United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 11, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 04-11360
_______________________
MICHAEL T. GARRETT,
Plaintiff-Appellee,
versus
CIRCUIT CITY STORES, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.
EDITH H. JONES, Chief Judge:
The issue in this case is whether a provision of the
Uniformed Services Employment and Reemployment Rights Act
(“USERRA”), 39 U.S.C. § 4302(b), which protects the employment
rights of members of the armed forces, precludes the enforcement of
individual contracts to arbitrate such disputes. We hold that it
does not. Accordingly, we reverse the district court’s contrary
conclusion.
I. BACKGROUND
Appellee Garrett was hired by Circuit City in 1994, while
he was a member of the Marine Reserves. In 1995, Circuit City
adopted an “Associate Issue Resolution Program” consisting of a
nationwide policy for resolving employment-related disputes. When
the Associate Issue Resolution Program was implemented, each
associate, including Garrett, received a copy of a receipt form, an
Associate Issue Resolution Handbook, a Dispute Resolution Rules and
Procedures (“Arbitration Rules”), and an Arbitration Opt-Out Form.
Garrett acknowledged, in writing, his receipt of the policy
information, and did not opt-out of the arbitration provision
within the thirty-day time period allowed under the policy.
Garrett alleges that between December 2002 and March
2003, as the American military was preparing for combat in Iraq, he
began to receive unjustified criticism and discipline from his
supervisors. In March 2003, Garrett was fired, an action he
attributes solely to his status as a Marine Reserve Officer.
Garrett sued under USERRA, and the district court agreed
with his contention that § 4302(b) of USERRA overrides the
enforcement of the arbitration agreement. Circuit City has
appealed from the court’s judgment denying its motion to compel
arbitration.
II. DISCUSSION
This Court reviews de novo a district court’s ruling on
a motion to compel arbitration. Am. Heritage Life Ins. Co. v.
Lang, 321 F.3d 533, 536 (5th Cir. 2003).
The arbitration agreement between Garrett and Circuit
City provided that claims arising out of cessation of employment
2
would be settled by final and binding arbitration, enforceable by
and subject to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1
et seq. To determine whether the agreement between the parties is
enforceable, we first review the Supreme Court’s arbitration
decisions, and then construe USERRA.
The FAA was enacted “to reverse the longstanding judicial
hostility to arbitration agreements . . . and to place arbitration
agreements upon the same footing as other contracts.” Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S. Ct. 1647,
1651 (1991). The FAA states that written arbitration agreements
are “valid, irrevocable, and enforceable, save upon such grounds as
exist at law or in equity for the revocation of any contract.”
9 U.S.C. § 2. The Court has reinforced the strong federal policy
favoring arbitration. Mitsubishi, 473 U.S. at 626-27, 105 S. Ct.
at 3353-54. Accordingly, once a party makes an agreement to
arbitrate, that party is held to arbitration “unless Congress
itself has evinced an intention to preclude a waiver of judicial
remedies for the statutory rights at issue.” Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626-27, 105
S. Ct. 3346, 3353-54 (1985). Garrett bears the burden to prove
that Congress intended to preclude a waiver of a judicial forum for
USERRA claims. See Gilmer, 500 U.S. at 26, 111 S. Ct. at 1652.
In Gilmer, the Supreme Court considered the favored
status of arbitration in the employment context when an individual
subject to an arbitration agreement alleged a violation of federal
3
discrimination statutes. Gilmer, 500 U.S. at 23, 111 S. Ct. at
1650. The Court held that statutory discrimination claims under
the Age Discrimination in Employment Act were subject to mandatory
arbitration under the FAA. Id. at 35, 111 S. Ct. at 1657. In so
holding, the Court clarified several issues concerning the FAA’s
application: (1) “It is by now clear that statutory claims may be
the subject of an arbitration agreement, enforceable pursuant to
FAA,” id. at 26, 111 S. Ct. at 1652; (2) although arbitration
involves submission to an alternate, nonjudicial forum, it does not
require a party to forego substantive rights afforded by the
particular statute, id.; (3) arbitration is not inconsistent with
the important social policies being addressed by federal statutes,
id. at 28, 111 S. Ct. at 1653; and (4) limited discovery provisions
are nevertheless sufficient to allow a fair opportunity to present
discrimination claims, id. at 31, 111 S. Ct. at 1654-55.
