Robert David Townsend v. University of Alaska
United States Court of Appeals for the Ninth Circuit
5 September 2008
No. 07-35993 D.C. No. CV 06-0171 TMB

USERRA Claims must be in State not Federal Courts

In this case, an employee sued his former school employer in the federal district court for violations of the Uniformed Service Employment and Reemployment Rights Act of 1994 or the USERRA. The United States Court of Appeals is made to decide on two things:

1. whether a federal district court has jurisdiction over an USERRA action bought by an individual against a state


2. whether USERRA creates a cause of action against state employee-supervisors

The antecedent facts of the case started when Robert David Townsend commenced an action in federal district court against the University of Alaska, an arm of the State of Alaska, for violations of USERRA. He alleged that he was fired from his job with the University because of his military status with the Alaska Air National Guard.

The State contended that the federal district court lacked subject matter jurisdiction over Townsend’s USERRA claim. The State argued that the law which provides that “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”, means that the federal district court lacks jurisdiction over a USERRA claim against a “State (as an employer)” brought by a private individual.

The State then moved for a summary judgment which motion was granted by the district court. The case was dismissed for lack of jurisdiction.

Thereafter, Townsend moved to amend his complaint to include individual supervisors as additional defendants. However, the district court denied leave to amend saying that the same is an exercise in futility as jurisdiction would still be lacking following the conclusion that USERRA does not create a cause of action against individual state supervisors.

Townsend appeals, hence, this case.

The US Court of Appeals resolved this case in favor of the State. It held that although Congress may abrogate the state’s sovereign immunity, here, Congress has not unequivocally expressed intent to abrogate the state’s sovereign immunity in USERRA, the Court, citing the entire legislative and statutory history of the Act.

The Court said that the best that Townsend can point to is the language in the Act that claims against a state “may” be brought in state court. Townsend argues that Congress impliedly intended to authorize private actions against states in federal court.

The Court answers that in at least two occasions, they have “explicitly rejected the argument that permissive language regarding another forum’s jurisdiction means that Congress also intended to grant federal jurisdiction.”

As to the claims against individual supervisors, the Court agreed with the district court when it ruled that the amendment would be futile but the Court differs in reasoning, to wit:

• Individual supervisors are not included in the definition of “State”. Although the cause of action can be brought against a “State (as an employer),” “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 responsibility

As such, the Court concluded that 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 the Court had already noted would be limited to state court.