Charles Middleton, Sr. v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2806
C HARLES C. M IDDLETON, S R.,
Plaintiff-Appellant,
v.
C ITY OF C HICAGO,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 4206—James F. Holderman, Chief Judge.
A RGUED A PRIL 14, 2009—D ECIDED A UGUST 24, 2009
Before K ANNE, R OVNER, and W OOD , Circuit Judges.
K ANNE, Circuit Judge. Charles Middleton served in
the United States Air Force from 1960 until he was honor-
ably discharged in December 1989. Almost four years
later, in 1993, he applied for two positions with the City
of Chicago. Despite interviewing for both positions,
Middleton received neither. The City informed him in
November 1994 that he had not been selected for the
first job, and he never heard back about the other.
2 No. 08-2806
Nearly thirteen years later, on July 26, 2007, Middleton
sued the City, claiming that it refused to hire him
because of his military service in violation of the Uni-
formed Services Employment and Reemployment Rights
Act of 1994 (USERRA), Pub. L. No. 103-353, 108 Stat. 3149
(codified as amended at 38 U.S.C. § 4301 et seq.). On
June 23, 2008, the district court held that Middleton’s
USERRA claim was barred by the four-year “catch all”
statute of limitations provided by 28 U.S.C. § 1658(a), and
it granted the City’s motion to dismiss his fourth
amended complaint. Middleton filed his notice of appeal
on July 18.
Approximately three months later, on October 10, 2008,
Congress enacted the Veterans’ Benefits Improvement
Act (VBIA), Pub. L. No. 110-389, 122 Stat. 4145 (codified
in scattered sections of 38 U.S.C.). Relevant to this
appeal, the VBIA contained a provision stating that no
limitations period applies to USERRA claims: “If any
person seeks to file a complaint or claim with the
Secretary [of Labor], the Merit Systems Protection Board,
or a Federal or State court under this chapter alleging
a violation of this chapter, there shall be no limit on the
period for filing the complaint or claim.” VBIA § 311,
38 U.S.C. § 4327(b).
Middleton’s appeal raises two issues: (1) whether
§ 1658’s four-year statute of limitations barred his claim;
and (2) even if it did, whether the VBIA’s recent amend-
ment retroactively revives this lawsuit. We review
de novo the district court’s order granting a Rule 12(b)(6)
motion to dismiss based on the statute of limitations.
No. 08-2806 3
Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir. 2008). We
accept as true all factual allegations in the complaint, see
Cole v. U.S. Capital, 389 F.3d 719, 724 (7th Cir. 2004),
meaning that, for purposes of this appeal, we must
assume that the City refused to hire Middleton because
of his prior military service. Middleton’s complaint does
not allege that the City engaged in improper conduct
after November 1994, and if the four-year statute of
limitations applies and is unaffected by the VBIA, his
claim is barred.
I. Applicability of 28 U.S.C. § 1658(a) to USERRA Claims
Middleton first argues that the four-year statute of
limitations found in 28 U.S.C. § 1658 did not apply to his
USERRA claim against the City. The district court dis-
agreed and held that Middleton’s claim was indeed time-
barred. We agree with the district court.
On December 1, 1990, Congress enacted § 1658 in re-
sponse to criticism regarding the lack of a uniform
federal statute of limitations. See Jones v. R.R. Donnelley &
Sons Co., 541 U.S. 369, 377-80 (2004). Among other pur-
poses, Congress sought to minimize the federal courts’
practice of borrowing statutes of limitations from the
states. See id. The result was a “catch all” statute of limita-
tions for federal claims:
Except as otherwise provided by law, a civil action
arising under an Act of Congress enacted after
the date of the enactment of this section may not
be commenced later than 4 years after the cause
of action accrues.
4 No. 08-2806
28 U.S.C. § 1658(a). This text makes clear that any action
“arising under” a federal statute enacted after December 1,
1990, is subject to § 1658. See id.; Jones, 541 U.S. at 380.
Nearly four years later, on October 13, 1994, Congress
passed USERRA. The statute did not include an express
statute of limitations. Congress’s only reference to a
limitations period was that “[n]o State statute of limita-
tions shall apply to any proceeding under this chapter.”
USERRA § 2, 38 U.S.C. § 4323(c)(6) (1994). USERRA
did not mention the federal statute of limitations in § 1658,
nor did it expressly provide that claims under the new
law were exempt from any limitations period altogether.
