                                                                      [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT           FILED
                           ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                  No. 10-10659                SEPT 21, 2010
                              Non-Argument Calendar            JOHN LEY
                                                                 CLERK
                            ________________________

                        D.C. Docket No. 9:07-cv-80584-KLR

STEVEN ABEL,
on his own behalf and
all others similarly situated,

                                                               Plaintiff-Appellant,

                                        versus

SOUTHERN SHUTTLE SERVICES, INC.,
a Florida Corporation,

                                                             Defendant-Appellee.

                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                 (September 21, 2010)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:
       This is Plaintiff Steven Abel’s second appeal to this Court. Abel, a former

driver of Defendant Southern Shuttle Services, Inc.’s airport shuttle vans, filed this

action on behalf of himself and others similarly situated for alleged violations of

the overtime pay provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.

§ 207(a)(1). In the first appeal, this Court vacated the district court’s entry of

summary judgment in Southern Shuttle’s favor because Southern Shuttle’s airport

shuttle service did not fall within the “taxicab exemption” to the FLSA’s overtime

provisions. See Abel v. S. Shuttle Servs., Inc., 301 F. App’x 856 (11th Cir. 2008).

After remand, Southern Shuttle filed a second motion for summary judgment,

arguing that its airport shuttle van drivers fall under the Motor Carrier Act

exemption in 29 U.S.C. § 213(b)(1). The district court agreed and granted

Southern Shuttle summary judgment. After review, we affirm.1

                                     I. BACKGROUND

       Southern Shuttle operates a shared-ride airport shuttle, known as

“SuperShuttle,” that transports passengers to and from three South Florida airports


       1
         We review de novo a district court’s order granting summary judgment, construing all
facts and drawing all reasonable inferences in favor of the non-moving party. Walter v. Am.
Coach Lines of Miami, Inc., 575 F.3d 1221, 1226 (11th Cir. 2009), cert. denied, 130 S. Ct. 2343
(2010). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue of
material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(c).

                                                 2
(Miami International Airport, Palm Beach International Airport and Fort

Lauderdale-Hollywood International Airport).2 From December 19, 2005 to June

24, 2007, Abel worked for Defendant Southern Shuttle as a shuttle driver, driving

passengers to and from airports. Abel, like all shuttle drivers, was paid

commission and tips, but not overtime compensation. Abel’s employment ended

after he refused to transport a passenger with a payment voucher and made the

passenger exit the shuttle van, in violation of Southern Shuttle’s policy.

       The shuttles are large nine- and ten-person passenger vans. The shuttles

pick up passengers at one of the airports and take them to any location in the area

(such as a residence, office or hotel), or pick them up at any location in the area

and take them to one of the airports. Shuttle drivers do not transport passengers to

or from locations outside of Florida. Some shuttle passengers are transported to

the airports so they can travel via air carrier to other states or countries. Other

shuttle passengers are transported from the airports after having flown from other

states or countries.




       2
        Southern Shuttle also provides transportation services in Broward County and operates
“Passenger Motor Carrier vans” for the general public in Miami, but the record contains no
additional information about these services. Abel does not appear to have driven vans for these
services.

                                               3
       Many shuttle passengers arrange for shuttle transportation by contacting

Southern Shuttle directly. Passengers traveling to the airport make reservations

ahead of time and schedule a trip to the airport. Similarly, passengers traveling

from the airport check in at a SuperShuttle airport kiosk or counter or with a

curbside representative to be assigned to the next available shuttle.

       Southern Shuttle’s president, Mark Levitt averred that: (1) “[a] large portion

of the reservations made with Southern Shuttle are through internet package deals

wherein a traveler buys a package deal from a third party company that includes

airfare, hotel accommodations and transportation to and from the airport”; (2) “the

traveler receives a voucher for free transportation to and from the airport and

provides the voucher to Southern Shuttle in lieu of payment”; and (3) “Southern

Shuttle then prepares an invoice to the third party company for payment.”3 These

third party companies include internet travel web sites such as Expedia.com,

Travelocity, Orbitz, CheapTickets, a German company called Viator, a company in

the United Kingdom called Get a Bed, and American Express, among others.

