Rodney Bodine v. Cook's Pest Control Inc., et al

Filing

Opinion issued by court as to Appellant Rodney Bodine. Decision: Affirmed. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13233
________________________
D.C. Docket No. 2:15-cv-00413-RDP

RODNEY BODINE,
Plaintiff - Appellant,
versus
COOK’S PEST CONTROL INC.,
a corporation,
MAX FANT,
individually,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(July 29, 2016)

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Before WILSON, MARTIN, and HIGGINBOTHAM, ∗ Circuit Judges.
WILSON, Circuit Judge:
This case requires us to interpret the non-waiver provision of the Uniform
Services Employment and Reemployment Rights Act of 1994 (USERRA) as it
relates to the Federal Arbitration Act (FAA) and enforcement of an arbitration
agreement with terms purportedly in conflict with USERRA. USERRA provides
statutory protection to members of the military against discrimination by
employers because of their military service, 38 U.S.C. § 4301(a), and contains a
non-waiver provision that prevents contractual agreements from reducing, limiting,
or eliminating rights protected under the Act, see id. § 4302(b).
After thorough consideration of the parties’ briefs and having had the benefit
of oral argument, we conclude that the FAA and USERRA’s non-waiver provision
are not in conflict and the district court properly compelled arbitration.
I
Plaintiff-Appellant Rodney Bodine was an employee of Defendant-Appellee
Cook’s Pest Control (Cook’s) from 2012 to 2014, during which time he also served
in the United States Army Reserve. Bodine’s commitment to the armed forces
required him to periodically take leave from work to attend drills and training.
Bodine alleges that his supervisor, Max Fant, repeatedly discriminated against him
∗

Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
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on the basis of his military service by making negative comments about his
military obligations, encouraging him to leave the Army Reserve, taking work
away from him while he was at drills and training, and eventually firing him in
retaliation for continued military service.
After losing his job, Bodine filed suit against Cook’s and Fant (collectively,
the Defendants), bringing claims under USERRA and Alabama state law. The
Defendants responded with a motion to dismiss or, in the alternative, to stay action
and compel arbitration, citing Bodine’s employment contract (the Contract).1
Under the Contract, the parties agreed to resolve any disputes arising out of or in
any way related to the Contract through alternative dispute resolution mechanisms
(the arbitration agreement). Bodine argued before the district court that the
arbitration agreement was unenforceable because the arbitration agreement itself
contained two terms that violated USERRA: (1) the limitation on the employee’s
arbitration costs, with opportunity for the arbitrator to re-apportion costs and
attorney’s fees in the arbitrator’s final order (the fee term); and (2) the six-month
statute of limitations (statute of limitations term). USERRA states there is no
statute of limitations for bringing a USERRA claim and no imposition of court
costs or fees may be charged to a USERRA plaintiff. See 38 U.S.C. §§ 4323(h)(1),
4327(b).

1

For ease of reference, the pertinent portions of the Contract are reproduced in the Appendix.
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The Defendants conceded that these two terms ran afoul of USERRA, but
argued that the Contract’s severability clause could be used to remove the invalid
terms from the arbitration agreement while retaining and enforcing the remainder,
pursuant to the FAA. 2 Bodine responded that USERRA’s non-waiver provision,
38 U.S.C. § 4302(b), precluded enforcement of the arbitration agreement, despite
the FAA, because the plain language of § 4302(b) prevents enforcement of any
agreement that contains terms that reduce substantive USERRA rights, and the fee
term and statute of limitations term reduced Bodine’s substantive USERRA rights.
The district court agreed with the Defendants. Applying the FAA’s “liberal
federal policy favoring arbitration agreements,” Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 941 (1983), the court
looked to state law to determine whether the severability clause was enforceable.
See Bodine v. Cook’s Pest Control, Inc., No. 15-00413, slip op. at 4–5 (N.D. Ala.
June 18, 2015). Then, after concluding Alabama law favors severability and the
parties clearly anticipated severance of any invalid terms, the court entered an
order striking from the arbitration agreement the two terms that violated USERRA,
dismissing the suit without prejudice, and ordering Bodine to submit his claims to

