author: WALLACE, Senior Circuit Judge:

text:
    Robert MCDANIELS, Petitioner-Appellant, v. Richard J. KIRKLAND, Warden, Respondent-Appellee. Keelon T. Jenkins, Petitioner-Appellant, v. Michael S. Evans, Warden, Respondent-Appellee.
    No. 09-17339, No. 11-15030
    United States Court of Appeals, Ninth Circuit.
    Filed October 14, 2016

      Jovita P. Tamor and Richard A. Tamor, Tamor & Tamor, Oakland, CA, for Petitioner-Appellant Robert McDaniels.
    Albert Joel Kutchins (argued), Berkeley, CA, for Petitioner-Appellant Keelon T. Jenkins.
    Arthur P. Beever (argued), Deputy Attorney General; Peggy S. Ruffra, Supervising Deputy Attorney General; Gerald A. Engler, Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California; Office of the Attorney General, San Francisco, CA, for Respondents-Ap-pellees.
    Before; J, CLIFFORD WALLACE, JEROME FARRIS, and JAY S. BYBEE, Circuit Judges.
   OPINION

WALLACE, Senior Circuit Judge:

Before us on remand from the en banc court are Petitioners’ contentions that the California Court of Appeal’s adjudication of their Batson claims was based on an unreasonable determination of the facts. McDaniels v. Kirkland, 813 F.3d 770, 782 (9th Cir. 2015) (en banc). The en banc court clarified that in assessing Petitioners’ claims, we are to “consider the entire state-court record, not merely those materials that were presented to state appellate courts.” Id. at 780. After considering the entire state-court record, we conclude that the California Court of Appeal’s decision did not rest on an unreasonable determination of the facts. We therefore affirm the district , court’s decisions denying Petitioners habeas relief.

I.

Our prior panel opinion recounted the background necessary to understand this appeal. McDaniels v. Kirkland, 760 F.3d 933, 937 (9th Cir. 2014), on rehearing en banc McDaniels v. Kirkland, 813 F.3d 770, 782 (9th Cir. 2015) (en banc). The following summary is taken from that opinion:

The state trial judge limited voir dire to thirty minutes total. He explained that this was because jurors filled out questionnaires, the purpose of which was to do away with the need for extensive voir dire.
During the voir dire, the prosecutor challenged seven out of ten African-Americans called as potential jurors. Petitioners argued that the prosecutor excluded four of those jurors based on their race. During the Batson hearing in the state court, the trial judge held that Petitioners had established a prima facie case of discrimination and asked the prosecutor to offer race-neutral reasons for the challenges. The prosecutor gave his reasons, and the trial court concluded that there “didn’t appear ... to be any type of racism going on.”
Petitioners appealed to the California Court of Appeal (CCA), arguing that the record did not support the prosecutor’s reasons. Petitioners also, contended that, but for a few exceptions, only African-American jurors were asked whether they were sympathetic to the defendants, although the CCA stated that six non-African-American jurors were also asked that question.
The trial court held that it was not required to engage in comparative juror analysis because, under then-controlling California law, appellate courts were not to perform comparative juror analysis when the argument was not raised in the trial court. The first day of the voir dire transcript, as well as the questionnaires for stricken jurors, were not included in the CCA record. Citing the significant deference it owed to the trial court where that court had undertaken a sincere effort to evaluate the prosecutor’s reasons, the CCA affirmed.
The California Supreme Court affirmed without discussion. Petitioners then separately petitioned the district court. In both proceedings, the state filed the first day of the voir dire transcript as an exhibit. The state also produced the questionnaires of the seated jurors and alternates. The remaining questionnaires had been destroyed.
District Judge Phyllis J. Hamilton heard McDaniels’s petition. She held that the state court’s finding that the prosecutor did not have discriminatory intent was not unreasonable. She further held that, although the CCA was incorrect that it was not required to perform comparative juror analysis because the state trial court had not done so, comparative juror analysis did not uncover any discriminatory intent because, as the CCA observed, six non African-American jurors were also asked whether they were sympathetic to Petitioners.
District Judge Marilyn H. Patel heard Jenkins’s petition, and also held that the CCA’s conclusion was not based on an unreasonable interpretation of the facts.

McDaniels, 760 F.3d at 937.

II.

