November 4, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 17 C 07938 -
Harry D. Leinenweber, Judge.
WOOD, Chief Judge, and BAUER and BRENNAN, Circuit Judges.
David Mueller took a leave of absence from the City of Joliet
Police Department to report for active duty in the Illinois
National Guard Counterdrug Task Force. When the Joliet Police
Department placed him on unpaid leave, Mueller resigned from
his National Guard position and sued the City of Joliet and
his supervisors for employment discrimination. The issue on
appeal is whether the Uniformed Service Members Employment
and Reemployment Rights Act ("USERRA"), which
prohibits discrimination against those in "service in a
uniformed service," protects Mueller's National
sued under USERRA, claiming that the Joliet Police
Department's denial of compensation and benefits while he
was on National Guard duty amounted to illegal, anti-military
discrimination. The defendants moved to dismiss the
complaint, arguing that his National Guard counterdrug duty
was authorized under Illinois law and not covered by USERRA.
The district court judge agreed and granted the
defendants' motion to dismiss. Mueller appeals and argues
that "service in the uniformed services" explicitly
covers full-time National Guard duty, including counterdrug
activities under 32 U.S.C. §§ 112 and 502(f). We
find that the plain language of USERRA covers Title 32
full-time National Guard duty and reverse the district
Mueller was hired as a City of Joliet police officer and
subsequently promoted to sergeant. On August 15, 2015,
Mueller enlisted in the National Guard and performed active
duty service on multiple occasions thereafter. In March 2016,
Mueller received notice from the National Guard advising him
of an opening in the Illinois National Guard Counterdrug Task
Force. Mueller applied for the position. On March 23, he
received orders to report for "Full Time National Guard
Duty" in Romeoville, Illinois. The Adjutant General of
the Illinois National Guard executed the orders, assigning
Mueller to counterdrug support in accordance with 32 U.S.C.
§ 112 from May 9, 2016, through September 30, 2016.
this time, Brian Benton served as the City's Chief of
Police and Edgar Gregory served as the City's Deputy
Police Chief. Upon receiving his order to report for National
Guard duty, Mueller informed them of his deployment orders
and his upcoming active duty with the National Guard. On May
9, Mueller began active duty with the Illinois National Guard
Counterdrug Task Force. On June 15, Benton sent an email to
Mueller stating that Mueller would be placed on an
"unpaid leave of absence," would have to use his
benefit time while away, and would "not continue to
accrue leave time, such as vacation or personal days."
On August 1, Mueller resigned from his National Guard
position and returned to the Joliet Police Department. From
his full-time military employment on May 9 to his return on
August 1, Mueller did not receive compensation from the
Joliet Police Department and had to use 120 hours of accrued
time and benefits.
sued the City of Joliet, Benton, and Gregory for violating
USERRA and the Illinois Military Leave of Absence Act. The
defendants moved to dismiss and the district court agreed,
deciding that USERRA did not cover Mueller's position
since it "was clearly under the authority of the State
of Illinois" and that the state law claim lacked federal
jurisdiction. The district court judge noted that
Mueller's orders came from the State Adjutant General and
looked to a Department of Labor regulation, 20 C.F.R. §
1002.57(b), stating that: "National Guard service under
authority of State law is not protected by USERRA." The
judge also added that if Mueller's position was
considered "federal service" then it would violate
both the Posse Comitatus Act and the funding provision of 32
U.S.C. § 112(a)(1). Mueller moved to reconsider and for
leave to file an amended complaint. The defendants moved to
dismiss the amended complaint and the district court granted
the motion for the same reasons: that Mueller, "as a
member of a state drug interdiction task force, was
attempting to enforce a state criminal law" and
consequently not covered by USERRA.
supported by the United States and several State governments
as amici, appeals the district court judgment and argues that
the judge misinterpreted USERRA by excluding Mueller's
service from protection. Specifically, he argues that
USERRA's discrimination section protects "service in
a uniformed service," which 38 U.S.C. § 4303(13)
defines as including "full-time National Guard
duty." Mueller argues his service is explicitly
categorized as full-time National Guard duty and federally
authorized by 32 U.S.C. §§ 112 and 502(f).
review de novo a district court's grant of a
Federal Rules of Civil Procedure 12(b)(6) motion to dismiss.
Roberts v. City of Chicago, 817 F.3d 561, 564 (7th
Cir. 2016). In doing so, we accept all well-pleaded facts in
the complaint as true. Id. We note that here the
issue concerns statutory interpretation and is thus a
question of law. Commodity Futures Trading Comm'n v.
Worth Bullion Grip., Inc., 717 F.3d 545, 549 (7th Cir.
2013). We start with "the language employed by Congress
and the assumption that the ordinary meaning of that language
accurately expresses the legislative purpose."
Id. at 550 (quoting Turley v. Gaetz, 625
F.3d 1005, 1008 (7th Cir. 2010) and Park 'N Fly, Inc.
v. Dollar Park & Fly, Inc., 469 U.S. 189, 194
statutory scheme of USERRA and National Guard service make it
clear that Mueller's"Full-Time National Guard
Duty" is authorized by federal law and protected by
USERRA. The USERRA employment discrimination section states
that those in "service in a uniformed service shall not
be denied initial employment, reemployment, retention in
employment, promotion, or any benefit of employment by an
employer on the basis of that membership." 38 U.S.C.
§ 4311(a). The definitions section of USERRA defines
"service in the uniformed services" as "the
performance of duty on a voluntary or involuntary basis in a
uniformed service under competent authority and includes ...
full-time National Guard duty." 38 U.S.C. §
4303(13). Instead of engaging in this statutory analysis, the
district court looked to a Department of Labor regulation
that said National Guard service under State law authority is
not protected by USERRA. 20 C.F.R. § 1002.57(b). Even if
the regulation were necessary to interpret USERRA, the
previous subsection states that "National Guard service
under Federal authority is protected by USERRA," which
"includes duty under Title 32 of the United States Code,
such as ... full-time National Guard duty." 20 C.F.R.
§ 1002.57(a). As pointed out by the ...