                                      II. DISCUSSION

A.     FLSA’s Motor Carrier Exemption


       3
        We reject Abel’s argument that Levitt was not competent to make this averment. We
agree with the district court that Levitt, as Southern Shuttle’s president, had personal knowledge
of Southern Shuttle’s voucher arrangement with internet travel companies.

                                                 4
      The FLSA requires employers to compensate employees at an overtime rate

if they work more than forty hours during a workweek. 29 U.S.C. § 207(a)(1).

The FLSA provides for a number of exemptions to the overtime provision. See 29

U.S.C. § 213(b)(1)-(30). We construe FLSA exemptions narrowly against the

employer. Walters v. Am. Coach Lines of Miami, Inc., 575 F.3d 1221, 1226 (11th

Cir. 2009), cert. denied, 130 S. Ct. 2343 (2010). The employer has the burden to

show that an exemption applies. Id.

      The FLSA exempts from the overtime pay requirement “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,” otherwise known as the Motor Carrier Act (“MCA”)

exemption. 29 U.S.C. § 213(b)(1). Whether the MCA exemption applies “is

dependent on whether the Secretary has the power to regulate, not on whether the

Secretary has actually exercised such power.” Baez v. Wells Fargo Armored Serv.

Corp., 938 F.2d 180, 181 n.2 (11th Cir. 1991). That is, for the MCA exemption to

apply, the Secretary of Transportation’s “power to regulate under the act merely

needs to cover a particular group of employees.” Walters, 575 F.3d at 1226.

      Section 31502 of Title 49 authorizes the Secretary of Transportation to

“prescribe requirements for . . . qualifications and maximum hours of service of

                                         5
employees of” a motor carrier or a private motor carrier. 49 U.S.C. § 31502(b)(1)-

(2). Section 31502(a)(1) of Title 49 explicitly states that this provision in

§ 31502(b) applies to “transportation . . . described in” 49 U.S.C. § 13501. Id.

§ 31502(a)(1). In turn, § 13501 of Title 49 confers jurisdiction on the Secretary of

Transportation over transportation by a motor carrier “on a public highway,” to the

extent passengers, property, or both are transported by motor carrier “between a

place in . . . a State and a place in another State” or “a State and another place in

the same State through another State.” Id. § 13501(1)-(2).

      This Court has interpreted the MCA’s above statutory scheme. Walters,

575 F.3d at 1226-27. We have said that the MCA confers upon the Secretary of

Transportation the authority “‘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.’” Id. (quoting Spires v. Ben Hill Cnty., 980

F.2d 683, 686 (11th Cir. 1993)). “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. at 1227 (quoting 29 C.F.R. § 782.2,

outlining the requirements for the MCA exemption). The Walters Court further

instructed: “[t]here are two requirements for an employee to be subject to the

                                           6
motor carrier exemption”: (1) “his employer’s business must be subject to the

Secretary of Transportation’s jurisdiction under the MCA”; and (2) “the

employee’s business-related activities must directly affect the safety of operation

of motor vehicles in the transportation on the public highways of passengers or

property in interstate or foreign commerce within the meaning of the Motor

Carrier Act.” Id. (emphasis added, quotation marks & brackets omitted).

B.    Secretary’s MCA Jurisdiction over Southern Shuttle

      Abel argues that Southern Shuttle failed to show the first requirement of the

MCA exemption. Abel argues that Southern Shuttle is not subject to the Secretary

of Transportation’s jurisdiction because (1) Southern Shuttle’s airport shuttle

service does not make or derive revenue from interstate trips, such that the

Secretary could exercise such jurisdiction and (2) the Secretary of Transportation

has not in fact exercised jurisdiction over Southern Shuttle. However, even if the

Secretary has not in fact exercised jurisdiction, the MCA exemption still applies so

long as the Secretary has the authority to do so. See Baez, 938 F.2d at 181 n.2.

Therefore, this appeal turns on whether the Secretary has jurisdictional power over

Southern Shuttle.




                                          7
       Here, the parties agree the Secretary’s jurisdictional power depends upon

whether the employer’s transportation service engages in more than de minimus

interstate commerce.4 Therefore we examine the interstate commerce question.

