The Uniform Service Members Employment and Reemployment Rights Act (USERRA) is, as many readers know, a protective mechanism which ensures Guardsmen and Reservists the right to be reinstated to their previous job when returning from a deployment or call up to federal service.

USERRA covers service members who are in the reserve component when hired on as a civilian but also covers those who join such components after they are already working for that civilian employer.

States also have similar laws that protect guardsmen from losing their jobs or benefits when they are called to state duty, something unique to that branch of the reserve component.

A recent case out of the US Court of Appeals, 7th Circuit, dealt with some of those very distinctions this week when reversing a District Court decision to dismiss the lawsuit of a Joliet, Illinois police officer who had alleged violations of USERRA provisions.

DM was hired as a Joliet police officer and achieved the rank of Sergeant.  While employed by Joliet, DM joined the Illinois National Guard as a part time soldier. Roughly, a year later, DM was called to duty by the Adjutant General of Illinois to serve on a Counter Drug task force (a program where the National Guard in a specific state use federal dollars to combat illegal drug trade and manufacturing in that respective state) under the authority of Title 32, the federal law allowing for the activation of Guardsmen (for a multitude of reasons to include training and counterdrug missions) who are not on Title 10 status. The period of duty was relatively short, around 90 days, but upon receiving DM’s orders, the Police Department put him on an unpaid leave of absence (which is permissible), said he would have to use his benefit time (which is not) and also would not accrue any leave or vacation benefits while gone (depends on department policy on other leave of absences). DM filed suit under both USERRA and the Illinois State Service Members Protection statute in Federal Court once he came off military duty, alleging a violation of his afforded rights as to protected benefits. The Defendant moved to dismiss the federal part of the lawsuit, claiming that DM was not called to federal active duty because it was under a state program and in essence, USERRA only protected those on “federal active duty” and not “state duty”. The District Judge in the case agreed with the defense and dismissed the case, based on the action being under the authority of state law, using a department of labor reference. He further went on to point out if DM was truly on federal duty, it would be a violation of Posse Comitatus (the law that states military can’t be used for law enforcement unless on federal orders). The 7th Circuit Court of Appeals curtly disagreed, stating:

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 definitions section of USERRA defines “service in the uniformed services” as “the performance of duty on a voluntary or involuntary basis in 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 [*7] in “State Active Duty,” which is under exclusive state authority”

The Appellate Court also noted Posse Comitatus in the counterdrug program was not applicable in the Title 32 distinction because federal service was not the same as federal authority and unlike Title 10 active duty, there is an express precedence that precludes Title 32 Guardsmen from falling under the Posse Comitatus prohibition. In essence, the court noted the distinction between federal service and federal authority, declaring the latter to be the essence of the counterdrug program and thus protected by USERRA law. The Appellate court sent the case back down to the Federal District Court to be heard on its merits.

This case is unusual for a couple of reasons. It is an argument rarely seen at this level of the court system in a published opinion-most of these issues are settled way before this stage of the proceedings. In addition, It is also a very technically written opinion by the higher court, leaving the reader with prior knowledge of the law, quite impressed with its depth.

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Joe Jabara, JD, is the Director, of the Hub, For Cyber Education and Awareness, Wichita State University. He also serves as an adjunct faculty at two other universities teaching Intelligence and Cyber Law. Prior to his current job, he served 30 years in the Air Force, Air Force Reserve, and Kansas Air National Guard. His last ten years were spent in command/leadership positions, the bulk of which were at the 184th Intelligence Wing as Vice Commander.