      Case: 12-20194          Document: 00512663146              Page: 1      Date Filed: 06/13/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                                        FILED
                                                                                       June 13, 2014

                                             No. 12-20194                             Lyle W. Cayce
                                                                                           Clerk

DONALD ALLEN; JAVIER BAUTISTA; ADAM D. CREWS, SR.; ODELL
GODFREY; JEROME JOHNSON; ET AL,

                                                  Plaintiffs - Appellants

v.

COIL TUBING SERVICES, L.L.C.

                                                  Defendant - Appellee

------------------------------------------------------------------------------------------------------------

JOSHUA BABINEAUX; DAVID BARRAS; ROSS WAYNE BOUTTE,
WILLIAM C. BROUSSARD; WILLIAM DANIEL BROWN, ET. AL.,

                                                  Plaintiffs - Appellants

v.

COIL TUBING SERVICES, L.L.C.

                                                  Defendant - Appellee



                      Appeal from the United States District Court
                           for the Southern District of Texas


Before JONES, DENNIS and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
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                                    No. 12-20194
         Plaintiffs-Appellants alleged that they worked more than forty hours a
week, and that their employer, Defendant-Appellee Coil Tubing Services, L.L.C.
(“CTS”), wrongfully denied them overtime pay in violation of the Fair Labor
Standards Act (“FLSA”). The district court held, among other things, that the
Motor Carrier Act (“MCA”) exempted certain CTS employees from the overtime-
pay requirements of the FLSA based, in part, on the percentage of safety-
affecting interstate activities these employees engaged in company-wide.
Undertaking a limited interlocutory review, we AFFIRM.
                          FACTS AND PROCEEDINGS
         CTS services oil wells. From 2005 to 2008, the company divided itself into
six geographic “districts.” The districts operated under a single U.S. Department
of Transportation (“DOT”) number, and were not legal entities distinct from
CTS. The districts sometimes borrowed personnel and equipment from each
other.     They also sometimes solicited and accepted projects outside their
respective geographic boundaries.
         Plaintiffs worked in four of the districts: Alice, Texas; Angleton, Texas;
Bridgeport, Texas; and Broussard, Louisiana.           Their positions included:
Equipment Operator (“EO”), Service Technician I (“ST-I”), Service Technician
II (“ST-II”), Service Supervisor Trainee (“SST”), Service Supervisor (“SS”),
Service Coordinator (“SC”), and Field Engineer I (“FE-I”).
         Plaintiffs’ duties varied by position. SCs coordinated projects. FE-Is
recorded the pressure of coil tubing units at well sites. EOs, ST-Is, ST-IIs, SSTs,
and SSs helped transport materials to project sites.
         Plaintiffs initiated this suit for overtime pay in November 2008. “To
efficiently manage [the] case,” the district court ordered the parties to conduct
discovery on a cross-section of fourteen Plaintiffs, known as the “Bellwether
group.” On completion of discovery, the parties filed cross-motions for summary
judgment on whether exemptions to the FLSA, and, in particular, an MCA

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                                      No. 12-20194
exemption allowing certain employers not to pay overtime to employees engaged
in safety-affecting interstate activities, applied to Plaintiffs.
       The district court initially denied, in part, summary judgment for CTS
based, in part, on a district-by-district analysis of the employees’ interstate
activities. The district court explained: that EOs, ST-Is, ST-IIs, SSTs, and SSs,
but not FE-Is and SCs,1 had similar-enough job duties to be grouped together as
“Field Service Employees,” or “FSEs”; that FSEs who worked on land-based, but
not offshore, wells engaged in activities affecting motor vehicle safety; and that,
measuring interstate activities by district, only land-based FSEs in certain
districts had a reasonable expectation of engaging in sufficient interstate
activities.
       The parties filed motions for reconsideration. Observing that “[n]either
party had argued for a district-by-district analysis,” the district court granted
CTS’ motion, and vacated its initial order.
       The district court then granted, in part, summary judgment for CTS, using
a company-wide analysis to find that the MCA exemption applied to many of the
Plaintiffs. In a sixty-three page opinion issued January 11, 2012, the district
court used the same individualized analysis to establish the class of FSEs, and
to determine that only FSEs who worked on land-based wells engaged in
activities affecting motor vehicle safety. The district court then reasoned that
a company-wide analysis of these employees’ interstate activities was
appropriate because “[t]here is insufficient evidence or legal authority . . . to
treat the districts separately.” Measuring the interstate activities of land-based
FSEs on a company-wide basis, the district court found: that 7 percent of
projects required these employees to drive across state lines; that such trips were


       1
        The district court denied the parties’ summary judgment motions relating to the FE-Is
and SCs on the basis that there was a genuine issue of fact as to whether the MCA exemption
applied to employees holding these positions.

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                                    No. 12-20194
assigned indiscriminately; and that, therefore, land-based FSEs had a
“reasonable expectation” that they “could be assigned to drive interstate.” The
district court extended its rulings to all Plaintiffs, and not just those in the
Bellwether group.
      The district court granted Plaintiffs’ request for permission to file an
interlocutory appeal under 29 U.S.C. §1292(b), explaining that its rulings,
“particularly those involving application of the [MCA exemption], involve
controlling questions of law as to which there is substantial ground for difference
of option,” and that “an immediate appeal from those rulings is likely to
materially advance the ultimate termination of this litigation.” This court then
granted Appellants’ motion for leave to appeal.
                            STANDARD OF REVIEW
      “Although we ordinarily review a district court’s summary judgment ruling
de novo, our appellate jurisdiction under [28 U.S.C.] § 1292(b) extends only to
controlling questions of law, thus, we review only the issue of law certified for
appeal.” Tanks v. Lockheed Martin Corp., 417 F.3d 456, 461 (5th Cir. 2005). The
district court certified for interlocutory appeal the rulings in its January 11,
2012 order, “particularly those involving application of the [MCA exemption].”
We therefore limit our review to these rulings, particularly whether the MCA
exemption applies.
                             THE MCA EXEMPTION
      Section 207 of the FLSA requires an employer to pay overtime
compensation to any employee working more than forty hours in a workweek.2


      2
        Section 207(a)(1) provides in full:
      Except as otherwise provided in this section, no employer shall employ any of
      his employees who in any workweek is engaged in commerce or in the
      production of goods for commerce, or is employed in an enterprise engaged in
      commerce or in the production of goods for commerce, for a workweek longer
      than forty hours unless such employee receives compensation for his
      employment in excess of the hours above specified at a rate not less than one

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                                    No. 12-20194
See 29 U.S.C. § 207(a)(1); Singer v. City of Waco, 324 F.3d 813, 818 (5th Cir.
2003).   “Exemptions under the FLSA are construed narrowly against the
employer, and the employer bears the burden to establish a claimed exemption.”
Songer v. Dillon Res., Inc., 618 F.3d 467, 471 (5th Cir. 2010).
      At issue on appeal is the MCA exemption, “which states that the FLSA’s
overtime requirement ‘shall 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’ of the MCA.” Id (alterations in original) (quoting 29 U.S.C. § 213(b)(1)).
Section 31502, in turn, provides that the DOT “may prescribe requirements for
. . . qualifications and maximum hours of service of employees of, and standards
of equipment of, a motor private carrier, when needed to promote safety of
operation.” 49 U.S.C. § 31502(b)(2). The DOT may establish these requirements
for employees who
      (1) Are employed by carriers whose transportation of passengers or
      property by motor vehicle is subject to his jurisdiction under section
      204 of the [MCA] . . . and (2) engage 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 [MCA].
29 C.F.R. § 782.2(a); see Songer, 618 F.3d at 472. “For the motor carrier
exemption to apply . . . [the employees] must meet both of these requirements.”
Barefoot v. Mid-Am. Dairymen, Inc., No. 93-1684, 1994 WL 57686, at *2 (5th Cir.
Feb.18, 1994) (per curiam) (unpublished).
      To satisfy the first requirement—whether the employer is “subject to [the
DOT’s] jurisdiction,” 29 C.F.R. § 782.2(a)—an employer “must be engaged in
interstate commerce.” Songer, 618 F.3d at 472. The MCA defines interstate



      and one-half times the regular rate at which he is employed.


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                                  No. 12-20194
commerce as commerce “between a place in . . . a State and a place in another
State.” 49 U.S.C. § 13501(1)(A). However, this definition “has not been applied
literally by the courts. In fact, we have defined it as the actual transport of
goods across state lines or the intrastate transport of goods in the flow of
interstate commerce.” Songer, 618 F.3d at 472 (internal quotation marks
omitted).
      To satisfy the second requirement—whether the employees “engage in
activities of a character directly affecting the safety of operation of motor
vehicles . . . in interstate . . . commerce,” 29 C.F.R. § 782.2(a)—“neither the name
given to his position nor that given to the work that he does is controlling.” 29
C.F.R. § 782.2(b)(2) (citing Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695,
707 (1947)). Rather, “what is controlling is the character of the activities
involved in the performance of [the employee’s] job.” 29 C.F.R. § 782.2(b)(2); see
Levinson v. Spector Motor Serv., 330 U.S. 649, 674-75 (1947) (observing that “[i]t
is the character of the activities rather than the proportion of either the
employee’s time or of his activities” that controls). As a “general rule,”
      if the bona fide duties of the job performed by the employee are in
      fact such that he is (or, in the case of a member of a group of drivers,
      driver’s helpers, loaders, or mechanics employed by a common
      carrier and engaged in safety-affecting occupations, that he is likely
      to be) called upon in the ordinary course of his work to perform,
      either regularly or from time to time, safety-affecting activities . . .
      he comes within the exemption in all workweeks when he is
      employed at such job. . . . Where this is the case, the rule applies
      regardless of the proportion of the employee’s time or of his
      activities which is actually devoted to such safety-affecting work in
      the particular workweek, and the exemption will be applicable even
      in a workweek when the employee happens to perform no work
      directly affecting “safety of operation.”
29 C.F.R. § 782.2(b)(3); see Songer, 618 F.3d at 474. “On the other hand, where
the continuing duties of the employee’s job have no substantial direct effect on
such safety of operation or where such safety-affecting activities are so trivial,

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                                   No. 12-20194
casual, and insignificant as to be de minimis, the exemption will not apply to[the
employee] in any workweek so long as there is no change in his duties.” 29
C.F.R. § 782.2(b)(3) (citing Pyramid, 330 U.S. at 707-08).
      To measure whether employees are “likely to be . . . called upon in the
ordinary course of [their] work to perform . . . safety-affecting activities” that are
interstate in nature, 29 C.F.R. § 782.2(b)(3), we look to whether the employees
“could reasonably have been expected to [engage] in interstate commerce
consistent with their job duties.” Songer, 618 F.3d at 476 (finding that a
reasonable expectation arose when about 2.75 percent of “loads were transported
across state lines”); see Morris v. McComb, 332 U.S. 422, 433-34 (1947) (applying
the MCA exemption to drivers who spent about 4 percent of their time
transporting goods in interstate commerce); Starrett v. Bruce, 391 F.2d 320, 323-
24 (10th Cir. 1968) (applying the MCA exemption to a driver, even though the
driver’s employer derived no income from interstate transport, because the
employer solicited interstate business and would have assigned the driver to
interstate trips if the employer had obtained such business).
      The parties do not dispute that CTS satisfies the first requirement—being
“subject to [the DOT’s] jurisdiction,” 29 C.F.R. § 782.2(a)— because it is a motor
carrier that engages in interstate commerce. Rather, the parties dispute the
second requirement: whether the FSEs engaged in activities that affected “the
safety of operations of motor vehicles in the transportation on the public
highways of passengers or property in interstate or foreign commerce.” 29 C.F.R.
§ 782.2(a). Within the framework of this second requirement, the parties do not
contest that an individualized analysis is appropriate to determine whether
Appellants have similar-enough duties to belong to the class of employees that
engages in safety-affecting activities. The parties only contest whether, in
measuring the interstate activities of this class of employees, an “employee-by-
employee,” “district-by-district,” or “company-wide” analysis is appropriate.

