     Case: 12-41040   Document: 00512412336     Page: 1    Date Filed: 10/17/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                               October 17, 2013

                                 No. 12-41040                    Lyle W. Cayce
                                                                      Clerk

JOEL BRADBERRY,

                                     Plaintiff-Appellant
v.

JEFFERSON COUNTY, TEXAS,

                                     Defendant-Appellee



                Appeal from the United States District Court
                      for the Eastern District of Texas


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Joel Bradberry brought suit against his former employer, the Jefferson
County Sheriff’s Department. He alleged that after fulfilling his two-week
training obligation with the United States Army Reserve, he was terminated in
violation of the Uniformed Services Employment and Reemployment Rights Act
(“USERRA”), 38 U.S.C. §§ 4301-4335, and TEXAS GOVERNMENT CODE §§ 613.001-
613.023. Bradberry moved for partial summary judgment on the ground that
Jefferson County was collaterally estopped from relitigating facts determined in
a state administrative proceeding. The district court denied the motion but
granted Bradberry’s request to certify its order for appeal pursuant to 28 U.S.C.
§ 1292(b). We agreed to take the appeal. We AFFIRM.
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                                 No. 12-41040

                     FACTS AND PROCEDURAL HISTORY
      Bradberry was employed by Jefferson County as a corrections officer from
February 2007 to December 2008. During that time, he also was a member of
the United States Army Reserve. Bradberry was ordered to report for his
annual Reserve training from September 1 through September 12, 2008, and
was scheduled to return to civilian work on September 13. He provided a copy
of his orders to Jefferson County prior to reporting for military duty. Bradberry
did not report back to work until the evening of September 16, missing scheduled
work shifts on September 13 and 14.
      According to Bradberry, as a result of Hurricane Ike’s imminent landfall
on September 13, Army Captain Dwayne Rose orally extended his orders and
required him to go to Abilene, Texas, and remain there until released.
Bradberry contacted Jefferson County on September 12 to report that he would
not be at work the next day because of his new military orders. Bradberry was
released from duty at 7:00 a.m. on September 15, and he reported to work the
next day. He was scheduled for a midnight shift on September 17.
      Jefferson County ordered Bradberry to provide documentation about the
extension of his military duty to include September 13-16, the dates not covered
by his original orders. Although Bradberry provided memoranda from his
commanding officers, he did not provide the type of documentation the County
requested. The County initiated an internal investigation into Bradberry’s
conduct, then terminated him in December 2008.
      The County’s explanation of the basis for Bradberry’s termination was in
an F-5 Report of Separation of Licensee. A Texas law enforcement agency is
required to file an F-5 Report on all officers when they leave employment with
the agency. The report is filed with the Texas Commission on Law Enforcement
Officers Standards and Education (“TCLEOSE”). The F-5 Report describes the
circumstances under which an officer left the agency, and whether he was

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                                      No. 12-41040

honorably discharged, generally discharged, or dishonorably discharged. TEX.
OCC. CODE § 1701.452. The F-5 Report becomes part of the officer’s permanent
TCLEOSE record.           If the officer seeks employment with another law
enforcement agency, the agency is required to review employment termination
reports before hiring the officer. 37 TEX. ADMIN. CODE § 217.7(a)(1).
       Bradberry’s F-5 Report categorized his discharge as “dishonorable,” saying
he was “terminated for an administrative violation(s) of truthfulness or
insubordination.” An explanation of separation attached to the report stated
that Bradberry was insubordinate, absent without leave, and failed to answer
questions truthfully or provide documentation and relevant statements to the
Sheriff or any supervisor in the departmental investigation when ordered.
       An officer who receives an F-5 Report “may contest information contained
in the report” by filing a petition with the TCLEOSE, which then refers the
matter to the State Office of Administrative Hearings. TEX. OCC. CODE §
1701.4525(a).1 An administrative law judge (“ALJ”) will conduct a hearing to
determine whether “the alleged misconduct occurred by a preponderance of the
evidence . . . . If the alleged misconduct is not supported by a preponderance of
the evidence, the administrative law judge shall order the report to be changed.”
TEX. OCC. CODE § 1701.4525(e).            Bradberry utilized these procedures.            In
September 2009, an ALJ found insufficient evidence and ordered the County and
TCLEOSE to amend the F-5 Report “to show that [Bradberry] was terminated
at will,” and required that the explanation attached to the F-5 Report “should
read he was terminated for a disagreement over military leave.”
       Bradberry had also filed a complaint with the United States Department
of Labor. See 38 U.S.C. § 4322(a). In March 2009, the assistant director in
Texas of the Veterans’ Employment and Training Service which is authorized by

       1
        The TCLEOSE order stated: “The subject of this case is the accuracy of the F-5 report
concerning Mr. Bradberry’s departure from the Sheriff’s Department.”

