th circuit recognized when it confronted this exact same question the statute broadly defines the term rights and benefits to include any advantage of profit privilege or gain of employment with no exceptions so that the question is whether receiving pay f one's employer qualifies as a profit or gain of employment and the answer is yes as the th circuit noted receiving pay from one's employer and this is a quote is an advantage profit privilege or a gain of employment which essentially ends the inquiry in the same is true here the is received by employees when they are on comparable forms of nonmilitary leave is simply pay a profit or gain on any understanding and that benefit is not provided to employees on military leave in violation of the most favorable treatment rule set forth in four thousand three hundred and sixteen b now you fed ex does it makes three arguments against this and all three of those arguments were made to when rejected by the th circuit in white and i'd like to take them each in turn beginning with the principal argument judge works which you just kind of sketched out which is an argument that the relevant benefit here is paid military leaves and that argument was the st argument that united made in its brief if you look up the brief it's point heading one and the th circuit rejected the argument and rightly so and the problem with the argument is that it's a kind of sleight of hand the additional benefit that we are claiming here that the that employees receive when they're on leave for jury duty for example or sick leave or bereavement leave is not paid military of the they don't receive paid military wings the benefit is just simply pay maybe it's five days pay maybe it's differential pay whatever it ends up being it's pay and the the only question then under  of leave everybody away from work for some reason the question is what benefit do they receive while away anything superior or inferior to those who are away for military service is that right now is correct  ok and so for fed ex's argument to work there would have to be some kind of exception to that definition that excludes penn and there's not been a failure and it kind of dovetails in to a judge made his question white well i want to respond to your question directly but just as a predicate i would note that we're not saying that paid military leave we're an employer to provide it like the federal government provides it to its employees would not be a writer benefit we're just saying for employers who do not provide paid military leave there they still have to comply with four thousand three hundred and sixteen dollars b s equal treatment rule and so you go to the extent that they provide benefits to employees who are on forms of nonmilitary leave that are comparable you've got to ensure that the military leave has given the most favorable treatment to any comparable leave now to the question about six thousand three hundred and twenty three now this is also an argument that the th circuit dealt with in the white decision and the argument is that that is made by fed ex here as i take it is the mere existence of this paid military leave statute which resides in an altogether different title of the u s code somehow compels fed ex is arguing a reading of you sarah and that's not true for two main reasons both of which were set forth by the th circuit number one you serious plaintext is unambiguous and so there's no need to look elsewhere to help clarify the meaning of the text and least of all entirely different title of the code where application of the whole code can and would rest on particularly shaky grounds with the th circuit said is you have to treat that kind of an argument with caution but regardless and this is the nd point the th circuit correctly noted that there is nothing incompatible between these two statutes for one thing they have entirely different purposes the paid leave statute is the federal government acting in its role as employer sending a leave policy for its employees it provides an automatic in title meant for employees to get up to fifteen days of paid military and even a year or fifteen days can roll over and if you take after you know if you if you end up being deployed to active service you can draw on up to thirty days that you have in your bank and so it works differently than work when we're claiming you sarah works use there is the government acting in its role as regulator creating an equal treatment rule that's the seven circuits language from from the white decision and so i just took it real get back very quickly to that the cortex to the argument that my friend on the other side makes about this kind of level of generality argument for that argument to work there have to be some kind of exception to the statute for receiving pay and there's none fed ex argues that the examples that follow the court definition including the inclusion of the word vacation somehow serve to risk strict when read together serve to restrict the court definition and that's the very interpretive move that was rejected by both the supreme court in bostic and the th circuit in white and it would make particular little sense to accept that kind of an argument here for a claim under not a characteristic of the absence to allow differences in the available benefits to negate relief under four thousand three hundred and sixteen b would undermine the effect of the statute yet that is exactly what fed ex is seeking to do in this case that's two federal circuits that i now count that are against a fed ex disposition and so what fed ex asking this court to do is to create a circuit split and to find that receiving money from one's employer is somehow not a profit or gain under the plain meaning of that language and there is no textural hook for that and that's why fed ex is forks to kind of make this policy argument and it claims that congress cannot possibly intended this result and the th circuit rejected this argument too and rightly so it is the statutory text that is the best evidence of congress intent and the text here is unambiguous and this the court should therefore follow the text of userra exactly as it did in the law case and to the