The documents that Petitioners failed to provide to the California Court of Appeal (CCA)—the juror questionnaires and the transcript of the first day of voir dire—are especially important at this, juncture. In our earlier panel opinion, we declined to consider those documents because it is undisputed that they were not before the CCA. Id. at 942. Given that we are reviewing the CCA’s decision and that it had no opportunity to review those documents, it seemed clear to us that a court reviewing on habeas should not evaluate the CCA’s decision in light of the missing documents. The en banc court ruled differently, however. It held that “[flederal courts sitting in habeas may consider the entire state-court record, not merely those materials that were presented to state appellate courts.” McDaniels, 813 F.3d at 780. Given this novel holding, we must now decide whether the CCA made an unreasonable determination of the facts using documents that the parties failed to put before it.

III.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court “held that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from exercising peremptory challenges on the basis of race.” Davis v. Ayala, — U.S. -, 135 S.Ct. 2187, 2199, 192 L.Ed.2d 323 (2015). Since Batson, the Supreme Court has explained that trial courts should employ a three-step process in adjudicating Batson claims:

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (internal quotation marks and citation omitted). Persuading an appellate court to overturn a trial court’s Batson decision on a direct appeal is a difficult task, since the applicable standard of review is clear error. Davis, 135 S.Ct. at 2199. But the standard becomes even more imposing on habeas review. Under 28 U.S.C. § 2254(d)(2), we have authority to order habeas relief only where a state court’s adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Moreover, we must presume that a state court’s factual findings are correct and “the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ” Davis, 135 S.Ct. at 2199-2200 (quoting Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006)).

Appellate courts are sensibly hesitant to reverse a trial court’s Batson finding because “[a] trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes.” Id. at 2201, Because we, as appellate court judges, have only a cold record before us, we should be exceedingly careful in second guessing a trial court’s Batson decision.

In their supplemental brief following the en banc court’s decision in this matter, Petitioners specify four African-American jurors that they contend the prosecution challenged in violation of Batson. We address each juror in turn.

A.

Petitioners first challenge the prosecution’s exercise of a peremptory challenge to juror Hilton, which they characterize as “the most egregiously discriminatory strike.” The prosecutor gave several reasons for challenging Hilton. First, the prosecutor explained that Hilton “seemed somewhat sympathetic, because of the situation with his son, towards the two defendants.” Petitioners argue that Hilton’s son was actually the victim of crime, not the perpetrator, and they therefore assert that the prosecutor’s asserted reason was pretextual because the “situation” would have made Hilton sympathetic to the prosecution, not the defense. This argument is pure conjecture, however, since the record does not clearly establish whether Hilton’s son was the victim or the perpetrator. Petitioners’ assumptions derive from a colloquy between the trial court judge and juror Hilton occurring during voir dire:

Q: Now, the incident involving your son in New York City, did they catch the person who did that?
A: Yes.
Q: And did you actually sit through the trial?
A: No. That was in New York. I was out here.
Q: Okay. Would there be anything about that situation that would cause you to be unfair or partial to either side in this case?
A: No.

From that colloquy, it is not clear whether Hilton’s son was indeed a victim of crime, as Petitioners suggest. While that might be a reasonable inference, there are other inferences one could draw from the colloquy. For instance, it could be that Hilton’s son was wrongly accused of a crime (which might have led the prosecutor to conclude reasonably that Hilton would be biased against the prosecution in this case). Further, while the trial judge’s phrasing suggests that Hilton’s son was not the perpetrator, it does not completely foreclose that possibility. To that point, Petitioners argue that even if Hilton’s son was the perpetrator, the prosecutor’s reason for striking Hilton was still pretextual because several empaneled jurors had family members who committed crimes. But, again, the record provides no details with which we might conduct a comparative juror analysis on this point. For instance, assuming Hilton’s son committed a crime, the record provides no details about the nature of the crime or its severity. Thus, while the son’s crime (if in fact he was the perpetrator, which we cannot be sure of) might have been similar to the crimes committed by the empaneled jurors’ associates, it might also have been entirely different. Thus, conducting a comparative juror analysis would be futile since there is nothing for us to compare. In short, the record is sufficiently unclear on the details of the apparent incident involving Hilton’s son that we cannot hold it renders the CCA’s decision unreasonable.

Another reason the prosecutor gave for challenging Hilton was that when he questioned Hilton about aider and abetter liability, he perceived that Hilton “projected towards me a hypothetical in sort of an aggressive fashion and then I answered it, but it was clear he was questioning the motives that I had as far as bringing the prosecution.” Petitioners assert that this reason was pretextual because, in their view, Hilton gave a “fair and intelligent response” to a confusing question posed by the prosecutor. But even if we agreed with Petitioners that Hilton’s response was “fair and intelligent,” that would do nothing to show that the prosecutor’s perception that Hilton answered in an “aggressive” manner was racially motivated. After all, peremptory challenges “are often based on subtle impressions and intangible factors,” Davis, 135 S.Ct. at 2208, and nothing in the record establishes that the prosecutor’s reason was anything other than that.

