                            NOT FOR PUBLICATION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


                                           2
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


                                           3
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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