                                        PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                 _______________

                      No. 14-1010
                    _______________

                 ASHLEY MCMASTER,
                                          Appellee

                             v.

          EASTERN ARMORED SERVICES, INC.,
                                          Appellant
                    _______________

      On Appeal from the United States District Court
               for the District of New Jersey
                     (Civ. No. 11-5100)
       District Judge: Honorable Michael A. Shipp
                     _______________

     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                    October 23, 2014

 Before: FUENTES, GREENBERG, and COWEN, Circuit
                     Judges

             (Opinion Filed: March 11, 2015)

Mark Justin Gottesfeld
R. Andrew Santillo
Peter D. Winebrake
Winebrake & Santillo, LLC
715 Twining Road, Suite 211
Dresher, PA 19025

Attorneys for Appellee

Christina Vassilou Harvey
Lomurro, Davison, Eastman & Munoz
100 Willow Brook Road
Building 1, Monmouth Executive Center
Suite 100
Freehold, NJ 07728

Attorney for Appellant
                     _______________

                OPINION OF THE COURT
                    _______________

FUENTES, Circuit Judge:

        The Fair Labor Standards Act requires most employers
to pay overtime wages to hourly employees. While
professional motor carriers are generally exempt from this
requirement, a recent Act of Congress waives the exemption
for motor carrier employees who, in whole or in part, drive
vehicles weighing less than 10,000 pounds. Because the
plaintiff, Ashley McMaster, falls within this carveout, we will
affirm the District Court’s determination that she was entitled
to overtime.
                               I.




                              2
        Ashley McMaster worked for Eastern Armored
Services, Inc. (“Eastern”) from approximately March 2010
until June 2011. As its name suggests, Eastern is an armored
courier company, and its fleet of armored vehicles operates
across several states in the mid-Atlantic region. McMaster
was a driver and/or guard for Eastern, which meant that some
days she was assigned to drive an armored vehicle, while
other days she rode as a passenger to ensure safety and
security. McMaster was not assigned to one specific vehicle.
Rather, her vehicle assignment changed according to the
particular needs of a given day’s transport. As it happened,
McMaster spent 51% of her total days working on vehicles
rated heavier than 10,000 pounds, and 49% of her total days
working on vehicles rated lighter than 10,000 pounds. She
was paid by the hour, and she frequently worked more than
40 hours in a given week. For all hours worked, she was paid
at her regular rate. In other words, she was not paid overtime.

       After McMaster left Eastern, she filed the instant
federal action claiming that the Fair Labor Standards Act
required Eastern to pay her overtime wages when she worked
more than 40 hours in a week. The parties certified a
conditional class of similarly situated employees, see 29
U.S.C. § 216(b), and proceeded to limited discovery on
McMaster’s claim only. The parties then cross-moved for
summary judgment. Their dispute centered on whether
Eastern was exempt from paying overtime to McMaster under
a provision of the Fair Labor Standards Act known as the
Motor Carrier Act Exemption. According to Eastern,
McMaster fell within the exemption and was thus not entitled
to overtime. According to McMaster, she fell within an
exception to the exemption enacted by Congress prior to her
employment.




                              3
       The District Court granted McMaster’s motion, denied
Eastern’s motion, and entered an order that McMaster was
eligible to be paid overtime wages for all hours she worked
over 40 in a given workweek. This interlocutory appeal
followed on certification of the District Court, see 28 U.S.C.
§ 1292(b), which recognized that other district courts have
embraced Eastern’s arguments. In the briefs before us,
Eastern renews its contention that McMaster is ineligible for
overtime because of the Motor Carrier Act Exemption.1

                            II.
       Section 7 of the Fair Labor Standards Act provides
that employers must pay hourly employees 150% their typical
wages on hours they work in a week over 40.2 See 29 U.S.C.

1
  Eastern’s alternative argument—that McMaster was entitled
to overtime only for those workweeks in which she actually
performed work on vehicles lighter than 10,000 pounds—was
not presented to the District Court and is therefore deemed
waived. See Tri–M Grp., LLC v. Sharp, 638 F.3d 406, 416
(3d Cir. 2011).
2
  We have jurisdiction to review the District Court’s order
pursuant to 28 U.S.C. § 1292(b). The District Court had
subject-matter jurisdiction under 28 U.S.C. § 1331.
We review a district court's grant of summary judgment de
novo. Doe v. Indian River Sch. Dist., 653 F.3d 256, 275 n.7
(3d Cir. 2011). In doing so, we apply the same standard as the
district court. Id. That is, summary judgment should be
granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). In deciding whether
summary judgment is warranted, we “must view the facts in




                              4
§ 207; Packard v. Pittsburgh Transp. Co., 418 F.3d 246, 250
(3d Cir. 2005). One exemption to this general rule is Section
13(b)(1) of the Act. Known as the Motor Carrier Act
Exemption, the provision provides that overtime pay is not
required for “any employee with respect to whom the
Secretary of Transportation has power to establish
qualifications and maximum hours of service.” See 29 U.S.C.
§ 213(b)(1); see also 49 U.S.C. §§ 31502(b), 13102 (defining
scope of Secretary of Transportation’s regulatory authority).

