### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-41040

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 b rought suit against his for m e r e mployer, the J efferson County Sheriff’s Department. He alleged t hat after fulfilling h is t wo-week training obligation with the United States Ar m y R eserve, h e was terminated in violation of the Uniformed Services Employment a nd Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4 301-4335, a nd T E XA S G O V E R N M E N T C O D E §§ 613.001- 613.02 3

. Bradberry moved for partial summary judgment o n the ground that Jefferson County was collaterally estopped f rom relitigating f

acts determined in

a state admi n i s trative proceeding. T he district court denied the motion but granted B radberry’s request t o certify its o rder for appeal pursuant to 28 U.S.C. § 1292(b). We agreed to take the appeal. We AFFIRM. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D October 17, 2013 Ly l e W . Cay ce Clerk Case: 12-41040 Document: 00512412336 Page: 1 Date Filed: 10/17/2013No. 12-41040 FACTS AND PROCEDURAL HISTORY Bradberry was employed by Jefferson County as a corrections officer from February 20 0 7 to December 2 008. During that t i me, he also was a member of the United States Army Reserve. B r a db e r r y w as ordered to report for his annual Reser v e t r aining from September 1 through September 12, 2008, and

was s cheduled to return to c ivilian work o n September 13. He provided a copy of h is orders to Jefferson County prior to reporting for military d u ty. Bradberry did not report b ack to work u ntil the evening o f September 1 6, missing s cheduled work shifts on September 13 and 14. According to Bradberry, as a result of Hurricane Ike’s imminent landfall

on S e ptember 13, Army Captain Dwayne Rose orally e xtended his orders and required him to go to Ab i l e n e , Texas, and remain t h ere until released. Bradberry contacted Jefferson County o n September 12 to report that h e would not b e at work the next day because of his new military orders. Bradberry was release d f

r o m d u t y a t 7:00 a.m. o n September 15, a nd he reported t o work the next day. He was scheduled for a midnight shift on September 17. Jefferson County ordered Bradberry to p rovide documentation about the extension of his military duty to include September 13-16, the dates not covered by his original orders. Although Bradberry provided m e moranda f rom his commanding o fficers, he did not provide the type o f documentation the County requested. The Count y i n i t iated an internal investigation into Bradberry’s conduct, then terminated him in December 2008. The County’s explanation of the basis f or Bradberry’s termination was in

a n F-5 Report o f Separation of Licensee. A Texas law e nforcement agency is required to file an F-5 Report on all officers when they leave employment with the agency. The report is f iled with t he Texas C ommission on Law Enforcement Officers Standards and Education (“TCLEOSE”). The F-5 Report describes the

c ircumstances under which an officer left the agency, and whether he w a s
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honorably discharged, generally discharged, or dishonorably discharged. T E X
. O C C

. C O D E § 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 T E X
. AD M I N
. C O D E § 217.7(a)(1). B r a db e rry’ s F

- 5 R e p o rt c at e gorized his discharge as “dishonorable,” sayin g he w as “terminated for an administrative violation(s) of truthfulness or insubordination.” An explanation of separation attached to th e r e p o r t stated that Bradberry was insubordinate, absent without l eave, and fa i l e d t o answer questions truthfully o r pro v i d e d o cumentation a nd 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 c ontained in t he report” by f

iling a petition with the TCL EOSE, which t h en refers the matter to the State Offic e o f A dministrative Hearings. T E X
. O C C

. C O D E § 1701.4525(a). 1 An administrati v e law judge (“ALJ”) will conduct a hearing to determine whether “the a lleged misconduct o ccurred b y a preponderance of the evidence

. . . . If t he alleged misconduct is not supported by a preponderance of the evidence, t he administrative law judge shall o rder the report to be c hanged.” T E X
. O C C

. C O D E § 1701.4525(e). Bradberry utilized these p r o c e dures. In S e p t e mber 2009, a n ALJ found insufficient evidence and ordered t he County a n d TCLEOSE to amend the F-5 Report “to show that [Bradberry] was terminated at will , ” a n d r equired that the explanation attached to the F-5 R eport “should read he was terminated for a disagreement over military leave.” Bradberry had also filed a complaint with the United States D epartment of Labor. See 38 U.S.C. § 4322(a). In Ma r c h 2 0 0 9, the assistant director in Texas of the Veterans’ Employment and Training Service w h i ch is authorized by

1 The TCLEO SE ord er s tated : “The s ubject of this cas e is the accuracy of the F- 5 rep ort concerning M r. Bradberry’s dep arture from the Sherif f ’s D ep artm ent. ” 3 Case: 12-41040 Document: 00512412336 Page: 3 Date Filed: 10/17/2013No. 12-41040

