Kevin Ziober v. BLB Resources, Inc.

Filing

FILED OPINION (MARY H. MURGUIA, PAUL J. WATFORD and SUSAN R. BOLTON) AFFIRMED. Judge: MHM Authoring, Judge: PJW Concurring, FILED AND ENTERED JUDGMENT. [10159220]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KEVIN ZIOBER, an
individual,
Plaintiff-Appellant,

No. 14-56374
D.C. No.
8:14-cv-00675-CJC-DFM

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

OPINION

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.

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ZIOBER V. BLB RESOURCES
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
returning servicemembers. The panel concluded that neither
the text nor the legislative history of USERRA evinced
Congressional intent to override the Federal Arbitration
Act’s mandate that courts rigorously enforce arbitration
agreements according to their terms.
Concurring, Judge Watford wrote that while the proper
interpretation of USERRA was open to debate, it was not
prudent to create a circuit split by reversing the district
court’s ruling.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Peter Romer-Friedman (argued) and R. Joseph Barton, Cohen
Milstein Sellers & Toll PLLC, Washington, D.C.; Kathryn S.
Piscitelli, Orlando, Florida; Thomas G. Jarrard, Law Office
of Thomas Jarrard, PLLC, Spokane, Washington; for
Plaintiff-Appellant.
Lonnie D. Giamela (argued), Jimmie E. Johnson, and Nathan
V. Okelberry, Fisher & Phillips LLP, Los Angeles,
California, for Defendant-Appellee.

OPINION
MURGUIA, Circuit Judge:
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 United 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 servicemembers.
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.

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ZIOBER V. BLB RESOURCES
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 signed a
bilateral arbitration agreement. The agreement stated:
To the fullest extent allowed by law, any
controversy, claim or dispute between
Employee and the Company . . . relating to or
arising out of Employee’s employment or the
cessation of that employment will be
submitted to final and binding arbitration
before a neutral arbitrator . . . for
determination in accordance with the
American Arbitration Association’s (“AAA”)
Employment Arbitration Rules and Mediation
Procedures (excluding mediation), including
any subsequent modifications or amendments
to such Rules, as the exclusive remedy for
such controversy, claim or dispute.
Under the agreement, the company agreed to pay all
arbitration costs. The agreement further specified that the
scope of discovery and available remedies would be the same
in arbitration as they would be in court.
Ziober subsequently told the company that the Navy was
recalling him to active duty in Afghanistan. On Ziober’s last
scheduled day of work, the company informed him that he
would not have a job upon his return to civilian life.

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In April 2014, after returning from Afghanistan, Ziober
sued his former employer for violating USERRA’s provisions
protecting servicemembers against discrimination and
establishing reemployment rights. The complaint also
includes various state law claims, including claims for
wrongful termination and violations of a state statute
protecting servicemembers against discrimination. The
employer moved to compel arbitration pursuant to the
agreement Ziober had signed. The district court granted the
defendant’s motion after concluding that USERRA did not
invalidate or supersede the arbitration agreement. This appeal
followed.
II.
We have jurisdiction under 9 U.S.C. § 16(a)(3) to review
the district court’s order compelling arbitration and
dismissing Ziober’s complaint. We review the district court’s
order de novo. Bushley v. Credit Suisse First Boston,
360 F.3d 1149, 1152 (9th Cir. 2004).
III.
Our analysis begins with more than three decades of
Supreme Court precedent recognizing the “liberal federal
policy favoring arbitration agreements,” as established by the
Federal Arbitration Act (FAA). Moses H. Cone Mem’l Hosp.
v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983); see also
CompuCredit Corp. v. Greenwood, 132 S.Ct. 665, 669
(2012). That pro-arbitration policy extends to arbitration
agreements in the employment contracts of nontransportation workers. Circuit City Stores, Inc. v. Adams,
532 U.S. 105, 109 (2001). The FAA requires courts to
“‘rigorously enforce’ arbitration agreements according to

