In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1733
JOSEPH YASAK,
Plaintiff-Appellant,
v.
RETIREMENT BOARD OF THE POLICEMEN’S ANNUITY
AND BENEFIT FUND OF CHICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 251—Ronald Guzman, Judge.
____________
ARGUED SEPTEMBER 19, 2003—DECIDED FEBRUARY 4, 2004
____________
Before BAUER, RIPPLE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Joseph Yasak was convicted of
a federal felony, and his request for pension benefits was
denied as a result. Yasak then applied for and received a
refund of his pension contributions. Years later, Yasak
received a presidential pardon, and attempted to get his
pension benefits restored. The pension board denied Yasak’s
request, and a federal district court agreed that the pension
board had no duty to reinstate benefits. Because we find
that Yasak forfeited his property interest in his pension
when he elected to receive a refund of his pension contribu-
tions, we affirm the district court’s decision.
2 No. 03-1733
I. BACKGROUND
Joseph Yasak served as a Chicago police officer for almost
twenty-eight years before retiring in September 1988.
During that period, Yasak paid a portion of his salary into
a police pension fund controlled by the Retirement Board of
the Policemen’s Annuity and Benefit Fund of Chicago (the
Board). In December 1988, Yasak was convicted of making
false declarations before a grand jury, a federal felony
under 18 U.S.C. § 1623. The Board denied Yasak’s request
for pension benefits in April 1991, on the ground that
pursuant to 40 ILL. COMP. STAT. 5/5-227, Yasak had for-
feited his entitlement to pension benefits as a result of his
felony conviction. Yasak then applied for and received a
refund of his contributions to the fund. The Board’s 1991
check was lost, so Yasak was issued a replacement check in
January 1995, which he cashed.
Yasak received a full and unconditional pardon from
former President William Jefferson Clinton in January
2001. In May 2001, Yasak asked the Board to restore his
pension benefits both prospectively and retroactively, and
provided a copy of the pardon to the Board. During the next
six months, Yasak repeatedly asked the Board for various
documents, and to calculate how much money he needed to
repay to the fund to get benefits reinstated for himself and
his wife. He also requested a hearing on his claim. Other
than the issuance of two subpoenas that Yasak requested,
Yasak received no response from the Board until December
2001, when the Board sent him a letter denying his claim.
In the letter, the Board asserted that it lacked jurisdiction
to reconsider its 1991 decision, and that even if it had
jurisdiction, state law precluded reinstatement of benefits.
Yasak sought a declaratory judgment in federal district
court in January 2002. Count I alleged that, as a result of
his pardon, he had a property interest in his pension
No. 03-1733 3
benefits, and the Board had deprived him of his property
without substantive and procedural due process in violation
of 42 U.S.C. § 1983. Yasak also filed a petition for adminis-
trative review of the Board’s decision in the Circuit Court
of Cook County, and amended his federal complaint in
March 2002 to include the administrative review claim; this
became Count II.
The Board moved for dismissal under either Fed. R.
Civ. P. 12(b)(1) or (6). After extensive briefing, the district
court denied the Board’s motion for dismissal under Rule
12(b)(1) as to Count I, but declined to exercise supplemental
jurisdiction over Count II. It then granted the Board’s
motion to dismiss Count I under Rule 12(b)(6), finding that
Yasak’s voluntary acceptance of the refund of his pension
contributions resulted in the relinquishment of his property
interest in his pension, and Yasak’s pardon did not reverse
the effects of his acceptance. Yasak appeals the dismissal of
Count I.
II. ANALYSIS
A. Standard of Review
We review de novo a district court’s dismissal of a com-
plaint under Fed. R. Civ. P. 12(b)(6), “examining a plain-
tiff’s factual allegations and any inferences reasonably
drawn therefrom in the light most favorable to the plain-
tiff.” Chavez v. Ill. State Police, 251 F.3d 612, 648 (7th Cir.
2001). Dismissal is warranted “only if the plaintiff could
prove no set of facts in support of his claims that would
entitle him to relief.” Id.
