Opposition Brief — Townsend v. University of Alaska (No. 08-973)

H ae FILED

@ KAR 3 - 2009

No. 08-973 OFFICE OF THE CLERK

ju Whe

Supreme Court of the Gnited States

ROBERT DAVID TOWNSEND,

Petitioner,

v.

UNIVERSITY OF ALASKA Er AL.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION

MARK ASHBURN WILLIAM B. SCHENDEL

ASHBURN & MASON, P.C. Counsel of Record

1227 WEst NINTH AVENUE SCHENDEL LAW OFFICE

Surre 200 250 CuSHMAN STREET

ANCHORAGE, ALASKA 99501 SurtrE 500

(907) 276-4331 FAIRBANKS, ALASKA 99701

(907) 451-6500

Counsel for Respondents

March 3, 2009

Becker Gallagher - Cincinnati, OH - Washington, D.C. ~- 800.890.5001

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether Townsend has presented a compelling

reason for this Court to grant review of the Ninth

Circuit’s decision rejecting federal question

jurisdiction over an employee’s USERRA claim

against a state employer, when that decision does

not directly conflict with any decision of this Court

or any federal court of appeals?

2. Whether Townsend has presented a compelling

reason for this Court to grant review of the Ninth

Circuit’s.decision affirming state immunity under

the 11" Amendment from an employee’s USERRA

claim against a state employer, when that decision

does not directly conflict with any decision of this

Court or any federal court of appeals?

3. Whether Townsend has waived review of the Ninth

Circuit’s decision rejecting individual defendant

liability under USERRA, when he failed to either

raise the issue in his Questions Presented or brief

the issue in the body of his Petition?

i

PARTIES TO THE PROCEEDING

Petitioner is Robert David Townsend.

Respondents are the University of Alaska; the

University of Alaska Fairbanks; Mike Setterberg;

Terry Vrabec; Carolyn Chapman; Mike Hostina; and

Kathleen Schedler (“University”).

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................

PARTIES TO THE PROCEEDING ............

TABLE OF AUTHORITIES ......ccccssccccae

CORTINA oc cece cecncevovsvesnces

Rok tos 6 re

38 vg hye Bi be Fy) ee

STATEMENT OF THE CASE ...............

A. Factual background ...................

B. Proceedings below...................5-

SUMMARY OF THE ARGUMENT ............

REASONS TO DENY THE PETITION .........

A. The courts of appeal uniformly hold that

district courts lack jurisdiction over

Townsend's category of USERRA claim. ...

B. The 1998 amendments to USERRA vest

state courts with exclusive jurisdiction over

private actions against state employers. ...

C. The 11" Amendment bars a _ private

USERRA claim in federal court against a

state employer. ...............-....0.:.

6

13

iv

1. Congress exercised no authority under

the War Powers Clause over private/

state claims in federal court. ........ 13

2. No historical pattern of state hostility to

veterans supports congressional exercise

of War Powers Clause authority. ..... 14

3. The constitutional structure does not

evince the States’ consent to federal court

jurisdiction over War Powers Ciause-

supported legislation. ........... <> ae

4. Section 1331 does not abrogate the

University’s sovereign immunity. ..... 17

D. The availability of a private right of action

under USERRA against individual public

supervisors is not properly before this

a ews ko gas bas ak Mie Be A 17

Vv

TABLE OF AUTHORITIES

‘CASES

Alden v. Maine,

ee PO CD ok cc nce ewe saws cvavecs 11

Bell-Atlantic Corp. v. Twombley,

EF ade OE EP ac ccc cect ewe wesncese% 1

Breuer v. Jim’s Concrete of Brevard, Inc.,

Ge: ee ere

Central Virginia Comm. Coll. v. Katz,

546 U.S. 356 (2006) ............... 13, 15, 16

Cooper Industries, Inc. v. Avia!l Serv., Inc.,

8 re 11

Diaz-Gandia v. Depena-Thompson,

90 F.3d 609 (1% Cir. 1996) ................ 13

ErieNet, Inc. v. Velocity Net, Inc.,

156 F.3d 513 (Srd Cir. 1999) .............. 11

Grable & Sons Metal Products, Inc. v. Darue Eng.

