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September 15, 2004.

ROYAL TOWING, INC., an Illinois corporation, RICK (RICKIE E.) GRAVES and CHRISTINE GRAVES, Plaintiffs,
CITY OF HARVEY, a municipal corporation, et al., Defendants.

The opinion of the court was delivered by: JAMES MORAN, Senior District Judge


This is the latest chapter in on-going litigation between plaintiffs and defendants. In their original complaint plaintiffs sought damages and injunctive relief after defendants ceased using Royal Towing (Royal) to perform work for the City of Harvey. Now plaintiff Rick Graves has added an additional count and new defendants. Plaintiff has also petitioned for injunctive relief related to that additional count. In his additional count, plaintiff requests on-the-record review and reversal of a decision made by the City of Harvey Police Pension Board (Board) in which the Board terminated plaintiff's pension benefits. Defendants moved to dismiss the additional count pursuant to Federal Rules of Civil Procedure 12(b)(1) and/or (6). For the following reasons, defendants' motion to dismiss is denied, and plaintiff's motion for injunctive relief is denied.


  Plaintiffs originally filed a five-count complaint against defendant Eric Kellogg and corporation counsel and various aldermen of the City of Harvey. On March 25, 2004, this court dismissed one of plaintiffs' counts and denied plaintiffs' motion for injunctive relief. In one of the remaining counts, Count I, plaintiffs allege that defendants violated their civil rights by retaliating against protected political speech. Specifically, plaintiffs contend that after they supported Harvey's former mayor (Nickolas Graves, father of plaintiff Rick Graves) during a failed reelection attempt, the new mayor, Eric Kellogg, and defendants retaliated against them by dropping Royal from a list of towing companies. Two state law claims related to defendants' alleged retaliation against Royal also remain.

  On May 14, 2004, plaintiff Rick Graves filed an amended complaint, which included an additional count (Count VI), and named Eric Kellogg and members of the Board as defendants. Count VI is based on the following events, which are taken from plaintiff's complaint and accompanying motion. Beginning in 1992 and after suffering injuries while on duty as a police officer, plaintiff received a medical disability pension from the City of Harvey. In January 2004, after the election of Mayor Kellogg, the Board started to reevaluate plaintiff's disability. A physician selected by the Board evaluated plaintiff and recommended that plaintiff was no longer disabled. The Board held a hearing on April 5, 2004, and at that hearing plaintiff presented the medical reports of four physicians, who all found that plaintiff was disabled and recommended that he not return to unrestricted police duty. Ten days after the hearing plaintiff received a letter from the Board's attorney. That letter indicated that the Board found plaintiff was "no longer disabled and capable of returning to full and unrestricted police duty as of April 6, 2004." In accordance with that conclusion, the Board also terminated plaintiff's pension benefits.


  Defendants bring their motion to dismiss Count VI under Rules 12(b)(1) and/or (6). However, they do not distinguish between the two rules. The challenge under Rule 12(b)(1) challenges this court's subject matter jurisdiction and therefore must be addressed first. See Freiburger v. Emery Air Charter, 795 F. Supp. 253, 256 (N.D. Ill. 1992) (citing Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986)). The standard of review for a 12(b)(1) motion to dismiss depends on how defendant frames the motion. If the motion contends that the allegations of jurisdiction are facially insufficient to show jurisdiction, then the 12(b)(1) standard of review mirrors the standard applied for 12(b)(6) motions. But if the motion challenges the truth of the facts alleged, then the "court may look beyond the face of the plaintiff's complaint to resolve the factual dispute." Freiburger, 795 F. Supp. at 256-57. Because defendants challenge the sufficiency of plaintiff's complaint, we adopt the former standard of review and accept plaintiff's well-pleaded factual allegations and make all reasonable inferences in the plaintiff's favor. See also Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001).

  In Count VI, plaintiff asks this court to review and reverse the Board's decision because it was against the manifest weight of the evidence. Plaintiff also claims that he was denied a full and fair hearing because of the Board's ties to Mayor Kellogg. In essence, plaintiff alleges that the Board lacked independence and its decision was part of a pattern of retaliation against him for supporting the former mayor.

  Defendants initially argue that this court lacks subject matter jurisdiction — that any action to review a final decision by an Illinois agency must be raised in an Illinois circuit court within 35 days from the agency's decision. After plaintiff cited City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997), in response to that argument, defendants prudently retreated from their position. In City of Chicago the Court determined that federal district courts can exercise supplemental jurisdiction for claims requiring on-the-record review of state or local administrative decisions. Id. at 169. Defendants do not cite any cases that persuade us why City of Chicago does not apply to this case. Nor do they continue to argue that Illinois circuit courts have exclusive jurisdiction over all actions to review local administrative decisions.

