Davis, Robert v. Advocate Health Pati

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 07-2709
R OBERT D AVIS,
Plaintiff-Appellant,
v.

A DVOCATE H EALTH C ENTER P ATIENT C ARE E XPRESS,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 2368—Samuel Der-Yeghiayan, Judge.
____________
S UBMITTED A PRIL 2, 2008—D ECIDED A PRIL 28, 2008 Œ
____________

Before K ANNE, R OVNER, and SYKES, Circuit Judges.
K ANNE, Circuit Judge. Advocate Health Center briefly
employed Robert Davis, a Vietnam veteran, as an answer-
ing service agent during the spring of 2007. But before

Œ
After examining the briefs and the record, we have con-
cluded that oral argument is unnecessary. Thus, the appeal is
submitted on the briefs and the record. See F ED . R. A PP . P.
34(a)(2).
2 No. 07-2709

Davis had even completed the probationary phase of his
employment, Advocate fired him. Davis promptly filed
suit in federal court, alleging that Advocate fired him
because of his prior military service in violation of the
Uniform Services Employment and Reemployment
Rights Act (USERRA), see 38 U.S.C. §§ 4301 to 4344. Davis
also filed a motion to waive the filing fee associated with
his suit, arguing that USERRA excused him from paying
the fees and costs of litigation. See 38 U.S.C. § 4323(h)(1).
The district court denied Davis’s motion, ruling that
USERRA’s bar against fees and costs did not encom-
pass filing fees to initiate litigation and reasoning that
any other interpretation of the statute would “encourage
frivolous lawsuits.” The court gave Davis 25 days to pay
the filing fee and noted that if Davis failed to comply
with that deadline, his suit would be dismissed. Davis
did not pay the fee, and instead waited until the deadline
had passed and filed his notice of appeal two days later.
The district court did not issue a final order of dismissal
or a Rule 58 judgment.
On appeal, Davis argues that the district court erred in
requiring him to pay the filing fee. Advocate contends,
however, that we lack jurisdiction to consider whether
the district court misinterpreted USERRA because the
district court never entered a final judgment. See 28 U.S.C.
§ 1291; F ED. R. C IV. P. 58(a). According to Advocate, the
district court never officially dismissed Davis’s suit
because it only issued a “deferred or conditional order
that never ripened into a ‘final decision’” available for
appellate review.
When a judge conditionally dismisses a suit, but gives
the plaintiff time to fix the problem that led to dismissal
(here, the payment of the filing fee), the order becomes an
No. 07-2709 3

appealable “final decision” once the time for correction
has expired, whether or not the court enters a final judg-
ment. See Otis v. City of Chicago, 29 F.3d 1159, 1165-66 (7th
Cir. 1994). Advocate argues that Otis and its progeny
apply only to those instances in which the district court
dismisses the suit but agrees to lift the order of dismissal
if the plaintiff satisfies certain conditions. In contrast, this
case presents the inverse scenario: the district court
ordered that, unless Davis paid his fee, the case would be
dismissed (though the court never actually issued a
separate order carrying out that threat). But that distinc-
tion is immaterial. Just as in the Otis line of cases, here
the district court stated a plan to enter a final judgment
in 25 days unless Davis paid his fee, and when Davis
refused to pay the fee the court neglected to follow through
with its plan. See Albiero v. City of Kankakee, 122 F.3d 417,
420 (7th Cir. 1997). More importantly, all that 28 U.S.C.
§ 1291 requires for a judgment to be final is that the dis-
trict court is done with the case. See Borrero v. City of
Chicago, 456 F.3d 698, 700 (7th Cir. 2006). Davis’s suit
has ended at the district court level, and so the absence of
a Rule 58 judgment does not bar us from reaching the
merits of his appeal. See Props. Unlimited, Inc., Realtors v.
Cendant Mobility Serv., 384 F.3d 917, 920 (7th Cir. 2004). In
any event, more than 150 days have passed since Davis’s
deadline to pay the fee, and the separate document re-
quirement is now moot. F ED. R. C IV. P. 58(c)(2)(B).
That leaves the statutory question of whether USERRA
excuses Davis from paying his filing fee, which we re-
view de novo. See United States v. Haddad, 462 F.3d 783, 791
(7th Cir. 2006). Congress enacted USERRA in order to
“prohibit discrimination against persons because of their
service in the uniformed services.” Bowlds v. General Motors
4 No. 07-2709