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Section 4321 of Title 38 to review such complaints, found that the County, “while
not intentionally, did violate” Section 4311 (c) by discriminating against him due
to his military service. Later in March, the same assistant director sent a memo
to the Attorney General, recommending suit be brought against the County for
violations of Section 4311 (a), (b), and (c). In August 2009, the Attorney General
declined to bring suit, but a declination does not bar a claimant from bringing
his own suit. See 38 U.S.C. § 4323(a)(3)(C).
       In May 2011, Bradberry filed suit in federal court, claiming the County
violated USERRA and Chapter 613 of the Texas Government Code when it
terminated his employment.2 His motion for partial summary judgment relied
on the doctrine of collateral estoppel to prevent the County from relitigating the
ALJ’s findings. The court declined to apply collateral estoppel and denied the
motion. At Bradberry’s request, the court certified the case for interlocutory
appeal pursuant to Section 1292(b). The court certified the following questions:
(1) whether collateral estoppel bars relitigation of the ALJ’s findings in federal
court; (2) whether USERRA preempts Chapter 613; and (3) whether a federal
district court can exercise subject-matter jurisdiction over a claim under Chapter
613. We granted Bradberry’s motion for leave to appeal.
                                        DISCUSSION
       I. USERRA
       The parties on appeal have argued issues that arise under a provision of
USERRA that bars employment discrimination on the basis of military service.
38 U.S.C. § 4311(a). They also mention the next section of USERRA, which
mandates reemployment of someone “whose absence from a position of
employment is necessitated” by military service. 38 U.S.C. § 4312(a). As we will


       2
        The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. §
636(c). Because the magistrate judge is a judicial officer of the district court, we will refer to
the magistrate judge’s rulings as being those of the “district court.”

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discuss, “reemployment” includes a return to a civilian position after even a brief
interruption for military duty.
      We step back briefly from the issues of this case to get some perspective
on the congressional enactment. USERRA was adopted in 1994 as the first
significant modification in protection of veterans’ employment rights in 50 years.
“Veterans’ Law Note,” ARMY LAWYER 40 (Dec. 1994). Almost eleven years after the
enactment, the Department of Labor adopted regulations pursuant to its
statutory authority. 38 U.S.C. § 4331(a); 20 C.F.R. §§ 1002.1-1002.314.
      Congress enacted USERRA for three stated purposes: “(1) to encourage
noncareer service in the uniformed services” by reducing employment
disadvantages; “(2) to minimize the disruption to the lives of persons performing”
military service, their employers and others “by providing for the prompt
reemployment of such persons upon their completion of such service; and (3) to
prohibit discrimination against persons because of their service in the uniformed
services.” 38 U.S.C. § 4301(a). All three purposes are relevant in this case.
      Two separate sections of USERRA apply to this case. One concerns
discrimination against those in the military when making employment decisions.
38 U.S.C. § 4311. The other protects the employment of those returning to their
former civilian jobs after temporary military duty. § 4312. These sections
provide distinct causes of action, as other circuits have earlier held. See, e.g.,
Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 303 (4th Cir. 2006). As
we will explain, both sections may at times be relevant.
      Section 4311 provides that a servicemember “shall not be denied . . .
reemployment, retention in employment, . . . or any benefit of employment”
because of the person’s military service. 38 U.S.C. § 4311(a). An employer will
violate this prohibition when “membership, application for membership, service,
application for service, or obligation for service in the uniformed services is a
motivating factor” in an employment decision. § 4311(c)(1).

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       By referring to a “motivating factor,” the statute does not textually suggest
that military service be the sole factor. A Department of Labor regulation states
that a plaintiff “has the burden of proving that a status or activity protected by
USERRA was one of the reasons” for the employer’s decision. 20 C.F.R. §
1002.22. The employer, though, is not liable under USERRA if it “can prove that
the action would have been taken in the absence of such membership,
application for membership, service, application for service, or obligation for
service.” 38 U.S.C. § 4311(c)(1). The regulation elaborates on this provision: “If
the individual succeeds in proving that the status or activity protected by
USERRA was one of the reasons the employer took action against him or her,
the employer has the burden to prove the affirmative defense that it would have
taken the action anyway.” 20 C.F.R. § 1002.22.3
       The second section of USERRA relevant for this case provides Reservists
the right to reemployment when their “absence from a position of employment
is necessitated by reason of service in the uniformed services.” 38 U.S.C.
§ 4312(a). “Reemployment” might suggest that a Reservist has left a position for
some lengthy period and is trying to regain a vacant position. It is clear, though,
that Section 4312 applies to any military-approved absence from a civilian
position. For example, one section applies to situations such as Bradberry’s in




       3
           These regulations were adopted in 2005. Uniformed Services Employment and
Reemployment Rights Act of 1994, As Amended, 70 Fed. Reg. 75246 (Dec. 19, 2005). The
Department of Labor cited USERRA’s legislative history and caselaw interpreting USERRA
after its 1994 passage to support the decision to require an employer to prove as an affirmative
defense that it would have terminated the employee anyway. Id. at 75250. Assigning an
employee the burden to prove the prohibited reason was a “motivating factor” in an
employment decision, then requiring that a employer prove an affirmative defense that the
same decision would have been made without that reason, is an approach modeled on the
Supreme Court’s interpretation of the evidentiary burdens of Section 10(c) of the National
Labor Relations Act. Id. (citing NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 401 (1983)).

