USERRA Plaintiffs May Not be Required to Pay Court Filing Fees

by Ted Olsen

The Uniformed Services Employment and Reemployment Rights Act, the federal law that provides employment law protections to military veterans, contains a broad provision exempting USERRA plaintiffs from paying any "fees or court costs."  Specifically, the law provides, "No fees or court costs may be charged or taxed against any person claiming rights under this chapter."  38 U.S.C. § 4323(h)(1).  In the context of the statute, this phrase could be interpreted to mean that an unsuccessful USERRA plaintiff may not be charged or assessed the fees and costs of the prevailing defendant.  However, one federal court has now held that the term "fees" includes the plaintiff's own court filing fees.

In Davis v. Advocate Health Ctr. Patient Care Express, 2008 U.S. App. LEXIS 9163 (7th Cir. April 28, 2008), the Seventh Circuit reinstated a USERRA suit that had been dismissed by a district court on the grounds that the plaintiff had failed to pay court filing fees.  The Court ruled that the broad language of 38 U.S.C. § 4323(h)(1) did not refer to "prevailing defendants or losing plaintiffs."

Court filing fees, which are normally $150, are a modest expense compared with other costs in a lawsuit.  However, Davis signifies that this relatively low barrier to litigation - which sometimes is a check against completely frivolous claims - will not be imposed in USERRA cases.

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© 2008 Sherman & Howard L.L.C.                                                            May 6, 2008