                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 13-1273

R OBERT T. A LMY,
                                                  Plaintiff-Appellant,
                                   v.

K ICKERT SCHOOL B US L INE, INC.,

                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 08 C 2902—Robert M. Dow, Jr., Judge.



      S UBMITTED JUNE 13, 2013—D ECIDED JULY 16, 2013




 Before M ANION, S YKES, and T INDER, Circuit Judges.
  P ER C URIAM. Robert Almy, a school bus driver, appeals
the grant of summary judgment for his former employer
in this action for overtime wages under the Fair Labor
Standards Act, 29 U.S.C. §§ 201 to 219. Congress, however,
has exempted a range of employees from the act’s
overtime provisions, including interstate drivers whose
maximum hours are regulated by the Department of
Transportation, 29 U.S.C. § 213(b)(1). The district court
2                                             No. 13-1273

concluded that Almy, as an interstate school bus driver,
falls within this “motor-carrier exemption.” We affirm.


                         I. Facts
  Almy lives in Hammond, Indiana, and he began
working for Kickert School Bus Line in 2000. Kickert’s bus
terminal is located in Lynwood, Illinois, just across the
state border from Indiana. Almy drove roughly the
same bus route each year, and as part of his regular
route from 2005 to 2008, he would pick up children at
private schools in Illinois and drop them off at their
homes in Indiana. In addition to his regular route, Almy
also drove charter trips for Illinois schools, and would
occasionally pick up children at Illinois schools and
drive them to destinations in Indiana.
  Almy believed that Kickert was under-paying him
in three ways. First, under his workplace’s collective
bargaining agreement, he did not receive a higher
hourly rate of pay for overtime, even though he worked
more than 40 hours per week. Second, he stated that
he was not paid for the 20 minutes it took him to
prepare his bus each morning or for the time required
in the afternoon for fueling, cleaning, and paperwork.
Finally, he was not paid during charter trips for “dead-
head” time—the amount of time it took to drive the
empty bus to the school and then back to the bus terminal.
  After Kickert began providing overtime pay in early
2008, Almy sued under the Fair Labor Standards Act
for back pay for the years he had not received overtime.
No. 13-1273                                              3

29 U.S.C. § 216(b). The FLSA generally requires em-
ployers to pay 1.5 times the regular hourly wage to
any employee who works more than 40 hours in a week.
29 U.S.C. § 207(a). Other Kickert bus drivers joined the
suit under the FLSA’s collective-action provision, but
they later settled and are not involved in this appeal.
Almy also brought two state-law claims: one for overtime
wages under the Illinois Minimum Wage Law, 820 ILCS
105, and another for back pay under the Illinois Wage
Payment Collection Act, 820 ILCS 115.
   On the parties’ cross-motions for summary judgment,
the district court concluded that school bus drivers
who transport passengers across state lines fall within
the motor-carrier exemption, making them ineligible
for overtime pay. 29 U.S.C. § 213(b)(1). These em-
ployees are exempt under the FLSA because the exclu-
sive authority to set maximum hours for “motor carri-
ers” is vested in the Secretary of Transportation by
another federal statute, the Motor Carrier Act, 49 U.S.C.
§ 31502(b)(1); this exclusive authority covers anyone
paid to transport passengers across state lines, id.
§§ 31501(2), 13102(14), 13501(1)(A). Almy pointed to
language elsewhere in the Motor Carrier Act
specifying that the Secretary lacks “jurisdiction under
this part over . . . a motor vehicle transporting only
school children and teachers to or from school,” 49
U.S.C. § 13506(a)(1), but the district court—relying on
cases from other circuits and disagreeing with an
earlier case from the Northern District of Illinois, Mielke
v. Laidlaw Transit, Inc., 102 F.Supp.2d 988, 992 (N.D.
Ill. 2000)—concluded that this provision applies to a
4                                               No. 13-1273

different part of the Motor Carrier Act, namely its reg-
istration and insurance requirements. The court then
denied the motions and ordered discovery to deter-
mine if Kickert’s drivers transported passengers across
state lines.
  The district court ultimately found that Almy had
transported passengers across the Illinois-Indiana
border as part of his regular route and granted sum-
mary judgment for Kickert. In a comprehensive and well-
reasoned opinion, the court reaffirmed its conclusion
that interstate school bus drivers fall within the motor-
carrier exemption. The court dismissed Almy’s claim
for overtime wages under the Illinois Wage Payment
Collection Act for failure to exhaust the grievance pro-
cess. The court determined that this was a claim governed
by federal law because it required interpreting a collective
bargaining agreement. See 29 U.S.C. § 185(a). Finally,
exercising supplemental jurisdiction, the court granted
summary judgment to Kickert on Almy’s claim
for overtime under the Illinois Minimum Wage Law
because that law exempts workers covered by the
Motor Carrier Act—an act that the court had already
determined applies to Almy. See 820 ILCS 105/3(d)(7).


