¢ 20; Arditi Decl. J 4; Brittenum Dep. 63:13-16,

Jan. 14, 2008; Arditi Dep. 76.) The affirmations of

twenty-three of the Plaintiff drivers in this action

demonstrate that it was common knowledge among

the drivers that they would be fired for refusing a job

assignment. (Pl.’s SMF in Resp. to Def.’s Mot. for

Summ. J., Ex. 12.)

Defendant has approximately thirty-five to forty

drivers who currently drive routes for shuttle services

Defendant provides for the University of Miami.

(Brittenum Dep. 10:5-11:13, Jan. 14, 2008.) It is not

unusual for drivers driving the University shuttle

routes to work more than sixty hours per week.

(Brittenum Dep. 57-58, Jan. 14, 2008.) According to

Defendant, it does not have drivers that exclusively

App. 46

drive University shuttle routes. (Brittenum Dep.

10:4-17, Jan. 14, 2008.) Rather, the bus drivers that

drive shuttle routes for the University of Miami,

Florida International University, and Barry University

are considered a part of Defendant’s “regular drivers

pool.” (Rivera Dep. 47:1-18.) However, according to

Plaintiffs, based on the deposition testimony of

Defendant’s Assistant Director of Operations, Pris-

cilla Rivera, Defendants have drivers that “mainly

work” the University shuttle routes (the “University

shuttle bus drivers”). (Rivera Dep. 34-35; 47-49; 54-

55.) The University shuttle bus drivers may be asked

to do general charter work, including trips across the

State line or airport-to-seaport runs, but these

drivers are not required to do such work. (Rivera Dep.

34-35; 47-49; 54-55; Harper Aff. {4 3-4.) For example,

according to Dwayne Harper, the supervisor of De-

fendant’s University of Miami shuttle bus drivers,

typically towards the end of each week Harper re-

ceives a phone call “from someone from [Defendant’s]

main terminal, asking that [he] try to find a certain

few [University of Miami] drivers who would be

willing to drive on the upcoming weekend.” (Harper

Aff. 4 3.) Harper “then ask[s] around to see if anyone

would like to work the weekend job(s) to earn some

extra money.” (Harper Aff. 4 3.) According to Harper,

he “offer{s] these jobs to [his] drivers, [but he] dof[es]

not force them to work the weekend jobs and they are

free to turn them down.” (Harper Aff. { 4.)

The majority of Plaintiffs in this action have,

during the course of their employment by Defendant,

App. 47

driven passengers to and from local airports to and

from local seaports, and to and from the seaports to

and from local hotels. (Def.’s SMF 4 11.) Of the sixty-

three Plaintiffs in mis [sic] case, forty-eight, (76%),

have driven some type of airport or airport-seaport

transfer during the period from August 2004 through

December 2007. (Def.s SMF 4411 & 16.) Those

Plaintiffs have received a.total of more than 1,000

such assignments, each of which represents multiple

trips to and from the airports and seaports. (Def.’s

SMF 4@ 11 & 16.) The majority of the Plaintiffs who

have not actually driven passengers to and from

seaports and airports were employed by Defendant

for a short period of time. (Def.’s SMF 4 11.)

LEGAL STANDARD

Summary judgment is authorized only when the

moving party meets its burden of demonstrating that

“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.” Fed.R.Civ.P. 56. When

determining whether the moving party has met this

burden, the court must view the evidence 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, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970);

Rojas v. Florida, 285 F.3d 1339, 1341-42 (11th

Cir.2002).

App. 48

The party opposing the motion may not simply

rest upon mere allegations or denials of the plead-

ings; after the moving party has met its burden of

proving that no genuine issue of material fact exists,

the non-moving party must make a sufficient showing

to establish the existence of an essential element 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);

Poole v. Country Club of Columbus, Inc., 129 F.3d

551, 553 (11th Cir.1997); Barfield v. Brierton, 883

F.2d 923, 933 (11th Cir.1989). If the record presents

factual issues, the court must not decide them; it

must deny the motion and proceed to trial. Enunil.

Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981).°

Summary judgment may be inappropriate even where

the parties agree on the basic facts, but disagree

about the inferences that should be drawn from these

facts. Lighting Fixture & Elec. Supply Co. v. Cont'l

Ins. Co., 420 F.2d 1211, 1213 (5th Cir.1969). If

reasonable minds might differ on the inferences

arising from undisputed facts then the court should

deny summary judgment. /mpossible Elec. Techniques,

Inc. v. Wackenhut Protective Sys., Inc., 669 F.2d 1026,

1031 (5th Cir.1982); see Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L..ed.2d

* Decisions of the United States Court of Appeals for the

Fifth Circuit entered before October 1, 1981, are binding prece-

dent in the Eleventh Circuit. See Bonner v. City of Prichard, 661

F.2d 1206 (11th Cir.1981).

App. 49

202 (1986) (“[T]he dispute about a material fact is

‘genuine ... if the evidence is such that a reasonable

jury could return a verdict for the nonmoving

party.’”).

Moreover, the party opposing a motion for sum-

mary judgment need not respond to it with evidence

unless and until the movant has properly supported

the motion with sufficient evidence. Adickes, 398 U.S.

at 160, 90 S.Ct. 1598. The moving party must demon-

strate that the facts underlying all the relevant legal

questions raised by the pleadings or otherwise are not

in dispute, or else summary judgment will be denied

notwithstanding that the non-moving party has

introduced no evidence whatsoever. Brunswick Corp.

v. Vineberg, 370 F.2d 605, 611-12 (5th Cir.1967). The

Court must resolve all ambiguities and draw all

justifiable inferences in favor of the non-moving

party. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct.

2505.

MOTOR CARRIER EXEMPTION

Under the FLSA, an employer must compensate

employees for hours worked in excess of forty per

week “at a rate not less than one and one-half times

the regular rate at which he is employed.” 29 U.S.C.

§ 207(aX1). Defendant argues that Plaintiffs are

exempt under the motor carrier exemption, 29 U.S.C.

§ 213(bX1), and therefore not entitled to overtime

compensation. “The question of how [Plaintiffs spent

their time working for Defendants] is a question of

App. 50

fact. The question whether their particular activities

excluded them from the overtime benefits of the

FLSA is a question of law.” Icicle Seafoods, Inc. v.

Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 89

L.Ed.2d 739 (1986); see also Morrison v. Quality

Transp. Servs., Inc., 474 F.Supp.2d 1303, 1308

(S.D.Fla.2007) (citing Icicle Seafoods, 475 U.S. at 714,

106 S.Ct. 1527). The employer has the burden of

proving the applicability of the FLSA exemption.

Klinedinst v. Swift Inv., Inc., 260 F.3d 1251, 1254

(11th Cir.2001); see also Morrison, 474 F.Supp.2d at

1308 (citing Klinedinst, 260 F.3d at 1254). Exemp-

tions to the FLSA “are to be narrowly construed

against the employer who asserts them.” Jeffery v.

Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th

Cir.1995); Nicholson v. World Bus. Network, Inc., 105

F.3d 1361, 1364 (11th Cir.1997) (recognizing that the

FLSA’s exemptions must be narrowly construed,

“giving due regard to the plain meaning of statutory

language and the interest of Congress,” and also rec-

ognizing that “‘[tlo extend an exemption to other than

those plainly and unmistakably within its terms and

spirit is to abuse the interpretive process and to frus-

trate the announced will of the people’” (quoting A.H.

Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct.

807, 89 L.Ed. 1095 (1945))).

Under § 213(bX(1) of the FLSA, the provisions of

§ 207 “shall not apply with respect to[] any employee

with respect to whom the Secretary of Transportation

has power to establish qualifications and maximum

hours of service pursuant to the provisions of section

App. 51

31502 of Title 49.” 29 U.S.C. §213(bX1). Section

31502(a\1) limits the application of § 31502 to trans-

portation “described in section[] 13501” of Title 49.

