NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 22 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEO SYNORACKI, on behalf of himself No. 22-35504 and all others similarly situated, D.C. No. 2:18-cv-01784-RSL Plaintiff-Appellant,

v. MEMORANDUM*

ALASKA AIRLINES, INC., an Alaska corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding

Submitted August 16, 2024** San Francisco, California

Before: TASHIMA, CALLAHAN, and KOH, Circuit Judges.

Plaintiff Leo Synoracki (“Plaintiff”) appeals the district court’s order

granting summary judgment in favor of Alaska Airlines, Inc. (“Alaska”). Plaintiff

is a retired pilot and former Alaska employee who took military leaves of absence

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). while employed with the airline. Plaintiff’s complaint claims that Alaska violated

the Uniformed Services Employment and Reemployment Rights Act of 1994

(“USERRA”), which entitles employees on military leave to the same non-

seniority benefits provided to other employees on comparable non-military related

leaves of absence. 38 U.S.C. § 4316(b)(1)(B).1 We have jurisdiction pursuant to 28

U.S.C. § 1291. Reviewing the district court’s grant of summary judgment de novo,

Rodriguez v. Bowhead Transp. Co., 270 F.3d 1283, 1286 (9th Cir. 2001), we

vacate in part and remand.

1. Alaska asserts that Plaintiff has no Article III standing to bring his sick

leave claim because he lacks an injury in fact. We disagree.

To establish Article III standing, a plaintiff must show: “(1) that [they have]

suffered an injury in fact—an invasion of a legally protected interest which is (a)

concrete and particularized; and (b) actual or imminent, not conjectural or

hypothetical; (2) that there is a causal connection between the injury and the

conduct complained of; and (3) that it is likely the injury can be redressed by a

favorable decision.” Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1085 (9th Cir.

1 Plaintiff’s complaint also claims that Alaska violated 38 U.S.C. § 4316(a), the section of USERRA that entitles employees on military leave to the same seniority benefits the employees would have attained if they had remained continuously employed. At summary judgment, the district court rejected those seniority benefits claims, and Plaintiff does not appeal that aspect of the district court’s decision.

2 2003) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)). Although Alaska did

not raise the issue of standing in the district court, “because it implicates

jurisdiction, a challenge to constitutional standing is one ‘which we are required to

consider, even though raised for the first time on appeal.’” Id. (quoting Newdow v.

U.S. Congress, 313 F.3d 500, 503 (9th Cir. 2002)). “When a party raises standing

for the first time on appeal, we first examine the complaint and, if it fails to

establish standing, the record.” Id. (citing Animal Prot. Inst. of Am. v. Hodel, 860

F.2d 920, 924 n.6 (9th Cir. 1988)).

Plaintiff’s complaint alleges that because employees who take paid sick

leave and jury duty leave (i.e., non-military leaves of absence) are afforded the

benefit of paid sick time accrual and vacation time accrual, Alaska pilots on

military leave should have also been given the same benefits under USERRA.

Plaintiff’s allegation that he did not receive the benefits to which he was entitled

under USERRA is sufficient to allege an injury in fact. Plaintiff maintains “a

personal stake in the outcome of the controversy as to warrant [his] invocation of

federal-court jurisdiction.” Murthy v. Missouri, 144 S. Ct. 1972, 1986 (2024)

(quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). Plaintiff thus

has Article III standing to bring his sick leave claim.

2. After the district court’s decision but before briefing in this case, we

decided Clarkson v. Alaska Airlines, Inc., 59 F.4th 424 (9th Cir. 2023) (holding

3 that when assessing USERRA violations, comparability of the military leave taken

by the servicemember and other paid leave offered by the employer is to be

determined by examining the length of the leave at issue, rather than by using a

categorical approach). Because the allegations and issues in Clarkson are similar to

those here, and because the district court did not have the benefit of Clarkson when

reaching its decision, we vacate the district court’s order as to Plaintiff’s non-

seniority benefits claims and remand such claims for the district court’s

reconsideration under Clarkson. On remand, the district court may consider

certifying a narrower, temporally limited class. See Clarkson, 59 F.4th at 433

(“The plaintiff, as master of the complaint, can limit the request for recovery of

benefits to specific, shorter military leaves.”).

VACATED IN PART and REMANDED.2

2 The parties shall bear their own costs on appeal.

4