good morning ladies and gentlemen we are actually going to change our order of cases slightly this morning and so we are going to begin with it's listed as nd on the docket erik white versus united mr taylor again thank you and may have please the court jonathan taylor for the plaintiffs eric white usera in titles any employee when taking leave from work to perform military service to receive all non seniority based rights and benefits that the employer provides for any nonmilitary leave that is comparable to those rights and benefits very among the different types of comparable leave in the military leave must be given the most favorable treatment at issue in this appeal are two distinct questions that flow from this most favorable treatment provision number one does the term rights and benefits include paid leave that is continuing to receive when this normal pay while one dollar leaves and number two has depleted if in this case a reservist who occasionally takes a short amount of time away from work to perform military training exercises is he properly alleged in his complaint that such short term military leave is comparable to other forms of leave such as jury duty leave and sick leave in the answer to both of those questions question yes does the record show say the shortest time that he would be off on this reservist lee and the longest time is like a matter of a weekend versus two weeks or do we have any idea so that's not in the record in the complaint it says that he occasionally takes short amounts of what i can say is that what typically happens is reservists perform weekend drills once a month it's a day or two typically it's on the weekend so ordinarily most employees don't need to take leave for those drills and then there's a two week your training that occurs as well and so it depends on the particular schedule that the that the plaintiff has but it's not uncommon for him to take a day or two a month and then a longer portion per year for that annual training and more rolling schedule i believe that's right yes and so easily little bit abnormal as compared to the typical employee who works monday through friday and that might mean that he occasionally has to take more you know a day or two here and there for these weekend drills but in that sense it's not he's not unlike a person who is called to perform grand jury service for example who might be required to take multiple days per month for a year or more while while away from work  question with regard to the interpretation of four thousand three hundred and sixteen be won if we're if we find your argument with regard to the text of the statute persuasive but we find united's argument with regard to the context if those two provisions are crystal clear then i think the supreme court's cases have made very clear that you follow the text and there's no need to resort to context or some other statute to clarify the meaning and so i do think it helps to begin with the text and we can talk about the context in a nd but if you begin with the text the text here is very clear the term rights and benefits includes paid leave in our view because of a straightforward understanding of the text usera defines the term broadly to include any advantage of profit privilege or opinion of employment without any exception and paid leave is unquestionably an advantage of profit privilege or a gain of employment so i do think you could just decide the for the st question in th case without resort to anything else but united makes one argument that if you want to respond to that is rooted in the text in the argument it is because the definition contains a parent that a call that says including wages of salary for work performed that only such wages are included not paid leave and that is incorrect for five reasons one is that receiving one's regular wages is of course as i just mentioned  which makes it illustrative rather than restrictive and the supreme court's recent decision bostic makes clear there is no such thing as a canon of donut holes just the opposite number three the reason the parent that it will refers only to wages for work performed is that that category used to be excluded but but congress eliminated that one exception in two thousand and ten and in doing so it didn't somehow create a new implied exception that wasn't there before number four that the language that follows the parent medical confirms that wages for work not performed must be included within the scope of the statute because it speaks of things such as paid vacations and severance pay as being examples of covered rights and benefits and then finally reading the definition to somehow exclude wages for work performed after work not performed would conflict with the rd circuit's decision walter minor with the claim to benefit was the right to receive wages for days not worked and congress then  meyer and defined the the statutory term rights and benefits broadly to include all attributes of the employment relationship in quite plainly that covers paid leave as well and so i think this is why in this you know you see united look to context to try and stitch together some argument to authorize this court to revise what is otherwise quite crystal clear misleading century before just before you get to context let me let me ask you on the statutory tax there are two contra indicators are they not are there not eleven is in four thousand three hundred and sixteen as the company points out and then another is that title five provision operative provision here i don't think there are there is a requirement revising the definition and i'm glad you asked that question if i mail take them in reverse order and begin with the military leave statute and then turn to the d the the federal government's decision to provide military leave to its own employees does not change the outcome here for three reasons the st is that it's not part of you sarah and you sarah's plaintext is unambiguous and so you don't need to look anywhere else but number t the military leave statute and you sara have entirely different purposes the lead statute is the government acting as employer creating a policy and employment policy for its employees usera is the government acting as a regulator creating a rule that all employers public and private alike must comply with the fact that the federal government has employer might have a policy that complies with its own rule as a regulator is as an surprising as it isn't helpful in trying to determine what that rule me if anything the existence of this lead statute would appear to undercut united start human because if it's to which i think would be stronger if the statute didn't exist and there were some gaping disparity between jury duty leave and sick leave on the one hand in the military and even on the other so in that