In 1984, this Court acquired statutory certiorarl jurisdiction over some decisions of what 1s now the United States Court of Appeals for the Armed Forces (CAAF). That jurisdiction, however, excluded review of any action by that court refusing to grant discretionary review of an intermediate military appellate court’s decision.

Effective December 22, 2024, Congress amended the statute governing this Court’s certiorari jurisdiction over the CAAF to include “[d]ecisions of’ that court in cases in which it refused to grant discretionary review. 28 U.S.C. § 1259. The resulting statutory regime presents significant questions concerning the nature of this Court’s certiorari jurisdiction over a CAAF decision denying discretionary review. May this Court review the decision of the intermediate military appellate court that the CAAF declined to review, similar to its practice in the 28 U.S.C. § 1257 context, or is this Court’s expanded jurisdiction limited to the CAAF’s denial of discretionary review itself? If the latter, what standard should this Court apply?

Petitioners—four service members whose petitions for review the CAAF denied—ask this Court to decide this Question Presented:

Does the amended version of 28 U.S.C. § 1259 give this Court supervisory authority over the CAAF’s denial of discretionary review and, where good cause is shown, to remand for plenary consideration?

This case presents an important and recurring question of federal law that has divided the courts of appeals: whether an employer may deny a service member a benefit of employment because he was on leave for military service. The Uniformed Services Employment and Reemployment Rights Act (USERRA) forbids an employer to deny “any benefit of employment” to a person “on the basis of” military service. 38 U.S.C. § 4311(a). Another provision guarantees a_ service member absent for military service at least the non- seniority benefits the employer provides to employees on other forms of leave. § 4316(b)(1).

The courts of appeals are divided over how those two provisions fit together. The Ninth Circuit holds that § 4316(b) sets a floor that leaves § 4311 fully operative, and it has expressly questioned the contrary view. The Fifth, Seventh, and Eighth Circuits hold that § 4816(b) sets a ceiling: a service member is entitled to no more than the treatment given employees on comparable leave.

In the decision below, the Third Circuit adopted the ceiling view. It reasoned that USERRA entitled petitioner at most to the same benefits as employees on comparable leave, and held that whether he received them is a question of contract interpretation that must be resolved in arbitration under the Railway Labor Act. It therefore affirmed the dismissal of his USERRA suit.

The question presented is:

Whether 38 U.S.C. § 4311 prohibits an employer from denying a service member a benefit he would have received but for military leave, or whether § 4316(b) permits that denial whenever the employer also denies the benefit to employees on other forms of leave.

(i)