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 ...