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their terms,” including agreements to arbitrate claims arising
under federal statutes. Am. Express Co. v. Italian Colors
Rest., 133 S. Ct. 2304, 2309 (2013) (quoting Dean Witter
Reynolds Inc. v. Byrd, 470 U.S. 213, 221 (1985)); see also
CompuCredit, 132 S.Ct. at 669. Section 3 of the FAA
specifically directs federal district courts to stay proceedings
and compel arbitration of “any issue referable to arbitration
under an agreement in writing for such arbitration.” 9 U.S.C.
§ 3.
An exception to the FAA’s arbitration mandate exists
when the mandate “has been ‘overridden by a contrary
congressional command.’” CompuCredit, 132 S.Ct. at 669
(quoting Shearson/Am. Express Inc. v McMahon, 482 U.S.
220, 226 (1987)). The burden rests on the party challenging
arbitration “to show that Congress intended to preclude a
waiver of a judicial forum” for the claims at issue. Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991). Such
congressional intent “will be discoverable in the text of the
[statute], its legislative history, or an inherent conflict
between arbitration and the [statute’s] underlying purposes.”
Id. at 26 (internal quotation marks omitted); see also 14 Penn
Plaza LLC v. Pyett, 556 U.S. 247, 258 (2009).
In this case, Ziober argues that the plain text and
legislative history of USERRA reveal that Congress intended
to preclude the compelled arbitration of claims arising under
its provisions. We join our sister circuits to have considered
the question and conclude that neither the text nor legislative
history evinces that intent. Landis v. Pinnacle Eye Care, LLC,
537 F.3d 559 (6th Cir. 2008); Garrett v. Circuit City Stores,
Inc., 449 F.3d 672 (5th Cir. 2006); see also Bodine v. Cook’s
Pest Control, Inc., No. 15-13233, 2016 WL 4056031 (11th
Cir. July 29, 2016) (holding that a USERRA claim was

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arbitrable even where the underlying arbitration agreement
contained terms that violated the statute because those terms
could be severed from the remainder of the agreement).
A.
Some historical context helps frame the discussion of
USERRA’s provisions. By the time Congress passed
USERRA in 1994, the FAA had been in place for nearly
seventy years, and the Supreme Court had made clear that “a
contrary congressional command” was required to override
the FAA’s pro-arbitration mandate. McMahon, 482 U.S. at
226. Three years before USERRA’s passage, the Supreme
Court further held that an age discrimination claim arising
under the Age Discrimination in Employment Act of 1967
could be subject to compelled arbitration. Gilmer, 500 U.S.
at 23. Arbitration agreements in employment contracts were
not uncommon at the time. See, e.g., Erving v. Va. Squires
Basketball Club, 468 F.2d 1064, 1066–67 (2d Cir. 1972);
Dickstein v. duPont, 443 F.2d 783, 784–85 (1st Cir. 1971).
Against that backdrop, Congress passed USERRA to
broadly prohibit employment discrimination against, and to
establish reemployment rights on behalf of, those who serve
in the military and then reenter civilian life. See 38 U.S.C.
§§ 4301–4334. Central to this appeal, 38 U.S.C. § 4302(b)
provides:
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

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additional prerequisites to the exercise of any
such right or the receipt of any such benefit.

An individual may enforce his or her substantive rights
against a private employer in one of two ways. 38 U.S.C.
§§ 4322, 4323. First, an individual may file a complaint with
the Secretary of Labor and request that the Secretary refer the
matter to the Attorney General for further prosecution. Id.
§§ 4322, 4323(a)(1). Second, an individual may directly
pursue a civil action in federal court. Id. § 4323(a)(3).1
Section 4323 gives district courts jurisdiction over USERRA
claims, and it specifies the venue in which actions may
proceed. Id. § 4323(b), (c).
Taken together, Ziober argues that those statutory
provisions create a procedural right to sue in federal court
that precludes a contractual agreement to arbitrate. We
disagree. As an initial matter, it is well established that “[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.”
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 628 (1985); see also Circuit City, 532 U.S. at
123. Ziober therefore loses no substantive protections by
arbitrating his claims, and the only way he can prevail is if
USERRA creates a procedural right to a judicial forum,
protected by § 4302(b).

1

We do not reach the question of how the arbitration agreement in
this case would have affected any claims brought by the Attorney General
pursuant to § 4323(a)(1). See EEOC v. Waffle House, Inc., 534 U.S. 279,
295–96 (2002) (holding that the EEOC retained “the authority to pursue
victim-specific [judicial] relief regardless of the forum that the employer
and employee have chosen to resolve their disputes”).