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which the military service is less than 31 days. § 4312(e)(1)(A).4 A Reservist is
not automatically entitled to reemployment when returning from military
service. The right depends on the servicemember meeting certain obligations:
      [A]ny person whose absence from a position of employment is
      necessitated by reason of service in the uniformed services shall be
      entitled to the reemployment rights and benefits and other
      employment benefits of this chapter if –
             (1) the person (or an appropriate officer of the uniformed
      service in which such service is performed) has given advance
      written or [oral] notice of such service to such person’s employer;
             (2) [the cumulative length of absences is not more than five
      years]; and
             (3) except as provided in subsection (f), the person reports to,
      or submits an application for reemployment to, such employer in
      accordance with the provisions of subsection (e).

§ 4312(a) (emphasis added). Section (3) refers to subsections (e) and (f), the
former providing time deadlines and other details for applications for
reemployment and the latter providing rules for documenting the service.
      A Reservist who meets the criteria for reemployment under Section 4312
must be promptly reemployed following a return from a period of service. 38
U.S.C. § 4312(f)(4). As explained in the provisions just quoted, reemployment
is conditioned upon proper advance notice and timely return following the
completion of service. See § 4312(a)(1), §4312(e)(1)(A)(i).
      Obviously, then, a Section 4312 claim is not based, as is Section 4311, on
a wide variety of situations that arise in the workplace and are discriminatory
against military service. Instead, it protects a civilian employee who has been
gone for a period of time on military duty, no matter how brief, and has not been
reemployed because of that military service.              The Department of Labor


      4
         When the Department of Labor responded to public comments on its proposed
regulations, it applied USERRA protections for reemployment to a Reservist who returned to
work from a weekend drill. USERRA, 70 Fed. Reg. at 75259 (discussing Gordon v. WAWA,
Inc., 388 F.3d 78 (3d Cir. 2004)).

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regulations on reemployment set out eligibility requirements for reemployment,
including details about the notice to be given the employer about the duty. See
20 C.F.R. §§ 1002.85-1002.86. Documentation of the military service may also
be demanded by the employer, though reemployment is to occur immediately
and the adequacy of documentation reviewed thereafter. 38 U.S.C. § 4312(f); 20
C.F.R. §§ 1002.122-1002.123.
      The Department of Labor summarized five general requirements for a
servicemember to be eligible for reemployment:
      (1) That the service member be absent from a position of civilian
      employment by reason of service in the uniformed services;
      (2) That the service member’s employer be given advance notice of
      the service;
      (3) That the service member have five years or less of cumulative
      service in the uniformed services with respect to a position of
      employment with a particular employer;
      (4) That the service member return to work or apply for
      reemployment in a timely manner after conclusion of service; and
      (5) That the service member not have been separated from service
      with a disqualifying discharge or under other than honorable
      conditions.

USERRA, 70 Fed. Reg. at 75251; see also 20 C.F.R. § 1002.32. Even when a
servicemember satisfies these obligations, the employer has statutory defenses
to its failure to reemploy. 38 U.S.C. § 4312(d). These are also affirmative
defenses for the employer. 20 C.F.R. § 1002.139.
      The regulations, on both discrimination and on reemployment rights,
make a reasonable interpretation of the evidentiary burdens of those claims and
their respective defenses. We apply them to the present dispute.
      A Section 4311 claim requires a plaintiff to prove his or her “membership,
application for membership, service, application for service, or obligation for
service in the uniformed services is a motivating factor in the employer’s action”;
the employer is then required, if it has asserted the affirmative defense, to prove


