United States District Court, D. Kansas
MEMORANDUM AND ORDER
GERALD
L. RUSHFELT U.S. MAGISTRATE JUDGE.
Plaintiff
commenced this action against his former employer. He alleges
damages for violations of the Uniformed Services Employment
and Reemployment Rights Act
(“USERRA”).[1] The matter comes before the Court on
Plaintiff's Motion Requesting Waiver of Fees and Costs
(ECF 3). Plaintiff requests an order under 38 U.S.C. §
4323(h)(1) to waive fees and costs, including the filing fee,
which he would otherwise be required to pay. He states that
he raises a cause of action under USERRA to assert wrongful
termination of his employment because of his enlistment in
the United States Navy.[2]
Congress
enacted USERRA “to prohibit discrimination against
persons because of their service in the uniformed
services.”[3] The statute is therefore liberally
construed in favor of veterans who seek its
protections.[4] The term “service in uniformed
services” is defined to mean:
performance of duty on a voluntary or involuntary basis in a
uniformed service under competent authority and includes
active duty, active duty for training, initial active duty
for training, inactive duty training, full-time National
Guard duty, a period for which a person is absent from a
position of employment for the purpose of an examination to
determine the fitness of the person to perform any such
duty.[5]
“Uniformed
services” is defined under the statute to include:
the Armed Forces, the Army National Guard and the Air
National Guard when engaged in active duty for training,
inactive duty training, or full-time National Guard duty, the
commissioned corps of the Public Health Service, and any
other category of persons designated by the President in time
of war or national emergency.[6]
Pertinent
to the current motion, section 4323(h)(1) of USERRA provides
that “[n]o fees or court costs may be charged or taxed
against any person claiming rights under this chapter.”
The phrase “fees or court costs” has been
interpreted to include normal litigation costs such as filing
fees.[7] In the seminal USERRA filing fee case,
Davis v. Advocate Health Center Patient Care
Express, [8] the Seventh Circuit construed 38 U.S.C.
§ 4323(h)(1) to exempt a plaintiff from the necessity of
paying a filing fee. In Davis, the Seventh Circuit
rejected the district court's ruling that USERRA's
bar against fees and costs did not encompass filing fees to
initiate litigation.[9] The Seventh Circuit based its ruling on
the fact that USERRA was enacted in order to “prohibit
discrimination against persons because of their service in
the uniformed service, ” and as such the statute should
be construed “liberally in favor of veterans seeking
its protections.”[10] The Davis court further
noted that initial filing fees are plainly the type of fees
contemplated, for example, by 28 U.S.C. § 1920, and
therefore, the “fees” or “court
costs” referred to in § 4323(h) should encompass
initial filing fees.[11] Subsequent cases in the District of
Kansas have likewise held that “fees or court
costs” in 38 U.S.C. § 4323(h)(1) includes normal
litigation costs such as the filing fee to institute a civil
action.[12]
In this
case, the Court finds that Plaintiff is a qualified member of
the “uniformed services” as defined in USERRA.
Plaintiff alleges in his Complaint that he enlisted in the
United States Navy during his employment with Defendant. The
Court also finds that Plaintiff has asserted a claim for
violations under USERRA. He alleges that his enlistment in
the United States Navy was a motivating factor in
Defendant's decision to terminate Plaintiff's
employment. Plaintiff asserts one claim for wrongful
termination in violation of USERRA. The Court therefore finds
that his motion should be granted to the extent that it seeks
waiver of fees and costs not chargeable to him under §
4323(h)(1), including the filing fee required to institute a
civil action under 28 U.S.C. § 1914(a).
IT
IS THEREFORE ORDERED THAT Plaintiff's Motion
Requesting Waiver of Fees and Costs (ECF 3) is granted. The
Court hereby waives the filing fee in this action under 38
U.S.C. § 4323(h)(1). Plaintiff may proceed with this
case without prepayment of the $400 filing fee.
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Notes:
[1] 38 U.S.C. § 4301 et
seq.
[2] See ECF 1 at 1.
[3] 38 U.S.C. § 4301(a)(3).