Jonathon C. McIntosh, D.D.S. v. David Partridge, MD, Individually and in His Official Capacity and Adalberto Barrera Individually and in His Official Capacity

Order issued November 6, 2012

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00368-CV
———————————
JONATHON C. MCINTOSH, D.D.S., Appellant
V.
DAVID PARTRIDGE, M.D., INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY, AND ADALBERTO BARRERA, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY, Appellees

On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 08-DCV-168700

ORDER ON REHEARING

On July 19, 2012, the Court dismissed this appeal for want of prosecution

after appellant, Jonathon C. McIntosh, D.D.S., did not respond to the Court’s
notice that the required filing fees had not been paid. See TEX. R. APP. P. 5 (stating

that “[a] party who is not excused by statute or these rules from paying costs must

pay—at the time an item is presented for filing—whatever fees are required by

statute or Supreme Court order,” and providing for enforcement); 42.3 (providing

for involuntary dismissal); see also TEX. GOV’T CODE ANN. § 51.207 (Vernon

Supp. 2012), §.51.941(a) (Vernon 2005), §.101.041 (Vernon Supp. 2012) (listing

fees in courts of appeals); Order Regarding Fees Charged in Civil Cases in the

Supreme Court and the Courts of Appeals and Before the Judicial Panel on

Multidistrict Litigation, Misc. Docket No. 07-9138 (Tex. Aug. 28, 2007), reprinted

in TEX. R. APP. P. app. A § B(1) (listing fees in court of appeals). Appellant has

filed a motion for rehearing, asking the Court to set aside its dismissal and reinstate

the appeal. Appellant asserts that he is exempt from paying the filing fee, under

the federal “Uniformed Services Employment and Reemployment Rights Act”

(USERRA), 38 U.S.C. §§.4301–4335 (2011), and Texas Government Code

sections 431.005(c), 613.002, and 613.021, see TEX. GOV’T CODE ANN.

§§.431.005(c), 613.002, 613.021 (West 2012).

We grant the motion and reinstate the appeal.

The record reflects that, prior to the events giving rise to this suit, appellant

was employed as the Director of Dental Services at the Richmond State School

(“RSS”). RSS is a state facility under the Texas Department of Aging and

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Disability Services. See McIntosh v. Partridge, 540 F.3d 315, 318 (5th Cir.

2008). 1 In 2004, appellant was recalled to serve the United States Navy in Iraq for

one year. Upon his return, appellant notified RSS that he wanted to return to

employment. According to appellant, appellee David Partridge, M.D., medical

director of RSS, and appellee Aldaberto Barrera, superintendent of RSS, instructed

appellant not to return to RSS because appellant’s “clinical privileges had been

suspended due to professional incompetence and violations of the applicable

standard of care.” Appellant sued the appellees in their individual and official

capacities, asserting that the appellees’ allegations of professional incompetence

were pretext and that their failure to re-employ him violated federal and state

statutes, namely, USERRA and Texas Government Code sections 431.005(c),

613.002, and 613.021. Further, appellant alleged that the appellees’ actions

1
Appellant originally filed this suit against appellee Partridge in the United States District
Court for the Southern District of Texas, Galveston Division, as cause number G-05-
0683. McIntosh v. Partridge, 540 F.3d 315, 318 n.1 (5th Cir. 2008). The matter was
transferred to the Houston Division, as cause number H-06-1968. Id. There, appellant
asserted claims under USERRA and the 14th Amendment, and brought a Texas common
law defamation claim, arguing that he was terminated from his position because of his
military service in Iraq. Id. at 318. The district court granted summary judgment in
favor of Partridge, holding that it had jurisdiction over appellant’s USERRA claim, and it
entered a take nothing judgment against appellant. Id. at 319. Appellant’s state-law
defamation claim was dismissed. Id. The Fifth Circuit held that section 4323 did not
authorize federal jurisdiction over appellant’s USERRA claim and dismissed the claim.
Id. at 321. The Fifth Circuit affirmed the district court’s dismissal of appellant’s state
law defamation claim. Id. at 327. Appellant re-filed his suit in state court, which gave
rise to this appeal. USERRA expressly provides that an action by a person against a state
(as an employer), as here, may be brought in a state court of competent jurisdiction in
accordance with the laws of the state. See 38 U.S.C. § 4323(b) (2011).

