Townsend v. University of Alaska

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT DAVID TOWNSEND, 
Plaintiff-Appellant,
No. 07-35993
v.
UNIVERSITY OF ALASKA;  D.C. No.
CV 06-0171 TMB
UNIVERSITY OF ALASKA AT
OPINION
FAIRBANKS,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding

Argued and Submitted
August 7, 2008—Anchorage, Alaska

Filed September 5, 2008

Before: Dorothy W. Nelson, A. Wallace Tashima, and
Raymond C. Fisher, Circuit Judges.

Opinion by Judge Tashima

12333
 TOWNSEND v. UNIVERSITY OF ALASKA 12337

COUNSEL

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

William B. Schendel, Fairbanks, Alaska, for the defendants-
appellees.

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 juris-
diction over an USERRA action brought by an individual
against an arm of a state, and whether USERRA creates a pri-
vate 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.
12338 TOWNSEND v. UNIVERSITY OF ALASKA
I. JURISDICTION

The district court dismissed this action for lack of jurisdic-
tion. 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 (1804). We have juris-
diction 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 Uni-
versity 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 dis-
trict 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 dis-
trict 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
 TOWNSEND v. UNIVERSITY OF ALASKA 12339
court denied leave to amend, reasoning that such an amend-
ment would be futile because jurisdiction would still be lack-
ing 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. Camp-
bell Farming Corp., 31 F.3d 768, 769 (9th Cir. 1994).

IV. ANALYSIS

A. Statutory Background

[1] 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 mili-
tary is a motivating factor in an employer’s adverse employ-
ment 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 autho-
rizes 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).

[2] Before the 1998 amendments to USERRA, the Act pro-
vided that “[t]he district courts of the United States shall have
jurisdiction” over all USERRA actions, including those
12340 TOWNSEND v. UNIVERSITY OF ALASKA
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.

[3] 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 jurisdic-
tion over “an action against a State (as an employer) or a pri-
vate 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 sub-
stituted 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 exer-
cises 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 per-
son 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).
 TOWNSEND v. UNIVERSITY OF ALASKA 12341
[4] The legislative history of the 1998 amendments con-
firms that Congress intended that actions brought by individu-
als 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 deci-
sion in Seminole Tribe v. Florida, 517 U.S. 44 (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. Following Seminole Tribe, the validity of USER-
RA’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 Re-
employment 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 enforce-
ment 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
12342 TOWNSEND v. UNIVERSITY OF ALASKA
Attorney General would be able to bring enforce-
ment actions in state court.

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

[5] The House Report thus makes plain that the purpose of
the bill was to solve the Seminole Tribe problem by: (1) sub-
stituting 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 (state-
ment of Rep. Quinn) (“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. . . . Individuals not
represented by the Attorney General would be able to bring
enforcement actions in State court.”)” The legislative history
is devoid of any statement or suggestion that Congress
intended to authorize individuals to bring actions against
states in federal court or to enact a cause of action against the
employee’s supervisors in their individual capacity.
1
An action by the United States against a state in federal court is not
barred by the Eleventh Amendment. See United States v. Mississippi, 380
U.S. 128, 140-41 (1965).
2
Congress did not use the terms “must” or “shall” with respect to state
court jurisdiction over USERRA claims for the apparent reason that “the
powers delegated to Congress under Article I of the United States Consti-
tution do not include the power to subject nonconsenting States to private
suits for damages in state courts.” Alden v. Maine, 527 U.S. 706, 712
(1999); cf. ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 516 (3d Cir.
1998) (“While state courts would have had jurisdiction over private [Tele-
phone Consumers Protection Act] actions even if Congress had made no
reference to state courts, we conclude that Congress referred these claims
to state court as forcefully as it could, given the constitutional difficulties
associated with Congress’ mandating a resort to state courts.”).
 TOWNSEND v. UNIVERSITY OF ALASKA 12343
B. Individual Claims Against a State

[6] Despite the structure of the 1998 amendments’ remedial
scheme and its legislative history, Townsend contends that
USERRA provides for federal court jurisdiction for an action
brought by a private individual against the University. He
argues that Congress intended to retain federal court jurisdic-
tion over USERRA claims brought by private individuals
against an arm of the State. The Eleventh Amendment, how-
ever, bars federal jurisdiction over suits against an unconsent-
ing state by its own citizens. See Hans v. Louisiana, 134 U.S.
1, 15 (1890); accord Seminole Tribe, 517 U.S. at 54.

[7] Although Congress may abrogate the states’ sovereign
immunity when “Congress has ‘unequivocally expresse[d] its
intent to abrogate the immunity,’ ” and when “Congress has
acted ‘pursuant to a valid exercise of power,’ ” Seminole
Tribe, 517 U.S. at 55 (quoting Green v. Mansour, 474 U.S.
64, 68 (1985)); accord Miranda B. v. Kitzhaber, 328 F.3d
1181, 1184-85 (9th Cir. 2003), here, Congress has not
unequivocally expressed an intent to abrogate the states’ sov-
ereign immunity in USERRA. The best Townsend can point
to is the language in the Act that claims against a state “may”
be brought in state court. See 38 U.S.C. § 4323(b)(2). Based
on that language, Townsend argues that Congress impliedly
intended to authorize private actions against states in federal
court.