2

Article VIII.B of the Contract provides as follows: “If any term or provision of this
Agreement shall be invalid or unenforceable to any extent or application, then the remainder of
this Agreement shall be valid and enforceable to the fullest extent and the broadest application
permitted by law. . . .”
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arbitration. Id. at 5–7. The district court’s opinion did not address the role or
scope of USERRA’s non-waiver provision, or its relationship to the FAA.
Bodine filed this timely interlocutory appeal.
II
We have jurisdiction pursuant to 9 U.S.C. § 16. Hill v. Rent-A-Center, Inc.,
398 F.3d 1286, 1288 (11th Cir. 2005). We review de novo the district court’s grant
of a motion to dismiss and compel arbitration. Dale v. Comcast Corp., 498 F.3d
1216, 1219 (11th Cir. 2007).
III
Bodine renews the same argument on appeal. He contends that the district
court erred by failing to apply the plain language of USERRA’s non-waiver
provision. Had the court properly applied that provision, 38 U.S.C. § 4302(b),
Bodine argues, the arbitration agreement would be unenforceable, as a whole,
because the plain language of that subsection states that USERRA “supersedes”
any “agreement” that “limit[s], reduce[s], or eliminate[s]” any rights protected
under USERRA, and the arbitration agreement contains USERRA-offensive terms.
See 38 U.S.C. § 4302(b).
We proceed in two parts. First, we explain why the Contract’s arguable
delegation clause—which would require that the arbitrator, rather than the court,
determine whether the arbitration agreement is enforceable—does not control this
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appeal. Second, in reaching whether the arbitration agreement is enforceable, we
conclude that § 4302(b) is not in conflict with the FAA and the district court
properly determined the arbitration agreement is enforceable.
A
The parties to a contract may agree to have an arbitrator, rather than a court,
determine whether the contract’s arbitration agreement is enforceable. These
clauses are generally referred to as “delegation clause[s].” See Rent-A-Center,
West, Inc. v. Jackson, 561 U.S. 63, 68–70, 130 S. Ct. 2772, 2777–78 (2010).
However, the mere presence of a delegation clause in a contract is not dispositive
of the court’s disposition of the case. A delegation clause operates as a defense
that the defendant must raise in order to rely upon it. See Johnson v. Keybank
Nat’l Ass’n, 754 F.3d 1290, 1291–92 (11th Cir. 2014). When a delegation clause
is properly raised by the defendant and never specifically challenged by the
plaintiff, the FAA directs the court to treat the clause as valid and compel
arbitration. See Parnell v. CashCall, Inc., 804 F.3d 1142, 1144 (11th Cir. 2015).3
When the defendant does not properly raise the delegation clause and the plaintiff
suffers prejudice as a result, the defendant has waived the delegation clause and the
3

In Parnell, we stated that, “[b]ecause the [arbitration agreement] contains a delegation
provision, we only retain jurisdiction to review a challenge to that particular provision.” 804
F.3d at 1148. We did not use the term “jurisdiction” in its technical sense, but rather to convey
that whether the arbitration agreement was enforceable was a decision committed not to the
court, but to the arbitrator. See id; see also Arbaugh v. Y & H Corp., 546 U.S. 500, 510, 126 S.
Ct. 1235, 1242 (2006) (observing that the “[Supreme] Court, no less than other courts, has
sometimes been profligate in its use of the term [‘jurisdiction’].”).
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court must determine whether the arbitration agreement is enforceable. See
Johnson, 754 F.2d at 1294.
Here, the parties disagree whether the Contract contains a delegation clause,
but even to the extent one exists, the Defendants did not properly raise it. The
Defendants’ original and amended Motions to Dismiss only vaguely referenced the
issue of arbitrability and their Reply to Bodine’s Response in Opposition argued
the merits of the arbitration agreement’s enforceability, without mentioning that
the issue should be committed to the arbitrator. Further, the district court ruled in
the Defendants’ favor based on its construction of the arbitration agreement, and
the Defendants’ appellate brief defends that ruling without arguing that the
arbitrator should have reached that conclusion. As such, the Defendants have not
“argued consistently that the threshold issue was assigned by agreement to the
arbitrator,” and their failure to do so prejudiced Bodine by causing him to suffer
the cost of litigating an issue that arbitration was designed to alleviate. See
Johnson, 754 F.3d at 1294–95 (internal quotation marks omitted and alteration
adopted). Thus, the Defendants waived enforcement of the delegation clause.
Compare Rent-A-Center, 561 U.S. at 66, 130 S. Ct. at 2775 (defendant properly
raised delegation clause by consistently arguing that the issue of arbitrability was
assigned to the arbitrator) and Parnell, 804 F.3d 1142 (same), with Barras v.
Branch Banking & Trust Co., 685 F.3d 1269 (11th Cir. 2012) (delegation clause
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waived because defendant raised the delegation clause for the first time a full year
after litigation commenced).
Accordingly, whether the arbitration agreement is enforceable was properly
before the district court and is now properly before us on appeal.
B
As a general matter, the FAA makes enforceable arbitration agreements
contained in employment contracts of non-transportation workers. See 9 U.S.C. §§
1, 2; Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119, 121 S. Ct. 1302, 1311
(2001). Here, the Contract is an employment contract between Bodine and Cook’s
for a job “calling upon customers of [Cook’s] for the purpose of providing,
soliciting for and/or selling the services and products of [Cook’s] as they relate to
the pest control business.” It is therefore a non-transportation employment
contract covered by the FAA.
Under the FAA, we are obligated to “rigorously enforce arbitration
agreements according to their terms, including . . . . for claims that allege a
violation of a federal statute, unless the FAA’s mandate has been overridden by a
contrary congressional command.” Am. Express Co. v. Italian Colors Rest., 570
U.S. ___, ___, 133 S. Ct. 2304, 2309 (2013) (internal quotation marks omitted).
Section 3 of the FAA authorizes federal district courts to stay proceedings and

