United States District Court, N.D. Illinois, Eastern Division
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
MEMORANDUM OPINION AND ORDER
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
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 been biased against plaintiff and
rendered a decision that was against the manifest weight of the
Defendant also argues that the temporal relationship between
Count I and Count VI is too distant, indicating a lack of
commonality. Defendant asserts that events regarding Count I
occurred between December 2000 through April 2003, but that
events concerning Count VI occurred in April 2004. In response,
plaintiff characterizes the Board's termination of his pension
benefits as part of a pattern of retaliation. From plaintiff's
standpoint, there is no attenuated temporal relationship since both Count I and Count VI
both derive from plaintiff's support of the former mayor.
Further, the Board's termination of pension benefits began not in
April 2004, but in January 2004, when the Board began to
reevaluate plaintiff's disability.
None of the cases defendant cites establishes a concrete time
period that must be met in order for claims to derive from a
common nucleus of operative fact. In Murphy v. Village of
Hoffman Estates, 959 F.Supp. 901 (N.D.Ill. 1997), the court
exercised supplemental jurisdiction after a detailed analysis of
post-termination retaliatory conduct in employment law. In
Thomas v. Schwartz and Associates, 1996 U.S. Dist. LEXIS 7648,
1996 WL 277616 (N.D.Ill. 1996), the court looked closely at the
claims and found that the state and federal claims derived from
entirely different sets of facts and time frames. And in
Freiburger, the temporal relationship between state and federal
claims played a negligible role in the court's analysis. Instead
of establishing a specific temporal relationship as a standard in
a supplemental jurisdiction analysis, defendants' cases show that
determining if federal and state claims derive from the same
facts is a fact-sensitive inquiry. When there are allegations of
an ongoing pattern of hostilities that occurs over a period of
time, an extended temporal relationship is to be expected.
Both plaintiff and defendant dedicate the majority of their
arguments to the issue of whether this court may exercise
supplemental jurisdiction. Neither discusses what will happen
if we exercise it. Plaintiff requests on-the-record review. The
scope of review for an action appealing a final administrative
decision is set forth in 735 ILCS 5/3-110:
The hearing and determination shall extend to all
questions of law and fact presented by the entire
record before the court. No new or additional
evidence in support of or in opposition to any
finding, order, determination or decision of the
administrative agency shall be heard by the court.
The findings and conclusions of the administrative
agency on questions of fact shall be held to be prima facie true and correct.
That deferential standard of review would preclude us from
considering any evidence of bias, conflict of interest, or lack
of independence, unless it appeared in the record. We would not
consider the alleged retaliatory motive and ongoing animosity
that links Count VI to Count I unless that motive appeared in the
record. However, Illinois case law abounds with challenges to the
agency decisions based on allegations of bias, animosity and lack
of independence of a board or members of a board at a hearing.
See, e.g., Coyne v. Milan Police Pension Board,
347 Ill.App.3d 713
, 807 N.E.2d 1276
, 283 Ill. Dec. 435
Dist. 2004); Sangirardi v. Village of Stickney, 342 Ill.App.3d,
793 N.E.2d 787
, 276 Ill. Dec. 28
(Ill.App. 1st Dist. 2003);
Luchesi v. Retirement Board of the Firemen's Annuity and Benefit
Fund of Chicago, 333 Ill.App.3d 543, 776 N.E.2d 703, 267 Ill.
