Townsend v. University of Alaska

• Decision Date: 05 September 2008
• Docket Number: No. 07-35993.,07-35993.
• Citation: 543 F.3d 478
• Parties: Robert David TOWNSEND, Plaintiff-Appellant, v. UNIVERSITY OF ALASKA; University of Alaska at Fairbanks, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

543 F.3d 478

Robert David TOWNSEND, Plaintiff-Appellant, v. UNIVERSITY OF ALASKA; University of Alaska at Fairbanks, Defendants-Appellees.

No. 07-35993.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 7, 2008.

Filed September 5, 2008.

Donald L. Hyatt, II, New Orleans, LA, for plaintiff-appellant.

William B. Schendel, Fairbanks, AK, for defendants-appellees.

Appeal from the United States District Court for the District of Alaska; Timothy M. Burgess, District Judge, Presiding. D.C. No. CV 06-0171 TMB.

Before: D.W. NELSON, A. WALLACE TASHIMA, and RAYMOND C. FISHER, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

Robert David Townsend sued his former employer, the University of Alaska, Fairbanks, in federal district court, alleging violations of the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA" or the "Act"), 38 U.S.C. §§ 4301-4333. The district court dismissed his action, concluding that it lacked jurisdiction over a USERRA claim brought by an individual against an arm of the state. The district court also denied Townsend's motion to amend his complaint to add individual state supervisors as defendants, reasoning that such an amendment would be futile because the court would still lack jurisdiction over the amended complaint. Townsend timely appealed.

We must decide whether a federal district court has jurisdiction over an USERRA action brought by an individual against an arm of a state, and whether USERRA creates a private right of action against individual state supervisors. We hold that a federal district court lacks jurisdiction over a USERRA action brought by an individual against a state and that USERRA does not create a cause of action against state employee-supervisors. We thus affirm the district court.

I. JURISDICTION

The district court dismissed this action for lack of jurisdiction. Whether that dismissal was proper is the primary issue on appeal. The district court, of course, had jurisdiction to determine whether it has jurisdiction. See, e.g., Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 127, 2 L.Ed. 229 (1804). We have jurisdiction pursuant to 28 U.S.C. § 1291.

II. BACKGROUND

Townsend commenced this action in federal district court against his former employer, the University of Alaska ("State" or "University"), alleging violations of USERRA. Townsend alleged that he was fired from his job with the University because of his military status with the Alaska Air National Guard in violation of USERRA. Townsend invoked the district court's jurisdiction pursuant to 38 U.S.C. § 4323(b)(3), which provides that "[i]n the case of an action against a private employer by a person, the district courts of the United States shall have jurisdiction of the action." It is undisputed that the University is an arm of the State of Alaska.

The State moved to dismiss, contending that the federal district court lacked subject matter jurisdiction over Townsend's USERRA claim. The State argued that the Act's provision that "[i]n the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State," 38 U.S.C. § 4323(b)(2), means that the federal district court lacks jurisdiction over a USERRA claim against a "State (as an employer)" brought by a private individual. The district court granted the State's motion and dismissed the case for lack of jurisdiction.

Townsend then moved to amend his complaint to include individual supervisors as additional defendants. The district court denied leave to amend, reasoning that such an amendment would be futile because jurisdiction would still be lacking after concluding that USERRA does not create a cause of action against individual state supervisors.

Townsend timely appeals both the dismissal and the denial of leave to amend.

III. STANDARD OF REVIEW

The existence of subject matter jurisdiction is a question of law we review de novo. See, e.g., United Transp. Union v. Burlington N. Santa Fe R.R. Co., 528 F.3d 674, 677 (9th Cir.2008). Our review of whether a statute creates a private cause of action is also de novo. See Crow Tribe of Indians v. Campbell Farming Corp., 31 F.3d 768, 769 (9th Cir.1994).

IV. ANALYSIS

A. Statutory Background

USERRA forbids employment discrimination on the basis of membership in the armed forces. 38 U.S.C. §§ 4301(a)(3), 4311(a). An employer violates USERRA if an employee's membership or obligation for service in the military is a motivating factor in an employer's adverse employment action taken against the employee, unless the employer can prove that the action would have been taken in the absence of such membership or obligation. See id. § 4311(c)(1); Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir.2002). To enforce its provisions, USERRA authorizes private suits for damages or injunctive relief against the employer, including a state employer. 38 U.S.C. §§ 4303(4)(A)(iii), 4323(a)(2), (b)(2), (d)(3).

