Leon Belaustegui v. Ilwu ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEON BELAUSTEGUI, No. 21-55434
Plaintiff-Appellant,
D.C. No.
v. 2:19-cv-09955-
FLA-AFM
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION; PACIFIC
MARITIME ASSOCIATION, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Fernando L. Aenlle-Rocha, District Judge, Presiding
Argued and Submitted February 15, 2022
Pasadena, California
Filed June 7, 2022
Before: Daniel A. Bress and Patrick J. Bumatay, Circuit
Judges, and Roger T. Benitez, * District Judge.
Opinion by Judge Bress
*
The Honorable Roger T. Benitez, United States District Judge for
the Southern District of California, sitting by designation.
2 BELAUSTEGUI V. ILWU
SUMMARY **
Employment Discrimination
The panel vacated the district court’s summary judgment
in favor of defendants in an action brought under the
Uniformed Services Employment and Reemployment
Rights Act by a longshore worker who returned to
employment following service in the U.S. Air Force, and
remanded.
The plaintiff sought promotion to the position he claimed
he likely would have attained had he not served in the
military.
The panel held that certain hours credits and elevation in
longshore worker status, as set forth in a collective
bargaining agreement, qualified as “benefits of
employment” under USERRA. The panel further held that,
under the “escalator principle,” the plaintiff could pursue a
USERRA discrimination claim based on the defendants’
alleged failure to reinstate him to the “Class B” position he
was reasonably certain to have attained absent his military
service.
The panel left to the district court to decide in the first
instance whether a five-year statutory limitation based on the
duration of the plaintiff’s military service applied.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BELAUSTEGUI V. ILWU 3
COUNSEL
Derek T. Anderson (argued), Derek T. Anderson APC, San
Diego, California, for Plaintiff-Appellant.
Thomas M. Peterson (argued), Morgan Lewis & Bockius
LLP, San Francisco, California; Clifford D. Sethness,
Morgan Lewis & Bockius LLP, Los Angeles, California; for
Defendant-Appellee Pacific Maritime Association.
Lindsay R. Nicholas, Leonard Carder LLP, San Francisco,
California, for Defendant-Appellee International Longshore
and Warehouse Union.
OPINION
BRESS, Circuit Judge:
The plaintiff in this case left his job as an entry-level
longshore worker to enlist in the U.S. Air Force. After nine
years of active duty, he returned to work as a longshoreman
and requested a promotion to the position he claims he likely
would have attained had he not served in the military. When
his request was denied, he filed suit alleging discrimination
under the Uniformed Services Employment and
Reemployment Rights Act (USERRA), 38 U.S.C. § 4301, et
seq., a federal law that, inter alia, protects servicemembers
in their reemployment following service in the armed forces.
We are principally asked to decide whether the district
court erred in concluding that the plaintiff did not
demonstrate the denial of a benefit that USERRA protects,
and, specifically, whether certain hours credits and elevation
in longshore worker status, as set forth in a collective
4 BELAUSTEGUI V. ILWU
bargaining agreement, qualify as “benefits of employment”
under USERRA. We conclude that they do, and further hold
that the plaintiff may pursue a USERRA discrimination
claim based on the defendants’ alleged failure to reinstate
him to the position he was reasonably certain to have
attained absent his military service.
The defendants argue that the plaintiff is still ineligible
for USERRA’s protections because his period of military
service exceeded a five-year statutory limitation, to which
they claim no exception applies. We leave that issue to the
district court in the first instance. We vacate the district
court’s grant of summary judgment to the defendants and
remand for proceedings consistent with this opinion.
I
The plaintiff, Leon Belaustegui, began working as a
longshoreman at Port Hueneme, California in February
2000. His work at Port Hueneme was covered by a
collective bargaining agreement (CBA) negotiated by the
defendants, who are (1) the International Longshore and
Warehouse Union (ILWU), the collective bargaining
representative for all longshore workers in California,
Oregon, and Washington; and (2) the Pacific Maritime
Association (PMA), the collective bargaining representative
for about fifty member companies operating out of ports in
all three states.
