Mueller v. City Of Joliet et al, No. 1:2017cv07938 - Document 32 (N.D. Ill. 2018)

Court Description: 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)
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Mueller v. City Of Joliet et al Doc. 32 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 - 2 - 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 - 3 - 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) 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. - 4 - 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 - 5 - 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.” - 6 - 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. - 7 - 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, - 8 - 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 - 9 -