Gerard Travers v. Federal Express Corp

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 20-2703
_____________

GERARD TRAVERS, on behalf of himself and all others
similarly situated,
Appellant

v.

FEDERAL EXPRESS CORPORATION
_______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-19-cv-06106)
District Judge: Honorable Mark A. Kearney
_______________

Argued March 16, 2021

Before: SHWARTZ, PORTER, and MATEY, Circuit Judges.

(Filed: August 10, 2021)
Jonathan E. Taylor [ARGUED]
Peter Romer-Friedman
Gupta Wessler PLLC
2001 K Street, N.W.
Washington, DC 20006

R. Joseph Barton
Colin M. Downes
Block & Leviton LLP
1735 20th Street, N.W.
Washington, DC 20009
Counsel for Appellant

John Paul Schnapper-Casteras
Schnapper-Casteras PLLC
1717 K Street, N.W., Suite 900
Washington, DC 20006
Counsel for Amicus Curiae in Support of Appellant
Reserve Officers Association of the United States

Anton Metlitsky [ARGUED]
Mark W. Robertson
O’Melveny & Myers LLP
7 Times Square
Times Square Tower, 33rd Floor
New York, NY 10036

Jason Zarrow
O’Melveny & Myers LLP
400 South Hope Street
Los Angeles, CA 90071

2
Colleen Hitch Wilson
Federal Express Corporation
3620 Hacks Cross Road, Building B, 3rd Floor
Memphis, TN 38125
Counsel for Appellee

Erik R. Zimmerman
Spencer T. Wiles
Robinson, Bradshaw & Hinson, P.A.
1450 Raleigh Road, Suite 100
Chapel Hill, NC 27517
Counsel for Amici Curiae in Support of Appellee
Chamber of Commerce of the United States of America
and Airlines for America

_______________

OPINION OF THE COURT
_______________

MATEY, Circuit Judge.

Those who serve in the military must also balance
civilian life, including time away from a civilian job. To help
servicemembers strike that balance, Congress enacted the
Uniformed Services Employment and Reemployment Rights
Act of 1994 (“USERRA”). Gerard Travers appeals the
dismissal of his lawsuit alleging that USERRA requires
employers like FedEx to pay reservists for short-term military
leave. We conclude the best reading of USERRA directs
employers to provide the benefit of compensation when they
choose to pay other employees for comparable forms of leave.
So we will vacate the contrary order of the District Court.

3
 I. BACKGROUND

Travers served in the United States Navy and the Naval
Reserve. He also works for FedEx and fulfilled his Reserve
duties during leaves from work. Travers received no
compensation from FedEx for those absences because the
company does not pay employees for military leave. But
FedEx does pay employees who miss work for other reasons,
like jury duty, illness, and bereavement, to name a few.
Relying on USERRA, Travers challenged FedEx’s decision.
The District Court dismissed Travers’s complaint, concluding
that paid leave was not a “right and benefit” under USERRA.
Travers now appeals.1

1
The District Court exercised jurisdiction over the
USERRA claims under 38 U.S.C. § 4323(b)(3) and 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291. We
review the dismissal of Travers’s USERRA claim de novo.
Gordon v. Wawa, 388 F.3d 78, 80 (3d Cir. 2004) (citing
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1384 (3d Cir. 1994)). To avoid dismissal, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). We “consider only those facts
alleged in the complaint and accept all of the allegations as
true.” Gordon, 388 F.3d at 81 (quoting ALA, Inc. v. CCAIR,
Inc., 29 F.3d 855, 859 (3d Cir. 1994)).

4
 II. ANALYSIS

USERRA is one of several statutes benefitting veterans.
Our limited task: “interpret the words consistent with their
‘ordinary meaning . . . at the time Congress enacted the
statute[,]’” as that is the “fundamental canon of statutory
construction.” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067,
2070, 2074 (2018) (first alteration in original) (quoting Perrin
v. United States, 444 U.S. 37, 42 (1979)). We “begin and end
our inquiry with the text.” Star Athletica, L.L.C. v. Varsity
Brands, Inc., 137 S. Ct. 1002, 1010 (2017). Of course, “the
words of a statute must be read in their context and with a view
to their place in the overall statutory scheme.” Parker Drilling
Mgmt. Servs. v. Newton, 139 S. Ct. 1881, 1888 (2019) (quoting
Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 101 (2012)). So
we reach for our “toolkit” containing “the standard tools of
interpretation” needed to consider the text, structure, and
history of the law. Kisor v. Wilkie, 139 S. Ct. 2400, 2414–15
(2019); Parker Drilling, 139 S. Ct. at 1892 (“[T]he standard we
adopt today is supported by the statute’s text, structure, and
history, as well as our precedents.”). Doing so allows us to
determine the best ordinary reading of the statute. United
States v. Smukler, 991 F.3d 472, 483 (3d Cir. 2021). Tools in
hand, we begin by considering how USERRA defines the
benefits Congress provides to working servicemembers.