sense united's reliance on it is a bit puzzling to me but i will just say that even if it were relevant the federal military statute exists or he could reason it's an absolute entitlement that federal employees get automatically he doesn't that are not anything else a critical distinction there are other statutes to where one might have an entitlement there's no entitle been created by sarah but there's simply a statement that if certain kinds of leaves are given then military leave has to be just as good any employer united could abolish paid vacation tomorrow it would have this problem that's exactly right and so i think it is the difference military leave under it they don't have to prove comparability they don't have to suffer the indignity of going into the you know h r in heckling every time they want to take one day off to perform weekend service they get automatically and their the pay is fully paid so they get on top of their military pay and it rolls over and it can also be used for active duty service so if an employee has accumulated fifteen days of leave from the previous year and fifteen days for from the current year and then they get you know called into active service they've got thirty days of leave there for them and so i think this is it's really just it is sort of apples and oranges and then real quickly just you know before i sit down for a nd i do want to respond to the point about sub subsection decent and sixty d and in particular the department of labor its decision to exclude paid sick leave from this and so what this provision does is it says the statute says that when an employee takes military leave they they entitled to use certain benefits like accrued vacation leave while in lee's and to the department of labor has interpreted that to exclude paid sick leave and united makes the argument that that somehow inconsistent with their position and that's not correct the st thing i would note just as a predicate to my response is that this rule and the provision that it interprets doesn't purport to interpret rights and benefits and if anything it's relevant only to the comparability of sick leave not jury duty leave but even as to that question our position is fully consistent with this rule mr court in travers vs fed ex recognized as much and the reason for this is simple say an employee provides five days paid sick leave which is a pretty common  amount maybe it's two weeks but a short amount that's fixed income if sick leave in short term militarily are comparable then the employer must also provide five days of paid military leave and so you have a river reservists who takes that two weekend your training good morning your honour's shad for escalus stay on behalf of the apple ease when congress passed you sarah it had long been understood that you sarah's predecessor statutes did not require employers to provide paid military leave the supreme court said so in monroe it would have been no small thing if congress to change that yet and mr white's interpretation of userra over half of the civilian workforce including nearly all state and local government employees became eligible for paid military leave when congress passed  comparability judge what if i can make two points in response to that one on mr taylor's argument mr white's view there is no comparability analysis to conduct because military leave is categorically comparable to paid sick or jury duty  nowadays and in one thousand nine hundred and four have some sort of paid sick or jury duty leave that requires them to do this there are various state and local laws that require it the chamber discusses this a little bit at page ten and notes that thirty six dollars states plus the district of columbia require at least one form of paid absence that on the others on mr taylor's view would be comparable to military leave and addition the record the  record before congress showed that even in one thousand nine hundred and four more than half of the civilian workforce worked for employers that provided paid sick or jury duty leave and nearly all state or local governments provided that so why why do well why can't congress say that are you know what i'm saying that congress in some fashion went beyond its authority by saying that you're entitled to such other rights statutes don't require paid military leave if it wanted to do that it would you would have expected it to do so clearly and you would have expected it to do so with some hint some contemporaneous evidence of any sort that that's what congress was doing w mean i understand the majority in both stock they didn't really care about the expectations of the one thousand nine hundred and sixty four congress when the civil rights act was passed so why where are you getting this requirement from  we have hold on a minute we have a sound problem  if you can hear me i assure you your time is not going to be held against you here it would you be able to dial in instead of just doing a video if you can hear me involved a situation where congress was passing the statute that was an entirely new regulatory regime title seven was a brand law this is a situation where congress is legislating against a preexisting backstop and that preexisting backdrop including in supreme court cases like monroe was quite settled that paid military was not required by you sarah's predecessors if congress wanted to provide mandatory paid military leave of course it would be within its authority to do that but you would expect there to be some hint that that's what congress was doing and congress don't you know didn't learn something from the distinction between the title five provision which isn't in title meant to paid military lee's and comparing pharaoh which is not a right to paid military leave it's just a right to equivalence what i think you've i think you do learn something which is that the title five provision shows that when congress wanted to create an entitlement to paid military leave it knew how to do that now when and then the language and you sarah did not do that and you sarah it knows how to do it but it didn't well but but the key we now have the parents that are full including wages or salary for work performed which show the congress included wages or salary in the definition of rights and benefits only where the wages are salary are for time that actually work congress that showed it awareness that without that inclusion wages or salary of any other type are not benefits so what about beyond that what about vacation pay so the statute doesn't actually refer to vacation pay it refers to vacation vacation is something that earned time away from work so all the statute is saying there as with the holiday pay that was an issue and walter meier is that if you approve a cation when you're on jury leave or sick leave you also have to