standards act they're essentially two reasons one substantive and one procedural st the district court ignored the plain language of the motor carrier exemption engine as act which when read together compel conclusion that she was not exempt from the overtime requirements of the l s a nd the process by which the district court resolve the issues starting with how it was raised to its consideration to how it was ultimately resolved so well short of what the rules and the law require and it deprives my client of important procedural safeguards the central and in our view dispositive issue in this case is about power specifically who has the power to regulate the qualifications and maximum hours of service for employees like ms white in the private prison or transportation industry the reason is that the motor carrier exemption excuses those excuses employers from paying overtime to workers for whom the secretary of transportation has the power to regulate the qualifications or maximum hours of service motor carrier exemption in this case we know that in you're going to argue that that's unfair but my question is if you were we were going to back just a packet that achille to allow you to present something is there anything for you to present or is there not any evidence anyway that the the that the officer was not doing the security function your honor i mean the there was a motion to stay for a while pretty early on pending resolution of the well be motion and the way the way we think we win is that this is a pure question of law at least in so far as the way the statutes to work and they work together so we didn't we didn't engage in a bunch of discovery had i known for example that the district court was considering in our nd or a summary judgment against me i would have filed a rule five thousand and sixty motion and requested discovery targeted to the issues in in recommendation agreed with me and said that that was inappropriate to do on the twelve b six stage and she recommended denying the twelve the six motion on that and other grounds so there i  technically won that issue with the district court she later though characterized that ruling is merely academic and then went on to say that my clients were exempt is a matter of law because the essentially the department of transportation or the that you did if you had the chance you might have some evidence if you know that you needed evidence and this is happening in other cases i've handled where a defendant attaches asking what's what what is the evidence that he would come up with suitable to send it back or you know it's no harm no foul because you don't have any evidence anyway or is it we send it back and gave you  documentary evidence for example cargo and passenger manifest records relating to the number of interstate trips those are all the types of things that we would request in the event this case got sent back but to my point  to the larger point that we raised in our own dispositive emotion i think when you read jenna's act and you compare it to the motor carrier exemption there is no way to conclude that the secretary of transportation has the authority to regulate people like my client and that means she's not exempt the language the statutory language in the motor carrier exemption says those workers only those workers for whom the secretary of transportation can regulate the qualifications and maximum hours of service only those workers are exempt here you have subsequent legislative action in two thousand and remember the motor carrier act was one of the original two  where congress says i want this particular industry shall be regulated by the attorney general and the department of justice it couldn't be more clear the section that requires the attorney general to promulgate regulations regulating this industry is title federal regulation of the private prison or transportation industry i think when you read that language you can't help but conclude that regulations regardless of whether or not they actually would apply in the absence of going into that so it's essentially the the attorney general saying i have concluded that these regulations sufficiently protect the public  to register with the d o t and to comply with their regulations but that doesn't mean that federal law that they're regulated by virtue of the motor carrier act they're regulated by virtue of state law the other issue is with the regulations judge they say in no uncertain terms that none of the regulations can be used as a defense in any civil action and the way i understand the argument that's been raised by my colleagues is that by regulation the attorney general has directed workers in the private prison or transportation industry to comply with regulations by secretary of transportation and that according to them means they're exempt but if you read the other rest of the regulations they say you cannot rely on any regulation that i promulgated this is the attorney general is regulation as a defense in any civil action so i i don't see how that they can come to court and argue in this case that this exemption by reference theory is going to carry the day the other issue is you honor the regulatory material plainly says when when congress when the department of trance when the partment of justice was issuing these regulations it says we're issuing these regulations to address issues that have arisen in a previously unregulated industry and they say it on multiple occasions and so to your point i don't think and i think the department of justice acknowledges in the rule making process that these entities were not regulated prior to the next when of jenna's act and you know if the end of the day the merits argument what we said at the beginning comes down to power and it matters it matters