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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2009

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0123%3A3. Public record. Not legal advice.