author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Keith A. GRAVES, also known as Chris Woods, Defendant-Appellant
    No. 16-1462
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 6, 2017
    Filed: May 10, 2017

      Counsel who represented the appellant was Tom Tuntland of Mandan, ND.
    Counsel who represented the appellee was Brandi Sasse Russell, AUSA, of Bismarck, ND.
    Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
   PER CURIAM.

After a lengthy trial at which Keith A. Graves represented himself with the help of stand-by counsel, a jury convicted Graves of five counts of sex trafficking by force or coercion and two counts of possession and distribution of methamphetamine. See 18 U.S.C. §§ 1591(a), (b)(1); 21 U.S.C. §§ 841(a)(1), 844(a). The jury acquitted Graves of four sex trafficking offenses. The district court sentenced him to 405 months in prison. On appeal, represented by stand-by trial counsel, Graves argues he was denied a fair trial when the government produced voluminous discovery in a manner Graves could not effectively access while in pretrial detention and use at trial, and the district court denied his request for a continuance made on the morning his long-delayed trial was scheduled to begin. We affirm.

At his arraignment on a superseding indictment, Graves told the magistrate judge that he wanted to represent himself because appointed counsel, an assistant federal public defender, was “working together” with the prosecutor to violate “my constitutional rights to a speedy trial.” On May 18, 2015, the district court held a hearing on counsel’s motion to withdraw. The court gave Graves a lengthy warning about the dangers of self-representation; Graves again said he wanted to represent himself. Finding that he was mentally competent and made a knowing and voluntary waiver of his right to counsel, the court allowed him to proceed pro se and appointed stand-by counsel.

At this hearing, the court asked if Graves had access to the government’s discovery. The prosecutor advised that extensive discovery had been provided on twenty-two disks pursuant to a stipulated discovery order. Graves complained that he did not have access to electronic discovery at the detention facility in Rugby and no access to FBI interview reports. The court directed the U.S. Marshals Service to ensure there was a room with a computer at the Rugby facility where Graves could look at the discovery “more than an hour a day.” Graves said, “I’ll look at everything every day until I go to trial,” and said he would be ready for a mid-July trial.

At a June 23, 2015 status conference, the prosecutor assured the court, <cWe sent all the discovery out.” Graves said he had reviewed eight of the twenty-four CDs and complained that he needed more time to prepare for trial because “I can’t get any paper copies of anything at all,” and the laptop in Rugby “doesn’t really play all the programs.” The court explained that it was standard policy not to allow inmates in custody awaiting trial to have paper copies of discovery that could “get in the wrong hands.” The court said this is why “most people rely upon an attorney to accumulate that information and conduct the investigation.” The court granted Graves a continuance, assured him “we can find another laptop computer, and ... set aside more time for you to look at those images,” granted Graves’s belated request for an investigator, and advised Graves to consult with stand-by counsel. On September 15, the court ordered Graves transferred from the jail in Rugby to the Burleigh County Detention Center in Bismarck, where he would be provided a computer with appropriate software to aid in his review of discovery.

At the start of a pretrial conference on September 28, the court noted trial was scheduled for two weeks beginning October- 19 and discussed “how this trial is going to proceed.” The court instructed Graves to immediately contact stand-by counsel, who would contact the clerk of court, if Graves had problems reviewing discovery. Graves replied, “Well, so far, Your Honor, I haven’t been able to review it,” and asked how he would be able to separate the information and present it as exhibits. The court instructed the U.S. Marshal to make sure Graves has “full access to a laptop” at the Detention Center and said, if they cannot do it, provide Graves a room at the federal courthouse where he can sit all day and look at discovery. The court advised Graves to work with stand-by counsel to develop trial ex-Mbits. Graves complained he had not been provided an investigator. The court replied, “I never received any letter from you requesting private investigator funds,” awarded funds for an investigator, and instructed stand-by counsel to help arrange interviews of persons Graves wanted interviewed. Graves also complained that “some of these discoveries disks ... don’t even work.” The prosecutor explained that, with electronic device discovery, sometimes there is nothing to view.

On October 19, before selecting the jury, the district court gathered counsel and Graves to discuss the preliminary jury instructions. Graves stated he had not reviewed all the discovery, “and basically I’m unprepared to go forward with trial.” The court replied: “I had you transported to Bismarck to eliminate all of these problems ... why didn’t you bring these to my attention sometime in the last three weeks? ... I’ve made it crystal clear that there would be no further continuances.” After lengthy complaints by Graves, the court observed: “according to [Detention Center] records ... you’ve only used the computer over there seven hours in the last three weeks.... and you haven’t contacted me to let me know that you’ve had any problems whatsoever about the government’s evidence and making sure that you’ve seen it all and contemplated it all.” After confirming that the government had complied with its discovery obligations, the court denied Graves a continuance.