Dec. 331 (Ill.App.1st Dist. 2002); Comito v. Police Board of
Chicago, 317 Ill.App.3d 677
, 739 N.E.2d 942
, 251 Ill. Dec. 9
(Ill.App.1st Dist. 2000); Flaherty v. Retirement Board of
the Policemen's Annuity and Benefit Fund, 311 Ill.App.3d 62
724 N.E.2d 145
, 243 Ill. Dec. 836
(Ill.App.1st Dist. 1999);
Danko v. Board of Trustees of the City of Harvey Pension Board,
240 Ill.App.3d 633
, 608 N.E.2d 333
, 181 Ill. Dec. 260
(Ill.App.1st Dist. 1992); Carrao v. Board of Education,
46 Ill.App.3d 33, 360 N.E.2d 536
, 4 Ill. Dec. 600 (Ill.App.1st
Dist. 1977); Lloyd A. Fry Roofing Co. v. Pollution Control
Board, 20 Ill. App. 3d 301, 314 N.E.2d 350 (Ill.App.1st
Dist. 1974). Thus, the standard of review does not prevent this
court from considering plaintiff's allegations of the Board's
bias and animosity toward him.
Count I and Count VI each share allegations of retaliation, and
since retaliation is an operative fact in each count, those
counts derive from a common nucleus of operative facts and we may
exercise supplemental jurisdiction. But because supplemental
jurisdiction is not a plaintiff's right and is instead a doctrine of discretion, we may
decline to exercise it here. City of Chicago instructs that
district courts considering whether to exercise supplemental
jurisdiction should do so "in the manner that best serves the
principles of economy, convenience, fairness, and comity." City
of Chicago, 522 U.S. at 172-173 (quoting Carnegie-Mellon
University v. Cohill, 484 U.S. 343, 357 (1988)). As City of
Chicago observes, § 1367(c) codifies those principles in a list
of four circumstances. Defendants argue that two of those
circumstances apply here. They first contend that the court
should decline jurisdiction under § 1367(c)(4), which provides
that jurisdiction may be declined if "in exceptional
circumstances, there are other compelling reasons for declining
jurisdiction." City of Chicago indicates that a district court
reviewing the record of a local administrative agency is not so
exceptional as to require that court to decline to exercise
jurisdiction. Defendants' argument on this point is also linked
to their now abandoned belief that "state law expressly requires
that administrative review of a [Board] decision," a linkage that
undermines their position. Defendants also cite § 1367(c)(2) as
grounds for declining jurisdiction. That provision states that a
district court may decline to exercise supplemental jurisdiction
if "the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction." That
provision does not apply in this case. State law claims
"substantially predominate" when the claims based on federal law
depend on the outcome of those based on state law or when the
"sheer number of state law claims warrant their dismissal."
Gilbert v. Robb, 1997 U.S. Dist. LEXIS 4008 (N.D. Ill. 1997).
Plaintiff's § 1983 claim in Count I does not depend on the
outcome of his administrative review claim; nor does that state
law claim overwhelm the federal claim.
We are conscious of the comity concerns that are present in
this case. But on-the-record review of the Board's decision does not so offend those concerns
as to warrant declining supplemental jurisdiction. City of
Chicago expressly permits this type of "cross-system appeal."
Also, plaintiff filed his action for review within the 35-day
limit as required by Illinois law. See 735 ILCS 5/3-103. In
Almanza v. Town of Cicero, 244 F. Supp. 2d 913 (N.D. Ill.
2003), this court was presented with a request for administrative
review of a disorderly conduct conviction. That request was filed
long after 35 days had passed, which led this court to observe
that "an extended limitations period does violence to Illinois
law." Id. at 915. Here, no such violence is threatened.
Additionally, we already have two claims based on state law
before us. There are no concurrent state proceedings, but
declining supplemental jurisdiction would potentially create a
concurrent state proceeding. In this vein, it would not serve
judicial economy to deny supplemental jurisdiction and encourage
plaintiff to begin litigating in another forum. Neither Burford
nor Pullman abstention is appropriate here because there is no
unsettled question of state law, no specialized tribunal
dedicated to appeals from Board decisions, and no federal
constitutional claim presented in plaintiff's request for
on-the-record review. See International College of Surgeons v.
City of Chicago, 153 F.3d 356, 360-66 (7th Cir. 1998). While
the unique facts presented here may touch the outer limits of
supplemental jurisdiction, they do not stray beyond those
boundaries and do not persuade this court that supplemental
jurisdiction should not be exercised. Defendants' motion to
dismiss under Rule 12(b)(1) is denied.