Section 4321 of T itle 38 to review such complaints, found that the County, “while not intentionally, did violate” Section 4311 (c) by discriminating a gainst him due to his military service. Later in March, the same assistant director sent a memo to the Attorney General, r ecommending s uit be brought against the County for violations of Section 4311 (a), (b), and (c). In August 2009, the Attorney General de c l i n e d t o bring suit, but a d eclination does not bar a claimant from bringing his own suit. See38 U.S.C. § 4323(a)(3)(C). In May 2011, Bradberry filed s uit in federal court, cla i m i n g the County violated USERRA and C h a p t e r 613 of the T exas G overnment Code when it terminated his employment. 2 His motion for p artial summary judgment relied

on the doctrine of collateral estoppel to prevent the County from relitigating the ALJ’s findings. T he court declined to apply collateral estoppel and denied the motion. At Bra dberry’s request, the c o urt certified the case for interlocutory appeal pursuant t o Section 1292(b). The court certified t he following questions: (1) whether collateral estoppel bars relitigation of the ALJ’s findings in federal

c ourt; (2) whether USERRA preempts Chapter 613; and (3) whether a fed e r a l di s t ri c t c o u rt c a n e x e rcise subject-matter j urisdiction over a claim under Ch a p t e r 613. We granted Bradberry’s motion for leave to appeal. DISCUSSION I. USERRA The parties on a ppeal have a rgued 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 a lso mentio n t he next section of USERRA, which mandates reemployment of someone “who s e absence from a position of employment is necessitated” b y military service. 3 8 U.S.C. § 4 312(a). As we will

2 The p arties cons ented to proceed bef ore a m agis trate jud ge p urs uant to 28 U

. S. C

. § 636( c)

. Becaus e the magis trate j ud ge is a jud icial of f icer of the d is trict court, w e w ill ref er to the m agis trate jud g e’s rulings as being thos e of the “d is trict court. ” 4 Case: 12-41040 Document: 00512412336 Page: 4 Date Filed: 10/17/2013No. 12-41040

discuss, “reemployment” includes a r eturn to a c ivilian position a fter even a brief interruption for military duty. We step back br i e f

l y f r om the issues of this case to get some perspective

on the c o ngressional enactment. USERRA was adopted in 1994 as the first significant modification i n pro t e c ti o n o f veterans’ employment rights in 50 years. “Veterans’ Law N ote,” AR M Y LAWY E R 40 (Dec. 1994). Almost eleven years a fter the enactment, the D ep a r t m e n t of Labor adopted regulations pursuant to its statutory authority. 38 U.S.C. § 4331(a); 20 C.F.R. §§ 1002.1-1002.314. C o n g r e s s enacted USERRA for three stated purposes: “(1) to e ncourag e
noncareer service in the uniforme d s e r vices” by reducing employment disadvantages; “(2) to minimize the disrupti o n t o th e liv e s o f p e r s o ns p erforming” mili t ary service, t heir e mployers and others “by providing for the prompt reemployment o f such persons upon their completion of such service; a nd (3) to prohibit discri m i n ati o n a g ainst persons b ecause 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 cas e . O n e c oncerns di scrimination a gainst those in the m il it ary wh e n m aki n g e m p l o y m e nt d e c i s i o n s . 38 U.S.C. § 4311. The other protects t he employment o f t hose returning to their for m e r civilian jobs after temporary military duty. § 4312. These sections provid e distinct causes o f action, as other c ircuits have earlier held. See, e.g., Francis v. Booz, A llen & Hamilton, I nc. , 452 F.3d 2 99, 3 03 (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 e m p loyment” because of the person’s military service. 38 U.S.C. § 4311(a). An e mployer will violate this prohibition when “membership, application for members h i p , s e rvice, application for service, o r o b l i g ation f or service in t he u n iformed services is a motivating factor” in an employment decision. § 4311(c)(1).

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B y r e f e r ring to a “motivating factor,” the s tatute does not textually sugge s t that military service be the sole factor. A Department of Labor regulation states that a plaintiff “has the b urden of proving that a status or activity protected by USERRA was o ne o f t h e reasons” for the e mployer’s decision. 20 C .F.R. § 1002.22. The employer, t hough, is not liable under USERRA if it “can prove that the action would have b een taken in the absence of such members h i p , application for mem b e r s hip, service, application for service, or obligation for service.” 38 U.S.C. § 4311(c)(1). T he r egulation elaborates on this provision: “If the individual succeeds in proving that t he status or activity p rotected by USERRA was one o f t h e reasons the employer took action against him or her, the employer has the burden to prove the a ffirmative defense that it w ould have taken the action anyway.” 20 C.F.R. § 1002.22. 3 The second section of USERRA r elevant for this case provides Reservists the right to reemployment when their “absence from a position of employment is necessitated by r e a s o n o f service in the uniformed services.” 38 U.S.C. § 4312(a). “Reemployment” might suggest that a Reservist has l e ft a position for

some lengthy period and is trying to regain a vacant position. It i s clear, though, that Sec t ion 4 312 applies to any military-approved absence from a civilian position. For example, o ne section applies t o s ituations such as Bradberry’s in