& Mfg.,

Boe Ey} ae 12,14

Int. Science & Tech. Inst., Inc. v. Inacom Comm.,

Inc., ;

106 F.3d 1146 (4™ Cir. 1997) .............. pel

McIntosh v. Partridge,

2007 WL 1295836 (W.D.Tex. 2007)...... 10,11

vi

McIntosh v. Partridge,

540 F.3d 315 (5" Cir. 2008) ....... Perre 5,

Murphey v. Lanier,

204 F.3d 911 (9™ Cir. 2000) .............. il

Nevada Dept. of Human Resources v. Hibbs,

i Pe ccc pec eevenesesees 15

Pearson v. Callahan,

ek ar 4

Reopell v. Commonwealth of Mass.,

956 F.2d 13-1" Cir, 1991) ... 2.2... cceces 13

Schiro v. Farley,

DE Glee RAMOS cc cccccsccesscsdlevess 17

Seminole Tribe v. Florida,

GUT UB. G6 CUBOG) .. ccc cccnces 3, 8, 13, 17

Townsend v. University of Alaska,

543 F.3d 478 (9™ Cir. 2008) ........... 1,5, 11

U.S. Dep’t of HUD v. Rucker,

Sy BMI nc cc tccccceceveesaves 17

Velasquez v. Frapwell,

165 F.3d 593 (7 Cir. 1999) ........ rey or 5,10

Williams v. United Airlines, Inc.,

500 F.3d 1019 (9™ Cir. 2007) .........6.... 11

CONSTITUTION

Res MA, GUI, TEE oc cc cree ceeceuceses 2, 13-

STATUTES

EE EE vt cate ecewecensedeesseaesece |

0 Pee 2. 17

Sc can cesses eetvaceweeeees 12

te Fee Pe + 6

88 U.S.C. § 4S0B(4NANiT) 0. ccc ccc ccc ccce F

ae ee re a 6

By Mita MIME) ccc ccc ceccceccecceces 7

TEE on pa weeevsveswneeseeaveder 11

en en wae Vee 6 ec nde sessed 9

Se ED cng coc cece ceteescvecesee' 8

SO AI Mats DOM) ccc ccccceccccccvccccse BA

PRS eo OS rr 7

ee I occ tcc ce nanseeecasvevs 14

Se ED occ ccc veccscccvecsees . 8

SE U.S.C. § GBROUBMS) 2. ccc cece cccces 1, 2, 7, 23

Gk S Fee P| 2,8

Bop Tom F.C) & } 8, 15

Pe 8

SB ULB.C. § GGBIGMS) 0. ccc ccc ec cccrecnces 7

Re eR RO re 12

Pub. L. No. 103-353, 108 Stat. 3149 (1994),

amended by Pub. L. No. 105-368, § 211(a), 112

Stat. 3316, 3329 (1998) .........--2. 2 eee 7

Pub. L. No. 110-389, 122 Stat. 4145 (2008) ..... 10

vill

RULES

OS OTe Teer Teer ere re Tree. 6

ic eu nes cudaebeeee eae a 6

EE on ns wees cten snake enan ee 17

ED on ccc esdacwentibsecseees 17

a rr e a reer 17

REGULATIONS

RE as ID 0-46 60 coe venlekeceenenes 5

OTHER AUTHORITIES

H.R. 3213, 105th Cong. (1998) ............... 15

H.R. Rep. No. 105-448 (1998), avatlable at 1998 WL

SOU Gia ces ca rheeee canna enes 9, 10, 13, 15

69 Fed. Reg. at 56280 (Sept. 20, 2004).......... 6

70 Fed. Reg. at 75287 (Dec. 19, 2005) .......... 6

144 Cong. Rec. H1396-02 (daily ed. Mar. 24,

rere eee ee ee 8, 9, 10, 13

1

OPINIONS BELOW

The Court of Appeals opinion is reported at 543

F.3d 478 (9" Cir. 2008). The District Court’s opinion is

not officially reported.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254

over Townsend's appeal from the Court of Appeal’s

September 30, 2008, mandate arising from the

September 5, 2008, opinion.

