In the
United States Court of Appeals
For the Seventh Circuit
No. 13‐1615
GEORGE ROSARIO, et al.,
Plaintiffs‐Appellants,
v.
RETIREMENT BOARD OF THE
POLICEMEN’S ANNUITY AND BENEFIT
FUND FOR THE CITY OF CHICAGO, et
al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10‐cv‐01512— John J. Tharp, Jr., Judge.
ARGUED DECEMBER 3, 2013 — DECIDED FEBRUARY 19, 2014
Before POSNER, MANION, and HAMILTON, Circuit Judges.
MANION, Circuit Judge. Prior to 1992, Chicago police officers
received pension credit for time worked for the Cook County
Sheriff’s Department. In 1992, the Retirement Board (which
administers the Chicago Police Department’s pension fund)
began denying pension credit to retiring officers for their prior
2 No. 13‐1615
service with the Cook County Sheriff’s Department. In 2008,
the Illinois Appellate Court ruled that this practice was
improper under the controlling section of the Illinois Pension
Code. Thereafter, a number of the officers who had been
denied pension credit sought reconsideration of the Board’s
dispositions of their pension applications. The Board con‐
cluded that it lacked jurisdiction to reconsider the applications
and summarily refused to do so. The officers filed suit in
federal court on behalf of themselves and other similarly
situated officers, alleging violations of their procedural due
process and equal protection rights under the United States
Constitution and the Illinois Constitution (and various deriva‐
tive claims). Eventually, the district court dismissed the action
with prejudice. The officers appeal. We affirm.
I. Facts
Pursuant to the Illinois Pension Code (“IPC”), Chicago
police officers are entitled to pension credit
for service rendered prior to becoming a member or
subsequent thereto for the following periods:
…
(c) While 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 depart‐
ment of police, or while performing investigative
work for the department as a civilian employee of
the department.
No. 13‐1615 3
40 ILCS 5/5‐214. This statutory provision has not materially
changed during any of the times relevant to this appeal. The
Retirement Board of the Policemen’s Annuity and Benefit Fund
of the City of Chicago (the “Board”) administers the Chicago
Police Department’s pension fund (the “Fund”), and has the
authority to grant or deny requests by officers to receive
pension credit. See 40 ILCS 5/5‐183–5‐195. Prior to 1992, the
Board granted pension credit to officers for their service with
the Cook County Sheriff’s Department performed prior to
working for the Chicago Police Department. However, in 1992,
the Board concluded that 40 ILCS 5/5‐214(c) only applied to
officers who worked for the Cook County Sheriff’s Department
while on a leave of absence from the Chicago Police Depart‐
ment. Thus, from 1992 until 2008, the Board denied pension
credit for any officer’s service with the Cook County Sheriff’s
Department performed prior to that officer’s employment by
the Chicago Police Department.
The Board’s pension determinations are administrative
decisions which may be reviewed pursuant to the provisions
of the Illinois Administrative Review Law (“ARL”). See 735
ILCS 5/3‐101–3‐102. The ARL provides that “[e]very action to
review a final administrative decision shall be commenced by
the filing of a complaint and the issuance of summons within
35 days from the date that a copy of the decision sought to be
reviewed was served upon the party affected by the decision
… .” 735 ILCS 5/3‐103. Thus, those officers who were denied
pension credit could seek review of that denial in the Illinois
courts within 35 days of the denial.
One of the officers who is a party to this action, Eusebio
Razo, did so. In 1998, Officer Razo applied for pension credit
4 No. 13‐1615
for prior work performed for the Cook County Sheriff’s
Department, but the Board denied Razo’s application. Razo
appealed to the Illinois Appellate Court. After thoroughly
considering the text and legislative history of 40 ILCS
5/5‐214(c), and mindful that the section “must be construed
liberally and in favor” of Officer Razo, the court “agree[d] with
the Board’s construction and [found] that for an applicant to
receive a pension credit for service on behalf of the county as
provided for in section 5‐214(c), the applicant’s service must
have been performed while he was on a leave of absence from
the [Chicago Police] Department.” Razo v. Ret. Bd. of Policemen’s
Annuity & Ben. Fund of Chi., No. 1‐99‐3798, slip op. at 6 (Ill.
App. Ct. Dec. 29, 2000) (unpublished). However, because it
was not published, Razo was not binding Illinois precedent. See
Ill. Sup. Ct. Rule 23(e). The Board continued to apply its 1992
interpretation of 40 ILCS 5/5‐214(c) after Razo was handed
down.