3 T hes e regulations w ere ad op ted in 2005. U nif orm ed Services Em p loy m e n t and Reem p loym ent Rights Act of 19 9 4 , As Am end ed , 70 Fed

. Reg. 75246 ( D ec. 19, 2005)

. T he D ep artm ent of Labor cited U SERRA’s legis lative his tory and cas elaw interp reting U SERRA af ter its 1994 p as sage to s up p ort the d ecis ion to require an em p loyer to p rove as an af f irm ative d ef ens e that it would have term inated the em p loyee anyw a y. Id. at 75250. As s igning an em p loyee the burd en t o p rove the p rohibited reas on w as a “m otivating f actor” in an em p loym ent d ecis ion, then requiring that a em p loyer p rove an af f irm ative d ef

ens e that the
s am e d ecis ion w o u l d h a v e b e e n m ad e w ithout that reas on, is an ap p roach mod eled on the Sup rem e C ourt’s interp r e t a t i o n of the evid entiary burd ens of Section 10( c) of the N ational Labor Relations Act. Id. ( citing N LRB v . Tra nsp . M

gm t. 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 e ntitled t o reemployment when r eturning f rom military service. The right depends on the servicemember meeting certain obligations: [A] n y p erson w hose absence f rom a position of employment i s necessitated by reason of service in the uniformed services shall be entitled t o the reemployment rights and benefits and other employment benefits of this chapter if – (1) the person (or an appr o p riate officer of the uniformed service in which such servi c e i s performed) has given advance written or [oral] notice of such service to such person’s employer; (2) [the cumulative length of ab s e n c es is n ot more than f ive years]; and (3) e xcept a s provided in subsection (f), the p erson reports to, or submits an a p plication for reemployment to, such e mployer in accordance with the provisions of subsection (e). § 4312(a) ( e m p h a s is added). Section ( 3) refers t o s ubsections ( e) and (f), the former providing time deadlines a nd other details f o r a pplications for reemployment and the latter providing rules for documenting the service. A Reservist who meets the c riteria for reemployment under Section 4312 must be promptly reemployed following a r eturn from a p eriod of service. 38 U.S.C. § 4312(f)(4). As explained in the provisions just quoted, reemployment is conditioned upon proper a dvance notice and timely r e turn following the completion of service. See § 4312(a)(1), §4312(e)(1)(A)(i). Obviously, then, a Section 4312 claim is not based, a s is Section 4311, on a wide variety of situations that arise in t he w orkplace and are discriminatory against military service. Instead, it protects a civilian e mployee who has been gone for a period of time on military duty, no matter how brief, and has not been reemployed because of th a t m i litary service. T he Department of Labor

4 When the D ep artm ent of Labor res p ond ed to p ublic com m e n t s o n its p rop os ed regulations , it ap p lied U SERRA p rotections f or reem p loym ent to a Res ervis t who returned to w ork f rom a w eek end d rill. U SERRA, 70 Fed

. R eg. at 75259 ( d is cus s ing G ordon v . WA WA, Inc. , 388 F. 3d 78 ( 3d Cir. 2004) )

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regulations on reemployment set out eligibility requirements for r eemployment, including d etails about the n otice to b e given the employer about the d u ty. See 20 C.F.R. § § 1002.85-1002.86. Documentation of the military service may also be demanded by th e 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 o f Labor sum m a rized five general requirements for a servicemember to be eligible for reemployment: (1) That the service m e mber be absent from a position o f 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 o r l ess of cu m u l a t i v e service in the unifor m e d services with respect to a position of employment with a particular employer; (4) That the servic e m e m ber return to work or a pply for reemployment in a timely manner after conclusion of service; and (5) That t he service member not have been separated from s ervice with a disqualifying discharge or under other than h onorable conditions. USERRA, 70 Fed. Reg. a t 75251; see also 20 C.F.R. § 1002.32. Even when a servicemember satisfies these obligations, the employer has statutory defenses to i t s 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, o n both discrimination a nd 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 S ection 4 311 claim requires a plaintiff to prove his or her “membership,

a p p l i cation f

or membership, service, application for s ervice, o r obligation f or service in t he uniformed services is a motivating factor in t he employer’s action”; the employer i s then required, if it has a sserted the affirmative d e fense, to prove

