[00:00:05] Speaker 01:
Whenever you're ready, counsel, take your time.

[00:00:08] Speaker 02:
May it please the court, Greta Giesecke on behalf of the appellant, the United States of America.

[00:00:12] Speaker 02:
I'd like to reserve three minutes for rebuttal.

[00:00:16] Speaker 02:
Congress issued a clear mandate when it enacted USERRA.

[00:00:19] Speaker 02:
Employers must treat service members who take military leave as if they never left.

[00:00:25] Speaker 02:
Nonetheless, Nevada penalized Mr. Lehman for serving his country by charging him almost $40,000 more for pension credits than he would have paid but for his period of military service.

[00:00:35] Speaker 02:
That violates USERRA and the district court erred both in interpreting the law and in implying the well-pleaded facts when it held it otherwise and dismissed the United States complaint.

[00:00:46] Speaker 04:
Could Mr. Lehman have purchased his airtime credits when he hit the five-year mark on August 26th of 2018?

[00:00:56] Speaker 02:
No, he could not if he had to wait until he was re-employed.

[00:01:00] Speaker 02:
But also at the 12b6 stage, the United States did plead that

[00:01:03] Speaker 02:
He could not have purchased them at the time, and so taking the well-pleaded facts.

[00:01:08] Speaker 02:
But to also answer your question, he had to wait until his time was credited when he returned.

[00:01:14] Speaker 04:
So being re-employed is a condition precedent to someone like Mr. Lehman purchasing airtime credits?

[00:01:21] Speaker ?:
Correct.

[00:01:22] Speaker 04:
So, Section 43, 18B2 is critically important in understanding that section.

[00:01:32] Speaker 04:
Our interpretation of that section may determine the result of this appeal, is that right?

[00:01:43] Speaker 04:
So, looking at that section, your contention is that

[00:01:50] Speaker 04:
The sentence that says no such payment may exceed the amount the person would have been permitted or required to contribute had the person remained continuously employed by the employer throughout the period of service described in subsection A to B means that not only can Mr. Lehman, should he have been able to buy his airtime credits, which is not, I think it's not disputed that he can buy them.

[00:02:13] Speaker 04:
The issue is the price, right?

[00:02:15] Speaker 04:
You say that this, is this the key sentence that

[00:02:18] Speaker 04:
tells us when at what price he can buy those credits?

[00:02:24] Speaker 02:
Yes that's correct your honor because for one it says the person who was the express language here says you know the person would have been permitted or required to contribute had the person remained continuously employed it doesn't instruct us to treat him like another employee who

[00:02:43] Speaker 02:
had been employed the last three years and opted not to purchase the credits.

[00:02:47] Speaker 04:
It also tells... I'm sorry, say that last thing again.

[00:02:50] Speaker 02:
When it says, it uses the word the person twice in that sentence, right, that the person would have been permitted or required to contribute.

[00:02:58] Speaker 02:
And so I think that should be read as not a person who had been employed the last three years, a different employee who wasn't a service member and opted not to purchase the credits.

[00:03:09] Speaker 02:
Had he been

[00:03:10] Speaker 02:
continuously employed, he would have been employed in August of 2018 and had the opportunity to purchase those credits at that time.

[00:03:19] Speaker 02:
But because he wasn't there, he never had that opportunity.

[00:03:22] Speaker 02:
And so then that's where the amount that he's being asked to pay.

[00:03:26] Speaker 03:
Council, I mean, if we have to read harmoniously these sections together, to Judge Holcomb's point, you can't exercise this ability to purchase airtime credits until you're re-employed.

[00:03:40] Speaker 03:
But B2 suggests you, which is more of a price or cost of it, you can't exceed the amount that someone else would have paid for had they been continuously re-employed.

[00:03:51] Speaker 03:
So if you read those two things together, someone can be re-employed, but then it has to be at the cost as if someone were there the entire time.

[00:03:59] Speaker 02:
So I'm not sure if I, I might be misunderstanding your question.

[00:04:03] Speaker 03:
I guess what I'm saying is if, you know, I guess I'm agreeing with you.

[00:04:07] Speaker 03:
If Mr. Lehman had been continuously re-employed and had never left for deployment, he would have been able to purchase air time in August of 2018 at a certain price based on his agent salary at the time.

[00:04:18] Speaker 03:
Correct.

[00:04:18] Speaker 03:
And that's governed by B2, even if he couldn't exercise that until he gets re-employed when he comes back in 2020.

[00:04:25] Speaker 02:
Yes, correct.

[00:04:26] Speaker 02:
He is entitled to the benefits that he would have had at that time had he been continuously employed.