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“the action would have been taken in the absence of such membership,
application for membership, service, application for service, or obligation for
service.”5 38 U.S.C. § 4311(c)(1). For a Section 4312 claim, a plaintiff must,
among other things, show that the requirements for notice and documentation
have been met. The employer bears the burden of proof for any affirmative
defenses upon which it relies.
       Section 4311 discrimination can appear throughout the employment
continuum, from consideration for hiring to employee termination. Section 4312
is much narrower, applying to a return to the civilian workplace after a period
of military duty. Unlike for a Section 4311 claim, an “employee is not required
to prove that the employer discriminated against him or her because of the
employee’s uniformed service in order to be eligible for reemployment.” 20
C.F.R. § 1002.33. Whether reemployment rights exist may not be determinable
on the first day a Reservist returns to work. An “employer is not permitted to
delay or deny reemployment by demanding documentation that does not exist,”
but an employer may thereafter terminate if documentation that is received
later “shows the employee is not entitled to reemployment. . . .” § 1002.122.
Actions by the employer after the return that are not related to resolving
reemployment issues can raise Section 4311 discrimination questions.
       Having identified differences between the anti-discrimination and the
reemployment rights sections, we briefly address some similarities. A USERRA
treatise has usefully drawn from the statutory language and caselaw how an


       5
          This approach has been adopted for USERRA claims in several circuits. See
Velazquez-Garcia v. Horizon Lines of P.R., Inc., 473 F.3d 11, 16 (1st Cir. 2007); Maxfield v.
Cintas Corp. No. 2, 427 F.3d 544, 551 (8th Cir. 2005); Coffman v. Chugach Support Servs., Inc.,
411 F.3d 1231, 1238-39 (11th Cir. 2005); Leisek v. Brightwood Corp., 278 F.3d 895, 898-99 (9th
Cir. 2002); Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001); Gummo v. Vill.
of Depew, 75 F.3d 98, 106 (2d Cir. 1996). The Fifth Circuit has not spoken on this issue, but
district courts in this circuit have used this analysis. E.g., Snowman v. IMCO Recycling, Inc.,
347 F. Supp. 2d 338, 342 (N.D. Tex. 2004).

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employer’s actions involving an employee returning from military service can
occasionally implicate both parts of the Act:
             Section 4311’s protection against discrimination and
      retaliation should not be confused with the right to reemployment
      under § 4312 of USERRA. It is possible that denying reemployment
      to a returning servicemember could, depending on the facts, give
      rise to claims under both § 4311 and § 4312. Nonetheless, the two
      sections are separate and distinct. Section 4312 entitles a returning
      servicemember to reemployment rights and benefits provided by
      USERRA if the person meets reemployment-eligibility criteria
      enumerated in § 4312. No showing of discriminatory or retaliatory
      intent is necessary to establish a violation of § 4312. By contrast,
      § 4311 does not provide for entitlement to USERRA's reemployment
      rights and benefits but, rather, protects against denial of
      reemployment for a discriminatory or retaliatory reason. Thus, a
      discriminatory or retaliatory motive must be shown to establish a
      violation of § 4311.

KATHRYN PISCITELLI     AND   EDWARD STILL, USERRA MANUAL § 7:5 (West 2012)
(footnotes omitted).
      Overview completed, we now determine how much of this is before us.
Most fundamentally, what kind of claim has Bradberry brought? His complaint
did not specify whether his claim arose under the anti-discrimination provision
or the reemployment provision. Instead, he cited the entire USERRA statutory
scheme in support of his claim that the County violated his rights. In his motion
for partial summary judgment, he mentioned the notice provisions of Section
4312 but did not specifically state that the County violated USERRA by failing
to reemploy. In its response, the County implied that Bradberry raised a claim
under the reemployment provision by arguing that Bradberry failed to give
proper advance notice of his Reserve obligations, which is an obligation under
Section 4312.
      In its order denying partial summary judgment, the district court stated
it was unclear which provision of USERRA Bradberry was using. None of the


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parties presented arguments explicitly stating that Sections 4311 and 4312 were
the basis for different claims. The court concluded that Bradberry’s claim was
better understood as one for discrimination under Section 4311. Later, though,
the district court considered Section 4312’s notice requirements.
       The arguments of the parties and the district court’s order primarily
address Section 4311 but with occasional incorporation of elements of Section
4312. Because our review of the district court’s denial of collateral estoppel
requires us to determine what issues are involved in the current case, there is
some disconnect between what is presented to us and what we conclude must be
analyzed in order to determine whether collateral estoppel applies.


       II. Collateral Estoppel
       We have just discussed the burdens of proof in the claim that confronts us.
Bradberry argues that he has already met his burden of proving discrimination
due to prior administrative proceedings concerning his discharge. He relies on
the doctrine of collateral estoppel, which prevents the same parties or their
privies from relitigating issues that were litigated and decided in a prior action.6
Bradberry urges the court to treat the ALJ’s findings regarding his termination
as final in this litigation, thus precluding Jefferson County from relitigating the
circumstances surrounding his separation from the Sheriff’s Department.
       Collateral estoppel prevents litigation of an issue when: “(1) the identical
issue was previously adjudicated; (2) the issue was actually litigated; and (3) the
previous determination was necessary to the decision.” Pace v. Bogalusa City
Sch. Bd., 403 F.3d 272, 290 (5th Cir. 2005). As the district court stated, some of
our decisions recognize a fourth factor, namely, whether there are any special

       6
         The related principle of res judicata applies to legal claims, instead of issues, and bars
a suit from being brought again on an event that was the subject of a previous legal cause of
action, fully and finally litigated. The two doctrines frequently overlap. See United States v.
Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994).