49 U.S.C. § 31502(a\(1). As relevant to this action,

§ 13501 of Title 49 gives the Secretary of Trans-

portation jurisdiction over transportation by motor

carners to the extent that passengers, property, or

both are transported by motor carrier between a place

in a State and a place in another State; a State and

another place in the same State through another

State; or the United States and a place in a foreign

country to the extent the transportation is in the

United States. 49 U.S.C. § 13501.*

* Section 13501 provides, in full, as follows:

The Secretary and the Board have jurisdiction, [as

specified in Part B of Subtitle IV of Title 49], over

transportation by motor carrier and the procurement

of that transportation, to the extent that passenyers,

property, or both, are transported by motor carrier —

(1) between a place in -

(A) a State and a place in another State;

(B) a State and another place in the same State

through another State:

possession of the United States to the extent the

transportation is in the United States,

(D) the United States and another place in the

United States through a foreign country to the extent

the transportation is in the United States; or

(E) the United States and a place in a foreign coun

try to the extent the transportation is in the United

States; and

(Continued on following page)

App. 52

The applicable regulations explain that the

“exemption of an employee from the hours provisions

of the Fair Labor Standards Act . .. depends both on

the class to which his employer belongs and on the

class of work involved in the employee’s job.” 29

C.F.R. § 782.2. More specifically, the Secretary of Trans-

portation has the authority to establish maximum

hours and qualifications of service for employees, and

thereby trigger application of the motor carrier

exemption, if two requirements are met: (1) an

employee plaintiff must “be employed by carriers

whose transportation of passengers is subject to the

Secretary’s jurisdiction” under the Motor Carrier Act;

and (2) an employee plaintiff must “engage in activi-

ties of a character directly affecting the safety of

operation of motor vehicles in interstate or foreign

commerce within the meaning of the Motor Carrier

Act.” 29 C.F.R. § 782.2.

As the court in Morrison observed, “(t]he Depart-

ment of Labor’s jurisdiction under the FLSA and the

Department of Transportation’s jurisdiction under the

Motor Carrier Act are mutually exclusive and there is

no overlapping jurisdiction.” Morrison, 474 F.Supp.2d

at 1309 n. 2 (citing Morris v. McComb, 332 U.S. 422,

437-38, 68 S.Ct. 131, 92 L.Ed. 44 (1947)). “In order to

avoid any conflicts between these Acts, Congress de-

cided that the Secretary of Transportation need not

(2) in a reservation under the exclusive jurisdiction

of the United States or on a public highway

49 U.S.C. § 13501.

App. 53

actually exercise his or her power to regulate under

the Motor Carrier Act and that the FLSA’s § 213(b\1)

exemption applies so long as the Secretary has the

authority to regulate over a particular category of

employees.” Jd. (citing Spires v. Ben Hill County, 980

F.2d 683, 686 (11th Cir.1993)).

A. Whether Defendant Is A Carrier Whose Trans-

portation of Passengers is Subject to the

Secretary’s Jurisdiction Under the Motor

Carrier Act

First, the Court must determine whether, as a

matter of law, Defendant is a carrier whose transpor-

tation of passengers is subject to the Secretary’s

jurisdiction under the Motor Carrier Act, or whether

there are genuine issues of material fact that pre-

clude such a determination by the Court at this stage

in the litigation.

In Baez v. Wells Fargo Armored Service Corp., the

Eleventh Circuit found that the defendant, which

held a permit from the Interstate Commerce Commis-

sion (ICC), was a “contract carrier,” and as such,

subject to the Secretary’s jurisdiction under the Motor

Carrier Act. 938 F.2d 180, 182 (11th Cir.1991)

(citations omitted), cert. denied, 502 U.S. 1060, 112

S.Ct. 941, 117 L.Ed.2d 111 (1992). In making this

finding, the Baez court stated: “In fact, the permit

issued by the ICC indicates that jurisdiction has

App. 54

already been exercised.” Jd. (citing Brennan uv.

