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