[8] We have, however, on at least two occasions, explicitly
rejected the argument that permissive language regarding
another forum’s jurisdiction means that Congress also
intended to grant federal jurisdiction. In Williams v. United
Airlines, Inc., 500 F.3d 1019, 1022 (9th Cir. 2007), we con-
cluded that a statute stating that a person “may” file an admin-
istrative complaint with the Secretary of Labor did not mean
that a complaint could be filed with the Secretary of Labor
and with the federal district court. And in Murphey v. Lanier,
204 F.3d 911, 914 (9th Cir. 2000), we held that because fed-
12344 TOWNSEND v. UNIVERSITY OF ALASKA
eral jurisdiction is limited to that conferred by Congress, a
statute stating that an action “may” brought in state court
“does not mean that federal jurisdiction also exists; instead,
the failure to provide for federal jurisdiction indicates that
there is none.” Thus, Congress’ use of the permissive “may”
with respect to bringing suit in some other forum does not
evince an intent to grant federal jurisdiction over actions
brought by individuals against states, and it certainly does not
evince an intent to abrogate the states’ sovereign immunity.
See Dellmuth v. Muth, 491 U.S. 223, 230 (1989) (“[E]vidence
of congressional intent must be both unequivocal and textu-
al.”); see also Seminole Tribe, 517 U.S. at 55 (“Congress’
intent to abrogate the States’ immunity from suit must be
obvious from a clear legislative statement.”) (internal quota-
tion marks and citations omitted).3

[9] Townsend also argues in passing that 28 U.S.C. § 1331,
the general federal question jurisdictional statute, grants juris-
diction over USERRA claims brought against a state by an
individual, and thereby evinces an intent to abrogate the
states’ sovereign immunity. Section 1331, however, “does not
itself purport to direct federal courts to ignore a State’s sover-
eign immunity.” Seminole Tribe, 517 U.S. at 86 (Stevens, J.,
dissenting).

[10] Thus, we conclude that the district court correctly dis-
missed Townsend’s suit against the State for lack of subject
matter jurisdiction. Indeed, not only has Congress failed to
evince an intent to abrogate the states’ sovereign immunity,
“Congress’s intention to limit USERRA suits against states to
3
By way of contrast, the pre-1998 version of USERRA did evince a
clear congressional intent to abrogate sovereign immunity. It 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). But,
as we have noted in Part IV.A, supra, concerned about the teaching of
Seminole Tribe, Congress repealed that provision.
 TOWNSEND v. UNIVERSITY OF ALASKA 12345
state courts is unmistakable.” See Velasquez v. Frapwell, 165
F.3d 593, 594 (7th Cir. 1999) (per curiam).4

C. Claims Against Individual Supervisors

[11] Next, Townsend contends that the district court erred
in denying him leave to amend his complaint in order to name
state employee-supervisors in their individual capacities as
defendants. These individual defendants, according to Town-
send, also violated his USERRA rights.5 Federal Rule of Civil
Procedure 15(a)(2) provides that leave to amend shall be
freely granted “when justice so requires.” Leave to amend
need not be granted, however, where the amendment would
be futile. Jackson v. Bank of Haw., 902 F.2d 1385, 1388 n.4
(9th Cir. 1990) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)). We agree with the district court that the amendment
would be futile, but for somewhat different reasons that we
discuss below. See Atel Fin. Corp. v. Quaker Coal Co., 321
F.3d 924, 926 (9th Cir. 2003) (per curiam) (“We may affirm
a district court’s judgment on any ground supported by the
record, whether or not the decision of the district court relied
on the same grounds or reasoning we adopt.”). Section 4323
does not create either an express or implied cause of action
4
The Fifth Circuit also recently held that the statute does not “allow[ ]
individuals to bring USERRA claims against states as employers in federal
court.” McIntosh v. Partridge, 2008 WL 3198250, at *4 (5th Cir. Aug. 8,
2008). Although the suit was brought against an individual in both his
individual and official capacities, see id. at *1, the court analyzed the case
as if it were an action against the state and not an individual defendant.
5
If Townsend attempted to sue the state officials in their official capac-
ity, he would still face the bar of sovereign immunity. The Eleventh
Amendment’s bar remains effective, if somewhat less absolute, in cases
where state officials, instead of the State itself, are the subjects of suit.
“Generally speaking, ‘a suit [brought] against a state official in his or her
official capacity is not a suit against the official but rather is a suit against
the official’s office. As such, it is no different from a suit against the State
itself.’ ” Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 952 (9th Cir.
2008) (alteration in the original and quoting Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71(1989)).
12346 TOWNSEND v. UNIVERSITY OF ALASKA
against individual state supervisors.6 Accordingly, Town-
send’s proposed amended complaint would still fail to state a
claim against those defendants.