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

       Our recent decision in Walters sheds some light on this question. The

Walters employer was a bus company that had a contract with Royal Caribbean

Cruise Lines to transport passengers to and from the ship ports and the Miami and

Fort Lauderdale airports. Walters, 575 F.3d at 1224. The shuttle trip was included

as part of the passengers’ vacation packages booked through either Royal

Carribean or a travel agent. Id. The passengers used vouchers to board the shuttle

buses, and the bus company invoiced Royal Carribean for the trips. Id. The bus

company had informal agreements with two other cruise lines to provide similar

shuttle transportation. Id. The bus company also provided motor coach

transportation, which included a small number of trips outside Florida, that

generated about four percent of the revenue. Id. at 1225, 1227. Moreover, the bus

company was licensed by the DOT and authorized to operate an interstate motor

carrier. Id. at 1227.


       4
        We assume arguendo, as did the Court in Walters, that the employer’s interstate business
must be more than de minimus in order for the employer to be subject to the Secretary’s authority
under the MCA. See Walters, 575 F.3d at 1228.

                                               8
      The Walters Court rejected the plaintiffs’ argument that interstate trips

comprising 4% of revenue were de minimus. Id. at 1227-28. This Court noted

that Morris v. McComb, 332 U.S. 422, 68 S. Ct. 131 (1947), as well as other cases,

suggest that a company’s interstate business is de minimus if it is less than one

percent of its trips. Walters, 575 F.3d at 1228. The Walters Court expressed

doubt that a de minimus requirement applied when the employer was licensed by

the DOT and undisputedly engaged in “some transportation that crosses state

lines.” Id. Because in Walters the employer’s trips across state lines satisfied the

interstate commerce aspect of the first requirement of being subject to the

Secretary’s jurisdiction, the Court did not consider whether the purely intrastate

trips between the cruise ships and airports satisfied that requirement.

      However, in addressing the second requirement (whether the Secretary’s

jurisdiction extends to the employee’s specific work-related activities), the Walters

Court considered whether driving intrastate airport-to-seaport routes “constituted

interstate commerce.” Id. This Court concluded that “purely intrastate

transportation can constitute part of interstate commerce if it is part of a

‘continuous stream of interstate travel.’ For this to be the case, there must be a

‘practical continuity of movement’ between the intrastate segment and the overall

interstate flow.” Id. at 1229 (citations omitted) (quoting, inter alia, Walling v.

                                           9
Jacksonville Paper Co., 317 U.S. 564, 568, 63 S. Ct. 332, 335 (1943)). Noting that

the fee for the airport shuttle would be “bundled as part of [passengers’] cruise

vacation package,” the Court concluded that “[f]or cruise ship passengers arriving

at the airport or seaport, [the bus company’s] shuttle rides would be part of the

continuous stream of interstate travel that is their cruise vacation.” Id. at 1230.

       The Walters Court determined that the bus company’s “common

arrangements” with cruise lines, even where it had no formal contract, satisfied

any “through-ticketing” requirement. Id. at 1234.5 Citing agency interpretation

that the employer need only show “a common arrangement with an out-of-state

carrier” the Court concluded that this requirement is met “even when there is no

through-ticketing agreement so long as there is evidence of a contractual

connection between the motor carrier and the interstate carrier.” Id. (quotation

marks omitted).



       5
         A “through-ticketing” requirement, which is found in a number of agency determinations
and some lower court decisions, states that the Secretary of Transportation has jurisdiction over
an entity making intrastate passenger-carrying trips only where there is a “contractual
connection” between the intrastate carrier and an interstate carrier for the “continuous passage”
of the passengers. Walters, 575 F.3d at 1233-34. The Walters Court noted that court cases and
agency determinations imposing a “through-ticketing” requirement were addressing the Secretary
of Transportation’s jurisdiction over the employer (i.e., the first requirement) and questioned
“whether there would be a similar requirement for employees’ activities to be in interstate
commerce,” (i.e., the second requirement). Id. “In an abundance of caution,” the Court assumed
that a through-ticketing arrangement must be shown with respect to the employees’ work-related
activities. Id. at 1234.