Schwerman Trucking Co. of Virginia, Inc., 540 F.2d

1200 (4th Cir.1976)). Therefore, the Baez court con-

cluded, “it [was] clear that [the defendant] [was] a

motor carrier subject to the Secretary’s jurisdiction.”

Id.; see also Morrison v. Quality Transports Services,

Inc., 474 F. Supp.2d 1303, 1309 (S.D.Fla.2007) (finding

that the defendant demonstrated that it was a motor

carrier whose transportation of property or passengers

was subject to the Secretary’s jurisdiction under the

Motor Carrier Act based on evidence that (1) the

defendant held a USDOT license; (2) the defendant

operated vehicles whose weight or passenger capacity

fell within the authority of the FMSCA; and (3) the

defendant was subject to regulation by the FMSCA

including regular inspections by the USDOT).

Relying on Baez and Morrison, Defendant argues

that, based on the following undisputed evidence in

the record, it has met its burden of establishing that

it is a carrier whose transportation of passengers is

subject to the Secretary’s jurisdiction under the Motor

Carrier Act: (1) Defendant is licensed by the USDOT,

and holds all of the authorizations required of inter-

state motor carriers of passengers issued by the

FMCSA; (2) Defendant has been issued a USDOT

" In 1995, Congress passed the ICC Termination Act, which

transferred motor carrier operating authority responsibilities to

the Department of Transportation (DOT). Pub.L. No. 104-88,

§§ 103-104, 109 Stat. 803 (1995) (codified as amended at 49

U.S.C. § 13501 (2000)).

App. 55

number by the FMSCA evidencing its right to engage

in interstate commerce subject to the FMSCA’s safety

regulations; (3) Defendant makes extensive efforts to

comply with federal requirements for interstate

drivers; (4) Defendant’s drivers are required to become

qualified to drive all types of vehicles used by De-

fendant for passenger transportation and Defendaut

maintains a “driver qualification file” for each driver

as required by 49 C.F.R. § 391.51(a); (5) Defendant is

required to comply with the FMCSR, including hours

of service regulations governing drivers of vehicles

used in interstate commerce at 49 C.F.R. Part 395

and to maintain required USDOT records evidencing

such compliance; (6) Defendant’s drivers are subject

to random drug alcohol testing required by the

FMSCR; and (7) Defendant has been audited by the

USDOT. Applying Baez and Morrison, the Court finds

that the undisputed evidence in the record is suffi-

cient to establish that Defendant is a motor carrier

whose transportation of property or passengers is

subject to the Secretary’s jurisdiction under the Motor

Carrier Act."

* Plaintiffs admit that “all of the indicia of an ‘interstate

carrier’ are present.”. However, Plaintiffs cite Cartun v. Carey

International, Inc., No. 0421074-CIV-UNGARO-BENAGES,

2004 U.S. Dist. LEXIS 30346, at *26 (S.D.Fla. Dec. 9, 2004), in

which this Court rejected the plaintiffs argument that the

defendants could not rely on the motor carrier exemption as a

result of the defendants’ failure to adhere to the requirements

imposed on motor carriers under the Motor Carrier Act. In

Cartun, this Court observed that the motor carrier exemption

(Continued on following page)

App. 56

The Court also notes that Defendant undisputably

holds itself out as an interstate motor carrier and

advertises interstate services. See Chao v. First Class

Coach Co., 214 F.Supp.2d 1263, 1271 (M.D.Fla.2001)

(“Merely holding itself out as an interstate commerce

carrier, which [the defendant] unquestionably did,

may have been enough to determine its status as an

interstate motor carrier.”) (citing Brennan, 540 F.2d

at 1204); see also Rossi v. Associated Limousine

Servs., Inc., 438 F.Supp.2d 1354, 1361 (S.D.Fla.2006)

(“[D]ecisions under the FLSA hold that the Secretary

of Transportation has the power to set maximum

hours for drivers if the company engages in more

than de minimi interstate commerce which includes a

company that holds itself out as a interstate company

and solicits that business even though its prospect of

obtaining such business is poor and some of its

drivers never drive in interstate commerce.” (citing

turns “only on the jurisdiction conferred on the Secretary of

Transportation under the Motor Carrier Act; application of the

exemption does not ... depend also on the employer’s confor-

mance with the requirements of the Motor Carrier Act.” Id.