A. USERRA’s Protected Benefits

1. The Statutory History

With American participation in the Second World War
looming, Congress enacted the Selective Training and Service
Act of 1940 (“STSA”) requiring all men between the ages of

5
twenty-one and thirty-six to register for military duty. Pub. L.
No. 783, 54 Stat. 885. The first peacetime draft law in the
nation’s history,2 the STSA protected the jobs of those who
would soon join the Allied powers overseas.3 Id. § 8(b), (c), 54
Stat. at 890. Along with requiring employers to restore veterans
“to a position of like seniority, status, and pay,” id. § 8(b), 54
Stat. at 890, the STSA allowed veterans to take military leave
and entitled them to “insurance or other benefits offered by the
employer . . . at the time such person was inducted into such
forces[.]” Id. § 8(c), 54 Stat. at 890. In these ways, the STSA
advanced the principle that one “who was called to the colors
was not to be penalized on his return by reason of his absence
from his civilian job.” Fishgold v. Sullivan Drydock & Repair
Corp., 328 U.S. 275, 284 (1946).

As active conflicts continued to summon Americans to
service,4 Congress responded. The Selective Service Act of
19485 bolstered employment rights for veterans by

2
Selective Serv. Sys., Historical Timeline, https://ww
w.sss.gov/history-and-records/timeline/ (last visited August 3,
2021); The Nat’l WWII Museum, Research Starters: The
Draft and World War II, https://www.nationalww2museum.or
g/students-teachers/student-resources/research-starters/draft-
and-wwii (last visited August 3, 2021).
3
Susan M. Gates et al., Supporting Employers in the
Reserve Operational Forces Era app. A at 1–2
(2013), https://www.jstor.org/stable/10.7249/j.ctt5hhtm0.7.
4
Historical Timeline, supra note 2.
5
Before the Selective Service Act re-enacted the STSA,
a 1944 amendment extended the time under section 8 to apply

6
guaranteeing a servicemember any position “he would have
enjoyed if he had continued in such employment continuously
from the time of his entering the armed forces until the time of
his restoration to such employment.” Pub. L. No. 759,
§ 9(c)(2), 62 Stat. 604, 616. But the entitlement to benefits
remained unchanged. See id. § 9(c)(1), 62 Stat. at 615. Then,
“[i]n 1951, in order to strengthen the Nation’s Reserve Forces,
Congress extended reinstatement rights to employees returning
from training duty” in the Universal Military Training and
Service Act. Monroe v. Standard Oil Co., 452 U.S. 549, 555
(1981); Pub. L. No. 51, § 1(s), 65 Stat. 75, 86–86 (1951).
Additional protections followed over the next decade as
Congress included short term leave for military obligations of
less than three years. Pub. L. No. 86-632, § 1 para. 3, 74 Stat.
467, 467 (1960) (protecting an employee’s “return to his
position with such seniority, status, pay, and vacation as he
would have had if he had not been absent for such purposes”);
see also Monroe, 452 U.S. at 555.

“The end of the Vietnam War provided the need and the
opportunity to revisit the protections and benefits granted to
returning service members.”6 In response, Congress enacted
USERRA’s immediate predecessor, the Veterans’
Reemployment Rights Act (“VRRA”) as part of the Vietnam
Era Veterans’ Readjustment Assistance Act of 1974. Pub. L.
No. 93-508, 88 Stat. 1578. Among other provisions, the VRRA
entitled veterans, including reservists, to “like seniority, status,

for reemployment after relief from training or service. Pub. L.
No. 473, § 1, 58 Stat. 798, 798 (1944). Congress then extended
the law in 1945 with minor amendments and without change to
section 8. Pub. L. No. 54, 59 Stat. 166, 166–67 (1945).
6
Gates et al., supra note 3, app. A at 4.

7
and pay” when returning to civilian work, as well as the ability
to “participate in insurance or other benefits offered by the
employer[.]” Id. § 404(a), 88 Stat. at 1595.

Finally, in 1994, Congress enacted USERRA to replace
the VRRA. Pub. L. No. 103-353, 108 Stat. 3149 (1994).
Containing “the most expansive protection [to
7
servicemembers] yet enacted,” USERRA crystalized the
language Travers and FedEx dispute, entitling reservists and
other military personnel to certain employment benefits while
on leave. To that text we next turn.

