Kevin Ziober v. Blb Resources, Inc.

challenging of Reeves and Woods. cutor’s above,

But, hold Petitioners have as we prosecutor engaged to show that failed by challenging Hil- racial discrimination Therefore, arguments as to ton. their necessarily must fail Reeves and Woods reality light” since in there “new argu- should view their we which holdings therefore reaffirm the ments. We opinion that Petitioners prior panel our the CCA erred not shown Batson claims as to rejecting jurors McDaniels, Reeves and Woods. at 946.

IV. juror considering question- After dire, of voir in- day first names and court, banc hold that structed the en we Appeal’s California Court decision did not result “an unreasonable determi- light nation of the facts the evidence presented proceeding.” in the State 2254(d)(2). af- We therefore denying firm the district court’s decisions relief. Petitioners habeas AFFIRMED. ZIOBER, individual,

Kevin Plaintiff-Appellant, INC., RESOURCES, BLB a California Corporation, Defendant-Appellee.

No. 14-56374 of Appeals, United States Court Ninth Circuit. Argued July and Submitted Pasadena, California Filed October

Peter (argued) Romer-Friedman and R. Barton, Joseph Cohen Milstein Sellers & PLLC, D.C.; Washington, Toll Kathryn S. Piscitelli, Orlando, FL; Thomas Jar- G. rard, Jarrard, Law Office Thomas PLLC, WA; Spokane, for Plaintiff-Appel- lant. (argued),

Lonnie D. Giamela Jimmie E. Johnson, Okelberry, and Nathan V. Fisher LLP, Phillips CA, & Los Angeles, for De- fendant-Appellee.

Before: MARY H. MURGUIA and WATFORD, PAUL J. Judges, Circuit BOLTON,** Judge. SUSAN R. District by Judge Concurrence WATFORD OPINION

MURGUIA, Judge: Circuit Ziober, plaintiff, signed ‍​​​​‌​‌​​​​‌​​‌‌‌‌‌​​​‌‌‌​​‌‌​‌​‌‌​‌‌‌​‌​​‌​​‌​​‍Kevin employer requiring with his legal disputes.

arbitration of Ziober later employer, claiming sued the that he was job fired providing from his notice deployment Afghanistan his in the Unit- ** Bolton, zona, sitting by designation. The Honorable R. Susan United Judge States District for the of Ari- District they Navy al- in arbitration as The lawsuit same Reserve.

ed States Uniformed Services court. leged violations Rights Reemployment company subsequently told (USERRA), establishes