The CBA created three primary classifications of
longshore workers. “Casual” is the lowest, “Class B” the
next-highest, and “Class A” the highest. Entry-level Casual
workers receive only the work that is left after Class A and
Class B workers have been assigned to shifts. Promotion to
Class B status affords a longshore worker more job
BELAUSTEGUI V. ILWU 5
opportunities, as well as vacation pay, holiday pay, and other
benefits that Casual workers do not receive.
Casual workers advance to Class B status when the
number of existing Class B workers is insufficient to fill the
jobs at the ports. The order of promotion is determined by
accumulated hours of paid work as a Casual worker, not by
the number of days worked or years of experience. When a
new Class B worker is needed, the Casual worker with the
most accumulated hours advances to Class B status first.
Belaustegui spent the first few years of his longshoreman
career as a Casual worker. In 2004, he voluntarily enlisted
in the U.S. Air Force. Belaustegui initially enlisted for four
years of active duty, to conclude in March 2008. But in
November 2007, before his initial term of enlistment
expired, he reenlisted for an additional four years and nine
months. Whether this reenlistment was voluntary, or
whether Belaustegui was ordered to reenlist by his superior
officers, is disputed.
In October 2008, Belaustegui was deployed to Kuwait,
where he served until about April 2009. In August 2012,
Belaustegui reenlisted in the Air Force for an additional four
years. But in April 2013, he requested and received early
separation from the military. He was honorably discharged
after just over nine years of continuous active duty.
Belaustegui returned to Port Hueneme that same month
and requested reemployment and benefits as a longshore
worker. The CBA contains provisions that implement
USERRA’s protections for servicemembers. Relevant here,
the CBA provides that eligible longshore workers who leave
to serve in the military are entitled to “reinstatement to the
position, along with applicable benefits, [that] an employee
would have held had s/he not taken Uniformed Services
6 BELAUSTEGUI V. ILWU
Leave.” “Reinstatement includes seniority and seniority-
based benefits . . . that would have been attained had the
employee remained continuously employed” instead of
leaving for the military.
Because promotion to Class B status is based on hours
worked, the CBA also sets out methods for attributing hours
to servicemembers on military leave. Under the “rotational
method,” a servicemember is credited with eight hours of
paid work if his or her dispatch number would have been
called on a given day (Casual workers are called for
available work sequentially based on their dispatch
numbers). But if there are insufficient records to determine
how many times the servicemember’s number would have
been called, the CBA employs the “peer method.” Under the
peer method, the Port Hueneme Casual worker with the most
hours worked in a given payroll quarter is designated as the
“peer,” and the servicemember is credited with eight hours
worked each time the peer worked.
When Belaustegui returned to Port Hueneme, he
requested hours credit and a corresponding promotion to
Class B status, which he claimed he would have received had
he not enlisted in the Air Force. The local labor committee
promptly reemployed Belaustegui but referred his request
for hours credit to the coast-wide labor committee. More
than two and a half years later, the coast-wide labor
committee denied Belaustegui’s request under the CBA’s
USERRA policy. The coast-wide labor committee
concluded that Belaustegui was ineligible for the requested
benefits because his period of military service exceeded five
years and he did not fit any exceptions. 1 As we discuss
1
Contrary to Belaustegui’s assertion, the coast-wide labor
committee did not first agree he was entitled to hours credit and then
BELAUSTEGUI V. ILWU 7
further below, providing protections only to servicemembers
who were away in the military for no more than five years
(subject to exceptions) is based on corresponding provisions
in USERRA.
Belaustegui filed a union complaint asserting that he had
been wrongfully denied Class B status and hours credit. He
requested a hearing and an opportunity to present evidence
establishing that the five-year limit did not apply to him.
Specifically, Belaustegui maintained that he qualified for an
exception to the five-year rule because he was allegedly
ordered to reenlist in November 2007 and had not done so
voluntarily. A PMA representative questioned whether
Belaustegui had any documents showing that his November
2007 reenlistment was involuntary. Belaustegui explained
that he had been orally ordered to reenlist and that he did not
have additional documentation.