At first blush, the answer to our question appears
fairly straightforward. After all, when interpreting a
statute, we must begin with its text and assume “that the
ordinary meaning of that language accurately expresses
the legislative purpose.” Engine Mfrs. Ass’n v. S. Coast
Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004) (quotations
omitted). Unless Congress expressed a clear intention to
the contrary, a statute’s language is conclusive. Lamie v.
U.S. Tr., 540 U.S. 526, 534 (2004) (“It is well established
that ‘when the statute’s language is plain, the sole
function of the courts—at least where the disposition
required by the text is not absurd—is to enforce it ac-
cording to its terms.’ ” (quoting Hartford Underwriters Ins.
Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000))).
Simply applying the language of § 1658(a) to USERRA
indicates that the latter was subject to the former: this is
a civil action; USERRA is an act of Congress; it was
enacted well after § 1658(a); and it did not “otherwise
provide” for a different limitations period.
No. 08-2806 5
As with many legal issues, however, clear solutions are
easily clouded. Middleton offers two arguments in an
attempt to salvage his thirteen-year-old USERRA claim.
First, he avers that USERRA was not “enacted after”
§ 1658, as the Supreme Court defined that phrase in
Jones, 541 U.S. 369. Second, he claims that USERRA’s
legislative history and the Department of Labor’s inter-
pretation of the law indicate that Congress never meant
for a statute of limitations to apply. In the end, the
clouds clear, and we find nothing that overcomes the
plain meaning of the statutory text.
A. USERRA Created a New Cause of Action
We must first determine whether a cause of action under
USERRA “aris[es] under an Act of Congress enacted
after” December 1, 1990. 28 U.S.C. § 1658(a). Although
Congress passed USERRA in 1994, it was the latest in a
series of federal laws seeking to protect the ability of our
veterans to obtain employment upon returning to
civilian life. According to Middleton, USERRA did not
establish a new cause of action in 1994, but instead
amended its predecessor statute, commonly referred to as
the Veterans’ Reemployment Rights Act of 1974 (VRRA).
See Pub. L. No. 93-508, § 404(a), 88 Stat. 1578, 1594 (codified
at 38 U.S.C. § 2021 et seq.) (recodified at 38 U.S.C. § 4301
et seq. by the Veterans’ Benefits Act of 1992, Pub. L. No.
102-568, § 506, 106 Stat. 4320, 4340), amended by
USERRA. Because the VRRA predated § 1658, Middleton
argues that the federal statute of limitations does not
apply.
6 No. 08-2806
In Jones, the Supreme Court held that “a cause of
action ‘aris[es] under an Act of Congress enacted’ after
December 1, 1990—and therefore is governed by § 1658’s
4-year statute of limitations—if the plaintiff’s claim against
the defendant was made possible by a post-1990 enact-
ment.” 541 U.S. at 382 (alteration in original). This principle
governs even if the new law amended a preexisting
law; Congress often creates new causes of action by
amending existing statutes, and § 1658(a) is not limited “to
entirely new sections of the United States Code.” Id. at 381.
“What matters is the substantive effect of an enactment—
the creation of new rights of action and corresponding
liabilities—not the format in which it appears in the
Code.” Id. As the Court directed, we must determine
“whether the plaintiff has alleged a violation of the rele-
vant statute as it stood prior to December 1, 1990, or
whether her claims necessarily depend on a subsequent
amendment.” Id. at 384.
To answer that question, we return to the VRRA, which
Congress passed in 1974. The VRRA provided veterans
with certain rights and protections upon their return to
the workforce, and it barred employment discrimination
based on a reservist’s military service. See Pub. L. No. 93-
508, sec. 404, § 2021(a)(B), (b)(3), 88 Stat. 1578, 1595-96
(1974). The only remedy available under the VRRA was
injunctive relief and recovery of lost wages and benefits.
Id. sec. 404, § 2022.
