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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

HENRY GOSSAGE,

Plaintiff,

v.

OPM, OSHA, et al.,

Defendants.

Case No. C06-5299RJB

ORDER DISMISSING

CASE AND STRIKING

MOTION FOR

INTERLOCUTORY

APPEAL TO PROCEED

AS A VETERAN

This matter comes before the court on the court’s June 12, 2006 order directing plaintiff to pay the

filing fee or submit an application to proceed in forma pauperis (Dkt. 8), and on plaintiff’s Motion to

Proceed as a Veteran (Dkt. 10). The court has considered the relevant documents and the remainder of the

file herein.

PROCEDURAL HISTORY 

On May 31, 2006, plaintiff filed a Complaint for Damages. Dkt. 1. At the time the complaint was

filed, plaintiff did not pay the $350 filing fee. Instead, plaintiff filed a Motion to Proceed as a Veteran,

requesting that the court permit him to proceed without paying the court fees or costs, pursuant to 38

U.S.C. § 4323(h). Dkt. 2, 5. On June 12, 2006, the court issued an order denying plaintiff’s motion to

proceed without paying the filing fee, and directing him to either pay the $350 filing fee in this matter by

June 27, 2006, or, in the alternative, to submit a properly completed application to proceed in forma

pauperis by that date. Dkt. 8.

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ORDER

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Plaintiff did not pay the filing fee in this matter by June 27, 2006, nor did he submit a properly

completed application to proceed in forma pauperis by that date. 

On June 26, 2006, plaintiff filed a Motion for Interlocutory Appeal to Proceed as a Veteran. Dkt.

10. In that motion, plaintiff requests that the court permit him to proceed with an interlocutory appeal,

contending that the plain reading and interpretation of 38 U.S.C. § 4323(h) provides him the right to

proceed without paying fees or court costs for claiming rights under Chapter 38 U.S.C.; and that the

United States Supreme Court, in a pending case stemming from Gossage v. O.P.M., C04-5669RJB, which

was transferred to the Federal Circuit by this court, has permitted him to proceed as a veteran pursuant to

38 U.S.C. § 4323(h). Dkt. 10. 

DISCUSSION

In his complaint, plaintiff contends in part that his rights under the Uniformed Services Employment

and Reemployment Rights Act (USERRA), Chapter 38 U.S.C., and the Veterans Employment Opportunity

Act (VEOA), Chapter 5 U.S.C., were violated by federal agencies (OPM and OSHA). Plaintiff believes

that he should be relieved from paying the filing fee in this civil action on the basis of 38 U.S.C. §

4323(h)(1), a provision of USERRA, which provides as follows:

No fees or court costs may be charged or taxed against any person claiming rights under this

chapter.

Plaintiff believes that, in the instant case, he has stated a claim under Chapter 38 U.S.C., and that he

should therefore be permitted–by the provisions of 38 U.S.C. § 4323(h)(1)–to proceed without paying the

court filing fee. Plaintiff is incorrect because he has not stated a claim under Chapter 38 U.S.C. that would

invoke the provisions of 38 U.S.C. § 4323(h)(1). 

38 U.S.C. § 4323 provides remedies for enforcement of rights under the USERRA against a State

or private employer. The United States may bring an action against a State as an employer or a private

employer, or a person may commence an action for relief with respect to a complaint against a State as an

employer or a private employer. See 38 U.S.C. § 4323(a). Here, plaintiff is not bringing an action against

a State as an employer or against a private employer; the purported defendants are federal agencies. 38

U.S.C. § 4323 does not authorize an action against federal agencies. 

Private actions against federal agencies are permitted under 38 U.S.C. § 4324(d)(1). However, an

action under Section 4324(d)(1) is brought as an appeal of a final order or decision of the Merit Systems

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ORDER

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Protection Board to the United States Court of Appeals for the Federal Circuit. 38 U.S.C. § 4324(d)(1). 

The action plaintiff is attempting to bring in the instant case is not an appeal that is permitted under 38

U.S.C. § 4324(d)(1); it is a complaint for damages. A complaint for damages against a federal agency is

not permitted under Chapter 38 U.S.C. Accordingly, 38 U.S.C. § 4323(h) does not apply to the claims

plaintiff is attempting to bring in this court against the federal defendants. The case that this court

transferred to the Federal Circuit, Gossage v. O.P.M., C04-5669RJB, is an appeal of a decision of the

Merit Systems Protection Board, and is pending before the Federal Circuit and/or the Merit Systems

Protection Board and/or the United States Supreme Court. It is in that case that the United States

Supreme Court has apparently permitted plaintiff to proceed as a veteran (without payment of court costs),

apparently pursuant to 38 U.S.C. § 4323(h)(1). The court notes that the allegations plaintiff is attempting

to bring in the instant case involve the same events and claims that are before the Federal Circuit in

Gossage v. O.P.M., C04-5669RJB.

Plaintiff is not entitled to proceed without paying the filing fee in this matter. He has not paid the

filing fee nor has he filed a properly completed application to proceed in forma pauperis by June 27, 2006,

as he was ordered to do by the court’s June 12, 2006 order. The court should dismiss this case.

Plaintiff has filed a motion, requesting that the court permit him to file an interlocutory appeal of

the court’s denial of his motion to proceed without paying the filing fee. Dkt. 10. To the extent that this

court has authority to rule on this motion, the issue is moot, since the case is dismissed by this order. The

motion should be stricken from the court’s calendar.

 Therefore, it is hereby ORDERED that this case is DISMISSED. Plaintiff’s Motion to Proceed

as a Veteran (Dkt. 10) is STRICKEN from the court’s calendar. 

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any

party appearing pro se at said party’s last known address. 

DATED this 5th day of July, 2006.

ARobert J. Bryan

United States District Judge 

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