One final reason the prosecutor offered for striking Hilton related to Hilton’s juror questionnaire: “I’m reviewing his questionnaire, and the weird thing about it is even on his questionnaire when you asked him what race he was, he puts a question mark.” Petitioners argue that when one compares Hilton’s questionnaire to other juror questionnaires, it becomes obvious that the prosecutor was motivated by race in striking Hilton. They point to three other juror questionnaires, in which two non-African American jurors left the race question blank and another wrote something unintelligible in that space.

We have found comparative juror analysis to be a useful tool in ferreting out racial discrimination. For instance, in Green v. LaMarque, a prosecutor asserted he challenged a prospective African-American juror for failing to complete her juror questionnaire. 532 F.3d 1028, 1033 (9th Cir. 2008). But we held that the prosecutor’s asserted reason was pretextual because the prosecutor failed to strike several white jurors who similarly failed to complete their questionnaires. Id.

While comparative juror analysis is in some cases helpful in discovering discrimination, here the proposed comparison is inapt because writing a question mark in response to a question is markedly different from simply not answering the question or having poor handwriting. As we previously stated, “the prosecutor’s statement ten reasonably be construed as a general distrust of Hilton based on his refusal to answer questions.” McDaniels, 760 F.3d at 946. By contrast, leaving the question blank might not trigger that same distrust. In that situation, the prosecutor could reasonably think that the juror mistakenly overlooked the question, which cannot be said for someone who affirmatively takes issue with the question by writing a question mark. Similarly, an illegible answer hardly conveys to the prosecutor that the juror takes issue with the question, but at most suggests carelessness.

Petitioners take their argument a step further by arguing that the prosecutor’s failure to ask any of the four jurors about their answers on the race question suggests that he was not really concerned about the answers and was instead fixated on race. But, again, affirmatively taking issue with a question (by, for instance, placing a question mark next to a question) is qualitatively different from merely not answering the question (either by writing nothing in the space or writing illegibly). Thus, while Petitioners subjectively view the four responses as having the same nature, a reasonable prosecutor might find no correlation between them and, thus, would never have thought to question each juror about their response to the race question.

Petitioners have not “proven purposeful discrimination” as to juror Hilton; therefore they have not established that the CCA’s decision resulted in an unreasonable determination of the facts. Shirley v. Yates, 807 F.3d 1090, 1107 (9th Cir. 2015) (quoting Paulino v. Harrison, 542 F.3d 692, 699 (9th Cir. 2008)).

B.

The next prospective juror we consider is juror Andrews. As a preliminary matter, the prosecutor observed that “the only way we would even know that she’s African-American is because she put on her. questionnaire that she’s of Caucasian race, African-American, [and] I think American Indian [sic]. But physically to look at her, you would not be able to tell she’s any parts African-American.” In our prior panel opinion we explained that this statement was ultimately an “unpersuasive attempt to dispel the inference of racial motivation.” McDaniels, 760 F.3d at 944. Nothing in the additional documents which we have been instructed to consider changes that analysis, so we again conclude that nothing in the prosecutor’s statement evinces racial animus.

As for why he struck Andrews from the jury, the prosecutor explained that when Andrews “was in court speaking, she seemed very hesitant, very kind of intimidated, just kind of weird as she responded to all our questions, and it didn’t seem as if she fully comprehended the situation as it was going on.” Petitioners take issue with the prosecutor’s assertion that Andrews did not appear to fully comprehend the situation. They argue that the voir dire transcript demonstrates that she understood the situation just fine. The following is the relevant portion of the transcript where Petitioner McDaniels’s attorney is questioning Andrews:

Q: Ms. Andrews, do you understand that—do you have a problem with— do you understand that these two people are presumed to be innocent?
A: No.
Q: You’ve heard that before?
A: They’re presumed to be innocent.
Q: Presumed to be innocent as they sit here?
A: They’re presumed to be innocent until the -facts are presented, the evidence that shows that they’re guilty.
Q: They’re presumed to be innocent until and unless the district attorney can prove guilt beyond a reasonable doubt. You’ll be given an instruction that says pretty much that later I guess. Again, do you have a problem with that?
A: (shaking head from side to side.) No.
Q: Also let me remind you I represent Mr. McDaniels right here. I don’t represent Mr. Jenkins. So we have two defendants. Each defendant has to be determined separately. Do you understand that?
A: Yes.
Q: Can you do that?
A: Yes.
Q: Are you aware that any defendant in any criminal trial in this country has an absolute constitutional right not to testify, and the jury cannot consider, take that into account, can’t consider it, can’t use it. Are you aware of that?
A: Yes.
Q: Do you have a problem with that?
A: No.