[00:04:33] Speaker 02:
The only reason that he never had the opportunity to purchase these credits at that almost $40,000 cheaper price is because he wasn't there at the time.

[00:04:42] Speaker 01:
I'm sorry, go ahead.

[00:04:44] Speaker 01:
So let me get ahead of myself a little here.

[00:04:46] Speaker 01:
So let's say hypothetically, just hypothetically, I were to agree with the United States in general on its reading of the statute.

[00:04:57] Speaker 01:
There's nothing in the statute which would provide, for example, that Mr. Lehman would be entitled to do better than employees who weren't called up, right?

[00:05:09] Speaker 02:
No, not at all.

[00:05:10] Speaker 01:
So, and there's no reason that the statute would provide that he should get a windfall, right?

[00:05:15] Speaker 02:
No.

[00:05:16] Speaker 01:
So, would it be fair, let's say again, hypothetically the panel were to agree with the United States in general on the reading of the statute?

[00:05:26] Speaker 01:
Would it be fair for us to say, but Mr. Lehman gets no windfall and he had the use of the money from 2018 to 2021 or whatever that exact time period was between when he would have been able to buy had he been employed and when he did buy.

[00:05:44] Speaker 01:
And so the benefit to him of having had the money for those three years should reduce the reduction that he should have to pay.

[00:05:52] Speaker 01:
So if the use of the money for three years was worth $5,000, that Nevada should get credit for that because otherwise he'd get a windfall?

[00:06:01] Speaker 02:
No, I don't think so, Your Honor, because Congress, when it created this provision, I think that it took into account a lot of these concerns that the district court and

[00:06:11] Speaker 02:
Nevada has, and it created this provision at the end of Section 4318b2 that says it gives the time period where a person who returns to civilian employment has three times the amount of duration

[00:06:30] Speaker 02:
that they had in service not to exceed five years.

[00:06:32] Speaker 01:
And I think that in creating that provision, Congress took into account your concern here that... But if for three years he'd had the money in the bank and he was earning, I'll make up a number, 4 percent interest on it, why wouldn't Nevada be entitled to a set off for that in normal tort cases

[00:06:51] Speaker 01:
You reduce money to present value.

[00:06:55] Speaker 01:
You take that into account in figuring out the damages in virtually every tort case.

[00:07:00] Speaker 01:
Why wouldn't Nevada be entitled to a reduction for the benefit that he got from having the money for three more years?

[00:07:08] Speaker 01:
Doesn't that put him in a better position than the Deputy Attorneys General who weren't called up?

[00:07:17] Speaker 02:
Well, I will say, one, USERA does have certain provisions where I think that this benefit section in general does give a benefit to service members that others don't get.

[00:07:29] Speaker 02:
And I think that having this section and the express provision that allows a person to have this period of time, up to five years, based on the amount of their service,

[00:07:42] Speaker 02:
to make these payments without having a corresponding provision that says, and to be reduced by the amount that the service member benefited because of time value of money, I think that Congress could have included that in if they were concerned about that.

[00:07:57] Speaker 02:
But Congress's main concern when creating the statute was not to make sure that service members don't have benefits that other employees don't have.

[00:08:09] Speaker 02:
There are several different benefits throughout USERA that others don't have.

[00:08:13] Speaker 02:
Congress's focus, as demonstrated in the very beginning of the statute, it says its three interests were to make sure that service members were made whole, that they weren't discriminated against for their service, that they weren't disadvantaged for their service.

[00:08:28] Speaker 01:
So I'm going to ask this question to your friend, too.

[00:08:32] Speaker 01:
So Nevada, in the United States' view, could have had a statute that said, if you're called up and you hit this mark, even though you're not employed, you can pay now.

[00:08:43] Speaker 01:
But keep in mind, if you don't pay now, you're going to have to pay more when you come back.

[00:08:48] Speaker 02:
So I don't think that they could have, because I think that that would have been kind of drafting around you, Sarah.

[00:08:57] Speaker 01:
How would it be drafting around you, Sarah, if they said, you've hit this mark.

[00:09:03] Speaker 01:
Jimmy down the hall gets to do it now.

[00:09:05] Speaker 01:
He started the same day you do.

[00:09:07] Speaker 01:
So you have the right now to purchase it.

[00:09:10] Speaker 01:
But if you choose to purchase it later, you're going to have to pay in accord with the actuarial numbers in the statute.

[00:09:18] Speaker 02:
So the service members are not obligated to, there are ways serving, these are to protect their rights so that they aren't concerned with matters here.

[00:09:29] Speaker 02:
He was deployed, I think that that's assuming that facts also that aren't in the complaint, although I know it's just a hypothetical of course, that he would have even had the opportunity to do that in military service.