                                               10
      Although Walters discusses the import of purely intrastate trips under the

second requirement, its general conclusion that such trips are part of interstate

commerce if they are “part of a continuous stream of interstate travel” informs our

analysis under the first requirment. Under either requirement, the Secretary of

Transportation’s jurisdiction (over either the employer’s transportation business or

the employee’s activities) turns on the scope of the MCA’s interstate commerce

requirement.

      2.       Other FLSA Motor Carrier Exemption Cases

      While Walters did not need to address intrastate trips under the MCA’s first

requirement, other cases have. For example, the Supreme Court’s Morris decision

involved a general cartage business that primarily transported steel around the

Detroit area either within local steel plants or to and from local steel plants. 332

U.S. at 427, 68 S. Ct. at 133. A small percentage of the employer’s trips, roughly

four percent, involved transporting miscellaneous freight to and from Detroit boat

docks, railroad depots and freight terminals. Id. at 427 & n.7, 68 S. Ct. at 133 &

n.7. Although these trips did not cross state lines, they nonetheless met the de

minimus interstate commerce requirement because they transported freight “in

interstate commerce, either as part of continuous interstate movements or of




                                          11
interstate movements begun or terminated in metropolitan Detroit.” Id. at 427,

432-33, 68 S. Ct. at 133, 136.

      Other cases make clear that trips within a single state are made in interstate

commerce when they are part of “a practical continuity of movement of the goods”

in interstate commerce. Walling v. Jacksonville Paper Co., 317 U.S. at 568, 63 S.

Ct. at 335 (involving wholesale distributor of paper products made outside the

state but transported only to customers within the state); see also Baez, 938 F.2d at

181-82 (involving armored trucks delivering to Florida banks checks and other

instruments bound for banks outside Florida); Galbreath v. Gulf Oil Corp., 413

F.2d 941 (5th Cir. 1969) (involving oil company’s transport within Georgia of

petroleum products originating from refineries in Texas and Mississippi); Opelika

Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37 (5th Cir. 1962) (involving

wholesale soft drink distributor transporting drinks bottled in Georgia from

Alabama warehouse to Alabama customers and returning empty bottles to

Alabama warehouse, where other trucks took them back to Georgia).

      The Third Circuit distinguished the transportation of passengers from

goods. See Packard v. Pittsburgh Transp. Co., 418 F.3d 246 (3d Cir. 2005). The

employer in Packard provided transportation to the elderly and disabled in

Allegheny County, which included trips to train and bus stations and to the airport.

                                         12
Id. at 248-49. The Third Circuit concluded that this transportation service did not

fall within the Secretary’s jurisdiction because it was not “in practical continuity

with a larger interstate journey.” Id. at 258. Because Morris involved

transportation of goods not passengers, the Third Circuit looked at cases arising in

other contexts that defined interstate transportation of passengers, including

United States v. Yellow Cab Co., 332 U.S. 218, 67 S. Ct. 1560 (1947), overruled

on other grounds by Copperweld Corp. v. Independence Tube Corp., 467 U.S.

752, 104 S. Ct. 2731 (1984), a Sherman Act case.

      In Yellow Cab, the Supreme Court described interstate commerce as “an

intensely practical concept drawn from the normal and accepted course of

business.” Id. at 231, 67 S. Ct. at 1567. Because “the limits of an interstate

shipment of goods” may be different than “the commonly accepted limits of an

individual’s interstate journey,” courts must “mark the beginning and end of a

particular kind of interstate commerce by its own practical considerations.” Id. In

light of these practical considerations, the Supreme Court concluded that, “in the

absence of some special arrangement,” a taxi ride to or from a railroad station at

the beginning or end of an interstate journey ordinarily is a local trip that is not

within interstate commerce. Id. at 231-32, 67 S. Ct. at 1567. However, where the

railroad “contract[s] with the passengers to supply between-station transportation

                                           13
in Chicago,” the taxi ride “is clearly a part of the stream of interstate commerce.”

Id. at 228, 67 S. Ct. at 1565-66. The Supreme Court explained that “[w]hen

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.” Id. at 228, 67 S. Ct. at 1566.