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                                   No. 12-20194
      We hold that a company-wide analysis is appropriate in this case because
this court’s precedent effectively forecloses an employee-by-employee analysis,
and the facts of this case, and arguments advanced by the parties, do not support
a district-by-district analysis.
      This court’s Songer decision declined to adopt an employee-by-employee
analysis. In Songer, truck drivers sought overtime under the FLSA. 618 F.3d
at 468. The drivers argued that “[s]imply being an interstate driver for a
commercial carrier is not enough . . . a driver must be personally engaged in
interstate transportation to be exempt.” A unanimous panel declined to adopt
this argument, observing that the “application of the MCA exemption to an
employee ‘depends . . . on the class of work involved in the employee’s job.’”
Songer, 618 F.3d at 472 (emphasis added) (quoting 29 C.F.R. § 782.2(a)). The
panel first observed that “Plaintiffs, as truck drivers subject to DOT
requirements, are employed in positions that affect the operational safety of
motor vehicles.” Songer, 618 F.3d at 473 (internal quotation marks omitted).
Then, evaluating these drivers as a class, the panel found: that about 2.75
percent of the drivers’ trips were interstate; that the drivers’ employer
indiscriminately assigned such trips; and that, therefore, the drivers “could
reasonably have been expected to drive in interstate commerce consistent with
their job duties.” See id. at 475-76. This is Songer’s binding analysis:
      Plaintiffs assert that the Secretary’s jurisdiction only applies to
      transportation across state lines, and therefore that Defendants
      must demonstrate that each driver personally transported property
      by motor vehicle across state lines. But the Supreme Court held in
      Morris that the Interstate Commerce Commission (ICC), the
      predecessor to the DOT, had jurisdiction to regulate all of defendant
      carrier’s drivers, even though two of the 42 drivers had not engaged
      in interstate trips during the relevant period, and that the drivers
      were not entitled to overtime under the FLSA. Morris, 332 U.S. at
      434–36, 68 S.Ct. 131. In that case, the carrier’s few interstate trips
      (4% of all trips during the relevant period) were distributed
      indiscriminately to all drivers. Id. at 433, 68 S.Ct. 131. The Supreme

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                                      No. 12-20194
       Court noted that, in practical terms, the safety concerns facing a
       carrier who sent every driver on an interstate trip would be the
       same if the carrier sent only some or most of its drivers on interstate
       trips. See id. at 434, 68 S.Ct. 131.
Id. at 474.
       The district court in this case explicitly and closely adhered to our Songer
decision’s reasonable expectation analysis. The district court created a chart
that listed each member of the Bellwether group, and included the member’s
title, district, and start and end dates.        Then the district court looked to each
member’s job duties to find that, notwithstanding their different positions,
members working as EOs, ST-Is, ST-IIs, SSTs, and SSs had sufficiently similar
duties to belong to a class of employees known as FSEs. Tellingly, the district
court delimited this class by excluding FE-Is and SCs because there was
“insufficient evidence about whether the FE-Is or the SCs engaged in safety-
affecting transportation duties and whether there was a reasonable expectation
that their work would affect the safety of interstate transportation.” The district
court further delimited this class by excluding FSEs who worked on offshore
projects because “the factual record is conflicting and there remain open legal
issues” as to whether offshore FSEs engaged in safety-affecting transportation
activities affecting interstate commerce.3 The district court, after this extensive
individualized methodology, then found: that 7 percent of projects company-wide
required this class of employees to cross state lines; that CTS assigned such
interstate trips indiscriminately; and that, therefore, these employees had a
“reasonable expectation” that they “could be assigned to drive interstate.”4


       3
       We note also the district court’s fact-intensive assessment even of those offshore
employees as to whether they were, like Plaintiff Broussard, prohibited from driving.
       4
         Echoing Songer, the district court emphasized that “[t]hese employees have similar
job duties, were or could have been called upon to drive in interstate commerce during their
employment, and receive project assignments that changed often. Any driver could have been
assigned to an interstate project at any time,” and concluded that “the evidence establishes

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                                      No. 12-20194
Given that this analysis adheres to the reasonable expectation approach of
Songer, we cannot say that, after using an individualized analysis to form the
class of employees known as land-based FSEs, the district court erred by not
repeating the individualized analysis to measure the interstate activity of each
member of the class.
       Relevant other Fifth Circuit and Supreme Court decisions are consistent
with Songer. For example, in Barefoot, a unanimous panel found that twenty-six
truck drivers engaged in interstate commerce even though “the drivers conceded
that, among the twenty-six of them,” only about “twenty trips were made across
state lines.” See 1994 WL 57686, at *3. Likewise, in Morris, the Supreme Court
found that forty-three drivers, who, as a group, devoted “about 4% of their time
and effort . . . to services in interstate commerce,” engaged in interstate
commerce even though two of the drivers did not take interstate trips. 332 U.S.
at 432-34. By contrast, the circuit court cases cited by Appellants in support of
an employee-by-employee analysis are distinguishable.5
       Appellants argue that, by using “singular nouns and pronouns,” the
relevant statutes and regulations, including 29 U.S.C. §§ 207(a), 213(b) and 29
C.F.R. § 782.2, envision an employee-by-employee analysis. Read in context,
however, the use of singular terms suggests only that a district court should use
an individual analysis to determine if an employee belongs to a particular
“class.” See, e.g., 29 C.F.R. § 782.2 (observing the exemption depends on “the
class of work involved in the employee’s job” and “extends to those classes of


that, objectively, there was a reasonable expectation that any CTS Field Service Employee
could be assigned to drive interstate.”
       5
        For example, in Goldberg v. Faber Indus., Inc., the Seventh Circuit declined to apply
the MCA exemption to drivers based, in part, on the fact that the drivers were assigned to
“designated” intrastate routes. 291 F.2d 232, 234 (7th Cir. 1961). By contrast, in this case,
interstate routes were assigned indiscriminately. Moreover, the Seventh Circuit in
Goldberg positively applied Morris, which, as noted already, involved a group that had two
non-interstate drivers. See 291 F.2d at 235.

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                                        No. 12-20194
employees” who engage in safety-affective activities) (emphases added). As
discussed above, by finding that certain employees had similar-enough duties to
belong to a class of employees known as FSEs, and then by limiting this class,
the district court used such an analysis.6
        Because Songer forecloses an employee-by-employee analysis, and because
Appellants do not provide a persuasive reason to depart from Songer, the
question narrows to whether the district should have used a district-by-district
or company-wide analysis to measure the interstate activities of land-based
FSEs.
        Given the arguments advanced by the parties, and the facts of the case, a
company-wide analysis was appropriate. The FLSA provides that overtime-pay
requirements and exemptions apply only to an “employer.” See 29 U.S.C. §
207(a)(1). The district court found that CTS “was Plaintiffs’ only ‘employer’
during the relevant time periods; Plaintiffs were not employed by the various
districts.” Appellants did not argue in district court that the districts were their
employers, and they do not challenge on appeal the finding that CTS “was [their]
only ‘employer.’” Appellants therefore have waived any argument to the
contrary.7 See F.D.I.C. v. Mijalis, 15 F.3d 1314, 1326-27 (5th Cir. 1994).

        6
         Appellants also maintain that CTS is judicially estopped from arguing for a company-
wide analysis because CTS argued for an employee-by-employee analysis in Yaklin v. W-H
Energy Servs., Inc., No. C-07-422, 2008 WL 1989795, at *1 (S.D. Tex. May 2, 2008)
(unpublished). To the extent that this estoppel argument is within the scope of our limited
interlocutory review, see Tanks, 417 F.3d at 461, it is unpersuasive. Although “judicial
estoppel is not governed by inflexible prerequisites,” its application generally requires, among
other things, that “a court accepted the prior position.” Love v. Tyson Foods, Inc., 677 F.3d 258,
261 (5th Cir. 2012) (internal quotation marks omitted). Even if CTS did argue for an
employee-by-employee analysis in Yaklin, Appellants do not argue, and the Yaklin opinion
does not support, that the Yaklin court accepted CTS’ argument. See 2008 WL 1989795, at *3.
        7
        The FLSA defines an “employer” to “include[ ] any person”—that is, “an individual,
partnership, association, corporation, business trust, legal representative, or any organized
group of persons,” 29 U.S.C. § 203(a)—“acting directly or indirectly in the interest of an
employer in relation to an employee.” 29 U.S.C. § 203(d). Because we find that waiver applies,
we decline to address whether the districts were “employers” under this definition.

