Joe Whitcomb
Leave Sharing Program and Service Member Benefits
The United States filed a civil action against the United States Territory of Guam and the Government of Guam Retirement Fund in 2021. The lawsuit was filed on behalf of five service members under the Uniformed Services Employment and Reemployment Rights Act of 1994.
The case focused on Guam’s Leave Sharing Program. The program allowed employees to use donated leave when they needed extended time away from work for personal reasons. Military service qualified as an accepted reason for employees to use donated leave under the program.
Employees who used donated leave remained on paid leave status. Under Guam’s program, time spent on donated leave did not count toward retirement service credit for Government of Guam employees, including service members. Pension contributions made while an employee used donated leave for military service were returned to the employer or employee.
The United States maintained that Guam’s administration of the Leave Sharing Program violated USERRA. The claim focused on service members who used donated leave for military service and lost retirement-related protections that USERRA required for employees serving in the uniformed services.
Summary Judgment Decision
Before the motion addressed in this order, the court had issued a summary judgment decision. In that decision, the court held that Guam’s Leave Sharing Program violated USERRA.
The court found that service members who used Guam’s Leave Sharing Program received paid leave, which was not a USERRA benefit. At the same time, the program did not allow employer-side pension contributions, employee-side pension contributions, or retirement service credit for the period of military service. The court identified those retirement-related protections as benefits protected under USERRA when service members were on unpaid leave.
The court reviewed USERRA’s supremacy provision. It found that the Leave Sharing Program’s prohibition against retirement credit implicated USERRA because the affected retirement rights were substantive rights protected by federal law.
The court also reviewed whether Guam’s program could be preserved as more beneficial to service members under USERRA. The court found that, for such a waiver to apply, the service members had to clearly and unambiguously recognize that accepting the Leave Sharing Program benefit meant waiving both Guam and USERRA rights to retirement credit. The court found insufficient factual evidence showing that the Government of Guam had obtained valid waivers from the claimant service members.
Request for Interlocutory Appeal
After the summary judgment decision, the Government of Guam Retirement Fund moved to certify the order for interlocutory appeal. The United States Territory of Guam joined the request.
The Retirement Fund asked the court to certify a question concerning whether USERRA superseded Guam’s statutory scheme governing paid and unpaid military leave. The Retirement Fund stated that the court’s summary judgment decision had focused on the Leave Sharing Program but had not considered the program together with other Guam statutes addressing military leave and retirement benefits.
The Retirement Fund identified several Guam statutes. One statute provided military leave with pay for up to fifteen working days during a Government of Guam fiscal year. Other statutes provided that service members who elected unpaid leave received retirement credit, employer-side contributions, Government of Guam-funded employee contributions, group health insurance premiums, and group life insurance premiums during military service.
The court had previously recognized that those other Guam statutes provided rights or benefits more favorable than USERRA. The court had also rejected the position that those statutes had to be considered when deciding whether the Leave Sharing Program violated USERRA. The court found that the Leave Sharing Program operated on its own because it provided both a benefit and a deprivation of retirement rights.
Certification Standard
The court reviewed the standard for certification under 28 U.S.C. § 1292(b). Certification required a controlling question of law, substantial ground for difference of opinion, and a finding that an immediate appeal could materially advance the end of the litigation.
The court noted that certification under that statute was a departure from the usual rule that only final judgments were appealable. The court applied the certification standard to the Retirement Fund’s proposed question.
Controlling Question of Law
The court first considered whether the Retirement Fund had identified a controlling question of law. The Retirement Fund described the issue as whether Guam law met USERRA’s minimum requirements and stated that the question involved statutory construction.
The United States responded that the case did not concern Guam’s full statutory scheme for paid and unpaid military leave. The United States maintained that the case involved a direct conflict between USERRA and the Leave Sharing Program.
The court found that the Retirement Fund’s broad question did not control the litigation. The United States’ complaint challenged the administration of the Leave Sharing Program, not every Guam statute related to military leave. The court stated that the case involved only the Leave Sharing Program because that program provided the paid leave benefit while denying retirement credit.
The court also stated that it had not received evidence showing that service members who participated in the Leave Sharing Program could use the other benefits provided under Guam law. The Retirement Fund did not provide a reason why those other statutes had to be part of the appeal question. Based on that record, the court found that the proposed question was not controlling.
Difference of Opinion
The court next considered whether there was substantial ground for difference of opinion. The Retirement Fund stated that the issue was novel and difficult. The United States stated that the Retirement Fund had not identified a case conflicting with the court’s conclusion that USERRA superseded the Guam statute at issue.
The court found that the Retirement Fund had not shown substantial ground for difference of opinion. The court again focused on the scope of the case. The proposed question addressed Guam’s entire statutory scheme, including laws the court had already recognized as more favorable than USERRA. The court found that the Retirement Fund had not shown why the analysis should extend beyond the Leave Sharing Program.
The court also found that the Leave Sharing Program violated USERRA because USERRA prohibited employers from treating reemployed service members as having incurred a break in service and required employers to maintain pension benefit plans during the period of service. The court found no legal authority or reasoning supporting review of Guam’s entire statutory scheme in the context of this case.
Effect on the Litigation
The court then reviewed whether immediate resolution of the proposed question would materially advance the end of the litigation. The Retirement Fund stated that, if the appellate court disagreed with the summary judgment ruling, the liability theory would fail and the case would end.
The court recognized that reversal of the summary judgment decision could affect the need for damages proceedings. The court still found that the specific question proposed by the Retirement Fund would not materially advance the litigation. The question concerned Guam law on military leave as a whole, while the case concerned only the Leave Sharing Program.
Because only the Leave Sharing Program was at issue, a ruling that USERRA did not supersede Guam law on military leave in its entirety would not resolve the case. The court found that the Retirement Fund had not met the third certification requirement.
Court’s Decision
The court denied the Government of Guam Retirement Fund’s motion to certify the summary judgment order for interlocutory appeal. The court found that the Retirement Fund failed to satisfy any of the three requirements under 28 U.S.C. § 1292(b).
USERRA Legal Support
If you are dealing with employment or reemployment issues tied to uniformed service, our team handles USERRA matters involving reemployment rights, discrimination based on military service, retaliation for seeking USERRA rights, military leave, and employment benefits. You can contact us to discuss your situation and learn how our team can assist.
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