  Related to that argument is defendants' contention that the Rooker-Feldman doctrine and the Eleventh Amendment prevent this court from exercising jurisdiction. Count VI does not implicate the Eleventh Amendment — it requests review of a local administrative agency's decision and is not an action against a state. Similarly, the Rooker-Feldman doctrine does not apply to state administrative decisions. Van Harken v. City of Chicago, 103 F.3d 1346, 1348-49 (7th Cir. 1997).

  City of Chicago authorizes federal district courts to hear an action for on-the-record review of a state administrative judgment, if there is supplemental jurisdiction; thus, the outcome here depends on whether this court may exercise supplemental jurisdiction. Plaintiff correctly invokes 28 U.S.C. § 1367(a) in his motion to amend his complaint. That section states: "[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." The purpose of supplemental jurisdiction "is to allow the district courts to exercise pendent jurisdiction over claims as to which original jurisdiction is lacking." City of Chicago, 522 U.S. at 167. Judicial power exists to hear both state and federal claims if the federal claim has substance sufficient to confer subject matter jurisdiction on the court and if the claims "derive from a common nucleus of operative fact." United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966). Only a "loose factual connection" between the federal and state claims must exist. Ammerman v. Sween, 54 F.3d 423, 424 (7th Cir. 1995). A court's decision concerning the exercise of supplemental jurisdiction is left to its discretion. Didzerekis v. Stewart, 41 F.Supp.2d 840, 850 (N.D.Ill. 1999) (citing Van Harken v. City of Chicago, 103 F.3d 1346, 1354 (7th Cir. 1997)).

  Plaintiff and defendants disagree as to how, if at all, Count VI connects to Count I, the remaining federal count. In order to determine if each count derives from the same operative facts, it is helpful to first identify the essential facts from each count. In paragraph 20 of Count I plaintiff claims that the defendants "discriminated against the plaintiffs based upon plaintiffs' political affiliation with the prior mayor and their political speech and activities in support of Mayor Graves' re-election, in violation of the First Amendment to the United States Constitution." In paragraph 5 of Count VI, plaintiff refers to "on-going animosity by Mayor Kellogg towards [him] due to [his] relationship to the past administration." In paragraph 4 of his motion to add Count VI, plaintiff writes that he believes that the termination of his pension benefits "is part of the ongoing retaliation of the defendants to harass and pressure the plaintiff because of his past political affiliation, association and speech." Thus, binding each claim to the other are claims of retaliation and enmity between the new Harvey administration and plaintiff.

  Defendant downplays that common element and contends that Count I and Count VI do not share operative facts because they request different forms of relief. Merely looking at the form of the retaliation and the relief requested portrays two distinct claims. In Count I, the alleged retaliation was against Royal, the company that Graves managed, and plaintiffs seek damages. In Count VI, the retaliation was against Graves personally at a later time and he seeks review and reversal of a local administrative decision. But dwelling on these differences overshadows the fact that allegations of political payback are present in each count. Further, for supplemental jurisdiction to exist, the state and federal claims need not repeat the same grounds for recovery: "Indeed, the supplemental claims may be separate claims or they may be different counts or grounds or theories in support of what is essentially a single claim, as long as the claim revolves around a central fact pattern." Lynam v. Foot First Podiatry Ctrs., P.C., 919 F.Supp. 1141, 1148 (N.D.Ill. 1996) (citing White v. County of Newberry, 985 F.2d 168 (4th Cir. 1993)). In this case the central fact pattern is that plaintiff supported the former mayor and then was punished by defendants for that support. The retaliatory motive from Count I is directly relevant to the termination of pension benefits in Count VI. Plaintiff's reference to ongoing animosity and retaliation explicitly echoes Count I's allegations and nothing in § 1367, nor in case law, requires plaintiff to reallege and repeat Count I.

  Defendant is correct to point out that solely because Kellogg appointed members of the Board does not mean that the Board's decision was biased. Illinois law expressly requires the mayor to appoint two members of the board. See 40 ILCS 5/3-128. But Mayor Kellogg's statutory authority to appoint Board members does not mean that the members he appointed (or any other member of the Board) could not have ...

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