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circumstances that make it unfair to apply the doctrine. These equitable
considerations apply only to “offensive collateral estoppel.”       See Swate v.
Hartwell (In re Swate), 99 F.3d 1282, 1290 (5th Cir. 1996) (noting that some of
our decisions improperly suggest the equitable factor applies to all collateral
estoppel situations). The Supreme Court has defined the term as follows:
      [O]ffensive use of collateral estoppel occurs when the plaintiff seeks
      to foreclose the defendant from litigating an issue the defendant has
      previously litigated unsuccessfully in an action with another party.
      Defensive use occurs when a defendant seeks to prevent a plaintiff
      from asserting a claim the plaintiff has previously litigated and lost
      against another defendant.

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4 (1979).
      Parklane did not categorize all collateral estoppel situations but only those
in which one of the litigants was not a party to the prior proceeding. The Court
was answering “whether a litigant who was not a party to a prior judgment may
nevertheless use that judgment ‘offensively’ to prevent a defendant from
relitigating issues resolved in the earlier proceeding.” Id. at 326. It recognized
that the doctrine of mutuality of parties had traditionally been a bar to the use
of collateral estoppel: “Under this mutuality doctrine, neither party could use
a prior judgment as an estoppel against the other unless both parties were
bound by the judgment.” Id. at 326-27. The Court altered the requirement of
mutuality and permitted a plaintiff not involved in the earlier litigation to estop
a defendant from relitigating an issue on which it earlier lost if no unfairness
resulted. Id. at 331. In the case before us, the collateral estoppel issue arises
from previous proceedings in which both parties were involved. Consequently,
the Parklane distinction between offensive and defensive estoppel when the prior
proceedings did not involve both current parties does not apply.
      In Swate, we acknowledged that “some recent decisions list the fairness
requirement as a general requirement for the application of issue preclusion.”


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Swate, 99 F.3d at 1290. We noted, though, that the requirement originated in
Parklane. Id. We concluded that if a case involves mutual estoppel, i.e., where
both parties were litigants in the prior action, “an inquiry into special
circumstances is unnecessary.” Id. Therefore, the district court erred in relying
on equitable factors in concluding that collateral estoppel did not apply.
      The district court rejected collateral estoppel. Generally, the issue of
whether to apply collateral estoppel is a question of law, making our review de
novo. United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997). Our review
is for an abuse of discretion, though, when considering a district court’s
evaluation of whether special circumstances exist to justify offensive collateral
estoppel. Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 391-92 (5th
Cir. 1998). Because offensive collateral estoppel is not involved in this case, our
examination of the district court’s decision is de novo.
      The first relevant proceeding was a state administrative hearing.
Jefferson County argued in the district court that the ALJ’s findings are not
entitled to preclusive effect. It has narrowed its argument on appeal just to say
that these administrative proceedings are not entitled to preclusive effect.
Whether state agency decisions are usable in federal court “is determined by the
treatment those . . . proceedings would receive in the courts of the state . . . in
which those prior proceedings were held.” Norris v. Hearst Trust, 500 F.3d 454,
460-61 (5th Cir. 2007); see also 28 U.S.C. § 1738. We look to Texas caselaw to
determine whether courts in Texas would treat a proceeding at the State Office
of Administrative Hearings as a judicial proceeding.
       Texas law applies collateral estoppel “to administrative agency orders
when the agency is acting in a judicial capacity and resolves disputed issues of
fact properly before it which the parties have had an adequate opportunity to
litigate.” Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 830 (Tex.
App. – Dallas 1994, writ denied) (quotation marks omitted).                  Some