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The Supreme Court’s decision in CompuCredit forecloses
the argument that USERRA includes a non-waivable
procedural right to a judicial forum. In CompuCredit, the
Court enforced a consumer agreement to arbitrate claims
arising under the Credit Repair Organizations Act
(CROA),which, similar to USERRA, prohibited the waiver of
“any right of the consumer” under the Act. 132 S.Ct. at 669.
Unlike USERRA, CROA explicitly provided that a consumer
had “a right to sue” a credit repair organization. Id. Like
USERRA, CROA included a section that created civil
liability and described available relief in the context of a
lawsuit in court. Id. at 670; see also 15 U.S.C. § 1679g
(CROA’s civil liability provisions). Despite the statute’s
seeming contemplation of a judicial forum for claims, the
Supreme Court rejected the argument that CROA created a
procedural right to bring a lawsuit in court. As the Court
reasoned, “[i]f the mere formulation of the cause of action in
this standard fashion were sufficient to establish the ‘contrary
congressional command’ overriding the FAA, valid
arbitration agreements covering federal causes of action
would be rare indeed.” 132 S.Ct. at 670 (citation omitted).
The Court in CompuCredit also looked to prior instances
when it had enforced arbitration agreements despite a
statute’s contemplation of a judicial forum for suits. In
Gilmer, for instance, the Supreme Court enforced an
arbitration agreement with respect to a claim brought under
the Age Discrimination in Employment Act (ADEA), even
though the statute provided that “[a]ny person aggrieved may
bring a civil action in any court of competent jurisdiction for
such legal or equitable relief as will effectuate the purposes
of this chapter.” CompuCredit, 132 S.Ct. at 670; see also
29 U.S.C. § 626(c)(1). Before Gilmer, the Supreme Court
also repeatedly enforced arbitration agreements when the

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federal statute at issue created a cause of action in federal
courts without mentioning agreements to arbitrate. See
CompuCredit, 132 S.Ct. at 670–71 (discussing cases);
McMahon, 482 U.S. at 227–28. In CompuCredit, the Court
reaffirmed that such statutory provisions do not create a right
to judicial enforcement of a claim. 132 S.Ct. at 671.
The same conclusion applies here. Like CROA, nothing
in the plain text of USERRA “mentions mandatory arbitration
or the FAA.” Landis, 537 F.3d at 559. Instead, the statute
describes civil liability in a standard fashion similar to the
statutes considered in CompuCredit. As the Supreme Court
remarked in CompuCredit, when Congress has issued a
command precluding the arbitration of claims, it has done so
in far more unmistakable terms. See 132 S.Ct. at 672 (citing
7 U.S.C. § 26(n)(2) (“No predispute arbitration agreement
shall be valid or enforceable, if the agreement requires
arbitration of a dispute arising under this section.”); 15 U.S.C.
§ 1226(a)(2) (“Notwithstanding any other provision of law,
whenever a motor vehicle franchise contract provides for the
use of arbitration to resolve a controversy arising out of or
relating to such contract, arbitration may be used to settle
such controversy only if after such controversy arises all
parties to such controversy consent in writing to use
arbitration to settle such controversy.”)). Congress made no
similarly plain statement in USERRA’s text.
The closest that USERRA’s text comes to addressing the
compelled arbitration of claims is in § 4323(b)’s prohibition
of “the establishment of additional prerequisites” to the
vindication of substantive rights. However, as other circuits
have recognized, that language directly relates to “union
contracts and collective bargaining agreements” that require
an employee to take an additional step or exhaust certain

