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Davis v. Advocate Health Center Patient Care Express

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SUBMITTED APRIL 2, 2008

Before KANNE, ROVNER, and SYKES, Circuit Judges.

Advocate Health Center briefly employed Robert Davis, a Vietnam veteran, as an answering service agent during the spring of 2007. But before 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 encompass 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.

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