        Congress elaborated upon the Motor Carrier Act
Exemption with the enactment of the Corrections Act of
2008.3 Section 306(a) of the Corrections Act provides that
“Section 7 of the Fair Labor Standards Act . . . shall apply to
a covered employee notwithstanding section 13(b)(1) of that
Act.” See Corrections Act, § 306(a). Section 306(c) of the
Corrections Act defines the term “covered employee.” In
short, a “covered employee” is an employee of a motor carrier
whose job, “in whole or in part,” affects the safe operation of
vehicles lighter than 10,000 pounds, except vehicles designed
to transport hazardous materials or large numbers of
passengers. Corrections Act § 306(c).

       McMaster’s job placed her squarely within the
Corrections Act’s definition of a “covered employee.”
McMaster was a driver and guard of commercial armored
vehicles, and approximately half of her trips were on vehicles


the light most favorable to the nonmoving party and draw all
inferences in that party's favor.” Doe, 653 F.3d at 275 n.7.
3
 SAFETEA–LU Technical Corrections Act of 2008, PL 110-
244, June 6, 2008, 122 Stat. 1572.




                              5
undisputedly lighter than 10,000 pounds.4 Her daily routes
included interstate trips on public roadways, and none of the
vehicles were designed to transport eight or more passengers
or used to transport hazardous materials. And her employer,
Eastern, is by its own admission a motor carrier. The critical
issue, then, is the significance of being a “covered employee”
when determining a motor carrier employee’s entitlement to
overtime.

       It is well-established that, “[w]here the text of a statute
is unambiguous, the statute should be enforced as written and
only the most extraordinary showing of contrary intentions in
the legislative history will justify a departure from that
language.” Murphy v. Millennium Radio Grp. LLC, 650 F.3d
295, 302 (3d Cir. 2011). As stated above, the relevant
language of the Corrections Act is that, as of June 6, 2008,
“Section 7 of the Fair Labor Standards Act of 1938 . . . shall
apply to a covered employee notwithstanding section 13(b)(1)
of that Act.” Corrections Act § 306(a). This is a plain
statement that a “covered employee” is to receive overtime
even where section 13(b)(1)—the Motor Carrier Act
Exemption—would ordinarily create an exemption. We see
no plausible alternative construction, and neither Eastern nor
any of the authorities it cites attempt to offer one. Nor does
Eastern point to legislative history probative of a drafting
error. Cf. Murphy, 650 F.3d at 302. Statutory construction
points to one conclusion: “covered employees” are entitled to


4
 We need not now affix a firm meaning to the term “in part.”
Whatever “in part” means, it is certainly satisfied by
McMaster, who spent 49% of her days on vehicles less than
10,000 pounds.




                                6
overtime.

       District courts considering the plain language of the
Corrections Act have reached the same conclusion. See, e.g.,
McMaster v. E. Armored Servs., Inc., 2013 WL 1288613, at
*1 (D.N.J. 2013); Garcia v. W. Waste Servs., Inc., 969 F.
Supp. 2d 1252, 1260 (D. Idaho 2013); Bedoya v. Aventura
Limousine & Transp. Serv., Inc., 2012 WL 3962935, at *4
(S.D. Fla. 2012); Mayan v. Rydbom Exp., Inc., 2009 WL
3152136, at *9 (E.D. Pa. 2009); Botero v. Commonwealth
Limousine Serv. Inc., 2013 WL 3929785, at *13 (D. Mass.
2013); O’Brien v. Lifestyle Transp., Inc., 956 F. Supp. 2d
300, 307 (D. Mass. 2013). So, too, the Department of Labor,
in a post-Corrections Act Field Bulletin entitled “Change in
Application of the FLSA § 13(b)(1) ‘Motor Carrier
Exemption.’” See Department of Labor Field Bulletin,
available at http://www.dol.gov/whd/fieldbulletins/fab2010_2.htm.
(“Section 306(a) extends FLSA Section 7 overtime
requirements to employees covered by [Corrections Act]
Section 306(c), notwithstanding FLSA Section 13(b)(1).”).

        Our sister courts of appeals have yet to weigh in
squarely on whether a Corrections Act “covered employee” is
entitled to overtime, but the Fifth and Eighth Circuits have
noted the plain language of the Corrections Act, too.

