USERRA cases are relatively rare still (probably not for long) so unusual to see two cases from different circuits on consecutive days. Both are on procedural grounds and in both cases, notwithstanding that USERRA would seem to be the quintessential federal question case, plaintiffs lost out on a federal court hearing
The 5th and 6th are the only two circuit courts to address the issue. While district courts have been mixed, the 6th Circuit specifically disagreed with district courts from Georgia and Kansas which had held otherwise.
In McIntosh v. Partridge (5th Cir. 8/8/08) [pdf] decided last Friday, the Court held that where a state is the employer, a federal court has no jurisdiction under USERRA when the claim is brought by the employee. According to the statute there are three situations that can arise with differing jurisdictional results:
(1) In the case of an action against a State (as an employer) or a private employer commenced by the United States, the district courts of the United States shall have jurisdiction over the action.
(2) In 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.
(3) In 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).
McIntosh was employed by the state of Texas. Notwithstanding that the prior version of USERRA gave federal courts jurisdiction under such circumstances and the statute uses “may” rather “shall” in the applicable section, the Court held that federal courts have no jurisdiction for USERRA claims against a state employer.