The Court also distinguished between an employer/employee
agreement enforceable pursuant to the FAA and union collective
bargaining agreements. Id. at 33-34, 111 S. Ct. at 1656. Although
both agreements may include arbitration provisions, they may
require different treatment under federal law. Id. at 34-35, 111
S. Ct. at 1656-57. When all employees in a unit are represented by
a union, the collective interest of the bargaining unit may impinge
upon individual substantive rights. Id. To that end, pre-Gilmer
decisions reflected a concern for “the tension between collective
representation and individual statutory rights.” Id. at 35, 111
4
S. Ct. at 1657. The Court stated, however, that such tension is
not present in the enforcement of individual agreements between an
employee and the employer. See id.
Finally, Gilmer elaborated on the difference between
substantive rights conferred by Congress, such as the prohibition
of age discrimination, which must be preserved, even in the
arbitral forum, and procedural rights, which include choice of
forum and may be waived without running afoul of the substantive
intent of Congress. Id. at 26, 111 S. Ct. at 1652.1
Because the parties agreed to arbitrate the dispute at
issue,2 the agreement is enforceable unless Garrett can demonstrate
1
Following Gilmer, courts have regularly held that claims by employees
arising under federal and state employment statutes are subject to the FAA and
mandatory arbitration. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105,
123, 121 S. Ct. 1302, 1313 (2001)(stating that “[t]he Court has been quite
specific in holding that arbitration agreements can be enforced under the FAA
without contravening the policies of Congressional enactments giving employees
specific protection against discrimination prohibited by federal law”); Miller
v. Pub. Storage Mgmt., Inc., 121 F.3d 215 (5th Cir. 1997)(holding that Americans
With Disabilities Act claims are subject to FAA); Williams v. Cigna Fin.
Advisors, Inc., 56 F.3d 656 (5th Cir. 1995)(holding that Older Workers Benefit
Protection Act does not preclude arbitration of ADEA disputes); Saari v. Smith
Barney, Harris Upham & Co., Inc., 968 F.2d 877 (9th Cir. 1992)(holding that
Employee Polygraph Protection Act claims can be subject to mandatory
arbitration); Alford v. Dean Witter Reynolds, Inc., 939 F.2d 220 (5th Cir. 1991)
(holding that individual Title VII claims can be subjected to compulsory
arbitration pursuant to FAA); Bird v. Shearson Lehman/Am. Express, Inc., 926 F.2d
116, 117-22 (2d Cir. 1991)(compelling arbitration of ERISA claim and noting that
“ERISA’s text and legislative history do not support a conclusion that Congress
intended to preclude arbitration of [ERISA] claims”); Martin v. SCI Mgmt., L.P.,
296 F. Supp. 2d 462, 467 (S.D.N.Y. 2003)(compelling arbitration of FMLA claims
and noting no indication of Congressional intent that FMLA claims are not
arbitrable pursuant to FAA); Carter v. Countrywide Credit Indus., Inc., 189
F. Supp. 2d 606 (N.D. Tex. 2002)(compelling arbitration of Fair Labor Standards
Act claims), aff’d 362 F.3d 294 (5th Cir. 2004).
2
The district court held that Garrett and Circuit City agreed to
arbitrate their disputes. Garrett v. Circuit City Stores, Inc., 338 F. Supp. 2d
717, 720 (N.D. Tex. 2004). We agree. The parties concur that Garrett had notice
of Circuit City’s adoption of the arbitration policy and an opportunity to
opt-out, but he did not do so. Garrett worked for Circuit City for several years
5
that Congress intended to preclude arbitration. See Mitsubishi,
473 U.S. at 626-27, 105 S. Ct. at 1353-54. Congressional intent
“will be discoverable in the text of [USERRA], its legislative
history, or an ‘inherent conflict’ between arbitration and
[USERRA]’s underlying purposes.” Gilmer, 500 U.S. at 26, 111
S. Ct. at 1652.
1. Text of USERRA
USERRA’s antidiscrimination provision prohibits an
employer from denying initial employment, reemployment, or any
other benefit of employment to a person on the basis of membership
in a uniformed service, application for membership, performance of
service, application for service, or obligation of service.