In reviewing this transcript, the CCA held that “[t]he record supports the prosecutor’s justification” because Andrews answered “no” in response to the question of whether she understood that the Petitioners were to be presumed innocent. People v. Jenkins, 2003 WL 22881662, at *4 (Cal. Ct. App. Nov. 25, 2003) (unpublished). Petitioners argue that it was unreasonable for the CCA to reach this conclusion because Petitioner McDaniels’s attorney used, as they characterize it, “absurdly confusing syntax.” We can see both sides. The CCA was not incorrect in observing that Andrews did answer “no” to the question about the presumption of innocence. But, as Petitioners point out, Petitioner McDaniels’s attorney rephrased his question several times, which could have made it difficult to follow.

But in any event, we rejected Petitioners’ arguments in our prior panel opinion. There, we concluded that “[t]he transcript itself does not so clearly show that Andrews was not hesitant, intimidated, or inattentive such that we could here hold that the state court was objectively unreasonable in crediting the prosecutor.” McDaniels, 760 F.3d at 944. Though the en banc court vacated our prior opinion, it did so to allow us to reconsider Petitioners’ claims in light of the juror questionnaires and the transcript of the first day of voir dire.

Thus, Petitioners must show that something in the additional documents which we may now consider changes our earlier analysis, otherwise there is no reason for us reconsider our holding. They have failed to do so. Much of what is in their supplemental brief re-litigates the arguments we earlier rejected. Petitioners’ only new argument is that several non-African-American jurors were empaneled even though they were unable to answer relatively straightforward questions. For instance, they cite one juror questionnaire in which the juror answered “No” to the question of whether she had ever been the victim of a crime, but then in the next question indicated that her car and purse were stolen and her house burglarized. If that was all that was on the questionnaire it might indeed appear that the juror was unable,to straightforwardly answer whether she had been the victim of a crime. But Petitioners conveniently , omit the fact that next to her answer of “No” to., the first question, the juror -wrote “(not violent).” Thus, when one has the full picture, there is little doubt that the juror understood the first question to be asking whether she herself had been involved in a crime and understood the second question to be asking whether any of her property had been involved in a crime. With that understanding and context, her answers make complete sense.

As a different example, Petitioners cite another juror’s questionnaire in which the juror wrote “Nee [sic] surgery” in response to the questionnaire’s direction that “If you are disabled please state the nature of your disability.” But we fail to see how the juror’s misspelling and failure to elaborate on his medical condition is on a par with the prosecutor’s demeanor-based rationale for striking Andrews..The prosecutor’s reason for challenging Andrews did not rest alone on what he perceived to be Andrews’s inability to answer the presumption of innocence question, but was grounded additionally on his perception that “she seemed very hesitant, very kind of intimated, just kind of weird as she responded to all our questions.” Those visual cues that the prosecutor perceived are quite different from the misspelling and failure to elaborate that Petitioners point to in the juror questionnaire.

Petitioners have failed to establish that the CCA’s decision as to juror Andrews resulted in an unreasonable determination of the facts.

C.

Last, we address Petitioners’ contentions regarding jurors Reeves and Woods. Petitioners have not pointed to anything in the juror questionnaires or the transcript of the first day of voir dire that would show racial ■ discrimination. Rather, they contend that their arguments pertaining to juror Hilton shed “new light” on the prosecutor’s challenging of Reeves and Woods. But, as we hold above, Petitioners have failed to show that the prosecutor engaged in racial discrimination by challenging Hilton. Therefore, their arguments as to Reeves and Woods must necessarily fail since in reality there is no “new light” under which we should view their arguments. We therefore reaffirm the holdings of our prior panel opinion that Petitioners have not shown that the CCA erred in rejecting their Batson claims as to jurors Reeves and Woods. McDaniels, 760 F.3d at 946.

IV.

After considering the juror question-names and first day of voir dire, as instructed by the en banc court, we hold that the California Court of Appeal’s decision did not result in “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 22 U.S.C. § 2254(d)(2). We therefore affirm the district court’s decisions denying Petitioners habeas relief.