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compel arbitration of “any issue referable to arbitration under an agreement in
writing for such arbitration.” 9 U.S.C. § 3.
When an arbitration agreement contains invalid terms but the overarching
contract has a severability clause, the FAA requires that we turn to state law to
determine whether the contract’s severability clause may be used to remove the
offending terms in the arbitration agreement. See Jackson v. Cintas Corp., 425
F.3d 1313, 1317 (11th Cir. 2005) (per curiam). We rely on state law because, “in
placing arbitration agreements on an even footing with all other contracts, the FAA
makes general state contract law controlling.” Anders v. Hometown Mortg. Servs.,
346 F.3d 1024, 1032 (11th Cir. 2003). If the severability clause is enforceable
under the relevant state law, then “any invalid provisions [in the arbitration
agreement] are severable, [and] the underlying claims are to be arbitrated.” Id.
Here, Bodine does not argue that USERRA reflects a “contrary
congressional command” to prevent waiver of a judicial forum for USERRA
claims. See Italian Colors Rest., 570 U.S. at ___, 133 S. Ct. at 2309. In fact, the
parties expressly agree that USERRA claims are arbitrable. See Bodine, slip op. at
4. Instead, Bodine makes the narrower argument that USERRA’s non-waiver
provision and the FAA are incompatible as applied to an arbitration agreement
with USERRA-offending terms, and USERRA alone should govern this dispute.
Bodine believes the statutes conflict because he reads USERRA’s non-waiver
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provision to mandate automatic invalidation of an entire contract or agreement that
contains USERRA-offending terms, while the FAA allows a contract’s severability
clause to be used to sever those offending terms, if state law gives effect to
severability clauses. Thus, to determine whether the district court erred, we must
first evaluate whether USERRA’s non-waiver provision conflicts with the FAA.
We are hesitant to conclude that two federal statutes are in conflict with one
another. “When two statutes are capable of co-existence . . . it is the duty of the
courts, absent a clearly expressed congressional intention to the contrary, to regard
each as effective.” Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S.
528, 533, 115 S. Ct. 2322, 2326 (1995). To determine whether such a conflict
exists, the courts must “examine[] with care” the text of the statute. See id. at 532,
115 S. Ct. at 2326.
USERRA’s non-waiver provision reads as follows:
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.
38 U.S.C. § 4302(b). Bodine argues that the word “supersedes” means § 4302(b)
automatically invalidates any contractual agreement that “reduces, limits, or
eliminates” substantive rights protected under USERRA. Thus, he contends, §
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4302(b) invalidates the Contract’s entire arbitration agreement, if not the Contract
itself, because the arbitration agreement contains a fee term and statute of
limitations term that violate §§ 4323(h)(1) and 4327(b) of USERRA.
We are unpersuaded that Bodine’s construction and application of § 4302(b)
is the most reasonable reading of that provision. Instead, we conclude that
USERRA can be read in harmony with the FAA.
To begin, the dictionary definition of “supersedes” does not support
Bodine’s reading that Congress intended § 4302(b) to “automatically invalidate” a
contract that contains invalid terms. 4 Black’s Law Dictionary defines “supersede”
as “[t]o annul, make void, or repeal by taking the place of.” Supersede, Black’s
Law Dictionary 1667 (10th ed. 2014). Similarly, Merriam-Webster’s entry reads:
“(1) (a) to cause to be set aside, (b) to force out of use as inferior; (2) to take the
place, room, or position of; (3) to displace in favor of another : supplant.”
Supersede, Merriam Webster’s Collegiate Dictionary 1183 (10th ed. 1996).
Lastly, Webster’s: “(1) to cause to be set aside or dropped from use as inferior or
obsolete and replaced by something else; (2) to take the place or office of; to
succeed; (3) to remove or cause to be removed so as to make way for another; to
supplant.” Supersede, Webster’s New Twentieth Century Dictionary of the
English Language 1830 (1976) (unabridged). All three dictionaries indicate that