for the purposes of the exemption who regulates workers in the private prisoner transportation it's clearly the attorney general and not the them not apply it just says that these certain rules will be there to protect the ag will have already over them but if if the other rules already apply it adds a layer of it so it's not a conflict it's just start says the attorney general shall promulgated regulations related to qualifications and maximum hours of service reporters like miss white but they may limit his power to do so by referring to the regulations promulgated by the secretary of transportation he could absolutely depart from those but the statute says they are the floor for example if the secretary of transportation says a worker in the private prison or transportation industry can only be on duty for twelve hours thats it the the b a g can't make that worker can't allow that worker to be on duty for more than twelve hours but he could certainly say he could certainly say that raise an affirmative defense on a rule twelve b most except in extremely limited circumstances not present here the standard under rule twelve is pretty clear everyone has  assume that the facts that i played in the complain are true for purposes of the motion and we plainly pled that my client was not exempt there is also no facts and they are related at all to the motor carrier exemption there is no allegation that she was employed by a motor carrier that would be required for the court to conclude on the basis of the pleadings that my client was ignorant and in response what us corrections has said in their briefing is  because we didn't plead we tacitly admitted by implication that my clients are exempt think about that for a minute if that's the standard i'd have to  predict with unerring accuracy every defense it's going to be asserted against my client and plead facts conclusively negating them but that's never been the law and i don't think it ever will be you simply don't have to plead  appeared to think and us corrections argued again that i had the burden to conclusively negate the defense but even if you consider the rule twelve the motion is one for s the standard has always been or at least for a very long time that the party moving for summary on an affirmative defense has to come forward with evidence conclusively established thing that defense and enough evidence to establish it that would what is what did the court decide in when you say we're supposed to permit what does that mean to you yes your honor the court that this report the district court granted clearly that the motion to dismiss under twelve b six i mean they denied the partial motion for summary judgment but many couldn't granted twelve b six and rely on an affirmative defense in documents outside the record so that's not that can't be what happened can it so any said you think six is not preserved for appeal if not in front if not before you at this point if you wish open by saying that the district court was correct in its decision on the substantive question on the merits question of whether the motor happens frequently with respect this a statute of limitations to consider outside documents but then say you're doing well peace instead of converting isn't that an error and i don't know how you say it's not well i'd love to help so we're all twelve b six motions are allowed to consider matters number one within the pleadings in addition to that matters that are susceptible to you don't notice things like a citation and it's a believe it's important to look at  exhibit that are attached to the motion to dismiss one is a courtesy copy of the federal register a citation i could have provided without providing the exhibit in its entirety it was just a courtesy to the lower court the nd is a printout from a government website and susceptible to judicial notice but we actually make two arguments in our motion to dismiss and so one is that miss white did not plead she did not allege a sufficient quantum of facts this substantiate your claim that she was in fact covered a covered employe define who is a covered employee and it explains that covered employees for the purposes of questions about who the motor carrier contacts include those individuals who number one do not operate vehicles that weigh more than ten thousand and one pound and number two individuals who operate vehicles that are fall below that weight requirement but also fall below the passenger capacity requirement in who crossed state lines number three and otherwise who operated vehicles that were below ten thousand and one pound those four facts alone do not allege a violation of the f s a particularly looking at n c l requiring a fair reading point there is authority in this circuit in a cross the country that judge that federal website that are not susceptible to dispute and there were no factual disputes below about about this can be considered but even one the factual quantum of allegations and in that case were more substantial is that the plaintiffs in that case there were not only operating vehicles that weighed less than five thousand and one dollars pounds but also that they this is a question the question presented to the court is a pure question of law but again judge all right what i would say is that the question of whether a motion to dismiss should or should not have been granted is mention the only mention to the twelve the six standard in the arguments that arose this around that including whether the court could look at evidence from the government web site or confirm from the federal register is that preceded this one but why they were not addressed in the principle that the thrust of the argument they've advanced the answer to that you know is that again arguments that are raised for the st