FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DALE HUHMANN, an individual,

Plaintiff-Appellee,

v.

FEDERAL EXPRESS CORPORATION, 

DBA FedEx Express, a Delaware 

corporation,

Defendant-Appellant.

No. 15-56744

D.C. No.

3:13-cv-00787-

BAS-NLS

OPINION

Appeal from the United States District Court

for the Southern District of California

Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted June 6, 2017

Pasadena, California

Filed November 2, 2017

Before: Carlos T. Bea and Andrew D. Hurwitz, Circuit 

Judges, and J. Frederick Motz,* District Judge.

Opinion by Judge Bea

 * The Honorable J. Frederick Motz, United States District Judge for 

the District of Maryland, sitting by designation.
2 HUHMANN V. FEDERAL EXPRESS

SUMMARY**

Labor Law

The panel affirmed the district court’s judgment, after a 

bench trial, in favor of the plaintiff, who alleged that upon 

his return from military service, he was entitled to a higher 

signing bonus from his employer under the Uniformed 

Services Employment and Reemployment Rights Act.

The panel held that arbitration was not required because 

the right awarded by USERRA neither arose out of nor relied 

on an interpretation of the parties’ collective bargaining 

agreement, and so the parties’ dispute was not a “minor 

dispute” under the Railway Labor Act.

The panel held that in analyzing the plaintiff’s USERRA 

claim, the district court correctly considered first, whether 

the plaintiff had established that his military service was a 

“substantial or motivating factor” to cause an adverse 

employment action, and second, whether the defendant 

employer had established an affirmative defense that it 

would have taken the same action without regard to the 

military service. The panel held that the district court 

properly used the reasonable certainty test, asking whether it 

was reasonably certain that the plaintiff would have qualified 

for a higher bonus had he not left for military service, as an 

aid to the burden-shifting analysis. The district court also 

properly relied on the escalator principle, which provides 

that a returning service member should not be removed from 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
HUHMANN V. FEDERAL EXPRESS 3

the progress of his career trajectory. The panel concluded 

that the district court did not clearly err in finding that the 

plaintiff was reasonably certain to have achieved the higher 

bonus status had he not left for his military service, both as 

a matter of hindsight and as a matter of foresight. The panel 

also affirmed the district court’s conclusion that the bonus 

was, in part, a seniority-based benefit, and the plaintiff’s 

claim was not barred by 38 U.S.C. § 4316(b)(1).

COUNSEL

Jane M. Flynn (argued), Federal Express Corporation,

Irvine, California, for Defendant-Appellant.

Brian J. Lawler (argued), Pilot Law P.C., San Diego, 

California, for Plaintiff-Appellee.

OPINION

BEA, Circuit Judge:

We are called upon to decide to what benefits a returning 

service member is entitled when resuming a civilian career. 

The Uniformed Services Employment and Reemployment 

Rights Act (USERRA) guarantees that an individual who 

departs for military service shall not be denied any “benefit 

of employment” due to that service. 38 U.S.C. § 4311(a). 

Dale Huhmann argues that, when he returned from service 

in the United States Air Force, FedEx Express (FedEx) 

improperly paid him a $7,400 bonus instead of the $17,700 

bonus he would have earned had he not served. For the 

reasons that follow, the district court’s decision which 
4 HUHMANN V. FEDERAL EXPRESS

awarded Huhmann the higher signing bonus, in addition to 

attorney’s fees, is affirmed.

I.

Dale Huhmann was commissioned as an officer in the 

United States Air Force Reserve in 1985 and retired in 2006. 

Huhmann was hired by FedEx in 2001 to pilot a Boeing 727 

aircraft, a “narrow body” aircraft for pay grade purposes. 

Pay grade at FedEx is in part determined by the aircraft the 

pilot flies and the role the pilot has in flying it. Huhmann was 

later selected by FedEx for training to be a first officer on a 

McDonnell Douglas MD-11 aircraft, a “wide-body” aircraft 

that would qualify him for a higher pay grade. That training 

was to begin on February 19, 2003. However, on February 

7, 2003, Huhmann was mobilized for active Air Force duty. 

