                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 12-2368

    RAÚL PADILLA-RUIZ; VIVIAN J. FRANCESCHINI-RODRÍGUEZ; and
           CONJUGAL PARTNERSHIP PADILLA-FRANCESCHINI,

                       Plaintiffs, Appellants,

                                     v.

  UNITED STATES; ERIC H. HOLDER, JR., U.S. Attorney General; ROSA
 E. RODRÍGUEZ-VÉLEZ, U.S. Attorney for Puerto Rico; DEPARTMENT OF
     THE ARMY; JOHN MCHUGH, Secretary of the Army; LTC FRANCISCO
      BETANCOURT, Commander of the U.S. Army Cadet Command, ROTC
 Mayagüez; LTC JOSE PLAZA, Commander of the U.S. Army Cadet, ROTC
Mayagüez; LTC ISMAEL REYES-BETANCOURT, Commander of the U.S. Army
 Cadet Command, ROTC Mayagüez; COMTEK COMMUNICATION TECHNOLOGIES,
    INC.; JOHN CRAY; JOHN DOE; RICHARD ROE, and their respective
                         insurance companies,

                       Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Francisco A. Besosa, U.S. District Judge]



                                  Before

                   Torruella, Lipez and Barron,
                          Circuit Judges.




     Juan R. Rodríguez, with whom Rodríguez López Law Offices,
P.S.C. was on brief, for appellants.
     Rebecca E. Ausprung, Trial Attorney, Chief, Civilian Personnel
Branch, U.S. Army Litigation Division, with whom Rosa Emilia
Rodriguez-Velez, U.S. Attorney, and Nelson Pérez-Sosa, Assistant
U.S. Attorney, Chief, Appellate Division, were on brief, for
appellees United States; Eric H. Holder, Jr., U.S. Attorney
General; Rosa E. Rodríguez-Vélez, U.S. Attorney for the District of
Puerto Rico; Department of the Army; John McHugh, Secretary of the
Army; LTC Francisco Betancourt, Commander of the U.S. Army Cadet
Command, ROTC Mayagüez; LTC Jose Plaza, Commander of the U.S. Army
Cadet, ROTC, Mayagüez.
     Eugene F. Hestres, with whom Bird Bird & Hestres, P.S.C. was
on brief, for appellees LTC Israel Reyes-Betancourt and COMTek
Communication Technologies, Inc.


                         January 30, 2015
           BARRON, Circuit Judge.     Raúl Padilla-Ruiz1 lost his job

with a private defense contractor retained by the Army Cadet

Command.   Padilla contends the contractor fired him for leaving at

various times to fulfill his obligations as a Lieutenant Colonel in

the Army Reserve. Padilla sued the contractor, as well as a number

of federal governmental defendants, under a number of federal

statutes as well as Puerto Rico law.

           The District Court dismissed all of these claims with

prejudice, many for having been filed too late, the rest for

otherwise failing to state a claim or for lack of jurisdiction.

The defendants ask us to affirm on the same grounds and, with one

exception, we do.    The exception is this:       The District Court

directly discussed only the claims against the federal defendants.

But the claims against the defense contractor under the Uniformed

Services Employment and Reemployment Rights Act of 1994 ("USERRA"),

38 U.S.C. §§ 4301-4335, and Puerto Rico law do not suffer from the

same infirmities as the other claims.       Thus, we may not affirm

their dismissal on that same basis.

           Still, the contractor argues we may affirm the dismissal

of those claims for the separate reason that the federal district


     1
          Padilla's wife and their "conjugal partnership" -- a
legal entity that holds a married couple's community property as a
matter of Puerto Rico law, see P.R. Laws Ann. tit. 31, §§ 3622,
3641, 3661 -- joined Padilla as co-plaintiffs below and join his
brief in this Court. That brief, however, fails to distinguish
their claims from Padilla's own in any respect. To simplify our
discussion, we therefore refer only to Padilla.

                                -3-
court in Puerto Rico was an improper venue for their resolution,

and that Padilla cannot argue otherwise because he did not appeal

the venue-based dismissal of an earlier lawsuit he had brought.