2. Text, Not Labels

Two of USERRA’s provisions are at issue:
§ 4316(b)(1), which entitles employees taking military leave to
the “other rights and benefits” their employers give to
employees taking similar kinds of leave; and § 4303(2), which
defines those “other rights and benefits.”

Section 4316(b)(1) provides:

7
Daniel J. Bugbee, Employers Beware: Violating
USERRA through Improper Pre-Employment Inquiries, 12
Chap. L. Rev. 279, 281 (2008). By superseding the Supreme
Court’s decision in Monroe, USERRA also made it easier for
a veteran to show a claim for employment discrimination.
Compare Monroe v. Standard Oil Co., 452 U.S. 549, 559
(1981) (discrimination must be “motivated solely by reserve
status”), with 38 U.S.C. § 4311(c)(1) (discrimination based on
reserve status can be “a motivating factor”).

8
 [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.

38 U.S.C. § 4316(b)(1) (emphasis added). Section 4303(2)
defines “rights and benefits”:

The term “benefit”, “benefit of employment”, or
“rights and benefits” means the terms,
conditions, or privileges of employment,
including any advantage, profit, privilege, gain,
status, account, or interest (including wages or
salary for work performed) that accrues by
reason of an employment contract or agreement
or an employer policy, plan, or practice and
includes rights and benefits under a pension plan,
a health plan, an employee stock ownership plan,
insurance coverage and awards, bonuses,
severance pay, supplemental unemployment

9
 benefits, vacations, and the opportunity to select
work hours or location of employment.

Id. § 4303(2). How are these guarantees best read?8

Start with § 4316(b)(1). It adopts a simple formula:
employees who take military leave from their jobs must receive
the same “rights and benefits” provided to employees absent
for other reasons. And on that much, the parties agree. They
part ways on how to describe the “right or benefit” Travers
wants, a disagreement that veers away from the text of
USERRA. Travers argues that the benefit is “paid leave,” a
“shorthand to describe ‘continu[ing] to receive pay while
absent from work.’” (Reply Br. at 9 (alteration in original)
(quoting Opening Br. at 2).) FedEx responds that the company
never provides anyone “paid leave” generally. Rather, FedEx
offers pay for certain specific kinds of time away from the job,
such as “paid sick leave” or “paid jury-duty leave.” (Response
Br. at 1.) What Travers seeks, FedEx says, is “paid military
leave.” (Response Br. at 1–2.)

But the parties reduce the benefit to catchall labels that
Congress did not write. The judicial power should not be used
to create a shorthand guide to the words passed by both houses
of Congress and presented to the President.9 Subsections (A)

8
An issue addressed by the Seventh Circuit, which held
that USERRA covers short-term paid military leave. See White
v. United Airlines, Inc., 987 F.3d 616, 623 (7th Cir. 2021).
9
“We operate in a system of written law in which courts
need not—and generally cannot—articulate the law in the first
instance. See U.S. Const., Art. I, § 1 (vesting ‘[a]ll legislative

10
and (B) of § 4316(b)(1) create a comparison of the “rights and
benefits” an employee is owed. The first group consists of
employees “absent from a position of employment by reason
of service in the uniformed services.” 38 U.S.C.
§ 4316(b)(1)(A). The second is “employees having similar
seniority, status, and pay who are on . . . leave of absence[.]”
Id. § 4316(b)(1)(B). Both groups contain employees who are
not at work, Group 1, for military service, Group 2, for
anything else.

That is how we measure the rights and benefits: does
Group 2 get something that Group 1 does not? See id.
§ 4316(b)(1)(B) (“entitled to such other rights and
benefits . . . as are generally provided by the employer . . . to
employees having similar seniority, status, and pay who are on
furlough or leave of absence . . . .”).10 Can that thing be the

Powers’ in Congress); Art. 1, § 7 (describing the bicameralism
and presentment process). The Constitution, federal statutes,
and treaties are the law. . . .” Gamble v. United States, 139 S.
Ct. 1960, 1984 (2019) (Thomas, J., concurring). This modest
task leaves us wary to advance a “judicial interpretation [based
on labels that will invariably lead to] antecedent variations,
[such that] from . . . five barley loaves and two fishes[,] five
thousand lawyers [are] fed and there [will] remain[] twelve
baskets of crumbs.” Burt v. Niagara Mach. & Tool Works, 301
F. Supp. 899, 900 (W.D. Pa. 1969) (citing Matthew 14:13–21).
10
A second comparison is beyond this appeal: whether
military leave taken by Group 1 is comparable to the other
types of leaves taken by Group 2. Travers alleges that his leave
is comparable to the jury duty, sick, or bereavement leave that

11
leave itself, the right and benefit to not come to work without
facing adverse action? No, because the word “other”11 in
§ 4316(b)(1)(B) means something distinct or different, and
absence from the job is common to both employee groups. That
“other” benefit could be most anything—say, health insurance,
a bonus, or a gym membership. What matters is who gets that
benefit. Something the employer offers to Group 2 but denies
to Group 1 becomes the comparator for a USERRA differential
treatment claim.