Act which Navy to active recalling that the was him returning rights for service- employment duty Afghanistan. On Ziоber’s last question case presents This the members. in- day work, of the company scheduled com- the prohibits USERRA whether job him that he not have a formed arising under of claims pelled arbitration upon his return civilian life. join other circuits provisions. We its Af- returning from April In after question and conclude have considered employ- ghanistan, his former Ziober sued prohibi- no such that USERRA contains violating provisions for er affirm district tion. therefore We (cid:127) against dis- protecting servicemembers compelling order arbitration court’s establishing reemploy- crimination and dismissing complaint. Ziober’s rights. complaint The also includes ment claims, including claims various state law I. wrongful for termination violations facts, underlying alleged The as protecting a state statute servieemembers purposes not in for complaint, dispute are against discrimination. The Ziober the United appeal. оf this served in compel pursuant moved to Navy in his and worked States Reserve signed. The Ziober had for operations life as an civilian director granted defendant’s mo- district Inc., Resources, BLB es- defendant real concluding tion did Ap- firm. marketing management tate supersede not invalidate the arbitration proximately joining six months after This agreement. appeal followed. signed arbitra- company, bilateral The agreement. tion stated: II. law, any To fullest extent allowed jurisdiction under We controversy, dispute claim or between 16(a)(3) to review district ... relat- Employee Company and the compelling court’s order arbitration and arising em- Employee’s to or out dismissing complaint. Ziober’s We review or the of that em- ployment cessation Bushley court’s novo. order de to final and ployment will submitted Boston, 360 v. Credit Suisse First F.3d ar- binding before neutral (9th Cir. ... in accor- determination bitrator Arbitration dance with the American III. (“AAA”) Ar- Association’s Rules Proce- bitration Mediation analysis begins more Our with mediation), (excluding including dures than three decades subsequent modifications amend- precedent recognizing the “liberal federal Rules, to such as the exclusive ments policy favoring agreements,” controversy, remedy for such claim by the Act Federal Arbitration established dispute. (FAA). Hosp. Moses H. v. Cone Mem’l 1, 24, 103 agreed Mercury Constr. agreement, company U.S. Under all arbitration The 74 L.Ed.2d 765 pay costs. — Greenwood, specified CompuCredit Corp. discov- v. scope that the further U.S. -, 665, 669, be the 181 L.Ed.2d ery 132 S.Ct. and available remedies would pro-arbitration ex policy arbitration of That clude claims compelled agreements in arising join tends to arbitration the em provisions. under our its ployment non-transportation contracts ques sister circuits have considered the Stores, City Inc. workers. Circuit and conclude neither text nor Adams, legislative U.S. history that intent. Lan evinces requires FAA Care, LLC, L.Ed.2d dis Pinnacle Eye “ courts ‘rigorously (6th enforce’ arbitration 2008); Cir. City Garrett v. Circuit terms,” in according Stores, Inc., (5th 2006); 449 F.3d 672 Cir. cluding agreements arbitrate see also Bodine v. Cook’s Pest Control arising federal Am. Ex statutes. (11th Inc., 2016) (hold 830 F.3d 1320 — press Rest., Co. Colors v. Italian ing that a USERRA claim was arbitrable -, 2304, 2309, 186 underlying even where (2013) (quoting Reynolds Dean Inc. Witter contained terms violatеd 213, 221, Byrd, 1238, v. 105 470 U.S. S.Ct. the statute because those terms could be (1985)); Compu- from the of agree severed remainder Credit, of S.Ct. 669. Section 3 the ment). specifically FAA directs federal compel n stay proceedings courts to and ar A. issue “any

bitration referable arbitra helps Some historical context frame writing under an for discussion provisions. By such arbitration.” 3. U.S.C. Congress passed the time USERRA in An exception to the FAA’s arbi 1994, FAA for place nearly had been tration mandate exists when the mandate seventy years, Supreme and had ‍​​​​‌​‌​​​​‌​​‌‌‌‌‌​​​‌‌‌​​‌‌​‌​‌‌​‌‌‌​‌​​‌​​‌​​‍by contrary “has been ‘overridden con a contrary congressional made clear that “a gressional CompuCredit, 132 command.’” required command” was override the Ex (quoting S.Ct. Shearson/Am. pro-arbitration FAA’s mandate. McMa McMahon, 220, 226, press v Inc. 482 U.S. hon, U.S. at S.Ct. 2332. Three 2332, (1987)). 96 L.Ed.2d 185 S.Ct. years passage, before USERRA’s the Su challenging The on party burden rests preme age held that an dis Court further “to show intend n Age under the arising claim crimination ed to preclude judicial fo waiver Employment Act of Discrimination in rum” for the claims issue. Gilmer subject compelled could arbitration. be Lane 500 U.S. Interstate/Johnson Gilmer, 111 S.Ct. 1647. 20, 26, 114 L.Ed.2d 26 in employment Arbitration congressional “will Such intent at the contracts were not uncommon time. [statute], the text of discoverable in the' See, e.g., Erving Squires Va. Basketball legislative history, its or an con inherent Club, (2d 1066-67 468 F.2d flict and [stat bеtween arbitration duPont, 1972); Dickstein v. purposes.” Id. underlying ute’s] (1st Cir. 784-85 (internal quotation omit marks ted); see also Penn Plaza LLC v. backdrop, Congress Against Pyett, prohibit passed broadly em 173 L.Ed.2d 398 ployment against, discrimination es case, of, on argues reemployment rights

In this that the tablish behalf plain military legislative history of USER- in the and then text those who serve RA pre- civilian See 38 reveal that life. U.S.C. reenter protections by arbitrating appeal, 38 substantive