(citing Bilyou v. Dutchess Beer Distributors, Inc., 300 F.3d 217,

229 (2d Cir.2002)). Cartun is not inconsistent with this Court’s

finding that Defendant has met its burden of establishing that it

is a carrier whose transportation of passengers is subject to the

Secretary's jurisdiction under the Motor Carrier Act based on

the undisputed evidence in the record. See also Packard v.

Pittsburgh Transp. Co., 418 F.3d 246 (3d Cir.2005), cert. denied,

547 U.S. 1093, 126 S.Ct. 1786, 164 L.Ed.2d 557 (2006) (“[Tyhe

MCA exemption depends only on the existence of secretarial

authority, not on its exercise.”); Morrison, 474 F.Supp.2d at 1309

n. 2 (same) (citing Spires, 980 F.2d 683, 686 (11th Cir.1993)).

App. 57

Reich v. Am. Driver Serv., Inc., 33 F.3d 1153 (9th

Cir.1994); Morris v. McComb, 332 U.S. 422, 68 S.Ct.

131, 92 L.Ed. 44 (1947))).

In reaching its determination that Defendant has

met its burden of establishing that it is a motor

carrier whose transportation of property or passengers .

is subject to the Secretary’s jurisdiction under the

Motor Carrier Act, the Court has considered Plain-

tiffs’ arguments that despite the foregoing evidence in

the record, Defendant has not met — or cannot meet —

its burden because, according to Plaintiffs, the “true

test” to determine whether Defendant is within the

Secretary’s jurisdiction for purposes of the motor

carrier exemption is whether Defendant engages in

more than de minimus interstate operations, and,

based on the percentage of trips Defendant made

across the State line out of the total number of trips it

made during the period from August 2004 through

December 2007, Plaintiffs argue that Defendant

cannot show that it engages in more than de minimus

interstate operations. However, for the following

reasons, the Court finds Plaintiffs’ arguments

unavailing.

Plaintiffs rely on Mason v. Quality Transport

Services, Inc., No. 04-61009-CIV-ALTONAGA/Turnoff,

2005 WL 5395338, at *1 (S.D.Fla. Aug.29, 2005).

However Mason actually supports a finding that

Defendant is a carrier whose transportation of pas-

sengers is subject to the Secretary’s jurisdiction under

the Motor Carrier Act. In Mason, (1) the defendant

was a corporation that provided bus service locally

App. 58

and nationwide, including long and short distance

charter service, shuttle service, and transfer service;

(2) interstate service was a significant component of

the defendant’s gross sales; and (3) the defendant had

a certificate from the ICC authorizing it to operate in

interstate and foreign commerce as a motor vehicle

common motor carrier. Id. at *1. The Mason court

observed that the “Secretary’s power to set maximum

hours for drivers is contingent upon the company

engaging in more than de minimus interstate com-

merce,” but that “[elven then, the Secretary does not

have automatic jurisdiction over all drivers of an

interstate carrier,” and that jurisdiction “extends only

to drivers who reasonably could be expected to make

one of the carrier’s interstate runs, and that means

more than a remote possibility.” Jd. at *2. The Mason

court denied summary judgment, finding that the

evidence in the record “plainly introduced genuine

issues of material fact concerning [the second prong of

the test for determining the applicability of the motor

carrier exemption,] whether [the plaintiff] could rea-

sonably be expected to drive one of [the defendant’s]

interstate routes.” Id. at *3.