Rather than address that venue issue for the first time on appeal,

however,      we   remand   these   claims      to   the   District    Court.   We

therefore affirm in part, vacate in part, and remand the surviving

USERRA and Puerto Rico law claims for the District Court to

consider the venue issue.

                                          I.

               The District Court opinion provides a detailed factual

and procedural history of this case.                 See Padilla-Ruiz v. United

States, 893 F. Supp. 2d 301, 303-04 (D.P.R. 2012).                In short form,

Padilla alleges that, until 2008, he worked for a private defense

contractor called COMTek at a Reserve Officers' Training Corps

(ROTC)2 office at a university in Puerto Rico.                   Paddilla claims

COMTek is a private company that contracted with the Army to

"provide [the] labor force for the US Army Cadet Command," which

runs the federal ROTC program.

               Padilla also claims that, as a Lieutenant Colonel in the

Army       Reserve,   he   was   called   up    at   various   times   during   his

employment at COMTek for training or to active duty.                       Padilla

alleges COMTek fired him on August 13, 2008.                    Padilla further


       2
          The ROTC is a federal government program that "prepar[es]
selected students" at civilian universities for "commissioned
service" in the armed forces. 10 U.S.C. § 2102.

                                          -4-
alleges that his military service prompted this firing, contrary to

USERRA's    prohibition   of    discrimination       in     employment   against

members of the armed services based on their military service.               38

U.S.C. § 4311(b).

             Padilla first filed a lawsuit against COMTek and a person

he alleges was one of its managers, John Cray, on July 22, 2009.

Padilla brought that challenge in the federal district court in

Puerto Rico.      Padilla claimed his employer violated USERRA and

Puerto Rico law.      The District Court dismissed that lawsuit on

April 26, 2010.     The District Court ruled a forum selection clause

in Padilla's contract with COMTek required Padilla to file suit in

the Eastern District of Virginia.              Padilla never appealed that

dismissal.    Nor did he re-file his suit in the Eastern District of

Virginia.     Instead, Padilla filed a new lawsuit in the federal

district court in Puerto Rico on April 25, 2011.               That suit is the

one at issue in this appeal.          Like Padilla's initial lawsuit, this

one again names COMTek.        It also names various federal government

entities    and   employees,    who    we    will   call,    collectively,   the

"federal defendants."3


     3
          Specifically, Padilla sued the United States, the
Attorney General, the U.S. Attorney for the District of Puerto
Rico, the Department of the Army, the Secretary of the Army, and
three Army officers with the U.S. Army Cadet Command -- Lieutenant
Colonels Betancourt, Plaza, and Reyes-Betancourt.      Padilla also
named John Cray -- COMTek's alleged manager -- in this second suit,
but Padilla never served Cray with process, and Cray never appeared
below, so Cray is not a party before us. See S. Express, Inc. v.
White, 240 F.2d 682, 683 n.1 (10th Cir. 1957).

                                       -5-
            The defendants moved to dismiss for failure to state a

claim, lack of jurisdiction, and improper venue.               The District

Court dismissed the suit in its entirety on September 27, 2012.

The District Court, however, discussed only Padilla's failure to

state a claim under Federal Rule of Civil Procedure 12(b)6) and the

lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1)

over some claims, and limited its analysis to Padilla's claims

against the federal defendants. This Court stayed Padilla's appeal

for   almost   a   year   while   Padilla    served    on   active   duty    in

Afghanistan.       The parties agree the appeal is now ready for

decision.

                                    II.

            We review de novo the District Court's dismissal of

Padilla's claims.     See González-Maldonado v. MMM Healthcare, Inc.,

693 F.3d 244, 247 (1st Cir. 2012); Fothergill v. United States, 566

F.3d 248, 251 (1st Cir. 2009).            We start with the ones Padilla

brings against the federal defendants.

                                     A.