In 1994, Congress replaced the VRRA with USERRA “to
clarify, simplify, and, where necessary, strengthen the
existing veterans’ employment and reemployment rights
No. 08-2806 7
provisions.” H.R. Rep. No. 103-65(I), at 18 (1993) (emphasis
added), as reprinted in 1994 U.S.C.C.A.N. 2449, 2451;
see also S. Rep. No. 103-158, at 33 (1993) (noting that
USERRA “would restructure, clarify, and improve” the
VRRA (emphasis added)). Among other improvements,
if an employer engaged in willful discrimination,
USERRA permitted a plaintiff to seek liquidated damages,
a form of relief unavailable under the VRRA. See USERRA
sec. 2, § 4324(c)(1)(A)(iii). With that new provision, Con-
gress converted what had been an equitable claim into a
legal one, which brought along the corresponding right
to a jury trial. See Maher v. City of Chi., 463 F. Supp. 2d
837, 844 (N.D. Ill. 2006) (holding that liquidated
damages under USERRA are punitive and therefore
subject to trial by jury); cf. Calderon v. Witvoet, 999 F.2d
1101, 1109 (7th Cir. 1993) (holding that actions seeking
liquidated damages under a different statute are “suits
at common law” for purposes of the Seventh Amend-
ment’s right to a jury trial); Troy v. City of Hampton, 756
F.2d 1000, 1003 (4th Cir. 1985) (holding that claims
under the VRRA are equitable and a plaintiff is not
entitled to a jury trial). Consequently, USERRA estab-
lished additional rights and liabilities that did not exist
under the VRRA.
Middleton refers us to an unpublished district court
case, decided before Jones, holding that USERRA claims
were not subject to § 1658. See Akhdary v. City of Chatta-
nooga, No. 1:01-CV-106, 2002 WL 32060140 (E.D. Tenn.
May 22, 2002). In Akhdary, the district court stated, “Section
1658 applies ‘only when Congress establishes a new cause
of action without reference to preexisting law.’ The
8 No. 08-2806
USERRA does not establish a new cause of action; instead,
it amends the preexisting law of the VRRA.” Id. at *6
(citations omitted) (quoting Zubi v. AT&T Corp., 219
F.3d 220, 225 (3d Cir. 2000)). But that district court’s
reasoning is incompatible with the test the Supreme
Court announced in Jones. As the Court made clear, the
important concern is not whether an amendment refers
to preexisting law, but the amendment’s substantive
effect on the rights and liabilities of the parties. 541 U.S. at
381. After the Court decided Jones, several lower courts,
including a district court in our circuit and one in the
same district as Akhdary, have found that USERRA is
subject to the four-year limitations period in § 1658.1 See
Wagner v. Novartis Pharm. Corp., 565 F. Supp. 2d 940, 945
(E.D. Tenn. July 10, 2008) (collecting cases); Nino v. Haynes
Int’l, Inc., No. 1:05-cv-0602, 2005 WL 4889258, at *5 (S.D.
Ind. Aug. 19, 2005).
USERRA provided veterans the chance to seek previ-
ously unavailable remedies, an amendment that
materially altered the VRRA’s enforcement provision. The
rights to liquidated damages and a jury trial were not
available to Middleton under the VRRA, and USERRA
created new potential liability for the City. In his operative
1
We have not previously determined whether § 1658’s four-
year statute of limitations applies to USERRA claims. In two
cases involving a similar issue, we applied the equitable
doctrine of laches to USERRA claims. See Maher v. City of Chi.,
547 F.3d 817, 821-23 (7th Cir. 2008); Miller v. City of Indianapolis,
281 F.3d 648, 653-54 (7th Cir. 2002). In both Maher and Miller,
the court did not raise or mention the applicability of § 1658(a).
No. 08-2806 9
complaint, Middleton alleged that the City’s “violation of
USERRA was willful,” and he sought all “just and proper”
relief. Such relief encompasses the new remedies that
Congress provided for veterans in USERRA. Applying
the Supreme Court’s reasoning in Jones, Middleton’s
current claim was “made possible by” and “necessarily
depend[s]” on USERRA, meaning it arose under a cause
of action enacted after § 1658. See 541 U.S. at 382, 384.
B. Legislative History and Agency Interpretation of USERRA
Perhaps recognizing the difficulty of his textual argu-
ment, Middleton also turns to USERRA’s legislative
history to persuade us that Congress intended that no
statute of limitations apply. But the only ambiguity we
find concerning USERRA is in its legislative history, not
in the statute’s actual language. And where a statute’s
language is clear, we look to the legislative history only
to determine whether Congress expressed a clear
intention to the contrary of the literal application of that
language. See Bowlds v. Gen. Motors Mfg. Div. of the Gen.