time on evidence in the records record that when seventy eight to eighteen shows that plaintiffs in a white operated vehicles that were capable of carrying greater than eight passengers that she crossed a line and that she can  do believe that considering a government a government website or a citation to the federal register is inappropriate you can decide that particular point on letterman grounds where the court said whether it was supposed to be under twelve b six or under r dollars it's harmless error if there are truly no facts at issue below and here and i say my time is running is coming to a close here there were no factual questions below these are not arguments that the plaintiff raised on summary judgment or otherwise i represent se personally saying which i will refer to in short form as as well as c p l is a professional employer organization that provides certain administrative services including payroll and benefits administration to its clients as he provided these court district court's ruling i just want to talk a little bit about that organization as a professional employer organization s a p o is somewhat differently situated than your typical stepping company because it does not have any responsibilities for hiring interviewing staffing managing you know reviewing about you waiting or terminating its clients employees more often than not as appeal does not have meet any direct communications with its clients employees to he review the appeal that's now a promotion for partial summary judgment because she did not also challenge the district court's order granting the motion to dismiss under rule twelve b six however to the extent the court finds that there is jurisdiction to address either the a plurality of the motor carrier act exemption or and the denial of plaintiff's measure for partial summary judgment yes corrections as also thoroughly briefed and argued that issue and and  paragraph sixteen i think those are those two paragraphs are sufficient paragraphs to to you know demonstrator show facts sufficient to show that the m c a exemption thirteen states that paragraph thirteen states that defendant contracts with local interest defendants part may contract with local and state governments to perform to perform in may transportation services between prisoners and other facilities paragraph fourteen states that defendants employed plaintiff as an extradition officer and then again paragraph sixteen states that plaintiff's job duties included transporting inmates between prisons and other facilities in passenger vans when less than ten thousand and one pounds and i see i'm out of time already there were no objections the matter should judge recommended that the twelve b six motion be denied and she said in her report and recommendation that she would not consider any extended materials in considering the world will be six motion there were no objections none at all from u s c or s p o i and so they can't assign error under rule seventy two a to that holding by the magistrate judge which was adopted by the district judge so i know they want you to look at it but that issue is plainly not before the court under the rules nd and i want to briefly touch on the jurisdictional issue because i perhaps i'm just being dense but i don't quite understand it  we plainly appealed the dismissal of the lawsuit with prejudice that is undisputable i think there is a there is a legitimate disagreement about the vehicle that the court used to dismiss the lawsuit mr u s c and his in his colleagues argue that it was under rule twelve b i think it worked more like a suicide bond a summary judgment but we appealed the order dismissing the case with prejudice this court has jurisdiction in terms of the partial summary judgment motion that i filed i got the sense early on that the case might wind up being dismissed and what i felt would be improperly so and i wanted to give this court the opportunity to address the statutory interpretation so we chose we expressly chose to file this motion on the narrow issue that was contained therein and this court's held over and over and over again that a party can it appeal the denial of a dispositive motion after an adverse ruling on the merits of the case even though it could take an interlocutory appeal or from it except under like twelve money to be or by some writ of mandamus or something like that so that's why we did that in terms of the exemption i keep hearing over and over again that i haven't done  plaintiff didn't do her job in pleading the exemption were not required to know plaintiff is required to plead any facts to negate an affirmative defense and in terms of the coverage issue we play it and maybe we're talking past each other but traditionally when you talk about coverage of the fair labor standards act you're talking about enterprise coverage or individual coverage we played facts related d to both of those issues which the court had to assume to be true for purposes of rule twelve b i think i think the confusion stems from this small vehicle exception that the court talked about and carly versus chris pumping in quick cases like that but that's an exception to the exemption you don't even get to talking about it until you get passed until the defendant satisfies its burden on the exemption so there was nothing i needed to do in terms of the exemption in my pleadings after all i mean think about this your honor they could easily answer not include the affirmative defense in their answer and then it's waived and the case proceeds to your allegations in the employed by a motor carrier or pride of motor carrier that exemption that particular element can't be found anywhere in my pleadings i mean there is no allegation that she was employed by a motor carrier or private motor carrier