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“the action wou l d h a ve been t aken i n the absence of such membership,

a p p l i cation f

or membership, service, application for s ervice, o r obligation f o r service.” 5 38 U

. S.C. § 4311(c)(1). For a S ection 4312 claim, a plaintiff must, among other things, show that the requirements for notice and d ocumentation have been m e t

. T he 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 f or a Section 4311 claim, an “employee is not required to prove that the employer discriminated against him o r her b e c a u s e o f the employee’s u niformed service in order to be eligible f or ree m p l o y m e nt.” 20 C.F.R. § 1 002.33. Whether reemployment rights exist may not be determinable

on the first day a Reservist r e t urns to work. An “employer is not permitted to delay or d eny reemployment b y demanding documentation that does not exist,” but an employer m ay thereafter terminate i f documentation that is received later “shows the employee is not en t i t l e d t o r eemployment.

. . . ” § 1002.122. Actions b y t h e e m ployer after the r eturn t hat are not related to resolving reemployment issues can raise Section 4311 discrimination questions. Having identified differences between the anti-discrimination and the reemployment rights s ections, we briefly address some s imilarities. A USERRA treatise h as usefully drawn from the statu t o r y l anguage and caselaw how an

5 T his ap p roach has been ad op ted f or U SERRA claim s in s e v e r a l c i r c uits

. See V e l az quez - G a rci a v . H

ori zon Li nes of P. R. , Inc. , 473 F. 3d 11, 16 ( 1s t Cir. 2007) ; M ax f i e l d v . Ci nta s Corp

. N

o. 2 , 427 F. 3d 544, 551 ( 8th Cir. 2005) ; Cof f ma n v . Chuga ch Sup

p ort Serv s. , Inc. , 411 F. 3d 1231, 1238- 39 ( 11th Cir. 2005) ; Lei sek v . Brightw ood Corp

. , 278 F .3d 895, 898- 99 ( 9th Cir. 2002) ; Sheeha n v . D ep ’t of the N a vy , 240 F. 3d 1009, 1013 ( Fed

. Cir. 2001) ; G um m o v . V i ll

. of D ep ew , 75 F

. 3d 98, 106 ( 2d Cir. 1996)

. The Fif th Circuit has not s p ok en on this is s ue, but d is trict courts in this circuit have us ed this analys is

. E. g. , Snow ma n v . IM CO Recycl i ng, Inc. , 347 F. Sup p . 2d 338, 342 ( N. D

. T ex. 2004)

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employer’s acti o n s i nvolving an employee returning from military service can occasionally implicate both parts of the Act:

Section 4311’s protection agai n st discrimination and retaliation should not be confused w ith the right to reemployment under § 4312 of USERRA. I t is possible that d enying reemployment to a returnin g servicemember could, depending on the facts, give rise to c laims under both § 4311 and § 4312. Nonetheless, the two sections are separate and distinct. Section 4312 entitles a r e turning servicemember to reempl o y m ent rights and benefits p rovided 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 § 4 3 1 2

. B y contrast, § 4 311 does not provide for e ntitlement to USERRA's reemployment rights and benefits but, rather, p rotects against d e n i a l of reemployment for a dis c r i minatory o r retaliatory r e ason. Thus, a discriminatory or retaliatory m otive must be shown to establish a violation of § 4311.
K A T H RY N P I S C I T E L L I A N D E D WA R D S T I L L , USERRA MA N UA L § 7 :5 (West 2012) (footnotes omitted). Overview c ompleted, w e n ow determine how much of this is before us. Most f undamentally, what k ind o f claim has Bradberry brought? His c o mplaint did not specify whether h is claim arose under the anti-discrimination provision

or the reemployment provision. Instead, he cited the entire USERRA s tatutory scheme in support o f his claim that the C ounty violated his rights. In his motion for partial s u m m a r y judgment, he mentioned t he n otice provisions of Section 4312 but did not specifically state that t he County violated USERRA by failing to reemploy. I n its r esponse, the County implied that B radberry raised a claim under the reemployment provision b y a rguing that Bradberry f ailed to give
proper advance notice of h is Reserve obligations, which is an obligation under Section 4312. In its order d enying partial summary judgment, the district court stated it w as u nclear w hich provisio n o f U SERRA Bradberry was using. None of the