Motors Corp., 411 F.3d 808, 811 (7th Cir. 2005). We find no
contrary intention here.
Middleton cites congressional reports to support his
argument, which are often of limited use in discerning
congressional intent. See Conroy v. Aniskoff, 507 U.S. 511,
518-19 (1993) (Scalia, J., concurring in the judgment). Even
so, the reports to which Middleton refers us speak solely
to Congress’s intention that USERRA not be subject to
state statutes of limitations. See H.R. Rep. No. 103-65(I), at
10 No. 08-2806
39;2 S. Rep. No. 103-158, at 70.3 Congress expressed no
desire for USERRA claims to be immune from § 1658(a)’s
limitations period. Of course, under USERRA’s predeces-
sor, the VRRA, the express provision that no state statute
of limitations should apply effectively meant that no
statute of limitations applied—there was no federal
statute of limitations until 1990. But USERRA came four
years after § 1658, and Congress was well aware that it
had recently enacted a catch-all limitations period gov-
erning any claim under a subsequent act. We see no
clear congressional intent contrary to the statutory lan-
guage.
Middleton also asks us to adopt the Department of
Labor’s interpretation of USERRA. The DOL is charged
with promulgating rules for administering USERRA, 38
U.S.C. § 4331(a), and its position has been that the law
is not subject to § 1658, see USERRA Preamble, 70 Fed. Reg.
75,246, 75,287-88 (Dec. 19, 2005). In the preamble to its
final rule (codified at 20 C.F.R. § 1002.311), the DOL
2
“[The applicable provision] would reaffirm . . . that no State
statute of limitation shall apply to any action under this
chapter. It is also intended that state statutes of limitations not
be used even by analogy.” H.R. Rep. No. 103-65(I), at 39 (em-
phases added).
3
“[The applicable provision] would provide . . . that no State
statute of limitations would apply to any proceeding under
[USERRA]. . . . [T]he Committee believes that . . . State
statutes of limitations should not be used even for guidance
in determining what is undue delay.” S. Rep. No. 103-158, at
70 (emphases added).
No. 08-2806 11
noted that it “has long taken the position that no Federal
statute of limitations applied to actions under USERRA”
but that at least one district court had reached the
opposite conclusion. USERRA Preamble, 70 Fed. Reg. at
75,287. After considering comments on the issue, the
DOL stated that it would maintain its original position
that no statute of limitations applied to USERRA, but it
noted that “the issue will ultimately be resolved by
the courts.” Id. at 75,288. The DOL then offered the fol-
lowing advice:
Until the issue is resolved, potential USERRA
plaintiffs would be well advised to file USERRA
claims within section 1658’s four-year period.
Accordingly, the Department has amended section
1002.311 to acknowledge that at least one court
has held that 28 U.S.C. 1658 applies to actions
under USERRA, and that individuals asserting
rights under USERRA should determine whether
the issue of the applicability of the Federal four-
year statute of limitations has been resolved and,
in any event, act promptly to preserve their
rights under USERRA.
Id.
We disagree with Middleton’s argument that we
should defer to the DOL’s interpretation. First, we defer
to an agency’s reasonable interpretation of a statute
“only where ‘Congress has not directly addressed the
precise question at issue’ through the statutory text.” Nat’l
Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644,
665 (2007) (quoting Chevron U.S.A., Inc. v. Natural Res.
12 No. 08-2806
Def. Council, Inc., 467 U.S. 837, 843 (1984)). That Congress
did not articulate a statute of limitations in USERRA
perhaps suggests some ambiguity, but there is no ambigu-
ity in the limitations provision of § 1658, which applies
to any act of Congress enacted after December 1, 1990,
unless that law otherwise provides. Congress did not
“otherwise provide” in USERRA. Second, in explaining its
position in the preamble, the DOL relied heavily on pre-
Jones case law and the inconclusive legislative history
we have just discussed. See USERRA Preamble, 70 Fed.
Reg. at 75,287-88. Third, although the preamble to 20 C.F.R.
