United States District Court, Central District of Illinois
April 26, 1999
ANTHONY GORDON, PLAINTIFF,
ILLINOIS NATIONAL GUARD, MAJ. GEN. RICHARD AUSTIN AND JAMES EDGAR, GOVERNOR OF ILLINOIS, DEFENDANTS.
The opinion of the court was delivered by: Mihm, District Judge.
This matter is before the Court on Magistrate Judge Robert J.
Kauffman's Report and Recommendation [# 15] regarding Defendants'
Motion to Dismiss [# 8]. The Magistrate Judge concluded that the
Motion to Dismiss [# 8] should be granted. This Court ADOPTS the
Report and Recommendation [# 15]. This case is TERMINATED.
In the Report and Recommendation, the Magistrate Judge gave a
brief rendition of the material facts alleged in the Complaint:
Plaintiff was an enlisted member of the Illinois Army
National Guard, ranked First Sergeant. He alleges
that he had orders to report for active duty; these
orders were revoked because military physicians would
not clear him for full duty, although his personal
physicians had done so, and that he has therefore
been precluded from significant opportunities for
advancement, specifically appointment to the
Sergeants Major academy. His continued insistence
that he was medically fit ultimately led to a
reduction in his rank from First Sergeant to Master
Sergeant. Allegedly because of this "continuing
pattern of discriminatory treatment," plaintiff
transferred to the Army Reserves in July of 1997.
Report at 1-2.
Plaintiff alleges that the Defendants' conduct violated the
Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.
Defendants moved to dismiss, arguing that the ADA did not apply
to the military and, moreover, that the two individually named
defendants moved to dismiss on the ground that they were not
employers within the meaning of the ADA. Because this Court
agrees with the Magistrate Judge that the ADA does not apply to
the military, the question of whether or not the individual
defendants are "employers" is moot.
The Magistrate Judge concluded that the Motion to Dismiss
should be granted since the ADA does not cover actions of the
Illinois National Guard. While there appears to be no specific
authority for whether the ADA covers a state's National Guard,
there are ample reasons for concluding that it does not. In his
Report and Recommendation, the Magistrate Judge drew from several
Supreme Court cases which acknowledge the judiciary's
long-standing reluctance to intervene in military affairs.
As the Magistrate Judge properly noted, in Chappell v.
Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983),
the Supreme Court made it clear:
[T]hat the Constitution contemplated that the
Legislative Branch have plenary control over rights,
duties, and responsibilities in the framework of the
Military Establishment, including regulations,
procedures, and remedies related to military
discipline; and Congress and the courts have acted in
conformity with that view.
Id. at 2366. Likewise, in Feres v. United States,
340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court held
that the Federal Tort Claims Act does not provide for recourse
for injuries sustained incident to military service in situations
which would otherwise be an actionable wrong. In Feres, the
Court focused on the unique relationship between the government
and military personnel and noted that no liability existed before
the Federal Tort Claims Act. More importantly, the Feres Court
noted that Congress did not appear to create such a liability.
Plaintiff argues that the Magistrate Judge's conclusion was
flawed because he did not take into account his allegation that a
U.S. Army doctor found him fit and that it was, in fact, an Army
National Guard physician who found him to be medically unfit and
that this affected his relationship with the U.S. Army. Plaintiff
That the Magistrate Judge's findings in the
application of the Feres doctrine does not apply to
the state national guard units.
Pl's Objection at 2.
Plaintiff supplies no authority for the assertion that the
Feres doctrine does not so apply. Indeed, in the Chappell
case, the Court explicitly drew parallels between the state-run
national guard and the federal military.
In Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440,
2442, 37 L.Ed.2d 407 (1973) [parallel citations
omitted], we addressed the question of whether
Congress' analogous power of the militia, granted by
Art. I, § 8, cl. 16, would be impermissibly
compromised by a suit seeking to have a Federal
District Court examine the "pattern of training,
weaponry, and orders" of a State's National Guard. In
denying relief we stated:
It would be difficult to think of a clearer example
of the type of governmental action that was
intended by the Constitution to be left to the
political branches directly responsible — as the
Judicial branch is not — to the electoral process.
Moreover, it is difficult to conceive of an area of
governmental activity in which the courts have less
competence. The complex, subtle, and professional
decisions as to the composition, training,
equipping, and control of a military force are
essentially professional military judgments,
subject always to civilian control of the
Legislative and Executive Branches. The ultimate
responsibility for these decisions is appropriately
vested in the branches of the government
which are periodically subject to electoral
Id. at 2446 (emphasis in original).
This Court is also mindful of Congress' explicit expression of
what the ADA is designed to remedy. In the Findings and Purpose
section of the ADA, Congress states:
The Congress finds that . . . discrimination against
individuals with disabilities persists in such
critical areas as employment, housing, public
accommodations, education, transportation,
communication, recreation, institutionalization,
health services, voting, and access to public
42 U.S.C. § 12101(a)(3).
Notably absent from the above passage is any mention of the
military. Given Congress' specific enunciation that such sectors
as housing, transportation, public accommodations, and voting are
a concern, this Court can only conclude that if Congress had
intended the ADA to cover the military, it would have indicated
that this was so.
Accordingly, given the rarity of the Judiciary's intervention
in military affairs, and Congress' silence on whether the
military is a covered entity, this Court holds that the ADA does
not cover actions taken by the Illinois National Guard. This
Court therefore ADOPTS the Report and Recommendation [# 15]. The
Defendants' Motion to Dismiss [# 8] is therefore GRANTED, and
this Case is TERMINATED.
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