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                                         No. 12-20194
       By waiving this textual argument, Appellants’ opposition to a company-
wide analysis reduces to their contention that “the percentages of interstate
travel for [some districts] tell courts nothing about the reasonable expectation
of a worker dispatched from [other districts].” However, Songer looks at the
reasonable expectations of the employees as a class, even if, in doing so, the
effect is to apply the MCA exemption to employees who rarely, or never, engage
in interstate commerce. See 618 F.3d at 472-76. Songer does not instruct us to
subdivide a class of employees by geography, and the facts of this case do not
support such an artificial division. For example, the districts: operated under
a single DOT number; were not independent legal entities; borrowed personnel
and equipment from each other; and solicited and accepted projects outside their
geographic areas. Accordingly, as the district court found, “[t]here is insufficient
evidence or legal authority . . . to treat the districts separately instead of
conducting the MCA Exemption analysis based on CTS as a single ‘employer.’”8

       8
         With the highest respect, we are unconvinced by the dissenting opinion’s insistence
that precedent “prohibits” courts from determining a particular employee’s reasonable
expectation by reference to a class of similarly situated employees. Post, at 14. Indeed, the
dissent itself uses this “prohibited” mode of analysis by classifying employees by districts. In
what it deems “The Proper Analysis,” the dissent does not “make a determination vel non for
each plaintiff-employee,” but instead divies up the plaintiffs by district: “the vast majority of
jobs handled by the Alice, Angleton, Bridgeport, and Broussard districts were purely intrastate
jobs.” Post, at 30, 31. As evidence of the reasonable expectation of a particular employee, the
dissent looks to the percentage of each district’s jobs that were interstate: “in Alice and
Bridgeport, less than one percent of the jobs handled by those districts during the period
recorded were interstate.” Post, at 31. The dissent concludes its district-by-district analysis:
“Based on this evidence, a reasonable factfinder could determine that the likelihood of these
field service employees in the Alice, Angleton, Bridgeport, and Broussard districts driving
interstate is so minimal and remote, they cannot be ‘reasonably expected’ to be ‘called upon
in the ordinary course of [their] work to [drive interstate].’” Post, at 32 (quoting Songer, 618
F.3d at 474). The dissent may disagree with our choice of classification, preferring a district-
by-district class to company-wide class, but it is still utilizing classifications in its analysis.
        The dissent further does not convincingly explain how its proposed individualized
methodology coincides with Songer or Morris. As we explained, Morris found jurisdiction to
regulate “all of defendant carrier’s drivers, even though two of the 42 drivers had not engaged
in interstate trips.” Songer, 618 F.3d 467. If Morris applied an “individualized” assessment
of the two employees that had not engaged in interstate trips, it could not have found that
these employees had a reasonable expectation of engaging in interstate trips: they had not

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                                        No. 12-20194
       In sum, the district court did not err in using a company-wide analysis
because this court’s precedent effectively precludes an employee-by-employee
analysis, and because neither the parties’ arguments, nor the relevant facts,
support a district-by-district analysis.9
                                      CONCLUSION
       Accordingly, we AFFIRM the district court’s application of the MCA
exemption.




done so before. It is only by reference to other employees’ experience that Morris’s conclusion
makes sense. The dissent revealingly explains that Songer “made the common sense
observation that, because of company policies that were factually common to all employees (i.e.,
the indiscriminate assignment of interstate trips), each and every employee, all of whom had
the same likelihood of driving interstate, was reasonably likely to drive interstate.” Post, at
24. What the dissent frames as a “common sense observation” we call a class-based analysis;
there is a minimal semantic gap between our views. Moreover, the district court made this
exact “common sense observation” when it found that “[t]hese employees have similar job
duties, were or could have been called upon to drive in interstate commerce during their
employment, and receive project assignments that changed often. Any driver could have been
assigned to an interstate project at any time.” Accordingly, both of our opinions use
classifications to determine whether a particular employee has a reasonable expectation. We
simply part ways over the relevant class of comparison, and the factual conclusion reached by
the district court, “that the evidence establishes that, objectively, there was a reasonable
expectation that any CTS Field Service Employee could be assigned to drive interstate.”
       9
         CTS also argues that the district court erred by extending its January 11, 2012 rulings
to all Plaintiffs, and not just the Bellwether group. Even if this argument is within the scope
of our limited interlocutory review, see Tanks, 417 F.3d at 461, it is unpersuasive. Appellants
rely on an Eleventh Circuit case, Hogan v. Allstate Insurance Co., for the proposition that
Federal Rule of Civil Procedure 56(c) requires that “a minimum 10-day notice . . . must be
explicitly given to all plaintiffs,” and not just “test plaintiffs.” 361 F.3d 621, 628 (11th Cir.
2004) (per curiam). However, Rule 56 was amended in 2010—subsequent to the Hogan
decision, but before the district court’s January 11, 2012 rulings—to remove the referenced
ten-day notice requirement. See Atkins v. Salazar, 677 F.3d 667, 678 n.15 (5th Cir. 2011) (per
curiam). Further, CTS requested that the district court’s rulings apply to all plaintiffs in a
March 2011 filing, and then did so again in its motion for reconsideration. As a result,
attorneys for the non-Bellwether Plaintiffs, who also represented the Bellwether Plaintiffs,
had “a full opportunity to argue against” the application of the district court’s rulings to all
Plaintiffs. See Atkins, 677 F.3d at 681.

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                                        No. 12-20194
JAMES L. DENNIS, Circuit Judge, dissenting:
       I respectfully dissent because the district court and the majority of this
court have departed from controlling Supreme Court and circuit precedent and
have misinterpreted and misapplied Department of Labor (“DOL”) regulation 29
C.F.R. § 782.2(a) and this court’s decision in Songer v. Dillon Resources, Inc., 618
F.3d 467 (5th Cir. 2010), to except more than a hundred employees from
overtime wage protection under the Fair Labor Standards Act (“FLSA”).
       The issue is whether the Motor Carrier Act (“MCA”) exemption to the
FLSA excepts the oil-well-service plaintiffs-employees here from overtime
protection because their individual job activities can conceivably affect the safety
of interstate transportation. If an employee is subject to the jurisdiction of the
Department of Transportation (“DOT”) under the MCA to regulate the
qualifications and maximum hours of service of the employee, then that
employee loses the FLSA’s protection over overtime pay. An employee is subject
to such MCA jurisdiction only, inter alia, if he is reasonably likely to carry out
job duties affecting the safety of interstate transportation (or international
transportation, although such is not involved in this case).
       In Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695 (1947), the
Supreme Court held that, when the MCA exemption is invoked as a defense in
an FLSA action for overtime pay, (1) the district court must “determine whether
or not the activities of each [employee]” are reasonably likely to affect the safety
of interstate transportation and that (2) the court may declare exempt from
overtime wage protection only “those [employees] who are engaged in such
activities.” Id. at 707-08 (emphasis added).1 Later that same year, in Morris v.


       1
           As further explained below, for an employee to be “engaged in” activities that affect
the safety of interstate transportation means that “the employee’s job duties are such that he
is (or is likely to be) called upon in the ordinary course of his work to perform safety-affecting
activities.” E.g., Songer, 618 F.3d at 474 (quoting 29 C.F.R. § 782.2(b)(3)) (alteration omitted,
emphasis added).

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                                         No. 12-20194
McComb, 332 U.S. 422 (1947), the Court reaffirmed that, in “an action to recover
overtime compensation for individual employees,” it is “necessary to determine”
“the extent to which” an employee seeking overtime pay carried out activities
reasonably likely to affect the safety of interstate transportation. Id. at 430.
       Thus, under the Supreme Court’s jurisprudence, MCA jurisdiction turns
on the individual job circumstances of “each” employee seeking overtime pay.
Pyramid Motor Freight Corp., 330 U.S. at 707. An employee loses the FLSA’s
protection over overtime pay under the MCA exemption only if the employee,
based on the circumstances of his job, is reasonably likely to carry out activities
affecting the safety of interstate transportation operations. See also Mitchell v.
C & P Shoe Corp., 286 F.2d 109, 114 (5th Cir. 1960) (holding that MCA
jurisdiction turns on the “activities of the particular employee, rather than the
employer”); accord Opelika Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37,
42-43 (5th Cir. 1962). The Supreme Court’s jurisprudence requiring individual
analysis of each employee’s actual job circumstances for purposes of the MCA
exemption has not been overruled or modified.
       Here, however, the district court and the majority have failed to focus on
the circumstances of each employee’s actual job, as required by law, to determine
whether that employee is exempted from overtime wage protection. Instead,
they have erroneously concluded that, when a district court deems multiple
employees’ job duties and assignments to be, in the court’s opinion, “sufficiently
similar,” the court may lump all of the employees together in a single “group”
(the district court’s word) or “class” (the majority’s word)2 so as to determine on
a “company-wide basis” the applicability of the MCA exemption “to that group
as a whole.” 846 F. Supp. 2d 678, 694-95; ante, at 9-10. According to the district


       2
         I note in the interest of clarity that this case is not a class action. See Fed. R. Civ. P.
23 (class action rules). The distinct “class” concept the majority creates today is unique to the
MCA exemption to the FLSA and is unrelated to class actions under Rule 23.

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                                        No. 12-20194
court, this “group”-based analysis that is conducted on a “company-wide basis”
allows the court to look at the job activities of the national company’s Wyoming
employees, who are not parties to this litigation seeking overtime pay, and to
declare that, based on their activities, the Texas and Louisiana employees in this
case are exempted from overtime wages. The district court recognized that,
factually, the Wyoming employees are distinct from the Texas and Louisiana
employees. Specifically, the district court recognized that, as a matter of fact,
the Wyoming employees are very likely to affect the safety of interstate
transportation in the course of their jobs and the Texas and the Louisiana
employees are not. Nevertheless, the district court concluded that, as a result
of “company-wide,” “group-based” analysis, the Wyoming employees, who are not
seeking overtime wages in this case, and the Texas and Louisiana employees,
who are, should all be lumped together and should all be denied overtime wage
protection despite their factual differences. The majority of this court now
affirms.3


       3
         The majority characterizes the differences in our analysis as a “minimal semantic
gap.” Ante, at 13 n.8. Respectfully, it appears that the majority has, with the best of
intentions, mistakenly elided the diverge in our views. It is uncontroversial and I of course
agree that, when particular evidence is factually common to multiple employees, such evidence
is indeed relevant to the individual job circumstances of multiple employees. E.g., if an
employer applies a particular company policy to all of its employees, then such policy obviously
illuminates the individual job circumstances of each employee. Such analysis, however, is not
what the district court here did. As further explained below, the district court recognized that
the evidence regarding the job circumstances of the Wyoming employees differed materially
from the evidence regarding the job circumstances of the Texas and Louisiana employees.
Looking at statistical evidence, the district court concluded that the Wyoming employees were
very likely to carry out job activities affecting the safety of interstate transportation. And,
looking at other statistical evidence, the district court further concluded that many of the
Texas and Louisiana employees were very unlikely to do such. Despite the factual differences,
however, the district court ruled that, as a matter of law, the likelihood of the Wyoming
employees affecting interstate transportation safety should be imputed to the Texas and
Louisiana employees. The difference between the majority’s analysis and my own is not a
semantic question as to how to refer to evidence that is factually common to multiple
                                                                                   (continued...)