USERRA describes a process for evaluating alleged
disparate treatment of servicemembers on military leave by an
employer. It does not create a class of rights and benefits. In
other words, this is not a dispute about whether USERRA
guarantees “paid leave” or “paid military leave.” Instead, it is
a quarrel over whether § 4316(b)(1) allows Travers to allege
that FedEx extends a right and benefit in the form of pay to the
group of employees who miss work for non-military reasons,
but then denies pay to the group absent for military service.

FedEx provides to non-military employees. Whether FedEx
offers a type of leave comparable to military leave is for the
District Court to determine on remand. See 20 C.F.R.
§ 1002.150 (2021).
11
When Congress enacted USERRA, “other” meant
“being the one or ones distinct from that or those first
mentioned or implied.” Other, Merriam-Webster’s Collegiate
Dictionary (10th ed. 1993); see also Other, Webster’s Third
New International Dictionary of the English Language
Abridged (1993) (“being the ones distinct from the one or those
first mentioned or understood—used with a plural noun . . . not
the same: different.”).

12
Framing the issue using the text of USERRA, without resorting
to extra-textual labels, avoids introducing ambiguities or,
worse, creating a new set of rights and benefits outside of “the
prescription for legislative action” in the Constitution and “the
Framers’ decision that the legislative power of the Federal
government be exercised in accord with a single, finely
wrought and exhaustively considered, procedure.” INS v.
Chadha, 462 U.S. 919, 951 (1983).

3. “Paid Military Leave” Is Not the Best Reading

What of FedEx’s preferred characterization, styled
“paid military leave”? (Response Br. at 4.) The argument has
two parts, neither satisfactory, for it tries to read into USERRA
a requirement absent from the text.

First, FedEx says Travers’s benefit must be a “specific
type[] of leave,” such as “paid military leave,” because
USERRA does not reach “generic benefit[s].” (Response Br. at
25, 27; Supp. Ltr. at 1.) That is sort of true, because a plaintiff
must show that something has been given to a group of
employees not serving in the military that is denied to the
military group. But that does not mean USERRA only reaches
specific benefits. The text makes that clear, referring to
benefits that are “generally provided by the employer.” 38
U.S.C. § 4316(b)(1)(B). Reading “generally” to require
“specifically” stretches the text not just beyond a best
construction, but outside ordinary understanding.

Second (though it is really just more of the first), FedEx
says there is nothing denied to any employee group because
nobody in Group 2 is offered the benefit of “paid military
leave.” There is logic to that conclusion as well because, as

13
explained, an employer does not violate the protections in
USERRA by denying a right and benefit equally to all
employee groups. FedEx’s math is the problem, as it needs to
slip in the adjective “military” to make the calculation work.
Section 4316(b)(1)(B) supplies the right formula, giving
employees taking military leave benefits that are “generally
provided by the employer to employees having similar
seniority, status, and pay who are on furlough or leave of
absence.” (emphasis added). That rules out illusory benefits
that exist in theory, not practice. Since employers cannot
“provide” military leave, paid or otherwise, to non-military
employees, there is no way to deny the benefit in a neutral way.

Third, adopting the definition proposed by FedEx could
undermine the larger statutory scheme, because a court must
separately compare the types of leave for sufficient
similarity.12 Shoehorning the label given to the leave into the
definition of the benefit avoids making the actual comparison
between different types of leave.13

12
A point explained at supra note 10.
13
Judge Shwartz agrees that there are two groups,
military employees and non-military employees, and that
USERRA ensures that military employees receive the same
benefits as similarly situated non-military employees but does
not see separate groups being created by the language of
subsections (A) and (B) themselves. Judge Shwartz sees
subsections (A) and (B) as providing two different things, as
indicated by the words “shall be deemed” before the provision
that discusses how an employee should be categorized while
serving and the words “shall be entitled,” which reflect benefits

14
 All this means § 4316(b)(1) allows Travers to state a
claim for entitlement to the benefit of pay while on leave. But
recall that § 4302(2) defines “rights and benefits.” So Travers’s
job does not end here, and he must also show that the pay non-
military employees receive while on leave is one of the “rights
and benefits” defined by § 4303(2).