38 U.S.C. § 4311(a). Garrett contends, and the district court
agreed, that § 4302(b) of USERRA precludes binding arbitration in
stating:
This chapter supersedes any State law (including any
local law or ordinance), contract, agreement, policy,
plan, practice or other matter that reduces, limits, or
eliminates in any manner any right or benefit provided by
this chapter, including the establishment of additional
prerequisites to the exercise of any such right or the
receipt of any such benefit.
According to Garrett, a “right or benefit provided by” USERRA is a
plaintiff’s right to bring suit in federal court. Indeed, USERRA
after the policy was implemented. Under Texas law, it is presumed that Garrett
understood and accepted the terms. See Hathaway v. General Mills, Inc.,
711 S.W.2d 227, 229 (Tex. 1986)(noting that employees who continue to work after
an employer has notified them of changes in the employment contract are deemed
to have accepted the changes). Consequently, there was a valid agreement between
Garrett and Circuit City to arbitrate disputes.
6
provides two methods for a protected person to enforce substantive
rights against a private employer. A person may file a complaint
with the Secretary of Labor (who will investigate and attempt to
resolve the complaint) and request that the Secretary refer the
matter to the Attorney General for further prosecution. 38 U.S.C.
§ 4323(a)(1). Alternatively, a person may pursue a civil action in
federal court, forgoing all agency participation. 38 U.S.C.
§ 4323(a)(2).3 In this case, Garrett chose the second method.
3
38 U.S.C. § 4323 states:
(a) Action for relief.--
(1) A person who receives from the Secretary a
notification pursuant to section 4322(e) of this title
of an unsuccessful effort to resolve a complaint
relating to a State (as an employer) or a private
employer may request that the Secretary refer the
complaint to the Attorney General. If the Attorney
General is reasonably satisfied that the person on whose
behalf the complaint is referred is entitled to the
rights or benefits sought, the Attorney General may
appear on behalf of, and act as attorney for, the person
on whose behalf the complaint is submitted and commence
an action for relief under this chapter for such person.
In the case of such an action against a State (as an
employer), the action shall be brought in the name of
the United States as the plaintiff in the action.
(2) A person may commence an action for relief with respect to
a complaint against a State (as an employer) or a private
employer if the person--
(A) has chosen not to apply to the Secretary for
assistance under section 4322(a) of this title;
(B) has chosen not to request that the Secretary
refer the complaint to the Attorney General under
paragraph (1); or
(C) has been refused representation by the
Attorney General with respect to the complaint
under such paragraph.
(b) Jurisdiction.--
(1) In the case of an action against a State (as an
employer) or a private employer commenced by the United
States, the district courts of the United States shall
have jurisdiction over the action.
(2) In the case of an action against a State (as an
employer) by a person, the action may be brought in a
State court of competent jurisdiction in accordance with
7
It is not evident from the statutory language that
Congress intended to preclude arbitration by simply granting the
possibility of a federal judicial forum. As noted above, the
Supreme Court has held that “by agreeing to arbitrate a statutory
claim, a party does not forgo the substantive rights afforded by
the statute; it only submits to their resolution in an arbitral,
rather than a judicial forum.” Mitsubishi, 473 U.S. at 626-27, 105
S. Ct. at 1353-54. In cases involving the Sherman Act,4 the
Securities Exchange Act of 1934,5 the civil protections of the
Racketeer Influenced and Corrupt Organizations Act (RICO),6 and the
Securities Act of 1933,7 the Court has held substantive statutory
rights enforceable through arbitration. With this in mind, it is
significant that Section 4302(b) does not mention mandatory
arbitration or the FAA, notwithstanding that the Gilmer decision,
issued only three years before enactment of § 4302(b), extended
mandatory arbitration to employment agreements. When Congress
enacts laws, it is presumed to be aware of all pertinent judgments
the laws of the State.