                       II. Analysis
   On appeal, Almy argues that the district court erred in
finding him exempt from the FLSA’s overtime require-
ment, and he maintains that as a school bus driver he
is not a motor carrier with respect to whom the Secretary
of Transportation can set maximum hours, see 49 U.S.C.
No. 13-1273                                              5

§ 31502(b)(1), the same view that a district court took
in Mielke, 102 F.Supp.2d at 992. Almy’s argument builds
on the interplay among three different sections of the
Motor Carrier Act. He asserts that § 31502 (the section
granting the power to set maximum hours), by
referencing § 13501 (a general jurisdiction section), im-
pliedly incorporates the language in another part of
that jurisdictional chapter concerning school bus driv-
ers—§ 13506(a)(1). Specifically, Almy contends that
§ 13506(a)(1), in depriving the Secretary of jurisdiction
“under this part” over interstate school bus drivers,
limits the jurisdictional scope of § 13501 and thus
precludes the Secretary from setting maximum hours
for school bus drivers.
   But all of the circuit courts to address the exemptions
listed in § 13506 and the similarly worded § 13505
have ruled that the employees covered by these sections
are exempt from the FLSA’s overtime requirement; these
sections, according to the courts, do not divest the Secre-
tary of power to set maximum driving hours. As the
district court noted, one circuit has considered the ex-
emption in § 13506(a)(8)(A) as part of a lawsuit for over-
time wages and ruled that § 13506 did not limit the Secre-
tary’s power to set maximum hours. Walters v. Am. Coach
Lines of Miami, Inc., 575 F.3d 1221, 1233 (11th Cir. 2009).
Likewise, three circuits have ruled that the Secretary’s
power to set maximum hours is also not limited by the
exemption in § 13505, which states that “[n]either the
Secretary nor the Board has jurisdiction under this
part over the transportation of property by motor vehicle
when . . . the property is transported by a person
6                                                  No. 13-1273

engaged in a business other than transportation,” 49 U.S.C.
§ 13505(a)(1); according to these circuits, § 13505 does
not impliedly limit the scope of § 13501. See Bilyou v.
Dutchess Beer Distribs., Inc., 300 F.3d 217, 225-26 (2d
Cir. 2002); Klitzke v. Steiner, 110 F.3d 1465, 1468-69 (9th Cir.
1997); Friedrich v. U.S. Computer Servs., 974 F.2d 409, 413
(3d Cir. 1992). Because sections 13505 and 13506 both
explicitly divest the Secretary of “jurisdiction under this
part,” these circuit rulings are persuasive authority.
  Almy’s reading is at odds with the Motor Carrier
Act’s plain language and structure. First, the section
giving the Secretary of Transportation power to set maxi-
mum hours explicitly applies to transportation “described
in sections 13501 and 13502 of this title.” 49 U.S.C.
§ 31502(a)(1). Congress thus authorized the Secretary to
set maximum driving hours for all transportation de-
scribed in two specific sections of the Motor Carrier
Act, without including the limitations listed in later
sections, such as 13505 and 13506. Indeed, § 31502
actually refers to one set of limitations—§ 13502, which
exempts certain transportation between Alaska and
other states—but not to any other statutory exemptions.
See Walters, 575 F.3d at 1232. Second, the structure of
the Motor Carrier Act supports this reading: the act
is divided into two subtitles of Title 49, the U.S. Trans-
portation Code, one of which generally contains the
Department of Transportation’s economic regulations
(Subtitle IV), and the other its safety regulations
(Subtitle VI). Sections 13501 to 13508 provide the scope
of jurisdiction for the economic regulations, not the
safety regulations. Joining with our sister circuits, we
No. 13-1273                                               7