[00:09:43] Speaker 02:
He might not be even reachable, he might have had no clue that that happened.

[00:09:47] Speaker 03:
Does the next section of b2 perhaps not make that available because it says Any payment to the plan described in this paragraph shall be made during the period beginning with the date of reemployment?

[00:10:00] Speaker 03:
Yes, and so that would that would suggest that you couldn't force a service member to Purchase the plan while they're on active duty service Yeah, I think that was maybe what I was trying to get at by saying it would be going around you Sarah because all of the rights under you Sarah

[00:10:15] Speaker 02:
in this pension provision apply upon re-employment.

[00:10:19] Speaker 02:
Upon re-employment.

[00:10:20] Speaker 03:
But I also don't see, I tend to agree with Judge Bennett, why wouldn't there be a bit of a windfall by the time value of money, of having money in 2018 that gets kept and the ability to purchase these credits?

[00:10:36] Speaker 03:
Like where in the text of use, Sarah, especially in the pension provision, says that we should allow that to happen?

[00:10:43] Speaker 02:
So I don't disagree that it very well puts him in a slightly better position than somebody else.

[00:10:51] Speaker 02:
I think, though, that in general, other service members don't have this opportunity to purchase for extra period, or non-service members don't have this period of time to purchase, like the service member's argument.

[00:11:02] Speaker 02:
But also, USERRA has several provisions

[00:11:05] Speaker 02:
that we list in our brief there's reemployment provisions, seniority benefits, health insurance while not working.

[00:11:11] Speaker 02:
There's a reemployment by the federal government provision that says if you return for reemployment and

[00:11:19] Speaker 02:
it's not reasonable or impossible or unreasonable to re-employ him.

[00:11:24] Speaker 02:
The director of OPM has to find him a position in a different agency and ensure that he gets that position.

[00:11:34] Speaker 02:
There's durations following re-employment where

[00:11:37] Speaker 02:
Service members can't be fired except for cause.

[00:11:40] Speaker 02:
And so those are both places where those give them express, a service member express preference and perhaps a windfall over another employee who was not a service member who could be fired at will during that time or who then doesn't get the position in the other agency.

[00:11:58] Speaker 02:
So I think that Congress here was concerned more so with protecting the rights and the benefits of,

[00:12:06] Speaker 02:
service members rather than protecting, making sure that they're not, that people who are not service members don't get a little bit short end of the stick.

[00:12:17] Speaker 04:
NavPERS or any pension plan can provide benefits for service members that are better or greater than those provided in USERA, correct?

[00:12:26] Speaker 02:
Yes, correct.

[00:12:30] Speaker 03:
What is the benefit at issue here?

[00:12:32] Speaker 03:
Because I think there was a little bit of confusion perhaps with the district court below.

[00:12:36] Speaker 03:
Is it the right to purchase airtime credits or is it the credits themselves?

[00:12:42] Speaker 03:
What in your view is the benefit at issue?

[00:12:45] Speaker 02:
So the United States views the right to purchase the credits and the credit itself all as the one benefit.

[00:12:52] Speaker 02:
I think the confusion here stems from that there was at the district court at one point

[00:13:00] Speaker 02:
the United States distinguished the benefit of the credit as far as not being tethered to service in the sense that these credits are for years that an employee didn't actually work.

[00:13:14] Speaker 02:
So the United States was distinguishing just in that very narrow sense that when it had made the statement of the right to purchase the credit.

[00:13:24] Speaker 02:
So then the district court in its opinion though created this new distinction between the right to purchase

[00:13:30] Speaker 02:
and the credit itself that was completely distinct from that initial.

[00:13:33] Speaker 02:
And so that's where now it changes a little bit.

[00:13:37] Speaker 02:
But the district court understood the United States position all along to include what she said was the substance of the credit itself.

[00:13:46] Speaker 02:
And I think also here, it helps to think about what we're actually dealing with.

[00:13:52] Speaker 02:
And the actual credit here, which is paying now for payments later,

[00:13:58] Speaker 02:
The more you have to pay now, the lower the value of your benefit overall because you're still getting the same amount of payments later.

[00:14:08] Speaker 02:
And so I think you really can't divorce the two.

[00:14:11] Speaker 02:
So our position has always been, and I think that you can see that in the district court's opinion, that she interpreted the United States position as such to include both the substance of the credit and the right to purchase it as being intertwined.

[00:14:26] Speaker 04:
If we decide for whatever reason that Mr. Lehman cannot exercise that $101,000 price, that he's held to a higher price, what do we do with the time delta between when he returned to work in October of 2020 and when he finally got the price that he was to pay in April of 2021?

