Albert J. Velasquez, Plaintiff-appellant, v. Dorothy J. Frapwell and the Trustees of Indiana University,defendants-appellees,andunited States of America, Intervening Plaintiff-appellant, 165 F.3d 593 (7th Cir. 1999)

In our opinion in this case issued on November 12, 1998, and reported at 160 F.3d 389 (7th Cir. 1998), we held that the plaintiff's claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301 et seq., against the Trustees of Indiana University, an arm of the State of Indiana, was barred by the Eleventh Amendment. Later we learned that on the day before our decision was issued, Congress had amended USERRA in the Veterans Programs Enhancement Act of 1998, Pub. L. No. 105-368 (Nov. 11, 1998). We asked the parties to submit supplemental memoranda concerning the possible impact of the amendment on our decision; the defendants and the federal government have responded, the latter in the form of a petition to vacate so much of our decision as relates to USERRA.

The amendment to USERRA, so far as bears on this case, adds a new section conferring only on state courts jurisdiction over suits against a state employer, 38 U.S.C. § 4323(b), and makes the new jurisdictional provision applicable to pending cases, Pub. L. No. 105-368, § 211(b) (1), and hence to this case. The defendants argue that jurisdiction continues in the federal courts under the general federal-question jurisdictional statute, 28 U.S.C. § 1331, which section 211 of the statute amending USERRA does not purport to repeal. The argument has no merit; Congress's intention to limit USERRA suits against states to state courts is unmistakable; the defendant's arguments that this case was finally decided because the district court issued a final decision and so the amendment is inapplicable, and that if it is applicable it is unconstitutional, also plainly lack merit.

We conclude that we lacked jurisdiction over the plaintiff's USERRA claim, though not over his other claim, which is under Title VII of the Civil Rights Act of 1974. We therefore vacate so much of our decision as relates to the state's Eleventh Amendment defense and, as is customary, United States v. Munsingwear, 340 U.S. 36, 41, 71 S. Ct. 104, 95 L. Ed. 36 (1950), we also vacate the relevant ruling by the district court. Our judgment affirming the dismissal of the suit is not affected, however.