4

USERRA does not define “supersedes.”
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the word “supersedes” involves replacing one thing with another, rather than
causing something to be cancelled or invalidated without replacement.
Moreover, USERRA itself provides many substantive terms to govern
employment relationships, generally, but it cannot provide all the terms necessary
to define any particular employment relationship. Construing “supersedes” to
mean USERRA’s terms replace all the terms of an employment contract would
leave critical gaps in the employer-employee relationship. Thus, by writing “[t]his
chapter supersedes,” we believe Congress contemplated that the substantive terms
set forth in USERRA would “take the place of” those in a contract or agreement
that work to “replace[], limit[], or eliminate[]” “any right or benefit” guaranteed
under the statute. This reading ensures that all invalid terms are replaced with
USERRA terms, while all other terms of employment that do not offend USERRA
and provide particularized details as to the way the employer-employee
relationship functions are maintained.
Reading § 4302(b) in context further confirms that this is the correct
construction. Cf., e.g., King v. Burwell, 576 U.S. ___, ___, 135 S. Ct. 2480, 2489
(2015) (explaining that courts must look to statutory provisions “in their context
and with a view to their place in the overall statutory scheme” because courts are
tasked with “constru[ing] statutes, not isolated provisions” (citation and internal
quotation marks omitted)). Subsection (a) contemplates that a contract might
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include additional or more beneficial terms than those set forth in USERRA. See
38 U.S.C. § 4302(a); see also 20 C.F.R. § 1002.7(c). To ensure our servicemen
and women benefit from these terms, § 4302(a) mandates that no provision of
USERRA be read to “supersede, nullify or diminish any . . . contract, agreement, . .
. or other matter that establishes a right or benefit that is more beneficial to, or is in
addition to, a right or benefit provided for such person in this chapter.” 38 U.S.C.
§ 4302(a). If we were to read “supersede” in § 4302(b) as invalidating an entire
agreement due to its USERRA-violative terms, then we would run afoul of §
4302(a) because so doing would “nullify” more beneficial terms in addition to
removing the invalid ones.
Lastly, we find no conflict between the liberal canon of construction
commonly applied to reemployment rights statutes, see, e.g., Ala. Power Co. v.
Davis, 431 U.S. 581, 584–85, 97 S. Ct. 2002, 2004–05 (1977), and our
interpretation of § 4302(b). Bodine contends that this liberal canon requires us to
construe the Act as broadly invalidating any contract or agreement, in whole, that
contains a USERRA-offending term. But for the reasons just stated, so doing
would be not only contrary to the text of USERRA but also to the detriment of the
employee. Consequently, by construing § 4302(b) to replace all terms in conflict
with USERRA while retaining all those terms more beneficial than USERRA, we

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have read the non-waiver provision to provide the greatest benefit to our
servicemen and women.
Accordingly, USERRA’s non-waiver provision should not be read to
automatically invalidate an entire agreement with USERRA-offending terms.
Instead, the plain language of § 4302(b) contemplates modification of an
agreement by replacing USERRA-offending terms with those set forth by
USERRA. Thus, we hold that USERRA’s non-waiver provision does not conflict
with the FAA: both statutes provide a mechanism for striking from an arbitration
agreement a term in conflict with USERRA.
It follows, then, that the district court committed no error by looking to state
law, pursuant to the FAA, to determine whether the invalid terms from the
arbitration agreement could be severed and the remainder enforced. See Anders,
346 F.3d at 1032. We agree with the district court that the Contract’s arbitration
agreement was enforceable. The Contract expressly states that any determination
regarding the “validity, construction, interpretation, and effect” of the Contract is
governed by Alabama law, which we have held “favors severability” and “gives
full force and effect to severability clauses.” 5 See id. Additionally, the Contract
contains an express severability provision, applicable to all portions of the
5

Alabama law favored severability at the time we decided Anders and continues to do so
today. See Sloan Southern Homes, LLC v. McQueen, 955 So. 2d 401, 404 (Ala. 2006)
(reaffirming rule from Ex parte Celtic Life Ins. Co., 834 So. 2d 766 (Ala. 2002), on which we
previously relied, that the Alabama courts “will excise void or illegal provisions in a contract,
even in the absence of a severability clause”).
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Contract, reflecting the parties’ clear intent to remove any invalid or unenforceable
terms and apply the remainder. Thus, “[b]ecause severability clauses are
enforceable under [Alabama] law and the FAA requires that arbitration agreements
be treated no less favorably than other contracts under state law,” Jackson, 425
F.3d at 1317, the district court correctly concluded that the severability clause in
the Contract could be used to “surgically lance the unlawful portions of the
arbitration clause,” Bodine, slip op. at 4.
However, the district court’s order should not have performed that surgery
itself. The arbitrator, not the district court, must determine the validity of the terms
of the arbitration agreement. See Anders, 346 F.3d at 1032–33. At arbitration, the
parties will have an opportunity to present their arguments regarding the validity of
the terms of the arbitration agreement, and the arbitrator will be tasked with
determining their validity. Accordingly, we affirm the district court’s order insofar
as it compels arbitration of Bodine’s claims, but we leave to the arbitrator whether
the arbitration agreement’s terms are valid.
IV
In sum, we affirm the district court’s decision to compel arbitration.
AFFIRMED.

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MARTIN, Circuit Judge, dissenting:
The Uniform Services Employment and Reemployment Rights Act of 1994
(“USERRA”) carries on a long tradition, reflected in our laws, of protecting the
rights of “those who left private life to serve their country in its hour of great
need.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S. Ct.
1105, 1111 (1946). I read the majority’s analysis to impede that tradition, and in
my view, it does so based on two mistakes. First, the majority interprets 38 U.S.C.
§ 4302(b) in a way that is not consistent with the statute’s plain text. Second, the
majority gives the defendants more than they asked for—a second chance to apply
contract terms that admittedly violate USERRA. In both ways, the majority
weakens the rights of veterans based on a statute intended to give them strength. I
respectfully dissent.
I.
The majority interprets § 4302(b) as invalidating only the pieces of an
agreement that violate USERRA, rather than the whole agreement. After briefly
consulting the statutory text, the majority discusses policy goals to arrive at what it
calls “the most reasonable reading” of § 4302(b). But where the text of the statute
is not ambiguous, we have no call to substitute what we think might be a more
reasonable reading of a statute—rather, “we must apply the statute according to its

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terms.” Carcieri v. Salazar, 555 U.S. 379, 387, 129 S. Ct. 1058, 1063–64 (2009).
The majority did not do that here.
A.