extent that legislative history matters i would note that the reference congress walter meyer shows that it knew what it was doing and understood that one ramification of adopting walter meyers equal treatment rule is that it might eventually lead to a requirement that employers who provide paid and benefits included when his or her salary for work performed how does that affect interpretation so this is an argument that fed ex is not making but it is the reasoning that was adopted by the district court and is the th circuit correctly understood this argument cannot be correct and that is true for five reasons number one receiving one's regular wages law and leave his indisputably an advantage profit privilege or gain of employment and that makes it a right or benefit under the plain language  statute number two nothing in the parent that occult even purports to change that it uses the word including which makes it a luster to vlad's rather than definitional and the supreme court's recent decision in boston confirms that there is no such thing as a canon of donut holes and the reason you know there's a historical reason why the the parent who refers only to wages for work performed and it's that's because that narrow category used to actually be excluded from the definition but congress eliminated that exception in two thousand and ten and made that elimination retroactive and it decided to eliminate that one express exception and in doing so that did not somehow create a new implied exception and then finally i would just note two more things one the parent benteke will further confirm everything that follows the parent medical and the statutory definition i think further confirms that we just for work not performed must be included because things like severance pay and vacations are included and then finally this court's other non security benefit during that leave it must provide that same non security benefit during comparable military if for example the employer allows employees to accrue vacation days on a nonmilitary during comparable military before take the court's decision it was a minor there because alcoa provided the specific benefit of holiday pay to employees on jury duty you service predecessor statute required a couple to provide the same specific benefit to employees on not about the labeling of the leave i agree with you about the comparability regulation of course comparability is not an issue right now in this case because you're conceding it for purposes of the motion to dismiss but what the supreme court has explained in numerous cases before you sara was an act i'm thinking of cases like coffee and foster and car and the like is that you look at the real nature and in all of those cases the supreme court looked at  benefits of vacation as a whole it did not do what the plaintiff in this case wants to do which is this aggregate benefit say actually what you're really getting when you're getting the benefit of vacation is not the benefit of vacation but the right to leave work and not get fired that's one benefit and also the right to receive pay and that's another benefit right so as applied to this case take the benefit of paid sick leave i think the dispute between the parties is whether is how to characterize that benefit under forty three thousand and thirty two dollars under userra is paid sick leave paid sick leave in which case plaintiffs theory makes no sense because they don't even say that fed ex failed to provide them paid sick leave when they were on military leave or is the benefit the right to leave work when you're sick as one saw benefit plus the right to receive pay when you're gone as another sub benefit and i think that question comes our way and it's answered by the most of them come from those old supreme court cases that i mention i don't read but i'll go with other language like including it any really broad language to to suggest in any means without regard and this is but it reminds me of that old securities fraud case against the united states where the supreme court says that section ten b of the exchange act is a catch all provision but what it catches must be fraud is the same thing here the benefits decision is it is a all provision but what it catches has to be a benefit not some gerrymandered subject benefit some piece of a benefit and the reason i think the illustrations are important is because if plaintiff was right about the way to characterize the benefits it wouldn't say vacation it would say the right to leave work you know and not get fired that's one benefit and the right to receive pay while you're not working and that's another benefit there's another piece of the definition that i getting receiving pay while you're not working as one of those things but you can also described employment perks as an advantage of employment right but no one would think that employment perks is a benefit you have to figure out what the right level of generalit the broad category the broad description is it and my point is that the definition operates as pacific level generality and one way you know the level of generality is the exemplars they're all about specific benefits not descriptions of benefits and not some benefits like the right to receive pay but nd it's not just privileges of employment or bennett is employment it's the kind of privileges or advantages of employment that are defined in employment contracts or policies and employment contracts or policies as we know from the allegations in this case in paragraph three and as we know from all the supreme court cases and other cases that evaluate benefits established benefits as a whole employment contracts and policies don't typically establish a benefit in the way the plaintiffs would like it says you have you get paid sick leave you get vacation you get paid jury duty leave it doesn't say well here is you know a benefit of you have the right to leave work when you're sick here's a separate of you have the right to receive pay when you're not at work because you're sick right it's a package and what they're trying to do with respect your honor is to gerrymander a benefit that is common to all of these leaves because of course they