B. The Due Process Claims
The crux of Yasak’s argument on appeal is as follows. By
denying Yasak his pension benefits, the state punished
4 No. 03-1733
Yasak for his conviction. Although Yasak then received a
refund of his pension contributions, his receipt of the refund
was involuntary. Therefore, he never relinquished his
property interest in his pension, and the issuance of the
presidential pardon necessitates reinstatement of his pen-
sion benefits. Failure to reinstate his benefits violates the
rule that once an individual receives a pardon, the state can
no longer punish the individual for the crime for which he
was pardoned. Although we sympathize with Yasak’s
predicament, we disagree with many of his assertions.
Yasak rightly notes that the forfeiture of his pension
benefits following his felony conviction was intended to be
a punishment for his conviction. See Devoney v. Ret. Bd. of
the Policemen’s Annuity & Benefit Fund for the City of
Chicago, 769 N.E.2d 932, 935 (Ill. 2002) (explaining that the
purpose of 40 ILL. COMP. STAT. 5/5-227 is to “ ‘discourage
official malfeasance by denying the public servant convicted
of unfaithfulness to his trust the retirement benefits to
which he otherwise would have been entitled’ ”) (quoting
Kerner v. State Employees’ Ret. Sys., 382 N.E.2d 243, 246
(Ill. 1978)). We further agree that in light of his pardon, the
state cannot continue to punish Yasak for his conviction. As
we explained in Bjerkan v. United States, 529 F.2d 125,
127-28 (7th Cir. 1975), “after a pardon, a state may not take
cognizance of the offense pardoned in any way which would
constitute a ‘punishment.’ ” See also Carlesi v. New York,
233 U.S. 51, 57 (1914).
However, our analysis diverges from Yasak’s when we
consider his contention that his acceptance of the refund
was involuntary. Notwithstanding Yasak’s claim to the
contrary, the Board did not force Yasak to accept a refund
of his pension contributions. Yasak himself filled out an
application and requested a refund. Indeed, Yasak’s own
complaint states the following: “Plaintiff applied for a
refund of his contributions and the Board issued a refund to
No. 03-1733 5
him in April 1991.”1 (emphasis added). Yasak argues that
because we must draw all reasonable inferences in his favor
when reviewing the dismissal of his complaint, a finding
that he voluntarily initiated the refund process is an
impermissible inference. However, under the circumstances,
this is not an impermissible inference, but rather a rational
conclusion dictated by Yasak’s own language. Indeed, based
on the pleadings, it would be unreasonable to assume that
Yasak’s actions were anything but voluntary.2 See Holman
v. Indiana, 211 F.3d 399, 407 (7th Cir. 2000) (“[W]hile we
must draw reasonable inferences in the [plaintiffs’] favor,
we should not draw inferences that while theoretically
1
In his initial appellate brief, Yasak states that “[h]is livelihood
of twenty-eight (28) years was over and he had one of two choices
to make. He could either accept the refund or he could allow the
fund to retain thousands of dollars of his money. [His] acceptance
of the fund was compelled by the overwhelming circumstances in
which he found himself. [He] truly had no choice but to accept the
refund.” We understand that the thought of letting the Board
retain his money might have been unpalatable to Yasak. However,
he fails to cite any support for his argument that he sought the
refund under duress. (As an aside, we note that it seems unlikely
that financial concerns drove Yasak’s decision, as he received a
refund check in 1991, but does not complain about the fact that
the check was lost and apparently not replaced and cashed until
1995.)
2
For the first time in his reply brief, Yasak claims that his ac-
ceptance of a refund is of no consequence because under 40 ILL.
COMP. STAT. 5/5-163(a) & 5/5-227, the Board was required to give
him a refund whether he applied for one or not. Not only does this
argument come too late, see Wilson v. Giesen, 956 F.2d 738, 741
(7th Cir. 1992), but even if we agreed that the statutes impose
such a requirement, Yasak offers no evidence that the Board was
required to give Yasak his refund in 1991 as opposed to some later
date, and thus fails to challenge persuasively the Board’s ar-
gument that Yasak’s actions alone triggered the provision of the
refund in this instance.
6 No. 03-1733
plausible are inconsistent with the pleadings.”) (emphasis
in original); cf. Mills v. Health Care Serv. Corp., 171 F.3d
450, 459 (7th Cir. 1999) (explaining that in the summary
judgment context, “while any inferences drawn from the
facts must be viewed in the light most favorable to the
non-moving party, only reasonable inferences need be
made”).
