FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT DAVID TOWNSEND, 

Plaintiff-Appellant, No. 07-35993

v. D.C. No.

UNIVERSITY OF ALASKA;  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
COUNSEL

Donald L. Hyatt, II, New Orleans, Louisiana, for the plaintiffappellant. 

William B. Schendel, Fairbanks, Alaska, for the defendantsappellees.

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.

TOWNSEND v. UNIVERSITY OF ALASKA 12337
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 (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

12338 TOWNSEND v. UNIVERSITY OF ALASKA
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

[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 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). 

[2] 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

TOWNSEND v. UNIVERSITY OF ALASKA 12339
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 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). 

12340 TOWNSEND v. UNIVERSITY OF ALASKA
[4] 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 (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 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

TOWNSEND v. UNIVERSITY OF ALASKA 12341
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. 

[5] 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.2See 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 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. 

1An 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). 

2Congress 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 Constitution 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 [Telephone 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.”). 

12342 TOWNSEND v. UNIVERSITY OF ALASKA
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 jurisdiction over USERRA claims brought by private individuals

against an arm of the State. The Eleventh Amendment, however, bars federal jurisdiction over suits against an unconsenting 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’ sovereign 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 concluded that a statute stating that a person “may” file an administrative 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 fedTOWNSEND v. UNIVERSITY OF ALASKA 12343
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 textual.”); 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 quotation marks and citations omitted).3

[9] Townsend also argues in passing that 28 U.S.C. § 1331,

the general federal question jurisdictional statute, grants jurisdiction 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 sovereign immunity.” Seminole Tribe, 517 U.S. at 86 (Stevens, J.,

dissenting). 

[10] Thus, we conclude that the district court correctly dismissed 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

3By 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. 

12344 TOWNSEND v. UNIVERSITY OF ALASKA
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 Townsend, 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

4The 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 capacity, 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)). 

TOWNSEND v. UNIVERSITY OF ALASKA 12345
against individual state supervisors.6

 Accordingly, Townsend’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 performance 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). Individual 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 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

6The 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 arguable) 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 jurisdiction, see Fed. R. Civ. P. 12(b)(1). 

12346 TOWNSEND v. UNIVERSITY OF ALASKA
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 definition 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 especial 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 underlying 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). 

TOWNSEND v. UNIVERSITY OF ALASKA 12347
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 statute 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, Congress 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 legislative history suggests an intent to create a cause of action

against individual state supervisors. 

[16] Thus, the structure of USERRA and its legislative history 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

12348 TOWNSEND v. UNIVERSITY OF ALASKA
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. 

TOWNSEND v. UNIVERSITY OF ALASKA 12349