The lengthy trial transcript demonstrates that Graves made considerable use of the government’s discovery in representing himself at trial, and that the district court liberally allowed him to introduce discovery materials and use them to impeach government witnesses.

On appeal, Graves first argues that he was denied a fair trial because the government did not produce over 6,000 pages of discovery in a timely manner and usable form that gave Graves an opportunity to review discovery, investigate the case, and work with stand-by counsel to subpoena witnesses and prepare exhibits for trial. After careful review of the trial and pretrial record, we disagree. There is no claim the government failed to comply with its disclosure requirements under Rules 16(a)(1)(A), (E), (F), or 26.2 of the Federal Rules of Criminal Procedure.

Rule 16 does not address the form discovery must take, and the “open discovery file” provided by the government in this case allowed Graves access to material that was not required by rule, statute, or the Constitution. Counsel signed a stipulated discovery and protective order early in the case that permitted the government to produce discovery in digital format and denied Graves paper copies while detained. Graves cites no authority requiring the government to produce electronic discovery in a particular fashion. See United States v. Warshak, 631 F.3d 266, 296 (6th Cir. 2010). The district court made great effort to assure that Graves had timely computer access to the discovery. It granted a continuance, moved Graves to a detention facility closer to the courthouse, and instructed the U.S. Marshals Service to ensure the detention center provided Graves adequate computer access, or to provide him a room at the courthouse for that purpose. The record discloses that Graves was provided a pretrial investigator, subpoenaed numerous defense witnesses for trial, and made use of the government’s discovery at trial. Finally, and perhaps most importantly, Graves provides no instances where lack of access to specific discovery prejudiced his trial defense. In these circumstances, we conclude the government did not deny Graves his constitutional right to a fair trial, and the district court did not abuse its discretion in responding to his numerous discovery complaints.

Graves next argues the district court abused its discretion in denying his day-of-trial motion for another continuance. We disfavor continuances, particularly on the eve of trial, and will reverse only if the district court abused its broad discretion and the moving party was prejudiced. See United States v. Chahia, 544 F.3d 890, 896 (8th Cir. 2008). Here, the district court granted Graves a lengthy continuance, told him to alert stand-by counsel immediately if the court’s efforts to resolve his discovery problems were not working, and warned that no further continuances would be granted. The court also again advised that Graves was unwise to represent himself and said he could turn to his well-prepared stand-by counsel to conduct the trial at any time. Graves then appeared the morning of trial, advised the court of myriad, previously undisclosed discovery complaints that made him unprepared for trial, but admitted that he had looked at discovery only seven hours the previous three weeks. The court did not abuse its discretion in denying this untimely request. Moreover, Graves has failed to show prejudice, “that, if the continuance had been granted, the result of the trial would have been different.” United States v. Hyles, 479 F.3d 958, 968 (8th Cir. 2007).

The judgment of the district court is affirmed.

      . The Honorable Daniel L. Hovland, Chief Judge of the United States District Court for the District of North Dakota.


source: Caselaw Access Project

author: ROSSITER, District Judge.

license: Public Domain

text:
    Michael LACURTIS, Kris Daniels, and Gerald Young, each on behalf of himself and all others similarly situated, Plaintiffs-Appellees v. EXPRESS MEDICAL TRANSPORTERS, INC. and Hospital Shuttle Service, Inc., Defendants-Appellants
    No. 16-3378
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 5, 2017
    Filed: May 10, 2017

      Counsel who appeared on the brief and presented argument on behalf of the appellant was John Joseph Gazzoli, Jr., of Saint Louis, MO. The following attorney(s) appeared on the appellant brief; David Co-burn, of Washington, DC., Jessica C. Git-temeier, of Saint Louis, MO.
    Counsel who appeared on the brief and presented argument on behalf of the ap-pellee was Brendan J. Donelon, of Kansas City, MO. The following attorney(s) appeared on the appellee brief; Daniel Craig, of Saint Louis, MO.
    Before WOLLMAN and LOKEN, Circuit Judges, and ROSSITER, District Judge.

      . The Honorable Robert F. Rossiter, Jr., United States District Judge for the District of Nebraska, sitting by designation.

   ROSSITER, District Judge.

In this consolidated putative class- and collective-action case, Express Medical Transporters, Inc. and Hospital Shuttle Service, Inc. (collectively, “EMT”) appeal from an order of the district court denying EMT’s motion for summary judgment and granting partial summary judgment for Michael LaCurtis (“LaCurtis”) on the issue of EMT’s liability to pay him for unpaid overtime. With jurisdiction under 28 U.S.C. § 1292(b), we affirm.

1. BACKGROUND

EMT is a licensed interstate motor carrier regulated by the Federal Motor Carrier Safety Administration (“FMCSA”), a division of the U.S. Department of Transportation (“DOT”). See 49 U.S.C. §§ 13102(14), 31501(2). EMT provides non-emergency medical and student transportation in Missouri and Arkansas and is engaged in interstate commerce. To provide those services, EMT operates a fleet of vehicles, including several wheelchair-equipped paralift vans. The paralift vans are full-size Ford E-250 and E-350 vans originally designed and manufactured to carry up to twelve and fifteen passengers, respectively. The vans have a gross vehicle weight rating of 10,000 pounds or less.