The Statutory Text
“[O]ur inquiry begins with the statutory text, and ends there as well if the

text is unambiguous.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124
S. Ct. 1587, 1593 (2004) (plurality). Section 4302(b) reads as follows:
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.
38 U.S.C. § 4302(b) (emphasis added). By its plain language, the statute
supersedes “any . . . contract [or] agreement,” not merely the illegal pieces of a
contract or agreement, as the majority says. Id. (emphasis added). Nowhere does
the statute include the limitation found by the majority. Everything listed in
§ 4302(b) (“law . . . , contract, agreement, policy, plan, practice, or other matter”)
is a whole, not a piece of a larger whole (for example, “contract provision” or
“term of agreement”). 1 We must assume that Congress says in a statute what it
means and means in a statute what it says. BedRoc Ltd., LLC, 541 U.S. at 183,
124 S. Ct. at 1593.

1

Rather than using limiting language, Congress used the all-inclusive word “any” six
times in § 4302(b). This emphasizes the statute’s broad scope.
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We know that Congress can target pieces of a contract in a non-waiver
statute, when that is what it intends. Twenty years before USERRA was enacted,
Congress included a non-waiver provision that targeted pieces of a contract in the
National Mobile Home Construction and Safety Standards Act of 1974, Pub. L.
No. 93-383, 88 Stat. 633 (codified as amended at 42 U.S.C. § 5401 et seq. (2012)).
There, Congress limited the effect of the statute’s non-waiver provision to “any
provision of a contract or agreement” that purported to limit the rights of mobile
home purchasers under the Act. 42 U.S.C. § 5421 (emphasis added). Despite
knowing how to limit the scope of a non-waiver provision, Congress chose not to
in USERRA, and we should understand that choice as deliberate. See Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. __, __, 133 S. Ct. 2517, 2529 (2013).
Congress plainly said the statute supersedes “contract[s]” and “agreement[s]” that
reduce USERRA rights.2
I read the text of § 4302(b) to be unambiguous, so our inquiry should end
there. The majority, on the other hand, appears to view § 4302(b) as ambiguous

2

To the extent the majority interprets § 4302(b) the way it does out of worry about
creating a conflict between USERRA and the FAA, this fear is unfounded. If § 4302(b) means
what it says, the arbitration agreement at issue in this case is void. Without an arbitration
agreement, the FAA is irrelevant. See Breletic v. CACI, Inc.–Fed., 413 F. Supp. 2d 1329, 1337
(N.D. Ga. 2006). And there is no reason to treat arbitration agreements differently from any
other “contract [or] agreement” that would be superseded by § 4302(b) because, as the majority
points out, the FAA places arbitration agreements on an equal footing with all other contracts.
The FAA neither elevates arbitration agreements to a special status nor removes them from the
reach of the law.
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based on different dictionary definitions of the word “supersede.” 3 Specifically,
the majority reasons that because “supersede” is defined as “replacing one thing
with another,” § 4302(b) cannot mean what it says without “leav[ing] critical gaps
in the employer-employee relationship.” Instead, the majority reasons that
Congress must have intended for § 4302(b) to preempt only the pieces of a contract
or agreement that violate USERRA. But the Supreme Court has cautioned that we
should “decline to manufacture ambiguity where none exists.” United States v.
Culbert, 435 U.S. 371, 379, 98 S. Ct. 1112, 1116 (1978). Section 4302(b)’s use of
the word “supersede” does not render the statute ambiguous so as to allow for
speculation about Congress’s desired (but not expressed) intent.
I am not persuaded by the majority’s explanation about why “supersede”
cannot be read to mean the entire illegal contract or agreement is replaced with
USERRA provisions. The majority mentions “critical gaps” this reading would
leave in the employment relationship, but it does not specify what those gaps are or
how they would harm veterans’ USERRA rights.4 Something as fundamental as