            Padilla sued the federal defendants under the Federal

Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680.                  The

District Court ruled Padilla did so too late, and rejected his

argument for equitable tolling.       We agree.       Padilla waited to sue

for almost a year after the Army had denied his FTCA claim.                 But

the statute gave him only six months in which to do so.              See id.


                                    -6-
§ 2401(b).           Padilla seeks equitable tolling of the statute of

limitations.         But even if tolling is available under the FTCA, see

Sanchez v. United States, 740 F.3d 47, 53-54 (1st Cir. 2014),

Padilla has not shown he should benefit from it, see Padilla-Ruiz,

893 F. Supp. 2d at 306.

               We also agree that Padilla's claims against the federal

defendants under 42 U.S.C. § 1983 (which has no application to

federal defendants) and Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), (which does), are

time-barred.         See Padilla-Ruiz, 893 F. Supp. 2d at 307.          Padilla

waited over two-and-a-half years from the time of firing to file

suit.    That is well more than the one year the law gave him to do

so.     See Santana-Castro v. Toledo-Dávila, 579 F.3d 109, 114 (1st

Cir. 2009) (§ 1983); Roman v. Townsend, 224 F.3d 24, 29 (1st Cir.

2000) (Bivens). We also agree Padilla is not entitled to equitable

tolling.       See Padilla-Ruiz, 893 F. Supp. 2d at 307.

               The    District   Court   next   dismissed   Padilla's    claims

against the federal defendants under the Posse Comitatus Act, 18

U.S.C.     §    1385,     and    the   Health   Insurance   Portability    and

Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936

(codified in scattered sections of 26, 29, and 42 U.S.C.).                  The

District Court ruled that those statutes do not create private

rights of action.         Padilla-Ruiz, 893 F. Supp. 2d at 308-310.         The

District Court further ruled that Padilla's claim under the Privacy


                                         -7-
Act of 1974, 5 U.S.C. § 552a, was time-barred as to Padilla's

claims against federal agencies and that there was no private right

of action under the Act as to the other defendants.       Padilla-Ruiz,

893 F. Supp. 2d at 309.         Padilla makes no meaningful argument

against any of those conclusions on appeal.         We thus conclude he

has waived any such argument.      See United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990).       And while Padilla asserted a claim

under the Servicemembers Civil Relief Act, 50 U.S.C. app. §§ 501-

597b, he abandoned that claim below and offers no argument for

reviving it here.      See Padilla-Ruiz, 893 F. Supp. 2d at 308.

              Padilla's USERRA claims, by contrast, are timely. USERRA

provides that "there shall be no limit on the period for filing" a

claim under its provisions.       38 U.S.C. § 4327(b).        The District

Court concluded, however, that Padilla should have brought his

USERRA claims before the Merit Systems Protection Board ("MSPB"),

a   federal    administrative   tribunal   that   generally    adjudicates

employment disputes between federal employees and the federal

government.      Padilla-Ruiz, 893 F. Supp. 2d at 308;        see also 38

U.S.C. § 4324(b) ("A person may submit a complaint against a

Federal executive agency . . . directly to the Merit Systems

Protection Board . . . .").

              Padilla does not argue on appeal that the District Court

was wrong to rule that, if Padilla could have brought his claims

against the federal agencies before the MSPB, he was required to do


                                   -8-
so.   We thus treat any such argument as waived.         See Exec. Leasing

Corp. v. Banco Popular de P.R., 48 F.3d 66, 67 (1st Cir. 1995)

("'If counsel desires our consideration of a particular argument,

the argument must appear within the four corners of the brief filed

in this court.'" (quoting Katz v. King, 627 F.2d 568, 575 (1st Cir.

1980)).

            Instead, Padilla argues on appeal only that he is an

employee of COMTek, instead of a government employee, and so he

could not have brought his claims against the federal agencies to

the MSPB.   But if Padilla means to argue that the federal agencies

were not his "employer[s]" as USERRA uses that term, that would

mean he would have no meritorious USERRA claim to bring against

them, as the Act prohibits discrimination only by "employer[s]."