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                                     No. 12-41040
considerations that weigh in favor of determining whether a party had an
“adequate opportunity to litigate” include representation by counsel, witness
testimony, the ability to cross-examine, and application of the rules of evidence.
See Turnage v. JPI Multifamily, Inc., 64 S.W.3d 614, 620 (Tex. App. – Hous. [1st
Dist.] 2001, no pet.). There has not been any argument that the proceedings
before the ALJ were inadequate in these ways, and we conclude that collateral
estoppel is potentially available.
      Having determined the ALJ’s findings can at times be preclusive, we now
consider whether collateral estoppel is appropriate here. We are to consider
whether: (1) the issue at stake in the USERRA claim is identical to the one
involved in the proceeding before the ALJ; (2) the issue was actually litigated
before the ALJ; and (3) the ALJ’s determination was necessary to the decision.
See Pace, 403 F.3d at 290. Additionally, “both the facts and the legal standard
used to assess them [must be] the same in both proceedings.” Copeland v.
Merrill Lynch & Co., 47 F.3d 1415, 1422 (5th Cir. 1995).
      Bradberry argues there are four findings by the ALJ that are precluded
from relitigation. One is that the County discharged him due to a disagreement
about military leave. The other three are that Bradberry was not insubordinate,
was not absent without leave, and did not fail to provide adequate
documentation regarding the reasons for his absence. The ALJ clearly made
fact-findings that rejected the trio of reasons offered by the County for
Bradberry’s termination. Less clear is if the ALJ actually found that Bradberry
was discharged due to a “disagreement over military leave,” or simply ordered,
after finding that the County had not proved its stated grounds, an essentially
meaningless substitute explanation.
      In answering this question, we start by repeating that the issue before the
ALJ was whether “the alleged misconduct occurred”; when there is insufficient
evidence to show the claimed misconduct, the ALJ orders the report to be

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changed. TEX. OCC. CODE § 1701.4525(e). The report is significant because each
law enforcement agency to which the officer later applies sees the report. In
addition, the license of a law enforcement officer who is dishonorably discharged
two times is suspended. TEX. OCC. CODE § 1701.4521. Our examination of these
Texas statutes suggests to us that the ALJ needed to decide only whether there
was enough evidence to allow the F-5 Report to reflect a dismissal due to
misconduct. Of course, determining why an officer was really terminated is
certainly relevant when deciding whether the stated reasons are valid.
      The ALJ’s order summarized the evidence about Bradberry’s military
duty, the extension of the period of leave, and the communications between the
County and Bradberry.        Immediately following that summary was this
statement: “The best explanation on the F-5 form for the circumstances” of the
termination includes that it was due to “[d]isagreement over military leave.” We
accept that sentence as a fact finding because it resolved a factual issue based
on the available evidence.
      For collateral estoppel, though, not only must the earlier proceedings have
actually adjudicated the specific issue, but that determination must have been
necessary to the decision. Pace, 403 F.3d at 290. The parties have not briefed
the intricacies of Texas administrative practice to help us understand whether
the ALJ’s finding about the real reason Bradberry was discharged was a
necessary finding. We will assume in our analysis that it was.
      Next, what do these findings mean for USERRA purposes? In considering
collateral estoppel, we break down the issues for a Section 4311 discrimination
claim, then for a Section 4312 reemployment claim, and finally analyze whether
either has identical issues to what the ALJ resolved.
            A. Discrimination claim
      The burden for a plaintiff in a Section 4311 claim is to prove that military
status was a motivating factor in the employer’s actions. 38 U.S.C. § 4311 (c)(1).

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                                  No. 12-41040
The phrase “motivating factor” is not defined in USERRA, but the Supreme
Court explained it in this way:
      We therefore hold that if a supervisor performs an act motivated by
      antimilitary animus that is intended by the supervisor to cause an
      adverse employment action, and if that act is a proximate cause of
      the ultimate employment action, then the employer is liable under
      USERRA.

Staub v. Proctor Hosp., 131 S.Ct. 1186, 1194 (2011) (footnotes omitted). The
Court was evaluating a situation in which the supervisor with the animus was
not the final decision-maker, thus requiring an analysis of whether the
supervisor’s intent had actually motivated the ultimate employment action. Id.
at 1192-93. That analysis is not needed here.
      We apply that understanding here to say that if one reason for the
employer’s actions was Bradberry’s “membership, application for membership,
service, application for service, or obligation for service in the uniformed
services,” then that reason was a motivating factor.
      The evidence so far presented in this case or, based on the ALJ’s summary,
in the administrative action, has never shown an animus by the County towards
those in military service. It supports that the County had doubts about the
legitimacy of Bradberry’s extension of military leave. A memorandum was sent
by the County to the Department of Labor when Bradberry’s complaint was
being reviewed. The County set out what it had requested from Bradberry and
how he had not complied. The memorandum states that other County officers
had military obligations, and all other officers had responded acceptably to the
periodic request for verification of their service. The Department of Labor found
that Bradberry “was not forthcoming or cooperative” with the request for
documentation. The ALJ detailed the disagreements the County and Bradberry
had about what was available that could prove he had been ordered to extend his
military service. There also is evidence to support that the County actually