Once we accept the fact that Yasak voluntarily sought a
refund, it becomes clear that the issuance of the pardon
does not trigger reinstatement of his pension benefits. In
Knote v. United States, the Supreme Court stated that
[a] pardon is an act of grace by which an offender is
released from the consequences of his offence, so far
as such release is practicable and within control of
the pardoning power. . . . It gives [the offender] a
new credit and capacity, and rehabilitates him to
that extent in his former position. But it does not
make amends for the past. It affords no relief for
what has been suffered by the offender in his
person by imprisonment, forced labor, or otherwise.
...
95 U.S. 149, 153 (1877). Later cases have made clear that
numerous acts committed by the state may be deemed
“consequences of [an] offence” from which pardons provide
relief. See, e.g., Carlesi, 233 U.S. at 57 (stating that the “act
of the state in taking into consideration a prior conviction”
despite a pardon would be “void” if “it was in any just sense
a punishment” for the prior conviction); Bjerkan, 529 F.2d
at 128 (explaining that the deprivation of basic civil rights
“by a state,” such as the right to vote, would constitute
punishment in violation of a pardon).
However, the pardon power has its limits. For example,
we stated in Grossgold v. Supreme Court of Illinois, 557
F.2d 122, 126 (7th Cir. 1977), that “a presidential pardon
does not relieve an attorney from discipline,” while the
No. 03-1733 7
Third Circuit held in United States v. Noonan, 906 F.2d
952, 960 (3d Cir. 1990), that a pardon does not warrant ex-
punction of all court records relating to an individual’s
conviction. More recently, the D.C. Circuit determined that
a pardon does not entitle an individual who has been
indicted, but not convicted, to attorneys’ fees incurred as a
result of an investigation conducted by independent coun-
sel. See In re North, 62 F.3d 1434, 1438 (D.C. Cir. 1994).
Similarly, the case law does not suggest that a pardon
prevents an individual from having to deal with the conse-
quences of his own actions taken in response to his convic-
tion. Unlike the forfeiture of Yasak’s pension benefits, the
provision of the refund was not a punishment meted out by
the state on account of Yasak’s conviction, but resulted
instead from a conscious decision on Yasak’s part to regain
control of his money. The consequence of this decision
is that Yasak triggered the application of 40 ILL. COMP.
STAT. 5/5-163(c),3 and thus voluntarily relinquished his
property interest in his pension. See Board of Regents v.
3
Yasak concedes that “certain state laws may be enforced if their
operation is not dependent on the fact of a conviction.” According
to 40 ILL. COMP. STAT. 5/5-163(c), “[a] policeman who withdraws
the amount credited to him surrenders and forfeits all rights to
any annuity or other benefit from the fund, for himself and for any
other person or persons who might otherwise have benefitted
through him.” Although provisions for reinstatement of benefits
following forfeiture are discussed in 40 ILL. COMP. STAT. 5/5-164,
this option applies to police officers who re-enter the police force,
and Yasak has passed the age limit for re-entry. Unlike 40 ILL.
COMP. STAT. 5/5-227 (which precludes payment of pension benefits
to police officers convicted of certain felonies), sections 5/5-163(c)
and 5/5-164 come into play here not because Yasak was convicted,
but rather because he chose to withdraw the money that was
credited to him. Because the statutes’ relevance is not dependent
on Yasak’s conviction, these rules may be enforced to Yasak’s
detriment.
8 No. 03-1733
Roth, 408 U.S. 564, 577 (1972) (explaining that property
interests are created and defined by sources other than the
Constitution, such as state law). A consequence of this
nature falls squarely within the “otherwise” umbrella de-
scribed above in Knote, so Yasak’s pardon does not entitle
him to relief.4 Because Yasak has no property interest in his
pension, and a cognizable property interest is a prerequisite
for Yasak’s success on his due process claims, his claims
necessarily fail. See Brown v. City of Lake Geneva, 919 F.2d
1299, 1301 (7th Cir. 1990) (“It is well established that the
threshold requirement for any successful due process claim
is the deprivation of a liberty or property interest.”).5
We note that rather than claiming his refund, Yasak
could have waited out the pardon process and thus retained
his property interest. No law, as far as we can tell, required
Yasak to seek his refund within a certain time frame. Cf.