Mfg. Div. of the General Motors Corp., 411 F.3d 808, 810 (7th
Cir. 2005) (quoting 38 U.S.C. § 4301(a)(3)). We therefore
construe USERRA liberally in favor of veterans seeking
its protections. See McGuire v. United Parcel Serv., 152 F.3d
673, 676 (7th Cir. 1998). As part of the legislation’s broad
remedial scheme, USERRA provides that “[n]o fees or
court costs may be charged or taxed against any person
claiming rights under this chapter.” 38 U.S.C. § 4323(h)(1).
Looking at other fees-and-costs statutes for interpretive
assistance, the district court concluded that the only
fees and costs covered by USERRA are those “listed in
section 1920, which do not include the normal costs of
litigation, such as the fees associated with filing the
instant action.” See 28 U.S.C. § 1920. But section 1920 costs
do include filing fees. See 28 U.S.C. § 1920(1) (a judge
or clerk of court may tax as costs any fees of the clerk);
see also, e.g., Tchemkou v. Mukasey, 517 F.3d 506, 512-13
(7th Cir. 2008). The district court therefore wrongly be-
lieved that the phrase “fees and costs” as applied in other
contexts precludes reading USERRA’s fees-and-costs
provision to include prepayment of filing fees.
Advocate argues that the only statutory mechanism
permitting plaintiffs to avoid prepaying their filing fees
is the statute allowing plaintiffs to proceed in forma
pauperis. See 28 U.S.C. § 1915. But the language of that
statute nowhere says that Congress cannot enact other
laws relieving litigants of the obligation to prepay filing
fees. See id. Indeed, Congress has enacted such laws,
particularly in the context of suits brought by members
of the armed services. See 28 U.S.C. § 1916 (seamen may
file suit without prepaying fees or costs); 10 U.S.C. § 867a
(military personnel seeking review of courts-martial
may petition the Supreme Court for writ of certiorari
without prepayment of fees and costs).
No. 07-2709 5

Advocate also contends that USERRA’s bar against
charging fees and costs is designed only to prevent pre-
vailing defendants from seeking the costs of litigation
from losing plaintiffs. See, e.g., Chance v. Dallas County
Hosp. Dist., 176 F.3d 294, 296 (5th Cir. 1999); Jordan v. Jones,
84 F.3d 729, 733 (5th Cir. 1996) (holding that trial court
erred in awarding costs of litigation to defendant in
USERRA suit). But those cases do not address the issue
presented here—whether veterans are exempt from
prepaying filing fees in USERRA cases. Moreover, the
statute itself is broadly written and forbids charging
any fees and court costs, not just those awarded to a
successful opponent. See 38 U.S.C. § 4323(h)(1). It says
nothing about prevailing defendants or losing plaintiffs
at all.
More telling is that the Supreme Court of the United
States has established a procedure for veterans “suing
under any provision of law exempting veterans from the
payment of fees or court costs” to proceed in that court
without “prepayment of fees or costs.” SUP. C T. R. 40(1).
Litigants need only file a motion for leave to proceed as
a veteran and an affidavit establishing the moving party’s
veteran status. Id. Consistent with the Supreme Court’s
approach, the admittedly sparse case law suggests that
other courts have generally waived filing fees for vet-
erans in employment discrimination suits under 38 U.S.C.
§ 4323(h)(1) and its predecessors. See Gagnon v. Sprint
Corp., 284 F.3d 839, 845 n.1 (8th Cir. 2002) (granting
USERRA appellant’s motion to waive costs on appeal),
abrogated on other grounds by Desert Place, Inc. v. Costa, 539
U.S. 90 (2003); Farries v. Stanadyne/Chicago Div., 832 F.2d
374, 381 (7th Cir. 1987) (observing that prior, materially
unchanged version of statute permitted a veteran to
6 No. 07-2709

“commence an action without having fees or court costs”
imposed); Campbell v. Roach, 741 F. Supp. 566, 567 (D. Md.
1990) (holding that prior version of statute permitted
veteran to proceed in district court and on appeal without
prepaying filing fee). In light of the plain language of 38
U.S.C. § 4323(h)(1) and Congress’s intent, in USERRA
and elsewhere, to lessen the costs of litigation for veterans,
we hold that 38 U.S.C. § 4323(h)(1) permits a USERRA
litigant to initiate suit without prepaying the filing fee.
Because Davis has already paid his filing fee to proceed
in this court, we O RDER the clerk of this court to refund
Davis’s appellate filing fee.
R EVERSED.

USCA-02-C-0072—4-28-08