Federal District Courts Lack Subject Matter Jurisdiction over USERRA Claims Against States and USERRA Does Not Create a Cause of Action Against Individual State Supervisors

Robert Townsend sued his former employer, a state university, for firing him because of his military? status? with? the ?Alaska? Air? National Guard in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). ?The State moved to dismiss arguing that the federal district courts lack subject matter jurisdiction because the Act provides:?? ?In 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 trial court agreed and dismissed for? lack? of? jurisdiction.?? ?The? trial? court? also denied Townsend?s motion for leave to amend his complaint to sue his state supervisors in their individual capacities on the ground that amendment? ?was? ?futile? ?given? ?the? ?lack?? of USERRA jurisdiction.? ?The Court of Appeals affirmed, noting that although 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 [under USERRA] be commenced in state court.? The Ninth Circuit explained that Congress amended the statute to deny federal jurisdiction out of concern over recent United Supreme Court authority, which held that Congress ?may only abrogate a state?s sovereign immunity only when acting pursuant to ? 5 of the Fourteenth Amendment, and not when it is acting pursuant to its Commerce Clause powers.? ?Similarly, the Court ?of ?Appeals ?affirmed ?the ?denial ?of ?theF.3d? ?1023? ?(9thTallman, Clifton). Cir.? ?2008)? ?(Caroll? ?(D.? ?Az.), motion to amend as futile, but clarified that it was futile not on jurisdictional grounds but because USERRA ?does not create a cause of action against individual state employees even if they exercise supervisory responsibility.? Townsend v. University of Alaska, No. 07-35993 (Sept. 5, 2008, D.W. Nelson, Tashima, Fisher).