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parties presented arguments explicitly stati n g th at S ections 4311 and 4312 were the basis for different c laims. The court concluded that Bradberry’s claim was better understood as one f o r discrimination under S ection 4311. Later, though, the district court considered Section 4312’s notice requirements. The argumen t s o f the parties a nd t he district court’s order primarily address S ection 4311 but with occasional incorporation of elements of Section 4312. Because our r e v i e w of the district court’s denial of collateral estoppel requires us to determine what i ssues 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 o f proof in the claim that confronts us. Bradberry argues that he has already met his burden o f proving discrimination due to prior administrative proceedings concerning his discharge. H e relies on the doctrine of collateral estoppel, which prevents t h e s a m e p a rties or their privies from relitigating issues that w ere litigated and decided in a p rior action. 6 Bradberry urges the court to treat the ALJ’s findings regarding his termination

as final in this litigation, thus precluding J efferson County from r elitigating the circumstances surrounding his separation from the Sheriff’s Department. Collateral estoppel prevents litigation of an issue when: “(1) t he i dentical issue was previously adjudicated; (2) the issue was actually litigated; and (3) the previous determination w a s n e c e ssary to the d ecision.” P ace v . Bogalusa City Sch. Bd ., 403 F.3d 272, 290 ( 5th Cir. 2 005). As the district court s tated, some of

our decisions recognize a f o u r t h factor, namely, w hether t here are any special

6 The related p rincip le of res jud icata ap p lies to legal claim s , ins tead of is sues , and bars a s uit f rom being brought again on an event that was the s ubject of a p revious legal caus e of action, f ully and f

inally litigated

. The tw o d octrines f requently overlap

. See U ni ted Sta tes v . Sha nba um , 10 F. 3d 305, 310 ( 5th Cir. 1994)

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circumstances that make i t unfair to apply the d octrine. These eq u i t a ble considerations apply only t o “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 e quitable factor applies to all collateral estoppel situations). The Supreme Court has defined the term as follows: [O]ffensive u se of collateral estoppel occurs when the p laintiff seeks to foreclose the defendant from litigating an issue the d efendant has previously litigated unsuccessfully in an action with another party. Defensive use occurs w hen a d efendant 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). P arklane did not categorize all collateral estoppel situations b ut o nly th o s e in which one of the litigants was not a party to the prior proceeding. The Court

was a nswering “whether a litigant who was not a party to a prior judgment m ay nevertheless use that j udgment ‘offensively’ to prevent a defendant fr o m relitigating issues resolved i n the earlier proceeding.” Id. at 326. It recognized that the doctrine of mutuality of parties h ad t raditionally been a bar to the use of collateral estoppel: “Under this mutuality doctrine, nei t h er party could use
a prior judgment as a n estoppel against the other unless both parties were bound by t he judgment.” Id. at 326-27. The C ourt altered the r equirement of mutuality and permitted a plaintiff n ot i nvolved in the earlier litigation to estop

a defendant from relitigating an iss u e o n which it earlier lost i f n o unfairness resulted. Id. a t 331. In the case before us, t he collateral estoppel issue arises from previous proceedings in which both parties were involved. Consequently, th e P a rk la n e di stinction b etween offensive and defensive est o p p e l wh e n th e p ri o r proceedings did not involve both current parties does not apply. In Swate , we a cknowledged that “ some r ece n t d e c i sions list the fairness requireme n t as a general requirement f or 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. W e concluded that if a case involves mutual estoppel, i.e. , where both parties were l i t i g ants in the prior action, “an inquiry into special circumstances i s unnecessary.” Id. Therefore, the district court e rred in relying on equitable factors in concluding that collateral estoppel did not apply. The district cou r t r ej e cted collateral e stoppel. 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 o f discretion, though, when consid e r ing 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). B ecause offensive collateral estoppel is not involved i n this case, our examination of the district court’s decision is de novo

. The f i rst relevant proceeding was a state administrative hearing. Jefferson C ounty argue d i n t h e district c o urt that the ALJ’s findings are not entitled t o preclusive effect. It has narrowed i ts argument on a ppeal just to say that t h ese administrative proceedings are not e ntitled to preclusive effect. Whether state agency d ecisions are usable in federal court “is determined by the t reatment those

. . . proceedings would receive in t he courts of the st a t e . . . i n which those prior p roceedings were held.” Norris v. H earst Trust , 500 F .3d 454, 460-61 ( 5th Cir. 2007); see also 28 U.S.C. § 1738. We l o o k t o T e x a s caselaw to determine whether courts in Texas w ould treat a proceeding at the State Office of Administrative Hearings as a judicial proceeding. T exas law a pplies co l l ateral estoppel “to administrative agency orders when t he 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.” M

uckelroy v . R ichardson Indep. Sch. Dist. , 8 84 S.W.2d 825, 830 (Tex. App.