would be right if the right way to look at a benefit is this you can break them all apart and say well all of these include the right to receive pay when you're gone well then it answers the question of whether you know your employer is providing a specific benefit during one kind of leave and not during military leave but you have to decide in the st instance whether that is the right way to characterize the benefit under that definition and it seems to me that the answer to that  clear not just for the two reasons under the definition itself one being vacation would not save it cation if that was the right level generality and that i'm the other being the employment contract point but look for example about how the department of labor this court the federal circuit described one particular benefit paid military leave they don't describe it as unpaid military leave plus the right to receive a when you're working for the military they disc describe it as paid military because the definition operates at the level of the specific benefit as a whole not you know desegregated into into little pieces or take we say several sources including appellate decisions the department the department of labor the congressional research service at pages thirty five dollars to thirty six dollars of our brief that all explain that paid leaps like the ones at issue in this case are uniformly understood not on wage compensation so the idea that the actual benefit that you're getting when you're on a paid leave is a wage is just a contradiction in terms the whole point of paid leave is that they are on top of your regular wage you take a look for example at one hundred and thirty two dollars of the appendix which is a bureau of labor statistics document that the plaintiffs attach to their opposition to the motion to dismiss and it sets forth  different costs of employment and the st one dollar is wages and salaries right and then the next one is the next category is paid lease including vacation how they pay sick sick leave and personal wages is a different thing then then paisley's precisely because paid leaves are non wage compensation so again it's just very strange to suggest that the benefit that you're receiving when you're on paid sick leave or paid military leave or people bereavement leave is a wage rather than the ability to go on vacation right or the ability if paid leave a benefit or a category of benefit paid leave is a category of benefits each one of the leaves at issue in this case that that focus on jury duty at alcoa got their regular wages too but it held the jury duty should only be seen as a step wishing the right to holiday pay and not the right to compensation for the other days worked and they said that because the dissent in that case accuse the majority of saying well if you're right about holiday pay then you also it also has to mean that the employer would have to provide paid military leave and the court said no we are not saying that so the idea that congress took this court's case everybody agrees it adopted walter meyer in four thousand three hundred and sixteen b but that it adopted our reading that bolton meyer explicit expressly said it was not adopting also seems quite bizarre to me especially and we're not saying that the fact that people on jury duty are our get their regular wages means that you have to provide paid military leave me only i'm not suggesting that's the holding of the case but i am suggesting that when congress tells you that a particular decision is the basis for a new statute you should look at what the decision it is holding but you should also look at what the decision says it's explicitly not holding in determining what the scope of the statute is now i think we're right on the text of the statute but just you know setting that point aside for a nd it seems to be a little bit weird to expand walter meyer to the point that you know that the baltimore court said it was not reaching right when you construe four thousand three hundred and sixteen be especially when congressman rush the supreme court excuse me in my role explained that if congress was going to establish a paid military scheme it would do so expressly just as it did so expressly with respect to federal employees but of course nobody argues that there's any kind of clear statement here the argument is that congress created a paid military leave scheme through the definition of benefits and you have been terrific i've watched part of the head under under your  d where which which allows employees to take for example vacation when they're on military leave and precludes employers from stopping them from taking vacation so in that limited respect yes but no i think the answer the more general answer to your question is there is no circumstance under which fed ex or any other employer would have to provide paid military leave just because they provide some sort of paid  leave you know paid nonmilitary leave because that because of no instance of paid nonmilitary leave would be comparable to paid no to military life no it's not about comparability it's about the fact that the only way you can get to that result is by splitting whatever pete military leave it is so say paid sick leave into constituent pieces that are not themselves benefits paid sick leave would be the benefit but the only way you get to that theory is to say well paid sick leave is a benefit there are two benefits there is a leave of absence for being sick and there is the right to receive wages while you're gone if you will if you view the benefit that way then you could get to plaintiffs theory but as i said i think that's inconsistent with the definition under forty three thousand and thirty two dollars and it's inconsistent with the general view that paid leaves are non wage compensation and so it's just a little bit strange to say that the real benefit that you're getting when you're on a  provided by this employer to make sure that no one sorry nonmilitary employees are treated equally right with respect to benefits so so for example if military if nonmilitary leaves about with let's say jury leads are comparable but receiving pay while you're on leave is not itself a