[00:14:49] Speaker 04:
Is that in your complaint?

[00:14:50] Speaker 04:
Did you preserve that?

[00:14:51] Speaker 02:
So our position is that it's one claim.

[00:14:55] Speaker 02:
There's not a separate cause of action or a separate violation for that difference.

[00:15:00] Speaker 02:
That instead goes to the amount of damages that he suffered or the prejudice.

[00:15:05] Speaker 02:
But at a minimum, even if you were to agree that he should have been paying the October 2020 rate, which is what the district court held, the United States would still ask that you reverse and remand because the district court misapplied

[00:15:20] Speaker 02:
the well-pleaded facts in the complaint where the district court said that he was entitled to, at the October 2020 rates, and that that is what he paid.

[00:15:31] Speaker 02:
But that's not what the United States complaint said.

[00:15:34] Speaker 02:
The United States complaint said that he paid at the April 2021 rates.

[00:15:36] Speaker 02:
So at a minimum, we would ask that you reverse and remand for that purpose.

[00:15:42] Speaker 02:
And I think I will reserve the remit.

[00:15:44] Speaker 02:
Oh, nope.

[00:15:45] Speaker 02:
We're done.

[00:15:46] Speaker 01:
We'll give you some time.

[00:15:47] Speaker 01:
OK, thank you, Your Honor.

[00:15:48] Speaker 01:
We'll give you two minutes for rebuttal.

[00:16:00] Speaker 00:
Good morning.

[00:16:01] Speaker 00:
May it please the court, Sam Levin from Groom Law Group on behalf of defendant appellee, the Public Employees Retirement System of Nevada.

[00:16:09] Speaker 00:
There are two independent bases on which this district court should affirm the district court's decision under the plain text of USERA.

[00:16:18] Speaker 00:
First, as the district court correctly held,

[00:16:20] Speaker 00:
Air time is not an accrued pension benefit earned for service.

[00:16:25] Speaker 00:
Second, because Section 4318 is only effective upon re-employment, service members, defendants did not require a contribution higher than would have been required had service members remained continuously employed.

[00:16:39] Speaker 03:
Mr. Levin, let's start with the statutory text and I want to go to A to B, which says that each period served by a person in uniform service shall upon re-employment be deemed to constitute service, and then I'll move ahead, for the purpose of determining the non-forfeitability of the person's accrued benefits and for the purpose of determining the accrual of benefits under the plan.

[00:17:06] Speaker 03:
It seems to me the district court was focusing just on accrued benefits and didn't really say much about the accrual of benefits.

[00:17:15] Speaker 03:
And when I look at non-forfeitability of the person's accrued benefits, I do think of pension plan, paying into a pension plan, and receiving something that cannot be forfeited.

[00:17:27] Speaker 03:
But the accrual of benefits seems to contemplate something like airtime credits because

[00:17:32] Speaker 03:
It means that if someone's away on deployment, their time should count toward this threshold, this five-year threshold for the ability to buy airtime credits.

[00:17:42] Speaker 03:
So why isn't the accrual of benefits sufficient for coverage under USERRA to encompass the purchase of airtime credits?

[00:17:51] Speaker 00:
Your Honor, I believe that when Section 4318B2 is talking about accrued benefits,

[00:17:56] Speaker 00:
And then it says pursuance to subsection A and it's referring back to subsection A. I don't think there's a textual basis for drawing a distinction between accrued benefits in section B2 and the accrual of benefits in section A2B.

[00:18:10] Speaker 00:
I think those should have a harmonious meaning.

[00:18:12] Speaker 00:
And specifically in the context of air time, as Mr. Lehman, for example, is working additional years, be they at his job at the AG's office or while he's serving in the Nevada National Guard, he's not accruing air time credits.

[00:18:26] Speaker 00:
That's not something he's earning for work that he's doing.

[00:18:30] Speaker 00:
The five years.

[00:18:30] Speaker 03:
But what he's accruing is the ability to purchase that air time.

[00:18:35] Speaker 00:
I think under the district court's interpretation, he's not even accruing that.

[00:18:39] Speaker 00:
The five-year minimum requirement period, that's not a reward for his service.

[00:18:45] Speaker 00:
That's just a minimum threshold under the internal review.

[00:18:48] Speaker 03:
Let me ask this.

[00:18:51] Speaker 03:
The district court acknowledged that the definition of benefits under USER is quite broad.

[00:18:59] Speaker 03:
And one of the terms of the definition of benefits is not just

[00:19:04] Speaker 03:
its terms, conditions, or privileges of employment.