STATUTES INVOLVED

This case rests on an interpretation of the

jurisdictional grant in 38 U.S.C. § 4323(b)(2).

STATEMENT OF THE CASE

A. Factual background’

During Townsend’s employment at the Power Plant

of the University of Alaska Fairbanks, he joined the

Alaska Air National Guard and participated in several

periods of active Guard duty. The University

terminated his employment on October 9, 2003, for

cause. Townsend contends that the University

discriminated against him because of his military

status and performance of his military duty.

' Because the district court dismissed the complaint on its face,

this Court must assume Townsend’s factual allegations to be

accurate. Bell-Atl.ntic Corp. v. Twombley, 550 U.S. 544, __, 127

S. Ct. 1955, 1964-65 (2007).

2

B. Proceedings below

Townsend filed suit in federal district court against

the University, alleging violations of the Uniformed

Services Employment and Reemployment Rights Act

(“USERRA”). Townsend alleged that the University

terminated his employment because of his military

status with the Alaska Air National Guard, in

violation of USERRA. Townsend invoked the district

court’s jurisdiction pursuant to 28 U.S.C. § 1331 and

38 U.S.C. § 4323(bX3), which provides that “[iJn 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.” The University moved

to dismiss, asserting lack of subject matter jurisdiction

over Townsend’s USERRA claim and 11” Amendment

immunity. It argued that the Act’s provision that “[iJn

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. § 4823(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.’

Townsend then moved to amend his complaint to

include individual supervisors as _ additional

defendants.

* Later, before the Ninth Circuit and now this Court, Townsend

relied solely on federal question jurisdiction.

* The parties agree that the University is an arm of the State of

Alaska under the 11” Amendment. Pet. at p. 5.

3

The district court granted the University’s motion

and dismissed the case for lack of jurisdiction. The

court also denied leave to amend, reasoning that such

an amendment would be futile because jurisdiction

would still be lacking, after concluding that individual

state supervisors were “the State” and thus, if suable

at all, subject to state court jurisdiction.

On appeal, the Ninth Circuit affirmed, and held

that (1) a federal district court lacks jurisdiction over

a USERRA claim brought by an individual against a

state, 543 F.3d at 482-85; (2) Congress has not

abrogated the University’s sovereign immunity, id.;

and (3) USERRA does not create, expressly or

implicitly, a cause of action against state employee-

supervisors, id. at 485-87.

SUMMARY OF THE ARGUMENT

The Ninth Circuit’s opinion on the USERRA

jurisdictional, immunity, and individual liability issues

does not directly conflict with any decision of this

Court or with that of any federal court of appeals.

On the merits of the jurisdictional issue, the Ninth

Circuit properly held that the 1998 amendments to

USERRA vested exclusive jurisdiction in state courts

over private claims against state employers when

Congress repealed earlier »xpress grants of federal

court jurisdiction and venue over such claims, and

replaced them with an express grant of state court

jurisdiction over such claims. Legislative history

confirms that Congress did so in response to this

Court’s just-issued opinion in Seminole Tribe uv.

Florida, 517 U.S. 44 (1996). The federal government

has recently agreed that, since the 1998 amendments

4

to USERRA, an individual may prosecute a private

USERRA claim against a state employer only in state

court.

If the Court needs to reach the immunity issue,* it

must conclude that Congress’ 1998 repeal of federal

court jurisdiction and its substitution of state court

jurisdiction over private USERRA actions against

state employers are inconsistent with an unequivocally

expressed intent to abrogate sovereign immunity.

Moreover, no constitutional history or later legislative

findings display state hostility to veterans’ righis,

prerequisites to abrogation under the War Powers

Clause.

Neither Townsend’s Questions Presented nor the

body of his Petition addresses the availability of a

private right of action under USERRA against

individual supervisors. The passing reference to the

issue in his Conclusion does not properly present that

issue to this Court. No circuit court has recognized

individual defendant liability under USERRA.

* The Court generally avoids addressing constitutional issues that

may be mooted by statutory interpretation. See Pearson uv.

Callahan, 129 S. Ct. 808, 821 (2009).