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                                       No. 12-20194
       Thus, in granting and affirming summary judgment for Coil Tubing
Services, the employer here, my colleagues mistakenly have failed to require the
employer to carry its heavy burden under its affirmative MCA exemption
defense to show, on an individual basis, that each employee’s job activities
demonstrate that he is exempt from FLSA overtime protection. As support for
this “group”- or “class”-based analysis that is conducted on a “company-wide
basis,” the district court and majority point to the DOL’s § 782 regulations and
this court’s recent Songer decision.            The district court and the majority,
unfortunately, have misread these sources. The DOL’s § 782 regulations and
Songer did not abrogate, nor could they have abrogated, the Supreme Court’s
jurisprudence      requiring     individual        analysis   of   each    employee’s      job
circumstances. Because the district court’s legal errors skewed and undermined
its entire decision, its summary judgment should have been reversed rather than
affirmed.
                                     I. Introduction
       Under the FLSA, employers are generally prohibited from “employ[ing]
any of [their] employees” “for a workweek longer than forty hours unless such
employee receives [time-and-a-half compensation for the overtime hours].” 29
U.S.C. § 207(a)(1).4 Under the MCA exemption to the FLSA, that entitlement


       3
        (...continued)
employees. The difference is a substantive one, viz., whether courts are permitted under the
MCA exemption to use a “group”- or “class”- based analysis (or however else it may be called)
that imputes “facts,” as a matter of legal fiction, to an employee when such ‘facts” are belied
by the evidence.
       4
         The FLSA’s protection over overtime wages reaches only those employees who are
“engaged in commerce or the production of goods for commerce,” and “commerce” “means
trade, commerce, transportation, transmission, or communication among the several States
or between any State and any place outside thereof.” 29 U.S.C. §§ 207(a)(1), 203(b). Here, it
is undisputed that the employees at issue in this case are “engaged in commerce” within the
                                                                               (continued...)

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                                        No. 12-20194
to overtime pay “shall not apply with respect to” “any employee with respect to
whom the Secretary of Transportation [that is, the DOT] has power5 to establish
qualifications and maximum hours of service pursuant to the provisions of
section 31502 of Title 49 [that is, the MCA].” Id. § 213(b)(1). Thus, under the
FLSA, an employee is entitled to overtime pay unless the employee falls within
the scope of the DOT’s regulatory jurisdiction under the MCA or is otherwise
exempt from the FLSA for reasons not involved in this case.6


       4
         (...continued)
meaning of the FLSA. The disputed issue is rather whether the FLSA’s protection over
overtime wages does not apply to the employees because the DOT “has power to establish
qualifications and maximum hours of service [of them] pursuant to the provisions of section
31502 of Title 49.” Id. § 213(b)(1).
       5
         It is well settled that the MCA exemption turns on whether the DOT has power—i.e.,
legal jurisdiction—to regulate the worker’s qualifications and maximum hours of service under
the MCA, not whether the DOT has actually exercised its power to do so. Southland Gasoline
Co. v. Bayley, 319 U.S. 44, 47-48 (1943); Songer, 618 F.3d at 472.
       6
         Although the scope of the MCA exemption to the FLSA and the scope of the DOT’s
regulatory jurisdiction are generally one and the same, there may be an exception to that rule
following passage of the SAFETEA–LU Technical Corrections Act of 2008, Pub. L. 110–244,
122 Stat. 1572, which, in part, provides generally that, from the date of the act’s enactment,
June 6, 2008, the MCA exemption does not apply to employees who would otherwise fall within
its ambit if the following requirements are met:
               (1) [the employee] is employed by a motor carrier or motor
               private carrier (as such terms are defined by section 13102 of
               title 49, United States Code, as amended by section 305);
               (2) [the employee’s] work, in whole or in part, is defined—
               (A) as that of a driver, driver’s helper, loader, or mechanic; and
               (B) as affecting the safety of operation of motor vehicles weighing
               10,000 pounds or less in transportation on public highways in
               interstate or foreign commerce, except vehicles—
               (i) designed or used to transport more than 8 passengers
               (including the driver) for compensation;
               (ii) designed or used to transport more than 15 passengers
               (including the driver) and not used to transport passengers for
               compensation; or
               (iii) used in transporting material found by the Secretary of
               Transportation to be hazardous under section 5103 of title 49,
                                                                                   (continued...)

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                                         No. 12-20194
       MCA jurisdiction (that is, the jurisdiction of the DOT under the MCA to
establish the qualifications and maximum hours of service of employees) has
three elements. First, under 49 U.S.C. § 31502(b), the DOT may regulate the
qualifications and maximum hours of service of only those workers who are
employed by either a “motor carrier” or a “motor private carrier.”7 A “motor
carrier” is “a person providing motor vehicle transportation for compensation.”
Id. § 13102(14). A “motor private carrier” is generally a person who transports
his own property “for sale, lease, rent, or bailment or to further a commercial
enterprise.” Id. § 13102(15).8
       Second, the DOT’s jurisdiction “is limited to those employees whose
activities affect the safety of [the transportation] operation,” and the DOT “has


       6
         (...continued)
                United States Code, and transported in a quantity requiring
                placarding under regulations prescribed by the Secretary under
                section 5103 of title 49, United States Code; and
                (3) [the employee] performs duties on motor vehicles weighing
                10,000 pounds or less.
Id. § 306(a), (c). For a discussion of the SAFETEA-LU Technical Corrections Act, see, e.g.,
McCall v. Disabled Am. Veterans, 723 F.3d 962 (8th Cir. 2013). This interlocutory appeal does
not address the district court’s resolution of the plaintiffs’ post-June 6, 2008, claims to which
the SAFETEA-LU Technical Corrections Act applies, but rather only the district court’s
resolution of the pre-June 6, 2008, claims, and therefore, the act is not implicated here.
       7
           Section 31502(b) provides:
                 The Secretary of Transportation may prescribe requirements
                 for—
                 (1) qualifications and maximum hours of service of employees of,
                 and safety of operation and equipment of, a motor carrier; and
                 (2) qualifications and maximum hours of service of employees of,
                 and standards of equipment of, a motor private carrier, when
                 needed to promote safety of operation.
       8
         “The term ‘motor private carrier’ means a person, other than a motor carrier,
transporting property by motor vehicle when (A) the transportation is as provided in section
13501 of this title [see infra, note 10]; (B) the person is the owner, lessee, or bailee of the
property being transported; and (C) the property is being transported for sale, lease, rent, or
bailment or to further a commercial enterprise.” Id. § 13102(15).

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                                        No. 12-20194
no jurisdiction to regulate the qualifications or hours of service of any others.”
United States v. Am. Trucking Ass’ns, 310 U.S. 534, 553 (1940). To determine
whether an employee’s job activities affect the safety of the transportation
operation, the courts have clarified the relevant inquiry to be whether “the
employee’s job duties are such that he is (or is likely to be) called upon in the
ordinary course of his work to perform safety-affecting activities.” E.g., Songer,
618 F.3d at 474 (quoting 29 C.F.R. § 782.2(b)(3)) (alteration omitted). Put
another way, the question is whether the employee “can be reasonably expected”
to engage in activities that affect the safety of transportation. Id. If the
likelihood of engaging in safety-affecting activities is too remote and improbable,
then the employee will not fall under MCA jurisdiction. Coleman v. Jiffy June
Farms, Inc., 324 F. Supp. 664, 670 (S.D. Ala. 1970), aff’d, 458 F.2d 1139 (5th Cir.
1971); Kimball v. Goodyear Tire & Rubber Co., 504 F. Supp. 544, 548 (E.D. Tex.
1980); Yaklin v. W-H Energy Servs., Inc., No. 07-CV-422, 2008 WL 4692419, at
*6 (S.D. Tex. Oct. 22, 2008).9
       Third, the DOT’s jurisdiction reaches only (1) international transportation,
i.e., transportation that crosses the national border, (2) interstate transportation,
i.e., transportation that crosses state borders, or (3) intrastate transportation of
goods in the flow of interstate commerce. 49 U.S.C. §§ 31502(a), 13501; Songer,
618 F.3d at 472.10 Generally speaking, there must be an international or


       9
         The DOT has created a “four-month rule” under which “[e]vidence of driving in
interstate commerce or being subject to being used in interstate commerce” is “proof” that the
driver falls under MCA jurisdiction “for a 4-month period from the date of the proof.” 46 Fed.
Reg. 37902.
       10
          Section 31502(a) provides, “This section applies to transportation—(1) described in
sections 13501 and 13502 of this title; and (2) to the extent the transportation is in the United
States and is between places in a foreign country, or between a place in a foreign country and
a place in another foreign country.”
                                                                                    (continued...)

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                                     No. 12-20194
interstate nexus of some sort, as the DOT’s jurisdiction does not reach purely
intrastate transportation. E.g., Kline v. Wirtz, 373 F.2d 281, 282 (5th Cir. 1967);
Walling v. Comet Carriers, 151 F.2d 107, 110 (2d Cir. 1945).
      In sum then, under the MCA, the DOT may regulate the qualifications and
maximum hours of service only for (1) employees of a “motor carrier” or “motor
private carrier” (2) whose activities affect the safety of transportation, (3) and
that transportation has an international or interstate nexus.
      Here, there is no question of the first two elements. First, there is no
question that Coil Tubing Services, an oil-well-service company, requires its
employees in the course of their jobs to transport the company’s property,
including chemicals, tools, and coil tubing equipment, between the company’s

      10
         (...continued)
      Section 13501 provides:
               The Secretary and the Board have jurisdiction, as specified in
               this part, over transportation by motor carrier and the
               procurement of that transportation, to the extent that
               passengers, property, or both, are transported by motor carrier—
               (1) between a place in—
               (A) a State and a place in another State;
               (B) a State and another place in the same State through another
               State;
               (C) the United States and a place in a territory or
               possession of the United States to the extent the transportation
               is in the United States;
               (D) the United States and another place in the United States
               through a foreign country to the extent the transportation is in
               the United States; or
               (E) the United States and a place in a foreign country to the
               extent the transportation is in the United States; and
               (2) in a reservation under the exclusive jurisdiction of the United
               States or on a public highway.
      Under our case law, § 13501 also impliedly includes within its ambit “the intrastate
transport of goods in the flow of interstate commerce.” Songer, 618 F.3d at 472; Shew v.
Southland Corp., 370 F.2d 376, 380-81 (5th Cir. 1966).
      Section 13502 relates to Alaska and is irrelevant here.

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                                       No. 12-20194
district offices and the jobsites, the customers’ wells, and therefore qualifies as
a “motor private carrier” under the statute. See Sinclair v. Beacon Gasoline Co.,
447 F. Supp. 5, 10 (W.D. La. 1976), aff’d, 571 F.2d 978 (5th Cir. 1978) (holding
that “a natural gas well servicing company whose drivers carry tools and
equipment in company-furnished pickup trucks . . . is private carrier of property
by motor vehicle”). Second, although the principal job of the employees here is
to service the customers’ oil wells and that, by itself, does not have an affect on
the safety of transportation, the employees also transport Coil Tubing Services’s
property, i.e., the equipment, etc., to the jobsite via motor vehicle, and “[i]t is
obvious that one who drives a vehicle” “directly affects the safety of such
operations as long as he is driving.” Crooker v. Sexton Motors, Inc., 469 F.2d
206, 209 (1st Cir. 1972); see also Songer, 618 F.3d at 473. Thus, there is no
question that, as the employees here are required to drive motor vehicles, they
affect the safety of transportation when doing so. The third requirement for
MCA jurisdiction is the interstate nexus, i.e., that the employee’s job activities
are such that the employee is reasonably likely to affect the safety of interstate,
not merely intrastate, transportation.11             Whether each employee here is
reasonably likely to drive interstate and thus affect the safety of interstate
transportation is the disputed issue in this case.