- * Apparently the first prong of the test for determining the

applicability of the motor carrier exemption — i.e. that the defen-

dant must be a motor carrier whose transportation of property

or passengers is subject to the Secretary’s jurisdiction under the

Motor Carrier Act — was satisfied by evidence that (1) the

defendant was a corporation that provided bus service locally

and nationwide, including long and short distance charter ser-

vice, shuttle service, and transfer service; (2) interstate service

(Continued on following page)

App. 59

Applying Mason, the Court can easily conclude

that Defendant has met its burden of establishing

that it is a carrier whose transportation of passengers

is subject to the Secretary’s jurisdiction under the

Motor Carrier Act based on the following undisputed

evidence in the record: (1) Defendant is a corporation

that provides bus service locally and nationwide,

including long and short distance charter service,

shuttle service, and transfer service; (2) Defendant is

licensed by the USDOT, and holds all of the

authorizations required of interstate motor carriers of

passengers issued by the FMCSA; and (3) Defendant’s

trips across the State line during the period from

August 2004 through December 2007 were a signi-

ficant component of Defendant’s business in that they

produced over $1.7 million, or 4% of Defendant’s total

revenues for that time period.”

was a significant component of the defendant’s gross sales; and

(3) the defendant had a certificate for the ICC authorizing it to

operate in interstate and foreign commerce as a motor vehicle

common motor carrier.

As the Court has already addressed, supra note 3,

Plaintiffs wish to subtract from the total revenues derived from

trips across the State line during the period from August 2004

through December 2007 the revenue derived from trips to

Louisiana made in September and October 2005, and August

and November 2006 for purposes of providing hurricane relief in

Louisiana. Plaintiffs argue that these trips should not be in-

cluded in calculating the total revenues derived from trips across

the State line during the period from August 2004 through

December 2007 because the trips were “anomalous,” and be-

cause at least some of these trips involved driving across the

(Continued on following page)

App. 60

Plaintiffs also rely on Morris v. McComb, 332

U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44 (1947), in which

the Court considered the percentage of “total trips” in

determining that the defendant was a carrier whose

transportation of passengers is subject to the Secre-

tary’s jurisdiction under the Motor Carrier Act, and

on Garcia v. Fleetwood Limousine, 511 F.Supp.2d

1233 (M.D.Fla.2007), in which the court considered

“the employer’s overall business, including the num-

ber of interstate trips made and the percentage of

revenue from interstate trips,” and “whether the

carrier holds itself out to the public as providing

State line with an empty bus, and then driving passengers

within the State of Louisiana.

As the Court found in note 3, supra, Plaintiffs have not pro-

vided a legal basis for subtracting such revenues. However, even

assuming that the revenue derived from these hurricane-related

Louisiana trips should be subtracted from the revenues derived

from Defendant’s trips across the State line during the period

from August 2004 through December 2007, the Court still finds

— based on the undisputed evidence that Defendant holds itself

out as an interstate carrier, is licensed by the USDOT and has

the right to engage in interstate commerce subject to the

FMSCA's safety regulations — that Defendant has met its burden

of establishing that it is a carrier whose transportation of

passengers is subject to the Secretary’s jurisdiction under the

Motor Carrier Act.

In other words, assuming that Plaintiffs have created an

issue of fact as to the revenues produced by. Defendant’s trips

across the State line during the period from August 2004

through December 2007, it is not material to the issue of whether

Defendant is a carrier whose transportation of passengers is

subject to the Secretary’s jurisdiction under the Motor Carrier

Act.

App. 61

interstate transportation through advertising,

marketing, or otherwise” as “relevant factors” in the

determination of whether the defendant is a carrier

whose transportation of passengers is subject to the

Secretary's jurisdiction under the Motor Carrier Act.

See also Lieberman v. Corporate Connection Lines,

Inc., No. 03-CIV-22814, 2005 WL 5501491, at *1-2

(S.D.Fla. Apr.21, 2005) (“A carrier’s involvement in

interstate commerce must be established by some

concrete evidence such as an actual trip in interstate

commerce or proof that interstate business was

solicited. ... Furthermore, the [dJefendant’s involve-

ment in interstate commerce must be real and actual,

not merely hypothetical or conjectural. If the em-

ployer or employee’s involvement In [sic] interstate

commerce could be characterized as de minimus, they

may not be subject to the Secretary of Transpor-

tation’s jurisdiction at all, and thus are not covered by

the Motor Carrier Act.”); Rossi, 438 F.Supp.2d at

1361-62 (finding that the defendant failed to meet its

burden of establishing that it was engaged in

interstate commerce for purposes of the motor carrier

exemption where the defendant did not present any

evidence showing an actual trip in interstate com-

merce or proof that interstate business was solicited).