In November 2019, having received no further decision
from the coast-wide labor committee, Belaustegui filed a
complaint in federal court asserting a single claim of
discrimination under 38 U.S.C. § 4311 against the PMA and
ILWU. Belaustegui alleged that defendants had violated
USERRA by denying him hours credit and Class B
registration for time missed due to his military service.
The district court granted summary judgment to
defendants, although it did so on purely legal grounds,
concluding that Belaustegui had not alleged the denial of any
“benefit of employment” under USERRA and that he could
not invoke § 4311 to challenge defendants’ decision not to
reverse course. Rather, the document Belaustegui relies on is merely the
referral of his dispute to the coast-wide labor committee, not a decision
by that committee.
8 BELAUSTEGUI V. ILWU
reemploy him as a Class B worker. The district court did not
reach whether Belaustegui was ineligible for USERRA
benefits based on his length of service exceeding five years.
Belaustegui timely appealed. Our review is de novo.
KST Data, Inc. v. DXC Tech. Co., 980 F.3d 709, 713 (9th
Cir. 2020).
II
USERRA was enacted in 1994 “to encourage noncareer
service in the uniformed services by eliminating or
minimizing the disadvantages to civilian careers and
employment which can result from such service.” 38 U.S.C.
§ 4301(a)(1). USERRA is a successor statute to prior federal
laws that also sought to protect the rights of servicemembers
returning to civilian employment. See Huhmann v. Fed.
Express Corp., 874 F.3d 1102, 1108 n.4 (9th Cir. 2017)
(discussing predecessor statutes). Through USERRA,
Congress endeavored to “clarify, simplify, and, where
necessary, strengthen the existing veterans’ employment and
reemployment rights provisions.” Leisek v. Brightwood
Corp., 278 F.3d 895, 898 (9th Cir. 2002) (quotations
omitted). As a law advancing the interests of veterans,
USERRA is “liberally construed for the benefit of those who
left private life to serve their country in its hour of great
need.” Ziober v. BLB Res., Inc., 839 F.3d 814, 819 (9th Cir.
2016) (quoting Fishgold v. Sullivan Drydock & Repair
Corp., 328 U.S. 275, 285 (1946)).
USERRA requires “the prompt reemployment” of
eligible servicemembers upon the completion of their
military service, and prohibits “discrimination against
persons because of their service in the uniformed services.”
38 U.S.C. § 4301(a)(2)–(3). USERRA also entitles eligible
servicemembers to “reemployment rights and benefits.” Id.BELAUSTEGUI V. ILWU 9
§ 4312(a). As relevant here, an eligible servicemember
whose period of service exceeded 90 days is entitled to
reemployment “in the position of employment in which the
person would have been employed if the continuous
employment of such person with the employer had not been
interrupted by such service, or a position of like seniority,
status and pay, the duties of which the person is qualified to
perform.” Id. § 4313(a)(2)(A). This position is known as
the “escalator position.” 20 C.F.R. § 1002.191. The idea
behind this “escalator principle” is “that a returning service
member not be removed from the progress (‘escalator’) of
his career trajectory.” Huhmann, 874 F.3d at 1105.
Implementing regulations employ a “reasonable
certainty” test to determine the escalator position: that
position is the one the returning servicemember “would have
attained with reasonable certainty if not for the absence due
to uniformed service.” 20 C.F.R. § 1002.191. In addition to
reemployment in the escalator position, the servicemember
is “entitled to the seniority and other rights and benefits
determined by seniority” that he or she would have attained
but for the period of military service. 38 U.S.C. § 4316(a).
USERRA limits its coverage to returning
servicemembers who meet several requirements. Relevant
here, a servicemember is eligible for USERRA benefits only
if “the cumulative length of the absence and of all previous
absences from a position of employment with that employer
by reason of service in the uniformed services does not
exceed five years.” Id. § 4312(a)(2). But there are several
exceptions to the five-year limit. In particular, there is an
exception for servicemembers “ordered to or retained on
active duty (other than for training) under any provision of
law because of a war or national emergency declared by the
10 BELAUSTEGUI V. ILWU
President or Congress, as determined by the Secretary
concerned.” Id. § 4312(c)(4)(B).