– Dallas 1994, writ denied) (quotation mark s o m i tted). Some

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considerati o n s that weigh in favor of determining whether a party had an “adequate opportunity to litigate” in c l u d e 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 h a s n o t b een any argument t hat the proceedings before the ALJ were inadequate i n these ways, and we conclude that collateral estoppel is potentially available. Having d etermined the ALJ’s findings can a t times be preclusive, we now conside r w h ether collateral estoppel is appropriate here. We are to consider whether: (1) the issue at stake in the USERRA c lai m i s i d e n tical to the one invo l v e d i n t he proceeding before the ALJ; (2) the issue w as actually l itigated before the ALJ; and (3) the ALJ’s determination was necessary t o the decision. See P ace , 4 03 F.3d at 290. Additionally, “both the facts and the legal standard used to assess them [must be] t h e s a m e i n both proceedings.” Copeland v. Merrill Lynch & Co., 47 F.3d 1415, 1422 (5th Cir. 1995). Bradberry argue s t h e r e are four findings b y t h e ALJ that are precluded from relitigation. O ne i s that the County discharged him due to a disagreement about military l eave. The o ther three are that Bradberry w as not insubordinate,

was not absent without leave, and did not fa il t o provide a dequate documentation regarding the reasons for h i s a b sence. T he ALJ clearly made f a c t

- findings that rejected t he trio o f reasons offered by the County f or Bradberry’s termination. L ess 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 i ts 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 m isconduct, the ALJ orders t h e r e port to be

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changed. T E X
. O C C

. C O D E § 1701.4525(e). The report is significant because each law enforcement ag ency t o which the officer l ater applies sees t he report. In addition, the license of a l aw enforcement officer who is dishonorably discharged two times is suspended. T E X
. O C C

. C O D E § 1701.4521. Our examination of these Texas statutes suggests t o us that the ALJ needed to decide only whether there

was enough e v i d e n c e t o allow the F-5 Report t o reflect a dismissal due to misconduct. O f course, determining why an officer was really termina t e d is certainly relevant when deciding whether the stated reasons are valid. The ALJ’s order su m m a r i zed the evidence about Bradberry’s military duty, the extension of the period of leave, and the communications between the County an d B r adberry. Immediately f ollowing t hat summary was this statement: “The best explanation on the F-5 f orm for the c ircumstances” of the termination i ncludes that it was due to “[d]isagreement over military leave.” We accept that sentence as a fact finding because it r esolved a factual i s sue based on the available evidence. For collateral e s toppel, though, not only must the e arlier p roceedings have actually adjudicated the specific issue, but that determination must have been
necessary to the d e c i s i o n. Pace , 4 03 F.3d at 290. The p arties have not briefed the intricacies of Texas administrative practice to help us understand whether the ALJ’s findin g ab o ut the real reason Bradberry was discharged was a necessary finding. We will assume in our analysis that it was. Next, what do these f

indings mean for USERRA purposes? In considering collateral estoppel, w e break down the issues f or a Section 4311 discrimination claim, then for a Section 4312 reemployment c laim, a nd finally a nalyze whether either has identical issues to what the ALJ resolved.

A. Discrimination claim The burden f

or a plaintiff in a Section 4311 claim i s t o prove that military status w as a motivating f actor in the employer’s actions. 38 U.S.C. § 4311 (c)(1).

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The phrase “motivating factor” is n ot defined in USERRA, but the S upreme Court explained it in this way: We therefore hold t hat if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse e mployment action, and if that act is a proximate c ause of the u ltimate 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 t he supervisor with t h e a nimus was not the final decision-maker, thus requiring an analysis of whether the supervisor’s intent had actually m otivated t he ultimate employment a ction. I d. 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 se r v i ce, or obligation f or service in the uniformed services,” then that reason was a motivating factor. The evidence so far presented in t his c ase or, based on the ALJ’s summary, in the a dministrative a ction, h as never shown a n animus by the County towards those in military service. It supports t h a t t h e C ounty h a d doubts about the legitimacy of Bradberry’s extension of m ilitary leave. A memorandum was sent by the County to t h e D e p artment of Labor when Bradberry’s complaint was being r eviewed. T he County set out what i t h ad requested from Bradberry and how he had not complied. The memorandum states that other County officers had m ilitary obligations, and all other officers had responded acceptably to the periodic request for v e rification of t heir service. The Department of Labor found that Bradberry “was not forthcoming or cooperative” w ith t h e request for documentation. T he ALJ detailed the disagreements the County and Bradberry had about what was available that could prove he had been ordered t o extend his military service. There a lso is e vidence to support that the C ounty actually