He was deployed overseas until August 31, 2006.

After completing his military service, Huhmann returned 

to active pay status at FedEx payroll on December 1, 2006. 

Upon his return, Huhmann was given the option to continue 

to work as a second officer on the narrow-body 727 aircraft 

(727-SO) or to receive training for one of ten other open 

positions. He chose to enter training to become a first officer 

on the wide-body MD-11 (MD-11-FO), as he had been 

selected by FedEx to do prior to his Air Force mobilization.

Huhmann’s MD-11-FO training began on December 4, 

2006, virtually immediately after his return to FedEx. 

Training consisted of ground school sessions on the MD-11 

and its systems, training in flight simulators, and flying an 

MD-11 aircraft with a flight instructor. The final step was a 

validation flight or “check ride” during which an instructor 

carefully observed the candidate’s performance flying the 

MD-11 before later approving or rejecting his certification. 

Some pilots who enter the MD-11-FO training program are 
HUHMANN V. FEDERAL EXPRESS 5

unable to complete it. Huhmann did not fail any evaluation 

step during his training and was activated as an MD-11-FO 

on February 22, 2007.

Huhmann is a member of the bargaining unit represented 

by the Air Line Pilots Association (ALPA). On August 26, 

2006, while Huhmann was still on air force active duty, 

FedEx issued a letter to ALPA (the Bonus Letter) that 

offered a signing bonus to FedEx crewmembers if the union 

ratified a proposed collective bargaining agreement (CBA) 

then being negotiated. This Bonus Letter explained that 

pilots employed by FedEx on the day the CBA was signed 

(including those on military leave) who had been on active 

pay status on FedEx’s payroll during the entire “amendable 

period” (from June 1, 2004 until the day the CBA was 

signed, which occurred on October 30, 2006) would receive 

the full signing bonus applicable to their pay grade.

The Bonus Letter specified that military leave would be 

deemed equivalent to active pay status on FedEx’s payroll 

during the amendable period for purposes of qualifying for 

the signing bonus. Pilots on military leave would receive 

their signing bonuses upon returning to employment with 

FedEx. The Bonus Letter also specified that a pilot’s signing 

bonus pay grade would be determined by the highest crew 

status the pilot held during the amendable period. The 

signing bonus for a 727-SO was $7,400, while that for an

MD-11-FO was $17,700.

Upon Huhmann’s return to FedEx, he was paid $7,400 

as a signing bonus. He then filed this suit against FedEx. 

The operative first amended complaint alleged that FedEx 

had violated the Uniformed Services Employment and 

Reemployment Rights Act (USERRA) (38 U.S.C. §§ 4301–

4335) when it failed to pay him the signing bonus owed to 
6 HUHMANN V. FEDERAL EXPRESS

an MD-11-FO,1 which Huhmann contended he would have 

been awarded had he not left for military duty. After a bench 

trial, the district court entered judgment for Huhmann.

An employee making a claim under § 4311(a) “first has 

the burden of showing, by a preponderance of the evidence, 

that his or her protected status was a substantial or 

motivating factor in the adverse employment action; the 

employer may then avoid liability only by showing, as an 

affirmative defense, that the employer would have taken the 

same action without regard to the employee’s protected 

status.” Wallace v. City of San Diego, 479 F.3d 616, 624 (9th 

Cir. 2007) (internal quotation marks and citation omitted). 

The district court found that Huhmann’s military leave was 

a substantial factor in Huhmann’s receipt of the smaller 

signing bonus, and determined that FedEx could not 

demonstrate that it would have denied Huhmann the higher 

signing bonus absent Huhmann’s military leave.

