                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                             No. 09-15609                AUGUST 16, 2010
                         Non-Argument Calendar              JOHN LEY
                       ________________________               CLERK


                D. C. Docket No. 07-01315-CV-ORL-DAB

GLENN SCOTT FANNIN,

                                                           Plaintiff-Appellant,

                                  versus

UNITED SPACE ALLIANCE, LLC,
d.b.a. USA,
ZARAH P. SHAW,
Individually,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                             (August 16, 2010)

Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
      Glenn Scott Fannin appeals the district court’s grant of summary judgment

to United Space Alliance, LLC (“USA”) and Zarah P. Shaw as to his complaint

alleging that he was denied a merit pay increase in violation of the Uniformed

Services Employment and Reemployment Rights Act of 1994 (“USERRA”). On

appeal, Fannin argues that the magistrate improperly granted summary judgment

by misinterpreting USERRA. After thorough review, we affirm.

      We review an order granting summary judgment de novo, viewing all of the

facts in a light most favorable to the non-movant, and drawing all inferences in his

favor. Frederick v. Spring/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir.

2001). “Summary judgment is only proper if there are no genuine disputed issues

of material fact, and the moving party is entitled to judgment as a matter of law.”

Id. “Mere conclusions and unsupported factual allegations are legally insufficient

to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326

(2005).   Generally, we do not consider issues not raised in the district court.

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

      USERRA provides that a member of the Armed Services “shall not be

denied initial employment, reemployment, retention in employment, promotion, or

any benefit of employment by an employer on the basis of that membership.” 38

U.S.C. § 4311(a). Congress enacted USERRA “to encourage noncareer service in



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the uniformed services by eliminating or minimizing the disadvantages to civilian

careers and employment which can result from such service” and “to minimize the

disruption to the lives of the persons performing service in the uniformed services

as well as to their employers.” 38 U.S.C. § 4301(a)(1), (a)(2).

      USERRA further provides that “[a] person who is reemployed under this

chapter is entitled to the seniority and other rights and benefits determined by

seniority that the person had on the date of the commencement of service in the

uniformed services plus the additional seniority and rights and benefits that such

person would have attained if the person had remained continuously employed.”

38 U.S.C. § 4316(a). In addition, a person who is absent from the workplace while

in uniformed service shall be entitled “to such other rights and benefits not

determined by seniority as are generally provided by the employer . . . to

employees having similar seniority, status, and pay who are on furlough or leave of

absence . . . .” 38 U.S.C. § 4316(b)(1)(B) (emphasis added).

      The Code of Federal Regulations provides that “[i]f the employee is

reemployed in the pre-service position or another position, the employer must

compensate him or her at the rate of pay associated with the position in which he or

she is reemployed.     As with the escalator position, the rate of pay must be

determined by taking into account any pay increases, differentials, step increases,



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merit increases, or periodic increases that the employee would have attained with

reasonable certainty had he or she remained continuously employed during the

period of service.” 20 C.F.R. § 1002.236(b).

       Here, Fannin has clarified that he is only appealing the analysis employed by

the magistrate judge in the summary judgment order on Fannin’s merit pay claim.

USA is correct that Fannin never advanced the legal argument below that he now

raises on appeal. USA and Shaw argued in their motion for summary judgment

that Fannin was not entitled to a merit pay increase, because, at USA, merit pay

increases are not seniority-based benefits. In his opposition, Fannin did not argue

that USA misstated the law with regard to merit pay increases under USERRA. He

did not argue about the code section and regulation that he now espouses, and he

did not even frame his response as a legal argument about merit pay increases.

Likewise, in his motion for a new trial, Fannin did not advance an argument that

the district court improperly analyzed his merit pay increase claim. Therefore,

Fannin now relies on an argument that he did not raise before the district court, and

we decline to consider its merits.1

       AFFIRMED.


       1
        But even if we were to address the merits of the claim, we are unpersuaded. Because
Fannin did not present evidence supporting his claim, the magistrate judge properly granted
summary judgment. Moreover, because the remainder of Fannin’s claims are based on the
magistrate judge’s alleged error at summary judgment, we do not address those claims.

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