5

REASONS TO DENY THE PETITION

A. The courts of appeal uniformly hold that

district courts lack jurisdiction over

private USERRA actions against state

employers.

All three circuit courts that have reviewed the 1998

USERRA amendments agree that Congress thereby

stripped federal courts of jurisdiction over USERRA

suits by an individual against a state employer, and

failed to abrogate state sovereign immunity. Townsend

v. University of Alaska, 543 F.3d at 482-84; McIntosh

v. Partridge, 540 F.3d 315, 320-21 (5 Cir. 2008) (only

as to jurisdiction); Velasquez v. Frapwell, 165 F.3d 593,

593-94 (7™ Cir. 1999) (per curiam) (only as to

jurisdiction).

The federal government intervened in the Fifth

Circuit matter, and successfully argued the absence of

federal jurisdiction for such suits. McIntosh ov.

Partridge, 540 F.3d at 320.° Its position is consistent

with the Labor Department’s regulations

implementing the amendments,’ and associated

* The Justice Department’s brief is available at: http//www.usdoj.

gov/crt/briefs/mcintosh.pdf (last visited Feb. 24, 2009). The

Department argued that Congress, in 1998, chose not to exercise

its authority under the War Powers Clause to confer district

courts with jurisdiction over private USERRA suits against state

employers.

* 20 C.F.R. § 1002.305(b) (“If an action is brought against 2 State

by a person, the action may be brought in a State court of

competent jurisdiction according to the laws of the State”). The

Department issued the regulations under 38 U.S.C. § 4331(a).

commentary.’

Townsend's initial claim of “conflicting case-law

regarding changes made to USERRA in 1998,” Pet. at

p. 8, later becomes a claim that “conflicting Supreme

Court opinions have held that ... “a grant of

jurisdiction to state courts framed such that a plaintiff

‘may’ bring or maintain a suit in state court does not

grant exclusive jurisdiction to the state courts.” Id.

(emph. in orig.) That rephrased argument ignores

Congress’ repeal in 1998 of express provisions lodging

jurisdiction and venue in district courts, infra.

Townsend, thus, fails to show a compelling reason for

this Court to review these jurisdictional and immunity

issues. See Supreme Court Rule 10(a) and (c).

B. The 1998 amendments to USERRA vest

state courts with exclusive jurisdiction

over private actions against state

employers.

USERRA forbids employment discrimination on the

basis of membership in the armed forces. 38 U.S.C.

§§ 4301(a)(3), 43811(a). An employer violates USERRA

7 U.S. Dep't of Labor, Final Rule, USERRA Regulatioas, 70 Fed.

Reg. at 75287 (Dec. 19, 2005) (“The United States district courts

have jurisdiction over actions against a State or private employer

brought by the Untied States, and actions against a private

employer by a person. For actions brought by a person against a

State, the action may be brought in a State court of competent

jurisdiction.”; U.S. Dep’t of Labor, Proposed Rule, USERRA

Regulations, 69 Fed. Reg. at 56280 (Sept. 20, 2004) (“the

individual may file a complaint directly in the appropriate United

States District Court or State court in cases involving a private

sector or State employer, respectively”).

7

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 proves it would have

taken the same action in the absence of such

membership or obligation. See id. § 4311(c\1). 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), (bX(2), (dX3).

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. 103-383, § 2, 108 Stat. 3149,

3165 (1994), amended by Pub. L. No. 105-368, § 211(a),

112 Stat. 3315, 3329 (1998). The pre-1998 venue

provision provided that “[iJn 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.” Jd.

The Veterans Programs Enhancement Act of 1998

made 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.

8

§ 4323(b)(1), (3). Where the Attorney General believes

that a State has not complied with USERRA, the

amended version authorizes the United States to

substitute 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 in 1998. It now provides that “[i]a 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(cX(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 USERRA actions

brought by individuals against a state be filed in state

court. The expressed reason for these amendments

was Congress’ concern about this Court’s then-recent

decision in Seminole Tribe v. Florida, 517 U.S. 44

(1996), where 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 acting

pursuant to its Commerce Clause powers. Jd. at 59, 72-

73. Congress perceived Seriinole Tribe to throw the

validity of USERRA’s abrogation of state sovereign

immunity in doubt. See 144 Cong. Rec. H1398 (daily

ed. Mar. 24, 1998) (Statement of Rep. Evans)

(“[Sleveral courts have held the reasoning of the

9

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 veterens’

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) (emph. added),

available at 1998 WL 117158.