Before the 1998 amendments to USERRA, the Act provided that "[t]he district courts of the United States shall have jurisdiction" over all USERRA actions, including those brought by a person against a State employer. See Pub.L. No. 103-353, § 2, 108 Stat. 3149, 3165 (1994), amended by Pub.L. No. 105-368, § 211(a), 112 Stat. 3315, 3329 (1998). The venue provision then provided that "[i]n the case of an action against a State as an employer, the appropriate district court is the court for any district in which the State exercises any authority or carries out any function." Id.

In 1998, Congress enacted the Veterans Programs Enhancement Act of 1998, making substantial changes to the jurisdiction and venue provisions of USERRA. The amended jurisdictional provision now provides that "[i]n the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State." 38 U.S.C. § 4323(b)(2). The amended Act provides for federal jurisdiction over "an action against a State (as an employer) or a private employer commenced by the United States," and "an action against a private employer by a person." Id. § 4323(b)(1), (3). In cases in which the Attorney General believes that a State has not complied with USERRA, the amended version provides that the United States can be substituted for an individual service member as the plaintiff in enforcement actions. Id. § 4323(a). The federal district court has jurisdiction over such an action. Id. § 4323(b)(1).

The venue provision was also amended. It now provides that "[i]n the case of an action by the United States against a State (as an employer), the action may proceed in the United States district court for any district in which the State exercises any authority or carries out any function." Id. § 4323(c)(1). "In the case of an action against a private employer, the action may proceed in the United States district court for any district in which the private employer of the person maintains a place of business." Id. § 4323(c)(2). The Act, as amended, includes no venue provision for an action by a private person against a State (as an employer).

The legislative history of the 1998 amendments confirms that Congress intended that actions brought by individuals against a state be commenced in state court. The underlying reason for these amendments was that Congress was concerned about the Supreme Court's then-recent decision in Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In Seminole Tribe, the Court held that Congress may abrogate a state's sovereign immunity only when acting pursuant to its powers under § 5 of the Fourteenth Amendment, and not when it is acting pursuant to its Commerce Clause powers. Id. at 59, 72-73, 116 S.Ct. 1114. Following Seminole Tribe, the validity of USERRA's abrogation of state sovereign immunity was in doubt. See 144 Cong. Rec. H1396-02, H1398 (daily ed. Mar. 24, 1998) (Statement of Rep. Evans) ("[S]everal courts have held the reasoning of the Seminole Tribe case precludes federal court jurisdiction of claims to enforce federal rights of State employees under the Uniformed Service Employment and Reemployment Rights Act (USERRA).").

H.R. 3213, the jurisdictional provisions of which survive in the current version of 38 U.S.C. § 4323, was introduced on the House floor on March 24, 1998. See 144 Cong. Rec. H1396-02 (1998); see also H.R. 3213, 105th Cong. (1998). The stated purpose of the bill was, in part, "to clarify enforcement of veterans' employment and reemployment rights with respect to a State as an employer." 144 Cong. Rec. at H1396; see also H.R. 3213. The summary of the bill in the Report of the House Committee on Veterans' Affairs provides further insight into Congress' intent:

This bill would substitute the United States for an individual veteran as the plaintiff in enforcement actions in cases where the Attorney General believes that a State has not complied with USERRA. Since the Attorney General, through U.S. Attorneys, is already involved in enforcing this law, the enactment of H.R. 3213 will not impose any new duties on the Attorney General. Individuals not represented by the Attorney General would be able to bring enforcement actions in state court.

H.R.Rep. No. 105-448, at 2 (1998) (emphasis added), available at 1998 WL 117158.

The House Report thus makes plain that the purpose of the bill was to solve the Seminole Tribe problem by: (1) substituting the United States for the service member in suits brought against states in federal court;¹ and (2) directing actions brought by individual service members, who were not represented by the United States, to state court.² See H.R.Rep. No. 105-448, at 2-5 (discussing the problems created by Seminole Tribe for USERRA's enforcement scheme and the proposed solution); see also 144 Cong. Rec. at H1398 (statement of...