Then, in 2008, Officer George Rosario similarly applied for
pension credit for his work for the Cook County Sheriff’s
Department prior to his joining the Chicago Police Depart‐
ment. Yet again, the Board applied its 1992 interpretation and
denied Officer Rosario’s request. Officer Rosario filed a
petition for review in the Illinois circuit court, which affirmed
the Board’s determination. Officer Rosario appealed to the
Illinois Appellate Court, which held “that the clear language of
the statute mandates that plaintiff is entitled to credit for the
service he rendered as a Cook County sheriff’s police officer
and correctional officer for the Cook County department of
corrections prior to his employment with the city department
of police.” Rosario v. Ret. Bd. of Policemen’s Annuity & Ben. Fund
No. 13‐1615 5
of Chi., 887 N.E.2d 559, 564 (Ill. App. Ct. 2008). Rosario, which
was published, is precedential.
After Rosario, the Board began granting pension credit to
officers for their service with the Cook County Sheriff’s
Department performed prior to their employment by the
Chicago Police Department. A number of officers who had
been denied such pension credit between 1992 and 2008 filed
petitions asking the Board to reconsider the dispositions of
their pension applications. The Board declined to schedule any
hearings to resolve the officers’ petitions for reconsideration on
the basis that the Board could not rehear final rulings after the
35‐day limit imposed by 735 ILCS 5/3‐103.
The officers did not seek review in the Illinois courts.
Instead, a number of the officers filed suit in federal court (on
behalf of themselves and other similarly situated officers)
against the Fund, the Board, the Board Trustees, and the
Board’s executive director, John J. Gallagher, Jr.,1 alleging that
the Board’s initial denials of the officers’ applications for
service credit and the subsequent refusals to reconsider their
pension applications violated their rights to due process and
equal protection. The officers subsequently amended their
complaint and added allegations that the IPC and the ARL are
constitutionally flawed insofar as they fail to provide a
mechanism for reconsideration. The defendants moved to
dismiss the complaint. The district court granted that motion
and dismissed the action with prejudice. The officers appeal.
1
The officers alleged that Gallagher either removed the officers’ petitions
for reconsideration from the Board’s docket, or refused to schedule them.
6 No. 13‐1615
II. Discussion
On appeal, the officers raise a host of alleged legal errors,
and the defendants offer a variety of theories supporting the
action’s dismissal. We address only whether the officers stated
claims, either federal or state, for violations of their procedural
due process or equal protection rights.2 Because the officers’
other claims depend on an underlying constitutional violation,
and we find no such violation, we need not address the other
issues raised on appeal.
A. Procedural Due Process
The officers articulate three separate theories underlying
their procedural due process claim. First, the officers argue that
the Board has the authority to reconsider the dispositions of
the officers’ pension applications, and that the defendants’
refusal to schedule any hearings to resolve the petitions for
reconsideration deprived the officers of procedural due
process. Second, the officers argue that, if Illinois’ statutory
framework precludes the Board from reconsidering the
pension‐application rulings, then Illinois law itself deprives
them of procedural due process. Third, the officers argue that
because half of the Board members are police officers who will
likely draw pensions from the Fund at some time, it follows
that these Board members have an interest in reducing
payments from the Fund in order to ensure that the Fund
remains solvent. According to the officers, the self‐interested
2
The officers’ due process and equal protection claims—brought under
both the United States Constitution and the Illinois Constitution—stand or
fall together. See Jarabe v. Indus. Comm’n, 666 N.E.2d 1, 3 (Ill. 1996).
No. 13‐1615 7
members render the Board partial and thereby deprive pension
applicants of procedural due process.
1. Did the Board follow the applicable Illinois law?
The officers’ first procedural due process argument
founders on contrary Illinois precedent. In Sola v. Roselle Police
Pension Bd., 794 N.E.2d 1055, 1056 (Ill. App. Ct. 2003), the
Roselle Police Pension Board granted Jeannette Sola’s pension
application in 1993 with an annual 3% cost‐of‐living increase.