3

In fairness, the majority never says that § 4302(b) is ambiguous, but its interpretation
looks past the plain text in favor of accomplishing congressional intent and policy goals. For
that reason, I understand the majority to see § 4302(b) as ambiguous. Cf. Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 254, 112 S. Ct. 1146, 1149 (1992) (“When the words of a statute are
unambiguous, then, this first canon is also the last: judicial inquiry is complete.” (quotation
omitted)). If the majority thought § 4302(b) unambiguously superseded only the illegal pieces of
a contract, the opinion would presumably point to where the statute says that. It does not.
4
Neither does the majority address the possibility of superseding just the arbitration
agreement within the employment contract. Both of the illegal contract terms here are contained
within a separately delineated arbitration agreement. And the Supreme Court has applied
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pay can serve as an example. Even if an illegal employment contract contained
pay terms that were superseded along with the rest of the contract under my
reading of § 4302(b), there are other ways to ascertain what pay the veteran is
entitled to. See, e.g., 20 C.F.R. § 1002.193(a) (noting that sources of pay
information under USERRA “include agreements, policies, and practices in effect
at the beginning of the employee’s service”); id. § 1002.236(a) (noting that
predicted pay raises under USERRA may be ascertained from the “employee’s
own work history . . . and the work and pay history of employees in the same or
similar position”). With this in mind, I am not able to see what “critical gaps”
would impair a veteran’s rights under a plain-language reading of § 4302(b).
My reading of § 4302(b) is supported by a neighboring provision, 38 U.S.C.
§ 4302(a), which saves any “more beneficial” rights provided to a veteran in a
contract from being superseded by USERRA. Section 4302(a) is a savings clause
that stops USERRA from throwing out contract rights more beneficial to veterans
while invalidating the rest of the illegal contract. The majority cites this savings
clause to support its interpretation of § 4302(b), but it actually undermines the
majority’s position. That’s because the majority’s interpretation of § 4302(b)
renders the savings clause superfluous. Specifically, if the majority is right that
USERRA’s predecessor statutes to preempt separate agreements within contracts. See, e.g.,
McKinney v. Mo.-Kan.-Tex. R.R. Co., 357 U.S. 265, 268–70, 78 S. Ct. 1222, 1225–26 (1958)
(allowing a veteran to avoid a grievance agreement contained within his collective bargaining
contract, but not invalidating the collective bargaining contract).
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§ 4302(b) does away with only the illegal pieces of a contract, then there will never
be any “more beneficial” contractual rights for § 4302(a) to step in and save. A
piece of a contract that is illegal under USERRA cannot be “more beneficial” than
USERRA. Thus, the majority’s interpretation of § 4302(b) leaves no role for its
companion clause, § 4302(a). Courts must be “hesitant to adopt an interpretation
of a congressional enactment which renders superfluous another portion of that
same law.” Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 837,
108 S. Ct. 2182, 2189 (1988).
On the other hand, a plain-language reading of § 4302(b) does leave a role
for its companion clause. When an entire contract is superseded under § 4302(b),
the savings clause steps in to preserve any “more beneficial” rights granted to the
veteran by the contract. This calibrates the scope of § 4302(b) to maximize
veterans’ rights under USERRA. Thus, reading § 4302(b) to supersede entire
contracts and agreements not only adheres to the unambiguous text, but it also
ensures that § 4302(a) continues to work together with § 4302(b). The majority’s
interpretation does not.
B.

History and Purpose
Though we need not look beyond the unambiguous text of § 4302(b), a

review of USERRA’s legislative history and purpose reinforces the plain-language
reading. A House report for USERRA stated: “Section 4302(b) would reaffirm a
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general preemption as to State and local laws and ordinances, as well as to
employer practices and agreements, which provide fewer rights or otherwise limit
rights provided under [USERRA].” H.R. Rep. No. 103-65, at 20 (1993) (emphasis
added). Section 4302(b)’s preemptive effect was thus described as “general” and
understood to apply to entire “agreements” with employers, not just certain pieces
of those agreements. And the House stressed that “the extensive body of case law”
related to the veterans’ rights statutes preceding USERRA would “remain in full
force and effect.” Id. at 19. This includes Fishgold’s command that every
provision of a veterans’ rights statute be given “as liberal a construction for the
benefit of the veteran as a harmonious interplay of the separate provisions
permits.” 328 U.S. at 285, 66 S. Ct. at 1111. The majority’s narrow, extra-textual
reading of § 4302(b) is anything but a liberal construction of USERRA.
It seems to me that USERRA’s purpose of vigorously protecting veterans’
rights is better served by superseding more than just the illegal terms (though not
any “more beneficial” terms), because doing so deters employer overreaching.
Under the majority’s interpretation of § 4302(b), employers will have nothing to
lose by including illegal terms in their contracts—even if a legally learned veteran
does recognize the illegal terms as such (hardly a foregone conclusion), the worst
that can happen to the employer is delicate removal of only the illegal terms. 5

5

And as will be discussed in Part II, the majority casts even that result into doubt.
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Here, for example, the defendants will still get to arbitrate Mr. Bodine’s case even
though they drafted an arbitration agreement that infringed on his USERRA rights.
The employer suffers no penalty for its bad drafting. The majority’s interpretation
means that even when employers don’t get the unfair benefit of their illegal terms
because employees like Mr. Bodine recognize the terms’ illegality, USERRA will
do nothing to dissuade employers from continuing to use those illegal terms in the
future. This result surely does not “provide the greatest benefit to our servicemen
and women,” as the majority says.
II.
The majority erodes veterans’ rights still further by giving the defendants
more than they asked for. The defendants acknowledge that certain provisions of
the arbitration agreement violate USERRA. Even so, the majority opinion gives
them an unrequested second chance to apply these admitted illegal contract terms.
Specifically, I refer to two illegal terms in the defendants’ arbitration agreement,
which the majority calls the “fee term” and the “statute of limitations term.” This
fee term states that Mr. Bodine must pay up to $150 in arbitration costs, any fees
and costs the arbitrator apportions to him, as well as the costs associated with
mandatory mediation. This fee term directly violates USERRA. See 38 U.S.C.
§ 4323(h)(1) (“No fees or court costs may be charged or taxed against any person
claiming rights under [USERRA].”). The statute of limitations term sets a six23

