Landis v. Pinnacle Eye Care, LLC

COLE, Circuit Judge,

concurring.

While this is a close case, I ultimately believe that my colleagues have come to the right conclusion — that Section 4302(b) of the Uniformed Services Employment and Reemployment Rights Act (“USER-RA”), 38 U.S.C. § 4302(b), is not a clear expression of congressional intent to preclude the arbitration of servicemembers’ employment disputes. I write separately only to acknowledge the odd result this holding produces and to encourage Congress, when this issue comes up again, to be a bit more clear.

Section 4302(b) states, in part, that “[t]his chapter supersedes any ... 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.” Id. I agree that the first clause of this provision — -“reduces, limits, or eliminates in any manner any right or benefit provided by this chapter” — should be interpreted as relating to the substantive terms and conditions of employment, not the procedures used to resolve such disputes. “By agreeing to arbitrate a statutory claim,” the Supreme Court has told us, “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 Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).

But the latter clause, which precludes “the establishment of additional prerequisites,” gives me some cause for concern. By “additional prerequisites,” Congress clearly meant to stop employers from requiring “additional resort to mechanisms such as grievance procedures or arbitration or similar administrative appeals.” H.R.Rep. No. 103-65, at 20, U.S.Code Cong.& AdmimNews 1994, pp. 2449, 2453 (citations omitted). And if there is any residual doubt as to whether Congress meant to include arbitration as an “additional prerequisite,” the House Committee Report explained that “[i]t 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.” Id.

So what is the end result? Section 4302(b) precludes an employer from requiring an employee to submit to arbitration, mediation, or any grievance procedure as a prerequisite to filing suit in federal court. I presume that, in so doing, Congress intended employees, not employers, to dictate the method or forum in which they pursue their rights under US-ERRA. But now, if an employee’s contract requires him or her to substitute federal court with arbitration, the employee has no choice but to do so. In other words, if Landis’s contract required him to arbitrate any employment dispute under USERRA before bringing suit in federal court, Section 4302(b) expresses an opinion that such an arbitration would be hostile to USERRA’s underlying structure and purpose. Yet if Landis’s contract requires him to waive his right to federal court altogether, we must defer to the strong federal policy favoring arbitration. Mitsubishi, 473 U.S. at 626-27, 105 S.Ct. 3346.

Unfortunately, this incongruous result is what the plain language of Section 4302(b) tells us. Congress may not have intended members of our armed forces to submit to binding, coercive arbitration agreements— indeed, I think quite the opposite — but nothing in the text of the USERRA, or its *565legislative history, evinces a clear intent to preclude a waiver of judicial remedies for the statutory rights at issue. I acknowledge that we have moved beyond the yest-eryears of skepticism, mistrust, and even hostility toward arbitration agreements. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (acknowledging that 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”). But with a growing number of employers turning to pre-dispute and pre-packaged mandatory arbitration agreements to limit the ability of their employees to bring their statutory claims in federal court, and with the Supreme Court enforcing those provisions, see id. at 26, 111 S.Ct. 1647, if Congress intends to preclude arbitration as a substitute for a judicial forum in the future, I encourage it to do so with language that is unmistakably clear.