[00:19:08] Speaker 03:
And so I want to focus you on the word privilege, because a privilege is something that a person could exercise the option to do, but wouldn't necessarily have to do, such as the purchase of airtime credits.

[00:19:19] Speaker 03:
So why, why, and under the case law, we're supposed to look at this in a liberal context, to read the statute liberally.

[00:19:27] Speaker 03:
So, did the district court's reading, was it too narrow by focusing on accrued benefits without contemplating the privilege of purchasing airtime credits?

[00:19:38] Speaker 00:
No, your honor, so we don't dispute that whether you're looking at the right to purchase or the airtime credits themselves that the definition in forty three or two of just benefit is broad enough to incorporate that, but then we don't think that the word accrued is doing any particular work in the statute.

[00:19:55] Speaker 00:
We think it would be rendered superfluous.

[00:19:57] Speaker 00:
and with respect to your- But why not?

[00:19:59] Speaker 03:
If the privilege, I'll just, I'll translate some words.

[00:20:02] Speaker 03:
If the privilege of a state employee is to purchase airtime credits after five years, the accrual of that benefit is, you can't do it at year three, you can't do it at year four, it has to be at year five.

[00:20:16] Speaker 03:
Why isn't the ability to purchase airtime credits as a privilege of employment something that's contemplated in the USERO?

[00:20:24] Speaker 00:
So if if this if section 43 18 B2 had just used the word benefit and just incorporated the definition of benefit in section 43 0 3 2 then I would agree with you your honor but it's there's an additional word there that's added that we think has to be doing some additional work.

[00:20:40] Speaker 00:
and if all it means, as the United States asserts, is- But there isn't a- there's not a separate definition for accrued benefits.

[00:20:47] Speaker 03:
There's a definition for benefit, and it encompasses many different things.

[00:20:53] Speaker 03:
So you're saying we should ignore the word- the broad definition of benefit because the word accrued is right next to it, and instead of looking at the statutory definition, we should look at a California Supreme Court decision?

[00:21:04] Speaker 00:
No, Your Honor, I'm not saying that this Court should ignore the word benefit, but I think it has to be modified by the word accrued.

[00:21:11] Speaker 00:
And it's true that there's no specific definition of the term accrued benefit under USERA, but there is under the Internal Revenue Code and the Employer Retirement Income Security Act, which are the two main sources of federal law governing pension benefits.

[00:21:24] Speaker 00:
And I don't think it's an accident that we happen to see the phrase accrued benefit here and not in other sections.

[00:21:29] Speaker 01:
Is there any...

[00:21:32] Speaker 01:
Let me go to a different section.

[00:21:35] Speaker 01:
I want to look at, and I'm having some trouble making sure I get the right numbers, but 4318, I think it's B2A.

[00:21:53] Speaker 01:
but I'll read it.

[00:21:55] Speaker 01:
A person re-employed under this chapter shall be treated as not having incurred a break in service with the employer or employers maintaining the plan by reason of such person's period or periods of service in the uniformed services.

[00:22:10] Speaker 01:
Do you see where I am?

[00:22:11] Speaker 00:
Yes, Your Honor.

[00:22:12] Speaker 01:
So why didn't Nevada violate this section?

[00:22:17] Speaker 01:
I'm sorry.

[00:22:19] Speaker 01:
Go ahead.

[00:22:20] Speaker 00:
A couple points, Your Honor.

[00:22:22] Speaker 00:
First, I would say that during the investigation here below, the Department of Labor actually expressly conceded that there was no violation of that section.

[00:22:33] Speaker 00:
So that's at the excerpts of record, page 152.

[00:22:37] Speaker 01:
But putting that aside, I'm trying to understand why it isn't a violation here, because

[00:22:43] Speaker 01:
he wasn't treated the same as if he'd had no break in service, right?

[00:22:48] Speaker 00:
So I think he was treated the same as if he had no break in service.

[00:22:53] Speaker 00:
He received, upon re-employment, the full credit for his time.

[00:22:57] Speaker 00:
So he's not treated as having a break in service.

[00:23:00] Speaker 00:
The only question is, is he entitled to go back in time and lock in a retroactive price?

[00:23:06] Speaker 00:
And we think that that is a question under B2, not a question under A2A.

[00:23:15] Speaker 04:
If I may follow up on Judge Sanchez's question, let me give you a hypothetical which may help us understand your definition of accrued.

[00:23:25] Speaker 04:
So we've got Mr. Lehman, we know what his, the facts are which respect him.

[00:23:30] Speaker 04:
Let's take another hypothetical employee, Ms.

[00:23:33] Speaker 04:
Jones.

[00:23:34] Speaker 04:
Begins working at the Nevada AG's office same day in August of 2013.