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                                 No. 12-41040
considered Bradberry to be absent without leave and insubordinate.
      We apply these findings to the requirements of a Section 4311
discrimination claim. Under that statute, it matters whether the County was
motivated by Bradberry’s military status or only motivated by what it thought
were insubordination and a dishonest assertion that his military duty had been
extended. Except as specifically provided otherwise, USERRA does not exempt
those in the military from complying with the usual rules of behavior in the
workplace or being subject to the usual discipline. That discipline can include
discharge that will not be affected, as Bradberry’s was not, by an ALJ’s later
determination that the stated grounds were not proven. There has been no
effort in this case to show that Bradberry was treated differently than other
employees who, after absences for one reason or another, did not justify to the
County’s satisfaction their claimed basis for missing work.
      We conclude that a finding that Bradberry was discharged due to a
disagreement about military service is not the equivalent of a finding that the
County was motivated by his military status to discharge him. The district court
did not err in refusing to apply collateral estoppel to the ALJ’s finding. The
issue of motivation remains an unresolved fact question.
            B. Violation of Reemployment Rights
      The ALJ’s finding that Bradberry had been discharged due to a
disagreement about military leave presents the need to consider Section 4312 as
well. After Bradberry couched much of his argument in terms of discrimination
under Section 4311, the County responded in terms of Bradberry’s being absent
without leave and failure to document, which raise facts relevant to Section 4312
reemployment. The County used those reasons to explain why he would have
been terminated anyway – a defense to Section 4311 discrimination.
      Though we have held that the finding of a disagreement about military
leave is not sufficient to prove motivation under Section 4311, a discriminatory

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                                  No. 12-41040
intent does not need to be shown under Section 4312. 20 C.F.R. § 1002.33. If
Bradberry complied with his USERRA obligations in order to be reemployed
after two weeks of military duty, then the possibility that the County had no
discriminatory intent would not matter.
      We do not analyze the possible collateral estoppel effects of the ALJ’s
decision on a Section 4312 claim because no one has briefed it. We note, though,
that a requirement for collateral estoppel is that the same legal standard be used
in both proceedings to assess the facts on any issue considered to be identical.
Pace, 403 F.3d at 290. The legal standards under USERRA include that the
servicemember give “notice as far in advance as is reasonable under the
circumstances,” which usually would be at least 30 days. 20 C.F.R. § 1002.85(d);
see also 38 U.S.C. § 4312(a)(1). Military necessity and impossibility may excuse
the notice. 38 U.S.C. § 4312(b). Documentation depends on its availability and
the length of service. § 4312(f). These USERRA standards were not discussed
by the ALJ nor briefed by the parties, and no one has tried to compare them to
standards the ALJ may have used in making these three findings.
            C. Affirmative Defenses
      We address one final disputed point, namely, the degree to which
affirmative defenses are properly in this case. The district court discussed
affirmative defenses under USERRA. The defenses create factual issues beyond
those presented to the ALJ regarding the F-5 Report. The district court stated
that other issues could include whether the military service was a motivating
factor and whether he would have been terminated anyway. The district court
called Bradberry’s possibly deficient advance notice an affirmative defense under
Section 4311, but it is actually the plaintiff’s burden under Section 4312.
Finally, an issue could be that circumstances had changed so as to make
reemployment unreasonable (a Section 4312 affirmative defense).
      Initially, the County raised no affirmative defenses in its answer. A week

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                                   No. 12-41040
after Bradberry mentioned their absence in a footnote to his summary judgment
brief, the County filed an amended answer. The defenses it raised were these:
      Defendant is not liable to Plaintiff because Defendant would have
      terminated Plaintiff in the absence of Plaintiff’s military status.
      Specifically, Defendant would have terminated Plaintiff for his
      insubordination and failure to truthfully answer questions or
      provide documentation and relevant statements to the Sheriff or
      any supervisor in a departmental investigation when so ordered.

The County did not raise faulty notice or changed circumstances in this amended
answer. Instead, these defenses were raised for the first time in the County’s
response to Bradberry’s motion for partial summary judgment. In his reply to
the County’s response, Bradberry made no objection to the additional defenses
raised by the County.
      Generally, affirmative defenses must be presented in the answer. FED. R.
CIV. P. 8(c)(1). Even so, if the defense is later presented “in a manner that does
not result in unfair surprise[,] . . . technical failure to comply precisely with Rule
8(c) is not fatal.” Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir.
1983). The defense may be considered if it was raised “at a pragmatically
sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.”
Id. at 856. The district court, in denying collateral estoppel, several times
referred to unpled affirmative defenses, without acknowledging the pleading
defect. The County raised its affirmative defenses before the district court and
Bradberry had the opportunity to respond to them. Bradberry failed to object
in his response. Thus, he has waived any objection to consideration of these
additional reasons offered by the County for his termination.
      The County’s reply to Bradberry’s motion raised what it labeled as
“defenses” of deficient advance notice, failure to return promptly to civilian work
following the completion of Army Reserve duty, and absence of proof that the
military had determined there was a military necessity to extending his orders.