       In Allen v. Coil Tubing Servs., L.L.C., the Fifth Circuit
addressed a motor carrier employee’s argument in an
interlocutory appeal that her lack of interstate driving placed
her outside the ambit of the Motor Carrier Act Exemption.
See 755 F.3d 279 (5th Cir. 2014). The Corrections Act was
not at issue because the relevant claims arose prior to June
2008. Id. at 291 n.6. In a footnote, however, the court




                               7
commented on the plaintiff’s other claims before the District
Court, which arose after the enactment of the Corrections Act.
Without deciding the issue, the Allen court observed that,
“although the scope of the [Motor Carrier Act] Exemption to
the [Fair Labor Standards Act] and the scope of the
[Department of Transportation]’s regulatory jurisdiction are
generally one and the same, there may be an exception to that
rule following passage of the [Corrections Act].” Id.
Continuing, the court explained that the Corrections Act
“provides generally that, from the date of the act’s enactment,
June 6, 2008, the [Motor Carrier Act] exemption does not
apply to employees who would otherwise fall within its ambit
if the [“covered employee”] requirements are met.” Id.
(emphasis in the original). In other words, “covered
employees” are entitled to overtime.

       The Eighth Circuit case, McCall v. Disabled American
Veterans, involved a motor carrier employee who, like
McMaster does here, argued he was eligible for overtime
because he was a Corrections Act “covered employee.” See
723 F.3d 962 (8th Cir. 2013). The issue on appeal centered on
whether the weight of the vehicles the plaintiff drove should,
for purposes of determining whether he was a “covered
employee,” be measured according to their actual weight or
according to their Gross Vehicle Weight Rating. See id.
Finding the plaintiff was not a “covered employee” because
he exclusively worked on vehicles with a Gross Vehicle
Weight Rating over 10,000 pounds, the Eighth Circuit
explained that “Gross Vehicle Weight Rating establishes an
objective and predictable standard for determining whether
the [Motor Carrier Act] Exemption applies.” Id. at 966.

      Rather than contest Congress’s express carveout from




                              8
the Motor Carrier Act Exemption for “covered employees,”
Eastern relies on a series of district court cases holding that
the Motor Carrier Act Exemption remains absolute after the
Corrections Act. See Avery v. Chariots For Hire, 748 F.
Supp. 2d 492, 500 (D. Md. 2010); Dalton v. Sabo, Inc., 2010
WL 1325613, at *4 (D. Or. 2010); Jaramillo v. Garda, Inc.,
2012 WL 4955932, at *4 (N.D. Ill. 2012).5 Each of these
cases relies on a policy statement of the Seventh Circuit in
2009 that “[d]ividing jurisdiction over the same drivers, with
the result that their employer would be regulated under the
Motor Carrier Act when they were driving the big trucks and
under the Fair Labor Standards Act when they were driving
trucks that might weigh only a pound less, would require
burdensome record-keeping, create confusion, and give rise
to mistakes and disputes.” See Collins v. Heritage Wine
Cellars, Ltd., 589 F.3d 895, 901 (7th Cir. 2009). Indeed, our
own jurisprudence has historically seen the Motor Carrier Act
Exemption as establishing a strict separation between the
Secretary of Transportation’s jurisdiction and the ambit of the
Fair Labor Standards Act overtime guarantee. See Packard,


5
  Eastern also points to Buckner v. United Parcel Services,
Inc., 2012 WL 1596726 (E.D.N.C. May 7, 2012) aff'd without
opinion, 489 F. App’x 709 (4th Cir. 2012) cert. denied, 134
S. Ct. 70 (2013), which found a pro se plaintiff ineligible for
overtime where his job consisted of driving cargo vans
heavier and lighter than 10,000 pounds. Although the facts of
Buckner parallel those of this case, there is no indication that
the pro se plaintiff presented a Corrections Act argument to
the District Court or the Fourth Circuit, and those courts’
decisions do not show consideration of the Corrections Act
sua sponte.




                               9
418 F.3d at 254 (rejecting argument that Motor Carrier Act
Exemption applied only to drivers actually regulated by the
Secretary of Transportation); Friedrich v. U.S. Computer
Servs., 974 F.2d 409, 412 (3d Cir. 1992). Neither history nor
policy, however, can overcome an express change to the
statutory scheme.6

                               III.
       The Corrections Act says it plainly: “Section 7 of the
Fair Labor Standards Act of 1938 . . . appl[ies] to a covered
employee notwithstanding section 13(b)(1) of that Act.”
Corrections Act § 306(a). As McMaster meets the criteria of a
“covered employee,” she is entitled to overtime. We will
therefore affirm the order of the District Court and remand for
assessment of wages owed to McMaster and for additional
proceedings relating to the other members of the conditional
class.


6
  In any event, administrability is not an issue with respect to
those employees who fall within the Motor Carrier Act
Exemption but are not actually regulated by the Department
of Transportation. As our former Chief Judge has noted,
employees may fall within the Motor Carrier Act Exemption
even where their work presents no reason for Department of
Transportation regulation. See Friedrich, 974 F.2d at 421
(Sloviter, C.J., dissenting) (“[T]he driving done by these
plaintiffs does not raise safety concerns any different than
those raised by sales or repair persons who carry no such
equipment. We are not dealing with truckers or bus operators
here. The DOT itself recognized this distinction when it
decided not to regulate lightweight vehicles such as
automobiles.”).




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