       11
          There is no contention in this case that Coil Tubing Services employees work
internationally or transport goods in the flow of interstate commerce. Thus, the only question
here is whether an employee’s actual job activities affect interstate transportation safety.

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                                      No. 12-20194
               II. The District Court’s and Majority’s Flawed
                     “Group”- or “Class”-Based Analysis
                                            A.
       From November 2005 through November 2008, Coil Tubing Services
employed the 191 plaintiffs-appellees in this case as “field service employees”
tasked with servicing clients’ oil wells. During the relevant period, the company
organized its business into six “districts”: the “Alice,” “Angleton,” and
“Bridgeport” districts in Texas, the “Broussard” and “Bossier City” districts in
Louisiana, and the “Rock Springs” district in Wyoming. However, none of the
plaintiffs in this case worked out of the Bossier City or Rock Springs districts;
they all worked out of the Alice, Angleton, Bridgeport, and Broussard districts.
See 846 F. Supp. 2d at 686 (listing employees, titles, district assignments, and
start and end dates of bellwether plaintiffs).
       Initially, in its first summary-judgment ruling that was later vacated and
supplanted by the decision now under review,12 the district court held that there
was a reasonable likelihood of employees in the Angleton and Broussard districts
driving interstate, and, thus, they fell under the MCA and were not entitled to
FLSA overtime pay. But, the district court further held that the likelihood of
employees in the Alice and Bridgeport districts driving interstate was “so low”
that there was not an “objectively reasonable expectation” of those employees
driving interstate, and, thus, they did not fall under the MCA exemption. Coil
Tubing Services argued that employees in all of the districts should fall under
the MCA because, in all of the company’s districts nationwide, approximately
seven percent of the “land project” (as opposed to offshore) jobs “required one or

       12
         The district court’s first summary-judgment ruling has not been published but it is
included in the record on appeal. See R. 7233-97.

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                                        No. 12-20194
more service crews to mobilize coil tubing equipment across state lines.” But the
district court, in its first decision, agreed with the plaintiffs that the company’s
seven percent “aggregate” figure was “skewed by the extremely large number of
interstate projects handled by the Rock Springs District” in Wyoming, in which
none of the plaintiffs actually worked. “More than 56% of the Rock Springs
projects were out-of-state,” the district court explained, “while the other districts
had far fewer interstate projects.” By contrast, the district court proceeded to
explain, in Alice and Bridgeport, less than one percent of the jobs handled in
those districts during the relevant time were interstate; in Angleton, less than
two percent of the jobs were interstate; and, in Broussard, around five percent
of the jobs were interstate.
       After the district court’s first ruling, Coil Tubing Services moved the court
to reconsider, and the court did. In its second decision, which is now under
review, the district court cited regulations, codified at 29 C.F.R. § 782, of the
DOL, the agency charged with enforcing the FLSA. 846 F. Supp. 2d at 690.13
Those regulations of the DOL set out “the construction of the law [regarding the
MCA exemption] which the [DOL] believes to be correct.” 29 C.F.R. § 782.0. The
regulations state, “[t]he [MCA exemption] depends both on the class to which his



       13
          As an initial matter, the district court should have recognized that the DOL does not
have authority to define the scope of MCA jurisdiction, as the DOL’s regulations acknowledge.
29 C.F.R. § 782.1(a) (“The Fair Labor Standards Act confers no authority on the Secretary of
Labor or the Administrator to extend or restrict the scope of this exemption.”). Accordingly,
the DOL’s views on the scope of MCA jurisdiction are not entitled to deference from the courts.
Levinson v. Specter Motor Serv., 330 U.S. 649, 676-77 (1947); Packard v. Pittsburgh Transp.
Co., 418 F.3d 246, 251 n.5 (3d Cir. 2005); Troutt v. Stavola Bros., Inc., 107 F.3d 1104, 1108 n.1
(4th Cir. 1997); Benson v. Universal Ambulance Serv., Inc., 675 F.2d 783, 785 (6th Cir. 1982);
Johnson v. Hix Wrecker Serv., Inc., 651 F.3d 658, 661 n.1 (7th Cir. 2011). But see Baez v. Wells
Fargo Armored Serv. Corp., 938 F.2d 180, 182 n.4 (11th Cir. 1991).

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                                 No. 12-20194
employer belongs and on the class of work involved in the employee’s job.” Id.
§ 782.2(a). And they proceed to explain:
            The power of the Secretary of Transportation to
            establish maximum hours and qualifications of service
            of employees, on which exemption depends, extends to
            those classes of employees and those only who: (1) Are
            employed by carriers whose transportation of
            passengers or property by motor vehicle is subject to his
            jurisdiction under section 204 of the Motor Carrier Act,
            and (2) engage 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.
Id. (citations omitted).
      Based on § 782’s language regarding “classes of employees” and the “class
of work involved in the employee’s job,” the district court concluded that it
should not address whether “the activities of each individual employee in issue
directly affected the safety or operation of commercial motor vehicles in
interstate transportation.” 846 F. Supp. 2d at 694 (emphasis added). Rather,
the district court concluded that it must apply a “group analysis” on a “company-
wide basis.” Id. at 694-95.
      To conduct such a “group analysis” on a “company-wide basis,” the district
court defined a “group” of Coil Tubing Service employees that it named “field
service employees.” Id. at 684. The court defined that “group” to encompass all
of Coil Tubing Services’s employees that had “job duties and assignments” that,
in the court’s opinion, were “sufficiently similar to permit some grouping.” Id.
at 694-95. Then, the district court turned to the fact that seven percent of all
jobs companywide were interstate (that is, the aggregate figure that the district


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                                      No. 12-20194
court had previously rejected as “skewed”) and reasoned that—even though the
seven percent figure did not accurately represent the experience of the
company’s Texas and Louisiana employees—it nevertheless somehow applied to
the Texas and Louisiana employees under the district court’s “company-wide”
“group analysis.” Id. at 703-04 & n.48. Accordingly, the district court held that
seven percent of jobs companywide being interstate was sufficient to subject all
employees, regardless of their districts, in the “field service employees” “group”
to MCA jurisdiction and granted summary judgment to Coil Tubing Services
regarding the FLSA overtime pay claims of every employee in the judicially
defined “group.” Id. at 703, 715.14 In essence, the district court held that,
because the company has employees in Wyoming who very frequently carry out
duties affecting the safety of interstate transportation but are not parties to this
case, that somehow creates a legal fiction that the plaintiffs here, the company’s
employees in Louisiana and Texas, are deemed to also carry out those same
duties just as often. The district court decided such even though the evidence
showed it to be false.
       Now, the majority affirms the district court’s analysis and, in a published
opinion, sets it as the law of this circuit. According to the majority, to determine
whether employees are subject to MCA jurisdiction, courts should use an
“extensive individualized methodology” to include all of a company’s employees
with “sufficiently similar duties” (in the court’s opinion) in a judicially defined
“class” of employees and then decide whether such “class,” rather than the
individual employees within it, has a reasonable expectation of carrying out

       14
         The district court’s grant of summary judgment for Coil Tubing Services was partial.
The district court ruled in favor of some of the plaintiffs in certain regards that were not
appealed and, thus, are not at issue now.

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                                        No. 12-20194
activities that affect the safety of interstate transportation. Ante, at 9-10.
Without getting into the details about who exactly is in the “class” here and what
connection they have to the case, if any, the majority affirms the district court’s
analysis. See id.15
       In short, in deciding MCA jurisdiction (specifically, whether an employee’s
job duties are reasonably likely to affect the safety of interstate transportation),
the district court and the majority of this court agree that, if employees have
“sufficiently similar” job duties, the court may lump them all together into a
single “group” or “class” and then decide the jurisdictional question with respect
to the “group” or “class” rather than the individual employees in it. This is
wrong. Contrary to the district court and the majority, an employee is exempt
from FLSA overtime protection only if the MCA applies to that employee
individually—i.e., that employee’s actual job circumstances are such that the
employee is reasonably likely to affect the safety of interstate transportation.
The relevant Supreme Court and circuit precedent requires individual analysis
of the employee’s actual job and prohibits the district court’s and majority’s
“group”- or “class”-based analysis.




       15
         The majority says that the “parties do not contest that an individualized analysis is
appropriate to determine whether Appellants have similar-enough duties to belong to the class
of employees that engages in safety-affecting activities.” Ante, at 7. This statement about
what the parties “do not contest” misrepresents the employees’ position. The employees
indeed challenge the conclusion that they should be categorized and analyzed as “a class of
employees” with “similar-enough duties.” They contend that the requisite MCA analysis
encompasses no judicial sorting of employees into categories at all. See Appellants’ Br. 17
(“[T]he MCA is analyzed on an individual basis . . . . No meaningful authority, however,
supports the whole company analysis proposed by CTS. Thus, the district court erred by
adopting a modified version of it.”), 24 (“[A]n individual analysis is required to determine the
character and timing of the employee’s duties, and therefore the application of the exception.”).

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                                  No. 12-20194
      It appears that the district court and the majority have adopted their
improper analysis based on two misunderstandings about the jurisprudence.
First, the district court and majority appear to believe that the DOL’s
regulations codified at 29 C.F.R. § 782.2, which refer to “classes of employees,”
authorize the “group”- or “class”-based analysis that they applied here. See 846
F. Supp. 2d at 690 (citing § 782.2(a)); ante, at 5-6 (same). Second, the district
court and majority also contend that their “group”- or “class”-based analysis is
required by Songer v. Dillon Resources, Inc., a 2010 decision of this court. See
846 F. Supp. 2d at 694 (citing Songer); ante, at 8-9 (same). They are mistaken
on both points. The history of the FLSA and MCA, to which I now turn, clearly
indicates that the MCA exemption has always turned on the job circumstances
of each individual employee.
                                       B.
      1.    The Statutory Enactments
      The MCA was enacted in 1935 “to regulate transportation by motor
carriers.” § 202(a), 49 Stat. 543. When first enacted, the statute was enforced
not by the DOT, which was not created until decades later, but by a predecessor
agency, the Interstate Commerce Commission (“ICC”). §§ 203(a)(3), 204.
      During the initial years following the ICC’s creation in 1935, the agency
promulgated a series of regulations imposing certain rules regarding the
qualifications and maximum hours of service for certain workers, but the agency
did not issue any formal determinations as to what it perceived to be the scope
or the reach of its regulatory authority. For example, in 1936, the year after the
MCA was enacted, the ICC promulgated its first regulations establishing