§§ Centrаl to this 4301-4334. claims, only way prevail can his he provides: procedural right is if USERRA creates law chapter supersedes any State This forum, 4302(b). protected by to a ordinance), (including any local law Court’s decision Com- contract, prac- agreement, policy, plan, argument that limits, puCredit forecloses the reduces, US- tice, or matter that other procedural ERRA includes non-waivable any any right manner or eliminates CompuCrеdit, to a forum. In right includ- provided chapter, this benefit Court enforced a consumer pre- of additional the establishment arising under the Cred- to arbitrate any such requisites to the exercise of (CROA), Organizations Act Repair it receipt such benefit. right or the which, USERRA, prohibited similar may sub- enforce his her An individual “any right consumer” un- waiver against private employer stantive the Act. 132 S.Ct. at 669. Unlike US- der §§ ways. in one of 38 U.S.C. two ERRA, explicitly provided that a CROA First, a com- may filе individual “a consumer had sue” credit Secretary of Labor plaint with USERRA, organization. Like repair Id. Secretary that the refer the mat- request included a that created civil CROA section Attorney further to the ter General liability and described available relief in 4323(a)(1). §§ Id. prosecution. Sec- 670; of a in Id. at context lawsuit court. ond, directly pursue a may an individual (CROA’s 1679g § see also 15 U.S.C. civil in court. Id. civil action federal liability provisions). Despite thе statute’s 4323(a)(3).1 gives § Section 4323 seeming contemplation of a forum claims, jurisdiction courts over USERRA claims, Supreme rejected for Court in which actions specifies and it venue procedural a argument that CROA created 4323(b), (c). may Id. proceed. bring a in As right to lawsuit court. reasoned, mere formulation together, argues “[i]f Taken of the action this standard proce cause statutory provisions create a those were to sufficient establish the fashion right to sue in dural federal ‘contrary congressional command’ over- arbi precludes agreement to contractual FAA, agree- riding the valid matter, it disagree. trate. As an initial covering of action ments causes federal “[b]y agreeing established that well rare at 132 S.Ct. indeed.” claim, statutory does party arbitrate a omitted). (citation forgo not afforded substantive statute; it to their only submits also CompuCredit The Court looked arbitral, in an than a resolution rather prior instances it had when enforced judicial, Corp. forum.” Motors Mitsubishi despite statute’s Inc., Chrysler-Plymouth, 473 U.S. Soler of a for contemplation judicial forum suits. Gilmer, instance, 105 S.Ct. 87 L.Ed.2d Supreme In for City, U.S. an see also Circuit Court enforced to a respect brought 1302. Ziober therefore loses with claim S.Ct. authority question reach how the the EEOC "the 1. We do not retained regard- have victim-specific [judicial] in this case would pursue relief Attorney brought by affected employer and of the forum that the em- less 4323(a)(1). pursuant §to General See EEOC ployee have resolve their dis- chosen to 295-96, House, Inc., putes”). Waffle (2002) (hold- 122 S.Ct. Age Discrimination in Act closest USERRA’s text comes (ADEA), though provided even the statute addressing compelled arbitration of “[a]ny person may aggrieved bring a 4323(b)?s claims is in prohibition of “the civil in any competent juris- action cоurt of establishment of prerequisites” additional legal equitable diction relief as to the vindication of rights. substantive purposes will effectuate the of this chap- However, as other circuits recog CompuCredit, 670; ter.” see nized, that language directly relates to 626(c)(1). Gilmer, also 29 U.S.C. Before “union contracts and bargaining collective repeatedly Court also en- agreements” require employee an arbitration agrеements forced when the take an step additional or exhaust certain federal statute issue created cause filing remedies before suit. action in federal courts without mentioning 680; Landis, F.3d at 537 F.3d at agreements to CompuCredit, arbitrate. See (Cole, J., concurring) (concluding that cases); (discussing S.Ct. at 670-71 Congress did not want plaintiffs McMahon, 227-28, arbitration, be forced “to submit to me CompuCredit, 2332. In the Court reaffirm- diation, any grievance procеdure as a statutory ed that such provisions do not prerequisite filing court”). suit in federal create a enforcement But an individual arbitration claim. at 671. employee— between and an The same applies conclusion here. Like operating like forum selection clause— CROA, nothing plain text USER- employee allows an to immediately seek to RA “mentions mandatory arbitration or vindicate his or her in an arbitral Landis, the FAA.” 537 F.3d at 559. In- forum, with no additional steps exhaus stead, liability the statute describes civil tion of other required. remedies a standard fashion similar to the statutes in CompuCredit. considered As the Su- argues Ziober also that USERRA preme Court in CompuCredit, remarked should interpreted liberally be more than Congress when pre- has issued a command given other statutes its on ‍​​​​‌​‌​​​​‌​​‌‌‌‌‌​​​‌‌‌​​‌‌​‌​‌‌​‌‌‌​‌​​‌​​‌​​‍focus veterans. claims, cluding the arbitration of it has accurately observes, As Ziober the Su done so in far more' unmistakable terms. preme repeated and this court have (citing See 132 S.Ct. at 672 7 U.S.C. ly principle affirmed the that con statutes 26(n)(2) (“No predispute arbitration cerning reemployment rights for federal enforceable, agreement shall or be if valid military “to con liberally members are requires arbitration of a for the of strued benefit those who left section.”); dispute arising under this 15 private country life to serve in its 1226(a)(2) (“Notwithstanding any great Fishgold hour оf v. need.” Sullivan law, provision other a motor whenever 275, Dry Repair Corp., dock & 328 U.S. vehicle provides franchise contract for the (1946); 90 66 S.Ct. L.Ed. 1230 use of controversy resolve a Davis, v. Ala. Power Co. arising relating contract, out of or to such 2002, 52 97 S.Ct. arbitration may be used to settle such (1977);Imel v. Laborers Pension Tr. Fund controversy only if such controversy (9th Cal, N. 904 F.2d 1331-32 parties arises all to 'such controversy con- 1990). liberally Cir. have also con writing sent in to use arbitrаtion to settle controversy.”)). reemployment statute to Congress no strued veterans made jurisdiction similarly plain provide over a statement USERRA’s federal Imel, text. prin- claim. 904 at 1331-32. The F.2d 820 however, construction, satisfy his “to is also does not burden of liberal