(3) In the case of an action against a private employer
by a person, the district courts of the United States
shall have jurisdiction of the action.
4
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.
614, 105 S. Ct. 3346 (1985).
5
Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 107 S. Ct. 2332
(1987).
6
Id.
7
Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477,
109 S. Ct. 1917 (1989).
8
and opinions of the judicial branch. United States v. Barlow, 41
F.3d 935, 943 (5th Cir. 1994). Congress was on notice of Gilmer in
1994 but did not speak to the issue in the text of § 4302(b). The
text of § 4302(b) is not a clear expression of Congressional intent
concerning the arbitration of servicemembers’ employment disputes.8
When properly interpreted, § 4302(b) can be harmonized
with the FAA and mandatory arbitration. Its operation and meaning
turn, in part, on the terms “right or benefit provided by this
chapter.” The purpose of § 4302(b) is the protection of “any right
or benefit provided by [Chapter 43 of USERRA].” 38 U.S.C.
§ 4302(b). Chapter 43 codifies the rights of soldiers and
reservists to reemployment, to leaves of absence, to protection
against discrimination and to health and pension plan benefits,
among others. See generally 38 U.S.C. §§ 4301-4304, 4311-4319.
These are substantive rights. Additionally, § 4303(2) defines
rights for the purposes of the chapter:
The term “benefit”, “benefit of employment”, or “rights
and benefits” means any advantage, profit, privilege,
gain, status, account, or interest (other than wages or
salary for work performed) that accrues by reason of an
employment contract or agreement or an employer policy,
plan, or practice and includes rights and benefits under
a pension plan, a health plan, an employee stock
ownership plan, insurance coverage and awards, bonuses,
severance pay, supplemental unemployment benefits,
vacations, and the opportunity to select work hours or
location of employment.
8
Notably, the Department of Labor does not consider USERRA to contain
any expression of Congressional intent to preclude arbitration. In the
regulations concerning USERRA, 20 C.F.R. § 1002.7, there is no mention of
mandatory arbitration.
9
38 U.S.C. § 4303(2). Again, the defined substantive rights relate
to compensation and working conditions, not to affording a
particular forum for dispute resolution. An exclusive judicial
forum is not a right protected by Chapter 43 of USERRA, nor is it
within the scope of § 4302(b).
An agreement to arbitrate under the FAA is effectively a
forum selection clause, see EEOC v. Waffle House, Inc., 534 U.S.
279, 295, 122 S. Ct. 754, 765 (2002), not a waiver of substantive
statutory protections and benefits.9 Thus, § 4302(b) does not
conflict with the FAA’s policy to encourage the procedural remedy
of arbitration. As recognized by the United States Supreme Court:
[B]y agreeing to arbitrate a statutory claim, a party
does not forgo the substantive rights afforded by the
statute; it only submits to their resolution in an
arbitral, rather than a judicial, forum. . . . We must
assume that if Congress intended the substantive
protection afforded by a given statute to include
protection against waiver of the right to a judicial
forum, that intention would be deducible from text or
legislative history.
Mitsubishi, 473 U.S. at 628, 105 S. Ct. at 3354. Congress took no
specific steps in USERRA, beyond creating and protecting
substantive rights, that could preclude arbitration.
The district court overlooked this important distinction
between procedural and substantive rights. Compare Williams v.
Cigna Fin. Advisors, Inc., 56 F.3d 656, 660 (5th Cir. 1995)
9
For purposes of this dispute, the parties’ arbitration rules require
the Arbitrator to enforce the substantive rights provided by USERRA as the
applicable law and to grant relief for any violations.
10
(holding, with regard to the Older Workers Benefit Protection Act,
that there is “no indication that Congress intended the OWBPA to
affect agreements to arbitrate employment disputes” and that “the
OWBPA protects against the waiver of a right or claim, not against
the waiver of a judicial forum.”)