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                                  No. 12-20194
qualifications for certain drivers while expressing no view on the ICC’s authority
to regulate workers other than drivers. See Ex parte No. MC–4, 1 M.CC. 1.
      In 1938, the FLSA was enacted to “eliminate” “labor conditions
detrimental to the maintenance of the minimum standard of living necessary for
health, efficiency, and general well-being of workers.” § 2, 52 Stat. 1060. In its
original form, the FLSA contained, as it still does today, the MCA exemption.
§ 13(b)(1) (“The provisions of section 7 shall not apply with respect to any
employee with respect to whom the Interstate Commerce Commission has power
to establish qualifications and maximum hours of service pursuant to the
provisions of section 204 of the Motor Carrier Act, 1935.”).
      2.    The Interstate Commerce Commission’s Jurisdictional
            Pronouncements
      The MCA exemption in the FLSA “brought sharply into focus the coverage
of employees by the Motor Carrier Act.” Am. Trucking Ass’ns, 310 U.S. at 540.
In 1938, the ICC, noting that the FLSA had made the question of its jurisdiction
important, instituted proceedings “for the purpose of determining the extent of
our jurisdiction under section 204(a) of the Motor Carrier Act, 1935, to establish
reasonable requirements with respect to qualifications and maximum hours of
service of employees of common and contract carriers and of private carriers of
property by motor vehicle.” Ex parte No. MC–28, 13 M.C.C. 481, 481 (1939).
The ICC described the dispute before it as follows:
            Representatives of common and contract carriers, with
            one exception, assert that our jurisdiction under section
            204(a)(1) and (2) extends to all employees of common
            and contract carriers and is not limited to those
            employees whose activities affect the safety of
            operation. Representatives of organized labor, on the
            other hand, contend that our jurisdiction is limited to

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                                   No. 12-20194
              employees whose activities affect the safety of
              operation.
Id. at 482. In 1939, the ICC sided with organized labor and announced that the
agency’s jurisdiction extends only to those employees “whose activities affect the
safety of operation of motor vehicles engaged in transporting passengers and
property in interstate and foreign commerce.” Id. at 488. That, however, left
open the question, what sorts of employees have activities that affect the safety
of operation? In that regard, the ICC wrote:
              It is clear to us that we have power to prescribe
              qualifications and maximum hours for drivers and their
              helpers employed by private carriers of property who
              are engaged in driving or operating motor vehicles
              transporting property in interstate and foreign
              commerce. It may be that the activities of other
              employees are such that “to promote safety of
              operation” we have power to prescribe qualifications
              and maximum hours of service for them. As to what
              classes or types of employees, if any, may be included in
              this category, we do not decide here.
Id. at 483.
      This, it appears, was the first time the phrase “classes of employees” (to
be precise, “classes or types of employees”) appeared in the law books in
connection with the MCA. Here, the ICC used the phrase to refer to categories
of job duties and to distinguish between those duties that affect the safety of
operation (and thus fall within the ICC’s jurisdictional ambit) and those that do
not (and thus do not). The ICC thought it clear that “drivers” and “their helpers”




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                                        No. 12-20194
are “classes or types of employees” that affect the safety of operation but did not
decide “what [others], if any, may be included in this category.” Id.16
       In 1941, the ICC began looking at other classes of employees, specifically,
“mechanics and other garage workers,” “loaders,” and “dispatchers.” Ex parte
No. MC–2, 28 M.C.C. 125, 132. As for “mechanics,” the ICC concluded that they
“devote a large portion of their time to activities which directly affect the safety
of operation of motor vehicles operated in interstate or foreign commence” and,
thus, fall within the ICC’s jurisdiction. Id. at 133. But, as for “other garage
employees,” such as “men who do nothing but paint vehicles,” their work, the
ICC concluded, does not affect the safety of operation, and thus, the ICC may not
regulate them. Id. As for “loaders,” “whose sole duties are to load and unload
motor vehicles and transfer freight between motor vehicles and between the
vehicles and the warehouse,” they too fell within the ICC’s jurisdiction, the
agency concluded, because “[t]he evidence makes it entirely clear that a motor
vehicle must be properly loaded to be safely operated on the highways of the
country.” Id. at 133-34. But “dispatchers,” the ICC concluded, do not affect the
safety of operations. Id. at 135. And, the ICC reaffirmed its prior determination
that “driver’s helpers,” like the drivers themselves, affect safety of operations.
Id. at 136. In determining that “mechanics,” “loaders,” and “driver’s helpers”
carry out job duties that affect the safety of transportation, the ICC carefully



       16
          Shortly after the ICC’s decision in Ex parte No. MC–28 issued, a number of
companies challenged the agency’s conclusion that its jurisdiction reaches only those
employees whose activities affect the safety of operation, but the ICC reaffirmed its initial
decision. No. MC–C–189, 16 M.C.C. 497 (1939). The issue was brought to the Supreme Court,
and, in 1940, the Court agreed with the ICC that the agency’s jurisdiction “is limited to those
employees whose activities affect the safety of operation” and it “has no jurisdiction to regulate
the qualifications or hours of service of any others.” Am. Trucking Ass’ns, 310 U.S. at 553.

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                                        No. 12-20194
defined what it meant by each of those terms, delineating who should, and who
should not, be considered each. Finally, the ICC concluded that no other
employees of motor carriers and motor private carriers besides “drivers and
those classes of employees” already discussed “perform duties which directly
affect safety of operation.” Id. at 139. In sum, in 1941, the ICC determined that
“drivers,” their “helpers,” “mechanics,” and “loaders,” as thoroughly defined by
the Commission, all carry out duties affecting safety of operation and thus fall
under MCA jurisdiction, and all other employees of “motor carriers” and “motor
private carriers” do not.17
       3.      The Supreme Court’s 1947 Trilogy
       In 1947, the Supreme Court established several important legal principles
relating to the ICC’s jurisdiction under the MCA. First, in Levinson v. Specter
Motor Service, 330 U.S. 649, the Court held that the ICC’s “findings of fact”
regarding whether particular job activities affect safety of operations were
“squarely within the jurisdiction of the Commission” and were entitled to great
deference. See id. at 669, 672-73 (describing the findings of fact as having a
“claim to finality” and stating that, “[w]e see no reason to question [the ICC’s]
considered conclusion that the activities of full-duty drivers, mechanics, loaders,
and helpers, as defined by it, affect safety of operation of the carriers by whom
they are employed”).18


       17
           The ICC's opinion termed its determinations as to whether the work activities at
issue affect safety “findings of fact” and the corresponding jurisdictional decisions “conclusions
of law.” Id. at 138-39.
       18
          The principal issue in Levinson was whether the ICC has jurisdiction over a “partial-
duty loader”—that is, a worker who spent a “substantial part” of his working hours doing the
activities that the ICC, in Ex parte No. MC–2, described as the duties of “loaders” (i.e., loading
                                                                                  (continued...)

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                                       No. 12-20194
       Second was Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, a
companion case to Levinson. In Pyramid Motor Freight Corp., the defendant-
employer invoked the MCA defense, contending that the plaintiffs-employees fit
into the ICC’s definitions of “loaders” and, thus, fell under the MCA exemption.
The district court dismissed the case, holding that determination of whether the
employees carry out job duties that affect safety of operation was not the role of
the court, but was rather a task for the ICC. 59 F. Supp. 341, 343-44 (1945).
The Supreme Court rejected the district court’s conclusion that the
determination should be referred to the ICC because, in Ex Parte No. MC–2, the
ICC had already defined the “loaders” job classification subject to MCA
jurisdiction. 330 U.S. at 706-07.
              Under these circumstances, there is no occasion for us
              to refer to the Commission any question presented in
              this case . . . . The District Court must determine
              simply whether or not the respective employees who
              seek to recover overtime compensation under [the
              FLSA] are excluded from [doing so] because they are
              within the above classification [“loaders”].
Id. at 707. Accordingly, the Supreme Court remanded to the district court and,
importantly, ordered the district court to “determine whether or not the
activities of each [employee], either as a whole or in substantial part, come
within the Commission’s definition of the work of a ‘Loader.’” Id. (emphasis
added). The Court proceeded to explain that, “[i]f none of the . . . activities of the


       18
          (...continued)
and unloading motor vehicles and transferring freight) and the rest of his time doing other
activities that did not have an effect on the safety of motor vehicle transportation operations.
Id. at 651-52. The Court answered that question in the affirmative, holding that the ICC has
jurisdiction over workers who spend a “substantial” amount of their time doing the work of
loaders. Id. at 685.

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                                  No. 12-20194
respective respondents, during the periods at issue, come within the kind of
activities which, according to the Commission, affect the safety of operation of
motor vehicles in interstate or foreign commerce within the meaning of the
Motor Carrier Act, then those [employees] of which that is true are entitled to
[overtime pay under] the Fair Labor Standards Act.” Id. at 708 (emphasis
added). “On the other hand, if the whole or substantial part of [the] activities of
the respective respondents, during the periods at issue, do come within the kind
of activities which, according to the Commission, affect such safety of operation,
then those respondents who are engaged in such activities are excluded from
[overtime pay].” Id. (emphasis added). In short, the Court held in Pyramid
Motor Freight Corp. that, in an FLSA action in which the MCA exemption is
asserted as a defense, the role of the court is to determine separately whether
the activities of “each” employee affect the safety of interstate transportation,
and the court may deny overtime pay only to “those [employees] who are engaged
in such activities.” Id.
      The third and final decision in the Supreme Court’s 1947 trilogy was
Morris v. McComb, 332 U.S. 422. The question presented was whether an
employee who spends most of his time at work carrying out duties that do not
affect safety of transportation and only a fraction of his time carrying out
activities that do falls under the MCA. Id. at 426. There, the evidence in the
record showed that the employer, a cartage business, employed drivers to
transport property. Id. at 427. About four percent of the company’s jobs
involved the transportation of goods moving in interstate commerce. Id. at 432-
33. The company assigned those jobs to the drivers “indiscriminately.” Id. at
433. The Court held that, in such circumstances, where about four percent of a


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                                        No. 12-20194
company’s transportation jobs with an interstate nexus are shared
indiscriminately among the company’s drivers, thus making the interstate
commerce trips a “natural, integral, and apparently inseparable part” of each
driver’s job, that amount of interstate driving was sufficient to invoke MCA
jurisdiction for those drivers. Id. at 433-34.19
       Importantly, Morris also reaffirmed Pyramid Motor Freight Corp.’s
requirement of individual analysis of each employee’s job activities. In Morris,
the DOL, which had brought the suit, did not seek to recover unpaid overtime
that was due to any particular employee, but rather sought only an injunction
against the company to pay overtime in the future to any employees who would
not, because of his job duties, fall under the ICC’s definition of a “class of work”
invoking MCA jurisdiction (i.e., drivers, their helpers, mechanics, and loaders)
without deciding whether any particular employee fell under such a class. Id.
at 424-25, 430. The Court stated that, “if this were an action to recover overtime
compensation for individual employees,” “it would be necessary to determine”
“the extent to which” the employees carried out job duties affecting the safety of
transportation. Id. at 430. See also Troutt v. Stavola Bros., Inc., 107 F.3d 1104,
1109 (4th Cir. 1997) (observing that Morris “followed the same approach
articulated in Pyramid”).
       Thus, the legal regime after 1947, created by the ICC’s jurisdictional
pronouncements and the Supreme Court’s decisions, provided that (1) the ICC’s
jurisdiction under the MCA reached only each employee whose activities affect
the safety of interstate transportation operations (Am. Trucking Ass’ns, 310 U.S.