Belaustegui asserts a claim under 38 U.S.C. § 4311. This
provision states that a servicemember “shall not be denied
initial employment, reemployment, retention in
employment, promotion, or any benefit of employment by
an employer on the basis of that membership.” Id. § 4311(a).
USERRA defines a “benefit of employment” as “the terms,
conditions, or privileges of employment, including any
advantage, profit, privilege, gain, status, account, or interest
(including wages or salary for work performed) that accrues
by reason of an employment contract or agreement or an
employer policy, plan, or practice.” Id. § 4303(2).
We apply a two-part test to § 4311 discrimination claims.
An employee “first has the burden of showing, by a
preponderance of the evidence, that his or her protected
status was a substantial or motivating factor in the adverse
employment action; the employer may then avoid liability
only by showing, as an affirmative defense, that the
employer would have taken the same action without regard
to the employee’s protected status.” Huhmann, 874 F.3d
at 1105 (quoting Wallace v. City of San Diego, 479 F.3d 616,
624 (9th Cir. 2007)).
Our decision in Huhmann is instructive for showing how
USERRA’s various protections work together in a § 4311
discrimination claim, and it also sets up our evaluation of
Belaustegui’s claim below. The plaintiff in Huhmann was a
pilot who worked at Federal Express. Id. at 1104. He flew
a narrow-body aircraft and was later selected by FedEx to
train on a wide-body aircraft, which (if he successfully
completed the training program) would entitle him to a
higher pay scale. Id. Before the plaintiff could begin this
training, however, he was deployed to active military
BELAUSTEGUI V. ILWU 11
service. Id. While he was away, FedEx offered a signing
bonus to its crewmembers if their union ratified a proposed
CBA. Id. at 1105. The pilots on the narrow-body plane
would receive a $7,400 bonus, but those who flew the wide-
body would receive a $17,700 bonus. Id. FedEx specified
that pilots who were on military leave when the CBA was
signed would be covered, such that “military leave would be
deemed equivalent to active pay status on FedEx’s payroll”
for purposes of receiving the bonus. Id.
When Huhmann returned from military service, he was
paid only the $7,400 bonus given to pilots of narrow-body
aircraft. Id. Huhmann filed suit under USERRA, arguing
that he was discriminated against because he should have
received the $17,700 bonus due to pilots of wide-body
aircraft, on the theory that if he had remained with FedEx,
he would have successfully completed the wide-body
training program and become a wide-body pilot. Id. The
district court granted summary judgment to Huhmann, and
we affirmed. Id. at 1105–06.
As relevant here, we rejected FedEx’s argument that “the
escalator principle and reasonable certainty tests are ‘not
applicable to discrimination claims’ under Section 4311(a).”
Id. at 1108. Although §§ 4312 and 4313 concern
reemployment most directly, no statutory language or other
authority “shows that the reasonable certainty test and
escalator principle may never be applicable to Section 4311
claims.” Id. Instead, “Section 4311 indicates that the
reasonable certainty test is entirely apt for the analysis of
certain claims brought under that statute, as the rights
guaranteed by Section 4311 include rights associated with
reemployment.” Id.
Applying this framework, we held that under the “plain
language of USERRA,” a bonus was a “benefit of
12 BELAUSTEGUI V. ILWU
employment”; that the district court properly applied the
reasonable certainty test and escalator principle; and that it
was reasonably certain, based on Huhmann’s pre- and post-
military performance as a FedEx pilot, that he would have
attained wide-body pilot status had he stayed at FedEx
instead of leaving for the military. Id. at 1109. Accordingly,
the plaintiff was entitled to the higher bonus under
USERRA. With these basic principles set forth, we now turn
to Belaustegui’s claim.
III
The district court concluded that Belaustegui’s
USERRA claim failed at the outset because he did not allege
the denial of a protected benefit or a violation of the escalator
principle. We conclude at Huhmann’s first step, however,
that Class B status and the CBA’s hours credit policy for
military service are both benefits of employment under
USERRA. We also hold that Belaustegui can maintain a
§ 4311 discrimination claim by asserting a violation of the
escalator principle. Although defendants argue that
Belaustegui is ineligible for USERRA protection because his
length of service exceeded five years, that issue involves
factual and legal questions that the district court has yet to
address, but which it may resolve on remand.