In performing this analysis, the district court relied on 

two intersecting doctrines – the “escalator principle” and the 

“reasonable certainty test” – used to determine the status or 

position to which a returning service member is entitled. See

20 C.F.R. § 1002.2; Rivera-Melendez v. Pfizer Pharm., LLC, 

730 F.3d 49, 54 (1st Cir. 2013). The “escalator principle” 

provides that a returning service member not be removed 

from the progress (“escalator”) of his career trajectory, but 

rather return to a “position of employment in which the 

person would have been employed if the continuous 

 1 In March 2010, Huhmann had filed a complaint with the 

Department of Labor Veterans’ Employment and Training office (DOLVETS) regarding his reduced signing bonus. DOL-VETS issued a letter 

to FedEx asserting that the company had violated USERRA (and 

20 C.F.R. § 1002.193) and that Huhmann was entitled to the difference 

between the 727-SO and MD-11-FO bonus levels plus interest.
HUHMANN V. FEDERAL EXPRESS 7

employment of such person with the employer had not been 

interrupted by such service.” 38 U.S.C. § 4313(a)(2)(A). 

The “reasonable certainty test” aids in determining the 

returning service member’s position on the “escalator,” 

inquiring into the position a returning service member would 

have been “reasonably certain” to have attained absent the 

military service. 20 C.F.R. § 1002.191.

Courts applying the “reasonable certainty test” use both 

a forward-looking and a backward-looking approach. First, 

the court determines whether it appears, as a matter of 

foresight, that individuals like a given claimant who 

successfully completed training would have obtained a 

certain position had employment not been interrupted by 

military service. The court next analyzes whether, as a 

matter of hindsight, a particular claimant either has, or would 

have, completed the necessary prerequisites for a position. 

See Tilton v. Mo. Pac. R.R. Co., 376 U.S. 169, 181 (1964) 

(“This requirement is met if, as a matter of foresight, it was 

reasonably certain that advancement would have occurred, 

and if, as a matter of hindsight, it did in fact occur.”); see 

also Pomrening v. United Air Lines, Inc., 448 F.2d 609, 613 

(7th Cir. 1971) (“First, it must appear, as a matter of 

foresight, that pilot trainees who successfully completed 

United’s training course were regularly advanced to flight 

officer status. Second, it must appear, as a matter of 

hindsight, that Pomrening would have probably completed 

his training in the normal course had it not been interrupted 

by his military service.”). The reasonable certainty test 

applies to discretionary promotions. See 70 Fed. Reg. 

75,246, 75,271 (Dec. 19, 2005), available at 2005 WL 

3451172.

Together, the escalator and reasonable certainty 

principles guarantee that progress in the returning service 
8 HUHMANN V. FEDERAL EXPRESS

member’s overall career trajectory has not been set back by 

his service. Applying these principles, the district court 

found that Huhmann would have been entitled to the higher 

bonus. The court found that it was reasonably certain that 

Huhmann would have become an MD-11-FO pilot prior to 

October 30, 2006 (the date the CBA was signed) and 

therefore would have been owed the bonus accorded to that 

higher status. The court found that the “process to qualify as 

[an MD-11-FO] is not an easy one, requires passing difficult 

exams at each stage of training, and some trainee pilots fail, 

trainees are given multiple opportunities to pass, and each 

pilot who passes qualifies as [an MD-11-FO].” But, the 

court noted, Huhmann did, in fact, pass all of the required 

tests, completed his training in approximately three months, 

and became employed as an MD-11-FO. It therefore 

determined that Huhmann was owed the higher signing 

bonus, along with attorney’s fees and litigation costs.

FedEx timely appealed.

II.

The district court’s findings of fact after a bench trial are 

reviewed for clear error, and its conclusions of law are 

reviewed de novo. OneBeacon Ins. Co. v. Haas Indus., Inc., 

634 F.3d 1092, 1096 (9th Cir. 2011).

III.

FedEx makes four arguments on appeal. We address 

each in turn.