[00:23:41] Speaker 04:
Gets called up to active duty in May of 2017.

[00:23:44] Speaker 04:
In my hypothetical, she returns, her active duty service ends August 25th of 2018.

[00:23:52] Speaker 04:
She's re-employed August 26th of 2018 at that five-year point.

[00:23:59] Speaker 04:
Can she buy five years of air time on that day?

[00:24:02] Speaker 00:
Yes, Your Honor.

[00:24:03] Speaker 04:
Well, hasn't she accrued benefits over some 15 months that she's been on active duty?

[00:24:10] Speaker 04:
Isn't that precisely what accrual is?

[00:24:12] Speaker 00:
So, Your Honor, in that circumstance, that protection, I don't think we even need to reach the B2 issue, because I think that protection would fall under A2A.

[00:24:22] Speaker 00:
You have to be treated as not having a break in service, and so have to be treated the same way as everyone else.

[00:24:28] Speaker 00:
And I think it goes back to that air time in particular,

[00:24:33] Speaker 00:
it's not something that's being accrued, it's being earned in exchange for service.

[00:24:37] Speaker 00:
And so I think the only way to get to that conclusion is to adopt the United States' definition, which is essentially that it just has to be something that exists.

[00:24:45] Speaker 00:
And we think that would render the word accrued in the statute superfluous.

[00:24:49] Speaker 00:
and would be essentially concluding that it's a coincidence that Congress decided to use a term that has a specific meaning, accrued benefit.

[00:24:57] Speaker 03:
But under Judge Holcomb's hypothetical, if someone is away for deployment for a couple of years or a few years and comes back on August 26, 2018, that service time would count toward the ability to purchase airtime credits.

[00:25:13] Speaker 00:
Correct.

[00:25:13] Speaker 03:
So they're earning something, but you don't want to call it a benefit.

[00:25:17] Speaker 03:
What are you calling it in that case?

[00:25:19] Speaker 00:
So I agree that it's a benefit.

[00:25:22] Speaker 00:
I just don't believe that that is a benefit.

[00:25:24] Speaker 00:
I don't believe that's an accrued benefit.

[00:25:27] Speaker 01:
So counsel, would Nevada law as it currently exists

[00:25:33] Speaker 01:
have allowed the pension system or the AG's office, whoever would send the notice, to Mr. Lehman while he was on active duty to say, you've hit this five-year mark.

[00:25:49] Speaker 01:
And if you want to pay, pay now.

[00:25:53] Speaker 01:
But if you don't want to pay, you may have that right later, but you'll have to pay more.

[00:25:59] Speaker 01:
Did Nevada law allow such a thing to occur, or would that not have been legal because he wasn't then employed?

[00:26:06] Speaker 00:
I'm not aware of any provision in the Nevada Code that would authorize that, Your Honor.

[00:26:10] Speaker 00:
And I think part of what Your Honor may be getting at here is it seems like, in a sense, perhaps the perfect way

[00:26:16] Speaker 00:
to solve this, is there any prejudice versus the extra benefit when fall time value of money would be if in fact in 2018 Mr. Lehman were able to purchase this if that's what he wanted to do.

[00:26:27] Speaker 00:
And if Congress wanted to protect that right, if that's the way they wanted USERA to function,

[00:26:31] Speaker 00:
It could have done that.

[00:26:33] Speaker 00:
And in Section 4318, the protections triggered upon reemployment.

[00:26:36] Speaker 00:
But if you look at Section 4317, which deals with health benefits, the way that's structured is that the service member wall out on leave before being reemployed, and regardless of whether they are ever reemployed,

[00:26:48] Speaker 00:
can elect to continue their health care coverage for up to two years while on service and pay for it.

[00:26:53] Speaker 01:
It seems like the United States is at least on one point perhaps agreeing with you that I'm hearing their answer is Nevada, even if the statute had allowed it under you, Sarah, couldn't have said to him, pay now.

[00:27:07] Speaker 01:
Correct, Your Honor.

[00:27:10] Speaker 01:
So getting to the question I asked your friend, obviously you'd like to win the case.

[00:27:15] Speaker 01:
You'd like us to affirm.

[00:27:16] Speaker 01:
But if that weren't going to happen, hypothetically, is it your position that Nevada should be entitled to some set off or some diminution in damages for the time value of money for the three or so years that Mr. Lehman had the benefit of the money?

[00:27:34] Speaker 00:
All right, Your Honor, that's not something I thought about before you raised that as a hypothetical.

[00:27:37] Speaker 00:
And I think the question would be, is there some sort of federal common law entitlement to that, even though it's not expressly contemplated by the statute?

