Leon Belaustegui v. Ilwu

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 7, 2024
• Docket: 23-55094
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 7 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LEON BELAUSTEGUI, No. 23-55094

Plaintiff-Appellant, D.C. No. 2:19-cv-09955-FLA-AFM v.

INTERNATIONAL LONGSHORE AND MEMORANDUM* WAREHOUSE UNION; PACIFIC MARITIME ASSOCIATION,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Fernando L. Aenlle-Rocha, District Judge, Presiding

Argued and Submitted September 10, 2024 Pasadena, California

Before: R. NELSON, MILLER, and DESAI, Circuit Judges.

Plaintiff Leon Belaustegui (“Belaustegui”) appeals the district court’s grant of

summary judgment for Pacific Maritime Association and International Longshore

and Warehouse Union (collectively, “ILWU”) on his claim under the Uniformed

Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. § 4301, et seq. We have jurisdiction under 28 U.S.C. § 1291. We review the district

court’s summary judgment ruling de novo. Lowry v. City of San Diego, 858 F.3d

1248, 1254 (9th Cir. 2017) (en banc). “We may affirm a grant of summary judgment

on any ground supported by the record,” including an alternative ground relied on

by the district court. See United States ex rel. Ali v. Daniel, Mann, Johnson &

Mendenhall, 355 F.3d 1140, 1144 (9th Cir. 2004). We affirm.

1. Under 38 U.S.C. § 4312(a)(2), a servicemember is entitled to

reemployment rights and benefits if “the cumulative length of the absence and of all

previous absences from a position of employment with that employer by reason of

service in the uniformed services does not exceed five years.” It is undisputed that

Belaustegui spent nine years and one month on continuous active service with the

Air Force. Belaustegui contends that under § 4312(c)(4)(B), part of his service is

exempt from USERRA’s five-year limit. Section 4312(c)(4)(B) provides an

exception to the five-year limit for those servicemembers “ordered to or retained on

active duty (other than for training) under any provision of law because of a war or

national emergency declared by the President or the Congress, as determined by the

Secretary concerned.”

ILWU moved for summary judgment, arguing there is no triable issue of fact

regarding Belaustegui’s eligibility for an exemption under § 4312(c)(4)(B). The

district court granted judgment in ILWU’s favor on two alternative grounds. First,

2 the district court held that the Department of Labor regulations implementing

§ 4312(f) require documentation of an exemption under § 4312(c)(4)(B) and,

because Belaustegui failed to provide documentation, his claim fails as a matter of

law. Second, the district court held that, even if Belaustegui was not required to

provide documentation, he failed to demonstrate a genuine dispute of material fact

regarding his eligibility for an exemption under § 4312(c)(4)(B).

We affirm the district court’s grant of summary judgment in ILWU’s favor on

the second ground only. Belaustegui has presented no admissible evidence that his

order to reenlist was “because of a war or national emergency,” and thus he fails to

raise a genuine issue of material fact as to his eligibility for an exemption under 38

U.S.C. § 4312(c)(4)(B). See United States ex rel. Ali, 355 F.3d at 1144.

Belaustegui claims that he is eligible for an exemption because, in 2007, his

commanding officer orally ordered him to reenlist to serve in the Global War on

Terrorism. Belaustegui submits his own deposition testimony to support this claim

yet does not identify the commanding officer, the officer’s rank, or any other details

about this oral order to reenlist.

At summary judgment, a court “may only consider admissible evidence”

when determining whether there is a genuine issue of material fact. Weil v. Citizens

Telecom Servs. Co., LLC, 922 F.3d 993, 998 (9th Cir. 2019); Fed. R. Civ. P. 56(c)(4)

(“An affidavit or declaration used to support or oppose a motion must . . . set out

3 facts that would be admissible in evidence . . . .”).

Here, even assuming that Belaustegui’s commanding officer orally directed

him to reenlist for the Global War on Terrorism and told him his reenlistment was

required for the war, the alleged statement is inadmissible hearsay. It is an out-of-

court statement offered for its truth: that Belaustegui was involuntarily ordered to

reenlist to serve because of the Global War on Terrorism. To be sure, “[i]f the

contents of a document can be presented in a form that would be admissible at trial—

for example, through live testimony by the author of the document—the mere fact

that the document itself might be excludable hearsay provides no basis for refusing

to consider it on summary judgment.” Sandoval v. County of San Diego, 985 F.3d

657, 666 (9th Cir. 2021). But here, making the relevant statements admissible would

require Belaustegui’s commanding officer to testify. And Belaustegui cannot

identify the commanding officer, let alone present testimony from the commanding

officer, so the relevant contents of Belaustegui’s deposition and interrogatory

responses cannot be presented in an admissible form at trial.

Without admissible evidence supporting his claim, no reasonable fact finder

could find Belaustegui eligible for USERRA coverage under § 4312, and so his

claim cannot survive summary judgment.

2. Belaustegui’s claim that he is entitled to USERRA benefits for his

National Guard service also fails. USERRA’s five-year service limit under § 4312(a)

4 is a “cumulative” ceiling calculated per employer. Nothing in the statute suggests

that the limit is calculated separately based on a servicemember’s active duty with

different uniformed services. Because Belaustegui’s cumulative service exceeds five

years, and because he seeks the benefits for his National Guard service from the

same employer as his earlier active-duty service, summary judgment for ILWU is

proper.1

AFFIRMED.

1 ILWU’s motion for judicial notice, Dkt. 20, is denied as moot.