Before being placed into service at EMT, these new Ford E-250 and E-350 vans are redesigned and converted by a third-party company, New England Wheels, Inc. (“New England Wheels”), into paralift vans by permanently removing some of the seats to allow the installation of up to two wheelchair positions. New England Wheels also alters the doors and roof and installs wheelchair ramps and lifts. After converting a vans New England Wheels places a new placard on the driver’s side door pillar to comply with the National Highway Transportation Safety Administration’s (“NHTSA”) manufacturer labeling requirements for tire and loading information. See 49 C.F.R. § 571.110 S4.8.

■ Record photographs of the new placards in two EMT paralift vans configured “similarly” to the vans at issue in this case indicate maximum seating capacities, as modified, of five and six passengers, respectively. As the district court noted, it is unclear how those maximum seating capacities were calculated. EMT agrees one of the modified paralift vans pictured can transport two passengers in wheelchairs and up to three additional passengers and the other modified paralift van pictured can transport two passengers in wheelchairs and up to five additional passengers.

LaCurtis has been employed by EMT to drive paralift vans since January 10, 2012. LaCurtis and similarly situated drivers operate EMT’s paralift vans in interstate commerce as members of a pool of employee drivers. Although the drivers routinely work more than forty hours a week, EMT does not pay them overtime as generally required by the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq., and the Missouri Minimum Wage Law, Mo. Rev. Stat. § 290.500 et seq., which is interpreted in accordance with the FLSA. See Mo. Rev. Stat. § 290.505.

Title 29, section 207(a)(1) generally requires employers to compensate overtime hours “at a rate not less than one and one-half times the [employee’s] regular rate” of pay. EMT maintains the drivers are not eligible for overtime because the overtime provision does not apply to “any employee with respect to whom the Secretary of Transportation [ (“Transportation Secretary”) ] has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49.” See 29 U.S.C. § 213(b)(1). Section § 31502(b) gives authority to the Transportation Secretary to set the “qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier.” Commonly known as the Motor Carrier Act (“MCA”) exemption, this exemption is designed “to avoid potentially overlapping jurisdictions” between the Transportation Secretary, who now administers the MCA, and the Secretary of Labor (“Labor Secretary”), who administers the FLSA. Williams v. Cent. Transp. Int’l, Inc., 830 F.3d 773, 775 (8th Cir. 2016).

In 2008, Congress passed the SAFE-TEA-LU Technical Corrections Act of 2008 (“TCA”), which narrowed the scope of the MCA exemption. Under the TCA, the FLSA overtime provisions “apply to a covered employee notwithstanding the [MCA exemption].” Pub: L. No. 110-244, Title III, § 306(a) (2008). As relevant here, “the term ‘covered employee’ means” an EMT driver or helper “whose work, in whole or in part,” affects “the safety of operation of motor vehicles weighing 10,000 pounds or less,” unless the vehicle is “designed or used to transport more than 8 passengers (including the driver) for compensation.” Id. at § 306(c). The district court referred to this as the “small vehicle exception” to the MCA.

On March 19, 2015, LaCurtis filed a putative collective and class action against EMT seeking to recover overtime pay he believes he and similarly situated drivers were entitled under the FLSA and Missouri law. See 29 U.S.C. § 216(b); Fed. R. Civ. P. 23. LaCurtis amended the Complaint on August 31, 2015. LaCurtis seeks, among other things, class designation for both claims, back wages, liquidated damages, injunctive relief, and attorney fees and costs. EMT answered, asserting several affirmative defenses.

After discovery limited to liability issues, LaCurtis and EMT filed cross-motions for summary judgment. LaCurtis moved for partial summary judgment only on the issue of liability. According to the district court, LaCurtis acknowledged during oral argument that his “motion applie[d] only to his individual claims” because “no class or collective action ha[d] been certified in this case.”

EMT sought dismissal of the First Amended Complaint in its entirety. The pivotal issue presented by the summary-judgment motions was whether the paralift vans at issue in this case were “designed or used to transport more than 8 passengers” for purposes of § 306 of the TCA.

LaCurtis urged the district court to defer to U.S. Department of Labor (“DOL”) Field Assistance Bulletin No. 2010-2 (“FAB 2010-2”), in which the Deputy Administrator of the Wage and Horn" Division (“WHD”) of the DOL announced that, for enforcement purposes, the WHD will de-terminé whether a vehicle is “designed or used to transport more than 8 passengers” “based on the vehicle’s current design and the vehicle capacity as found on the door jamb plate.” The WHD stated that if the seating capacity was reduced “to accommodate a wheelchair, [the WHD] will count the resulting capacity plus add 1 for each wheelchair placement.”

