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GORDON v. ILLINOIS NAT. GUARD

April 26, 1999

ANTHONY GORDON, PLAINTIFF,
v.
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.

ORDER

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 concludes:

  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 ...


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