But in 2002, the Village of Roselle asked the Roselle Pension
Board to reconsider its decision to grant Sola annual cost‐of‐
living increases. Id. at 1056–57. When the Roselle Pension
Board scheduled a hearing, Sola sued in Illinois state court
seeking an order enjoining the Roselle Pension Board from
holding the hearing. Id. at 1057. The Illinois circuit court
concluded that the Roselle Pension Board lacked jurisdiction to
reconsider its earlier disposition of Sola’s pension application
and granted Sola’s request for injunctive relief. Id. On appeal,
the Illinois Appellate Court affirmed. Id. at 1059. The court
explained that the IPC, which governs the Roselle Pension
Board, provides that the Board’s decisions are subject to the
ARL. Id. at 1057. Further, any “review of a decision under the
Administrative Review Law, initiated either by an agency or
an individual appearing before it, is limited to a 35‐day period
after the decision is issued.” Id. (citing Rossler v. Morton Grove
Police Pension Bd., 533 N.E.2d 927, 930 (Ill. App. Ct. 1989)). And
that limit is jurisdictional. Id. (citing Holmes v. Aurora Police
Pension Fund Bd. of Trs., 577 N.E.2d 191, 194 (Ill. App. Ct.
1991)). Consequently, an Illinois Pension “Board lacks jurisdic‐
tion to reconsider decisions after the expiration of the 35‐day
period.” Id. at 1057–58.
8 No. 13‐1615
So too here. All of the officers’ requests that the Board
reconsider the dispositions of their pension applications
occurred outside of the 35‐day period set by the ARL. (Or, in
the cases of officers who sought further review in the Illinois
courts, after the period for seeking reconsideration of the state
courts’ decisions.) Therefore, pursuant to Sola, the Board lacks
jurisdiction to entertain the officers’ petitions for reconsidera‐
tion.
To avoid this result, the officers point to the Board’s own
rules and regulations which provide that “any application may
be reviewed or reconsidered at any time by majority vote of
the Board for good cause shown, in accordance with the
provisions of law governing this fund … .” But the ARL, which
imposes the 35‐day limit, is the governing law. See Sola, 794
N.E.2d at 1057. Moreover, Sola explicitly rejected the argument
offered by the officers here. 794 N.E.2d at 1057 (“Although an
administrative agency’s procedural rules may allow for an
extension of the 35‐day review period, the Pension Code
provides no such extension.” (citing Holmes, 577 N.E.2d at
195)).
The officers also argue that the IPC provides the Board with
statutory authorization to modify an applicant’s pension. See
40 ILCS 5/5‐190 (“Any such determination [regarding service
credit] by the Board shall be conclusive as to any such period
of service unless the Board reconsiders and changes the determina‐
tion.” (emphasis added)). But we perceive no conflict between
this section of the IPC and the ARL’s limitation of the com‐
mencement of any such reconsideration to the 35‐day period
following the Board’s determination. See also 40 ILCS 5/5‐228
(“The provisions of the Administrative Review Law, and all
No. 13‐1615 9
amendments and modifications thereof and the rules adopted
pursuant thereto, shall apply to and govern all proceedings for
the judicial review of final administrative decisions of the
retirement board provided for under this Article.”). More
importantly, the Illinois courts have explicitly rejected the
argument that another section of the IPC authorizes the Board
to modify an applicant’s pension after the 35‐day review
period expires. Sola, 794 N.E.2d at 1058 (citing Rossler, 533
N.E.2d at 931). Accordingly, 40 ILCS 5/5‐190 does not authorize
the Board to reconsider its final application decisions, and the
officers’ due process claim premised on this theory fails.
2. Does the applicable law provide due process?
The officers’ second procedural due process argument is
that, if Illinois’ statutory framework precludes the Board from
reconsidering the pension‐application rulings, then Illinois law
itself deprives them of procedural due process. Specifically, the
officers contend that the Board deprived them of their vested
property interests in having their pensions correctly calculated
(to include pension credit for each officer’s work performed for
the Cook County Sheriff’s Department prior to his joining the
Chicago Police Department), and that Illinois’ statutory
framework deprives the officers of procedural due process to
the extent it lacks a mechanism for review of this “constitu‐
tional deprivation.”
The problem with the officers’ theory is that Illinois’
statutory framework does provide a mechanism allowing the
officers to seek review of the Board’s calculations of their
pensions. It is just that the ARL requires the officers to seek
review within 35 days of the Board’s disposition of their
10 No. 13‐1615
pension applications. Thirty‐five days may not be long, but
“Illinois courts have long enforced this requirement, the
purpose of which is to ‘hasten the procedure of administrative
review and avoid undue delay.’” Holmes, 577 N.E.2d at 195
(quoting Lockett v. Chi. Police Bd., 549 N.E.2d 1266, 1268 (Ill.
