                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 12 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    DENNIS WAYNE OSBORNE;
    KAREN FRANCO,

                Plaintiffs-Appellants,
                                                         No. 03-2271
    v.                                         (D.C. No. CIV-02-1310 MV/LCS)
                                                          (D. N.M.)
    ENCHANTMENT AVIATION, INC.,
    doing business as Southwest Air
    Ambulance, a New Mexico
    corporation,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before SEYMOUR and ANDERSON , Circuit Judges, and             KANE , ** Senior
District Judge.


         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiffs Dennis Osborne and Karen Franco appeal from the district court’s

grant of summary judgment in favor of defendant Enchantment Aviation, Inc.,

d/b/a Southwest Air Ambulance (Southwest). Our jurisdiction arises under

28 U.S.C. § 1291, and we affirm.

      Southwest operates an air ambulance service throughout New Mexico and

western Texas. It is an air carrier certified by the Federal Aviation Commission,

and it derives 100% of its revenue from providing air ambulance services. Each

of Southwest’s air ambulances are generally staffed with an emergency medical

technician paramedic (EMTP) and a registered nurse (RN).

      After Mr. Osborne, an EMTP, and Ms. Franco, an RN, ceased working for

Southwest, they filed suit under the Fair Labor Standards Act (FLSA), 29 U.S.C.

§§ 201-219, asserting that they were denied overtime compensation in violation of

section 207(a)(1) of the FLSA.   Plaintiffs further asserted that section 213(b)(3)

of the FLSA, exempting from section 207’s overtime requirements any employee

of an air carrier subject to title II of the Railway Labor Act (RLA), 45 U.S.C.

§§ 181-188, was not applicable to them because the RLA, in plaintiffs’ words,

“hinges upon the existence of a union and a collective bargaining agreement being

in place,” Aplt. App. at 31, and plaintiffs were neither union members nor subject


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to a collective bargaining agreement. The district court rejected plaintiffs’

argument, concluding that Southwest was entitled to summary judgment as a

matter of law. This appeal followed.

       We review the district court’s grant of summary judgment de novo,

“drawing all reasonable inferences in favor of the nonmovant.”     Hiner v. Deere &

Co. , 340 F.3d 1190, 1192-93 (10th Cir. 2003) (bracket omitted). Summary

judgment is appropriate “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

       Plaintiffs raise two issues on appeal. First, they maintain that Southwest

violated section 207(a)(1) of the FLSA, contending that the RLA does not apply

to air carrier employees who are neither union members nor subject to a collective

bargaining agreement. Second, they allege that the district court erred in relying

on Slavens v. Scenic Aviation, Inc.   , No. 99-4197, 2000 WL 985933 (10th Cir.

July 18, 2000) (unpublished), because    Slavens is not binding, and it did not

resolve whether the RLA applies to air carrier employees outside the organized

labor setting.

       “The construction and applicability of a federal statute is a question of law,

which we review de novo.”      Rosette Inc. v. United States , 277 F.3d 1222, 1226


                                           -3-
(10th Cir. 2002). Where, as here, “the language is clear and unambiguous, then

the plain meaning of the words must be given effect.”         Resolution Trust Corp. v.

Love , 36 F.3d 972, 976 (10th Cir. 1994).

       After carefully reviewing the parties’ briefs, the record, and the law, we

conclude that the district court correctly held that the plain text of the FLSA

exemption at issue, § 213(b)(3), and of the RLA, “make it clear that Southwest is

an air carrier excused from the FLSA’s overtime pay provisions.” Aplt. App.

at 52. We therefore AFFIRM the district court’s judgment for the reasons stated

in its memorandum opinion and order dated September 30, 2003.

       Finally, because our disposition would be the same whether the district

court had cited Slavens or not, it is beside the point that    Slavens is unpublished

and that it did not consider whether the RLA applies to air carrier employees

outside the organized labor setting.


                                                         Entered for the Court



                                                         John L. Kane
                                                         Senior District Judge




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