Mueller v. City Of Joliet et al
Filing
32
MEMORANDUM Opinion and Order: For the reasons stated here herein, Defendants' Motion to Dismiss Count I is granted. Count II dismissed for lack of federal jurisdiction. Signed by the Honorable Harry D. Leinenweber on 5/2/2018:Mailed notice (maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID MUELLER,
Plaintiff,
v.
Case No. 17 C 7938
CITY OF JOLIET; BRIAN BENTON,
in his official and
individual capacity as the
CHIEF OF POLICE; and EDGAR
GREGORY, in his individual
capacity,
Judge Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
I.
BACKGROUND
The Plaintiff, employed as Sergeant of Operations for the
City of Joliet Police Department, is a member of the Illinois
National
Guard.
On
March
23,
2016,
Plaintiff
received
deployment orders from the National Guard that required him to
report for active full-time duty to the Illinois National Guard
Counter Drug Task Force.
The orders were executed by Richard J.
Hayes, Jr., the State Adjutant General on behalf of the Governor
of Illinois.
(Although the full-time duty period was designated
as
9,
from
May
2016
to
September,
30,
2016,
Plaintiff
only
served until August, 1, 2016, when he resigned and returned to
full-time status with the Police Department.)
Plaintiff duly
informed his superiors at the Police Department of his orders,
but was advised that he only qualified for “unpaid leave of
absence” and he would have to use benefit time for his military
service and would “not continue to accrue leave time, such as
vacation or personal days.”
The effect of this “unpaid leave”
decision was to reduce Plaintiff’s compensation during the leave
to his pay as a member of the National Guard which was less than
his pay as Sergeant of Operations.
As a result of the forgoing denial of paid leave, Plaintiff
filed a charge of discrimination with the Illinois Department of
Human
Rights.
His
charge
was
subsequently
received a notice of right to sue.
dismissed
and
he
He thereafter filed this
two-count Complaint alleging violations of the Uniformed Service
Members
Employment
and
Reemployment
Act
(the
“USERRA”),
38
U.S.C.A. § 4311 (Count I), and the Illinois Military Leave of
Absence Act (the “IMLAA”), 5 ILCS 325/1 (Count II).
named
as
Defendants,
the
City
of
Joliet
(the
He has
“City”),
Brian
Benton, Chief of Police in his official and individual capacity,
and
Edgar
capacity.
Gregory,
Federal
Deputy
Chief
of
Police
jurisdiction
is
based
in
on
his
Count
individual
I,
while
jurisdiction of Count II is based on supplemental jurisdiction.
Defendants have filed a Motion to Dismiss contending that
neither of these statutory provisions apply to Plaintiff’s claim
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because his service in the Illinois National Guard’s Counter
Drug Task Force was purely a function of state law.
They also
contend that, should the Court find that the City is obligated
for the differential pay as claimed under IMLAA, the City is
excused
from
complying
because
the
increased
costs
resulting
from IMLAA’s required paid leave would run afoul of the Illinois
State Mandates Act, 30 ILCS 805/8(a).
This act prohibits the
imposition of unfunded mandates such as alleged to be the case
here because the legislature had not provided funding for IMLAA
claims.
In response, Plaintiff argues that these two statutes
apply to individuals who are called to “full-time national guard
duty”
and,
protection.
accordingly,
Plaintiff
is
entitled
to
their
For the reasons stated herein, the Court finds that
USERRA does not apply to Plaintiff due to the fact that he was
in state service while on active duty and that the Court will
not exercise supplemental jurisdiction with respect to Count II,
IMLAA.
II.
The
Army
National
THE NATIONAL GUARD
Guard,
originally
referred
to
as
the
militia, predates the founding of the nation and has been a
standing national military for almost 150 years.
Following its
key role during the Revolutionary War, the militia was enshrined
in the Constitution as a fundamental component of our national
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defense.
Since the enactment of the Constitution, a variety of
statutes
have
been
Guard’s)
role
in
regulations
enacted
our
dictate
that
nation’s
much
of
define
the
affairs.
the
Guard’s
Militia’s
While
(or
federal
organization
and
function, the control of Guard personnel and units is divided
between the federal government and the states.
Most of the
provisions governing the Guard’s federal mission are contained
in
Title
10
U.S.C.A.
which
authorizes
the
President
to
federalize the National Guard.
The purposes for federalization
include
armed
augmenting
assisting
in
the
the
active
handling
of
forces
national
in
time
emergencies
of
war,
such
as
hurricane relief, suppressing insurrections, and elimination of
unlawful obstructions which seek to prevent the enforcement of
federal law in any state or territory.
Sheet
Army
National
National Guard Fact
Guard
(FY2005)
https://web.archive.org/web/20120812205138/http://www.arng.army.
mil/SiteCollectionDocuments/Publications/News%20Media%20Factshee
ts/ARNG_Factsheet_May_06%20ARNG%20fact%20Sheet.pdf,
at
3.
(Last
visited April 30, 2018).
An important limitation on the federal use of the National
Guard is the Posse Comitatus Act, 18 U.S.C.A. § 1385 (“PCA”).
This Act prohibits the use of the Army or Air Force in the
execution of criminal laws of the United States.
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The PCA only
applies
to
the
National
Guard
when
it
is
placed
in
federal
service as part of the Army or Air Force, and does not apply to
the National Guard when it is in its militia status, i.e., under
state
control.