The House Report thus makes nlain 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

10

federal court; and (2) directing actions brought by

individual service members, who were not represented

by the United States, to state court. 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 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 court of appeals below relied on that legislative

history to conclude that district courts lack jurisdiction

over private USERRA claims against state employers.

The Fifth Circuit recently reached the same

conclusion, McIntosh v. Partridge, 540 F.3d at 320-21,

as had the Seventh Circuit earlier. Velasquez uv.

Frapwell, 165 F.3d at 593-94.?

* The recent Veterans’ Benefits Improvement Act of 2008

bolstered veterans’ rights under USERRA, but contained no

provision to alter the cited holdings by the Fifth and Ninth

Circuits of the previous several months. Pub. L. No. 110-389, 122

Stat 4145 (enacted on Sept. 27, 2008, signed by the President on

Oct. 10, 2008). Congress’ presumed awareness of these rulings

suggests that those appellate courts had adopted reasonable

interpretations of the 1998 Amendments. —

* Townsend errs in suggesting the presence of“conflicting case-law

regarding changes made to USERRA in 1998” concerning any

question presented to this court. Pet. at p. 8. Only one court has

held that the 1998 amendments permit district courts to hear

private USERRA claims against state employers. The district

court’s opinion in McIntosh y. Partridge, 2007 WL 1295836

11

Townsend's emphasis on “may” ignores not only

this legislative history, but also the statutory text and

structure, and background assumptions of

jurisprudence. Congress’ use of “may” in § 4323(b)(2)

reflects appropriate congressional deference to the

states’ autonomy over the jurisdiction of their own

courts.’° It also indicates the range of remedial options |

available to a public employee. See 38 U.S.C. §§ 4322

(administrative complaint with the Secretary of Labor)

and 4323(a)(1) (Labor Secretary’s referral of complaint

to Attorney General for Justice Department suit in

federal court)."! Use of “may” to recognize concurrent

jurisdiction is superfluous.”

(W.D.Tex. 2007), was recently reversed by the Fifth Circuit.

Supra.

© Alden v. Maine, 527 U.S. 706 (1999); Townsend v. Univ. of

Alaska, 543 F.3d at 483, n.2.

1 See also Murphey v. Lanier, 204 F.3d 911, 914 (9" Cir. 2000)

(because federal jurisdiction is limited to that conferred by

Congress, a statute stating that an action “may” be 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”); Williams uv. United Airlines, Inc., 500 F.3d

1019, 1022 (9 Cir. 2007) (a statute stating that a person “may”

file an administrative complaint with the Secretary of Labor does

not permit ine person to elect to file a lawsuit in the district

court).

'? Cooper Industries, Inc. v. Aviall Serv., Inc., 543 U.S. 157, 166

(2004). Thus, courts have rejected reading “may” to connote

concurrent jurisdiction. ErieNet, Inc. v. Velocity Net, Inc. , 186 F.3d

513, 517 (3™ Cir. 1999); Int. Science & Tech. Inst., inc. v. Inacom

Comm.., Inc., 106 F.3d 1146, 1151-52 (4" Cir. 1997).

12

This Court’s comments on “may” in Breuer v. Jim’s

Concrete of Brevard, Inc., 538 U.S. 691 (2003), and

Grable & Sons Metal Products, Inc. v. Darue Eng. &

Mfg., 545 U.S. 308 (2005), do not point to a contrary

result, because the statutory schemes in neitier case

presented the combination of repealed federal

jurisdictional provisions and expressly designated

state court jurisdiction that is present in USERRA.

