CHARLESTON — West Virginia Attorney General Patrick Morrisey joined a bipartisan 24-state effort to protect national guardsmen from losing their jobs, pay and benefits after serving active duty.
The coalition filed an amicus brief with the U.S. Court of Appeals for the Seventh Circuit in June hoping to overturn a decision by a federal judge from the U.S. District Court for the Northern District of Illinois that would leave guardsmen with no protection from employment discrimination when they serve in a state capacity rather than national.
"This is just not right," Morrisey said. "These patriotic men and women leave family, job and home behind to serve you and me. Their employers must treat them fairly. Otherwise, what incentive do people have to enlist and fulfill essential duties such as counter-drug operations and disaster relief? It does not matter why or how they served, they served."
The case involves David Mueller, an Illinois guardsman who worked for the City of Joliet in the police department, which refused back pay and benefits because the state’s governor, as opposed to the president, initiated the police officer’s counter-drug deployment.
The coalition argues the lower court ruling, if not reversed, will have a major impact on the men and women who serve in their state’s National Guard and discourage those who consider enlistment.
The attorneys general contend the federal law in question clearly protects "service in the uniformed services," regardless whether said service is in a state or federal context. It is specifically designed to give guardsmen and women job security, prevent employment discrimination and protect those who serve from "disruption" and "disadvantage" to their civilian lives.
The regulations implementing the Uniformed Service Members Employment and Reemployment Act (USERRA) expressly affirm that the law protects full-time National Guard duty under Title 32, according to the brief.
"The amici States take no position on the merits of Plaintiff’s claim apart from the statutory interpretation question on which the district court based its judgment," the brief states.
Attorneys general from Alabama, Alaska, Arkansas, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, Ohio, Oklahoma, Pennsylvania, South Carolina, Virginia, Washington and West Virginia participated in the brief.
U.S. Court of Appeals for the Seventh Circuit Case number: 18-3609