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                                       No. 12-41040
Those are not affirmative defenses but are parts of Bradberry’s case. It also
argued the Section 4311 affirmative defense that he would have been terminated
anyway, and the Section 4312 affirmative defense of changed circumstances that
made Bradberry’s reemployment unreasonable. Bradberry’s reply argued that
“failure to give preclusive effect to the ALJ’s findings of fact will allow Defendant
to advance certain affirmative defenses . . . even though it failed to prove them
by a preponderance of the evidence in the administrative proceeding.” Nothing
in the reply brief argued that there was a defect in pleading.
       By the time the summary judgment motion was fully briefed, several
defenses had been injected into the case. Bradberry had the opportunity to
respond and made no objection. The district judge considered the defenses. We
conclude that the technical failure to plead all the currently presented defenses
does not prevent consideration of them.


       III. Preemption
       Jefferson County argues that USERRA preempts Sections 613.001-613.023
of the Texas Government Code. Chapter 613 is similar to USERRA in that it
provides for the reemployment of public employees who are returning from
military service. TEX. GOV’T CODE § 613.002. If a state or local entity fails to
reemploy an individual following discharge from military service, a court may
require the official to comply with the statute. TEX. GOV’T CODE § 613.021. The
County argues Congress intended a uniform set of protections to be available to
returning veterans and expressly forbade modification of these protections by
state law.7


       7
         USERRA specifically describes its intended relation to other laws, including
Congress’s express intent not to supersede any state law that establishes a right or benefit in
addition to a right provided under USERRA. See 38 U.S.C. § 4302(a). The section also notes
the intent to supersede any state law that reduces or eliminates any right provided under
USERRA, “including the establishment of additional prerequisites to the exercise of any such

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                                       No. 12-41040
       The County’s brief suggests that Chapter 613 is preempted by USERRA
because the statutes have incompatible notice requirements. The district court
declined to address preemption at the summary judgment stage. Although the
issue was certified for interlocutory appeal, it is unclear at this stage whether
it will ever be necessary to decide whether preemption applies. A resolution of
this constitutional issue on interlocutory appeal is premature.


       IV. Supplemental Jurisdiction
       As discussed above, Chapter 613 of the Texas Government Code codifies
a policy of accommodating the public employees of the State and its political
subdivisions who serve in the military. The district court noted that there are
“only a handful of Texas Attorney General Opinions addressing the provisions
of Chapter 613,” and expressed concern over the lack of guidance regarding the
exercise of subject-matter jurisdiction over such a claim. The court itself raised
a jurisdictional issue, which was whether a federal court “can exercise
jurisdiction over such a cause of action in light of the specific language of Section
613.021 requiring that a petition to enforce reemployment rights be filed in state
district court.” The statute that concerned the district court provides:
       If a public official fails to comply with a provision of [Chapter 613],
       a district court in the district in which the individual is a public
       official may require the public official to comply with the provision
       on the filing of a motion, petition, or other appropriate pleading by
       an individual entitled to a benefit under the provision.

TEX. GOV’T CODE § 613.021. The district court did not rule on the jurisdictional
question, but it is one of the issues certified for our review. As we will discuss,
we see this provision as one establishing venue in state court, and it has no
effect on the exercise of supplemental jurisdiction in federal court.



right or the receipt of any such benefit.” 38 U.S.C. § 4302(b).

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                                   No. 12-41040
      The relevant statute says “a [state] district court in the district in which
the individual is a public official” is the proper court to hear the claim. Id.
Jefferson County argues that only a state district court in the district where the
service member was denied reemployment may grant relief. Only one case is
cited for the proposition that a federal court cannot exercise supplemental
jurisdiction over state law claims when a state statute identifies the appropriate
state court for those claims. See City of Chicago v. Int’l Coll. of Surgeons, 522
U.S. 156 (1997). The Court did not address the issue for which it is now cited.
Instead, it held that once original jurisdiction exists in federal district court over
some claims, the court may resolve “all other claims that are so related to claims
in the action . . . that they form part of the same case or controversy.” Id. at 165
(quoting 28 U.S.C. § 1367(a)). The exercise of supplemental jurisdiction is
discretionary, with statutory factors to guide the exercise of the discretion. 28
U.S.C. § 1367(c). Abstention doctrine may also compel a district court to refrain
from considering state law issues. Int’l Coll. of Surgeons, 522 U.S. at 174. There
has been no suggestion that abstention applies here.
      Our question is far simpler: does a statute that identifies which state court
is to hear a certain case prevent a federal district court – which of course is not
the identified state court – from exercising supplemental jurisdiction over the
claim? There is nothing extraordinary about a state statute limiting which court
can hear a claim. Whatever Section 613.021 means for state court lawsuits, it is
no barrier to the exercise of supplemental jurisdiction in federal court.
      AFFIRMED.
      Judge Haynes concurs in the judgment only.




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