EMT argued the paralift vans LaCurtis drove were “designed or used to transport more than 8 passengers” based on then-original design and as modified to accommodate two wheelchairs. EMT urged the district court to follow NHTSA regulation 49 C.F.R. § 571.3(b)(1) and conclude that a wheelchair placement counted as four seating positions. EMT alternatively argued it should not be liable for overtime because it had relied in good faith on the results of a 2010 FLSA compliance examination conducted by the DOL that, in EMT’s view, indicated EMT’s overtime policies complied with the FLSA. See 29 U.S.C. §§ 251-262.

Rejecting EMT’s assertion that § 571.3(b)(1) controlled the issue and giving “some deference” to FAB 2010-2, the district court concluded a wheelchair placement should count as one passenger. As such, the district court decided LaCurtis was a “covered employee” under TCA § 306 because the paralift vans.he drove, as modified, had fewer than eight seats. The district court further decided EMT did not qualify for the good-faith exception. Accordingly, the district court denied EMT’s motion for summary judgment on May 31, 2016, and granted partial summary judgment for LaCurtis on the issue of liability.

On January 27, 2016, on EMT’s motion, the district court consolidated LaCurtis’s case with a related case filed by driver Kris Daniels and helper Gerald Young. See Fed. R. Civ. P. 42(a). The district court agreed with EMT that the cases arose “out of very similar facts, involve[d] the same defendant, and presented] common questions of law.”

On July 1, 2016, EMT moved to amend the district court’s May 31, 2016, summary-judgment order to permit immediate interlocutory appeal under 28 U.S.C. § 1292(b). The district court granted the motion in part and certified two issues for interlocutory appeal: (1) whether § 571.3(b)(1)- was entitled to “controlling deference in determining the number of passenger seats a wheelchair placement represents” in deciding if a vehicle is “designed or used to transport more than 8 passengers” under TCA § 306(c) and (2) whether vans “originally designed and manufactured to transport 12 to 15 passengers” that are “later modified by remqving seats to accommodate two secured wheelchair placements and up to six ordinary seats” are “designed or used to transport more than 8 passengers” under TCA § 306(c). The district court stayed further proceedings pending this appeal.

On August 18, 2016, this Court granted EMT’s motion for interlocutory appeal on the two issues the district court certified. For the first time on appeal, EMT asks the Court to review the district court’s rejection of EMT’s good-faith defense. We decline to consider that uncertified issue on interlocutory appeal. See 28 U.S.C. § 1292(b).

II. DISCUSSION

A. Standards of Review

We review de novo the district court’s interpretation of the federal statutes and regulations at issue in this appeal. See, e.g., Williams, 830 F.3d at 775. We also “review de novo the district court’s resolution of cross-motions for summary judgment ‘viewing the evidence in the light most favorable to the nonmoving party and giving the nonmoving party the benefit of all reasonable inferences.’ ” Dallas v. Am. Gen. Life & Acc. Ins. Co., 709 F.3d 734, 736 (8th Cir. 2013) (quoting Crawford v. Van Buren County, 678 F.3d 666, 669 (8th Cir. 2012)). Summary judgment is required “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).

B. Controlling Deference

The first question we must answer is whether the district court erred in failing to give controlling deference to 49 C.F.R. § 571.3(b)(1) in interpreting TCA § 306. We conclude it did not.

Where Congress has delegated authority to an agency “to elucidate a specific provision of the statute by regulation,” we must give “[s]uch legislative regulations ... controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). “[A]dministrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001).

Here, EMT is correct that the Transportation Secretary has authority to interpret TCA § 306 and to determine whether an employee’s activities fall within the MCA exemption. See, e.g., Williams, 830 F.3d at 775-76 (discussing Levinson v. Spector Motor Serv., 330 U.S. 649, 662, 67 S.Ct. 931, 91 L.Ed. 1158 (1947)). But EMT—all but abandoning this issue on appeal—has not cited any authority or identified any colorable basis for giving controlling weight to § 571.3(b)(1) in this case.

As the district court pointed out, § 571.3(b)(1) was not promulgated by the Transportation Secretary or the FMCSA under the authority of the MCA or the TCA. Rather, NHTSA—a distinct agency within the DOT with no authority to administer or enforce any of the statutes at issue in this case—promulgated § 571.3(b)(1) under the authority of a completely different statutory scheme—the National Traffic and Motor Vehicle Safety Act of 1966. See 49 C.F.R. § 571.1. What’s more, there is nothing in the record to indicate that either the Transportation Secretary or the FMCSA has examined the TCA and weighed in on its meaning or its possible effect on the MCA exemption at all, much less that they have clearly said the limited definition in § 571.3(b)(1) should control our interpretation of the TCA.

The district court did not err in declining to give controlling deference to § 571.3(b)(1) in deciding the drivers were “covered employees” under TCA § 306.