      Relying on the distinctions drawn in Yellow Cab, the Third Circuit noted

that the transportation of the elderly and disabled in Packard “involves no joint

fare or ticketing arrangement, and no prior arrangement of any kind, contractual or

otherwise, with the railroads, airlines, or other companies.” Packard, 418 F.3d at

258. The Third Circuit cited “through ticketing” as “one example of a common

arrangement involving both intra and interstate portions of passenger transport”

but concluded that it was “not the only means of establishing that passenger

transport operating intrastate is in practical continuity with a larger interstate

journey.” Id. (emphasis omitted). Highlighting the “lack of coordination with

other transportation,” such as through “a prepackaged tour,” the Third Circuit

concluded that the transportation service in Packard was “purely intrastate.” Id.

4.    Southern Shuttle




                                           14
      Guided by the interstate commerce principles in Walters, Morris and

Yellow Cab, we conclude that the purely intrastate transport of passengers to and

from an airport may, under certain circumstances, constitute interstate commerce

and thus bring the transportation company within the jurisdiction of the Secretary

of Transportation. Those circumstances are present here.

      Many of Southern Shuttle’s passengers to and from the airport have either

just flown from, or are about to fly to, places outside the state of Florida. A large

portion of Southern Shuttle’s reservations are made via travel websites on the

internet. Travelers buy package deals from these internet travel companies that

include hotel accommodations and airfare in addition to transportation to and from

the airport. The internet travel companies provide their package-deal customers

with a voucher for free airport transportation, which the customers use to board

Southern Shuttle’s airport shuttles. Southern Shuttle then uses the collected

vouchers to invoice the internet travel company for payment. In other words,

Southern Shuttle’s local transport of these package-deal travelers has a “practical

continuity of movement” with the overall interstate journey.

      Furthermore, Southern Shuttle’s arrangement with internet travel companies

to provide airport shuttle service for their package-deal customers meets the

“common arrangement” requirement discussed in Walters. Indeed, Southern

                                          15
Shuttle’s voucher system resembles in many respects the voucher system the bus

company used for cruise ship passengers in Walters. In sum, we conclude that

Southern Shuttle has shown that it is subject to the Secretary of Transportation’s

jurisdiction under the MCA.6

C.     Secretary’s MCA Jurisdiction over Abel’s Work-Related Activities

       We next address the second requirement: whether the Secretary’s

jurisdiction extends to Abel’s work-related activities at Southern Shuttle. To

satisfy this requirement, Southern Shuttle must show that Abel “engage[d] in

activities of a character directly affecting the safety of operation of motor vehicles

in the transportation on the public highways of passengers or property in interstate

or foreign commerce within the meaning of the Motor Carrier Act.” 29 C.F.R.

§ 782.2(a). Abel does not dispute that, as an airport shuttle driver, he engaged in

activities that directly affected the safety of operation of motor vehicles in the

transportation of passengers on the public highways. Thus, the only issue

presented is whether Abel’s activities as an airport shuttle driver constituted

“interstate commerce” within the meaning of the MCA. Here, the issue is easily


       6
         We reject Abel’s argument that the common arrangement must be with an interstate
carrier to satisfy the interstate commerce requirement. In Walters, the bus company’s passengers
booked their vacation packages through cruise lines and travel agents. See 575 F.3d at 1224.
This Court rejected the argument that the motor carrier’s common arrangement had to be with an
air carrier. Id. at 1234.

                                               16
resolved because Abel performed Southern Shuttle’s core airport shuttle transport

activity. Having already concluded that Southern Shuttle’s airport shuttle service

was transportation of passengers in interstate commerce that subjected it to the

Secretary’s jurisdiction, we conclude that Abel’s activities in driving the airport

shuttle also constitute interstate commerce.

                                III. CONCLUSION

      The undisputed evidence shows that both Southern Shuttle and Abel’s

activities as an airport shuttle driver fell under the Secretary of Transportation’s

MCA jurisdiction. Accordingly, the district court properly granted summary

judgment to Southern Shuttle based on the motor carrier exemption to the FLSA.

      AFFIRMED.




                                          17