1990)). Comparatively, in federal court, a civil litigant generally
must appeal within 30 days, and a criminal defendant gener‐
ally must appeal within 14 days. See Fed. R. App. P. 4(a)(1)(A),
(b)(1)(A). And where there is a provision for judicial review,
procedural due process does not require a mechanism for
seeking reconsideration. See Gleason v. Bd. of Educ. of Chi., 792
F.2d 76, 80–81 (7th Cir. 1986) (finding that “the Illinois adminis‐
trative review process” affords “a meaningful opportunity to
challenge” adverse administrative decisions).
In short, even assuming that the Board’s decision in 1992 to
deny the officers the contested pension credit was a poor one,
procedural due process does not require a mechanism to right
that long‐past wrong. To hold to the contrary would be to
vitiate the rule that a change in the interpretation of a law
generally does not retroactively apply to final civil judgments.
See In re Disclosure of Grand Jury Material, 821 F.2d 1290, 1293
(7th Cir. 1987) (“Once a civil judgment has become final,
however, the concept of retroactivity does not apply. A final
civil judgment remains binding regardless of any subsequent
change in the law.” (citing Chicot Cnty. Drainage Dist. v. Baxter
State Bank, 308 U.S. 371, 374 (1940))).
3. Is the Board impermissibly self‐interested?
The officers’ third procedural due process argument is that
half of the Board members (who by statute are police officers)
No. 13‐1615 11
have an interest in reducing payments from the Fund in order
to ensure that the Fund remains solvent, and that these self‐
interested members render the Board partial and thereby
deprive pension applicants of procedural due process. See 40
ILCS 5/5‐178 (composition of city police pension boards). This
argument has extraordinarily wide‐ranging implications. If we
were to accept it, then the IPC prescribes pension boards that
could never provide pension applicants with the process
required by the United States Constitution.
Undoubtedly, those “with substantial pecuniary interest in
legal proceedings should not adjudicate these disputes.” Gibson
v. Berryhill, 411 U.S. 564, 579 (1973). But the police members of
the Board gain no direct financial benefit from reducing an
applicant’s pension. That such decisions may have a negative
impact on the Fund’s solvency (and, consequently, its ability to
pay the police members’ pensions in the future) is too remote
and insubstantial an interest to justify a procedural due process
rule that simply prohibits police officers from serving on the
Board. After all, the statutory framework provides some
procedural protections from self‐interested Board members.
See, e.g., 40 ILCS 5/1‐109.3(a) (requiring training in trustee
ethics); 40 ILCS 5/1‐130 (prohibiting monetary gain on invest‐
ments); 40 ILCS 5/5‐180 (board member recall by officers).
Similarly, the Board’s ethics policy prohibits, inter alia, financial
conflicts of interest. See Policemen’s Annuity and Benefit Fund
of Chicago, Ethics Policy, available at http://www.chipabf.org
/ChicagoPolicePension/PDF/Investments/Ethics_Policy.pdf.3 In
3
Moreover, in Illinois, “[a] claim of disqualifying bias or partiality on the
(continued...)
12 No. 13‐1615
any event, the ARL provides the opportunity for review by
impartial state courts. See 735 ILCS 5/3‐101–3‐102.
In short, the officers’ procedural due process arguments are
without merit. Therefore, the district court correctly dismissed
the officers’ procedural due process claims.
B. Equal Protection
Alternatively, the officers contend that the defendants’
actions vis‐a‐vis the disputed pension calculation deprived
them of the equal protection of the law. Specifically, the
officers contend that they are similarly situated to all other
Chicago police officers who retired and had worked for the
Cook County Sheriff’s Department prior to working for the
Chicago Police Department. Yet the Board awarded the service
credit to all such officers who retired either prior to 1992 or
after Rosario in 2008 (or, at least, had pension applications
3
(...continued)
part of a member of the judiciary or an administrative agency must be
asserted promptly after knowledge of the alleged disqualification.” E & E
Hauling, Inc. v. Pollution Control Bd., 481 N.E.2d 664, 666 (Ill. 1985) (quoting
Duffield v. Charleston Area Med. Ctr., Inc., 503 F.2d 512, 515 (4th Cir. 1974)).