Shields v. Judges Ret. Sys. of Ill., 791 N.E.2d 516, 517 (Ill.
2003) (noting that a state court judge who was denied
pension benefits in 1992 following numerous felony convic-
tions did not seek a refund until 1999 because he wanted to
4
Ex Parte Garland, 71 U.S. 333 (1866), does not compel a con-
trary result. In that case, an act of Congress was in direct conflict
with the terms of a presidential pardon, and the Supreme Court
determined (among other things) that the pardon took precedence.
Id. at 380-81. Unlike Yasak, beyond committing the offense for
which he was pardoned, the Garland petitioner played no role in
creating the unfortunate circumstances in which he found himself.
5
Yasak asks us to expand the list of “basic civil rights” discussed
in Bjerkan v. United States, 529 F.2d 125, 128 (7th Cir. 1975)
(namely, the right to serve on juries, the right to vote, and the
right to work in certain professions) to include the right to “re-
storation of vested annuity benefits created by state law.” As
Yasak has not provided a compelling reason for doing so, we de-
cline the invitation.
No. 03-1733 9
see how the appeals process and pardon process turned
out). After Yasak was pardoned, if the Board still had
Yasak’s pension contributions and was simply refusing to
pay his benefits, the denial of benefits could be deemed
punitive and reinstatement might be warranted. See Osborn
v. United States, 91 U.S. 474, 477 (1875) (holding that a
pardoned individual was entitled to recover from various
court officers the proceeds from his previously forfeited
property).
Alternatively, if the Board had sent Yasak a refund check
in the absence of an application and over Yasak’s objections,
an argument could be made that Yasak was punished by
the provision of the refund, and the Board’s refusal to take
notice of the pardon constitutes further punishment.
Reinstatement might well be in order under such circum-
stances.
Unfortunately for Yasak, he chose to get his money sooner
rather than later, and as a result, relinquished his property
interest in his pension benefits at his own election. Because
Yasak’s own actions (as opposed to the state’s reaction to
his conviction) caused his current dilemma, the Board is not
required to “make amends for the past” by way of reinstate-
ment of benefits. Knote, 95 U.S. at 153. We therefore see no
error in the district court’s analysis of Yasak’s claim.
III. CONCLUSION
Although we recognize that Yasak made a difficult choice,
we are unable to alter the consequences of his decision.
Accordingly, the district court’s decision is AFFIRMED.
10 No. 03-1733
RIPPLE, Circuit Judge, dissenting. After twenty-eight
years of service, Mr. Yasak resigned his appointment as
a Chicago police officer. He was later convicted, in federal
court, of having committed perjury before a grand jury. This
crime constitutes a felony.1 After this federal conviction, Mr.
Yasak was informed that he would be denied pension
benefits because his felony conviction, arising out of his
service as a police officer, rendered him ineligible for
benefits.2 He therefore withdrew his personal funds.
The President of the United States later pardoned Mr.
Yasak. Mr. Yasak, acknowledging his obligation to make all
necessary payments, then asked that the Retirement Board
reinstate his pension benefits. Despite the action of the
President, the Board nevertheless informed Mr. Yasak that
it would not reinstate his benefits. We therefore must
decide whether the action of the President now obligates
the Board to allow Mr. Yasak to re-invest his funds into the
pension and to resume his pension eligibility.
The majority concludes that, despite the presidential
pardon, the Retirement Board, although admittedly re-
fusing Mr. Yasak a pension because of his now-pardoned
felony conviction, acted lawfully when it refused to permit
him to resume his participation in the fund. In its view, Mr.
Yasak irrevocably lost any right to participate when, after
being denied a pension because of the felony conviction, he
withdrew his funds from the plan. In my view, this conclu-
sion, and the reasoning expressed in support of it, fails to
take into account the nature of the President’s constitution-
1
See 18 U.S.C. § 1623; see also United States v. Yasak, No. 88 CR
217, 1988 WL 79641 (N.D. Ill. July 25,1988) (denying in part
motion to dismiss indictment).
2
See 40 Ill. Comp. Stat. 5/5-227.