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constituted defamation, for which appellant sought compensatory and punitive

damages, because the matter had to be reported to the National Practitioner

Database and the United States Navy, which put appellant’s military healthcare

provider credentials in danger of revocation.

The trial court dismissed appellant’s suit for want of prosecution, and

appellant appealed. We dismissed the appeal because appellant did not pay this

Court’s filing fee. On rehearing, our review is limited to whether appellant is

exempt from paying the filing fee under USERRA and the Texas Government

Code.

Stated generally, USERRA is a federal statute that protects employees from

discrimination on the basis of their military service and provides that any person

whose absence from a position of employment is necessitated by reason of service

in the uniformed services shall be entitled to reemployment, on certain conditions.

38 U.S.C. §§..4311, 4312, 4313. Congress enacted USERRA to “prohibit

discrimination against persons because of their service in the uniformed services.”

38 U.S.C. § 4301(a)(3). The statute is liberally construed in favor of veterans who

seek its protections. Davis v. Advocate Health Ctr. Patient Care Express, 523 F.3d

681, 683–84 (7th Cir. 2008). USERRA “supersedes any State law, . . . policy,

plan, practice, or other matter that reduces, limits, or eliminates in any manner any

right or benefit provided by this chapter, including the establishment of additional

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prerequisites to the exercise of any such right or the receipt of any such benefit.”

38 U.S.C. § 4302.

Under USERRA, in an action enforcing rights with respect to a state

employer, as here, “no fees or court costs may be charged or taxed against any

person claiming rights under this chapter.” 28 U.S.C. § 4323(h)(1). In the seminal

USERRA filing fee case, the Seventh Circuit construed the phrase “fees or court

costs” to include normal litigation costs such as filing fees. Davis, 523 F.3d at 684.

Texas Government Code Chapter 613 also governs reemployment following

military service. Generally, if a public official fails to reemploy an individual

following military service, a district court may require the official to comply on the

filing of a motion, petition, or pleading filed by a person entitled to benefits. See

TEX. GOV’T CODE ANN. § 613.021. Like USERRA, section 613.023 provides that

“[a] person applying for benefits . . . may not be charged court costs or fees for a

claim, motion, petition, or other pleading filed under Section 613.021.” See id.

§.613.023. Currently, there are no Texas cases construing sections 613.021 or

613.023.

Here, appellant was a member of the United States Navy Reserve who was

called to active duty to serve in Iraq during his employment with RSS. He alleges

that, when he completed his tour of duty, he was denied reemployment. The

record reflects that he sued his state employer, seeking the benefit of

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reemployment under USERRA and the Texas Government Code. Hence, without

speaking to the merits of his claims, appellant is “claiming rights” and “benefits”

under the USERRA and Government Code Chapter 613; therefore, appellant is

excused by statute from paying the filing fee. See 28 U.S.C. §.4323(h)(1); TEX.

GOV’T CODE ANN. § 613.023; TEX. R. APP. P. 5 (stating that party must pay filing

fee unless “excused by statute”); Davis, 523 F.3d at 684.

In their response to the motion for rehearing, appellees contend that

appellant is not exempt from paying the filing fee and therefore dismissal was

proper. Appellees point out that, although appellant prosecutes a claim under

USERRA and its Texas analogue, which provide for statutory exemptions,

appellant also brought a state common law defamation claim, which is not exempt.

