United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. LEE UNITED STATES DISTRICT JUDGE
de facto officer doctrine has existed for over a
century in common law, but its development in Illinois has
not been without controversy. Recent decisions by the
Illinois Appellate Court require us to revisit that history
Court previously entered summary judgment in favor of
Plaintiff Robert Bless as to his claim seeking review of an
administrative decision by the Cook County Sheriff's
Merit Commission (“Merit Board”) that terminated
his employment as a police officer with the Cook County
Sheriff's Office (“CCSO”). The Court vacated
and remanded the Merit Board's decision because it
concluded, pursuant to Taylor v. Dart, 81 N.E.3d 1
(Ill.App.Ct. 2017), that the Merit Board had been illegally
constituted when it issued its decision terminating Bless.
have moved to reconsider the Court's opinion, arguing
that recent developments in Illinois law compel the Court to
uphold the Merit Board's decision as having been made
with de facto authority. For the reasons that
follow, Defendants' motion to reconsider  is
Court assumes the reader's familiarity with its prior
opinions in this case, particularly with its decision
entering summary judgment in favor of Bless on Count IV, his
administrative-review claim. See 7/19/18 Mem. Op.
& Order, ECF No. 352. In brief, this case arises from
Bless's employment as an officer for the CCSO from 1997
until the Merit Board voted to terminate him in May 2013. The
basis for the termination was that Bless had received
workers' compensation benefits and salary while
simultaneously working unauthorized second jobs from December
2008 through 2010. R. 18-28.
Merit Board is an administrative body created by Illinois
statute, and its members are appointed by the Cook County
Sheriff and approved by the Cook County Board of
Commissioners (“County Board”). 55 Ill. Comp.
Stat. 5/3-7002 (West 2012). At the time of the decision in
Bless's case, the Merit Board consisted of seven members
appointed for six-year terms “and until their
successors are appointed and qualified for a like
2011, Cook County Sheriff Thomas Dart requested approval from
the County Board to appoint John R. Rosales to the Merit
Board on an interim basis to fill the vacancy of Commissioner
Daniel Lynch, whose term was set to expire on March 19, 2012.
Taylor, 81 N.E.3d at 4. The County Board approved
Rosales's appointment on June 1, 2011. Id. After
Commissioner Lynch's term expired, Sheriff Dart did not
reappoint Rosales to the Merit Board, yet Rosales continued
to serve until at least May 2017. Id.
Bless's case, proceedings began in October 2011, when
Sheriff Dart filed formal charges with the Merit Board. R.
18-23. The Merit Board-including Rosales-issued a written
decision on May 6, 2013, terminating Bless's employment
with the CCSO. R. 24-28. Bless filed suit in this Court soon
thereafter seeking, among other things, review of the Merit
Board's decision pursuant to Illinois's
Administrative Review Law, 735 Ill. Comp. Stat. 5/3-110.
See Compl., ECF No. 1.
2017, the Illinois Appellate Court concluded in
Taylor that Rosales's appointment did not comply
with 55 Ill. Comp. Stat. 5/3-7002 because the statute
required appointment to a six-year term, yet Rosales was
appointed only on an interim basis. 81 N.E.3d at 4-6.
Accordingly, the Illinois Appellate Court concluded that the
decision then under review-the termination of plaintiff Percy
Taylor-was void due to Rosales's continued tenure and
participation. Id. at 10. The court “vacated
and remanded for a hearing before a legally constituted Merit
time, Bless's administrative-review claim was ripe for a
decision by this Court. In his summary-judgment briefing as
to that claim, Bless argued for the first time that, under
Taylor, Rosales's appointment rendered the Merit
Board's decision void. See Pl.'s Mem. Supp.
Admin. Review Claim at 11, ECF No. 291.
time of the Court's decision, no other court had passed
on the effect of Taylor on subsequent challenges to
Rosales's appointment. Accordingly, the Court accepted
Taylor as a statement of the law in Illinois and
ruled in favor of Bless as to his administrative-review
claim. See 7/19/18 Mem. Op. & Order at 8. In
accordance with Taylor and other precedent, the
Court vacated the Merit Board's decision and remanded for
a hearing before a lawfully constituted Merit Board.
the parties completed briefing on Bless's remaining
claims for discrimination and retaliation pursuant to Title
VII and 42 U.S.C. § 1983. After a discussion with the
parties, the Court concluded that Bless's
race-discrimination claims were likely to be affected by the
remanded Merit Board proceedings and, therefore, stayed
briefing on those claims until the conclusion of that
process. See 9/20/18 Minute Entry, ECF No. 365. The
Court allowed re-briefing, however, as to Bless's claim
for retaliation under the First Amendment and § 1983.