hold that the exemption listed in 49 U.S.C. § 13506(a)(1)
does not divest the Secretary of Transportation of the
power to set maximum driving hours for interstate
school bus drivers.
  Almy next argues that the district court’s interpreta-
tion conflicts with congressional intent because, he says,
comparing the current version of § 13506 with an
earlier version shows that Congress wanted to exempt
school bus drivers from the Secretary of Transportation’s
jurisdiction. As Almy notes, the current statute no
longer contains language that expressly acknowledges
the Secretary’s power to set standards for maximum
driving hours for school bus drivers—language that
appeared in a prior version:
    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 standards of equipment[,] shall be construed
    to include . . . motor vehicles employed solely in
    transporting school children and teachers to or
    from school.
Motor Carrier Act of 1935, ch. 498, 49 Stat. 543, 546 (1935)
(formerly codified at 49 U.S.C. § 303(b)(1)); see Levinson
v. Spector Motor Serv., 330 U.S. 649, 658 & n.9 (1947).
  But Almy reads too much into the differences
between the two versions because he misses the inter-
vening reorganization of the Motor Carrier Act after
Congress created the Department of Transportation
in 1966. As reflected in the legislative history, § 13506
and its prior versions have always served to exempt
8                                            No. 13-1273

school bus drivers from economic regulations—not from
safety regulations, such as maximum driving hours.
Before 1966, both economic and safety regulations fell
under the purview of the Interstate Commerce Com-
mission (ICC), see Morris v. McComb, 332 U.S. 422, 434-35
(1947), so Congress had to specify that the ICC retained
the power to set maximum driving hours, even though
it could not otherwise regulate interstate school bus
drivers. After Congress created the Department of Trans-
portation in 1966, however, the power to set maximum
hours was transferred to a new entity—the Secretary
of Transportation. See Department of Transportation
Act, Pub. L. No. 89-670, 80 Stat. 931, 939 § 6(e)(6)(C)
(1966). Congress removed the now irrelevant reference
to maximum hours and amended the provision to
nearly its present form, stating: “The Interstate Com-
merce Commission does not have jurisdiction under
this subchapter over . . . a motor vehicle transporting
only school children and teachers to or from school.”
Revised Interstate Commerce Act of 1978, Pub. L. No. 95-
473, 92 Stat. 1337 (1978) (formerly codified at 49 U.S.C.
§ 10526). Comparing that version with the current one
shows that there has been a change not in the section’s
meaning, but only in the authority responsible for eco-
nomic regulation of motor carriers. Congress adopted
the present version when it abolished the ICC and trans-
ferred its economic regulatory powers to the Secretary
and Surface Transportation Board. See ICC Termination
Act, Pub. L. No. 104-88, 109 Stat. 861 (1995). The prior
language about maximum driving hours was still super-
fluous, however, because the economic and safety reg-
No. 13-1273                                                 9

ulations of the Motor Carrier Act had now been split
into two separate subtitles, see Walters, 575 F.3d at 1233, so
limiting jurisdiction “under this part” applied only to the
economic regulations contained in that “part” of the act.
  Almy also argues that the district court failed to recog-
nize that he was exempt from maximum driving hours
by regulation when it interpreted the Transportation
Department’s regulations too narrowly. Almy notes that
the Department exempts school bus drivers from maxi-
mum driving hours “[u]nless otherwise specifically
provided,” see 49 C.F.R. § 390.3(f)(1), which, he main-
tains, is not the case here. It is true that Almy’s hours
are largely unregulated, but so long as the Secretary
has the power to set maximum hours, the FLSA’s motor-
carrier exemption applies. See Southland Gasoline Co. v.
Bayley, 319 U.S. 44, 47-48 (1943); Klitzke, 110 F.3d at 1468.
The Department acknowledges its power to set safety
regulations for interstate school bus drivers, explaining
that an “[e]xempt motor carrier means a person engaged
in transportation exempt from economic regulation by
the Federal Motor Carrier Safety Administration
(FMCSA) under 49 U.S.C. 13506. ‘Exempt motor carriers’
are subject to the safety regulations set forth in this
subchapter.” 49 C.F.R. § 390.5; see Walters, 575 F.3d at
1233. And the Department has exercised this power by
issuing regulations that apply to school bus drivers,
such as a ban on texting while driving. 49 C.F.R.
§§ 390.3(f)(1), 391.15, 392.80. Although the limits on
maximum driving hours exempt bus trips between home
and school (presumably because these trips are by their
very nature of limited distance and duration), 49 C.F.R.
10                                             No. 13-1273