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remedies before filing suit. Garrett, 449 F.3d at 680; see also
Landis, 537 F.3d at 564 (Cole, J., concurring) (concluding
that Congress did not want USERRA plaintiffs to be forced
“to submit to arbitration, mediation, or any grievance
procedure as a prerequisite to filing suit in federal court”).
But an individual arbitration agreement between an employer
and an employee—operating like a forum selection
clause—allows an employee to immediately seek to vindicate
his or her rights in an arbitral forum, with no additional steps
or exhaustion of other remedies required.
Ziober also argues that USERRA should be interpreted
more liberally than other statutes given its focus on veterans.
As Ziober accurately observes, the Supreme Court and this
court have repeatedly affirmed the principle that statutes
concerning federal reemployment rights for military members
are “to be liberally construed for the benefit 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 (1946); see also Ala. Power Co. v. Davis, 431 U.S. 581,
584 (1977); Imel v. Laborers Pension Tr. Fund for N. Cal.,
904 F.2d 1327, 1331–32 (9th Cir. 1990). We have also
liberally construed a veterans reemployment statute to
provide federal court jurisdiction over a claim. Imel,
904 F.2d at 1331–32. The principle of liberal construction,
however, is designed to ensure that veterans may take full
advantage of the substantive rights and protections provided
by a statute. See Ala. Power, 431 U.S. at 585–87. Yet, as
previously discussed, arbitration agreements like the one at
issue in this case operate like forum selection clauses that do
not require a party to give up any “substantive rights afforded
by the statute.” Mitsubishi, 473 U.S. at 628. Further, the
enforcement of an arbitration agreement does not undermine
the “social policies” underlying a given statute. Gilmer,

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500 U.S. at 27–28. Instead, arbitration “can further” the same
“broader social purposes” that litigation seeks to promote. Id.
at 28.
Consistent with the other circuits to have considered the
question, we therefore conclude that the plain text of
USERRA does not preclude the compelled arbitration of
disputes arising under its provisions. See Garrett, 449 F.3d at
677 (concluding that “[i]t is not evident from the statutory
language that Congress intended to preclude arbitration by
simply granting the possibility of a federal judicial forum”);
Landis, 537 F.3d at 562 (observing that nothing in
USERRA’s text indicates that Congress chose to exempt the
statute “from the policy favoring arbitration”); see also
Bodine, 2016 WL 4056031, at *5 (affirming a district court’s
order compelling arbitration of USERRA claims after
severing from the arbitration agreement terms that violated
the statute)2.
B.
Even if we were to conclude that USERRA’s text was
ambiguous on the question, the limited legislative history
cited by Ziober also does not satisfy his burden “to show that
Congress intended to preclude a waiver of a judicial forum.”
Gilmer, 500 U.S. at 26. Ziober relies largely on a paragraph
in a House Committee Report concerning the scope of
§ 4302(b). The paragraph states:

2

The parties in Bodine “expressly agree[d] that USERRA claims are
arbitrable,” and limited their argument to the enforceability of the specific
arbitration agreement at issue. 2016 WL 4056031, at *3

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Section 4302(b) would reaffirm a 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
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 Airlines, Inc., 469 F. Supp.
1060, 1064–65 (S.D. Fla. 1978).
H.R. Rep. No. 103-65(I), at 20 (1993).
The passage, however, is consistent with our analysis of
§ 4302(b)’s express prohibition on the creation of “additional
prerequisites” for the vindication of substantive rights under
the statute. As the legislative history confirms, Congress’s
concern was with contractual agreements that forced an

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employee to take an additional step (i.e., exhausting
contractual grievance procedures) before bringing suit. That
concern, however, does not reach individual agreements to
arbitrate like the one at issue in this case, because such
agreements do not require a plaintiff to take any additional
steps before seeking to vindicate his or her rights in an
arbitral forum. See Garrett, 449 F.3d at 680 (remarking that
the cited legislative history “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”); Landis, 537 F.3d at 562–63.
The legislative history’s citation to McKinney v.
Missouri-Kansas-Texas Railroad Co. confirms that reading.
The Supreme Court in McKinney considered a USERRA
predecessor statute and held that a collective bargaining
agreement could not require an employee to “exhaust other
avenues of relief” before filing suit. 357 U.S. 265, 270
(1958). McKinney, however, did not address arbitration
agreements that operate similar to forum selection clauses
like the one at issue in this case. And as the Supreme Court
has since made plain, the act of bringing a claim in arbitration
allows a plaintiff to vindicate his or her substantive statutory
rights to the same extent as filing a lawsuit in federal court.
See Gilmer, 500 U.S. at 30 (rejecting the argument that
arbitration is a “method of weakening the protections
afforded in the substantive law to would-be complainants”).
We therefore conclude that Ziober has failed to establish
that the legislative history evinces Congress’s intent to

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prevent the enforcement of the arbitration agreement he
signed.3
IV.
We acknowledge the possibility that Congress did not
want “members of our armed forces to submit to binding,
coercive arbitration agreements.” Landis, 537 F.3d at 564
(Cole, J., concurring). That intention, however, is not
expressed in the statute itself, or in the legislative history. We
therefore affirm the district court’s order compelling
arbitration and dismissing Ziober’s complaint.
AFFIRMED.