§ 1002.311 states that the DOL believes no statute of
limitations applies to USERRA, the rule itself is much
less certain: “USERRA does not have a statute of limita-
tions, and it expressly precludes the application of any
State statute of limitations.” 20 C.F.R. § 1002.311. The
DOL is correct that USERRA “does not have” a limitations
period—Congress did not include an express statute
of limitations within the statute. The DOL’s rule then
hedges. It explains that at least one court has applied
§ 1658’s four-year statute of limitations, that laches
may also apply, that any individual with a USERRA
claim should determine whether this issue has been
resolved by the courts, and that the individual should
act promptly. Id. The DOL’s uncertainty on this issue
further persuades us to withhold any deference its inter-
pretation might otherwise be due.
Accordingly, USERRA’s legislative history and the
DOL’s interpretation of the law do not convince us that
Congress intended to immunize USERRA claims from
§ 1658.
No. 08-2806 13
C. Section 1658 Applies to USERRA
We recognize Congress’s desire to protect the employ-
ment and reemployment rights of our many veterans.
Our country’s population owes a great debt to the men
and women who have served to protect us. We also
acknowledge that USERRA is to be liberally construed.
Davis v. Advocate Health Ctr. Patient Care Express, 523 F.3d
681, 683-84 (7th Cir. 2008). But we are charged with
interpreting the laws that Congress enacts based on the
language that it uses. Congress enacted USERRA well
after it created the four-year limitations period in § 1658,
and we presume that Congress knew that any new
federal statute would be subject to such a limitation
unless it “otherwise provided by law.” Thus, if
Congress wanted a different limitations period to apply
to USERRA—or none at all—it needed to say so. And
this is precisely what Congress did in 2008, when it
passed the Veterans’ Benefits Improvement Act, bringing
us to our next question—whether the VBIA applied to
Middleton’s claim.
II. The Retroactive Application of the VBIA
Middleton’s next argument is that even if § 1658
applied to his USERRA claim when he filed it, Congress’s
recent enactment of the VBIA saves his lawsuit. The
district court granted the City’s motion to dismiss on
June 23, 2008; Middleton filed his notice of appeal on
July 18; and the VBIA became effective on October 10.
Middleton now claims that Congress enacted the VBIA
to clarify that USERRA was never subject to any statute
14 No. 08-2806
of limitations, and, consequently, the new provision
should revive his claim. We disagree.
A. The VBIA’s Statutory Language
We turn first to the language of the disputed legislation.
The VBIA struck the provision in USERRA that
prohibited applying state statutes of limitation, formerly,
as amended, at 38 U.S.C. § 4323(i), and replaced it with
the following:
If any person seeks to file a complaint or claim
with the Secretary [of Labor], the Merit Systems
Protection Board, or a Federal or State court
under this chapter alleging a violation of this
chapter, there shall be no limit on the period for
filing the complaint or claim.
Pub. L. No. 110-389, § 311(f)(1), 122 Stat. 4145, 4164 (2008)
(codified at 38 U.S.C. § 4327(b)).
As we detailed above, our first stop in interpreting
legislation is the language that Congress employed, Engine
Mfrs. Ass’n, 541 U.S. at 252, and it is well established that
a court should not apply a newly enacted statutory pro-
vision retroactively unless Congress has clearly mandated
such an extension, see Hughes Aircraft Co. v. United States
ex rel. Schumer, 520 U.S. 939, 946-47 (1997); Killingsworth v.
HSBC Bank Nev., N.A., 507 F.3d 614, 619-20 (7th Cir.
2007) (discussing the Supreme Court’s decision in
Landgraf v. USI Film Prods., 511 U.S. 244 (1994), and the
general presumption of “antiretroactivity” in cases where
a statute’s temporal reach is ambiguous); Bowlds, 411 F.3d
No. 08-2806 15
at 811; Diaz v. Shallbetter, 984 F.2d 850, 852 (7th Cir. 1993)
(“There is [a] venerable principle that changes in statutes
do not apply to pending cases unless the legislature so
commands, explicitly.”).
The VBIA says nothing about whether § 4327(b) applies
retroactively. In fact, the only hint in the text suggests that
it applies prospectively: “If any person seeks to file a com-
plaint or claim . . . .” Sec. 311(f)(1), § 4327(b) (emphasis
added). Congress was aware that for § 4327(b) to have
retroactive effect, it needed to say so expressly, and the
absence of any such express language in the text
indicates that Congress chose not to do so.