C. The Meaning of “Designed” under the TCA

We next must determine if the par-alift vans LaCurtis drove for EMT, which were originally designed and manufactured to transport twelve to fifteen passengers but were redesigned and modified to accommodate two wheelchair placements and up to six ordinary seats, were “designed or used to transport more than 8 passengers (including the driver)” for purposes of TCA § 306(c). Reviewing the statutory language in the TCA and giving “some deference” to the WHD interpretation of TCA § 306 in FAB 2010-2, the district court determined the paralift vans LaCur-tis operated were not “designed or used to transport more than 8 passengers.” As such, the district court found LaCurtis was a “covered employee” under the TCA and entitled to overtime pay.

EMT argues that in reaching that conclusion, “the district court misinterpreted or ignored the clear statutory language of the TCA” and “erred in giving deference to” the WHD’s “interpretation of the statutory language.” As EMT reads it, the TCA unambiguously establishes that a vehicle’s original design capacity, as fixed at the time of manufacture, controls. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (explaining that if Congress has “directly spoken to the precise question at issue ... that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress”). EMT contends that by using the disjunctive phrase “designed or used” Congress made it clear that the term “designed” would mean the original design of a vehicle and the term “used” would cover anything that happens after that, including a comprehensive redesign and substantial modifications by a third-party manufacturer. We disagree.

“Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843. A “statutory provision is ambiguous” if “it is susceptible to more than one reasonable interpretation.” Owner-Operator Indep. Drivers Ass’n, Inc. v. Supervalu, Inc., 651 F.3d 857, 862 (8th Cir. 2011).

The term “designed” is not defined in the TCA, and the statute lacks the type of “temporal qualifier” that would make the meaning of the term clear as it relates to the dispute in this case. Robinson, 519 U.S. at 341, 117 S.Ct. 843. Each party asserts the term unambiguously supports their position, but they propose very different interpretations of the term. Whereas EMT argues “designed” means as “originally designed,” the drivers—maintaining the subsequent redesign and modification of the paralift vans constitutes a “design” under the TCA—in essence, argue “designed” means as “currently designed.”

Both interpretations are reasonable. See id. (finding ambiguity where Congress could have expressly modified the term “employees” with the adjectives “current” or “former” but did not). EMT’s proposed interpretation would provide a measure of certainty to the determination. The drivers’ proposed interpretation would better account for the substantial redesign and modifications the vans undergo before being placed into service at EMT as paralift vans.

For help in resolving this ambiguity and determining Congress’s intent, the parties direct us to various agency interpretations of the term “designed” in this and related contexts. Such interpretations are often very helpful, see, e.g., Bragdon v. Abbott, 524 U.S. 624, 642, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (“[T]he well-reasoned views of the agencies implementing a statute ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.’” (quoting Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944))), but not here. “The weight of [an agency] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161.

Here, however, the agency interpretations cited by the parties lack the power to persuade. As noted above, neither the Transportation Secretary nor the FMCSA has clearly spoken on this issue. In addition to § 571.3(b)(1), which actually cuts against EMT’s original-design argument, EMT, for the first time on appeal, points to two “determinations” from the FMCSA that EMT asserts establish “that original design is what matters ... and that the removal of seats is irrelevant in assessing vehicle capacity for regulatory purposes.” The first is a document titled “Interstate Passenger Carrying Driver’s Guide to Hours of Service.” The second is reportedly a website entry answering a driver question about commercial driver licensing standards after seats are removed from a vehicle.

Even assuming those “determinations” are properly before the Court, EMT does not explain how that “guidance” was prepared or provide any evidence of thoroughness or reasoning that would give them much persuasive power. Neither “determination” appears to clearly contemplate the type of comprehensive redesign and conversion at issue in this case.

We reach the same conclusion about the persuasive value of FAB 2010-2. While it is certainly not improper to look to the DOL for guidance in interpreting TCA § 306 as it relates to the Labor Secretary’s authority to enforce the FLSA, particularly in the absence of guidance from the Transportation Secretary on the scope of the MCA exemption, see McCall v. Disabled Am. Veterans, 723 F.3d 962, 966 (8th Cir. 2013), we do not find FAB 2010-2 to be of much help under the circumstances of this case. In FAB 2010-2, which is an internal memorandum from the WHD Deputy Administrator to Regional Administrators and District Directors, the Deputy Administrator clarifies that for enforcement purposes, the WHD will determine whether a vehicle is designed to transport more than eight passengers

based on the vehicle’s current design and the vehicle capacity as found on the door jamb plate. Where a vehicle’s seating capacity has been reduced, for example by removing seats to accommodate a wheelchair, we will count the resulting seating capacity plus add 1 for each wheelchair placement. Where a vehicle’s capacity has been increased, for example by bolting a bench seat into a cargo area, we will not count the added capacity unless the vehicle has been recertified by DOT for that purpose.

