Kevin Ziober v. Blb Resources, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEVIN ZIOBER, an No. 14-56374 individual, Plaintiff-Appellant, D.C. No. 8:14-cv-00675-CJC-DFM v.

BLB RESOURCES, INC., a OPINION California Corporation, Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted July 5, 2016 Pasadena, California

Filed October 14, 2016

Before: Mary H. Murguia and Paul J. Watford, Circuit Judges, and Susan R. Bolton,* District Judge.

Opinion by Judge Murguia; Concurrence by Judge Watford

* The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. SUMMARY**

Arbitration / Labor Law

The panel affirmed the district court’s order compelling arbitration and dismissing an action under the Uniformed Services Employment and Reemployment Rights Act.

Joining other circuits, the panel held that USERRA does not prohibit the compelled arbitration of claims arising under its provisions, which establish employment rights for…

Concurrence by Judge WATFORD

OPINION

The plaintiff, Kevin Ziober, signed an agreement with his employer requiring the arbitration of legal disputes. Ziober later sued the employer, claiming that he was fired from his job after providing notice of his deployment to Afghanistan in the Unit *816 ed States Navy Reserve. The lawsuit alleged violations of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which establishes employment rights for returning service-members. This case presents the question of whether USERRA prohibits the compelled arbitration of claims arising under its provisions. We join the other circuits to have considered the question and conclude that USERRA contains no such prohibition. We therefore affirm the district court’s order compelling arbitration and dismissing Ziober’s complaint.

I.

The facts, as alleged in the underlying complaint, are not in dispute for purposes of this appeal. Ziober served in the United States Navy Reserve and worked in his civilian life as an operations director for defendant BLB Resources, Inc., a real estate marketing and management firm. Approximately six months after joining the company, Ziober…

concurring:

I join the court’s opinion, but I have doubts about whether we are reaching the right result.

A strong argument can be made that the Uniformed Services - Employment and Reemployment Rights Act of 1994 (USER-RA) contains a “contrary congressional command” overriding the Federal Arbitration Act’s pro-arbitration mandate. CompuCredit Corp. v. Greenwood, — U.S. -, 132 S.Ct. 665, 669 , 181 L.Ed.2d 586 (2012). USERRA contains a provision that renders unenforceable any contract or agreement that “reduces, limits, or eliminates in any manner any right ... provided by this chapter.” 38 U.S.C. § 4302 (b). *822 Kevin Ziober’s contract with his employer requires him to submit USERRA claims to final and binding arbitration. That contract certainly “limits”—and for all practical purposes “eliminates”—his right to.litigate those claims in court. So , the threshold question is whether USERRA confers on servicemembers the right to litigate US-ERRA claims in court.

The statute seems to confer such a right. Section 4323 authorizes servicemembers to “commence an action for relief’ against a private employer, and it says, as relevant here, “[i]n the case of an action against a private…