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month limitations period for any claim related to Mr. Bodine’s employment
contract. The statute of limitations term also directly violates USERRA. See 38
U.S.C. § 4327(b) (“Inapplicability of statutes of limitations—If any person seeks to
file a complaint or claim . . . alleging a violation of [USERRA], there shall be no
limit on the period for filing the complaint or claim.”).
Throughout this case, the defendants have not disputed that these contract
terms violate USERRA, and as such they have tried to nullify the terms’ effect.
The defendants told the District Court:
[B]ecause [we] will voluntarily waive the [statute of limitations]
defense . . . , the provision purporting to limit the statute of limitations
in the arbitration agreement, as applied, is of no force or effect, and
places no substantive limitation on the Plaintiff’s USERRA rights. . . .
[We also] agree to bear any and all costs associated with any
arbitration, mediation, or negotiation of this matter. . . . Therefore,
because the Plaintiff is not required to bear any unreasonable fees to
arbitrate this matter, there are no substantive restrictions on the
Plaintiff’s USERRA rights.
The District Court accepted the defendants’ concession that these terms are illegal,
as well as the defendants’ willingness to nullify their effect. The court severed the
illegal terms on that basis. In arguing before this Court, the defendants asked us to
affirm the District Court because it was “authorized to blue-pencil this agreement
in a way [so] that it does not . . . diminish any rights under USERRA.” So the
defendants still don’t dispute that the fee and statute of limitations terms in the

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arbitration agreement violate USERRA. Indeed the defendants were wise not to
dispute this, because these contract terms do clearly violate the statute.
The majority opinion nonetheless reverses the District Court on this ground
and gives the defendants another “opportunity to present their arguments regarding
the validity of the terms” before an arbitrator. I say the terms’ illegality under
USERRA was not disputed before, and cannot seriously be disputed now. 6 Yet the
majority opinion reaches out and takes away not just the federal courts’ ability to
supersede illegal “contract[s]” or “agreement[s]” (as the statute says), but the
courts’ ability to supersede even the clearly illegal pieces of those contracts. This
is a bridge too far. Under the majority’s decision today, an employer can insert a
boilerplate arbitration agreement into its employment contract—no matter whether
that agreement is legal—and federal courts will be essentially divested of authority
to enforce USERRA. 7 Surely Congress did not intend for federal courts to be so
easily and completely deprived of authority to enforce USERRA when an
agreement contains blatantly illegal terms. Veterans’ rights statutes preceding

6

Maybe the majority understands the defendants’ sudden use of “purportedly” whenever
they mention the terms’ illegality in their appellate brief to mean that the issue is disputed. I
don’t think this wordsmithing changes the concessions the defendants made to the District Court,
which that court relied on.
7
While the arbitrator’s decision could conceivably come before the courts on a motion to
vacate, see 9 U.S.C. § 10, “courts may vacate an arbitrator’s decision only in very unusual
circumstances,” Oxford Health Plans LLC v. Sutter, 569 U.S. __, __, 133 S. Ct. 2064, 2068
(2013) (quotation omitted). These very unusual circumstances do not include the arbitrator’s
commission of “error—or even a serious error.” Id. (quotation omitted). Instead, motions to
vacate concern things like fraud, corruption, and misconduct. See 9 U.S.C. § 10(a).
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USERRA stretch back to World War II and “provide[] the mechanism for manning
the Armed Forces of the United States.” Ala. Power Co. v. Davis, 431 U.S. 581,
583, 97 S. Ct. 2002, 2004 (1977); see also Coffman v. Chugach Support Servs.,
Inc., 411 F.3d 1231, 1235 (11th Cir. 2005) (noting that USERRA and its
predecessor statutes were intended to “bolster the morale of those serving their
country” (quotation omitted)). Veterans’ rights statutes thus occupy a domain of
special national importance, and our courts should not lightly be stripped of the
power to enforce them.
Under the majority’s decision, the worst to happen to overreaching
employers will be a delicate removal of just their illegal terms. Veterans, on the
other hand, may lose their USERRA rights without redress. Take, for example, a
fee term like the one here. A veteran might be forced to pay mandatory mediation
and arbitration fees before she can prove (and if she can prove) to an arbitrator that
USERRA has been violated. 8 In conjunction with the majority’s narrow, extratextual interpretation of § 4302(b), its decision to undo the District Court’s
severance of the clearly illegal terms walks back veterans’ rights rather than
protecting them.
8