1. Express Cause of Action

[12] USERRA expressly creates only two private causes of
action: (1) an action brought by an individual against a State
(as an employer), which as we have noted, may be brought in
state court; and (2) an action brought against a private
employer, which may be brought in both state and federal
court. See 38 U.S.C. § 4323(a)(2). Despite the plain text of the
statute, Townsend argues that USERRA also creates a cause
of action against the supervisors, because the Act defines
“employer” to include “a person, institution, organization, or
other entity to whom the employer has delegated the perfor-
mance of employment-related responsibilities,” 38 U.S.C.
§ 4303(4)(A)(i) (emphasis added), and the supervisors are
persons. The USERRA cause of action, however, arises
against “a State (as an employer).” See id. § 4323(a)(2). Indi-
vidual supervisors are not included in the definition of
“State.” See id. § 4303(14) (defining “State”). Although the
cause of action can be brought against a “State (as an employ-
er),” “as an employer” describes the capacity in which the
State can be sued; it does not create a cause of action against
individual state employees even if they exercise supervisory
6
The district court stated that the “naming of individual state employees
does not cure the subject matter jurisdiction defect.” (Emphasis added.) It
is “firmly established . . . that the absence of a valid (as opposed to argu-
able) cause of action does not implicate subject-matter jurisdiction” under
28 U.S.C. § 1331. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89
(1998). Therefore, although we agree with the district court that USERRA
does not create a cause of action against individual state supervisors, we
do not view Townsend’s proposed claim against them as so “wholly
insubstantial and frivolous” or “foreclosed by prior decisions of this
Court,” see id., that federal question jurisdiction would not lie. The basis
for futility is more accurately characterized as a failure to state a claim for
relief, see Fed. R. Civ. P. 12(b)(6), than as a failure to invoke federal juris-
diction, see Fed. R. Civ. P. 12(b)(1).
 TOWNSEND v. UNIVERSITY OF ALASKA 12347
responsibility. Thus, an action under USERRA is available
only against the State “as an employer,” and not in some other
capacity. In any event, even if the individual supervisors are
a “State (as an employer),” that action, as we have already
noted, would be limited to state court. Thus, Townsend’s
attempt to sue individual supervisors under the cause of action
which the Act provides against a “State (as an employer)”
fails.

[13] Nor are the individual state supervisors “private
employers.” While the supervisors may fit under the defini-
tion of “employer,” we agree with the district court that it
would do violence to the language of the statute to consider
a state employee-supervisor a “private employer.”

2. Implied Cause of Action

[14] We next consider whether there is an implied private
right of action against an individual state supervisor under
USERRA. See Williams, 500 F.3d at 1022. To determine
whether a private right of action is implied in a federal statute,
we employ the four-factor test under Cort v. Ash:

First, is the plaintiff one of the class for whose espe-
cial benefit the statute was enacted—that is, does the
statute create a federal right in favor of the plaintiff?
Second, is there any indication of legislative intent,
explicit or implicit, either to create such a remedy or
to deny one? Third, is it consistent with the underly-
ing purposes of the legislative scheme to imply such
a remedy for the plaintiff? And finally, is the cause
of action one traditionally relegated to state law, in
an area basically the concern of the States, so that it
would be inappropriate to infer a cause of action
based solely on federal law?

422 U.S. 66, 78 (1975) (internal quotation marks and citations
omitted).
12348 TOWNSEND v. UNIVERSITY OF ALASKA
The first factor weighs in favor of finding an implied cause
of action: USERRA clearly creates federal rights for service
members like Townsend. “However, ‘even where a statute is
phrased in such explicit rights-creating terms, a plaintiff suing
under an implied right of action still must show that the stat-
ute manifests an intent to create not just a private right but
also a private remedy [in federal court].’ ” Williams, 500 F.3d
at 1023-24 (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284
(2002)).

[15] Given that cautionary note, the second factor, whether
there is congressional intent to create a private right of action
in federal court, is generally determinative. See id. (citing
Alexander v. Sandoval, 532 U.S. 275, 286 (2001)). Here, Con-
gress manifested no intent to create a private right of action
against state supervisors. Indeed, by designing such a detailed
express remedial scheme, Congress evinced an intent not to
create an additional individual cause of action against state
supervisors. Cf. Seminole Tribe, 517 U.S. at 74 (“[W]here
Congress has prescribed a detailed remedial scheme for the
enforcement against a State of a statutorily created right, a
court should hesitate before casting aside those limitations
and permitting an action against a state officer based upon Ex
parte Young.”). And, as we have noted, nothing in the legisla-
tive history suggests an intent to create a cause of action
against individual state supervisors.

[16] Thus, the structure of USERRA and its legislative his-
tory make plain that Congress did not intend to create a cause
of action against state supervisors. We therefore conclude that
the district court did not err in denying Townsend leave to
amend his complaint because such an amendment would be
futile.

V. CONCLUSION

Section 4323(b) plainly places private suits against the state
in state court. And § 4323(b) certainly does not evince an
 TOWNSEND v. UNIVERSITY OF ALASKA 12349
unequivocal intent to abrogate the states’ sovereign immunity.
Townsend’s attempt to find implied concurrent jurisdiction in
the “may” and “private employer” terminology falls far short,
and his attempt to fashion a claim against individual state
supervisors also fails.

The judgment of the district court is

AFFIRMED.