accrue it on military leave assuming comparability but just by including the cation there is a cave in is something that is on top of your ordinary wages because it's it again the the accrued right language and i think you know you you acknowledge you know concede that it's so broad as to pick up the coverage that his client is seeking suppose we have a hypothetical employer that sets up a relieve that it calls civil service training and the point of that is for those those members of the staff that do good deeds in the community there are volunteer firefighters there volunteer  workers and the like the company wants to cover that wants to pay for that absence and it may be along the same lines of the short term duration that we're talking about here  wouldn't somebody like mr white have a decent argument if his pointing to the breadth of this language if his employer said no that just extends the e m t and firefighters it does not cover your duty at the i think that example would be different from our case in a couple of respects one i do think the comparability analysis might be stronger there because of the similar purposes of the kind of civil service training leave  you're contemplating and the purposes of military leave but also that kind of a program would look more like the holiday pay program that was that issue in walter meyer because you have there a system where in order to qualify for particular you satisfy certain conditions in order to qualify for civil service training and if you are on leave for a nonmilitary reason if you qualify and then the military leave has to be treated matter so that here's what here's what concerns me about that answer your you're responding to it by going to the point that i think makes good sense it's what judge wood is pointing to that it's really this is a comparability statute it's an anti discrimination statute if you will all i was trying to do with my hypothetical is provide an example of paid leave ok for people that do things that are  in the public interest if you will they're kind of civil that shows a degree of civic commitment and it seems that this statutory scheme is all about asking well it is that comparable to what this service member is seeking and i don't know with if that's the way that it's analyzed is a statutory matter on that hypothetical why we wouldn't analyze it that way on these real facts and your client may well prevail at the comparability phase of this i just another one is can you in other words put your put your response if you're able more in statutory terms rather than the purpose of the leave  in statutory terms i think the answer is that the statute does not provide for for the statute does not provide for paid military leave just because the employer offers some other different kind of leave if the statute offered that agreed and read but if you talk if we talk about my civil service training right you say the employer doesn't have to choose to do that but they are they've made a choice in so mr taylor's client is going to say well the moment they make that choice i'd sure like the same pay when i do guard duty here i think is the difference that there might be an argument in which under which somebody on military leave should qualify for the civil service leave because if you allow an e m t to qualify you also have to allow a reservist to qualify for the civil service leave there is no argument may be its purpose but under that but the way that any jury duty leave policy is written it's not a general civil service policy the way judge scudder's positing it is a crock there but i agree it's not a general one it's narrow guttersnipe right and so the question is does the employer have a type of leave for which military reservists need to be deemed qualified no one would say that a military reservist who's taking leave ought to be paid because he or she has qualified for jury duty leave you might say that what you're saying that but i think mr taylor certainly arguing that i don't think this well i don't think that mr taylor would argue that either i think mr taylor would argue that the military reservists ought to be paid because the person on jury duty is being paid but that's different from saying that the military reservist has qualified for jury duty it may be under judge  that the military reserve is actually ought to be deemed to qualify for civil service leave in much the same way as in walter meyer and walter meyer you had a statute review having a policy where the employer provided holiday pay as long as the it does address how one assesses comparability and it says that in order to decide whether any two types of leave are comparable it doesn't say would you qualify for both types the duration may be the most significant factors so if you get a two day funeral that you that's not comparable to a six month stint in iraq those are just different and then it just as other factors such as the purpose the to when to take i don't see the criterion that your arguing for in this regulation judge would that that's true but that's because the regulation only applies at the next phase of the analysis if we think that there is actually a benefit that might be protected and the problem here i don't even think we can get to the regulation in terms of assessing that kind of comparability the question is is there a protected benefit  d there is no protected benefit or right under the statute to be paid for work not performed as a general matter no employer has a general paid leave policy what employers have is policies that you get if you get paid leave if you satisfy certain conditions and so again a judge scudder's hypothetical if some people are deemed to satisfy the civil service leave for e m t service then maybe we get to the comparability analysis but that's only because you have the kind of program that triggers the protections of the statute in the st place merely having jury duty leave or sick leave that's not something that you can qualify for by being on military leave it's not even a comparability question to provide pay in that situation would simply be providing paid military leave of the sort that congress understood before it passed usera was not required by the predecessor statute and of the sort that congress knew how to provide when it wanted to in the federal leave statute only me about your about your response there which makes me think i'm missing you're being clear and i'm missing something i t seems that what you're doing when you take when you take the civil you know the civil training leave is you're saying oh yeah you might need to go through a full blown statutory analysis including on comparability because the starting point for that looks like a service member may be being deprived of something that should fit within the ambit of that of that leave policy