Thus, FAB 2010-2 actually presents something of a hybrid. The WHD will consider current design when seats are removed and will consider original design when seats are added, unless the vehicle is re-certified by the DOT by some unidentified process. Like the guidance from the FMCSA, the Deputy Administrator does not provide any explanation for the enforcement standard she adopts nor''does she provide any reasoning for her novel interpretation of TCA § 306.

With little persuasive interpretive guidance, we are left to resolve the ambiguity in TCA § 306(c) based on the language and purpose of the TCA and the broader statutory context. Upon careful review, we conclude Congress did not intend for the term “designed” as used in TCA § 306(c) to be limited to a vehicle’s original design no matter what happens to the vehicle after its original design and manufacture.

The paralift vans at issue in this cáse undisputedly underwent a comprehensive redesign and substantial modifications by a third-party manufacturer before being delivered to EMT and placed into service. Though originally designed to carry twelve to fifteen ambulatory passengers, the vans at issue in this case went from the original manufacturer to a third-party manufacturer who redesigned them and converted them into paralift vans capable of safely transporting up to two wheelchairs.

To accommodate those wheelchairs, the third-party manufacturer removed some of the seats, altered the roof and doors, and installed wheelchair anchors, ramps, and lifts in accordance with the redesign. When the conversion process was complete, the third-party manufacturer placed new placards on the door pillars to comply with the labeling requirements in § 571.110 S4.3 for tire and loading information.

After those substantial modifications, the paralift vans LaCurtis drove could seat no more than seven passengers. In light of the comprehensive redesign and conversion process those paralift vans underwent before being placed into service, we agree with the district court the paralift vans LaCurtis drove were not “designed or used to transport more than 8 passengers” under TCA § 306(c). We are simply not persuaded by EMT’s assertions that we must ignore the subsequent redesign and conversion of a vehicle by a subsequent manufacturer and that such comprehensive changes made by a subsequent manufacturer are covered by the concept of “use.”

III. CONCLUSION

We affirm the judgment of the district court that EMT is liable to LaCurtis for overtime pay.

      . The Honorable Audrey G. Fleissig, United States District Judge for the Eastern District of Missouri.

      . It is clear from the record and oral argument that the parties do not agree as to (1) which EMT vans are at issue in this consolidated putative class and collective action and (2) how those vans were configured when operated by EMT employees. LaCurtis maintains all of the paralift vans at issue were configured to seat only fewer than eight total passengers. EMT asserts that at least some of the paralift vans operated by its employees had fold-down seats that allowed them to seat nine or more passengers. With respect to La-Curtis only, the district court determined summary judgment on liability was appropriate despite the disagreement because EMT admitted "the vast and substantial majority of [LaCurtis's] time on a weekly basis has been spent operating paralift vans that are configured similarly to those depicted in [the record photographs described above], which do not have enough fold-down seats to allow for seating of more than eight persons." EMT has not directly challenged that conclusion on appeal, so we accept it as undisputed for the purpose of evaluating summary judgment for LaCurtis only. We express no opinion as to (1) how the vans operated by other EMT employees were configured, (2) whether claims related to other employees are suitable for summary judgment, or (3) whether EMT is liable to pay overtime to any employee other than LaCurtis. We also express no opinion as to any issues related to class- or collective-action certification.

      . In defining the phrase "designated seating position,” § 571.3(b)(1) provides, in part, "For the sole purpose of determining the classification of any vehicle sold or introduced into interstate commerce for purposes that include carrying students to and from school or related events, any location in such vehicle intended for securement of an occupied wheelchair during vehicle operation shall be regarded as four designated seating positions.”

      . On February 20, 2017, the drivers moved for leave to file a sur reply in this case. That motion is granted. The drivers' sur reply is deemed filed as of the date of their motion, and the Court has considered it.

      . The drivers credibly contend EMT has abandoned this issue. See Etheridge v. United States, 241 F.3d 619, 622 (8th Cir. 2001) ("Claims not argued in the briefs are deemed abandoned on appeal.”). Although EMT omitted this issue from its "Statement of the Issues” and scarcely mentioned it in its brief (and then only as purported support for its original-design argument), EMT's counsel was adamant at oral argument that EMT had not abandoned this issue.

      . The drivers concede more modest changes to a vehicle, such as the removal of seats by a final user, would not necessarily meet the definition of "designed” under the TCA. We need not decide that fact-intensive question today.