B. Pay During Leave Is a “Right and Benefit” under
USERRA § 4303(2)

We turn next to § 4303(2), which defines “rights and
benefits” under USERRA:

The term “benefit”, “benefit of employment”, or
“rights and benefits” means the terms,

the person should receive. More specifically, she sees
subsection (A) as providing that a person who is absent from
work due to military service should be treated as if the person
is on furlough or on a leave of absence. This language ensures
that a person who is absent from work due to military
commitments is not deemed to have quit or abandoned his or
her job. Judge Shwartz sees subsection (B) as providing a
different protection, namely that military employees are
entitled to the same benefits as similarly situated non-military
employees. The two subsections are joined by the word “and,”
which conveys that a person who is serving in the military is
entitled to both. While Judge Shwartz reads this part of the
statute differently from her colleagues, she agrees with the
conclusion that, under USERRA, those serving in the military
are entitled to the same benefits as similarly situated co-
workers who are not serving.

15
 conditions, or privileges of employment,
including any advantage, profit, privilege, gain,
status, account, or interest (including wages or
salary for work performed) that accrues by
reason of an employment contract or agreement
or an employer policy, plan, or practice and
includes rights and benefits under a pension plan,
a health plan, an employee stock ownership plan,
insurance coverage and awards, bonuses,
severance pay, supplemental unemployment
benefits, vacations, and the opportunity to select
work hours or location of employment.

38 U.S.C. § 4303(2). Again, we determine the best ordinary
meaning of these terms when enacted.

1. The Words at the Beginning of the Definition
Are Broad

Begin with the words “terms,” “conditions,” and
“privileges,”14 all of which modify “employment.”15 Section
14
The Hire Heroes Act of 2011 added the phrase “terms,
conditions, or privileges” to the definition. Pub. L. No. 112-56,
§ 251, 125 Stat. 711, 729. This amendment superseded the
Fifth Circuit’s opinion in Carder v. Cont’l Airlines, Inc., 636
F.3d 172, 176 (5th Cir. 2011), which held that the definition’s
absence of the words “terms, conditions, or privileges” meant
that plaintiffs could not establish a hostile work environment
claim under USERRA § 4311(a).
15
No mysterious meanings lurk here. “Term” is a
“condition[] under which an action may be undertaken or

16
4303(2) then defines the kinds of “terms, conditions, or
privileges of employment” as “including any advantage, profit,
privilege, gain, status, account, or interest (including wages or
salary for work performed).” Id. § 4303(2). The words “any”
and “including” mean the list explains, without exhausting.16

The ordinary understanding of the words in the list
easily reaches a wide range of benefits, including payment
during leave. See, e.g., Advantage, Merriam-Webster’s
Collegiate Dictionary (10th ed. 1993) (“superiority of position
or condition . . . [b]enefit, gain; esp: benefit resulting from

agreement reached; stipulated or agreed-upon requirements[.]”
Term, New Oxford American Dictionary (3d ed. 2010).
“Condition” is “the state of affairs that must exist or be brought
about before something else is possible or permitted[.]”
Condition, id. And “privilege” is “a special right, advantage, or
immunity granted or available only to a particular person or
group of people.” Privilege, id.
16
A point repeated often by the Supreme Court. See,
e.g., Smith v. Berryhill, 139 S. Ct. 1765, 1774 (2019)
(“Congress’ use of the word ‘any’ suggests an intent to use that
term expansively.” (internal quotations and alterations
omitted)); Christopher v. SmithKline Beecham Corp., 567 U.S.
142, 162 (2012) (“Any” and “including” are broad words and
“make[] clear that the examples enumerated in the text are
intended to be illustrative, not exhaustive.”); Bloate v. United
States, 559 U.S. 196, 207 (2010) (“Including” is “an expansive
or illustrative term.”); Ali v. Fed. Bureau of Prisons, 552 U.S.
214, 219 (2008) (“[T]he word ‘any’ has an expansive meaning,
that is, ‘one or some indiscriminately of whatever kind.’”
(citation omitted)).

17
some course of action”); Profit, id. (“a valuable return . . . [n]et
income usu. for a given period of time”); Gain, id. (“resources
or advantage acquired or increased: profit”). FedEx pays
employees who take non-military leaves for jury duty,
bereavement, and health, placing employees taking leave for
military service at a disadvantage. Naturally, pay is an
“increase in resources” and a “valuable return” for non-
military employees. And that ordinary meaning is confirmed
by ordinary practice: human resource guides and manuals
confirm that pay for leave matched the plain understanding of
these terms.17 All of which reinforces the best reading of
USERRA.