       19
          The Court also held that the mechanics who work on the vehicles that spend
approximately four percent of their time in interstate commerce trips fall under the MCA. Id.
at 432 (“What is thus true for the driver is true also for the mechanic who repairs his truck.”).

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                                      No. 12-20194
at 553), (2) it fell to the ICC to determine which sorts of job activities affect
safety of such operations, and the ICC had done that (Levinson, 330 U.S. at 669,
672-73), and (3) in an FLSA action for overtime pay, it was the duty of the courts
to determine through the “judicial process” whether each plaintiff’s job involved,
wholly or in sufficient part, a “class of work” that the ICC had determined
affected interstate transportation safety (Pyramid Motor Freight Corp., 330 U.S.
at 698, 707; see also Morris, 332 U.S. at 430). And that, according to the
Supreme Court, is where things stand today. Since 1947, the Supreme Court
has never again addressed the MCA exemption.
       4.     This Circuit’s Post-1947 Jurisprudence
       In the decades following the Supreme Court’s 1947 trilogy, this court
understood Pyramid Motor Freight Corp.’s teaching, that MCA jurisdiction vel
non turns on the individual employee’s job duties. In Mitchell v. C & P Shoe
Corp., 286 F.2d 109 (5th Cir. 1960), we said:
              Because of the view it took of the matter, the court
              below made no findings on the question of whether the
              individual plaintiffs devoted a ‘substantial’ part of their
              work to the interstate operations of the C & P Shoe
              Corporation. Since it is activities of the particular
              employee, rather than the employer, which determine
              coverage, we remand the case for such findings.
Id. at 114 (emphasis added, footnote omitted).20
       Two years later, in Opelika Royal Crown Bottling Co. v. Goldberg, 299 F.2d
37 (5th Cir. 1962), this court held that some of the employer’s employees fell




       20
        After the district court made its findings on remand in Mitchell, the case was again
appealed to this court sub nom., Wirtz v. C & P Shoe Corp., 336 F.2d 21 (5th Cir. 1964).

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                                  No. 12-20194
under the MCA because of their job duties, but other of the employer’s employees
did not, because of their individual job duties. See id. at 42-43.
      Until today, the district courts in this circuit have, as we did in Opelika
Royal Crown Bottling Co., determined MCA jurisdiction on an employee-by-
employee basis, turning separately on each individual employee’s job activities.
See, e.g., McCann v. W.C. Pitts Constr. Co., No. 3:10-CV-52, 2011 WL 3924855,
at *8 (S.D. Miss. Sept. 7, 2011); Villegas v. Dependable Constr. Servs., Inc., No.
4:07-CV-2165, 2008 WL 5137321, at *24-26 (S.D. Tex. Dec. 8, 2008).
      In 2010, this court decided Songer, 618 F.3d 467, which, the majority says,
“effectively forecloses an employee-by-employee analysis.” Ante, at 8; see also
846 F. Supp. 2d at 694. This is a misunderstanding of the case. If the majority
were correct, it would mean that the case worked a revolution in the Supreme
Court’s jurisprudence. Songer could not “foreclose[] an employee-by-employee”
analysis because the Supreme Court, in Pyramid Motor Freight Corp., held that
employee-by-employee analysis is required, as did prior panels of this court in
Mitchell and Opelika Royal Crown Bottling Co., and none of those decisions has
been overruled; nor has any statute been amended in a manner that is
contended to have altered the requisite individual employee analysis.
      In Songer, the plaintiffs-employees were full-time truck drivers. 618 F.3d
at 468. Their employer had a number of routes, many of which were interstate,
and no driver was assigned a dedicated route. Id. at 470, 475-76. Routes were
assigned by a single “dispatch service” “indiscriminately—i.e., any driver could
be called upon at any time to make an interstate or intrastate trip.” Id. at 470.
“The drivers’ employment could be terminated if they refused an assignment.”
Id. “In other words, any driver could have been assigned to an interstate trip.”


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                                  No. 12-20194
Id. at 475. Accordingly, the evidence showed that “all the drivers,” all of whom
accepted routes from the same dispatch service, had a reasonable likelihood of
driving interstate. Id. at 476.
      Nowhere in Songer’s analysis did this court make a determination of
reasonable likelihood vel non of driving interstate by dint of an employee’s
membership in any sort of judicially defined “group” or “class,” as the district
court and the majority did here. In Songer, this court simply made the common
sense observation that, because of company policies that were factually common
to all employees (i.e., the indiscriminate assignment of interstate trips), each and
every employee, all of whom had the same likelihood of driving interstate, was
reasonably likely to drive interstate. See id. at 470 (“any driver could be called
upon at any time to [drive] interstate”) (emphasis added). Cf. Brennan v.
Schwerman Trucking Co. of Va., Inc., 540 F.2d 1200, 1205 (4th Cir. 1976)
(holding that, because interstate and intrastate trips were assigned
indiscriminately among the company’s drivers, “each of [the] drivers may affect
the safety of operation of motor vehicles engaged in interstate commerce”)
(emphasis added). In other words, Songer, no differently than any other case
before it, did nothing more than examine the relevant evidence to make an
individual determination as to MCA jurisdiction with respect to each employee,
based on the circumstances of that employee’s job.
      In sum, following the Supreme Court’s 1947 trilogy, this court has, in
accordance with Pyramid Motor Freight Corp.’s mandate, determined MCA
jurisdiction on an individual basis, turning on each employee’s actual job
circumstances.




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                                  No. 12-20194
      5.    Other Circuits’ Post-1947 Jurisprudence
      After 1947, at least three of our sister circuits have, like us, acknowledged
Pyramid Motor Freight Corp.’s requirement for individual analysis of each
employee’s actual job duties. The Third Circuit has stated that, to determine
MCA jurisdiction, the court must determine “whether each plaintiff, during the
relevant time periods, performed duties which substantially affected the safety
of operation.” Harshman v. Well Serv., Inc., 248 F. Supp. 953, 958 (W.D. Pa.
1964) (emphasis added), aff’d, 355 F.2d 206 (3d Cir. 1965) (affirming “for the
reasons so well stated in the opinion of [the district court]”). The Fourth Circuit
likewise agrees that the court must focus on the employee’s actual activities “on
an individual basis.” Troutt, 107 F.3d at 1107-10. And, the Seventh Circuit has
explained that it is erroneous to determine MCA jurisdiction on the basis of “the
employer’s operations” because MCA jurisdiction “depends upon the activities
of the individual employees.” Goldberg v. Faber Indus., Inc., 291 F.2d 232, 234-
35 (7th Cir. 1961) (emphasis added).
      6.    The Department of Labor Regulations and Other
            Post-1947 Developments
      In 1948, the DOL, which was then (and is still now) charged with enforcing
the FLSA, see § 4, 52 Stat. 1060, 1061; 29 U.S.C. § 204, promulgated the
regulations codified at 29 C.F.R. § 782, the regulations on which the district
court and the majority here rely. 13 Fed. Reg. 2346 (codified at 29 C.F.R. § 782
(1949)). The DOL’s regulations have been amended only slightly over the years,
so they are today almost identical to their original enactment in 1948. Compare
29 C.F.R. § 782 (current), with 13 Fed. Reg. 2346 (1948).
      The DOL’s regulations state their purpose on their face: they reflect “the
construction of the law [regarding the MCA exemption] which the [DOL] believes

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                                 No. 12-20194
to be correct in the light of the decisions of the courts and the Interstate
Commerce Commission.” Id. And indeed, the DOL’s regulations do nothing
more than describe the jurisprudential principles that followed from the above-
discussed ICC jurisdictional pronouncements and case law, primarily the
Supreme Court’s 1947 trilogy.
      29 C.F.R. § 782.2 says: “The [MCA exemption] depends both on the class
to which his employer belongs and on the class of work involved in the
employee’s job.” It continues:
            The power of the Secretary of Transportation
            [previously “Interstate Commerce Commission”] to
            establish maximum hours and qualifications of service
            of employees, on which exemption depends, extends to
            those classes of employees and those only who (1) are
            employed by carriers whose transportation of
            passengers or property by motor vehicle is subject to his
            [previously “the Commission’s”] jurisdiction under
            section 204 of the Motor Carrier Act and (2) engage 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.
§ 782.2. The regulations proceed to discuss the “classes of employees” that the
ICC had determined fall under MCA jurisdiction: “drivers” (§ 782.3 (citing Ex
parte No. MC–2; Ex parte No. MC–3; Ex Parte No. MC–4)), “drivers’ helpers” (§
782.4 (citing Ex Parte No. MC–2)), “loaders” (§ 782.5 (citing Ex parte No.
MC–2)), and “mechanics” (§ 782.6 (citing Ex parte No. MC–2)).
      Over a decade later, in 1966, the DOT was created and authority to enforce
the MCA was transferred to it from the ICC. Department of Transportation Act,
§ 6(e), 80 Stat. 931, 939.

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                                       No. 12-20194
       In 1971, the DOL revised its § 782 regulations to recognize the transfer of
MCA authority from the ICC to the DOT. 36 Fed. Reg. 21778. Aside from
acknowledging the transfer of authority, the regulations were substantially
untouched. Since that 1971 revision, the DOL has never again revised the § 782
regulations.
       As for the DOT, since 1966, when it was created and given authority to
enforce the MCA, it has never issued regulations on the maximum scope of its
jurisdiction over qualifications and maximum hours of service as had the ICC
decades before.21 Thus, although the ICC lost its MCA authority in 1966, its
1930s and 1940s regulations still represent the most recent expression of the
official agency view of the scope of MCA jurisdiction.
       In 1995, the ICC was eliminated entirely. ICC Termination Act, § 101, 109
Stat. 803 (“The Interstate Commerce Commission is abolished.”).
       That brings us to today.
                                              C.
       This history makes several things clear. First, the phrase “classes of
employees” in the DOL’s regulations, on which the district court and the
majority here cite in support of their novel analysis, references the four
categories of job activities that the ICC decades ago concluded affect the safety
of interstate motor vehicle transportation: “drivers,” “drivers’ helpers,” “loaders,”
and “mechanics.” When § 782 says that the MCA exemption “depends on” “the
class of work involved in the employee’s job” and extends only to certain “classes


       21
          In 1981, the DOT did, however, issue a “notice of interpretation” regarding its
jurisdiction over certain drivers. 46 Fed. Reg. 37902. But that notice of interpretation did not
purport to speak as to the maximum scope of the agency’s jurisdiction in other respects. Id.
at 37903 (“This interpretation relates solely to the jurisdiction over drivers.”).