None of the decisions upon which Plaintiffs rely mili-

tate against a finding by the Court that Defendant

has met its burden of establishing that it is a carrier

whose transportation of passengers is subject to the

App. 62

Secretary’s jurisdiction under the Motor Carrier Act

based on the undisputed evidence in the record.”

B. Whether Plaintiffs Engaged in Activities of a

Character Directly Affecting the Safety of Opera-

tion of Motor Vehicles in Interstate or Foreign

Commerce Within the Meaning of the Motor

Carrier Act

Having determined that Defendant is a carrier

whose transportation of passengers is subject to the

Secretary’s jurisdiction under the Motor Carrier Act,

the Court must next determine whether as a matter

of law Plaintiffs engage in or have engaged in ac-

tivities of a character directly affecting the safety of

operation of motor vehicles in interstate or foreign

" The Court also notes that the FLDOT’s determinations

during the May 2007 audit — in particular its determinations,

based on information provided by Defendant including thou-

sands of randomly sampled driver logbooks, that the majority of

Defendant’s trips were within the State; that Defendant

conducted a limited number of trips across the State line; that

sixty-seven of Defendant’s then-employed drivers did not make

any trips across the State line while employed by Defendant;

and that out of thousands of logbook entries, there was a total of

nine trips across the State line — do not create a genuine issue of

material fact as to whether Defendant is a carrier whose trans-

portation of passengers is subject to the Secretary’s jurisdiction

under the Motor Carrier Act, because the Court’s determination

is based on its finding that Defendant has met its burden by

establishing that it holds itself out as a interstate company and

solicits that business, and that it is licensed by the USDOT and

has the right to engage in interstate commerce subject to the

FMSCA’s safety regulations.

App. 63

commerce within the meaning of the Motor Carrier

Act, or whether there are genuine issues of material

fact that preclude such a determination by the Court

at this stage in the litigation. It is not disputed that

Plaintiffs engaged in activities of a character directly

affecting the safety of operation of motor vehicles;

thus, the issue before the Court is whether Plaintiffs

were engaged in interstate or foreign commerce

within the meaning of the Motor Carrier Act.”

Defendant argues that it has met its burden of

establishing that Plaintiffs engaged in interstate or

foreign commerce within the meaning of the Motor

Carrier Act in two ways: (1) by presenting evidence

that all of its drivers could reasonably be expected to

drive routes within the State that may be considered

movement in interstate commerce within the meaning

of the Motor Carrier Act because they are part of a

“practical continuity of movement” across State lines

from the point of origin to the point of destination;

and (2) by presenting evidence that it regularly

makes trips across the State line and that each of its

drivers could reasonably be expected to make such

trips.

For the reasons that follow, the Court finds

that — with the exception of its University shuttle bus

* The applicable regulations explain that “[tJhe work of an

employee who is a full-duty or partial duty ‘driver,’ . . . directly

affects ‘safety and operation’ ... whenever he drives a motor

vehicle in interstate or foreign commerce within the meaning of

[the Motor Carrier Act].” 29 C_F_R. § 782.3(b).

App. 64

drivers — Defendant has met its burden of estab-

lishing that all of its drivers could reasonably be

expected to drive routes within the State that are

movement in interstate commerce within the meaning

of the Motor Carrier Act. It is therefore unnecessary

for the Court to make a determination as to whether

all of Defendant’s drivers could reasonably be ex-

pected to make trips across the State line. As to

Defendant’s University shuttle bus drivers, there are

genuine issues of material fact concerning whether

these drivers could reasonably be expected to make

trips out of State or to drive routes within the State

that are movement in interstate commerce within the

meaning of the Motor Carrier Act.

