Robert B. Reich, Secretary of Labor U.S. Department of Labor v. American Driver Service, Inc., a Corporation James I. Roberts, Individually

Opinion by Judge TANG; Dissent by Judge FARRIS.

The Secretary of Labor appeals the district court’s decision to include within the Secretary of Transportation’s jurisdiction, the drivers, fuelers and utility workers of American Driver Services, Inc. (“ADS”), a motor contract carrier. The district court’s decision exempts ADS from the maximum hours provisions of the Fair Labor Standards Act (“FLSA”). The Secretary of Labor argues that the Secretary of Transportation’s own interpretation of the extent of his jurisdiction requires that a motor contract carrier actually engage in interstate commerce before it is exempt from the maximum hours provisions of the FLSA. The Secretary of Labor also argues that the district court erred in concluding that the liability of ADS’s owner was a moot issue. We reverse and remand.

BACKGROUND

ADS provided motor carrier services to various businesses throughout the United States. On June 1,1985, ADS entered into a contract with the Western Sugar Company (“Western”) to transport sugar beets by truck from various receiving stations in Montana and Wyoming, to Western’s processing plant in Billings, Montana. The contract and subsequent addendum covered…

dissenting:

As I understand it, the central question is whether American Driver Service, Inc., a seasonal carrier, should be judged on the same basis as year-round carriers. Because I am of the opinion that to do so would be “unreasonable,” I respectfully dissent.

American Driver argues that it is exempt from the maximum hours requirements of the Fair Labor Standards Act, 29 U.S.C. § 207 , because it is a motor contract carrier subject to the jurisdiction of the Secretary of Transportation. The district court determined that American Driver is exempt from FLSA’s maximum hours provisions. There is no material question as to the fact that American Driver is a motor contract carrier engaged in interstate commerce whose drivers all have a reasonable expectation that they will engage in interstate commerce. There is evidence that American Driver actually engaged in interstate commerce a “reasonable time prior to the time at which [the Secretary of Transportation’s] jurisdiction [came] into question.” The opinion of the district court should be affirmed.

*1158 Congress has stated that “[t]he provisions of [the Fair Labor Standards Act, 29 U.S.C. § 207 ] shall not apply with respect…

33 F.3d 1153 128 Lab.Cas. P 33,135 , 2 Wage & Hour Cas.2d (BNA) 417 Robert B. REICH, * Secretary of Labor; U.S. Department of Labor, Plaintiffs-Appellants, v. AMERICAN DRIVER SERVICE, INC., a corporation; James I. Roberts, individually, Defendants-Appellees. No. 92-35369. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 3, 1993. Decided Aug. 30, 1994. Anne P. Fugett, U.S. Dept. of Labor, Washington, DC, for plaintiffs-appellants. Thomas F. Dowd, Omaha, NE, for defendants-appellees. Appeal from the United States District Court for the District of Montana. Before: TANG, FARRIS and RYMER, Circuit Judges. Opinion by Judge TANG; Dissent by Judge FARRIS. TANG, Senior Circuit Judge: 1 The Secretary of Labor appeals the district court's decision to include within the Secretary of Transportation's jurisdiction, the drivers, fuelers and utility workers of American Driver Services, Inc. ("ADS"), a motor contract carrier. The district court's decision exempts ADS from the maximum hours provisions of the Fair Labor Standards Act ("FLSA"). The Secretary of Labor argues that the Secretary of Transportation's own interpretation of the extent of his jurisdiction…