AFFIRMED.

      . In addition to Petitioners’ Batson claims, the en banc court remanded for our consideration of one of Jenkins’s ineffective assistance of counsel claims. We address that claim in a separate disposition that will be concurrently filed with this opinion.


source: Caselaw Access Project

author: MURGUIA, Circuit Judge: WATFORD, Circuit Judge,

license: Public Domain

text:
    Kevin ZIOBER, an individual, Plaintiff-Appellant, v. BLB RESOURCES, INC., a California Corporation, Defendant-Appellee.
    No. 14-56374
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 5, 2016 Pasadena, California
    Filed October 14, 2016

      Peter Romer-Friedman (argued) and R. Joseph Barton, Cohen Milstein Sellers & Toll PLLC, Washington, D.C.; Kathryn S. Piscitelli, Orlando, FL; Thomas G. Jar-rard, Law Office of Thomas Jarrard, PLLC, Spokane, WA; for Plaintiff-Appellant.
    Lonnie D. Giamela (argued), Jimmie E. Johnson, and Nathan V. Okelberry, Fisher & Phillips LLP, Los Angeles, CA, for Defendant-Appellee.
    Before: MARY H. MURGUIA and PAUL J. WATFORD, Circuit Judges, and SUSAN R. BOLTON, District Judge.

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

   Concurrence by Judge WATFORD

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 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 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.

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 servieemembers 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, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see also CompuCredit Corp. v. Greenwood, — U.S. -, 132 S.Ct. 665, 669, 181 L.Ed.2d 586 (2012). That pro-arbitration policy extends to arbitration agreements in the employment contracts of non-transportation workers. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). The FAA requires courts to “ ‘rigorously enforce’ arbitration agreements according to their terms,” including agreements to arbitrate claims arising under federal statutes. Am. Express Co. v. Italian Colors Rest., — U.S. -, 133 S.Ct. 2304, 2309, 186 L.Ed.2d 417 (2013) (quoting Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985)); see also Compu-Credit, 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, 107 S.Ct. 2332, 96 L.Ed.2d 185 (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, 111 S.Ct. 1647, 114 L.Ed.2d 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, 111 S.Ct. 1647 (internal quotation marks omitted); see also 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 258, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009).

In this case, Ziober argues that the plain text and legislative history of USER-RA 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., 830 F.3d 1320 (11th Cir. 2016) (holding that a USERRA claim was 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, 107 S.Ct. 2332. 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, 111 S.Ct. 1647. 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 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). 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, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985); see also Circuit City, 532 U.S. at 123, 121 S.Ct. 1302. 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).

The Supreme Court’s decision in Com-puCredit forecloses the argument that US-ERRA 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 US-ERRA, 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 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, 107 S.Ct. 2332. 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 USER-RA “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 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, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946); see also Ala. Power Co. v. Davis, 431 U.S. 581, 584, 97 S.Ct. 2002, 52 L.Ed.2d 595 (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, 97 S.Ct. 2002. 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, 105 S.Ct. 3346. Further, the enforcement of an arbitration agreement does not undermine the “social policies” underlying a given statute. Gilmer, 500 U.S. at 27-28, 111 S.Ct. 1647. Instead, arbitration “can further” the same “broader social purposes” that litigation seeks to promote. Id. at 28, 111 S.Ct. 1647.

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, 830 F.3d at 1327-28 (affirming a district court’s order compelling arbitration of USERRA claims after severing from the arbitration agreement terms that violated the statute).

B.

Even if we were to conclude that USER-RA’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, 111 S.Ct. 1647. Ziober relies largely on a paragraph in a House Committee Report concerning the scope of § 4302(b). The paragraph states:

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 [66 S.Ct. 1105], 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 [78 S.Ct. 1222, 2 L.Ed.2d 1305] (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 [Air Lines], Inc., 469 F.Supp. 1060, 1064-65 (S.D. Fla. 1978).

H.R. Rep. No. 103-65(1), 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 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, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (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, 111 S.Ct. 1647 (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 prevent the enforcement of the arbitration agreement he signed.

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 Ziobér’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 (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). 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 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.

Com/puCredM 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 non-waiver 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 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, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011); Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S.Ct. 1105, 90 L.Ed. 1230 (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 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.

      . 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, 122 S.Ct. 754, 151 L.Ed.2d 755 (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”).

      . 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. 830 F.3d at 1326.

      . 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.