David Mueller v. City of Joliet

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-3609
DAVID MUELLER,
Plaintiff-Appellant,
v.
CITY OF JOLIET, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 07938 — Harry D. Leinenweber, Judge.
ARGUED NOVEMBER 4, 2019 — DECIDED DECEMBER 4, 2019
Before WOOD, Chief Judge, and BAUER and BRENNAN, Circuit
Judges.
BAUER, Circuit Judge. Sergeant 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

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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 Guard duty.
Mueller 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 com-
plaint, 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 court’s dismissal.
I. BACKGROUND
David 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

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No. 18-3609 3
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.
During 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.
Mueller 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

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4 No. 18-3609
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.
II. DISCUSSION
Mueller, 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).
We 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 Grp., 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

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No. 18-3609 5
1005, 1008 (7th Cir. 2010) and Park ‘N Fly, Inc. v. Dollar Park &
Fly, Inc., 469 U.S. 189, 194 (1985)).
The 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 defini-
tions 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 amici, the regulation serves to clarify that USERRA does
not protect National Guard service in “State Active Duty,”
which is under exclusive State authority. Both USERRA and
the regulation state, in plain language, that Title 32 full-time
National Guard duty is covered.
The district court also erred in its interpretation of 32 U.S.C.
§ 112 and the Posse Comitatus Act by conflating federal

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6 No. 18-3609
service and federal authority. Section 112 of Title 32 covers
counterdrug activities and specifically creates a mechanism
whereby the federal government provides funds to a State who
has its counterdrug plan approved by the Department
of Defense. 32 U.S.C. § 112. The district court erroneously
concluded that since multiple provisions of Section 112 barred
personnel “in Federal service” from performing counterdrug
activities, Mueller’s service could not be under “Federal
authority.” First, equating federal service and federal authority
creates unnecessary contradictions between 32 U.S.C. § 112 and
the Department of Labor regulation that considers Title 32
full-time National Guard duty as “under Federal authority.”
Second, the language of USERRA does not limit protection to
those in “Federal service” like the Army or Navy but to those
in “service in a uniformed service,” which explicitly includes
Title 32 full-time National Guard duty. The Posse Comitatus
Act likewise only bars the Army and Air Force from domestic
law enforcement, but does not apply to Title 32 National Guard
duty. 18 U.S.C. § 1385. Federal service for purposes of the
Posse Comitatus Act refers to standing active duty forces
organized under Title 10 of the U.S. Code. While the Army
National Guard and the Air National Guard are reserve
components of the Army and Air Force, respectively, the
National Guards are covered by different statutes (i.e., Title 32)
than those that apply to the active duty forces (i.e., Title 10).
Because Title 32 full-time National Guard duty is considered
State service that is distinct from the Army and Air Force,
extending USERRA’s protection to Mueller does not violate 32
U.S.C. § 112 or the Posse Comitatus Act.

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No. 18-3609 7
In sum, the district court erroneously conflated federal
authority and federal service, and misinterpreted the Depart-
ment of Labor regulation’s binary between federal authority
and state authority. USERRA’s discrimination provision does
not turn on such distinctions since, by constructing Title 32
activities under Section 112 as “Full-Time National Guard
Duty,” Congress intended for Mueller’s service to be covered
by USERRA. We decline the invitation to carve out an excep-
tion for Section 112 counterdrug activities when there is no
textual or public policy rationale to do so.
III. CONCLUSION
We conclude that the district court judge erred in its
interpretation of USERRA and Title 32 National Guard service
under Section 112. The plain language of Title 32 contemplates
Mueller’s service as “Full-Time National Guard Duty,” which
USERRA explicitly covers. The judgment of the district court
is therefore REVERSED and we remand for further proceed-
ings consistent with this opinion, including the reinstatement
of Mueller’s state-law claim.

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