III.A

FedEx first argues that this case should have been 

decided by an arbitrator. FedEx is an air carrier subject to the 
HUHMANN V. FEDERAL EXPRESS 9

Railway Labor Act (RLA), which mandates arbitration of 

“minor disputes,” including disputes over the meaning of 

language within a collective bargaining agreement. 

45 U.S.C. § 153; see Wolfe v. BNSF Ry. Co., 749 F.3d 859, 

863 n.1 (9th Cir. 2014); Hawaiian Airlines, Inc. v. Norris, 

512 U.S. 246, 253 (1994). FedEx argues that because the 

Bonus Letter was treated as part of the CBA by FedEx and 

ALPA and because analyzing the Bonus Letter is necessary 

to adjudicate Huhmann’s rights, Huhmann’s claim was a 

minor dispute. FedEx is incorrect, because the right awarded 

by USERRA neither arises out of the CBA nor relies on an 

interpretation of it.2

The Supreme Court has explained “that the RLA's 

mechanism for resolving minor disputes does not pre-empt 

causes of action to enforce rights that are independent of the 

CBA . . . . ‘[M]inor disputes’ subject to RLA arbitration are 

those that involve duties and rights created or defined by the 

CBA.” Hawaiian Airlines, Inc., 512 U.S. at 256–58 (citation 

omitted). Interpreting Norris, our court recognized that “[a] 

claim is preempted by the RLA only when the...claim 

involves duties and rights created or defined by a CBA and 

is therefore dependent on the interpretation of a CBA...In 

contrast, a...cause of action is not pre-empted by the RLA if 

it involves rights and obligations that exist independent of 

the CBA.” Wolfe, 749 F.3d at 863–64 (internal quotation 

marks and citation omitted).3

 2 FedEx’s motion for the court to grant judicial notice of the 2006 

Collective Bargaining Agreement is GRANTED.

3 See also Espinal v. Nw. Airlines, 90 F.3d 1452, 1456 (9th Cir. 

1996) (“Where a plaintiff contends that an employer’s actions violated 

rights protected by the CBA, there is a minor dispute subject to RLA 

preemption...By contrast, where a plaintiff contends that an employer’s 
10 HUHMANN V. FEDERAL EXPRESS

The basis on which Huhmann made his claim was the 

independent legal right under USERRA to be returned to the 

position and status at FedEx he would have enjoyed had he 

not left for military service. By statute – and not by either 

the language of the CBA or its interpretation – FedEx is not

allowed to use Huhmann’s failure to qualify for MD-11-FO 

status to justify paying him a lower bonus if that failure to 

qualify was due to Huhmann’s military service. The 

meaning of the Bonus Letter – and the attendant bonuses 

owed to individuals based on their status at the time of the 

signing of the CBA – is not in dispute. The only question is 

whether the undisputed terms of the Bonus Letter do not 

respect the independent rights granted to Huhmann under 

USERRA, as the Bonus Letter does not properly account for 

the status owed to an individual who has left for military 

service; i.e., it does not account for situations like 

Huhmann’s, where but-for a military leave, he would have 

attained a qualification which mandated a higher bonus. 

Even assuming the Bonus Letter is part of the CBA, since 

the terms of the Bonus Letter do not require interpretation, 

the right Huhmann seeks to vindicate is based solely on the 

USERRA statute. The dispute is not a minor dispute under 

the RLA.

III.B

On the merits, FedEx asserts that the district court did 

not actually apply the required burden-shifting analysis to 

Huhmann’s Section 4311(a) claim, but instead utilized the 

reasonable certainty and escalator principles, which FedEx 

 

actions violated a state-law obligation, wholly independent of its 

obligations under the CBA, there is no preemption. The RLA will 

preempt a state law claim, only if it ‘is dependent on the interpretation 

of a [CBA].’”) (citation omitted).
HUHMANN V. FEDERAL EXPRESS 11

argues apply only to claims regarding reemployment under 

Section 4312. FedEx is incorrect.