More importantly, however, is that even if we could
interpret § 4327(b) to apply to some USERRA claims filed
before October 10, 2008, this would not save Middleton’s
thirteen-year-old cause of action, which was already time-
barred when § 4327(b) took effect. A plaintiff may over-
come the general presumption against retroactivity, but
doing so is “especially tough” when the amended law
extends the time within which a plaintiff must file a
lawsuit. Diaz, 984 F.2d at 852.
We typically presume that a newly extended statute of
limitations does not revive a previously barred claim. See
Vill. of Bellwood v. Dwivedi, 895 F.2d 1521, 1527 (7th Cir.
1990) (“In the absence of evidence of a contrary legisla-
tive purpose, subsequent extensions of a statutory limita-
tion period will not revive a claim previously barred.”
(quotations omitted)); cf. Hughes Aircraft Co., 520 U.S. at
950 (noting that the extension of a statute of limitations
after the preexisting period of limitations has expired
“impermissibly revives a moribund cause of action”).
16 No. 08-2806
“Laws enlarging the statute of limitations traditionally
are applied prospectively; sometimes courts even hint
that legislatures lack the power to revive claims that
have become barred by lapse of time.” Diaz, 984 F.2d at
852-53 (citing Bradley v. Sch. Bd. of Richmond, 416 U.S. 696,
720 (1974)); see also Berman v. Blount Parrish & Co., 525 F.3d
1057, 1058-59 (11th Cir. 2008) (refusing to apply an ex-
tended limitations period for certain securities fraud
cases, added by § 804(a) of the Sarbanes-Oxley Act of
2002, to claims previously time-barred, and collecting
cases, including our own in Foss v. Bear, Stearns & Co.,
394 F.3d 540, 542 (7th Cir. 2005)).
Middleton asks us to apply § 4327(b) to revive a time-
barred claim, but he has presented nothing to overcome
our presumption against doing so. Congress said
nothing about retroactivity, and under the general rule
we have just stated, we cannot apply § 4327(b) to his
thirteen-year-old USERRA claim. Because Middleton
alleged conduct occurring more than four years before
Congress enacted the VBIA, we need not decide whether
§ 4327(b) applies retroactively to a claim that accrued
within the four years preceding the VBIA.
B. Whether the VBIA Clarified or Altered Existing Law
To avoid this result, Middleton argues that the VBIA
merely clarified, rather than altered, existing law. Such
legislation is not typically subject to a presumption
against retroactivity and is applied to all cases pending
on the date of enactment. See, e.g., ABKCO Music, Inc. v.
No. 08-2806 17
LaVere, 217 F.3d 684, 689 (9th Cir. 2000) (“Normally, when
an amendment is deemed clarifying rather than substan-
tive, it is applied retroactively.” (quotations omitted));
Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1283
(11th Cir. 1999) (“[C]oncerns about retroactive applica-
tion are not implicated when an amendment . . . is deemed
to clarify relevant law rather than effect a substantive
change in the law.”); cf. Clay v. Johnson, 264 F.3d 744, 749
(7th Cir. 2001) (noting that an agency rule clarifying an
unsettled area of law may be applied to case at hand). A
number of factors may indicate whether an amendment
is clarifying rather than substantive: whether the
enacting body declared that it was clarifying a prior
enactment; whether a conflict or ambiguity existed prior
to the amendment; and whether the amendment is con-
sistent with a reasonable interpretation of the prior en-
actment and its legislative history. Piamba Cortes, 177
F.3d at 1283-84; see also Liquilux Gas Corp. v. Martin Gas
Sales, 979 F.2d 887, 890 (1st Cir. 1992).
We disagree with Middleton that the VBIA was
clarifying legislation. As we explained in the first portion
of our opinion, § 1658 applied to USERRA, and the text
of the two statutes was not ambiguous, leaving nothing
for Congress to “clarify.” Nor is the VBIA’s amendment
a reasonable interpretation of USERRA, which was
silent on whether § 1658 should apply, or its legislative
history, which contained nothing to contradict the clear
language of § 1658. Rather than “clarifying” that no
statute of limitations applied to USERRA, the 2008 Con-
gress substantively changed the law so that § 1658
would not apply.
18 No. 08-2806
We find the text of § 4327(b) to be unambiguous. It
does not mention clarification or retroactivity, and we
need not turn to the legislative history of the provision.