WATFORD, Circuit Judge, 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
(USERRA) contains a “contrary congressional command”
overriding the Federal Arbitration Act’s pro-arbitration

3

Even if the House Committee Report more directly addressed
individual arbitration agreements, no similar language appears in the
relevant Senate Report, or any other legislative history cited by the parties.
See S. Rep. No. 103-158, at 41 (1993). We agree with the Fifth Circuit
that “[s]uch a scant record, unless explicitly and on point, hardly proves
Congress’s intention toward all cases involving arbitration.” Garrett,
449 F.3d at 679.

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mandate. CompuCredit Corp. v. Greenwood, 132 S. Ct. 665,
669 (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). 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
USERRA 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 employer by
a person, the district courts of the United States shall have
jurisdiction of the action.” 38 U.S.C. § 4323(a)(3), (b)(3).
I’m not sure what additional language would be necessary to
create a right to bring an action in court. If USERRA confers
the right to a judicial forum, then § 4302(b) arguably renders
invalid any pre-dispute waiver of that right through an
agreement to submit USERRA claims to arbitration.
CompuCredit may seem controlling at first glance, but
that case is not on all fours with this one. The statute at issue
there, the Credit Repair Organizations Act, included a nonwaiver provision that invalidated a consumer’s waiver of any
of the rights conferred by the statute, but the Supreme Court
held that the statute did not confer the right to bring an action
in court. CompuCredit, 132 S. Ct. at 669–70. The other
statutes to which the Court referred in CompuCredit—the
Age Discrimination in Employment Act, the Racketeer
Influenced and Corrupt Organizations Act, and the Clayton

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Act—all involved the reverse situation: Each statute
conferred the right to bring an action in court, but each lacked
a non-waiver provision. See id. at 670–71. USERRA is
different because it contains both a non-waiver provision
(§ 4302(b)) and a provision conferring the right to bring an
action in court.
I concede, though, that the proper interpretation of
§ 4302(b) is open to debate. On the one hand, the
Department of Labor, the agency charged with administering
USERRA, has read § 4302(b) as including “a prohibition
against the waiver in an arbitration agreement of an
employee’s right to bring a USERRA suit in Federal court.”
70 Fed. Reg. 75246, 75257 (Dec. 19, 2005). That reading is
consistent with a long line of authority holding that
legislation benefitting servicemembers is to be liberally
construed in their favor. See, e.g., Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 441 (2011); Fishgold v.
Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946).
On the other hand, § 4302(b) is general in scope; it does not
explicitly address waiver of the right to a judicial forum. So
there is room to argue that Congress intended to preclude
only the waiver of substantive rights conferred by the statute,
not the waiver of procedural rights such as the right to bring
an action in court. Nothing in the legislative history of
USERRA definitively resolves this ambiguity.
With reasonable arguments to be made on both sides, I
don’t think it’s prudent for us to create a circuit split by
reversing the district court’s ruling, particularly given the
ease with which Congress can fix this problem. If we and
other circuits have misinterpreted the scope of § 4302(b),
Congress can amend the statute to make clear that it does
render pre-dispute agreements to arbitrate USERRA claims

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unenforceable. See Landis v. Pinnacle Eye Care, LLC,
537 F.3d 559, 565 (6th Cir. 2008) (Cole, J., concurring).
Indeed, at least one amendment has been proposed recently
that would do just that. See 162 Cong. Rec. S3205 (daily ed.
May 25, 2016) (proposed amendment 4180 to Senate Bill
2943). If we have erred by construing § 4302(b) too
narrowly, Congress will surely let us know.