It’s not enough that our National Guardsmen and Guards women are dodging bullets in Iraq and Afghanistan. They’re also facing obstacles in our federal courts under the USERRA.
Landis v. Pinnacle Eye Care, LLC, No. 07-6204 (6th Cir. Aug. 11, 2008): In this case, the Sixth Circuit joins the Fifth Circuit in holding that claims under the Uniformed Services Employment and Reemployment Rights Act (USERRA) are arbitrable, the panel affirming an order of the district court staying the case and compelling arbitration. The hitch was language in USERRA § 4302(b), which states: “This chapter supersedes any State law . . . 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 addition al prerequisites to the exercise of any such right or receipt of any such benefit.” The panel held that “[b]y agreeing to arbitration, a party does not forego the substantive rights provided by the statute, but rather it submits its claims to an arbitral forum instead of a judicial forum.”
But Judge Clay, concurring, points up a practical difficulty with the majority’s construction: “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 legislative history, evinces a clear intent to preclude a waiver of judicial remedies for the statutory rights at issue. . . . [I]f 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.”
McIntosh v. Partridge, No. 07-20440 (5th Cir. Aug. 8, 2008, revised Aug. 11, 2008): Meanwhile, the Fifth Circuit follows the Seventh Circuit in holding that federal courts lack subject-matter jurisdiction over a claim that a state employer violated USERRA, because Congress did not expressly abrogate state sovereign immunity for such defendants. USERRA provides for jurisdiction over state employers only in state court:
“(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 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.” [38 U.S.C. § 4323(b).]
The specific provision of state court jurisdiction, the panel holds, points away from federal jurisdiction:
“This language provides no indication that Congress intended for these cases to be brought in federal court. This omission is significant when compared with Congress’s explicit provision for federal jurisdiction in cases where the federal government brings an USERRA claim or when the defendant is a private employer. 38 U.S.C. § 4323(b)(1), (3). These provisions demonstrate that Congress knew how to provide for federal jurisdiction but specifically chose not to do so for USERRA claims brought by individuals against states as employers.” [Foot not omitted]
Given the jurisdictional hurdle, the panel does not (according to fn. 4) “address whether § 4323(b)(2) unconstitutionally abrogates Texas’s sovereign immunity in this case” in state court. We apparently must await the Texas state court’s view on that federal constitutional question.