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                                       No. 12-20194
of employees,” what § 782 means is simply that the court, in deference to the
ICC’s findings of fact, should determine whether the employee’s job duties are
such that the employee falls under the ICC’s definition of a “driver,” “driver’s
helper,” “loader,” or “mechanic.” Put another way, the only “class” inquiry
contemplated by § 782 is, the court must determine what activities the
employee’s job entails and whether those activities are such that the employee
fits into the ICC’s definition of a “driver,” “driver’s helper,” “loader,” or
“mechanic.”22
       Here, there is no question that some of the employees drive motor vehicles
and, hence, are within the ICC’s definition of the “drivers” “class” if and when
they drive interstate. That question, whether the driver-employees at issue in
this case are reasonably likely to drive interstate, should be resolved in the
ordinary manner, by examining the relevant evidence, drawing reasonable
inferences, etc.—in other words, through the “judicial process.” Pyramid Motor
Freight Corp., 330 U.S. at 707. In reading § 782’s reference to “classes of
employees” as calling for courts to define their own “groups” or “classes” of
employees and to determine MCA jurisdiction vel non with respect to such
judicially defined “groups” or “classes,” the district court and majority have
committed clear error.




       22
          It could be contended that, since the ICC’s authority under the MCA was transferred
to the DOT in 1966 (and the ICC was abolished entirely in 1995), courts ought to determine
de novo whether job activities affect the safety of motor vehicle transportation rather than
deferring to the antiquated ICC findings. But that question should be left for another day.
Here, we deal only with driving motor vehicles, and, regardless of what the ICC has said on
the topic,“[i]t is obvious that one who drives a vehicle in interstate commerce directly affects
the safety of such operations as long as he is driving.” Crooker, 469 F.2d at 209.

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                                   No. 12-20194
      Second, it is clear that, until today, in the history of FLSA-and-MCA-
exemption litigation, the courts have never defined their own “groups” or
“classes” of employees to determine MCA jurisdiction on that basis, as the
district court and majority have done here. In Pyramid Motor Freight Corp., and
reaffirmed later that same year in Morris, the Supreme Court clearly required
individual analysis of “each” employee’s actual job duties. The district court’s
and majority’s “company-wide,” “group”- or “class”-based analysis, which
determines MCA jurisdiction based on the activities of a “group” or “class” of
employees that the court has defined itself, is in clear conflict. See Pyramid
Motor Freight Corp., 330 U.S. at 698, 708 (the district court must “determine
whether or not the activities of each [employee]” “affect[] the safety of operation
of motor vehicles in interstate or foreign commerce,” and the district court may
deny overtime pay only to “those [employees] who are engaged in such
activities”); Morris, 332 U.S. at 430 (observing that, “if this were an action to
recover overtime compensation for individual employees, it would be necessary
to determine” “the extent to which [the employees] devoted themselves to [work
affecting transportation safety]”).     And, the district court’s and majority’s
analysis conflicts with the prior decisions of this court requiring individual
analysis. Compare ante, at 8 (adopting “company-wide” analysis and stating
that “this court’s precedent effectively forecloses an employee-by-employee
analysis”), with Mitchell, 286 F.2d at 114 (holding that “it is the activities of the
particular employee, rather than the employer, which determine coverage”), and
Opelika Royal Crown Bottling Co., 299 F.2d at 42-43 (applying individual
analysis). Finally, the majority’s opinion creates a split with the decisions of at




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                                  No. 12-20194
least three of our sister circuits. See Harshman, 248 F. Supp. at 958, aff’d, 355
F.2d 206; Troutt, 107 F.3d at 1107-10; Goldberg, 291 F.2d at 234-35.
      This case involves workers in Texas and Louisiana, and the question is
whether they are reasonably likely to drive interstate. To answer that question,
the court must examine evidence that is relevant to the work of those employees.
There is no legal reason the court may point to other employees in Wyoming who
are very likely to drive interstate and declare that, as a result of some legal
fiction, the same is true of the Texas and Louisiana workers, even if belied by the
evidence. The district court’s and majority’s creation of a “company-wide,”
“group”- or “class”-based mode of analysis that does just that is in clear conflict
with the Supreme Court’s mandate that we “determine whether or not the
activities of each [employee]” “affect[] the safety of operation of motor vehicles
in interstate or foreign commerce” and deny overtime pay only to “those
[employees] who are engaged in such activities.” Pyramid Motor Freight Corp.,
330 U.S. at 698, 708.
                            III. The Proper Analysis
      To decide whether the employees here are reasonably likely to drive
interstate, rather than merely intrastate, the district court and this court should
simply look at the evidence and make a determination vel non for each plaintiff-
employee. We should look to the testimony about the realities of the job as well
as any documentary records. The employee’s job description, if the company has
issued one, is relevant too, although not dispositive, since it may not reflect the
realities of the job. Pyramid Motor Freight Corp., 330 U.S. at 707 (the district
court “shall not be concluded by the name which may have been given to [the
employee’s] position or to the work that he does”); Ale v. Tenn. Valley Auth., 269


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                                  No. 12-20194
F.3d 680, 688-89 (6th Cir. 2001) (“[C]ourts must focus on the actual activities of
the employee in order to determine whether or not he is exempt from the FLSA’s
overtime regulations.”) (emphasis added).
      As discussed above, Coil Tubing Services divides its operations into six
districts, and the employees at issue here were stationed in four of the six: the
Alice, Angleton, and Bridgeport districts in Texas and the Broussard district in
Louisiana.    The company generally assigns well-servicing jobs to the
geographically closest district, and the employees in that district are required
to handle the job. If the equipment and personnel needed for a job are not
available in the district to which it is assigned, the district can borrow workers
and equipment from another district, but, according to the evidence in the
record, such instances of inter-district borrowing are “rare” and “exceptional.”
      Record evidence shows that the vast majority of jobs handled by the Alice,
Angleton, Bridgeport, and Broussard districts were purely intrastate jobs—that
is, Texas-based workers worked in Texas and Louisiana-based workers worked
in Louisiana—and only a tiny number of jobs required crossing state borders.
In Alice and Bridgeport, less than one percent of the jobs handled by those
districts during the period recorded were interstate. In Angleton, less than two
percent of the jobs were interstate. And, in Broussard, around five percent of the
jobs were interstate. Moreover, these figures likely over-represent the actual
likelihood of any given employee driving interstate because, when traveling to
the jobsite, only one employee would have to drive each vehicle, and others
would ride as passengers. Thus, while there was less than a one percent
chance—about 0.33% of a chance, the evidence shows—that any given job in the
Alice district would involve interstate transportation, there was even less than


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                                  No. 12-20194
a 0.33% chance of any given Alice worker driving interstate for any given job
assigned to the district. Inversely, when a worker in the Alice district was given
a job that was assigned to that district, there was a greater than 99% chance
that the worker would not drive interstate.
      The record contains employee testimony that tends to corroborate the
unlikelihood of driving interstate or, indeed, driving at all. For example, one
employee in the Alice district, Jesus Hernandez, testified that, in his five years
working there, he only drove interstate once. An employee in the Angleton
district, Cody Patin, testified that, during his half year working there, he only
drove a motor vehicle a single time, when he drove “a supervisor’s truck to go get
lunch for everybody one day.” There is similar testimony from a number of other
employees in the record.
      Based on this evidence, a reasonable factfinder could determine that the
likelihood of these field service employees in the Alice, Angleton, Bridgeport, and
Broussard districts driving interstate is so minimal and remote, they cannot be
“reasonably expected” to be “called upon in the ordinary course of [their] work
to [drive interstate].” Songer, 618 F.3d at 474; see Coleman, 324 F. Supp. at 670;
Kimball, 504 F. Supp. at 548; Yaklin, No. 07-CV-422, 2008 WL 4692419, at *6.
Accordingly, there is a genuine dispute of material fact as to the reasonable
likelihood of these employees driving interstate.
      Regarding the fact that Coil Tubing Services’s employees in Wyoming
drive interstate very often, there is no factual indication in the record why that
is relevant to the Texas and Louisiana employees. True, there is evidence that
on “rare” and “exceptional” occasions, one district can borrow another district’s
employees for a job if needed. But, again, according to the record evidence, such


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                                   No. 12-20194
instances are unusual, and, importantly, there is no indication in the record that
an employee has ever been sent from Texas or Louisiana to Wyoming. Thus, a
reasonable factfinder could determine that there is simply no reasonable
likelihood of a Texas or Louisiana employee being dispatched to participate in
a Wyoming job. Contrary to the district court’s and the majority’s suggestions,
this is not a case like Songer in which all employees accept their job assignments
from a single dispatch. See 618 F.3d at 470. In terms of the work that the
employees here could be expected to carry out, the record evidence shows
material differences between the assignments given to the Wyoming employees
and the Texas and Louisiana employees at issue in this case.
      The evidence in the record reveals a genuine dispute of material fact as to
whether the employees here were reasonably likely to be called upon to drive
interstate in the course of their work for Coil Tubing Services. Accordingly, the
district court’s grant of summary judgment for the company and against the
employees on their FLSA claims was improper and should be reversed.
                                 IV. Conclusion
      The plaintiffs-employees at issue in this case work in Texas and Louisiana.
The evidence shows that they are, as a matter of fact, extremely unlikely to be
called upon to drive interstate in the course of their work. Nevertheless, the
district court and majority point to other employees in Wyoming who are not
parties to this litigation but who are likely to drive interstate and, by dint of the
legal fiction of “group” or “class” membership, say that the Texas and Louisiana
workers are no different—that is, they too are likely to drive interstate, despite
the evidence showing the precise opposite. The district court and the majority
cite the DOL’s regulations and Songer as support for their decisions, but they


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                                  No. 12-20194
have unfortunately misread and misapplied these sources of law, neither of
which support the “group”- or “class”-based analysis that was applied here on a
“company-wide basis” to except more than a hundred employees from overtime
wages. The law requires, and has always required, individual analysis of each
employee’s actual job circumstances. It has never been permissible for courts to
disregard the actual evidence in favor of legal fictions in which broad swathes
of employees are swept together so as to exempt from overtime wages great
numbers of employees based on the activities of others. Simply stated, the
district court must “determine whether or not the activities of each [employee]”
are reasonably likely to affect the safety of interstate transportation. Pyramid
Motor Freight Corp., 330 U.S. at 707-08 (emphasis added). The evidence shows
that the plaintiffs, employees in Texas and Louisiana, are extremely unlikely to
drive interstate. The law does not allow us to exempt them from overtime pay
based on the job activities of other workers in Wyoming who are not a part of
this case.   I respectfully dissent.




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