Labor & Employment Law Daily Police sergeant’s full-time National Guard counterdrug duty covered by USERRA
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Friday, December 6, 2019

Police sergeant’s full-time National Guard counterdrug duty covered by USERRA

By Marjorie Johnson, J.D.

The district court erred in interpreting USERRA as excluding the sergeant’s service, said the appeals court, reviving his claim that the department’s denial of compensation and benefits during his deployment amounted to illegal, anti-military discrimination.

Reversing dismissal of a police sergeant’s claim that a city police department violated USERRA by placing him on unpaid leave during his deployment to full-time duty with the Illinois National Guard Counterdrug Task Force, the Seventh Circuit found the court below erred in holding his service wasn’t covered under USERRA based on faulty interpretation of the Act and Title 32 National Guard service under Section 112. The plain language of Title 32 contemplated the officer’s service as “Full-Time National Guard Duty,” which USERRA explicitly covers (Mueller v. City of Joliet, December 4, 2019, Bauer, W.).

National Guard counterdrug task force. After being promoted, the sergeant enlisted in the National Guard and performed active duty service on multiple occasions. He subsequently took a leave of absence from the police department to report for active duty in the Illinois National Guard Counterdrug Task Force. When the police department placed him on unpaid leave, he resigned from his National Guard position and sued the city and his supervisors for violating USERRA and the Illinois Military Leave of Absence Act.

District court tosses lawsuit. The district court granted the defendants’ motion to dismiss both claims, finding that USERRA did not cover his National Guard counterdrug duty since it “was clearly under the authority of the State of Illinois” and that the state law claim lacked federal jurisdiction.

The court noted that the sergeant’s orders came from the State Adjutant General and looked to a Department of Labor (DOL) regulation, 20 C.F.R. Sec. 1002.57(b), stating that: “National Guard service under authority of State law is not protected by USERRA.” The court opined that if his position was considered “federal service” then it would violate both the Posse Comitatus Act and the funding provision of 32 U.S.C. Sec. 112(a)(1).

Governments join as amici. The issue on appeal was whether USERRA, which prohibits discrimination against those in “service in a uniformed service,” protected the sergeant’s National Guard duty. Supported by the United States and several state governments as amici, he argued that “service in the uniformed services” explicitly covers full-time National Guard duty, including counterdrug activities. The Seventh Circuit agreed, finding that the plain language of USERRA covers Title 32 full-time National Guard duty.

Statutory analysis. The statutory scheme of USERRA and National Guard service made clear that the sergeant’s “Full-Time National Guard Duty” was authorized by federal law and protected by USERRA. USERRA’s 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.” And the definitions section 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.”

District court’s faulty analysis. Instead of engaging in this statutory analysis, the district court looked to the DOL regulation which provides that National Guard service under state law authority is not protected by USERRA. But 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.” As the amici pointed out, the regulation clarifies that USERRA does not protect National Guard service in “State Active Duty,” which is under exclusive state authority. However, both USERRA and the DOL regulation state, in plain language, that Title 32 full-time National Guard duty is covered.

Federal service vs. federal authority. The district court also erred in its interpretation of 32 U.S.C. Sec. 112 and the Posse Comitatus Act by “conflating federal service and federal authority.” Section 112 covers counterdrug activities and specifically creates a mechanism whereby the federal government provides funds to a state that has its counterdrug plan approved by the Department of Defense. The district court erroneously concluded that since multiple provisions of Section 112 barred personnel “in Federal service” from performing counterdrug activities, the officer’s service could not be under “Federal authority.”

First, equating federal service and federal authority created “unnecessary contradictions” between Section 112 and the DOL regulation that considers Title 32 full-time National Guard duty as “under Federal authority.” Second, USERRA does not limit protection to those in “Federal service” (like the Army or Navy). Rather its protections extend 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. “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 the sergeant did not violate Sec.112 or the Posse Comitatus Act.

Congress’s intent. Thus, the district court “erroneously conflated federal authority and federal service, and misinterpreted the Department of Labor regulation’s binary between federal authority and state authority.” USERRA’s anti-discrimination provision did not turn on such distinctions since, by constructing Title 32 activities under Section 112 as “Full-Time National Guard Duty,” Congress intended for the officer’s service to be covered by USERRA.

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