A
The district court first agreed with defendants that
Belaustegui’s USERRA claim did not even get out of the
gates because Belaustegui had not demonstrated the denial
of any “benefit of employment” under § 4311. The district
court focused its analysis on whether the hours credits
available to returning servicemembers constituted “benefits
of employment.” It determined that they did not, reasoning
that those credits are available just to servicemembers,
BELAUSTEGUI V. ILWU 13
whereas USERRA protects only employment benefits
provided to both military and non-military employees. This
analysis was mistaken.
How USERRA affects any given employer depends on
how the employer structures its workplace, including how it
determines who is promoted and when. Employers may thus
adopt USERRA policies that govern how USERRA’s
guarantees will be applied to their employees. See
Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 176 (2d Cir.
2011) (“Wachovia’s military leave policy . . . mirrors
USERRA’s statutory language.”); see also Huhmann,
874 F.3d at 1105, 1112 (explaining how FedEx extended its
bonus policy to servicemembers on leave).
In this case, the CBA’s USERRA policy reflects the
defendants’ attempt to implement the statute’s requirements,
including the escalator principle. The CBA’s policy states
that when a local labor committee “receives a request for
reinstatement or other benefits under USERRA, it shall first
determine whether the individual is entitled to benefits under
USERRA.” The policy specifically provides that eligible
longshore workers who leave to serve in the military are
entitled to “reinstatement to the position, along with
applicable benefits, [that] an employee would have held had
s/he not taken Uniformed Services Leave.” This is
determined by “calculating an appropriate hours credit,”
using either the “rotational” or “peer” methods discussed
above. Like the statute, the CBA’s USERRA policy also
limits eligibility to servicemembers whose cumulative
military leave does not exceed five years, “with certain
statutory exceptions, such as service required by a declared
war or national emergency.”
Belaustegui does not challenge the CBA’s USERRA
policy as non-compliant with USERRA, but argues that it
14 BELAUSTEGUI V. ILWU
was improperly applied as to him. He maintains that based
on the CBA’s hours credit calculation, he would have
attained Class B status and its attendant benefits, and further
maintains that the five-year service limit is no obstacle
because he was ordered to remain on active duty for more
than five years because of a war or national emergency.
What Belaustegui ultimately wants here is promotion to
Class B status, and that status is unquestionably a “benefit of
employment” under USERRA.
“As in all statutory interpretation, our inquiry begins
with the statutory text, and ends there as well if the text is
unambiguous.” Desire, LLC v. Manna Textiles, Inc.,
986 F.3d 1253, 1265 (9th Cir. 2021) (quotations and
citations omitted); see also Huhmann, 874 F.3d at 1109
(looking to the “plain language of USERRA”). A “benefit
of employment” is broadly defined to mean “the terms,
conditions, or privileges of employment, including any
advantage, profit, privilege, gain, status, account, or interest
. . . that accrues by reason of an employment contract or
agreement or employer policy, plan, or practice.” 38 U.S.C.
§ 4303(2).
Here, the plain language of § 4311(a) and § 4303(2)’s
expansive definition of “benefit of employment” confirm
that Class B status is a “benefit of employment.” And Class
B status is indisputably available to non-servicemembers, so
even if we were to accept defendants’ blanket argument that
a benefit must always be available to non-servicemembers
to be protected by USERRA, Belaustegui could (and does)
advance a § 4311 claim premised on the denial of Class B
status.
Hours, meanwhile, are simply the metric by which the
defendants determine longshore workers’ elevation to Class
B status. And in that sense, hours credit for servicemembers
BELAUSTEGUI V. ILWU 15
is just the CBA’s mechanism for determining § 4313’s
required escalator position for a given servicemember.
Indeed, as Belaustegui’s counsel explained at oral argument,
the hours credits have no other apparent significance for a
longshoreman other than for purposes of promotion from a
lower longshoreman status to a higher one.
But even the hours credits are properly regarded as a
“benefit of employment” under USERRA’s broad definition.