ciple preclude may take that designed ensure that veterans show Gilmer, rights 500 of a forum.” advantage the substantive waiver full 26, 111 Ziober relies provided by statute. See S.Ct. 1647. protections U.S. at 585-87, Power, paragraph in a Com largely on House U.S. Ala. discussed, Yet, Report concerning scope previously arbitra- mittee 4302(b). paragraph one at issue states: agreements like the forum selection operate like this case general reaffirm a Section give require party not that do clauses as to and local laws preemption State afforded rights up any “substantive ordinances, as well as Mitsubishi, U.S. statute.” agrеements, provide practices which Further, anof the enforcement S.Ct. 3346. limit fewer otherwise not undermine does chapter 43 provided under amended given underlying policies” the “social rights. conditions on those put additional Gilmer, 27-28, 111 U.S. statute. Department Peel v. Florida See Instead, “can fur- S.Ct. 1647. (5th Transportation, 600 F.2d 1070 purposes” same “broader social ther” 1979); City v. Dept. Police Cronin Id. at litigation promote. seeks to that (S.D. York, F.Supp. New N.Y. 111 S.Ct. 1647. 1987) Fishgold, supra, 328 U.S. with the other circuits to Consistent 1105], provide which [66 the question, we therefore have considered employer practice can plain of USERRA , text conclude reduce, limit or un- eliminate compelled arbitra- preclude not does Moreover, chapter 43. this section der provi- its disputes arising tion of would reaffirm additional resort (con- sions. See grievance proce such as mechanisms cluding from the not “[i]t еvident or arbitration or adminis dures similar language Congress intended statutory appeals required. is not See trative by simply granting preclude R. Co., McKinney Missouri—K-T forum”); possibility of a federal L.Ed.2d [78 (observing that Landis, F.3d at 562 Beckley Lipe-Rollway 1305] nothing in text indicates (N.D.N.Y. F.Supp. exempt chose to the statute that, intent It is the Committee’s arbitration”); favoring “from see policy the person protected if the Act even (affirm- Bodine, also F.3d 1327-28 arbitration, any to rеsorts arbitration ing compelling a district court’s order arbi- binding not matter decision shall be as a severing of USERRA claims tration See Kidder v. Eastern Airlines law. that agreement from the arbitration terms Lines], Inc., F.Supp. [Air statute)2. violated the (S.D. Fla. 1064-65 (1993). 103-65(1), 20 No. Rep. H.R. B. however, to passage, if were that USER- The is consistent with Even we conclude 4302(b)’s analysis express prohibi- ambiguous question, RA’s text was on our legislative history prereq- limited cited on the creation of tion “additional parties "expressly agree[d] specific agreement The arbitration issue. 2. Bodine arbitrable,” that USERRA claims lim- are 830 F.3d at argument enforceability ited to the ing argument for the vindication that uisites” substantive legislative under the weakening statute. As protections “method af- history confirms, Congress’s concern was forded in the substantive law would-be agreements contractual that with forced complainants”). employee steр