Appellees direct us to Chance v. Dallas County Hospital District, in which

the Fifth Circuit stated that “one claiming rights under the USERRA, and only

under the USERRA, may not be taxed costs.” 176 F.3d 294, 296 (5th Cir. 1999)

(emphasis added). There, as appellees assert, the Court refused to read USERRA

to bar the taxing of costs against a party who prosecutes any host of claims, just

because the party includes a claim under USERRA. Id.

In Chance, the plaintiff, Chance, filed a petition against Dallas County

Hospital, alleging causes of action under USERRA, the Texas Commission on

Human Rights Act, the Texas Whistleblower Act, the Equal Pay Act, and the Civil

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Rights Act. Id. at 295. Prior to trial, the Hospital filed a motion for summary

judgment, which the court granted on all claims except the USERRA causes of

action. Id. A jury later found, in part, for the Hospital and, in part, for Chance on

the USERRA claims. Id. The trial court taxed costs against Chance. Id. Chance

appealed, contending that USERRA prohibited the taxing of costs against him. Id.

On appeal, the Fifth Circuit held that only those costs not attributable to the

filing and advancing of the USERRA claims could be taxed and ordered that the

trial court “closely examine the costs incurred à quo and separate out and tax to

Chance only those costs not related to his USERRA claim.” Id. at 297. The Fifth

Circuit said,

It may be that some, most, or all costs attributable to other claims are
also related to the USERRA claim. That is a matter to be first
addressed by the trial court. We express no opinion thereon. But no
costs of court directly attributable to the filing and prosecution of the
USERRA claim may be assessed against Chance.

Id.

Chance is distinguished from the instant case on appeal because, there, the

issue was the trial court’s apportionment or assessment of costs after its

consideration of the case. Here, we consider the filing fee, which is due when the

notice of appeal is filed. See TEX. R. APP. P. 5. An appellate court clerk is

required to collect the filing fee at the time the notice of appeal is filed, as provided

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by the governing statutes and rules,2 unless the appellant is excused by statute or

rule. See id. We concluded above that appellant is excused by statute. Appellees

do not direct us to any authority, and we find none, that provides for an

apportionment by this Court of the fee upon the filing of the appeal.

In light of the plain language of 38 U.S.C. § 4323(h)(1) and Congress’s

stated intent in USERRA to lessen the costs of litigation for veterans,3 and the

plain language of Texas Government Code section 613.023, we conclude that

appellant is exempt from prepaying the filing fee on appeal.

We grant the motion, withdraw our opinion and judgment, and reinstate the

appeal. Appellant may proceed on appeal without payment of the filing fee. The

clerk’s record has been filed. The reporter’s record, if any, must be filed within 30

days from the date of this order. Appellant’s brief will be due within 30 days

2
See TEX. GOV’T CODE ANN. § 51.207 (Vernon Supp. 2012), §.51.941(a) (Vernon 2005),
§.101.041 (Vernon Supp. 2012) (listing fees in court of appeals); Order Regarding Fees
Charged in Civil Cases in the Supreme Court and the Courts of Appeals and Before the
Judicial Panel on Multidistrict Litigation, Misc. Docket No. 07-9138 (Tex. Aug. 28,
2007), reprinted in TEX. R. APP. P. app. A § B(1) (listing fees in court of appeals); see
also TEX. R. APP. P. 5.
3
Notably, the Supreme Court of the United States has also 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.Ct. R.
40(1) (emphasis added); see Davis v. Advocate Health Ctr. Patient Care Express, 523
F.3d 681, 684 (7th Cir. 2008). Litigants need only file a motion for leave to proceed as a
veteran and an affidavit establishing the moving party’s veteran status. Davis, 523 F.3d at
684.

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after the record is complete. If no reporter’s record is to be filed, appellant’s brief

must be filed within 30 days from the date of this order.

/s/ Laura Carter Higley
Laura Carter Higley
Justice

Panel consists of Justices Higley, Sharp, and Huddle.

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