See 38 U.S.C. § 4311. And conversely, if Padilla contends that the

federal agencies were his "employer[s]" within USERRA's use of that

term, even though he was an employee of a private government

contractor,   then   he   would   be   conceding   the   MSPB   would   have

jurisdiction over his claims. See Silva v. Dep't of Homeland

Security, 2009 M.S.P.B. 189, ¶ 19 (affirming its jurisdiction over

a claim by an employee of a government contractor where the

employee had "made a non-frivolous allegation that DHS exercised

control over his reemployment to such an extent that it should be

considered his 'employer' under USERRA").          Any meritorious USERRA




                                   -9-
claim that Padilla may have against the federal agencies is thus

necessarily one that he could have brought before the MSPB.

             That    leaves        Padilla's   USERRA   claims    against     the

individual federal employees.            The District Court dismissed those

claims, like the other USERRA claims, for lack of jurisdiction.

And Padilla's brief makes no argument for why Padilla's USERRA

claims against the federal employees were within the District

Court's jurisdiction.         And thus, we treat this argument, too, as

waived.    See Zannino, 895 F.2d at 17.

                                         B.

             We come finally to the claims the District Court did not

directly discuss in ordering the blanket dismissal: Padilla's

claims against the private defendant, COMTek.4 COMTek contends the

District Court's omission does not matter.                 COMTek argues first

that the District Court lacked subject matter jurisdiction to hear

the USERRA claim against it.            And while COMTek no longer presses

the argument that the Puerto Rico law claims are time barred,

COMTek    does    contend     an    alternative   ground    for   dismissal   is

available.       COMTek further argues this other ground also prevents

the USERRA claim from going forward, even if a federal district

court did have subject-matter jurisdiction to resolve that claim.



     4
          If, indeed, the District Court overlooked these claims,
the error is understandable. Padilla's complaint and motion papers
in the District Court bordered on inscrutable, and his briefing in
this Court is no better.

                                        -10-
In particular, COMTek argues the federal district court in Puerto

Rico is an improper venue for the resolution of these claims.                           We

take these arguments in the order that COMTek presents them.

                                         1.

            USERRA 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."        38       U.S.C.

§ 4323(b)(3).      Nothing in the statute changes that rule when the

private    employer    happens    to     be    an   employee     of   a    government

contractor.       See id.; Silva, 2009 M.S.P.B. 189, ¶ 10.                           Thus,

Padilla's USERRA claims against COMTek were within the subject-

matter jurisdiction of the District Court.

                                         2.

            That brings us, finally, to COMTek's alternative argument

for affirmance.       COMTek points out that Padilla filed a previous

suit against it in 2009.           See Padilla-Ruiz v. COMTek Commc'ns

Techs., No. 09-1695 (SEC), 2010 WL 1728311 (D.P.R. Apr. 26, 2010).

That suit, like this one, concerned COMTek's 2008 decision to

relieve Padilla of his duties.            See id. at *1.           That suit, too,

included claims under USERRA and Puerto Rico law challenging

Padilla's 2008 firing.         See id.

            The   District     Court     dismissed        that   earlier     suit      for

improper    venue.       The   District       Court   concluded       that      a    forum

selection clause in Padilla's employment agreement with COMTek


                                       -11-
allowed suit only in the U.S. District Court for the Eastern

District of Virginia.   See id. at *5.   Padilla never appealed that

judgment.    COMTek thus argues under the doctrine of collateral

estoppel that Padilla's claims against it -- both under USERRA and

under Puerto Rico law -- should be dismissed for improper venue.

            COMTek raised this argument in a motion to dismiss for

improper venue in the District Court. But the District Court never

addressed it. We therefore remand Padilla's USERRA and Puerto Rico

law claims against COMTek for the District Court to address

COMTek's venue challenge.

                                III.

            For the reasons discussed above, we affirm the District

Court's dismissal of all claims except for the USERRA and Puerto

Rico law claims that Padilla brings against COMTek.    With respect

to those latter claims, we vacate and remand to the District Court

for further proceedings consistent with this opinion. No costs are

awarded.




                                -12-