on on a comparability analysis it just seems to beg the question a bit because it seems like you on jury duty in sick pay is well those don't start from a sufficient enough you know comparability ground and therefore you know they're the service members you know should not get comparable pay other in other words it seems like it's begging the question a little bit i think the only argument for providing somebody for writing a military reservist with pay because there is a sick leave provision would have to be that as long as the employer provides some kind of leave any leave they also the old boy also have to provide military leave that is paid in the same way the sick leave is paid the problem with that argument is that it treats pay for work not performed without satisfying any particular conditions for it as a right for benefit under the statute but good for the reason is zero in on that for a minute i know this is a big part of your argument because you seem to see this is binary it's either all were not performed or not but in fact under a comparability regime an employer may pay for some work not perform so to speak an employer may pay  some periods of time during which the employee is not working and the employer may choose not to pay for other periods of time maybe they have a maybe they don't have a family leave policy that would give pay so they comply with the f in that lane they give unpaid time off for the birth of a child or an illness in the family but they don't get paid time well on a comparability rule that's work  that's a policy about non working time in seems that there might be some time simpler would cover and others would not i think you're right george would that there's variability in policies but but i also think that the vast majority of employers are going to provide some amount of fully paid sick leave and paid jury duty leave of the sort that mr taylor would argue is just categorically comparable and that brings us right back to the point of congress having created on his view through this statute a paid military leave requirement for the vast majority of employers and if congress had done that that would have been a sea change relative to the preexisting regime without and without any clear indication that that's what congress had done in a way that effectively overrode the much clearer federal leave statute which does provide for paid military this kind of a sea change and if and construe the statute otherwise would create redundancy with other provisions of userra would make in comprehensible congress a subsequent amendment to the federal leave statute and would also be inconsistent with the including parents at a poll in forty three thousand and thirty two itself thank you ron thank you very much mr taylor thank you very much just a few quick points in rebuttal but before i get there i do want to just pick up where my friend on the other side left off and i want to clarify something about our position our position is not that if an employer provided say five days of paid sick leave that if that leave is comparable to military leave then there is some unlimited amount of paid military that's not our position be the benefit that is provided or just five days of paid leave it would be the same as but not you know more favorable for the military reservist but the points i would like to focus on rebuttal if i may i'd like to  intent the best evidence of congress is intent of course there is the words that it uses in legislation in the words here are clear and could those words have been clear i suppose but as the supreme court recently reminded us in boss doc that's not relevant all that matters are the words that congress actually wrote and a court needs to if interpret those words as faithfully as it can but if you wanted to look beyond the text the legislative history here i think leaves no doubt that congress understood what it was doing it explicitly said that it was caught a fine walter meyer and so it had read that decision and approved of it and in reading that decision it would have kept going and read the dissent which then made the point that if the majority opinion in that case were correct then it in execrably leads to the conclusion that paid leave is a writer benefit that would be needed to provide the provided equally to an employee who takes leave for jury duty for example and so it could not have been a surprise to congress that that by enacting that statute saying nothing about that situation but instead using incredibly broad language that it would bring about that very result and i would just it quickly on the practical effect i would underscore that again our position here we're just focusing on short term paid our short term military leave not long term military leave at the time usera was enacted the vast majority of state and local governments and in the federal government as well provided paid military leave while many employers provide some form of paid sick leave or pay jury duty leave the vast majority of states do not require that and for those who do that do it's just a very small amount of time so it's just five days than that w and real quickly on comparability i think as as judge would your your questions pointed out the department of labor has regulation points the way here and duration is the most important factor we don't have a right a record duration the other factors are whether the employee has the ability to choose when to take the leave and the nature of the lease and there's a reason why united in its brief didn't couldn't point to a single case other than a district one hundred and twelve dollars sentences of analysis that actually resolve this question at the threshold in its favor and united itself didn't even make the argument below and the department of justice in bringing a case called would all during the bush administration record took the position that military leave is comparable comparability is not a reversal of judged or goal alone and a declaration that there is comparability but rather you're seeking it remained yes i think there would just need to be some discovery taken that we just don't have a record  the key points and if i could just kind of bring this all together with a concluding thought united has made the decision that if one of its employees is called to perform grand jury service for it and they're required to take  from work for a couple of days a month for a year or more that those employees will receive full pay while they're gone and all we are saying is that having made that decision united has to do the exact same thing when an employee is some in to short similarly short term military service it's about equality not preferential treatment our nation owes these veterans that much and you cited usera entitles them to that much as a matter of law thank you