      . To the extent EMT argues on appeal that a wheelchair placement should count as four passengers, we see no statutory basis for construing the term "passenger” that way for purposes of TCA § 306(c). See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778.


author: MURPHY, Circuit Judge.

text:
    Andrea L. DAMMANN; May K. Yang, individually and on behalf of classes of similarly situated individuals, Plaintiffs-Appellants v. PROGRESSIVE DIRECT INSURANCE COMPANY, Defendant-Appellee
    No. 16-3591
    United States Court of Appeals, Eighth Circuit.
    Submitted: March 8, 2017
    Filed: May 11, 2017

      Counsel who presented argument on behalf of the appellant was Robert K. Shel-quist, of Minneapolis, MN. The following attorneys also appeared on the appellant brief; Charles Slane, of Bloomington, MN., Eric N. Linsk, of Minneapolis, MN., Rachel Kitze Collins, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Richard D. Snyder, of Minneapolis, MN. The following attorneys also appeared on the appellee brief; Todd Alan Wind, of Minneapolis, MN., Anupama Devangi Sreekanth, of Minneapolis, MN.
    Before BENTON, BEAM, and MURPHY, Circuit Judges.
   MURPHY, Circuit Judge.

Plaintiffs Andrea Dammann and May Yang filed a class action in Minnesota state court alleging that Progressive Direct Insurance Company (Progressive) sold insurance policies with benefits below the statutory minimum required by Minnesota law. After Progressive removed the case to federal court, plaintiffs moved to remand. Plaintiffs argue that the requirements for removal under the Class Action Fairness Act (CAFA) were not met. The district court denied plaintiffs’ motion to remand and subsequently granted Progressive’s motion to dismiss for failure to state a claim. Plaintiffs appeal, and we affirm.

I.

Andrea Dammann and May Yang are both Minnesota residents who purchased automobile insurance policies from Progressive. Payments of certain deductibles were required by the policies in the event of covered losses: $100 for medical expense payments and $200 for economic loss payments. Both policies provided only the minimum coverage required by Minnesota law: $20,000 for medical expenses, and $20,000 for economic losses.

Dammann and Yang both suffered covered losses and incurred more • than $20,100 in medical expenses as a result. Because their policies included the $100 deductible for medical expense payments and a maximum coverage of $20,000, each plaintiff received a payment of just $19,900 from Progressive. Both filed suit in Minnesota state court alleging that Progressive’s practice of selling policies with deductibles which reduced benefit payments below $20,000 for medical expenses and for economic losses violated Minnesota law. Plaintiffs sought to represent a class of all similarly situated individuals.

Progressive timely removed the case to federal court. Plaintiffs then moved to remand to state court on the ground that CAFA’s jurisdictional requirements were not met because the amount in controversy did not exceed $5,000,000. After the district court denied the motion to remand, Progressive moved to dismiss the case under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion to dismiss, and plaintiffs appeal.

II.

Plaintiffs first argue that the district court should have remanded the case to state court because it lacked jurisdiction. We review de novo a district court decision that subject matter jurisdiction exists under CAFA. See Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009). If the district court’s jurisdictional decision rests on findings of fact, we review those factual determinations for clear error. See Scottsdale Ins. Co. v. Universal Crop Prot. All., LLC, 620 F.3d 926, 930 (8th Cir. 2010).

Under CAFA, federal courts have original jurisdiction over class actions “where, among other things, 1) there is minimal diversity; 2) the proposed class contains at least 100 members; and 3) the amount in controversy is at least $5 million in the aggregate.” Raskas v. Johnson & Johnson, 719 F.3d 884, 886 (8th Cir. 2013). The party seeking removal under CAFA bears the burden of establishing these jurisdictional requirements by a preponderance of the evidence. See id. at 887.

The plaintiffs argue that the district court erred when it determined that the amount in controversy here exceeds $5,000,000. Specifically, the plaintiffs argue that because “the plaintiff is the master of the complaint,” Bell, 557 F.3d at 956, the district court should have restricted its analysis of the amount in controversy to what could be recovered by the class of individuals identified in the complaint— individuals who had actually made claims for covered losses and were paid less than the statutory minimum. According to Progressive, some six hundred individuals fall within this class. When the district court calculated the amount in controversy, however, it relied on premiums collected on all Progressive policies which included the challenged deductibles, regardless of whether the policyholders had made claims which led to application of the deductibles.

As the district court noted, the facts here are similar to those in Raskas, 719 F.3d at 886. There, a group of plaintiffs filed a lawsuit in Missouri state court alleging that various manufacturers of medications had “conspired ... to deceive customers into throwing away medications after their expiration dates, knowing that the medications were safe and effective beyond the expiration date.” Id. The defendants sought to remove to federal court based on their sales revenue in Missouri during the class period. Id. Plaintiffs sought to remand on the ground that “these sales figures were insufficient to satisfy the amount in controversy requirement, as Plaintiffs are only seeking to recover damages for medications discarded and replaced.” Id. They argued that defendants’ evidence in support of the amount in controversy was overinclusive because it encompassed more than just the sales attributable to the challenged practice. Id. at 887. We rejected the plaintiffs’ overinclusiveness argument, however, for “when determining the amount in controversy, the question ‘is not whether the damages are greater than the requisite amount, but whether a fact finder might legally conclude that they are.’ ” Id. (quoting Bell, 557 F.3d at 959).