A “benefit of employment” includes, among other things,
“the terms, conditions, or privileges of employment,”
including any “advantage” or “gain” “that accrues by reason
of an employment contract or agreement.” 38 U.S.C.
§ 4303(2). The predominant purpose of the hours credit is
to measure seniority, in that those who work more hours are
eligible for promotion sooner. These credits easily qualify
as “advantages” or “gains.” And they arise from a CBA,
which qualifies as “an employment contract or agreement”
and sets “the terms, conditions, or privileges of
employment.”
Defendants have never suggested that the predominant
purpose of the hours credit policy is anything other than the
means by which defendants determine the escalator position.
Indeed, the CBA refers to the hours credit methodologies as
the means of “calculating an appropriate hours credit” to
ensure “appropriate seniority crediting.”
To the extent defendants suggest that some aspects of the
hours credit policy are generous to longshoremen, that does
not make it any less a “benefit of employment.” We rejected
a similar argument in Huhmann, where we explained:
[E]ven if the signing bonus were not a
seniority-based benefit, Section 4316 still
would not bar Huhmann’s claim. The terms
16 BELAUSTEGUI V. ILWU
of FedEx’s Bonus Letter itself credited time
served in the military towards the amendable
period, and declined to credit time on leave
for other purposes. Even assuming FedEx is
correct that under Section 4316 it could have
denied the signing bonus to pilots on military
leave during the amendable period, because
FedEx chose to extend such benefits as a right
of employment, it was bound by the
provisions of USERRA (such as Sections
4311, 4312, and 4313) not to reduce the
amount of this employment benefit on the
basis of the pilot’s absence from work on
account of military service.
874 F.3d at 1112.
In this context, it is thus no answer, as defendants argue,
that the hours credit is available only to servicemembers.
That premise is flawed because hours credits are part of a
collective bargaining agreement intended to implement
USERRA’s statutory requirements for reemployment.
Under defendants’ reasoning, when an employer adopts a
policy to implement USERRA’s guarantees, the policy’s
protections cannot be “benefits of employment” under
§ 4303(2) because they are available only to
servicemembers. That logic is circular.
For these reasons, the district court erred in relying on
Crews v. City of Mount Vernon, 567 F.3d 860 (7th Cir.
2009), and Gross v. PPG Industries, Inc., 636 F.3d 884 (7th
Cir. 2011). We have never adopted the Seventh Circuit’s
gloss on the statutory phrase “benefit of employment” in
these cases, and we do not do so here. Even so, these cases
BELAUSTEGUI V. ILWU 17
are distinguishable based on the nature of the employers’
policies that were at issue.
Crews involved a “preferential” scheduling policy that
the City of Mount Vernon, Illinois voluntarily instituted for
police officers who also served in the National Guard.
567 F.3d at 862–63. After the policy became unwieldy, the
City rescinded it. Id. The Seventh Circuit held that this did
not violate USERRA. Id. at 862. It acknowledged that
“[n]othing in the text of either § 4311(a) or § 4303(2) . . .
indicates that § 4311 covers only those benefits extended
generally to military and nonmilitary employees alike.” Id.
at 866. But it nonetheless held that “the better
interpretation” of “benefit of employment” is that it refers to
a benefit “provided to both military and nonmilitary
employees.” Id.
We question how the Seventh Circuit’s gloss on “benefit
of employment” is consistent with the statutory text.
Although we do not endorse this language in Crews, it also
must still be understood in context. The preferential
scheduling policy in Crews had no basis in USERRA’s
requirements. See Kathryn Piscitelli & Edward Still, The
USERRA Manual: Uniformed Services Employment and
Reemployment Rights § 7.8 (2021) (explaining that the
Crews decision is “best understood in the context of the
factual scenario before the court in Crews—an employer’s
withdrawal of its unilaterally adopted policy conferring
special scheduling benefits for servicemembers”). As the
Seventh Circuit explained, “the Department’s work
scheduling policy for Guard employees was strictly
voluntary, and Crews has not claimed that any contract or
other provision of law required the defendants to maintain
the policy.” 567 F.3d at 867 (emphasis added); see also id.
at 862 (“[N]othing in [USERRA] would have required the
18 BELAUSTEGUI V. ILWU
City to establish the preferences in the first place.”); id. at
867 (“The Department’s recent decision to revoke those
preferences and return to the ‘floor’ requirements, while
understandably disappointing to Crews, does not violate
USERRA.”).