No. 03-1733 11
ally based Pardon Power3 as well as the practical realities
of the situation before us. Mr. Yasak only withdrew his
contributions because the Board had informed him that his
felony conviction precluded his receipt of a pension. The
withdrawal was therefore a direct consequence of his felony
conviction ineligibility. To deny Mr. Yasak the ability to re-
enter the fund on the basis of his earlier withdrawal
effectively permits the City to exact a penalty for the
offense despite the decision of the President in the exercise
of his constitutional prerogative.
In Ex Parte Garland, 71 U.S. 333 (1866), the Supreme
Court set forth the basic nature of a presidential pardon:
The power thus conferred is unlimited, with the
exception stated. It extends to every offence known
to the law, and may be exercised at any time after
its commission, either before legal proceedings are
taken, or during their pendency, or after conviction
and judgment. This power of the President is not
subject to legislative control. Congress can neither
limit the effect of his pardon, nor exclude from its
exercise any class of offenders. The benign preroga-
tive of mercy reposed in him cannot be fettered by
any legislative restrictions.
Such being the case, the inquiry arises as to the
effect and operation of a pardon, and on this point
all the authorities concur. A pardon reaches both
the punishment prescribed for the offence and the
guilt of the offender; and when the pardon is full, it
releases the punishment and blots out of existence
the guilt, so that in the eye of the law the offender
3
See U.S. Const. art. II, § 2, cl. 1 (“[The President] shall have
Power to grant Reprieves and Pardons for Offenses against the
United States, except in Cases of Impeachment.”).
12 No. 03-1733
is as innocent as if he had never committed the
offence. If granted before conviction, it prevents any
of the penalties and disabilities consequent upon
conviction from attaching; if granted after convic-
tion, it removes the penalties and disabilities, and
restores him to all his civil rights; it makes him, as
it were, a new man, and gives him a new credit and
capacity.
There is only this limitation to its operation: it
does not restore offices forfeited, or property or in-
terests vested in others in consequence of the con-
viction and judgment.
Id. at 380-81 (footnote omitted).4
Despite this broad description of the purpose and effect of
the Pardon Power, the case law of the Supreme Court
recognizes that there are limitations to the scope and effect
of a pardon.5 As Garland noted, it does not operate to re-
4
The Pardon Power, when exercised by the President, is binding
on the states as well as the federal government. See Bjerkan v.
United States, 529 F.2d 125, 127 (7th Cir. 1975).
5
Our case law has recognized as well that the broad language of
Ex Parte Garland, 71 U.S. 333 (1866), is subject to qualification.
Indeed, in Bjerkan v. United States, 529 F.2d 125 (7th Cir. 1975),
we said:
A pardon does not “blot out guilt” nor does it restore
the offender to a state of innocence in the eye of the law
as was suggested in Ex Parte Garland, 71 U.S. (4 Wall.)
333, 380, 18 L.Ed. 366 (1866). See Burdick v. United
States, 236 U.S. 79, 91, 35 S.Ct. 267, 59 L.Ed. 476 (1915)
(suggesting that, far from blotting out guilt, the accep-
tance of a pardon may constitute a confession of guilt).
We accept the view of the effect of a pardon propounded
by Professor Williston in Does A Pardon Blot Out Guilt?
(continued...)
No. 03-1733 13
store offices forfeited or property interests vested in others
as a result of the underlying conviction. See id. at 381. Nor
must the fact of the underlying conviction, and the conduct
that precipitated it, be ignored by a court charged with the
responsibility of assessing the pardoned individual’s poten-
tial for rehabilitation in a later proceeding. See Carlesi v.
New York, 233 U.S. 51, 57 (1914); cf. Grossgold v. Supreme
Court of Illinois, 557 F.2d 122, 125-26 (7th Cir. 1977)
(holding that pardon did not relieve offender of moral tur-
pitude inherent in the factual predicates of his conviction
and therefore did not relieve him of professional disciplin-
ary action based on those facts).