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considered Bradberry to be absent without leave and insubordinate. We apply t hese findings to t he requi r e m e n ts of a Section 4311 discrimination claim. U nder that statute, it matters whether the County was motivated by B radberry’s military s tatus or only motivated by what it thought

were i n subordination and a dishonest assertion t h at his military duty had been extended. Except as specifically provided o therwise, USERRA does not exempt those in the military from complying w ith the usual r ules of behavior in the workplace or being subject t o the usual discipline. That discipline can include discharge that will not b e a ffected, as Bradber r y ’ s w a s not, by an ALJ’s later determination that the stated grounds were not proven. There has been no effort i n t his c ase to show that Bradberry was treated differently t h an other employees who, after absences for one r e ason or a nother, did not justify to the County’s satisfaction their claimed basis for missing work. We conclude that a finding that Bradberry was discha r g e d d u e to a disagreement about military service is not the equivalent of a fin d ing that the County was motivated by his military status t o discharge h im. T he district court did not err in refusing t o apply collateral estoppel to th e 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 di s charged d ue to a disagreement about military l eave presents the need to consider Section 4312 as well. After Bradberry c ouched 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 t o document, which raise facts relevant to Section 4312 reemployment. The County used those re a sons to e xplain why he w o uld have been terminated anyway – a defense to Section 4311 discrimination. Though we have held that the finding of a disagreement about m i l i t a ry leave is not s ufficient to prove motivation u nder Section 4311, a discriminatory

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intent does not need to be shown under Section 4 312. 20 C. F

. R

. § 1 0 0 2 .33. If Bradberry complied with his USERRA obligations in order to b e r e e m p loyed

a f t e r two weeks of military d uty, then the p ossibility that the C ounty had no discriminatory intent would not matter. We do n ot analyze the possible collateral estoppel effects o f the ALJ’s decision on a Section 4312 claim because no one has briefed it. We note, though, that a requirement for c ollateral estoppel is that the same legal standard be used in both proceedings to assess the facts on any issue considered to be identical. Pace , 4 03 F

. 3 d a t 2 90. The legal standards u nder USERRA include that the

s e r v i c e member give “notice as far in advance as i s reasonable u nder t h e circumstances,” which usually would be at least 30 days. 2 0 C.F.R. § 1002.85(d);

see also 38 U.S.C. § 4312(a)(1). Military necessity and impossibility may excuse the n otice. 38 U.S.C. § 4312(b). Documentation depends on its availability and the length of service. § 4 312(f). These U SERRA standards w ere not discussed by t h e ALJ n or briefed by the parties, and no one h as tried t o compare them to standards the ALJ may have used in making these three findings.

C. Affirmative Defenses We address one final disputed point, n amely, the degree t o w h i ch affirmative defenses a r e p r o perly in t his case. The district court discussed affirmative d efenses under USERRA. The defenses create factual issues beyond those presented t o the ALJ regarding the F-5 Report. The district court stated that other issues c ould include whether the military service w a s a motivating factor and whether he w ould have been terminated anyway. The district court called Bradb e rry’ s p o s s ib ly d e f i c i e nt a dv a n c e n o ti ce an affirmative defense under Section 4311, but it is act u a l l y t he plaintiff’s burden u nder 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 a ffirmative defenses in its a nswer. A week

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after Bradberry mentioned t heir absence in a footnote to his s ummary judgment brief, the County filed an a mended answer. The defenses it raised were these: Defe n dant is not liable to P laintiff because Defendant w o uld have terminated Plaintiff in the absence of P laintiff’s military status. Specifically, Defendant would have terminated Plaintiff for his in s ubordination and failure to truthfully answer questions or provide documentation and relevant s tatements to the S heriff or any supervisor in a departmental investigation when so ordered.
The County did not raise faulty notice or changed circumstances in th i s a mended

answer. Instead, these defenses were raised for the first ti m e i n 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. F E D
. R. C I V
. P. 8(c)(1). Even so, i f the defense is l ater presented “in a manner that does not result in unfair s urprise[,]

. . . 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 i t w as r a i s e d “ at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.” Id. at 856. T he district court, in d e nying coll a teral e stoppel, several times referred to unpled a ffirmative defenses, without acknowledging t he pleading defect. The C ounty raised i ts affirmative defenses b efore the district court and Bradberry had the opportunity to respond to t hem. Bradberry f ailed to obj e c t in his r esponse. Thus, he has waiv e d any objection to consideration of these additional reasons offered by the County for his termination. The County’s r e p ly to Bradberry’s motion raised w hat it labeled as “defenses” of deficient advance notice, failure to r eturn promptly to civilian work following the completion of Army Reserve duty, a nd absence of proof t hat the military had determined there was a m ilitary necessity t o extending his orders.