Section 4311(a) claims require a two-step analysis: first, 

the claimant must show by a preponderance of the evidence 

that his or her military service was a “substantial or 

motivating factor” to cause an adverse employment action; 

second, assuming the claimant has done so, the employer 

may avoid liability only by putting forward an affirmative 

defense that it would have taken the same action without 

regard to the military service. See Wallace, 479 F.3d at 624. 

Despite FedEx’s assertions to the contrary, the district court 

applied this two-step framework. First, at step one, the 

district court determined that Huhmann’s military service 

was the cause of the “adverse employment action”; namely, 

his receipt of the smaller bonus owed to a 727-SO, rather 

than the higher bonus of an MD-11-FO. But to determine 

whether Huhmann was, in fact, due the higher bonus of an 

MD-11-FO, the district court utilized the reasonable 

certainty test. It determined that since it was reasonably 

certain that Huhmann would have been an MD-11-FO had 

he not left for military service, and since in fact FedEx did 

not accord Huhmann the status of an MD-11-FO upon his 

immediate return from service, Huhmann’s departure for 

military service was a substantial factor in FedEx’s failure to 

pay the higher bonus. At step two, the district court found 

that FedEx had offered no affirmative defense that it would 

have taken the same action of paying Huhmann a lower 

bonus absent Huhmann’s military service. The reasonable 

certainty test, then, was used as an aid to the burden-shifting 

analysis required of a Section 4311(a) claim, not as its 

replacement.

FedEx’s argument that the escalator principle and 

reasonable certainty tests are “not applicable to 
12 HUHMANN V. FEDERAL EXPRESS

discrimination claims” under Section 4311(a) fails. FedEx 

accurately notes that the reasonable certainty test and the 

escalator principle were first articulated by the Supreme 

Court in cases that interpret the pre-cursor legislation to 38 

U.S.C. §§ 4312–13 of USERRA, which sections define a 

returning service-member’s reemployment rights after 

military service.4 But FedEx points to no language in Section 

4312 or Section 4313 which indicates that the reasonable 

certainty test and escalator principle are available 

exclusively for analysis of claims under those statutes. 

Neither does FedEx point to any binding, or even persuasive, 

authority which shows that the reasonable certainty test and 

escalator principle may never be applicable to Section 4311 

claims.

Indeed, Section 4311 indicates that the reasonable 

certainty test is entirely apt for the analysis of certain claims 

brought under that statute, as the rights guaranteed by 

Section 4311 include rights associated with reemployment, 

the analysis of which may necessitate the use of the 

reasonable certainty test.

Section 4311(a) states as follows:

 4 USERRA’s immediate predecessor was the Vietnam Era Veterans’

Readjustment Assistance Act of 1974, 38 U.S.C. §§ 2021–2027, later 

recodified at 38 U.S.C. §§ 4301–4307 and commonly referred to as the 

Veterans’ Reemployment Rights Act (VRRA). The VRRA was amended 

and recodified as USERRA. See 70 Fed. Reg. 75,246–01, 75,246. The 

rights that Congress sought to clarify in enacting USERRA were first 

contained in the Selective Training and Service Act of 1940, 50 U.S.C. 

§ 301 et seq. See 70 Fed. Reg. at 75,246. See also Rivera-Melendez, 

730 F.3d at 56–58 (1st Cir. 2013) (discussing Supreme Court case law 

interpreting a predecessor statute).
HUHMANN V. FEDERAL EXPRESS 13

A person who is a member of, applies to be a 

member of, performs, has performed, applies 

to perform, or has an obligation to perform 

service in a uniformed service shall not be 

denied initial employment, reemployment, 

retention in employment, promotion, or any 

benefit of employment by an employer on the 

basis of that membership, application for 

membership, performance of service, 

application for service, or obligation.

38 U.S.C. § 4311(a) (emphasis added). The definitions 

section of USERRA explains that a “benefit of employment” 

includes “any advantage, profit, privilege, gain, status, 

account, or interest...that accrues by reason of an 

employment contract or agreement...and 

includes...bonuses.” 38 U.S.C. § 4303(2).