17
See HR Practitioners Guide, Schedules and Leave,
Leave § 625.10 (Bloomberg Law 2021) (“Most employers that
provide paid leave view the benefit as a tool that helps attract
and retain employees . . . [it] protect[s] employees from
income or job loss . . . [and] also gives employees time to
handle family emergencies, doctors’ appointments and other
matters that might interfere with work performance.”); Guide
to Collective Bargaining, Leave Programs § 140 (Bloomberg
Law 2021) (Leave “provisions generally allow employees to
take time off work when needed for various purposes without
the employee having to worry about the loss of employment
or, in many cases, the loss of pay.”); HR Series Policies and
Practices, Leaves of Absence, Reasons for Offering Leave
§ 207:2 (Westlaw 2016) (“Many employers offer more leave
than is legally required, finding that time off benefits can
increase employee loyalty, ease personal stress, and even
improve productivity.”).

18
 2. The Parenthetical Is Not Restrictive

FedEx and the District Court point to the parenthetical
at the end of this list—“(including wages or salary for work
performed).” 38 U.S.C. § 4303(2). The District Court reasoned
that “[b]y explicitly providing ‘rights and benefits’ includes
‘wages or salary for work performed,’ Congress, by negative
implication, excluded wages or salary for work not performed,
such as paid leave.” (App. at 16 (first and third emphases
added).) But this is not the best reading given the law’s history
and its broad language.

As originally written, the parenthetical read “(other
than wages for work performed).” § 2(a), 108 Stat. at 3150
(emphasis added). Congress later replaced “other than” with
the word “including.” Veterans’ Benefits Act of 2010, Pub. L.
No. 111-275, § 701(a), 124 Stat. 2864, 2887. That makes all
the difference. Rather than constricting the types of benefits,
the new language expanded the definition.18 Given the history,
we will not read in what Congress has taken out.19

18
The expanded definition reached claims for
discrimination based on wage under USERRA § 4311, which
had been unavailable to plaintiffs. See, e.g., Gagnon v. Sprint
Corp., 284 F.3d 839, 853 (8th Cir. 2002).
19
The negative-implication canon requires particularly
careful application and “applies only when circumstances
support a sensible inference that the term left out must have
been meant to be excluded.” NLRB v. SW Gen., Inc., 137 S. Ct.
929, 940 (2017) (cleaned up); Marx v. Gen. Revenue Corp.,
568 U.S. 371, 381 (2013) (“We have long held that the

19
 3. The List of Examples at the End of the Definition

Turn, at last, to the final clause in the definition20
providing another list of example benefits that “include[] rights
and benefits under a pension plan, a health plan, an employee
stock ownership plan, insurance coverage and awards,
bonuses, severance pay, supplemental unemployment benefits,
vacations, and the opportunity to select work hours or location
of employment.” 38 U.S.C. § 4303(2). Humming a familiar
refrain, FedEx argues that paid leave is too general, the
statutory list too specific. For variation, it grabs on to the word
“vacation,” arguing that it and paid leave cannot both be
benefits (since vacation is a subset of paid leave). Inconsistent?
Our goal is not perfect harmony, only the best estimation of the
words written by Congress. And the common understanding of
the examples selected paints a broad understanding that
includes pay while on leave.

expressio unius canon does not apply unless it is fair to suppose
that Congress considered the unnamed possibility and meant to
say no to it.” (cleaned up)).
20
The intermediate clause “that accrues by reason of an
employment contract or agreement or an employer policy,
plan, or practice” offers no difficulty. 38 U.S.C. § 4303(2).
“Accrue” is defined as “to come into existence as an
enforceable claim: vest as a right.” Accrue, Merriam-Webster’s
Dictionary of Law (1996). So pay while on leave must vest in
an employment agreement, policy, plan, or practice. FedEx’s
employment policy satisfies this requirement.