Garrett also contends that having to arbitrate his claims
results in a reduction in the total package of rights and benefits
afforded by USERRA. The right or benefit that arbitration
allegedly infringes upon is found in USERRA § 4323(b)(3), which the
district court interpreted as a “guarantee of a federal forum for
aggrieved employees.” Garrett, 338 F. Supp. 2d at 720. Section
4323(b)(3) provides that “the district courts of the United States
shall have jurisdiction of the action” against a private employer.
This language, however, neither guarantees a right to a federal
court trial nor forbids arbitration as an alternate forum. On the
contrary, USERRA provides several means for the resolution of
disputes, and there is no guarantee of a federal forum for
aggrieved employees.
In Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820,
110 S. Ct. 1566 (1990), the Court construed similar language in
Title VII to confer concurrent jurisdiction on federal and state
courts rather than exclusive federal jurisdiction. Id. at 823-26,
110 S. Ct. at 1568-70. Concurrent jurisdiction suggests a broad
right of the parties to select a forum, including the arbitral
forum. Gilmer, 500 U.S. at 29, 111 S. Ct. at 1654. Because
11
§ 4323(b)(3) of USERRA, like the language in Donnelly, confers
concurrent jurisdiction, arbitration is a permissible forum choice.
See Bird, 926 F.2d at 119-20 (broad and in some instances exclusive
access to federal forum for ERISA claims is not evidence of
congressional intent to preclude arbitration).
Next, while § 4323 outlines USERRA enforcement provisions
for private or state employees, § 4324 affords different procedures
for federal government employees, which include adjudicating claims
in an administrative tribunal, the Merit Systems Protection Board
(“MSPB”). This is significant, because in Gilmer, the Court
phrased the relevant inquiry as whether Congress had precluded
“arbitration or other nonjudicial resolution” of claims. Gilmer,
500 U.S. at 28, 111 S. Ct. at 1563. The MSPB option evidences an
intent to allow alternative means of dispute resolution for
employees protected by USERRA. Thus, a federal judicial forum is
not guaranteed to all employees under USERRA; rather, a federal
judicial forum is available to some employees and can be claimed or
waived, just as in other antidiscrimination statutes.
2. Legislative history of USERRA
Garrett emphasizes, as did the district court, that a
portion of the 1994 legislative history of § 4302 confirms
Congressional intent to forbid resort to binding arbitration. The
House Committee Report states:
Section 4302(b) would reaffirm a general preemption as to
State and local laws and ordinances, as well as to
12
employer practices and agreements, which provide fewer
rights or otherwise limit rights provided under amended
chapter 43 or put additional conditions on those rights.
See Peel v. Florida Department of Transportation, 600
F.2d 1070 (5th Cir. 1979); Cronin v. Police Dept. of City
of New York, 675 F. Supp. 847 (S.D.N.Y. 1987) and
Fishgold, supra, 328 U.S. at 285, which provide that no
employer practice or agreement can reduce, limit or
eliminate any right under chapter 43. Moreover, this
section would reaffirm that additional resort to
mechanisms such as grievance procedures or arbitration or
similar administrative appeals is not required. See
McKinney v. Missouri-K-T R. Co., 357 U.S. 265, 270
(1958); Beckley v. Lipe-Rollway Corp., 448 F. Supp. 563,
567 (N.D.N.Y. 1978). It is the Committee’s intent that,
even if a person protected under the Act resorts to
arbitration, any arbitration decision shall not be
binding as a matter of law. See Kidder v. Eastern Air-
lines, Inc., 469 F. Supp. 1060, 1064-65 (S.D. Fla. 1978).
H.R. REP. NO. 103-65, 1994, as reprinted in 1994 U.S.C.C.A.N.
2453.4.