The plain language of USERRA thus specifies that 

Huhmann was not to be denied a “benefit of employment” 

or “reemployment,” which benefit includes “bonuses.” The 

Code of Federal Regulations, incorporating the reasonable 

certainty test and explaining the escalator principle, instructs 

that “[a]s a general rule, the employee is entitled to 

reemployment in the job position that he or she would have 

attained with reasonable certainty if not for the absence due 

to uniformed service. This position is known as the escalator 

position.” 20 C.F.R. § 1002.191.

Given the circumstances of Huhmann’s reemployment 

with FedEx, the district court’s analysis made sense. It 

analyzed whether Huhmann’s “benefit of employment” – the 

higher bonus due to an MD-11-FO, due upon his 

reemployment with FedEx – was properly denied, and 

whether that denial was on account of Huhmann’s military 
14 HUHMANN V. FEDERAL EXPRESS

service. Since Huhmann’s bonus was based on his job 

position, and since FedEx was required to reemploy him in 

the “job position that he...would have attained with 

reasonable certainty,” 20 CFR § 1002.191, had he not 

deployed, the district court’s only recourse was to use the 

reasonable certainty test to consider whether it was 

“reasonably certain” Huhmann would have attained the MD11-FO status had he not left to serve in the Air Force, and 

therefore was due the higher bonus.

In other words, the district court’s utilization of the 

reasonable certainty test not only comported with Section 

4311’s guarantee that Huhmann not be denied “benefits of 

employment,” but also made a good deal of practical sense. 

If it was not reasonably certain that Huhmann would have 

successfully completed the MD-11-FO training in 2003 and 

therefore would have been in line for the higher bonus, it 

would be unreasonable to conclude that Huhmann had been 

denied a benefit of employment at all, much less to conclude 

that Huhmann’s military service was a “substantial factor” 

in FedEx’s failure to pay the higher signing bonus. Without 

evaluating the likelihood of Huhmann’s passing the training 

and achieving certification as an MD-11-FO, the district 

court would have been unable to evaluate Huhmann’s prima 

facie case under Section 4311, or otherwise to determine to 

which reemployment rights and benefits Huhmann was 

entitled.

III.C

FedEx next argues that even if the reasonable certainty 

test is relevant to a Section 4311 claim, the district court 

erred in its factual determination that Huhmann satisfied the 

test. We find that the district court did not clearly err when 

it determined that Huhmann was reasonably certain to have 
HUHMANN V. FEDERAL EXPRESS 15

achieved the MD-11-FO status had he not left for his military 

service.

In Tilton v. Missouri Pacific Railroad Co. the Supreme 

Court defined a two-part framework for applying the 

reasonable certainty test:

[W]e conclude that Congress intended a 

reemployed veteran who, upon returning 

from military service, satisfactorily 

completes his interrupted training, to enjoy 

the seniority status which he would have 

acquired by virtue of continued employment 

but for his absence in military service. This 

requirement is met if, as a matter of foresight, 

it was reasonably certain that advancement 

would have occurred, and if, as a matter of 

hindsight, it did in fact occur.

376 U.S. at 181. FedEx concedes that Huhmann satisfied the 

hindsight prong of this test because he successfully 

completed training as a MD-11-FO after returning from 

military leave. But FedEx asserts that Huhmann “cannot 

satisfy [the foresight prong] as advancement to an MD-11 

First Officer crew position was not based on the mere 

passage of time,” but rather on skill, ability, and the 

discretion of the flight instructors. FedEx notes that the 

Supreme Court has held that the reasonable certainty test 

was not satisfied when promotion depended “not simply on 

seniority or some other form of automatic progression . . . .

[But] is dependent on fitness and ability and the exercise of 

a discriminating managerial choice.” McKinney v. Mo. Kan. 

Tex. R.R. Co., 357 U.S. 265, 272 (1958).

