                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3011
                        ___________________________

   Birdell McCall, on behalf of himself and all other persons similarly situated

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

Disabled American Veterans, Ernestine Schumann-Heink Missouri Chapter 2; Red
          Racks Thrift Store, LLC; Douglas DePew; James Hayworth

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                             Submitted: March 13, 2013
                                Filed: July 31, 2013
                                  ____________

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
                           ____________

SMITH, Circuit Judge.

      Birdell McCall drove trucks for the Red Racks Thrift Store ("Red Racks"),
which was operated by the Disabled American Veterans (DAV). The trucks that
McCall operated had an actual weight of less than 10,000 pounds but a gross vehicle
weight rating (GVWR) of greater than 10,000 pounds. McCall, a salaried employee
ordinarily ineligible for overtime, filed a wage claim against DAV, seeking overtime
pay. McCall alleged that he should be considered a "covered employee" under § 306
of the Safe, Accountable, Flexible, Efficient Transportation Equity Act (SAFETEA-
LU) Technical Corrections Act (TCA) and thus eligible for overtime. See Pub. L. No.
110-244, Title III, § 306, 122 Stat. 1572, 1620 (2008). According to McCall, the
trucks that he drove actually weighed less than 10,000 pounds, resulting in his
eligibility for overtime under the TCA. The district court1 granted DAV's motion for
summary judgment and denied McCall's motion for partial summary judgment. We
affirm.

                                     I. Background
       McCall drove trucks for Red Racks in Blue Springs, Missouri. McCall used the
trucks to collect donated items from various locations. Sometimes, McCall's hours
exceed 40 hours per week. Generally, under the Fair Labor Standards Act (FLSA), an
employee who works in excess of 40 hours per week is entitled to be paid one-and-a-
half times his or her regular pay rate for the excess hours. See 29 U.S.C. § 207(a)(1).
But this FLSA provision is inapplicable to "any employee with respect to whom the
Secretary of Transportation has power to establish qualifications and maximum hours
of service pursuant to the provisions of section 31502 of Title 49." Id. § 213(b)(1). As
the district court observed, "[t]his exemption is commonly referred to as the Motor
Carrier Act Exemption [(MCAE)]." McCall v. Disabled Am. Veterans Ernestine
Schumann-Heink Mo. Chapter 2, No. 11–1298–CV–W–ODS, 2012 WL 3069845, at
*1 (W.D. Mo. July 27, 2012).

      Under 49 U.S.C. § 31502(b)(2), "[t]he Secretary of Transportation may
prescribe requirements for . . . qualifications and maximum hours of service of
employees of . . . a motor private carrier, when needed to promote safety of
operation." "A 'motor private carrier' is defined in 49 U.S.C. § 13102(15), and before


      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.

                                          -2-
August 2005[,] the definition described a person who transported property by any
motor vehicle regardless of the vehicle's weight." See McCall, 2012 WL 3069845, at
*2. In 2005, Congress enacted the SAFETEA-LU, Pub. L. No. 109-59, 119 Stat. 1144
(2005). In accordance with SAFETEA-LU, the MCAE now only exempts employees
from the FLSA who operate a "commercial motor vehicle," as that term is defined in
49 U.S.C. § 31132. See id. Title IV, § 4142(a). For purposes of this appeal, the
relevant element in the definition of a "commercial motor vehicle" is its weight. A
commercial motor vehicle "has a [GVWR] or gross vehicle weight of at least 10,001
pounds, whichever is greater." 49 U.S.C. § 31132(1)(A).

      In 2008, Congress passed the TCA, thereby amending the SAFETEA-LU.

      The TCA amended the definition of "motor private carrier" by defining
      it as a "motor vehicle" and not a "commercial motor vehicle," thus
      returning the pre-SAFET[E]A[-LU] definition and again expanding the
      Secretary's authority. In a provision apparently not codified in the United
      States Code, the TCA also decreed that the overtime provisions
      contained in 29 U.S.C. § 207 would apply to "a covered employee"
      notwithstanding the [MCAE], and further defined a "covered employee"
      to include, as relevant here, a driver of a motor vehicle "weighing 10,000
      pounds or less." Pub. L. No. 110-244, Title III, § 306 (2008).

McCall, 2012 WL 3069845, at *2.

       From approximately March 2011 to October 2011, McCall was a salaried
employee and thus received no pay for overtime hours. It is undisputed that, during
the course of his employment, McCall drove trucks that had actual weights of less
than 10,000 pounds but a GVWR of more than 10,000 pounds. In other words, McCall
operated trucks that were rated to carry substantially heavier loads than the loads he
actually transported.




                                         -3-
       McCall sued DAV, claiming that he sometimes worked more than 40 hours per
week driving a truck with an actual weight of less than 10,000 pounds. McCall argued
that he should have received overtime pay under the FLSA and the TCA. McCall
moved for partial summary judgment to determine the application of the TCA. DAV
also moved for summary judgment. The district court denied McCall's motion for
partial summary judgment and granted DAV's motion. The district court found that
the proper measure of a vehicle's weight for purposes of the TCA is its GVWR.
McCall, 2012 WL 3069845, at *2. The court based its conclusion upon the
Department of Labor's Field Service Bulletin No. 2010-2 ("the Bulletin"). Id. The
court observed that the Bulletin represented the Department of Labor's "interpretation
of statutory provisions it is charged with enforcing" and is entitled to deference. Id.
The Bulletin made clear that FLSA overtime requirements only applied to vehicles
with a GVWR of less than 10,000 pounds. See id. McCall's vehicle had a GVWR
exceeding 10,000 pounds; consequently, FLSA overtime protections did not apply to
him. See id. The district court also concluded that this interpretation advanced
certainty in interpretation and was "consistent with the Secretary of Transportation's
entire statutory and regulatory framework, which elsewhere typically relies on GVWR
when referencing the weight of vehicles." Id.