Defendant argues that Plaintiffs are exempt

under the motor carrier exemption because

(1) Defendant’s transportation of passengers to and

from the local airports to and from the local seaports

pursuant to contractual arrangements with one or

more cruise lines and independent ground agents is

movement in interstate commerce within the meaning

of the Motor Carrier Act because it is part of a

“practical continuity of movement” across State lines

from the point of origin to the point of destination;

and (2) all of Defendant’s drivers could reasonably be

expected to drive passengers on airport-to-seaport

and seaport-to-airport runs pursuant to these ar-

rangements during the relevant time period.

App. 65

1. Defendant’s Seaport-to-Airport and Airport-

to-Seaport Routes Are Movement in Inter-

state Commerce Within the Meaning of the

Motor Carrier Act

Plaintiffs argue that Defendant’s transportation

of passengers to and from the local airports to and

from the local seaports pursuant to contractual ar-

rangements with one or more cruise lines and inde-

pendent ground agents is not movement in interstate

commerce within the meaning of the Motor Carrier

Act. The applicable regulations explain that “[wJhat

constitutes ... transportation in interstate or foreign

commerce, sufficient to bring ... an employee within

the regulatory power of the Searchers of Transporta-

tion ... , is determined by definitions contained in

the Motor Carrier Act itself,” but that “[tjhese

definitions are ... not identical with the definitions

in the Fair Labor Standards Act which determine

whether an employee is within the general coverage

of the wage and hours provisions as an employee

‘engaged in (interstate or foreign) commerce’” 29

C.F.R. § 782.7(a). Thus, while “transportation within

a single State is in interstate commerce within the

meaning of the Fair Labor Standards Act where it

forms a part of a ‘practical continuity of movement’

across State lines from the point of origin to the point

of destination.... such transportation may or may

not be considered also a movement in interstate com-

merce within the meaning of the Motor Carrier Act.”

29 C.F.R. § 782.7(bX1) (citing Walling v. Jackson-

ville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed.

460 (1943)). The regulations explain that although

App. 66

“[dlecisions of the Interstate Commerce Commission

prior to 1966 seemingly have limited the scope of the

Motor Carrier Act more narrowly than the courts

have construed the Fair Labor Standards Act It is

deemed necessary, |]as an enforcement policy only

... to assume that such a movement in interstate

commerce under the Fair Labor Standards Act is also

a movement in interstate commerce under the Motor

Carrier Act, except in those situations where the

Commission has held or the Secretary of Trans-

portation or the courts hold otherwise.” 29 C.F.R.

§ 782.7(b)(1). “[WJhere ... it has been authoritatively

held that transportation of a particular character

within a single State is not in interstate commerce as

defined in the Motor Carrier Act... , there is no basis

for an exemption under section 13(bX1), even though

the facts may establish a ‘practical continuity of

movement’ from out-of-State sources.”” 29 C.F.R.

§ 782.7(bX 1).

* Plaintiffs urge the Court to follow the concurring opinion

in Packard v. Pittsburgh Transportation Co., 418 F.3d 246, 259

(3d Cir.2005), which would not look for guidance to applicable

regulations and case law to determine whether a motor carrier

providing wholly intrastate passenger transportation service

may be engaged in “interstate commerce” within the meaning of

the Motor Carrier Act where the intrastate passenger transpor-

tation service is within the “practical continuity of movement” in

interstate travel. Rather, the concurring opinion in Packard

would “hold the plain language of the Act’s jurisdictional statute

to be dispositive,” insofar as the motor carrier exemption applies

only where a motor carrier provides transportation across State

lines. Id. The Court declines to follow the concurring opinion in

(Continued on following page)

App. 67

Based on a prior decision of this Court, Cartun v.

Carey International, Inc., No. 0421074-CIV-UNGARO-

BENAGES, 2004 U.S. Dist. LEXIS 30346 (S.D.Fla.

Dec. 9, 2004), Plaintiff argues that Defendant cannot

bring its drivers under the motor carrier exemption

because it cannot demonst

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