It is undisputed that Huhmann had been accepted into the 

MD-11-FO training program before being called up for 
16 HUHMANN V. FEDERAL EXPRESS

military service. This suggests that his promotion turned on 

whether he would successfully complete the training 

program. While it is true that some pilots fail the MD-11-

FO training program, that fact alone is not sufficient to 

render the district court’s conclusion that Huhmann was 

reasonably certain to have passed the training (as a matter of 

foresight) clearly erroneous: the relevant standard is 

“reasonable certainty” not “absolute certainty.”5 Given 

Huhmann’s diverse and long experience as a military and 

civilian pilot, his past job performance, the multiple 

opportunities given to candidates in MD-11-FO training to 

pass modules they initially fail, and the fact that he was 

accepted into and scheduled to begin this training before 

being mobilized, the district court’s conclusion that 

Huhmann was reasonably certain as a matter of foresight to 

complete successfully MD-11-FO training was cogent and 

logical. At the very least, the district court’s conclusion on 

this point was not “illogical, implausible, or without support 

in inferences that may be drawn from the facts in the record.” 

 5 “It would be virtually impossible for a veteran to show, as the 

Court of Appeals would require, that it was absolutely certain, ‘as a 

matter of foresight’ when he entered military service, that all 

circumstances essential to obtaining an advancement in status would 

later occur. To exact such certainty as a condition for insuring a veteran’s 

seniority rights would render these statutorily protected rights without 

real meaning. As Benjamin Franklin observed, ‘In this world nothing is 

certain but death and taxes.’ In every veteran seniority case the 

possibility exists that work of the particular type might not have been 

available; that the veteran would not have worked satisfactorily during 

the period of his absence; that he might not have elected to accept the 

higher position; or that sickness might have prevented him from 

continuing his employment. In light of the purpose and history of this 

statute, however, we cannot assume that Congress intended possibilities 

of this sort to defeat the veteran’s seniority rights.” Tilton, 376 U.S. at 

180-81.
HUHMANN V. FEDERAL EXPRESS 17

United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 

2009).

III.D

Finally, FedEx argues that in light of 38 U.S.C. 

§ 4316(b)(1),6 which limits non-seniority based benefits 

under USERRA to those benefits available to other 

employees on non-military leave, the district court erred by 

not deciding if the signing bonus was a seniority-based 

benefit. FedEx argues that the amount of the signing bonus 

paid to Huhmann was not a seniority-based benefit, but 

rather determined based on crew position without regard to 

employee seniority, such that a longer-tenured 727-SO 

would receive a smaller bonus than a shorter-tenured MD11-FO. However, the district court correctly concluded that 

Huhmann’s bonus was, in part, a seniority-based benefit, as 

 6 38 U.S.C. § 4316(b)(1) reads:

(b)(1) Subject to paragraphs (2) through (6), a person 

who is absent from a position of employment by 

reason of service in the uniformed services shall be–

(A) deemed to be on furlough or leave of absence 

while performing such service; and

(B) entitled to such other rights and benefits not 

determined by seniority as are generally provided 

by the employer of the person to employees 

having similar seniority, status, and pay who are 

on furlough or leave of absence under a contract, 

agreement, policy, practice, or plan in effect at the 

commencement of such service or established 

while such person performs such service.
18 HUHMANN V. FEDERAL EXPRESS

it was awarded to him on the basis of his “longevity in 

employment” across the amendable period.

Section 4303(12) defines “seniority” as “longevity in 

employment together with any benefits of employment 

which accrue with, or are determined by, longevity in 

employment.” The text of the statute does not specify that a 

benefit can be seniority-based only if the sole element that 

determines its size is the number of years an employee 

worked for an employer.