The statute examined in Breuer (the Fair Labor

Standards Act) expressly provided that actions may be

“maintained ... in any Federal or State Court of

competent jurisdiction,”"“ in contrast to USERRA,

where Congress had, via the 1998 amendments to

USERRA, deleted language conferring federal

jurisdiction, and substituting language conferring state

court jurisdiction over relevant USERA claims. Grable

& Sons, in fact, counsels against broad readings of

Section 1331 that would disturb “congressional

judgment about the sound division of labor between

state and federal courts . . .”545 U.S. at 313, the result

that would flow if Section 1331 were read to override

Congress’ 1998 trimming of federal court jurisdiction.

The circuit courts that have interpreted USERRA have

properly attended-to the evolution of Congress’ grants

of USERRA jurisdiction, as well as to its use of

antonyms.**

48 29 U.S.C. § 216(b). See Breuer, 538 U.S. at’ 694.

“ As discussed in the preceding paragraph, Congress did not use

“shall” and “may” in oppositional senses in USERRA.

13

C. The 11 Amendment bars a private

USERRA claim in federal court against a

state employer.

The court of appeals held that Congress has not

unequivocally expressed an intent to »brogate

sovereign immunity against USERRA claims. 543 F.3d

at 484-85. Townsend now argues that the War Powers

Clause of Ariicle I authorizes congressional abrogation

even in the absence of an unequivocal statement.

1. Congress exercised no authority under

the War Powers Clause over private/

state claims in federal court.

While earlier versions of USERRA and its

antecedents had relied on the War Powers Clause,”

the 1998 Congress concluded that this Court’s then-

recent opinion in Seminole Tribe had rendered

questionable its authority to abrogate state immunity

from private USERRA claims.** While Congress's

authority may not be limited to the constitutional

provisions it expressly relies on, it may not rest on

powers that it has clearly renounced.

'® Diaz-Gandia v. Depena-Thompson, 90 F.3d 609, 616 (1* Cir.

1996); Reopell v. Commonwealth of Mass., 936 F.2d 12, 15-16 (1*

Cir. 1991).

6H. R. Rep. No. 105-448 (1998), 1998 WL 117158 **2-5; 144 Cong.

Rec. H1397-99 (daily ed. Mar. 24, 1998) (Comments by Reps.

Evans, Quinn, Filner & Gilman). With the hindsight afforded by

Central Virginia Comm. Coll. v. Katz, 546 U.S. 356 (2006), the

1998 Congress may have underestimated its Article I authority to

trim state sovereignty, though Katz is still insufficiently expansive

so as to help Townsend.

14

Even if Congress could be credited with War

Powers authority that it disclaimed, its undoubtedly

broad authority under that Clause does not require it

to confer jurisdiction on district courts over claims

asserted by veterans, as Townsend suggests. Pet. at

pp. 21-24. Congress retains the discretion to allocate or

withhold jurisdiction as its judgment dictates. Grable

& Sons, supra. Here, via § 4323(b), Congress has

expressed its judgment that a category of USERRA

claims may be filed only in state courts. No notion of

sovereign immunity requires this Court to

countermand that congressional judgment.

2. No historical pattern of state hostility

to veterans supports congressional

exercise of War Powers Clause

authority.

Even if Congress had decided in 1998 to use War

Powers authority, it lacked the evidentiary foundation

for abrogating state immunity. That Congress (nor any

other, to the University’s knowledge) made no findings

of a pattern of state violations of USERRA. The

opposite is true, in fact.

Although disputes between state agencies and

employees about the scope and meaning of

USERRA and its predecessor laws (commonly

referred to as Veterans Reemployment Rights

(VVR) laws) have arisen from time to time, state

employers regularly afford persons serying in

Forces and Selected Reserve the

rights guaranteed by these laws.

** *

15

Given the lack of controversy surrounding the

general subject of VRR, and the relatively good

record of compliance by state agencies with the

law as it existed at that time [1991 — 1994], it is

not surprising to find very little discussion in

the 1991 and 1993 committee reports about the

remedies available to state employees.”

The absence of any evidence of state hostility to

veterans is critical, because this Court has required

such an evidentiary record of pre-statute

discrimination to support congressional exercise of

power against states under the 14% Amendment,” and

has relied on extensive evidence of pre-1789 state

hostility to debtor relief to support congressional

exercise of power against states under the Bankruptcy

Clause.”