In deciding a Rule 12(b)(6) motion to dismiss, the court must
assume the truth of all well-pleaded allegations, making all
inferences in the plaintiff's favor. Sidney S. Arst Co. v.
Pipefitters Welfare Educ. Fund, 25 F.3d 417, 420 (7th Cir.
1994). The court should dismiss a claim only if it appears beyond
doubt that there are no facts that would entitle plaintiff to
relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Plaintiff alleges that he was denied a full and fair hearing
and that the Board's decision was against the manifest weight of
the evidence. That claim exists in front of a backdrop of
allegations of retribution against protected political speech. An
administrative hearing marred by partial rulings on evidence
denies a fair hearing. Sangirardi, 793 N.E.2d at 795. And "the
decision of an administrative agency will be set aside if the
prejudice or bias of a hearing officer results in an unfair
hearing." Lloyd A. Fry Roofing Co., 314 N.E.2d at 358.
Plaintiff's allegations are thus sufficient to survive
defendants' motion to dismiss under Rule 12(b)(6), which is
Defendants also move to dismiss Eric Kellogg as a defendant
because he "is not a member of the Harvey Police Pension Board."
That standard is incorrect. The proper standard appears in
735 ILCS 5/3-107. Under that statute, in actions to review final
administrative agency decisions, "the administrative agency and
all persons, other than the plaintiff, who were parties of record
to the proceedings before the administrative agency shall be made
defendants." Because the record is not before this court, we
cannot determine who was a party of record and defendants' motion
to dismiss Eric Kellogg as a defendant is denied.
Plaintiff also seeks a temporary restraining order and a
preliminary injunction enjoining the Board from terminating his
disability benefits and enjoining the City of Harvey from
activating him to active duty status. To obtain a preliminary
injunction, the moving party must "demonstrate a likelihood of
success on the merits, that it has no adequate remedy at law, and
that it will suffer irreparable harm if the relief is not
granted." Promatek Indus., Ltd. v. Equitrac Corp.,
300 F.3d 808, 811 (7th Cir. 2002). If the moving party demonstrates
these elements, "the court must balance the irreparable harm the
nonmovant will suffer if relief is granted and the irreparable harm to the movant if relief is
denied." Ind. Civ. Liberties Union v. O'Bannon, 259 F.3d 766,
770 (7th Cir. 2001).
At this point it is impossible to conclude that the Board's
decision was against the manifest weight of the evidence because
the record of the hearing is not before us. The mere fact that
reports opining that plaintiff was disabled outnumbered the
report that concluded to the contrary does not conclusively seal
victory for plaintiff. See Trettenero v. Police Pension Fund,
333 Ill. App. 3d 792, 776 N.E.2d 840, 848, 267 Ill. Dec. 468
(Ill.App. 2d Dist. 2002) (observing that three medical
certifications of disability are required to prove disability
status, but only one medical examination is needed to confirm
termination of disability). With respect to the pension benefits,
plaintiff also fails to demonstrate that there is no adequate
remedy at law. What plaintiff seeks here is money. Since
plaintiff's injury is pecuniary, an adequate remedy at law may be
created. Further, plaintiff does not demonstrate irreparable
harm. He fails to show that he depended on the pension benefits
for the necessities of life and admits that he does not live in
poverty, factors that could indicate that the loss of a stream of
income is truly irreparable harm.
Plaintiff also requests that this court enjoin the City of
Harvey from activating him to unrestricted police duty status. It
is not clear how the City of Harvey could force plaintiff to
work, particularly when review of the Board's decision is
currently before this court. Injunctive relief is not necessary
to keep plaintiff from returning to active duty.
For the foregoing reasons, defendants' motion to dismiss is
denied, and plaintiff's motion for a temporary restraining order
and preliminary injunction is denied.
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