Kevin Ziober v. Blb Resources, Inc.
2016 U.S. App. LEXIS 18516
| 9th Cir. | 2016Background
- Kevin Ziober, a Navy Reservist and former operations director at BLB Resources, signed a bilateral employment arbitration agreement requiring final and binding arbitration of employment disputes; employer agreed to pay arbitration costs and preserve court-like discovery/remedies.
- Ziober was recalled to active duty in Afghanistan; upon his departure the employer told him he would not have a job upon return.
- After returning, Ziober sued under USERRA alleging discrimination and denial of reemployment; he also asserted state-law claims.
- Employer moved to compel arbitration under the signed agreement; the district court granted the motion and dismissed the complaint.
- The Ninth Circuit reviewed de novo whether USERRA contains a congressional command that precludes enforcement of pre-dispute arbitration agreements covering USERRA claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USERRA precludes compelled arbitration of USERRA claims | Ziober: USERRA’s text and legislative history show Congress intended to prevent waiver of a judicial forum (§4302(b) & §4323), so arbitration agreements cannot force arbitration of USERRA claims | BLB: FAA’s pro-arbitration policy applies; absent an unmistakable congressional command, arbitration agreements are enforceable and do not deprive claimants of substantive USERRA rights | Court: USERRA does not contain a clear congressional command overriding the FAA; arbitration may be compelled and complaint dismissed |
| Whether §4302(b)’s prohibition on reducing rights bars individual arbitration agreements | Ziober: §4302(b) forbids contracts that ‘‘reduce, limit, or eliminate’’ rights, which covers waivers of judicial forum | BLB: §4302(b) targets additional prerequisites (e.g., collective-bargaining grievance exhaustion), not individual pre-dispute forum-selection arbitration clauses | Court: §4302(b) read in text and legislative history targets imposed prerequisites; individual arbitration agreements do not create additional steps and thus are not barred |
| Whether legislative history supports non-waiver of judicial forum | Ziober: House report indicates arbitration/grievance procedures should not be required as a prerequisite and suggests arbitration decisions need not be binding | BLB: The cited legislative history addresses exhaustion/prerequisites (collective agreements) and does not clearly disallow individual arbitration agreements; Senate report is silent | Court: Legislative history is insufficient to meet the plaintiff’s burden to show Congressional intent to preclude arbitration |
Key Cases Cited
- CompuCredit Corp. v. Greenwood, 565 U.S. 95 (2012) (statutory creation of a cause of action and civil remedies does not by itself show Congress intended to preclude arbitration)
- Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (arbitration of statutory employment claims does not forfeit substantive rights and does not conflict with statute’s purposes)
- Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) (parties may agree to arbitrate statutory claims without foregoing substantive protections)
- Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (federal policy favoring arbitration and rigorous enforcement of arbitration agreements)
- Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) (FAA’s pro-arbitration policy applies in the employment context for non-transportation workers)
- Landis v. Pinnacle Eye Care, LLC, 537 F.3d 559 (6th Cir. 2008) (USERRA does not clearly preclude arbitration; §4302(b) targets prerequisites like collective-bargaining procedures)
- Garrett v. Circuit City Stores, Inc., 449 F.3d 672 (5th Cir. 2006) (same conclusion: USERRA claims are arbitrable)
- Bodine v. Cook’s Pest Control Inc., 830 F.3d 1320 (11th Cir. 2016) (USERRA claims held arbitrable; offending arbitration terms severable)