Memorandum
Opinion
of
Douglas
W.
Kmiec,
Assistant Attorney General Office of Legal Counsel, April 4,
1989.
When
the
control,
Guard
Governor
the
National
is
units
the
are
not
under
commander-in-chief
federal
of
the
respective state units and may act through his designee, such as
the
State
Adjutant
General
mobilize
National
Guard
training
orders,
and
missions
operations,
peacekeeping
of
vital
engineering projects.
in
Illinois.
personnel
for
humanitarian
maintenance
in
state
non-combat
response
or
public
to
to
peace
The
Governor
active
purposes
disasters,
enforcement
services,
and
can
duty
for
such
as
counterdrug
missions,
participation
in
National Guard Fact Sheet Army National
Guard (FY2005), at 4.
III.
A.
DISCUSSION
Count I - USERRA
Now, turning to Plaintiff’s Complaint, no where does he
allege that his National Guard unit had been federalized at the
time of his call up.
To the contrary, his call to duty came
from the State Adjutant General who is the state official given
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the
authority
to
militia form.
mobilize
the
state
national
guard
in
its
The order came from the Department of Military
Affairs State of Illinois and was signed by Richard J. Hayes,
Jr., Major General, The Adjutant General.
The authorization was
for “full-time National Guard Duty for Counterdrug (FTNG-CD)”
(the latter acronym meaning “Full Time National Guard-Counter
Drug”).
(See,
Exhibit
A
to
Defendants’
Motion
to
Dismiss.)
There is no indication that the President of the United States
had anything to do with the issuance of this order and Plaintiff
has
suggested
called
to
paying
for
none.
“full
at
time
least
Instead,
status”
some
of
Plaintiff
and
the
the
argues
federal
costs
that
he
was
government
associated
with
is
this
order.
However,
if,
in
fact,
Plaintiff
had
been
called
in
to
federal service for enforcement of drug laws, such call up would
appear to be in violation of the Posse Comitatus Act and also in
violation of the federal funding law, 32 U.S.C.A. § 112 (A)(1),
which
in
drug
interdiction programs only “while not in federal service.”
See,
United
States
Cir.
1997).
Accord, United States v. Benish, 5 F.3d 20, 26 (3rd Cir.
1993).
allow
the
v.
Plaintiff
National
Hutchings,
criticizes
Guards
127
the
being just “federal criminal law.”
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to
F.3d
participate
1255,
citation
of
1258
(10th
these
cases
as
However, these cases each
involve evidence obtained by the National Guard while on drug
interdiction duty to which motions to suppress were filed by
defendants based on the contention that the evidence was seized
in violation of the PCA.
In each case, the motion to suppress
was denied because of the lack of federal involvement, i.e., the
drugs
were
the
Surely
seized
by
federal
Guard
members
government
would
while
not
in
state
involve
service.
itself
in
a
criminal drug investigation in possible violation of the PCA,
and risk suppression of any evidence seized.
Next
U.S.C.A.
we
have
§ 4311
to
determine
(“USERRA”),
whether
under
which
the
provisions
Plaintiff’s
of
Count
38
I
relies, apply to him even though he was not in federal service.
This statute, entitled “Discrimination against persons who serve
in
the
makes
uniformed
it
illegal
employee
who
services
for
performs
an
and
acts
employer
services
to
in
of
reprisal
prohibited,”
discriminate
a
“uniformed
against
an
service.”
Plaintiff argues that by refusing him paid leave Defendants have
violated
this
federal
statute.
Defendants
argue
that
this
statute does not apply to Plaintiff because he was not in a
“uniformed
service”
as
the
same
is
defined
in
federal
law.
Uniformed Service is defined as excluding a tour of duty while
under state control and not under federal control.
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Defendants
are correct:
20 C.F.R. § 1002.57(b) issued by the United States
Department of Labor states as follows:
National Guard service under authority of State law is
not protected by USERRA.
However many states have
laws protecting the civilian job rights of National
Guard
members
who
serve
under
State
orders.
Enforcement of those State laws is not covered by
USEERA or these regulations.
Because Plaintiff’s tour of duty was clearly under the authority
of the State of Illinois, USERRA has no applicability to his
case.
Plaintiff objects to the use of a Rule 12(b)(6) motion to
decide this case on its merits.
However, this type of motion is
a proper vehicle to dispose of a case that is not plausible on
its face.
(2007).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
While Plaintiff need not plead facts in his Complaint
to support his claim, he must plead sufficient factual content
to draw a reasonable inference that Defendants are liable for
the alleged misconduct.
(2009).
Ashcroft v. Iqbal, 556 U.S. 662, 678
He has failed to so here.
Since
Count
I
relies
solely
on
USERRA,
the
Motion
to
Dismiss Count I is granted.
B.
Count II - IMLAA
Since federal jurisdiction was based on USERRA in Count I,
jurisdiction
over
Count
II,
IMLAA,
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is
based
on
supplemental
jurisdiction.
neither
to
The
Court
determine
declines
the
to
exercise
applicability
of
jurisdiction,
the
IMLAA
to
Plaintiff’s case nor to determine the applicability of the State
Mandates Act to IMLAA.
Count II is therefore dismissed for lack
of federal jurisdiction.
IV.
CONCLUSION
For the reasons stated here herein, Defendants’ Motion to
Dismiss Count I is granted.
Count II dismissed for lack of
federal jurisdiction.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
5/2/2018
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