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.
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.
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 ...