Although other factors such as a pilot’s pay grade in part 

defined the amount of the signing bonus, the amount of the 

signing bonus was also in part determined by “longevity in 

service” over the amendable period, as a pilot who was 

employed by FedEx for only part of the amendable period 

would receive only a pro-rated portion of the bonus. The 

Bonus Letter explains that “pilots who were hired during the 

amendable period and pilots who were in an inactive pay 

status due to leave of absence or disability” would receive a 

prorated signing bonus, and that “[w]hen proration is called 

for, it will be based on the number of months a pilot was in 

an active pay status during the amendable period divided by 

29. For purposes of the proration, a month will count if the 

pilot was active for at least half of the calendar month.” 

Thus, had Huhmann not been either on military leave or in 

active service during the entire amendable period, he would 

not have been due a full signing bonus. The bonus, 

therefore, was a “seniority-based benefit,” as it depended in 

part on Huhmann’s being “employed” over the amendable 

period.7

 7 The Bonus Letter makes clear that “[f]or purposes of the signing 

bonus calculation, period of military leave will be counted as active 
HUHMANN V. FEDERAL EXPRESS 19

Relevant Supreme Court precedent compels this 

conclusion. In Alabama Power Co. v. Davis, in finding that 

pension payments were a seniority-based benefit, the Court 

explained that a benefit is seniority-based if it “would have 

accrued, with reasonable certainty, had the veteran been 

continuously employed by the private employer, and if it is 

in the nature of a reward for length of service.”8 431 U.S. 

581, 589 (1977). The signing bonus at issue satisfies the first 

element of this test because, for the reasons discussed above, 

it was “reasonably certain” that Huhmann would have 

received the MD-11-FO signing bonus had he remained 

continuously employed by FedEx from 2003 until 2006. As 

to the second prong, the record in this case makes clear that 

the signing bonus was not compensation for work 

performed. Rather, because FedEx purposely chose to offer 

the full signing bonus only to those pilots with an amount of 

longevity with the company across the entire amendable 

period, it was in part a “reward for length of service.” As 

with the pension payments at issue in Alabama Power, 

FedEx’s signing bonus helped encourage experienced 

employees to support the proposed CBA and allow for 

FedEx to retain a stable and experienced pilot corps. 

431 U.S. at 593–94.

Furthermore, even if the signing bonus were not a 

seniority-based benefit, Section 4316 still would not bar 

Huhmann’s claim. The terms of FedEx’s Bonus Letter itself 

credited time served in the military towards the amendable 

period, and declined to credit time on leave for other 

 

service.” Huhmann was on military leave for the entire amendable 

period.

8 The USERRA regulations on this point largely mirror the decision 

in Alabama Power. 20 C.F.R. 1002.212.
20 HUHMANN V. FEDERAL EXPRESS

purposes. Even assuming FedEx is correct that under Section 

4316 it could have denied the signing bonus to pilots on 

military leave during the amendable period, because FedEx 

chose to extend such benefit as a right of employment, it was 

bound by the other provisions of USERRA (such as Sections 

4311, 4312, and 4313) not to reduce the amount of this 

employment benefit on the basis of the pilot’s absence from 

work on account of military service.9

IV.

The district court properly found that Huhmann’s claim 

was not subject to the RLA’s mandatory arbitration 

provision, properly relied on the escalator principle and 

reasonable certainty test in evaluating Huhmann’s prima 

facie case, and properly concluded that Section 4316 did not 

bar Huhmann’s claim. The district court’s finding that it was 

reasonably certain that Huhmann would have completed 

MD-11-FO training as a matter of foresight was not clearly 

erroneous.

AFFIRMED.

 9 The district court’s finding that Section 4316 did not bar 

Huhmann’s claim does not contradict the Fifth Circuit’s decision in 

Rogers v. City of San Antonio, 392 F.3d 758 (5th Cir. 2004). In that case, 

the Fifth Circuit determined that lost straight-time pay, lost overtime 

opportunities, and missed upgrading opportunities were not senioritybased benefits. None of those benefits depended on a length of tenure. 

Nothing in Rogers or the statute implies that § 4316 grants an employer 

a right actively to discriminate against those who leave for military 

service when it comes to non-seniority based benefits that are otherwise 

guaranteed, explicitly, to those on military leave.