benefit the paid leave itself is the benefit you can't break them up into the some pieces in gerrymandered them so that you can so that you can stay to claim dollars b i think that's the essential question in the case whether the benefits take whatever benefit you want that's at issue here paid sick leave is a benefit of paid sick leave or whether you have to break it up and categorize it as the right to you very much mayor please the court just three quick points in rebuttal if i may and i want to begin just by taking on this this level of generality argument that my friend just eloquently presented our position is very simple here congress wrote a statute and it defined a term and that definition of the term governs here not anything else not anyone's conventional understanding of what a wage might be or non wage compensation or a benefit simply the words that congress wrote in the words here are very broad and very clear and at the end of the day i think a hypothetical really really will drive it home so that my friend and i are our employees  fed ex i take leave for jury duty or leave for sick leave and my friend takes leave for military leave or both on two days i receive a and my friend does it and what fedex cannot deny is that there is a disparity of treatment between the physics can only win a subpoena i should say if that extra thing that i received is not a right or benefit under the statutory tax which is to say not a profit or gain of employment and the fundamental problem for fed ex is that pay is not just a profit or gain of employment but the mean to sensual profit or gain of employment and this is consistent with congress intent in four thousand three hundred and sixteen b to enact a most favorable treatment rule with respect to all attributes of the employment relationship it would be bizarre to claim that my hypothetical my friends who didn't receive any money at all was given the most favorable treatment with respect to the two of us i just don't think that's the way that anyone would view that scenario and it's certainly not in keeping with the broad statutory text that congress enact and now can you imagine a scenario whereby the act would not have to pay provide paid military sure i'll give you two examples one is if of course if as  the case proceeds of the jury beautified that nine you know as we get a record on some of these other leaves a jury were to find that none of these leaves for which fed ex provides pay is comparable to paid no to military leave then in that scenario fed ex would know anything but another example be a fed ex didn't have any comparable leave any you know if they didn't make if they didn't pay employees when they took sick leave or bereavement leave or or jury duty leave and this actually does tell us nicely with another point i wanted to make which is about that the ramifications of accepting our interpretation of the statute this is something that the th circuit pointed out in its decision as well and i think fed ex in making its elephant in mousehole point and its other policy points simply fails to understand misunderstands that the limits are here we are not claiming that congress erected our opposition is tantamount to a requirement that all employees everywhere provide paid military leave and certainly not of unlimited duration and that the the leave be fully paid that is not our position our position is just equal treatment so if an employer has a policy for example of providing just five days of paid sick leave per year and a jury were to i'm going to give each of you erm ten days of vacation pay and i'm going to give you five dollars days of sick pa clear does not apply to vacation leave which is voluntary we're talking about leaves that are involuntary into the ten days of paid leave that wouldn't enter into the equation here so we just be talking about the sick leave and why wouldn't the employee in that circumstance would have to show that the sick leave is comparable to the military leave and duration would be a key factor in engaging in that analysis and that's set forth in the regulations not at issue at this stage of litigation will get to it down the road but at most if there were a finding of comparability the benefit that is provided to employees when they take sick leave is a maximum five days paid the paid days per year and so it would be that same benefit five days  of paid leave that would have to be provided to military to the to the reservists who takes military leave and for their all the other days above the five days those would be unpaid that's my understanding of our position is just an equal treatment of all but i think your hypothetical nicely illustrates the modest position that where we're setting forth and this is not some this is the final point i was going to make this is not some radical creative novel interpretation of the statute if it was hiding it was hiding in plain sight i mean that the dissenting judge judge hunter in in this court's decision walter meier although the majority took pains to limit the scope of its holding understood the ramifications of finding that that the leads were comparable and that receiving pay from an employer is a benefit and the federal circuit entirely recognize exactly the same point in two thousand and seven the that case involved what is basically walter meyer for a long term believe a two and a half year deployment and although the court in that circumstance found that case found that that two and a half year leave was not comparable to short short leaves of short duration such as jury duty leave it did correctly understand that the consequence of finding comparability would mean that quote because the agency the employer there was the federal government pays the salaries of employees who are absent to service jurors it would be required to pay mr tolley the plaintiff in that case his full salary and leave so it understood the ramifications and then just last month the th circuit reached the same conclusion so that's three different federal circuits over three different decades and it's understood that our position is mandated by the text of the statute if there are no further questions i think much less porter any