Rimando v. Alum Rock Union Elementary School District , 356 F. App'x 989 ( 2009 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 15 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROMULO R. RIMANDO, No. 08-17371
Plaintiff - Appellant, D.C. No. 5:08-cv-01874-JF
v.
MEMORANDUM *
ALUM ROCK UNION ELEMENTARY
SCHOOL DISTRICT; MARIBEL
GUIZAR- MAITA,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Submitted December 11, 2009**
San Francisco, California
Before: O’SCANNLAIN, RAWLINSON, and BEA, Circuit Judges.
Romolo R. Rimando appeals the district court’s decision to dismiss his
claims against Alum Rock Union Elementary (“Alum Rock”) and Maribel Guizar-
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Maita under the Uniformed Services Employment and Reemployment Rights Act
(“USERRA”), 38 U.S.C. § 4301 et seq. As the facts are known to the parties, they
will not be repeated here, except as necessary to our decision.
Rimando’s arguments are all foreclosed by our decision in Townsend v.
University of Alaska, 543 F.3d 478 (9th Cir. 2008). There, we held that a federal
district court lacked subject matter jurisdiction over USERRA claims brought
against the state of Alaska by a former employee of the University of Alaska,
Fairbanks. We concluded that 38 U.S.C. § 4323(b), which 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,” does not confer jurisdiction on federal courts to hear claims against
states. Townsend, 543 F.3d at 485. Additionally, we held that USERRA does not
create a direct or implied right of action against a supervisor who does not
constitute an “employer” under section 4303(4)(A)(i). Rimando offers no way to
distinguish his case from Townsend.
First, Rimando argues that the district court erred by concluding that it
lacked subject matter jurisdiction over his claims against Alum Rock. We
disagree. Rimando does not challenge the district court’s conclusion that Alum
Rock, as a California public school, constitutes a “State” employer for the purposes
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of USERRA. Therefore, federal jurisdiction over his claim is governed by 38
U.S.C. § 4323(b). In Townsend, we held that such section does not grant federal
district courts subject matter jurisdiction over claims brought by individuals
against state agencies. 543 F.3d at 484. As we discern no difference between the
argument Rimando raises and the argument we rejected in Townsend, we conclude
that the district court did not err by dismissing Rimando’s claim against Alum
Rock for lack of subject matter jurisdiction.
Rimando also claims that the district court erred in dismissing his claims
seperately against Guizar-Maita. He claims that Guizar-Maita is an “employer”
within the meaning of USERRA, and therefore is amenable to suit. USERRA
defines “employer” as “any person . . . that has control over employment
opportunities, including a person . . . to whom the employer has delegated the
performance of employment-related responsibilities. 38 U.S.C. § 4303(4)(A)(i).
We need not decide whether Guizar-Maita falls within this definition, however,
because regardless of whether she is an “employer,” USERRA does not provide a
basis for Rimando’s suit against her.
First, if Guizar-Maita is an “employer” under USERRA, section 4323(b)
does not confer federal jurisdiction over Rimando’s claims against her because she
is herself an employee of Alum Rock, and therefore is a “State” employer for the
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purposes of USERRA. Thus, a federal court would have no jurisdiction over a
claim brought against her under 38 U.S.C. § 4323(b). Townsend, 543 F.3d at 484.
Second, if Guizar-Maita is not an “employer” within the meaning of USERRA,
then Rimando’s attempt to bring a claim against her is foreclosed by our holding in
Townsend that USERRA provides neither an express nor implied cause of action
against a supervisor. 543 F.3d at 486–87. Thus, we conclude that the district court
correctly dismissed Rimando’s claim against Guizar-Maita.
Finally, as we conclude that the text of USERRA does not grant a district
court subject matter jurisdiction over Rimando’s claims, we need not reach his
argument that the Eleventh Amendment does not bar his suit.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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