an take an additional We' therefore conclude that has (i.e., exhausting grievance pro- contractual legislative failed to establish that histo- cedures) That con- bringing before suit. ry Congress’s prevent evinces intent cern, however, does not reach individual enforcement of the arbitration agreements like to arbitrate the one at signed.3 he case, in this agree- issue because require plaintiff ments do not to takе IV. steps seeking any additional before to vin- acknowledge the possibility his or in an We that dicate her arbitral fo- (remark- Congress not our rum. See at 680 did want “members of legislative armed history cited forces to binding, submit coercive “strongly suggests Landis, agreements.” F.3d only prohibit limiting (Cole, J., concurring). That inten- rights by tion, union however, expressed substantive is not the stat- bargaining agree- contracts itself, and collective ute legislative or in history. ments, and that did nоt refer therefore affirm the district order court’s an between em- Compelling dismissing Landis, ployer and employee”); individual complaint. Ziobér’s F.3d at 562-63. AFFIRMED. legislative history’s The citation to McKinney WATFORD, Judge, concurring: Circuit Missouri-Kansas-Texas reading. Railroad Co. confirms that join I opinion, but I have court’s McKinney Supreme Court in considered a reaching doubts about whether we are predecessor USERRA statute held right result. bargaining collective strong A can argument made require not employee could “exhaust -Employment Uniformed Services filing other avenues of before relief’ 'suit. (USER- Reemployment Act of 1994 Rights L.Ed.2d RA) “contrary congressional contains a however, McKinney, did not overriding command” the Federal Arbitra agreements that oper address arbitration similar, pro-arbitration Act’s mandate. Com ate forum selection clauses-like — Greenwood, puCredit Corp. v. the one issue in this сase. And as the -, plain, Court has made L.Ed.2d since provision contains a bringing act of a claim arbitration allows renders plaintiff to or her unenforceable vindicate his substan contract “reduces, limits, statutory rights tive to the same extent elimi any right a in filing any provid lawsuit in See Gil nates ... federal court. manner mer, 4302(b). 30, § 500 (reject- by U.S. at chapter.” ed this S.Ct. 103-158, Report agree 3. Even if the more No. the House Committee with record, directly Fifth un- addressed individual that a scant Circuit "[s]uch agreements, language point, appears explicitly hardly proves in on’ less similar any legis- Congress’s Report, relevant other the Senate intention toward all cases involv- history by Rep. ing parties. lative cited the See S. arbitration." F.3d at right bring ac- conferring the to an with his sion Ziober’s contract Kevin to tion in him claims court. requires to submit USERRA That contract binding final and arbitration. concede, though, proper I the inter- for all certainly practical “limits”—and 4302(b) § is open to debate. pretation right purposes to.litigate “eliminates”—his hand, of La- Department the the On one , claims in So the those court. threshold bor, charged agency administer- the with is confers on question USERRA whether 4302(b) USERRA, § as in- has read to right litigate the US- servicemembers in cluding against the waiver prohibition “a claims in ERRA court. employee’s of an an arbitration a in right. right bring confer a to USERRA suit Federаl statute to such seems (Dec. 19, Reg. court.” to 70 Fed. 4323 authorizes servicemembers Section a reading is with against for relief’ a That consistent “commence action says, long authority holding legisla- as employer, and it relevant private line here, benefitting action is to be against the of an a servicemembers “[i]n case See, e.g., in their favor. private employer by person, liberally a the construed Shinseki, ju- of the shall Henderson ex rel. Henderson courts United States have the action.” 38 U.S.C. risdiction 4323(a)(3), (b)(3). Fishgold

