United States District Court, S.D. Georgia, Brunswick Division
WILLIAM B. JOLLEY, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's: (1) Motions
for Leave to Proceed without prepayment of fees, docs. 2, 11,
12; (2) Motion to Obtain Completed Summons Forms, doc. 10;
and (3) Motion to Dismiss Under Rule 4(m), doc. 14. For the
reasons which follow, I GRANT
Plaintiff's Motions to proceed without payment of fees
and to obtain completed summons forms. However, I
RECOMMEND the Court DENY as
moot Plaintiff's Motion to Dismiss.
brings this cause of action based on the Uniformed Services
Employment and Reemployment Rights Act
(“USERRA”), 38 U.S.C. §§ 4301-35. Doc.
1. Plaintiff contests the constitutionality of certain
provisions of the USERRA, such as § 4324, and the Merit
Systems Protection Board's (“MSPB”) use of
administrative law judges rather than Article III judges to
decide cases before it. Id. at 2, 3. Plaintiff seeks
an injunction against the MSPB to prevent the use of
administrative judges “not meeting [the] requirements
of the Supreme Court under” Lucia v. SEC, 585
U.S.___ (2018). Id. at 2. Plaintiff asserts in his
Complaint that he served honorably in the United States Air
Force for nearly 10 years' time. Id.
Motions to Proceed Without Payment of Costs and Fees, docs.
2, 11, 12 
4323(h) of Title 38 of the United States Code 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. § 4301 et seq.]” § 4323(h).
In Davis v. Advocate Health Center Patient Care
Express, 523 F.3d 681 (7th Cir. 2008), the Seventh
Circuit Court of Appeals rejected a district court's
ruling that USERRA's bar against fees and costs did not
encompass filing fees to initiate litigation. 523 F.3d at
683. The Seventh Circuit reasoned USERRA was enacted 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.” Id. at
683-84 (quotations and citations omitted). The court further
noted the district court “wrongly believed that the
phrase ‘fees and costs' [listed in 28 U.S.C. §
1920] as applied in other contexts precludes reading
USERRA's fees-and-costs provision to include prepayment
of filing fees.” Id. at 684; see also
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 Palace,
Inc. v. Costa, 539 U.S. 90 (2003); MacIver v. City
of Lakeland, No. 8:13-cv-1759, 2013 WL 3818111, at *1
(M.D. Fla. July 17, 2013) (granting plaintiff's motion
for waiver of filing fee and allowing plaintiff to proceed in
USERRA action without payment of filing fee); Fincher v.
Ga. Pac., LLC, No. 108-CV-3839, 2009 WL 1075269, at *1
(N.D.Ga. Apr. 21, 2009) (agreeing that plaintiff not required
to pay initial filing fee for a USERRA action and granting
plaintiff's motion for refund of filing fee).
on this persuasive authority and upon the Court's review
of relevant provisions of the USERRA, the Court
GRANTS Plaintiff's Motions. Plaintiff
may proceed with his cause of action without paying a filing
Motion to Obtain Completed Summons Forms, doc. 10
seeks to obtain completed summons forms so that he can
properly serve Defendant in this case. Doc. 10 at 1-2.
Plaintiff asserts he has filed all required paperwork with
the Clerk of Court and should be issued completed summons
forms. Id. at 1.
Court GRANTS Plaintiff's Motion. The
Court DIRECTS the Clerk of Court to complete
the appropriate summons forms and forward those to Plaintiff
so that he can effectuate service of his Complaint upon
Defendant within 90 days of this Order. Fed.R.Civ.P. 4(m).
Motion to Dismiss Under Rule 4(m)
moves for dismissal of his Complaint under Rule 4(m) because
the Court has not yet allowed him to proceed without payment
of fees and the Clerk has not yet issued the necessary
summons documents. Doc. 14.
Court has now ruled on Plaintiff's Motions to proceed
without payment of fees and his Motion for summons forms, the
Court should DENY as moot Plaintiff's
Motion to Dismiss. While Rule 4(m) provides for dismissal of
an action without prejudice if the defendant is not served
within 90 days of a complaint's filing, the Court
believes that Plaintiff did not intend to dismiss his action
based on the non-service of Defendant. Instead, it seems more
probable that Plaintiff wished to spur the Court to rule on