We disagree that this snippet of legislative history
should affect our interpretation of Section 4302(b). First, a
powerful line of Supreme Court authority suggests that legislative
history should rarely be used in statutory interpretation, because
only the text of the law has been passed by Congress, not the
often-contrived history. See, e.g., Exxon Mobil Corp. v. Alla-
pattah Servs. Inc., 125 S. Ct. 2611, 2626 (2005). Even if legis-
lative history may be consulted to resolve statutory ambiguity,
id., we have found no ambiguity in this provision. Second, laying
aside these controlling preliminary objections, the House Committee
Report appears to be the only pertinent legislative history
concerning § 4302(b); no comparable Senate Report has been
identified. Such a scant record, unless explicit and on point,
13
hardly proves Congress’s intention toward all cases involving
arbitration. Moreover, what was left out of the legislative
history is noteworthy. There is no recognition in the report of
Gilmer’s then-recent endorsement of individual agreements to
arbitrate. In any event, the totality of the quoted language,
along with its imbedded citations, strongly suggests that Congress
intended § 4302(b) only to prohibit the limiting of USERRA’s
substantive rights by union contracts and collective bargaining
agreements, and that Congress did not refer to arbitration
agreements between an employer and individual employee.10
Finally, this court has rejected reliance on cases
involving collective bargaining arbitration as a basis for avoiding
arbitration of statutory claims under the FAA. Carter v.
10
In the cases cited by the Committee, courts prevented intrusions into
the substantive rights of veterans by the operation of laws, contracts, or plans
to which the employee was not or could not be a party. See McKinney v.
Mo.-Kan.-Tex. R.R. Co., 357 U.S. 265, 78 S. Ct. 1222 (1958)(holding that
collective bargaining agreements requiring use of a contractual grievance process
are preempted by the statute when an employee asserts the rights to restoration
and advancement created by the statute); Fishgold v. Sullivan Drydock & Repair
Corp., 328 U.S. 275, 66 S. Ct. 1105 (1946)(finding that the 1940 statute is the
basis for determining the seniority rights of a reemployed veteran, not the
collective bargaining agreement or an arbitrator’s interpretation of the
agreement pursuant to a prior grievance proceeding); Peel v. Fla. Dep’t of
Transp., 600 F.2d 1070 (5th Cir. 1979)(holding that the Tenth and Eleventh
Amendments do not bar enforcement of USERRA’s predecessor statute against a state
agency employer that denied reemployment on the basis of a state law limiting
leaves of absence); Cronin v. Police Dep’t of the City of N.Y., 675 F. Supp. 847
(S.D.N.Y. 1987)(holding predecessor statute preempts a state law, the effect of
which was to limit pension credits and appointment date of reemployed police
officer); Beckley v. Lipe-Rollway Corp., 448 F. Supp. 563 (N.D.N.Y. 1978)(holding
1978 version of statute required that reemployed veteran receive pension credits
despite contrary polices and practices derived from terms of collective
bargaining agreement and pension plan); Kidder v. E. Air Lines, Inc., 469
F. Supp. 1060 (S.D. Fla. 1978)(holding that an employee on military leave of
absence was not required to exhaust the grievance process in the union contract
and was entitled to holiday pay benefits despite contrary provision in collective
bargaining agreement).
14
Countrywide Credit Indus., Inc., 362 F.3d 294, 298 (5th Cir. 2004).
This is because, as noted supra, the Supreme Court explicitly
distinguished between cases involving collective bargaining
arbitration agreements and individually executed predispute
arbitration agreements. Gilmer, 500 U.S. at 33-34, 111 S. Ct. at
1656. The Supreme Court “ultimately conclud[ed] that the former
may not be subject to arbitration while the latter are.” Carter,
362 F.3d at 298. While earlier arbitration cases arose during a
time of judicial skepticism regarding arbitration, Gilmer, 500 U.S.
at 34, 111 S. Ct. at 1656, the “mistrust of the arbitral process”
expressed in such cases had been “undermined by [the Supreme
Court’s] recent arbitration decisions.” Id. at 34 n.5, 111 S. Ct.
at 1656 n.5; see also Mitsubishi, 473 U.S. at 626-27, 105 S. Ct. at
3354.