Congress’ evident satisfaction with the states’

respect for veterans’ rights, supra, undercuts

Townsend's prediction of enlistment shortfalls. Pet. at

'’ H. R. Rep. No. 105-448 (1998), 1998 WL 117158 *3 & **4-5

(emph, added).

'® Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 726-

27 (2003).

'* Central Virginia Community College v. Katz, 546 U.S. at 361.

The Katz court also smphasized the limited (in rem) ature of

Bankruptcy Court jurisdiction, id. at 369-70, which restricted

federal intrusion into state interests. Federal court jurisdiction

over private/state USERRA claims, in contrast, would permit the

federal court to wield the entire panoply of remedial devices,

including injunctions, reinstatement orders, liquidated damages,

and attorney fees, as well as compensatory damages, outlined in

38 U.S.C. § 4323(cX 1).

16

pp. 7 & 25. Congress’ continuing oversight of veterans

legislation,” rather than judicial adoption ofa strained

reading of the 1998 amendments, offers the

appropriate safeguard.

3. The constitutional structure does not

evince the States’ consent to federal

court jurisdiction over War Powers

Clause-supported legislation.

Nor is there any evidence that the states, during

the drafting of the constitution, explicitly or iraplicitly

consented to federal court jurisdiction over war or

veterans-related claims against the states. For

bankruptcy claims, the “uniform laws” envisioned by

the constitutional drafters,“and the in rem nature ot

bankruptcy,” necessarily dictated exclusive federal

jurisdiction. In contrast, the resolution of veterans

claims requires the exercise of far more intrusive in

personam jurisdiction, and is as easily accomplished in

state court as in federal court. Congresses immediately

following the constitutional convention did not propose

or enact legislation “subordinatling] state sovereignty

in the [War Powers] arena.” The War Powers Clause,

thus, presents a substantially less compelling case for

an inference that the original states agreed to subject

themselves to federal court jurisdiction.

™” See n.8, supra.

*! 546 U.S. at 366, 368.

* 546 U.S. at 369-73

™ 546 U.S. at 363.

17

Given the absence of any implied consent reflected

by the constitutional structure, the absence of any

pattern of state hostility to veterans, and the absence

of any congressional intent te confer jurisdiction over

these claims to federal courts, state arms such as the

University retain their sovereign immunity from

private USERRA claims in federal court.

4. Section 1331 does not abrogate the

University’s sovereign immunity.

Congress’ targeted deletion of federal court

jurisdiction over Townsend's category of USERRA

claim, supra, trumps the generalized assertion of

federal question jurisdiction in 28 U.S.C. § 1331. See

U. S. Dep’t of HUD v. Rucker, 535 U.S. 125, 134 n.2

(2002). Even more so, the generalities of Section 1331

are insufficient to unequivocally express congressional

intent to abrogate state sovereign immunity. Seminole

Tribe, 517 U.S. at 86 (Stevens, J., dissenting).

D. The availability of a private right of action

under USERRA against individual public

supervisors is not properly before this

Court.

While Townsend, in his Conclusion, asks this Court

to hold that USERRA permits suit against individual

supervisor-employees, Pet. at pp. 25-26, he omitted

that issue from his Questions Presented, id. at i, and

did not brief it in the body of his Petition. Townsend

has, thus, waived the presentation of this issue.

Supreme Court Rule 14.1(a) (last sentence); 14(h);

14.4. See Schiro v. Farley, 510 U.S. 222, 229 (1994)

(failure to brief argument in Opposition to Petition

waives the argument).

18

CONCLUSION

Townsend has not established any compelling

reason for this Court to grant his Petition. Therefore,

Respondent University respectfully requests the Court

to deny the Petition.

Respectfully submitted,

William B. Schendel, Atty.

Counsel of Record

SCHENDEL LAW OFFICE

250 Cushman Street

Suite 500

Fairbanks, Alaska 99701

(907) 451-6500

Mark Ashburn, Atty.

ASHBURN & MASON, P.C.

1227 West Ninth Avenue

Suite 200

Anchorage, Alaska 99501

(907) 276-4331

Counsel for Respondents