§ I’m not sure v. Sullivan what ad- necessary ‍​​​​‌​‌​​​​‌​​‌‌‌‌‌​​​‌‌‌​​‌‌​‌​‌‌​‌‌‌​‌​​‌​​‌​​‍Drydock Repair language ditional to & right bring a an action in L.Ed. 1230 create to court. hand, 4302(b) general to is in If On other right confers USERRA forum, arguably scope; not explicitly then renders it does address waiver of the to a forum. there is any pre-dispute right right waiver So invalid Congress argue to submit room to through an preclude only of substantive claims arbitration. waiver statute, rights by the conferred not the Com/puCredMmay controlling seem procedural waiver of case is glance, but that not on all first right bring Nothing an action in court. with The statute fours this one. at issue history in the de- legislative of USERRA there, Repair Organizations the Credit this finitively ambiguity. resolves Act, provision included non-waiver arguments waiver of of With reasonable be made invalidated consumer’s sides, by statute, prudent on both I think conferrеd but don’t it’s split reversing held that statute us create circuit bring ruling, particularly given right did not confer an action district court’s can fix this court. 132 S.Ct. at 669- ease with which CompuCredit, other to which problem. 70. The statutes the Court If we and other circuits 4302(b), scope CompuCredit—the Age misinterpreted referred Dis- Act, crimination to make can amend statute Organ- pre-dispute clear it Corrupt Racketeer Influenced and does render Act, Clayton in- izations and the Act—all arbitrate USERRA Eye Each Landis v. Pinnacle volved reverse situation: statute unenforceable. See (6th Care, LLC, bring an conferred the action 2008) Indeed, court, (Cole, J., concurring). provi- but each lacked non-waiver proposed id. least one has been sion. See at 670-71. USERRA amendment dif- just that. recently it contains both non- that would do See ferent because 25, 2016) (§ 4302(b)) (daily provision Cong. May S3205 provi- waiver and a Rec. ed. (proposed 4180 to Bill amendment Senate If construing we erred narrowly, Congress too will

surely let us know. NATIONAL INSTITUTE OF FAMILY ADVOCATES, Virginia

AND LIFE corporation, NIFLA; Pregnancy DBA Center, corporation,

Care a California Pregnancy Clinic; DBA Care Fall Pregnancy Center, brook Resource corporation, Plaintiffs-Ap California pellants, HARRIS, capaci Kamala in her official ty Attorney as General State

California; Montgomery, Thomas capacity County

his official as Coun Diego County; Morgan sel for San Fo ley, City capacity in his official Attorney City Cajon, CA; El for the Brown, Jr.,

Edmund G. his official capacity as Governor the State of

California, Defendants-Appellees.

No. 16-55249 Court of United States Appeals, Ninth ‍​​​​‌​‌​​​​‌​​‌‌‌‌‌​​​‌‌‌​​‌‌​‌​‌‌​‌‌‌​‌​​‌​​‌​​‍Circuit. Argued June Submitted Francisco,

San California Filed October

Case Details

Case Name: Kevin Ziober v. Blb Resources, Inc.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 14, 2016

Citation: 839 F.3d 814

Docket Number: 14-56374

Court Abbreviation: 9th Cir.