20
 Consider just a few examples. “Insurance coverage”
includes more specific benefits such as life insurance, health
insurance, and sickness and accident insurance.21 How about

21
Press Release, U.S. Dep’t of Lab., Bureau of Lab.
Stats., Employer Costs for Employee Compensation – March
1994, at 21 (June 16, 1994), https://www.bls.gov/news.releas
e/archives/ecec_031994.pdf. Similarly, BLS’s Employee
Benefits Survey from 1993–1994 designated “insurance” as a
larger category of more specific benefits that also included
“sickness and accident insurance,” “long-term disability
insurance,” “medical care,” “dental care,” and “life insurance.”
See Press Release, U.S. Dep’t of Lab., Bureau of Lab. Stats.,
BLS Reports on Employee Benefits in Small Private Industry
Establishments, 1994 (September 14, 1995), https://www.bls.
gov/news.release/history/ebs_091495.txt; Press Release, U.S.
Dep’t of Lab., Bureau of Lab. Stats., BLS Reports on
Employee Benefits in Medium and Large Private
Establishments, 1993 (September 30, 1994), https://www.bls.
gov/news.release/history/ebs_093094.txt; Press Release, U.S.
Dep’t of Lab., Bureau of Lab. Stats., BLS Reports on
Employee Benefits in State and Local Governments, 1994
(September 14, 1995), https://www.bls.gov/news.release/histo
ry/ebs2_091495.txt. BLS’s Employment Cost Index analyzed
data collected from 23,000 occupations in private industry and
state and local government. Employer Costs for Employee
Compensation – March 1994, supra, at 21. And the Employee
Benefits Survey, which collected information on employer-
provided benefit plans, was “a major source of information for
labor and management representatives . . . [providing a]

21
“a health plan?” In 1994, the term referred to a host of
insurance coverage22 ranging from fee-for-service, health
maintenance organizations, preferred provider organizations,
and exclusive provider organizations, each varying in the types
of benefits provided.23 So too a “pension plan,” meaning both

comparison of their benefits plans with prevailing practices.”
U.S. Dep’t of Lab., Bureau of Lab. Stats., Bulletin 2414, BLS
Handbook of Methods, at 72 (1992).
22
Michael Bucci & Robert Grant, Employer-Sponsored
Health Insurance: What’s Offered; What’s Chosen?, Monthly
Lab. Rev., October 1995, at 38–44,
https://www.bls.gov/opub/mlr/1995/10/art6full.pdf (using
“health care plans” and “health insurance” interchangeably
when analyzing BLS data of employer-offered health plans
from 1992–1993); see also Laura A. Scofea, The Development
and Growth of Employer-Provided Health Insurance, Monthly
Lab. Rev., March 1994, at 3–10,
https://www.bls.gov/opub/mlr/1994/03/art1full.pdf.
23
BLS Reports on Employee Benefits in Small Private
Industry Establishments, 1994, supra note 21; BLS Reports on
Employee Benefits in Medium and Large Private
Establishments, 1993, supra note 21; BLS Reports on
Employee Benefits in State and Local Governments, 1994,
supra note 21; see also Bucci & Grant, supra note 22, at 40 tbl.
2; Employee Benefit Research Institute, Fundamentals of
Employee Benefit Programs 221–49 (5th ed. 1997).

22
a subset of retirement benefits and a general category of
plans.24

24
See BLS Handbook of Methods, supra note 21, at 57
(For purposes of the Employment Cost Index, BLS grouped
“pension and retirement benefits” and “savings and thrift
plans” under the greater category “pension and savings
plans”); BLS Reports on Employee Benefits in Medium and
Large Private Establishments, 1993, supra note 21 (including
“defined benefit pension” as a subcategory of “retirement”);
BLS Reports on Employee Benefits in Small Private Industry
Establishments, 1994, supra note 21; BLS Reports on
Employee Benefits in State and Local Governments, 1994,
supra note 21. Pensions refer to defined benefit or defined
contribution plans. BLS Reports on Employee Benefits in
Small Private Industry Establishments, 1994, supra note 21
(“Defined benefit plans characteristically specify a formula for
determining an employee annuity at retirement. Alternatively,
defined contribution plans specify the employer’s
contributions, but do not predetermine the actual retirement
dollar benefit.”); Fundamentals of Employee Benefit
Programs, supra note 23, at 56–57; William J. Wiatrowski, On
the Disparity Between Private and Public Pensions, Monthly
Lab. Rev., April 1994, at 5 n.7, https://www.bls.gov/opub/mlr
/1994/04/art1full.pdf (“Earnings-based defined benefit
pension plans [were] the most prevalent among white-collar
workers . . .[but] [t]he presence of a large proportion of blue-
collar and service workers in the private sector [led] to a variety
of pension formulas, most notably those not based on
earnings.”).