[00:27:44] Speaker 00:
And I'm not sure what the answer to that is.

[00:27:46] Speaker 00:
But I think the correct way to avoid that problem is to not interpret the statute to give Mr. Lehman or any other returning service members a windfall in the first place.

[00:27:57] Speaker 00:
And one of the things that counsel for the United States said is that, well, it's OK if

[00:28:02] Speaker 00:
Mr. Lehman and other returning service members get an extra benefit here because there are other instances in USERRA where extra benefits are provided, one of which is that, and this is what the Supreme Court was discussing in Fishgold, is that after you're rehired pursuant to USERRA, you can't be fired without cause for up to a year.

[00:28:22] Speaker 00:
And what the Supreme Court says in the Monroe case that we cite, and this is footnote 12 on page 561 of Monroe,

[00:28:30] Speaker 00:
is that one could argue that such protections amount to preferential treatment and therefore are inconsistent with the general position that we're advocating for here, that USERRA should not be read as providing extra benefits.

[00:28:43] Speaker 00:
Those protections are actually better understood as protection against discrimination that would not have occurred were it not for reserve obligations.

[00:28:53] Speaker 00:
And so the Supreme Court says where you have some things that could be characterized as extra benefits, but they're really just prophylactic protections to make sure that the service members not made worse off.

[00:29:03] Speaker 00:
That's not inconsistent.

[00:29:05] Speaker 00:
with what the Supreme Court says in Monroe is the general principle that we should not be awarding extra benefits to returning service.

[00:29:13] Speaker 03:
If we don't agree with you on the reading of accrued benefits, let's say we conclude that accrued benefits does include the right to purchase airtime credits after five years,

[00:29:25] Speaker 03:
Does your argument fall apart under B2?

[00:29:29] Speaker 03:
In other words, the no such payment may exceed the amount a person would have been permitted.

[00:29:33] Speaker 03:
Would you agree then that that would include the price of the benefits in August of 2018?

[00:29:40] Speaker 03:
Or do you have a separate argument as to how to read B2?

[00:29:43] Speaker 00:
No, Your Honor, we have a separate argument as to how to retune.

[00:29:45] Speaker 00:
I believe that's also what the district court held, that the protection is triggered upon re-employment.

[00:29:51] Speaker 00:
And so they have to be treated the way anyone else who served that period of time and has their credit would be treated after re-employment.

[00:29:59] Speaker 03:
But how do you account for this language that says,

[00:30:03] Speaker 03:
had the person remained continuously employed by the employer.

[00:30:06] Speaker 03:
It doesn't mention re-employment.

[00:30:08] Speaker 03:
It says if the person had been there the entire time, you can't impose a cost that's greater than that circumstance.

[00:30:16] Speaker 03:
How do you get around that language?

[00:30:18] Speaker 00:
I believe that, I mean, the entire, pretty much everything else in the provision is triggered upon reemployment.

[00:30:25] Speaker 00:
And, I mean, the threshold here is talking about a person reemployed.

[00:30:28] Speaker 00:
And I think the other check that we can put on that to see if that's a reasonable interpretation of the statute is that would, as the United States advocates for, essentially be imposing a but-for test, what would have happened but for their service.

[00:30:41] Speaker 00:
And we can see in B3 that where Congress wanted to set forth a but-for test, it did so clearly.

[00:30:48] Speaker 00:
And it also limited that in the B3 context to situations where the outcome was reasonably certain.

[00:30:54] Speaker 00:
There's no such limitation in B2.

[00:30:57] Speaker 00:
And so not only would we be importing a but-for test that's not in the text of B2, it would be unlimited and I think would raise some difficult factual questions about it.

[00:31:06] Speaker 03:
Whether you describe it as but-for or not, it still says, had the person remained continuously employed,

[00:31:11] Speaker 03:
So the statute is setting up a counterfactual of some kind.

[00:31:16] Speaker 03:
Regardless of the connection to it, what it's ultimately saying is, we're not going to discriminate against service members who had to deploy.

[00:31:23] Speaker 03:
We're going to treat them the exact same as if they had been continuously there the entire time.

[00:31:28] Speaker 03:
So whether you import a butt fork or not, it's setting up a counterfactual.

[00:31:32] Speaker 03:
And I'm having a hard time seeing how you get around that language.

[00:31:35] Speaker 00:
So I think the right way to view that it is certainly is setting up a counterfactual.

[00:31:39] Speaker 00:
I mean, the entire premise of Section 4318 is a counterfactual or we wouldn't be here at all.

[00:31:44] Speaker 00:
But that's being triggered upon reemployment.