Accordingly, we do not conclude from this one piece of
legislative history concerning § 4302(b) that Congress intended to
exclude all arbitration under USERRA.
3. Inherent conflict
Garrett asserts that there is an inherent conflict
between arbitration and USERRA’s underlying structure and purposes.
Garrett contends that the administrative and enforcement
authority granted by USERRA to the Department of Labor and to the
Attorney General conflict with arbitration. In Gilmer, however,
the plaintiff unsuccessfully urged that the EEOC’s authority and
15
role in the enforcement of the ADEA precluded arbitration of
disputes. See Gilmer, 500 U.S. at 28-29, 111 S. Ct. at 1653
(“[T]he mere involvement of an administrative agency in the
enforcement of a statute is not sufficient to preclude
arbitration.”). The same reasoning applies to USERRA, which, like
the ADEA and Title VII, affords both civil actions by the agency
and private actions by an employee. As in Gilmer, Congress did not
intend the Secretary of Labor or the Attorney General to be
involved in every dispute brought under USERRA. See 38 U.S.C.
§§ 4322-24. Even if Garrett had chosen to involve the Attorney
General in the dispute under § 4323, nothing in that section
suggests that the Attorney General would not have been able to
represent Garrett in arbitration. This reading of the statute is
consistent with Waffle House, in which the Court held that the
presence of an enforceable agreement to arbitrate under the FAA did
not limit the authority of or remedies available to the EEOC if it
elected to pursue a lawsuit on behalf of disability discrimination
victims. 534 U.S. at 297-98, 122 S. Ct. at 766.
Further, the Arbitration Rules in this case provide a
fair opportunity for Garrett to present and prevail upon a claim of
a violation of USERRA. According to the Arbitration Rules, a
neutral arbitrator is appointed and is bound to apply the
applicable federal law. There are procedures for discovery,
16
subpoenas, and presentation of evidence,11 to be followed by a
written award from the Arbitrator. If Garrett prevails, the
Arbitrator is authorized to award all appropriate relief in
accordance with applicable law.
Garrett has not shown, as is his burden, that arbitration
under Circuit City’s rules would fail to allow a fair opportunity
to present his claims. See Carter, 362 F.3d at 298. Thus,
arbitration is not inconsistent with effective vindication of his
USERRA right to be free from unlawful discrimination.
Garrett finally argues that the important public policy
interest behind USERRA, embodying the protection of soldiers and
thus the enhancement of American security, necessitates denying the
request for arbitration. Although we agree that the interests
USERRA protects are important, it is wrong to infer that the
servicemembers’ substantive rights are not fairly and adequately
protected by arbitration proceedings under the FAA. USERRA’s
purposes can be fully realized through arbitration. See Gilmer,
500 U.S. at 28, 111 S. Ct. at 1653 (stating that “[t]he Sherman
Act, the Securities Exchange Act of 1934, RICO, and the Securities
Act of 1933 all are designed to advance important public policies,
but . . . claims under those statutes are appropriate for
11
Gilmer’s particular complaint about arbitration-imposed discovery
cannot withstand the Court’s analysis in Gilmer, which rejected similar
complaints in favor of the “simplicity, informality and expedition of arbitration
...” Gilmer, 500 U.S. at 31, 111 S. Ct. 1654-55 (internal quotations and
citations omitted). Like the NYSE Rules, the Arbitration Rules governing the
instant case amply provide for discovery and the development of evidence.
17
arbitration”); see also Mitsubishi, 473 U.S. at 637, 105 S. Ct. at
3359 (“[S]o long as the prospective litigant effectively may
vindicate [his or her] statutory cause of action in the arbitral
forum, the statute will continue to serve both its remedial and
deterrent function.”). Enforcement of employment arbitration
agreements does not disserve or impair the protections guaranteed
by USERRA.
III. CONCLUSION
For the reasons stated above, we hold that USERRA claims
are subject to arbitration under the FAA. The court below erred in
refusing to compel arbitration of Garrett’s USERRA dispute with
Circuit City. The judgment is REVERSED and REMANDED for further
proceedings consistent with this opinion.
18