23
 It all tells the same story: Congress enacted a broad
definition encompassing a wide range of benefits illustrated,
not exhausted, by a list of examples. Nor does the expansion of
employee benefits in the decades since 1994 change that
reading, because “[w]hile every statute’s meaning is fixed at
the time of enactment, new applications may arise in light of
changes in the world.” Wis. Cent. Ltd., 138 S. Ct. at 2074.
Congress addressed that evolution by including a definition
that varies in levels of specificity and generality. The result is
that “rights and benefits” under USERRA § 4303(2) includes
pay while on leave.25

25
The codified statutory purposes of USERRA support
this reading. See 38 U.S.C. § 4301(a). Interpreting the
definition of “rights and benefits” under USERRA
§ 4316(b)(1) broadly to include pay while on leave advances
the core purpose of “minimizing the disadvantages to civilian
careers and employment which can result from such service.”
38 U.S.C. § 4301(a)(1). FedEx’s policy of paying employees
on non-military leaves but not those on military leaves directly
disadvantages those who take military leave. And any
interpretive doubt is construed in favor of the service member,
under the pro-veteran canon. See, e.g., Gordon, 388 F.3d at 81
(This Court “construe[s] USERRA’s provisions liberally, in
favor of the service member.”); Boone v. Lightner, 319 U.S.
561, 575 (1943) (“The Soldiers’ and Sailors’ Civil Relief Act
is always to be liberally construed to protect those who have
been obliged to drop their own affairs to take up the burdens of
the nation.”); Fishgold v. Sullivan Drydock & Repair Corp.,
328 U.S. 275, 285 (1946) (The STSA “is to be liberally
construed for the benefit of those who left private life to serve

24
 4. The Specific-General Canon Is Inapplicable

Finally, we see no conflict between USERRA and
5 U.S.C. § 6323(a), a law first enacted in 1917 providing
fifteen days of paid military leave for federal government
employees. Drawing on the specific-general canon, the District
Court reasoned that 5 U.S.C. § 6323, the more specific statute,
would be rendered superfluous by finding that USERRA
entitled Travers to pay for his military leave.

There is no need to reach for the specific-general canon,
a tool that helps courts reconcile conflicting statutory
provisions when “no permissible meaning can eliminate the
conflict.” Garner & Scalia, Reading Law: The Interpretation of
Legal Texts 183 (2012); see also RadLAX Gateway Hotel, LLC
v. Amalgamated Bank, 566 U.S. 639, 645 (2012). “Where there
is no clear intention otherwise, a specific statute will not be
controlled or nullified by a general one, regardless of the
priority of enactment.” Radzanower v. Touche Ross & Co., 426
U.S. 148, 153 (1976)) (quoting Morton v. Mancari, 417 U.S.
535, 550–51 (1974)). In other words, where a statute does “not
expressly contradict[] the original act, [it] shall not be
considered as intended to affect the more particular or positive
previous provisions, unless it is absolutely necessary to give
the latter act such a construction, in order that its words shall
have any meaning at all.” Id. (quoting T. Sedgwick, The

their country in its hour of great need.”); King v. St. Vincent’s
Hosp., 502 U.S. 215, 220 n.9 (1991) (“[W]e would ultimately
read the provision in King’s favor under the canon that
provisions for benefits to members of the Armed Services are
to be construed in the beneficiaries’ favor.”).

25
Interpretation and Construction of Statutory and Constitutional
Law 98 (2d ed. 1874)).

That is this case here, because reading USERRA
§ 4316(b)(1) to include pay during leave does not contradict,
negate, or nullify 5 U.S.C. § 6323(a). Section 6323(a) provides
a fifteen-day floor of paid military leave for government
employees. This floor is more generous than other federal non-
military leaves, such as sick leave. See 5 U.S.C. § 6307(a)
(federal government employees are entitled to thirteen days of
paid sick leave). In other words, 5 U.S.C. § 6323(a) is not
nullified because it provides additional benefits to
servicemembers without USERRA.26

III. CONCLUSION

FedEx allegedly pays employees for some leave but
declines to compensate Travers for leave taken to serve his
country. That states a claim under USERRA, a statute with a
long history of protecting the jobs and accompanying benefits
of Americans called to our common defense. Best understood,
USERRA does not allow employers to treat servicemembers
differently by paying employees for some kinds of leave while
exempting military service. So we will vacate and remand the
District Court’s grant of FedEx’s motion to dismiss.

26
If a factfinder saw a comparable leave (a point
discussed at supra note 10) granting more than fifteen days of
pay by statute, that could trigger a different analysis. But
FedEx offers no such example, and we are aware of none.
Should the hypothetical become reality, Congress remains free
to rebalance the scales. In the meantime, we need not rewrite
USERRA to knock back theoretical concerns.

26