Here, by contrast, the hours credit policy implements
USERRA’s directive that an employee be reemployed “in
the position of employment in which the person would have
been employed” but for the period of military service.
38 U.S.C. § 4313(a)(2)(A). Belaustegui argues with some
force that Crews’s interpretation of “benefit of employment”
was too narrow under USERRA’s plain text. We have no
occasion to endorse that reasoning in Crews, which the
Seventh Circuit in all events has thus far not extended to
benefits grounded in USERRA’s affirmative guarantees.
Crews is therefore distinguishable on its facts.
Gross is similarly distinguishable because it involved a
claimed benefit that was even further removed from
Belaustegui’s claims. In Gross, and in the aftermath of the
September 11th attacks, an employer granted employees on
military leave additional compensation in the form of
“differential pay,” which “exceed[ed] those benefits offered
to its other employees generally.” 636 F.3d at 886, 889. But
even then, Gross found “no need to rely on Crews’ ‘equal
benefits’ holding to see that Gross’s claim fails.” Id. at 891.
That was because the employee’s § 4311 claim did not
challenge the denial of the additional compensation, but
merely the method by which the compensation was
calculated. Id. at 890. And “Gross’s proposed calculation
was not guaranteed by the language of the [employer’s]
policy.” Id. at 891. Gross explained that, regardless of
whether a benefit of employment must be offered to non-
military employees, the plaintiff’s preferred method of
BELAUSTEGUI V. ILWU 19
calculating his additional compensation was not a benefit
provided to any employee. Id.
Crews and Gross do not suggest that when an employer
creates a USERRA policy to implement USERRA’s core
reemployment guarantee, that such a policy cannot confer
“benefits of employment” under USERRA. The policies at
issue in Crews and Gross bear no resemblance to the hours
credit policy in the CBA, which was based in USERRA’s
statutory guarantees and qualifies as a “benefit of
employment” under USERRA’s plain text. We therefore
hold that in challenging the denial of Class B status and
hours credits under the CBA, Belaustegui has demonstrated
that he was denied “benefits of employment” under
USERRA and may bring a § 4311 claim on that basis.
B
Belaustegui alternatively sought to invoke § 4311 to
claim a violation of the escalator principle. The district court
declined to resolve Belaustegui’s argument that, regardless
of whether the CBA’s hours credit policy was a “benefit of
employment,” he was entitled to reemployment as a Class B
worker under the escalator principle. The district court
instead concluded that a violation of USERRA’s escalator
requirement could be pleaded only under § 4316, and
Belaustegui had alleged only a violation of § 4311.
The district court erred in rejecting Belaustegui’s
escalator principle argument on this threshold ground. The
district court reasoned that the escalator principle was first
recognized as a requirement of one of USERRA’s precursor
statutes, then codified at 38 U.S.C. § 2021. The court
concluded that because § 4316 is the successor to former
§ 2021, to allege a violation of the escalator requirement
Belaustegui was required to plead a violation of § 4316.
20 BELAUSTEGUI V. ILWU
That reasoning is not correct. As we have explained,
USERRA’s escalator principle is also drawn from § 4313,
which gives eligible servicemembers a right to
reemployment “in the position of employment in which the
person would have been employed if the continuous
employment of such person with the employer had not been
interrupted” by their service. Id. § 4313(a)(2)(A); see also
20 C.F.R. § 1002.191. The rights in § 4313 are available to
servicemembers entitled to reemployment under § 4312.
And § 4311 can be used to vindicate an escalator principle
claim, as we held in Huhmann. 874 F.3d at 1108.
The district court’s conclusion otherwise conflicts with
Huhmann. There we treated the USERRA claim as a § 4311
claim and squarely rejected “FedEx’s argument that the
escalator principle and reasonable certainty tests are ‘not
applicable to discrimination claims’ under Section 4311(a).”