§§ 390.5, 390.3(f)(1), other chartered school trips must
abide by the regulations for short-haul opera-
tors—regulations that require record-keeping and eight
hours’ rest between driving periods, 49 C.F.R.
§ 395.1(e)(1)(iii)(B), (e)(1)(v).
  Almy’s alternative arguments concerning the Motor
Carrier Act are nonstarters. He contends that the
district court ignored evidence that Kickert had not
registered as a motor carrier with the Department of
Transportation and therefore is not a motor carrier
under the act. But for purposes of the FLSA, an
employer’s registration is irrelevant because the key
issue is the Secretary’s power to set maximum driving
hours, not the employer’s compliance with unrelated
registration requirements. See Collins v. Heritage Wine
Cellars, LTD, 589 F.3d 895, 897 (7th Cir. 2009). Almy
also asserts that the court attributed powers to the Secre-
tary that actually belong to the Federal Motor Carrier
Safety Administration, an agency within the Transporta-
tion Department. See 49 U.S.C. § 113(f)(1). But as the
district court correctly noted, the only relevant issue
is whether the power to control hours falls under the
Department of Transportation or the Department of
Labor. See Johnson v. Hix Wrecker Serv., Inc., 651 F.3d
658, 660-61 (7th Cir. 2011). Here the Department of Trans-
portation has the power to control Almy’s hours, thus
excluding him from the FLSA’s overtime provisions.
See 29 U.S.C. § 213(b)(1).
  Concerning his state-law claims, Almy contends that
the district court erred in finding him exempt under
No. 13-1273                                             11

the Illinois Minimum Wage Law, arguing that a state-
law exemption for motor carriers does not apply to
him. But the state law exempts any person who works
“[f]or a motor carrier and with respect to whom the
U.S. Secretary of Transportation has the power to
establish qualifications and maximum hours of service
under the provisions of Title 49 U.S.C.” 820 ILCS
105/3(d)(7); see DeWig v. Landshire, Inc., 666 N.E.2d 1204,
1206 (Ill. App. Ct. 1996) (listing employees exempt from
overtime provisions under Illinois law). Because the
district court correctly determined that the Secretary of
Transportation has the power to regulate Almy’s maxi-
mum driving hours, it properly exercised its supple-
mental jurisdiction to grant summary judgment on this
state-law claim. See 28 U.S.C. § 1367; Ridings v.
Riverside Med. Ctr., 537 F.3d 755, 772 (7th Cir. 2008).
   Finally, Almy asserts that his state-law claim under
the Illinois Wage Payment Collection Act is not
governed by federal law, arguing that the district court
erred in concluding that his claim required interpreta-
tion of his collective bargaining agreement. As Almy
notes, the National Labor Relations Act does not
preempt state-law claims where the union’s agreement
is only tangentially related to the employee’s claim,
see Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,
413 (1988); In re Bentz Metal Prods. Co., Inc., 253 F.3d
283, 285 (7th Cir. 2001), and he contends that his only
remaining issue concerns what counts as “work,” a term
not defined in his collective bargaining agreement. But
Illinois law entitles workers to the compensation owed
under their employment agreement, see 820 ILCS 115/2,
12                                             No. 13-1273

so the resolution of Almy’s claim depends on construing
the collective bargaining agreement between Kickert
and the union. It is therefore governed by federal law.
See 29 U.S.C. § 185(a); In re Bentz, 253 F.3d at 289;
United States v. Palumbo Bros., Inc., 145 F.3d 850, 864
(7th Cir. 1998).
  Almy concedes that he did not exhaust the grievance
process before suing—a prerequisite to federal jurisdic-
tion, see Bell v. DaimlerChrysler Corp., 547 F.3d 796, 803
(7th Cir. 2008); McCoy v. Maytag Corp., 495 F.3d 515,
524 (7th Cir. 2007)—and instead argues that the district
court should have found that he satisfied a futility excep-
tion to the exhaustion requirement because he filed a
grievance and then sued after four months of waiting
when he received no response. Although Almy describes
a number of possible problems now that he no longer
works for Kickert or belongs to the union, his specula-
tion—unsupported by evidence in the record—does
not show that union officials will refuse to grieve
his complaint moving forward or that Kickert has repudi-
ated the formal grievance process. Thus the district court
properly concluded that he had not met his burden
of proving futility. See McCoy, 495 F.3d at 525; McLeod
v. Arrow Marine Transp., Inc., 258 F.3d 608, 616 (7th
Cir. 2001).
                                                A FFIRMED.




                          7-16-13