                                    II. Discussion
      On appeal, McCall argues that the MCAE to the FLSA did not apply to his
employment because the TCA expressly provides overtime rights to covered
employees, whose vehicle weigh 10,000 pounds or less. McCall maintains that
because the actual weight of the loaded vehicle that he drove never exceeded 10,000
pounds, FLSA overtime provisions apply to him and he is entitled to overtime.

       We review a district court's grant of summary judgment de novo. Johnson v.
Carroll, 658 F.3d 819, 825 (8th Cir. 2011). "'Summary judgment is proper if, after
viewing the evidence and drawing all reasonable inferences in the light most favorable
to the nonmovant, no genuine issues of material fact exist and the movant is entitled

                                         -4-
to judgment as a matter of law.'" Id. (quoting Hayek v. City of St. Paul, 488 F.3d 1049,
1054 (8th Cir. 2007)).

       Under the FLSA, "[e]mployees engaged in interstate commerce" are to be paid
"one and one-half times" their regular salary rates for all work performed in excess of
40 hours per week. 29 U.S.C. § 207(a)(1). However, under the MCAE, the overtime-
pay provision of § 207 does not apply to "any employee with respect to whom the
Secretary of Transportation has power to establish qualifications and maximum hours
of service pursuant to the provisions of section 31502 of Title 49." 29 U.S.C.
§ 213(b)(1). "The Secretary of Transportation may prescribe . . . maximum hours of
service of employees of . . . motor carrier[s] and . . . motor private carrier[s]." 49
U.S.C. § 31502(b)(1) and (2). As relevant here, "motor private carrier" is a person
"transporting property by motor vehicle when . . . the property is being transported for
sale, lease, rent, or bailment or to further a commercial enterprise." 49 U.S.C. §
13102(15)(C).

      In 2005, the SAFETEA-LU amended the definition of "motor private carrier"
to mean "a person, other than a motor carrier, transporting property by commercial
motor vehicle (as defined in section 31132)." 49 U.S.C. § 13102(15) (2005) (emphasis
added). Section 31132 defines a "commercial motor vehicle" as one which "has a
gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds,
whichever is greater." 49 U.S.C. § 31132(1). Therefore, following enactment of the
SAFETEA-LU, the overtime-pay provision of § 207 began to apply to drivers of
vehicles with a GVWR less than 10,001 pounds.

       In 2008, the TCA deleted the § 13102(15) reference to a "commercial motor
vehicle (as defined in section 31132)" and inserted the more generic language "motor
vehicle," which is its current form. 49 U.S.C. § 13102(15) (2008). Section 306 of the
TCA also extended FLSA overtime protections to "covered employees," defined as
individuals who are employed as motor private carriers, "who perform[] duties on

                                          -5-
motor vehicles weighing 10,000 pounds or less." (Emphasis added). Pub. L. 110-244,
Title III, § 306, 122 Stat. 1572, 1621 (2008). In the Bulletin, the Department of
Labor's Wage and Hour Division stated that it "will continue to use the gross vehicle
weight rating[2] (GVWR) or gross combined vehicle weight rating in the event that
the vehicle is pulling a trailer" to determine if a vehicle is one "weighing 10,000
pounds" or less. Therefore, the overtime-pay provision of § 207 applies to vehicles
with a GVWR of 10,000 pounds or less. We accord appropriate deference to this
interpretation of the FLSA by the Secretary of Labor. See Donovan v. Bereuter's, Inc.,
704 F.2d 1034, 1036 (8th Cir. 1983) ("[T]he Secretary[ of Labor]'s interpretations are
entitled to considerable weight.").

       McCall argues that he was a covered employee with overtime rights under the
FLSA because the trucks that he operated actually weighed less than 10,000 pounds
despite having GVWRs greater than 10,000 pounds. Upon review, we agree with the
district court that GVWR, not actual weight, is the appropriate criterion for
determining if the TCA applies to place a driver's wage regulation under the FSLA
rather than the Transportation Secretary. McCall operated trucks with GVWRs in
excess of 10,000 pounds. He is not entitled to overtime under the FSLA.

      We agree with the Seventh Circuit's reasoning in Collins v. Heritage Wine
Cellars, Ltd.

      Dividing jurisdiction over the same drivers, with the result that their
      employer would be regulated under the Motor Carrier Act when they
      were driving the big trucks and under the [FLSA] when they were
      driving trucks that might weigh only a pound less, would require
      burdensome record-keeping, create confusion, and give rise to mistakes
      and disputes.


      2
       "The GVWR is found on the vehicle, usually on a plate on the door jamb."
Dep't of Labor Field Service Bulletin No. 2010-2 (Nov. 4, 2010).

                                         -6-
589 F.3d 895, 901 (7th Cir. 2009). The Secretary's use of GVWR establishes an
objective and predictable standard for determining whether the MCAE applies. The
district court properly determined that a FLSA-covered employee under the TCA is
one driving a vehicle with a GVWR of 10,000 pounds or less. It also correctly
concluded that McCall was not a covered employee and properly granteded summary
judgment to DAV and denied partial summary judgment to McCall.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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