[00:31:47] Speaker 00:
And so had he remained continuously employed when he makes the purchase, then he's being charged the same price that he would have been.

[00:31:56] Speaker 04:
One quick question.

[00:31:57] Speaker 04:
If we affirm on this issue of the cost for Mr. Lehman's purchase of airtime, what do we do with the delta between when he was

[00:32:09] Speaker 04:
re-employed in October of 2020 and when he got his price in April of 21.

[00:32:14] Speaker 04:
Is that something that Plaintiff United States has preserved?

[00:32:18] Speaker 00:
I don't believe so, Your Honor.

[00:32:20] Speaker 00:
They disclaimed it before the district court as a separate violation.

[00:32:24] Speaker 00:
And even if this court were to reach the issue, I think it's very straightforward as it pertains to PERS because the allegations are that once the state and the AG's office

[00:32:34] Speaker 00:
corrected Mr. Lehman's record to recognize his military service, PERS responded to his request to purchase airtime the next day.

[00:32:40] Speaker 00:
So I think there's clearly no delay against PERS.

[00:32:42] Speaker 00:
And then with respect to state in the AG's office, there's an allegation that the delay running from October prejudiced Mr. Lehman.

[00:32:50] Speaker 00:
But that's not the relevant legal question, because the statute does not impose an immediacy requirement that the moment that Mr. Lehman requests re-employment, he's entitled to all of these things.

[00:33:02] Speaker 00:
I should give you a couple examples of that.

[00:33:05] Speaker 00:
The Department of Labor regulations allow two weeks for rehiring.

[00:33:08] Speaker 00:
That's 20 CFR 1002.181 and then provides up to 90 days to make required employee contributions.

[00:33:18] Speaker 00:
That's 1002.262.

[00:33:20] Speaker 00:
So what the United States would have needed to allege had they preserved this theory at all is that

[00:33:25] Speaker 00:
the state and the AG's office waited beyond some reasonable period of time, and that a delay beyond that reasonable time caused additional prejudice to Mr. Lehman.

[00:33:34] Speaker 00:
Those facts have not been alleged, and that theory has not been presented.

[00:33:37] Speaker 00:
All right, thank you, Captain.

[00:33:38] Speaker 02:
Thank you.

[00:33:45] Speaker 02:
I just have two quick points that I want to make.

[00:33:49] Speaker 02:
One regarding the but for argument that my friend on the other side was just discussing.

[00:33:55] Speaker 02:
I would point this court to its opinion in Belistegi.

[00:33:59] Speaker 02:
And there, the court was, court twice used, quote, but for the period of military service, end quote, to paraphrase very similar continuously employed language.

[00:34:12] Speaker 02:
uh... that is found in sections forty three thirteen and forty three sixteen of you Sarah also there are very tiny differences in how the court use that continuously employed language in the three different sections here forty three eighteen which we're talking about in those two sections that issue in Bella Stegi so I think that demonstrates that

[00:34:32] Speaker 02:
sometimes Comacris does use different terms for functional equivalence.

[00:34:36] Speaker 02:
And then the other point I just wanted to make really quickly was to the question that you were asking or your point Judge Sanchez about whether the district court or about whether the district court interpreted accrued benefits too narrowly.

[00:34:50] Speaker 02:
Of course, yes, we agree.

[00:34:52] Speaker 02:
But as this court, again, recognized in the Belistegi case, the statute of benefits is very broad.

[00:34:59] Speaker 02:
And there, this court concluded that these hour credits which had absolutely nothing to do with pensions or benefits, as defined by you, Sarah, because they were advantages or gains that accrue by reason of employment contract or agreement, accrue

[00:35:15] Speaker 02:
being also present in the definition of benefits.

[00:35:18] Speaker 02:
And I think that the Belistegi interpretation there of benefits forecloses the argument that accrue has some pension-specific meaning under you, Sarah.

[00:35:28] Speaker 03:
I think in Belistegi was the hours that a longshoreman could accrue in order to rise in class and get certain benefits.

[00:35:36] Speaker 03:
And so the panel there did recognize that as a type of benefit as a fallback measure.

[00:35:41] Speaker 02:
Correct.

[00:35:41] Speaker 02:
So I would assume that

[00:35:43] Speaker 02:
under principles of statutory interpretation, if Congress used a crew and the definition of benefits to not be pension-specific, we shouldn't read a pension-specific definition into this other provision.

[00:35:55] Speaker 02:
So I thank you, and the United States asks that this Court reverse and remand.

[00:36:01] Speaker 01:
All right.

[00:36:02] Speaker 01:
We thank counsel for their arguments.

[00:36:03] Speaker 01:
The case just argued is submitted, and with that, we are adjourned for the day.