Id. at 1105, 1108. In particular, we explained that FedEx had
identified “no language in Section 4312 or Section 4313
which indicates that the reasonable certainty test and
escalator principle are available exclusively for analysis of
claims under those statutes.” Id. at 1108. Huhmann thus
confirmed that an employee who was denied the benefit of
the escalator position can state a § 4311 claim on that basis.
Here, Belaustegui’s escalator position argument is
ultimately just an alternative way of framing his fundamental
§ 4311 theory: that he was wrongfully denied the benefit of
Class B status because of his military service. The CBA’s
hours credit policy was defendants’ built-in mechanism for
complying with USERRA’s reemployment requirements.
Belaustegui’s complaint broadly alleged that defendants
discriminated against him under § 4311 by denying him
“benefits related to his military service and related
registration.” The complaint’s allegations fairly encompass
BELAUSTEGUI V. ILWU 21
an escalator principle theory. Under Huhmann, Belaustegui
was not required to plead a violation of any different section
of USERRA in order to advance this claim.
We thus hold that through both the alleged violation of
the escalator principle and the denial of a “benefit of
employment,” Belaustegui has demonstrated his initial
entitlement to USERRA benefits. And defendants have
advanced no argument to suggest that it was not reasonably
certain that Belaustegui, had he stayed at Port Hueneme,
would not have achieved Class B status.
C
Nevertheless, defendants argue that Belaustegui falls
outside the CBA’s (and USERRA’s) coverage because his
military service exceeded five years and he does not satisfy
any exception. Belaustegui is entitled to USERRA benefits
only if “the cumulative length of the absence and of all
previous absences from a position of employment with [his]
employer by reason of service in the uniformed services does
not exceed five years,” 38 U.S.C. § 4312(a)(2), subject to
certain exceptions. The CBA’s USERRA policy also
incorporates the statute’s five-year limit and exceptions. It
is undisputed that Belaustegui’s Air Force service exceeded
five years.
But Belaustegui argues that he meets the exception for
servicemembers who are “ordered to or retained on active
duty (other than for training) under any provision of law
because of a war or national emergency declared by the
President or Congress, as determined by the Secretary
concerned.” Id. § 4312(c)(4)(B). The parties agree that, to
meet this exception, Belaustegui is required to show that any
service in excess of five years was because of—not merely
during—a declared war or national emergency. Belaustegui
22 BELAUSTEGUI V. ILWU
appears to concede that voluntary reenlistment would not
satisfy the exception.
Although the coast-wide labor committee denied
Belaustegui’s request for Class B status and hours credit on
the ground that the § 4312(c)(4)(B) exception did not apply,
the district court did not reach this issue. And the parties’
briefing on appeal confirms that this issue requires resolution
of additional factual issues, as well as some seemingly novel
legal ones.
For instance, there is some question as to what amount
of documentary evidence, if any, a servicemember must
provide to meet the § 4312(c)(4)(B) exception. The parties
also dispute whether the phrase “as determined by the
Secretary concerned” requires a formal determination by
(here) the Secretary of the Air Force or his delegee, or
whether Belaustegui’s deployment orders could suffice. The
factual circumstances of Belaustegui’s reenlistment in 2007
are also unclear. Belaustegui claims that he was verbally
ordered to reenlist and that his service duties themselves
indicate that he was ordered to active duty because of a
declared war, but defendants maintain that Belaustegui
voluntarily reenlisted and that he has no reliable evidence
showing otherwise.
None of these issues were decided below, and we are
“mindful that we are a court of review, not first view.” Shirk
v. United States ex rel. Dep’t of Interior, 773 F.3d 999, 1007
(9th Cir. 2014) (quotations and citations omitted). We
therefore remand this case for the district court to consider
Belaustegui’s claim that he is entitled to the § 4312(c)(4)(B)
exception to the five-year limit, as well as Belaustegui’s
arguments regarding his California Air National Guard
service. The district court may also consider under
BELAUSTEGUI V. ILWU 23
Huhmann’s second step any affirmative defenses to
USERRA liability that defendants may raise.
VACATED and REMANDED.