then-nearly a year later-the parties have informed the Court
that proceedings have not resumed before the Merit Board,
with each side blaming the other for its failure to move for
a “new trial, ” and the Merit Board seeking
“guidance” on whether to “place
Plaintiff's case back on its docket.” See
Joint Status Report, ECF No. 412. Additionally, although the
parties have completed briefing as to Bless's retaliation
claim, Defendants have also moved to reconsider the
Court's administrative-review opinion. Because the
validity of the Merit Board proceedings affects nearly every
claim in this case, the Court considers Defendants'
courts have discretion to entertain motions to reconsider
prior decisions. See Patrick v. City of Chi., 103
F.Supp.3d 907, 911 (N.D. Ill. 2015); Fed.R.Civ.P. 54(b);
see also Moses H. Cone Mem'l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 12 (1983) (“[E]very order short
of a final decree is subject to reopening at the discretion
of the district judge.”). But while motions for
reconsideration are permitted, “they are disfavored,
” Patrick, 103 F.Supp.3d at 911, and serve a
very limited purpose: correcting manifest errors of law or
fact and presenting newly discovered evidence. Caisse
Nationale de Credit Agricole v. CBI Indus., Inc., 90
F.3d 1264, 1270 (7th Cir. 1996).
a heavy burden for the moving party and makes a motion for
reconsideration an inappropriate medium to
“rehash” past arguments, Patrick, 103
F.Supp.3d at 912 (citations omitted), or revisit improvident
strategic decisions made earlier, Birdo v. Gomez,
No. 13 C 6864, 2016 WL 6070173, at *1 (N.D. Ill. Oct. 17,
2016) (citation omitted). Accordingly, motions for
reconsideration will be granted only where “the Court
has patently misunderstood a party, or has made a decision
outside the adversarial issues presented to the Court by the
parties, or has made an error not of reasoning but of
apprehension.” Bank of Waunakee v. Rochester Cheese
Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). One
such instance is when there has been “a change in, or
clarification of, law that makes clear that the earlier
ruling was erroneous, ” Santamarina v. Sears,
Roebuck & Co., 466 F.3d 570, 572 (7th Cir. 2006)).
Given these exacting standards, issues appropriate for
reconsideration “rarely arise and the motion to
reconsider should be equally rare.” Bank of
Waunakee, 906 F.2d at 1191 (citation omitted).
their motion to reconsider, Defendants contend that
Taylor no longer controls the outcome of Bless's
Merit Board proceedings. Instead, they point out, the
Illinois Appellate Court has since confined Taylor
to its facts. In Lopez v. Dart, 118 N.E.3d 580
(Ill.App.Ct. 2018), the Illinois Appellate Court held that
the “de facto officer doctrine” prevents
the invalidation of any Merit Board decisions involving
Rosales, except as to the “first challenger of the
improper appointment, ” namely, Percy Taylor.
Id. at 594-95. Bless, however, contends that this
Court should not reconsider its earlier decision because
Defendants have waived reliance on the de facto
officer doctrine, Lopez is not controlling, and the
doctrine is inapplicable to the facts of this case.
initial matter, Bless contends that Defendants cannot rely on
the de facto officer doctrine because they failed to
raise it in response to his administrative-review claim in
the first instance. The Court disagrees. First, although the
de facto officer doctrine predates the
Taylor and Lopez decisions, Lopez
was the first case to apply it to the situation at hand.
See id. Before that, the court in Taylor
had held clearly that the de facto officer doctrine
did not apply, at least on the facts of that case.
See 81 N.E.3d at 10. Accordingly, Defendants'
failure to raise the de facto officer doctrine at a
time when Taylor was the only relevant precedent was
at least understandable.
only that, but even if the Court were to hold that Defendants
waived reliance on the de facto officer doctrine, it
would be appropriate in this situation to overlook the
waiver. Indeed, the Illinois Appellate Court has disregarded
waiver or forfeiture in two of its cases on this very issue,
explaining that “forfeiture serves as a limit on the
parties, not on the court.” Cruz v. Dart, 127
N.E.3d 921, 930 (Ill.App.Ct. 2019); see Lopez, 118
N.E.3d at 589 (“[T]he waiver rule may be relaxed in
order to maintain a uniform body of precedent or where the
interests of justice so require.”). In those cases, the
appellate court found it appropriate to reach the improper
appointments and the de facto officer doctrine,
because those issues went to “the validity of the
[Merit Board's] decision.” Cruz, 127
N.E.3d at 930. The same is true here-in order to avoid
vacating a possibly valid Merit Board order, the Court will
take this opportunity to address all the relevant legal
issues impacting the board's authority to issue that
order. See Fleishman v. Cont'l Cas. Co., 698
F.3d 598, 608 (7th Cir. 2012) (explaining that a waiver is
enforced “unless the interests of justice require
De Facto ...