Issue: USERRA plaintiffs need not pre-pay filing fees in federal court actions

For the week of May 5, 2008


According to the 7th U.S. Circuit Court of Appeals, a military veteran claiming that his employment termination was a violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA) is not required to pay the filing fee to pursue that claim in federal court. Davis v. Advocate Health Ctr. Patient Care Express, 7th Cir., No. 07-2709, April 28, 2008.

Robert Davis, a veteran of the Vietnam conflict, worked briefly as an answering service agent for Advocate Health Center Patient Care Express. When Davis was terminated from that position prior to completing his probationary period, he filed a lawsuit in federal court, claiming violation of the USERRA. At the same time, Davis filed a motion to waive the filing fee associated with the lawsuit, arguing that the USERRA excused such payment by a veteran.

The district court denied the motion, finding that language in the USERRA regarding fees and costs did not include a waiver of filing fees for lawsuits, and holding that such waiver would "encourage frivolous lawsuits." The court directed Davis to pay the filing fee within 25 days, or his suit would be dismissed. Davis did not pay the fee, waited for the 25 days to pass, and then filed an appeal to the Seventh Circuit.

While the district court never formally entered judgment against Davis, the Seventh Circuit accepted jurisdiction of the matter for purposes of the appeal. It found that because Davis had not complied with the condition upon which the case could have gone forward (payment of the filing fee), the lower court’s conditional dismissal became an appealable "final decision" whether or not a final judgment was entered. The Court held that all that is required for a judgment to be final for purposes of appeal is "that the district court is done with the case."

The Seventh Circuit then addressed the question of whether the USERRA excuses Davis from paying his filing fee, and found that it does. The employer argued that the only statutory mechanism that allows a plaintiff to avoid paying filing fees is the in forma pauperis statute. However, the Seventh Circuit pointed out a number of other statutes in which filing fees are waived for members of the armed services, including a specific federal statute that seamen may file suit without prepaying fees or costs, and one that allows military members seeking review of courts-martial to petition the Supreme Court for review without prepayment of fees and costs. Based upon those statutes, and upon the fact that the few cases to have addressed the same issue have been decided in favor of the military veteran, the Seventh Circuit reversed the lower court’s decision. It then directed its own clerk to refund the appellate filing fee paid by Davis.

While cases involving procedural issues of this type typically are of more interest to lawyers than to employers, the message in this case is universally applicable: courts construe the USERRA liberally in favor of veterans seeking its protection. Based on that message, employers should be knowledgeable about the provisions of the USERRA, and should recognize how those provisions may affect employment-related decisions involving veteran/employees.