Even if, however, we peeked at that history to deter-
mine whether a literal interpretation of the language
would contravene Congress’s intent, see Bowlds, 411 F.3d
at 811, we find nothing to convince us that the VBIA
applies to Middleton’s claim. First, reliance on a legisla-
ture’s observations regarding a prior legislature’s intent
is of marginal utility at best. See Consumer Prod. Safety
Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 117 (1980)
(noting “the oft-repeated warning that the views of a
subsequent Congress form a hazardous basis for
inferring the intent of an earlier one.” (quotations omit-
ted)); see also Atchison, Topeka & Santa Fe Ry. Co. v.
Blanchette, 628 F.2d 1011, 1014 (7th Cir. 1980) (“[T]he views
of a later Congress cannot be accorded the weight of
contemporary legislative history in a consideration of
the intent of an earlier one.” (quotations omitted)).
Second, the only indication that perhaps Congress
intended to clarify USERRA or that the VBIA should have
retroactive effect came in a Senate report:
Subsection 302(f) of the Committee bill would
clarify that the original intent of Congress was
that USERRA would not be subject to a federal or
state statute of limitations period and specifically
states that there is no time limit for a person to
file a complaint . . . . The application of a federal
statute of limitation period under USERRA is
inconsistent with the intent of Congress . . . .
No. 08-2806 19
S. Rep. 110-449, at 26 (2008), as reprinted in 2008
U.S.C.C.A.N. 1722, 1748-49. Although Congress used the
word “clarify,” its act must also comport with other
attributes of “clarifying” legislation to avoid being a
substantive change in the law. We are hesitant in this
case to afford that single word more weight than it de-
serves. The VBIA’s legislative history says nothing re-
garding retroactivity. That the 2008 Congress believed
USERRA to be unconstrained by a statute of limitations
from birth is clear, but the 2008 Congress did not state
that its amendment should apply to all claims.
Furthermore, Congress did not express any intent to
clarify USERRA in the statute itself. We proceed with
caution when Congress declares its intent to clarify a law
in the legislative history rather than the amendment’s text.
See Piamba Cortes, 177 F.3d at 1284 (“As a general rule, ‘[a]
mere statement in a conference report of [subsequent]
legislation as to what the Committee believes an earlier
statute meant is obviously less weighty’ than a statement
in the amendment itself.” (alterations in original) (quoting
Consumer Prod. Safety Comm’n, 447 U.S. at 118 n.13)). In
Brown v. Thompson, the Fourth Circuit held that certain
amendments were clarifying, noting that “[m]ost signifi-
cant to our determination here, Congress formally de-
clared in the titles of the relevant subsections of [the
amending act] that the amendments of [the original act]
were ‘clarifying’ and ‘technical,’ ” and that Congress
“expressly provided in [the amending act] that these
technical and clarifying amendments be made effective
‘as if included in the enactment’ of the [original act].”
374 F.3d 253, 259 (4th Cir. 2004). The VBIA contains no
such language.
20 No. 08-2806
Indeed, as the City points out, Congress has con-
sidered similar amendments that would have expressly
provided for retroactive application of the VBIA. See, e.g.,
S. 3432, 110th Cong. § 7 (as introduced by Sens. Casey,
Kennedy, and Obama, Aug. 1, 2008) (specifically entitled
“Clarification that USERRA Has No Statute of Limita-
tions,” and stating that the amendment shall apply “to
all actions or complaints filed under [USERRA] that are
pending on or after the date of the enactment of this
Act”). Congress knew how to make the VBIA retroactive,
and it chose not to do so.
Without guidance from Congress regarding the effect
of the VBIA on pending claims, there is nothing to over-
come both the natural meaning of § 4327(b)’s text and
our general presumption that an amendment to a statute
of limitations should not apply retroactively. The VBIA
does not apply to Middleton’s claim.
IV. Conclusion
Congress enacted USERRA nearly four years after
enacting § 1658, and it did not include in USERRA a statute
of limitations or a provision that no limitations period
should apply. Accordingly, USERRA is subject to § 1658.
Congress, recognizing that USERRA did not discuss
the federal statute of limitations, passed the VBIA to
provide expressly that no statute of limitations shall apply.
The legislature, however, stopped short of bestowing
retroactive effect upon the new law, and we decline to
extend it without a clear directive. Therefore, we A FFIRM
No. 08-2806 21
the district court’s decision granting the City’s motion
to dismiss.
8-24-09