# Petition for Writ of Certiorari — Walters v. American Coach Lines of Miami, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1429%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 559 U.S. 1048 ## Text 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? il 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 1V 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. vl 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. ee FPR | Oe Bee 8 4 aes) CB Dt, 6 he ee ee ah el 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 1x 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 x1 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 1 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. /- vw 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. , vw 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 — 2 (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; 3 (B) a State and another place in the same State through another State; (C) the United States and a place in a 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; e 4 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 D 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; (C) the United States and a place in a 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. 6 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. 7 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 8 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 9 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 10 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. ll 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) 12 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). 13 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 14 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 15 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 16 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.” 17 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”. 18 § 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. 19 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. 20 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. 21 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). 22 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). 23 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”). 24 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. 25 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 26 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. 27 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). 28 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. 29 110-244, § 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 30 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. 4 31 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, v. 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§ion=390.3§ion_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)- (c) & Exs. F-G.) No written agreement was entered 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 w [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1429%3A1. Public record. Not legal advice.