5
(...continued)
28 Harv.L.Rev. 647, 653 (1915):
The true line of distinction seems to be this:
The pardon removes all legal punishment for
the offense. Therefore if the mere conviction
involves certain disqualifications which would
not follow from the commission of the crime
without conviction, the pardon removes such
disqualifications. On the other hand, if charac-
ter is a necessary qualification and the commis-
sion of a crime would disqualify even though
there had been no criminal prosecution for the
crime, the fact that the criminal has been con-
victed and pardoned does not make him any
more eligible.
Thus, the fact of conviction after a pardon cannot be
taken into account in subsequent proceedings. However,
the fact of the commission of the crime may be consid-
ered. Therefore, although the effects of the commission of
the offense linger after a pardon, the effects of the
conviction are all but wiped out.
Id. at 128 n.2; see also Grossgold v. Supreme Court of Illinois, 557
F.2d 122, 125 (7th Cir. 1977). I examine further these limitations
in the text.
14 No. 03-1733
The Supreme Court has noted that a practical approach
must be taken in setting the contours of the Pardon Power.
The purpose of the pardon is to release the offender “from
the consequences of his offence, so far as such release is
practicable.” Knote v. United States, 95 U.S. 149, 153 (1877).
It does not, therefore, give him a right to compensation for
an imprisonment or other deprivation that he has suffered.
Id. at 154. Nor, as noted above, does it give him a right to
recoup any property rights that have “vested in others
directly by the execution of the judgment for the offence, or
which have been acquired by others whilst that judgment
was in force.” Id. Similarly, if, as a result of the conviction,
funds have been paid to the Government, title to those
funds is vested in the Government and can only be returned
to the offender through a legislative act. Id. In short, settled
expectations, recognized by law, are not disturbed by the
pardon.
We must take the same approach as the Supreme Court
in establishing the contours of the Pardon Power. As I have
noted earlier, the Supreme Court has stressed, explicitly
and implicitly, the need to focus on the practical effect of
the Chief Executive’s action. Taking the same approach, we
must acknowledge at the outset that central to our inquiry
must be the reality that the denial of a pension to the
plaintiff was exacted as punishment for the federal convic-
tion for which he now has received a pardon from the
President. Notably, an amnesty issued by the President is
intended to place the recipient “beyond the reach of punish-
ment of any kind” for the offense of conviction. Ex Parte
Garland, 71 U.S. at 381. The recipient is not to be excluded
“by reason of that offence, from continuing in the enjoyment
of a previously acquired right.” Id. To do so would be to
“enforce a punishment for that offence notwithstanding the
pardon.” Id. If the Board were allowed to deprive Mr. Yasak
of the pension because he had committed an offense for
which he is now pardoned, “the pardon may be avoided, and
No. 03-1733 15
that accomplished indirectly which cannot be reached by
direct legislation.” Id.
My colleagues nevertheless take the view that we are not
confronted with a penalty exacted on account of the convic-
tion, but rather with the consequence of the free act of Mr.
Yasak in withdrawing his money from the pension plan. I
respectfully submit that this approach is the exultation of
form over substance. Keeping in mind the Supreme Court’s
admonition that we analyze the contours of the Pardon
Power with an eye to the practicalities of the situation, we
must acknowledge the stark reality that Mr. Yasak with-
drew his money from the pension fund only after he was
informed that he would receive no pension because of the
conviction. In short, the City had exacted a penalty because
he was a convicted felon. Now that this status has been
removed from him by order of the President of the United
States, I can see no basis for permitting the City to render
ineffective the presidential order by continuing to exact a
penalty for the commission of that crime.
The cases, attuned to the practicalities of the situation,
make clear that there are situations in which significant
countervailing considerations must have, necessarily, the
secondary effect of limiting the force of the presidential
pardon. Prominent among these situations is the one in
which the expectations of third parties would be unsettled
because legal title to property has vested in them. See
Knote, 95 U.S. at 154. By contrast, we are not faced here
with any such expectation. Indeed, because Mr. Yasak has
acknowledged his obligation to make payments necessary
to make his account current, the rights of no third party
would be significantly affected by allowing him to redeposit
his funds in the pension plan.
The Retirement Board has raised no legitimate reason
why it ought not acknowledge and give effect to the order of
16 No. 03-1733
the President. Under these circumstances, we ought to
refrain from curtailing gratuitously the constitutional
Pardon Power of the Chief Executive.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-4-04