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George Rosario et al v. Retirement Board of the Policemen's Annuity and Benefit Fund of

March 22, 2011


The opinion of the court was delivered by: Judge Joan B. Gottschall


Plaintiffs George Rosario, Eusebio Razo, Ervin P. Ternoir, James M. Gavin, Jacqueline Healy, William Andino, Kevin Graham, Thomas Kolmar, and Kevin Finnegan, all current and former Chicago police officers, filed this lawsuit under 42 U.S.C. § 1983 on behalf of themselves and a class of similarly situated individuals. The plaintiffs allege that the Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago ("Board") denied plaintiffs certain pension benefits in violation of their rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment and in violation of Illinois law. Defendants, the Board, Board Trustees Stephanie D. Neely, Steven J. Lux, Michael Lazzaro, James P. Maloney, Michael K. Shields, Gene R. Saffold, Board President Robert F. Reusche, Board Vice President Kenneth A. Hauser, Board Executive Director John J. Gallagher, Jr., and Board attorney David R. Kugler have filed a motion to dismiss plaintiffs' amended complaint.


The Illinois Pension Code, 40 Ill. Comp. Stat. 5/1 et seq., permits some Chicago police officers to receive pension credit for prior service "[w]hile performing safety or investigative work for the county in which such city is principally located or for the State of Illinois or for the federal government, on leave of absence from the department of police, or while performing investigative work for the department as a civilian employee of the department." See 40 Ill. Comp. Stat. 5/5-214(c). The Board has authority to grant or to deny individual requests by officers to receive credit, see id. §§ 5/5-183, 5/5-189, 5/5-195, and the Board's decisions are subject to judicial review pursuant to Illinois' Administrative Review Law, see id. § 5/5-228; 735 Ill. Comp. Stat. 5/3-101 et seq.

Before their employment with the Chicago Police Department ("CPD"), plaintiffs were all officers with either the Cook County Department of Corrections or the Cook County Sheriff's Police Department. Between early 1993 and October 2008, plaintiffs all applied to the Board to receive credit for their prior service with Cook County, but the Board denied their requests. In rejecting these requests, the Board took the position that § 5/5-214 of the Pension Code only permitted credit to be given to work performed while on leave of absence from the CPD.

The complaint alleges that the Board "contrived among its members and in concert with its attorney, Defendant KUGLER, to erroneously, arbitrarily, and irrationally misinterpret the Pension Code in such a manner so as to deny and deprive fund participants from obtaining their statutory right to obtain credit for their prior service . . . ." (Comp. ¶ 19.) According to the complaint, this interpretation of the Pension Code did not comport with the Board's previous practice. The Board had given pension credit to at least three police officers who performed work before being employed by the CPD. Each of these officers had received the credit prior to the end of 1992.

Some of the officers whose requests were denied sought judicial review, and in most cases the Illinois courts upheld the denials. Some officers chose not to appeal the Board's decisions. Rosario brought an administrative review action in the Circuit Court of Cook County.

The court upheld the Board's decision, and Rosario appealed. On March 31, 2008, the Illinois Appellate Court reversed the Board's decision, holding that the Pension Code permitted Rosario to receive credit for work done for Cook County before being employed by CPD. See Rosario v. Retirement Bd. of Policemen's Annuity and Ben. Fund of City of Chicago, 887 N.E.2d 559 (Ill. App. Ct. 2008).*fn1

After Rosario's victory in the appellate court, other plaintiffs returned to the Board seeking to receive the same credit which had been previously denied. The Board rejected these applications on the ground that each one had already been adjudicated, and the Board was not empowered to revisit final rulings. According to the complaint, "[t]he BOARD and its counsel ignored the ruling and precedential effect of the Appellate Court's order in Rosario and had refused, and continues to refuse to apply existing law to other pension applicants whose applications were wrongfully denied and which the BOARD refuses to consider despite expressed statutory authorization to reconsider service credits." (Am. Compl. ¶ 28.)


In deciding a motion to dismiss, the court must "construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [the plaintiff's] favor." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Legal conclusions, however, are not entitled to any assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A plaintiff generally need not plead particularized facts; Federal Rule of Civil Procedure 8(a)(2) requires that the complaint set forth only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Still, the factual allegations in the complaint must be sufficient to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).


Plaintiffs contend that the Board's actions violated their rights to Equal Protection and Due Process under the Fourteenth Amendment.*fn2 Defendants advance a litany of attacks on the complaint including that: (1) plaintiffs' claims are barred by the statute of limitations; (2) the defendants are protected by either absolute judicial immunity or qualified immunity; (3) the claims are barred as res judicata or by the Rooker-Feldman doctrine; and (4) plaintiffs have failed to state a claim under § 1983. The court need not address most of defendants' arguments because the complaint does not adequately allege a violation of either Equal Protection or Due Process.

The key case cited by defendants is Snowden v. Hughes, 321 U.S. 1 (1944). In Snowden, plaintiff Joseph Snowden alleged that he had been illegally denied a place on the ballot as a Republican nominee for state representative in Illinois. Snowden alleged that defendants "'willfully maliciously and arbitrarily' failed and refused to file with the Secretary of State a correct certificate showing that petitioner was one of the Republican nominees, that they conspired and confederated together for that purpose, and that their action constituted 'an unequal, unjust and oppressive administration' of the laws of Illinois." 321 U.S. at 4. Snowden ...

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