Therefore, the statute of limitations likely would preclude the officers’ third
procedural due process argument with respect to the vast majority of the
class—namely, those officers whose pension applications were resolved by
the Board more than two years before the instant action was filed in 2010.
See Jenkins v. Vill. of Maywood, 506 F.3d 622, 623 (7th Cir. 2007) (“In Illinois,
the statute of limitations for personal injury actions is two years, and so
section 1983 actions litigated in federal courts in Illinois are subject to that
two‐year period of limitations.”). Because this action was filed on March 8,
2010, almost two years after Rosario was handed down on March 31, 2008,
few (if any) of the class members would be able to avoid the statute of
limitations.
No. 13‐1615 13
pending when Rosario was handed down), but not to the
officers who retired between 1992 and 2008.
Because this case does not involve distinctions among
persons based on their membership in a “suspect” class or a
denial of a fundamental right, we apply rational basis review.
Srail v. Vill. of Lisle, Ill., 588 F.3d 940, 943 (7th Cir. 2009). Thus,
the officers must “prove that (1) the [Board] intentionally
treated [them] differently from others similarly situated; (2)
this difference in treatment was caused by [their] membership
in the class to which they belong; and (3) this different treat‐
ment was not rationally related to a legitimate state interest.”
Id.
Here, the Board’s changes in its interpretation of 40 ILCS
5/5‐214(c)—voluntarily in 1992, and compelled by precedent in
2008—resulted in the officers who applied for the disputed
pension calculation between 1992 and 2008 (but prior to
Rosario) being treated differently than the officers who applied
for that calculation before 1992 or after Rosario. Even assuming
that this establishes the first two elements of the officers’ equal
protection claim, the Board’s decision is not irrational. The
Board is authorized to calculate retiring officers’ pension
credits. See 40 ILCS 5/5‐190. To do so, the Board must interpret
and apply the IPC (consistently, of course, with Illinois court
precedent). Thus, the Board’s different treatment of those
officers who retired before 1992 and the officers who are part
of this action is rationally related to the Board’s legitimate
interest in properly interpreting the IPC in order to correctly
calculate retiring officers’ pension credits.
14 No. 13‐1615
Similarly, the Board has a legitimate interest in the finality
of its administrative judgments. See Norgaard v. DePuy Ortho‐
paedics, Inc., 121 F.3d 1074, 1078 (7th Cir. 1997) (recognizing
“[l]egitimate interests in finality”); see also San Remo Hotel, L.P.
v. City & Cnty. of S.F., Cal., 545 U.S. 323, 345 (2005) (referring to
“the weighty interests in finality”); Margoles v. Johns, 798 F.2d
1069, 1072 (7th Cir. 1986) (“There is, of course, a strong policy
favoring the finality of judgments … .”). Thus, the Board’s
different treatment of those officers who are part of this action
and those officers who were awarded pension benefits after
Rosario is rationally related to the Board’s legitimate interest in
the finality of its judgments.
Indeed, as discussed above, the Board lacks the jurisdiction
to reconsider the (now final) dispositions of the officers’
pension applications. Of course, to the extent the officers
suggest that Illinois’ statutory framework itself deprives them
of equal protection of the law, that argument would fail
because the ARL’s temporal limit on review or reconsideration
is rationally related to Illinois’ legitimate interests in finality
and in avoiding undue delay in administrative proceedings.
See Holmes, 577 N.E.2d at 195. Therefore, the district court
correctly dismissed the officers’ equal protection claims.
C. Rosario and the Remaining Issues
Because the officers’ constitutional claims fail on the merits,
Rosario cannot seek damages in federal court for the expenses
he accrued in combating the Board’s conduct in the Illinois
courts. For the same reason, we need not address the affirma‐
tive defenses (raised by the defendants on appeal), including
qualified and absolute immunity, res judicata, and the Rooker‐
No. 13‐1615 15
Feldman doctrine. Nor need we decide whether the district
court erroneously dismissed the officers’ declaratory judgment
and conspiracy claims, or the claims against the Board’s
executive director, John Gallagher, all of which depend upon
the underlying constitutional claims.
III. Conclusion
Essentially, the officers’ complaint is that Illinois law
provides no procedure for making Rosario retroactive. We are
sympathetic to the officers’ desires to obtain pension credit that
other retiring officers are receiving. But under the circum‐
stances, there are no due process or equal protection violations.
The officers’ sole remedy lies with the political branches.
Consequently, we AFFIRM the judgment of the district court.