            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                    Fifth Circuit

                                                                               FILED
                                                                           December 23, 2008

                                         No. 08-30398                    Charles R. Fulbruge III
                                                                                 Clerk


WAYNE GLEN DAY

                                                     Plaintiff-Appellant

v.

LOCKHEED MARTIN SPACE SYSTEMS COMPANY, ET. AL


                                                     Defendants-Appellees



                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                  USDC No. 07-3539


Before JONES, Chief Judge, JOLLY, Circuit Judge, and CARDONE, District
Judge.*
KATHLEEN CARDONE, United States District Judge:**
       In 1979, Appellant Wayne Glen Day (“Day”) began employment with
Martin Marietta, and later continued to work for its successor corporation,
Appellee Lockheed Martin Corporation (“Lockheed”). During his tenure, Day

       *
           District Judge of the Western District of Texas, sitting by designation.
       **
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 08-30398

periodically took leaves of absence in order to serve in the United States Navy
Reserve. In August 2004, after a seven-year absence due to a series of orders to
deploy for service, Day was honorably discharged from active duty and sought
to return to his former position at Lockheed. On December 6, 2004, Lockheed
reemployed Day, and on January 1, 2007, Day retired.
      On June 29, 2007, Day sued Lockheed, alleging that it violated the
Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §
4301, et seq. (“USERRA”) when it delayed his reemployment, denied him a
higher salary and other benefits, and failed to follow its corporate policy.
Lockheed moved for summary judgment, alleging that Day was not covered by
USERRA because, during his seven-year absence, he had failed to timely apply
for reemployment and therefore forfeited USERRA’s protections. The district
court granted Lockheed’s motion, and we affirm.
      USERRA’s purpose is, inter alia, to “eliminat[e] or minimiz[e] the
disadvantages to civilian careers and employment which can result” from non-
career military service. 38 U.S.C. § 4301(a)(1). However, USERRA requires
service members who return from active duty and wish to continue their
previous civilian employment to timely notify their employers.        See id. §
4312(a)(3). In this case, because Day did not do so, he is not entitled to
USERRA’s benefits.
      The notification which a service member must give to their previous
employer depends on the length and circumstances of their service. See id. §
4312(e). On September 14, 2001, Day was ordered to serve for a period of 180
days, requiring him to submit an application for reemployment within fourteen
days after completing that order. Id. § 4312(e)(1)(c). Day completed the order


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                                 No. 08-30398

on March 30, 2002, but did not reapply within fourteen days. Once Day failed
to timely reapply, the terms of his employment with Lockheed were no longer
covered by USERRA. Although he makes much of the reasonableness provision
of § 4312(e)(1)(C), Day did not raise any argument under § 4312(e)(1)(C) before
the district court, and this Court will not consider this argument for the first
time. See Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988).
      Lockheed was nevertheless required to follow its corporate policy. See id.
§ 4312(e)(3). The district court correctly found that nothing in that policy
required Lockheed to comply with USERRA when the statute did not otherwise
apply. Instead, the policy stated that employees must return to work when they
complete their approved leave. Having forfeited the protections of USERRA,
Day was not entitled to the relief he seeks through his employer’s policy.
      Accordingly, after reviewing the record and finding no reversible error, we
hold that the judgment of the district court is AFFIRMED.




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