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, andBAUER 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
2 No. 18-3609

position and sued the City of Joliet and his supervisors for

employment discrimination. The issue on appealiswhetherthe

UniformedServiceMembersEmployment and Reemployment

Rights Act (“USERRA”), which prohibits discrimination

against those in “service in a uniformed service,” protects

Mueller’s National Guard duty.

Mueller sued underUSERRA, 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 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,

Muellerreceived 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
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, Muellerinformed 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 underthe 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

Laborregulation, 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
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 forleave 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
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 clearthat 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 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
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. 
No. 18-3609 7

In sum, 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 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 exception 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 proceedings consistent with this opinion, including the reinstatement

of Mueller’s state-law claim.