Piland v. Duke Drilling Co., Inc.

Filing 7

MEMORANDUM AND ORDER granting 3 Plaintiff Brian C. Piland's Motion to Proceed as a Veteran. Plaintiff may proceed with this case without prepayment of the $350 filing fee pursuant to 38 U.S.C. 4323(h)(1). Signed by Magistrate Judge David J. Waxse on 1/9/2013. (aam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN C. PILAND,
Plaintiff,
v.
Case No. 12-CV-1459-JAR-DJW
DUKE DRILLING CO., INC.,
Defendant.
MEMORANDUM AND ORDER
Plaintiff commenced this action against his former employer alleging damages for violations
of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).1 This matter
comes before the Court on Plaintiff’s Motion To Proceed as a Veteran (ECF No. 3). Plaintiff
requests an order under USERRA, specifically 38 U.S.C. § 4323(h)(1), waiving the filing fees and
other court costs for which he would be liable as the plaintiff in this action. In support of his motion,
he states that he raises causes of action under the USERRA and he has been a member of the
“uniformed services” as defined in the USERRA.
Congress enacted USERRA to “prohibit discrimination against persons because of their
service in the uniformed services.”2 The statute is therefore liberally construed in favor of veterans
who seek its protections.3 The term “service in the 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

1

38 U.S.C. § 4301 et seq.

2

38 U.S.C. § 4301(a)(3).

3

Ragland v. Univ. of Kan. Hosp., 08-2379-EFM, 2009 WL 270231 (D. Kan. Feb. 4, 2009)
(citing Davis v. Advocate Health Ctr. Patient Care Express, 523 F.3d 681, 683-84 (7th Cir. 2008)).

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.4
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.”5 The
phrase “fees or court costs” has been interpreted to include normal litigation costs such as filing
fees.6 In the seminal USERRA filing fee case, Davis v. Advocate Health Center Patient Care
Express,7 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.8 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.”9 The Davis court
further noted that initial filing fees are plainly the type of fees contemplated, for example, by 28

4

38 U.S.C. § 4303(13)

5

38 U.S.C. § 4323(h)(1).

6

See Davis v. Advocate Health Ctr. Patient Care Express, 523 F.3d 681, 685 (7th Cir. 2008)
(holding that 38 U.S.C. § 4323(h)(1) permits a USERRA litigant to initiate suit without prepaying
the filing fee); Ragland v. Univ. of Kan. Hosp., No. 08-2379-EFM, 2009 WL 270231, at *1 (D. Kan.
Feb. 4, 2009) (granting motion for refund of filing fee); Fincher v. Georgia Pac., LLC, No.
108-CV-3839-JOF, 2009 WL 1075269, at *1 (N.D. Ga. Apr. 21, 2009) (granting refund of filing fee
under USERRA); Seeton v. Thermadyne Holdings Corp., No. 4:09-CV-147, 2009 WL 1025323, at
*1 (E.D. Tex. Apr. 15, 2009) (granting plaintiff’s motion for exemption from filing fee under
USERRA).
7

523 F.3d at 684-85.

8

Id. at 683.

9

Id. at 683-84 (quotations and citations omitted).
2

U.S.C. § 1920, and therefore, the “fees” or “court costs” referred to in § 4323(h) should encompass
initial filing fees.10
Here, the Court finds that Plaintiff is a qualified member of the “uniformed services” as
defined in USERRA. Plaintiff alleges in his affidavit attached to his motion (ECF No. 3-1) that he
has been a member of the United States Marine Corp and United States Army, having served on Title
10 Active Duty in the Marines from September 25, 1990 to September 24, 1994, and in the Army
from May 18, 2000 to January 10, 2001; February 25, 2004 to April 20, 2005; June 4, 2006 to
November 29, 2008; and July 22, 2009 to October 10, 2010. He states that in each instance, he was
released from Active Duty and transferred to the Marine Corps Reserve or Army National Guard
under honorable conditions, and that he continues to serve in the Kansas Army National Guard.
The Court also finds that Plaintiff has asserted claims for violations under USERRA. He
alleges that his employer fired him when he was scheduled to return to work from active duty for
training at Camp Swift, Texas. He asserts two claims—(1) violation of the protections afforded by
the USERRA, and (2) retaliation in violation of USERRA. Like the courts in the Davis and Ragland
cases, the Court here finds that the phrase “fees or court costs” in 38 U.S.C. § 4323(h)(1) includes
normal litigation costs such as the filing fee. The Court therefore finds that the Plaintiff’s motion
should be granted inasmuch as it seeks waiver of fees and costs not chargeable to him under §
4323(h)(1), including the $350 filing fee required to institute a civil action under 28 U.S.C. §
1914(a).
IT IS THEREFORE ORDERED THAT Plaintiff Brian C. Piland’s Motion to Proceed as
a Veteran (ECF No. 3) is granted. The Court hereby waives the filing fee in this action and other
10

Id. at 684.
3

fees or costs that are not chargeable to him under 38 U.S.C. § 4323(h)(1). Plaintiff may proceed with
this case without prepayment of the $350 filing fee pursuant to § 4323(h)(1).
Dated in Kansas City, Kansas on this 9th day of January, 2013.

s/ David J. Waxse
David J. Waxse
United States Magistrate Judge

4