Here is the oral argument at the South Dakota Supreme Court for the USERRA case in which Bob and I represent 7 South Dakota Air National Guard (SDANG) dual-status technicians. The main issue is whether they should have been allowed to accrue and use 15 days of paid military leave per 5 U.S.C. 6323(a) while they were away from their positions as Federal civilian employees with the SDANG. SDANG claims they should not have, because their orders were Active Guard and Reserve Duty (AGR) orders, which are expressly excluded from being allowed to accrue/use that leave. We agree AGR duty is excluded,  but they all converted to Title 10 orders during their military leave, and it is those periods of Title 10 duty we claim entitle them to the paid military leave.

The second issue is whether the trial court properly dismissed the case, claiming we did not show an “anti-military animus” in SDANG’s decision not to grant them the leave accrual. The case law is clear, when a benefit of employment that is denied is only available to members of the military (i.e., military leave here, or differential pay), there does not need to be such a showing. The discrimination is evident in the denial of the benefit itself.