Even if some veterans can eventually prove to an arbitrator that illegal terms violate
USERRA, damage will have already been done. In McKinney, the Supreme Court expressed
concern at the idea that veterans would be delayed in vindicating their rights, and said that delay
“might often result in hardship to the veteran and the defeat, for all practical purposes, of the
rights Congress sought to give him.” 357 U.S. at 270, 78 S. Ct. at 1226. The Court said delay
would contradict “the liberal procedural policy clearly manifested in the statute for the
vindication of [veterans’] rights.” Id.
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*

*

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*

This is an important case about a relatively novel issue. How we resolve it
affects not only veterans’ rights, but how employers regard those rights. I read the
majority’s interpretation of § 4302(b) to contradict the plain text of the statute in a
way that fails to preserve § 4302(a)’s saving effect and could also foster employer
overreaching. I worry also that the majority opinion will strip federal courts of not
just the power to supersede “contract[s]” or “agreement[s],” but also the power to
supersede pieces of contracts acknowledged to be illegal. USERRA is meant to
give special protections to our veterans, and the majority opinion dilutes those
protections. I respectfully dissent.

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APPENDIX
The Contract reads in pertinent part:
VII.
ALTERNATIVE DISPUTE RESOLUTION
THE PARTIES TO THIS AGREEMENT HEREBY
EXPRESS THAT, EXCEPT AS SET FORTH BELOW,
ALL DISPUTES, CONTROVERSIES OR CLAIMS OF
ANY KIND AND NATURE BETWEEN THE
PARTIES HERETO, ARISING OUT OF OR IN ANY
WAY RELATED TO THE WITHIN AGREEMENT,
ITS INTERPRETATION, PERFORMANCE OR
BREACH, SHALL BE RESOLVED EXCLUSIVELY
BY THE FOLLOWING ALTERNATE DISPUTE
RESOLUTION (“ADR”) MECHANISMS:
A. Negotiation –– The parties hereto shall first engage in
a good faith effort to negotiate any such controversy .
...
B. Should the above-stated negotiations be unsuccessful,
the parties shall engage in mediation . . . .
C. Should the above-stated mediation be unsuccessful,
the parties agree to arbitrate any such controversy or
claim with the express understanding that this
Agreement is affected by interstate commerce . . . .
The arbitration shall be conducted pursuant to the
Arbitration Rules of the American Arbitration
Association (the “Arbitration Rules”) or such other
arbitration rule as the parties may otherwise agree to
choose.
D. The Employee shall pay no more than $ 150 in
arbitration costs. However, the parties agree that the
arbitrator may as part of his final decree reapportion
the fees, including attorney’s fees, and costs between
the parties as allowed by applicable law.
Notwithstanding any other provision of this Article to
the contrary, in the event a party may desire to seek
interim relief, whether affirmative or prohibitive, in
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the form of a stay or motion to compel arbitration . . .
such party may initiate the appropriate litigation to
obtain such relief (“Equitable Litigation”). Nothing
herein shall be construed to suspend or terminate the
obligation of both parties promptly to proceed with
the ADR procedures concerning the subject of such
Equitable Litigation while such Equitable Litigation
and any appeal therefrom is pending.
To the extent that a court of competent jurisdiction
should determine that the provisions of the Federal
Arbitration Act are not applicable to this Agreement,
the parties hereto nevertheless agree to arbitrate under
the provisions of Alabama law, the measure or
amount of damages to which either of the parties may
be entitled. Such arbitration shall be conducted
pursuant to the Arbitration Rules.
The parties intend that this Article VII shall
encompass and embody the broadest range of matters
that may be arbitrated under federal law. The parties
further agree that any question as to the scope of this
Article VII shall, to the extent permitted by law, be
determined by the arbitrator (including, without
limitation, issues of unfairness, capacity, waiver,
unconscionability and so forth).
....
VIII.
MISCELLANEOUS
....
B. Both the Employer and the Employee mutually
agree that the covenants and restrictions contained
in Article V and Article VI above, or any of their
respective subparts, are separate and severable, and
the unenforceability of any specific covenant shall
not affect the validity of any other covenant set
forth herein. If any term or provision of this
Agreement shall be invalid or unenforceable to any
extent or application, then the remainder of this
Agreement shall be valid and enforceable to the
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fullest extent and the
permitted by law. . . .

Page: 30 of 30

broadest

application

....
D. Neither this Agreement nor any of the terms and
provisions hereof, including, without limitation,
the provisions of the preceding Article, may be
waived or modified in whole or in part, except by
written instrument signed by an officer of the
Employer expressly stating that it is intended to
operate as a waiver or modification of this
Agreement. . . .
....
G. It is acknowledged by the Employer and the
Employee that the place of this contract and its
status is in the County of Morgan, State of
Alabama. The Employer and the Employee
expressly agree that federal law and the laws of the
State of Alabama shall govern the validity,
construction, interpretation, and effect of this
Agreement, or any provision thereof.

30