As in Raskas, the plaintiffs argue here that the evidence provided by Progressive to satisfy CAFA’s amount in controversy requirement is overinclusive because it includes all premiums collected on policies with the challenged deductibles, not just the premiums collected from members of the narrowly defined class. The district court correctly concluded that this case is like Raskas and Progressive carried its burden of establishing by a preponderance of the evidence that the amount in controversy exceeded CAFA’s jurisdictional minimum.

After the party seeking to remove has shown CAFA’s jurisdictional minimum by a preponderance of the evidence, “remand is only appropriate if the plaintiff can establish to a legal certainty that the claim is for less than the requisite amount.” Bell, 557 F.3d at 956. As we have pointed out, “[e]ven if it is highly improbable that the Plaintiffs will recover the amounts Defendants have put into controversy, this does not meet the legally impossible standard.” Raskas, 719 F.3d at 888. We conclude that the plaintiffs here have failed to show that it is legally impossible for them to recover more than $5,000,000. While they put Progressive’s sales practices at issue and seek a refund of their premium payments, they have not offered evidence to establish the amount they collectively paid in premiums. Without such information, we cannot determine whether it would be legally impossible for them to recover $5,000,000. We therefore conclude that the district court properly denied the motion for remand.

III.

The plaintiffs also argue that the district court erred when it granted Progressive’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). We review a district court order granting a motion to dismiss de novo and “acceptf] as true all facts alleged in the complaint.” Trooien v. Mansour, 608 F.3d 1020, 1026 (8th Cir. 2010). A defendant’s “motion to dismiss should be granted if ‘it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief.’ ” Id. (quoting Knapp v. Hanson, 183 F.3d 786, 788 (8th Cir. 1999)).

The district court granted Progressive’s motion to dismiss on the ground that the deductible practice challenged by the plaintiffs did not violate Minnesota’s No Fault Act. Since the parties agree that there are no disputes about the facts in this case, the only remaining question is whether the district court properly interpreted the Minnesota No Fault Act.

The Minnesota No Fault Act provides as follows:

(a) Basic economic loss benefits shall provide reimbursement for all loss suffered through injury arising out of the maintenance or use of a motor vehicle, subject to any applicable deductibles, exclusions, disqualifications, and other conditions, and shall provide a minimum of $40,000 for loss arising out of the injury of any one person, consisting of:
(1) $20,000 for medical expense loss arising out of injury to any one person; and
(2) a total of $20,000 for income loss, replacement sendees loss, funeral expense loss, survivor’s economic loss, and survivor’s replacement services loss arising out of the injury to any one person.

Minn. Stat. § 65B.44, subd. 1.

The parties disagree about whether the statute permits policies that provide less than $40,000 after application of any deductibles. Because the Minnesota Supreme Court has not previously answered this question, “we must attempt to predict how [it] would resolve the issue.” Progressive N. Ins. Co. v. McDonough, 608 F.3d 388, 390 (8th Cir. 2010). Under Minnesota law, “[t]he object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.” Minn. Stat. § 645.16. Minnesota courts “determine legislative intent primarily from the language of the statute itself.” Brayton v. Pawlenty, 781 N.W.2d 357, 363 (Minn. 2010) (internal quotation marks omitted).

Plaintiffs and Progressive each argue that the statute’s plain text unambiguously supports their side’s position. The text is not so clear, however. It could be understood to mean that the basic economic loss benefits of at least $40,000 are subject to deductibles which could reduce coverage below that basic amount. As plaintiffs argue, however, it could also be read to set out two independent requirements, meaning that the “subject to ... deductibles” clause would not modify the minimum coverage amounts. Since the text is ambiguous, we look at other indications of the legislature’s intent. See Marks v. Comm’r of Revenue, 875 N.W.2d 321, 324 (Minn. 2016).

Although this case presents a matter of first impression in our court, the district court that previously ruled on the issue determined that Minnesota’s No Fault Act permits deductibles which could reduce coverage below its listed minimum amounts. Aarvig v. Liberty Mut. Fire Ins. Co., 287 F.Supp.2d 1000, 1003-05 (D. Minn. 2003). The Minnesota legislature has amended § 65B.44 three times since Aar-vig was decided, but it has not changed the statute to undermine that case’s interpretation of the law. We assume that the legislature has acted with full knowledge of these developments. See Comm’r of Revenue v. Dahmes Stainless, Inc., 884 N.W.2d 648, 656 (Minn. 2016). We may therefore assume legislative approval of Aarvig’s reading of the No Fault Act.

We thus agree with the Aarvig court that § 65B.44 allows insurers to offer policies with deductibles which reduce coverage below $20,000 for medical expenses and $20,000 for economic loss. The district court properly dismissed plaintiffs’ claim;

IV.

For these reasons we affirm the district court.

      . The Honorable Michael J. Davis, United States District Judge for the District of Minnesota, adopting the reports and recommenda-lions of the Honorable Franklin L. Noel, United States Magistrate Judge for the District of Minnesota.