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Those are not a ffirmative defenses but are parts of Bradber r y ’ s case. It also argued t he Section 4 3 1 1 af f irmative d efense that h e would have been terminated
anyway, and t he Section 4312 affirmative defense of chan g e d c ir c u m s tances that made Bradberry’s reemployment unreasonable. B radberry’s reply argued that “failure to give preclusive effect to the ALJ’s findings of f act will allow Defendant to advance certain affirmative defenses

. . . even though it f ailed to prove them by a preponderance of t he evidence in the administrative p roceeding.” Nothing in the reply brief argued that there was a defect in pleading. By the t i me the summary judgment motion was fully b riefed, several defenses had been injected into the case. Bradb e r r y 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 J e f f e r s o n C o u nty ar gu e s th at U S E RRA p r e e m p t s S e c ti o n s 6 1 3

. 0 0 1

- 6 1 3

. 0 2 3 of the Texas Government Code. Chapter 6 1 3 i s s i m ilar t o USERRA in that it provides for t he reemployment of public employees who are retu r n i n g f rom military service. T E X
. G O V ’ T C O D E § 6 1 3

. 0 0 2

. If a state or local entity fails to reemploy an individual following discharge from military s ervice, a court m ay require the official to comply w ith the statute. T E X
. G O V ’ T C O D E § 613.021. The County argues Congress intended a uniform s et of protections to be available to returning veterans and e xpressly forbade m odification of these protections by state law. 7

7 U SERRA s p ecif

ically d es cribes its intend ed relation to other law s, includ ing Congres s ’s exp res s intent not to sup ers ed e any s tate law that es tablis hes a right or benef it in ad d ition to a right p rovid ed und er U SERRA. See 38 U

. S. C. § 4302( a)

. The s ection als o notes the in t e n t t o s u p ers ed e any s tate law that red uces or elim inates any right p rovid ed und er U SERRA, “includ ing the es tablis hm ent of ad ditional p rerequis ites to the exercis e of any s uch 20 Case: 12-41040 Document: 00512412336 Page: 20 Date Filed: 10/17/2013No. 12-41040

The County’s b rief suggests that Chapter 613 i s preempted by USERRA because the s tatutes h ave incompatible n otice r equirements. The district court declined to address preemption at the summary judgment stage. Although the issue was certified for i nterlocutory a ppeal, 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 o f t h e S t ate 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 t h e l ack of guidance regarding the exercise of subject-matter jurisdiction over s uch a claim. The court itself raised

a jurisdictional issue, which was whether a federal court “can exercise jurisdiction over s uch a cause of a ction in light of the specific language of Section 613.021 requiring t hat a petition to enforce r e employment rights be filed in state district court.” The statute that concerned the district court provides: If a p ublic official fails to comply with a provision of [ Chapter 613], a district court in the district in w h i ch the indivi d ual is a public official may r equire the public official to comply with the provision on the filing of a motion, petition, or o ther appropriate pleading by an individual entitled to a benefit under the provision.
T E X
. G O V ’ T C O D E § 6 13.021. T he district court did not rule on the jurisdictional question, but it is one of the issues certified for o ur review. As w e will discuss,

we see this p rovision a s o n e establishing venue in state court, and it has no effect on the exercise of supplemental jurisdiction in federal court.

right or the receip t of any s uch benef it. ” 38 U

. S. C. § 4302(b)

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The relevant statute says “a [state] district court in the district in which the individual is a public official” is the proper court to h e a r t h e c l a im. I d. Jefferson County argues that only a state district court i n the district where the service member was denied reemployment m a y grant relief. Only one case is cited for the p roposition that a federal c o urt cannot exerc i s e s u p plemental jurisdiction over state law c laims when a state statute identifies the appropriate state court f

o r t hose c laims. 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 o ver
some claims, the court may r esolve “all other claims t hat are so related to claims in the action

. . . t hat they form part of the same case or c o ntroversy.” Id. at 165 (quoting 28 U.S.C. § 1 3 6 7 (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 c ompel a district court to refrain from considering state law issues. Int’l Coll. of Surgeons , 522 U.S. a t 174. There has been no suggestion that abstention applies here. Our question is f

ar simpler: d oes a statute that identifies which state court is to hear a certain case prevent a federal district court – which of course is not the i d e n tified state court

– from exercising supplemental jurisdiction over the claim? There i s nothing e xtraordinary about a state statute limiting which court

can hear a claim. Whatever Section 613.021 means for s tate 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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