                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT

                              _______________

                                No. 95-40488

                             (Summary Calendar)
                               _______________


                 DAVID M JORDAN,

                                         Plaintiff-Appellant,

                 versus

                 GRANT JONES, District Attorney,

                                         Defendant

                       and

                 CARLOS VALDEZ, District Attorney; NUECES COUNTY;
                 KLEBERG COUNTY,

                                         Defendants-Appellees.


          _______________________________________________

            Appeal from the United States District Court
                 For the Southern District of Texas
                            (C-94-CV-38)
          _______________________________________________


                                May 8, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     David M. Jordan appeals the district court's judgment in the

defendants' favor in his suit alleging a violation of the Veteran's

Reemployment Rights Act ("VRRA" or "the Act"), 38 U.S.C. § 4301 et


     *
            Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
seq.     We affirm the district court's judgment, but we vacate the

district court's award of costs against Jordan.

                                       I

       Jordan   was   a   reserve   officer    called   to   active    duty   for

Operation Desert Storm. After he was honorably discharged from the

Armed Forces, Jordan returned to Corpus Christi, Texas to resume

his former position as an assistant district attorney of the 105th

Judicial District of the State of Texas.            The district attorney,

Grant Jones, refused to reinstate Jordan because Jones's staff had

discovered very explicit sexual material throughout Jordan's office

while Jordan had been on active duty.

       The sexually explicit materials, which the district court

described as "base smut," had been mailed directly to the Kleberg

County    District    Attorney's    official    post    office   box   and    was

addressed to Jordan.1      Jordan had been receiving these materials at

the office before he left for Desert Storm, and they continued to

arrive after he left.       Two secretaries employed by Kleberg County

discovered the materials when they were clearing Jordan's office to

permit a substitute assistant district attorney to use Jordan's

office and handle his case load while he was on duty.                     Jones

decided that Jordan's conduct was cause for termination because he

believed Jordan's reading materials could subject the district



      1
            Jordan admitted at trial that he had a stack two-foot high of
sexually explicit magazines, books, and advertisements, many of which were "more
sexually explicit than Hustler and would have been considered shocking to many
people." The district court described the materials which were admitted at trial
as depicting oral-genital contact, homosexual oral-genital contact, and graphic
pictures of heterosexual and homosexual intercourse.

                                      -2-
attorney's office to a Title VII hostile work environment lawsuit.

Jones was also concerned about the negative impact such materials

could have on his office's public image as an effective and

credible arm of law enforcement.                After Jordan rejected Jones's

suggestion that Jordan retire quietly, Jones terminated Jordan.

      Jordan then filed suit against the defendants for backpay and

reinstatement alleging a violation of the VRRA.                    After a bench

trial, the district court entered judgment for the defendants and

awarded them costs.         On appeal, Jordan argues that the district

court erred (1) by finding that the VRRA did not require Kleberg

County to automatically reinstate him; (2) by finding that Kleberg

County had legally adequate cause to terminate him; (2) by finding

that Nueces County was not Jordan's employer; and (3) by awarding

costs to the defendants.

                                       II

      The   VRRA   provides    that    a       person   who   leaves   a   permanent

employment position with a State to perform training and service in

the Armed Forces of the United States shall be restored to his

former or a similar position if he is still qualified to perform

the duties of the position, and he follows certain statutory

requirements.2         38     U.S.C.       §     4301(a)(2)(B)(I).          Section

4301(b)(1)(A) provides that veterans who have been restored to

their former positions cannot be discharged for one year after



      2
            The Act requires that the returning veteran receive a certificate
demonstrating satisfactory completion of military service and make application
for reemployment within ninety days after he is discharged. 38 U.S.C. § 4301(a).


                                       -3-
reemployment without cause.               38 U.S.C. § 4301(b)(1)(A).

     The district court held that Kleberg County did not violate 38

U.S.C. § 4301(a)(2)(B) when it refused to reinstate Jordan because

Jordan did       not   leave   the    district     attorney's     office   in   good

standing.       The district court concluded that since Kleberg County

could have fired Jordan for cause before he left for active

service,    §    4301(a)(2)(B)       did     not   require    Kleberg   County    to

reinstate       Jordan    after      he    returned.         Jordan   argues    that

§ 4301(a)(2)(B) grants returning veterans a mandatory right of

reinstatement regardless of whether they left their job in good

standing or not.         In the alternative, Jordan contends that even if

he did not have a mandatory right of reinstatement, he was not on

notice that his conduct was prohibited; therefore, Kleberg County

did not have legally sufficient cause to terminate him.

     "The Veterans' Act was drafted with the intent to shield a

serviceman from discrimination by his employer, not to arm him with

a sword to punish his employer for some perceived wrong unconnected

to his status."          Burkart v. Post-Browning, Inc., 859 F.2d 1245,

1250 (6th Cir. 1988).             Congress intended the VRRA to protect

veterans and reservists from "discharge without cause" resulting

from the veteran or reservist status, not to give employee veterans

and reservists a preference over other employees.                       Monroe v.

Standard Oil Co., 452 U.S. 549, 560-61, 101 S. Ct. 2510, 2516-17,

69 L. Ed. 2d 226 (1981) (internal quotations marks omitted).

     Jordan argues that Kleberg County had a mandatory duty under

the VRRA to reinstate him when he returned from active service.


                                            -4-
However, an employer can terminate or refuse to reinstate a veteran

or reservist once he returns from active service or training, if

the employer had legally sufficient cause to terminate the employee

at the time that he left.     See Burkart, 859 F.2d at 1248 (holding

that because reservist only gave his employer fifteen minutes'

notice of his intent to leave for three weeks of training, the

employer had sufficient cause to refuse to reinstate the reservist

when he returned from training); Sawyer v. Swift & Co., 836 F.2d

1257, 1260-61 (10th Cir. 1988) (holding that employer properly

terminated reservist for cause because reservist failed to give his

employer adequate notice of his intent to leave for training).

Therefore, we hold that if an employer has sufficient cause to

terminate an employee veteran or reservist at the time that he

leaves for active service or training, the VRRA does not require

the   employer   to   reinstate   the    employee   before   the   employer

terminates him for cause.

      An employer can terminate a veteran or reservist for cause if

the discharge satisfies two criteria of reasonableness: (1) "that

it is reasonable to discharge employees because of certain conduct,

and [(2)] that the employee had fair notice, express or fairly

implied, that such conduct would be ground for discharge."           Carter

v. United States, 407 F.2d 1238, 1244 (D.C. Cir. 1968).                  In

assessing the adequacy of an employee's notice, the ultimate issue

is "whether the conduct was or should have been known to the

employee to be prohibited by the employer."         Id. at 1246.    This is

a question of fact which we review under the clearly erroneous


                                   -5-
standard.     Id.

      Jordan argues that Kleberg County could not terminate him for

cause based on his receipt of sexually explicit materials because

he was not on notice that this behavior was prohibited by his

employer. The trial court specifically found that Jordan knew that

if   anyone   at    the   district     attorney's   office   discovered   his

collection of sexually explicit materials, he would be terminated.

The court found that Jordan knew that his actions were not within

those reasonably and ordinarily accepted standards of personal

conduct expected of employees in a public district attorney's

office.     The evidence at trial demonstrated that Jordan's boss,

Grant   Jones,      had   a   policy   against   having   sexually   explicit

materials in the office.          Jones testified that he developed this

policy after an incident occurred involving the display of a

sexually explicit magazine in one of the offices.                    The only

evidence to the contrary was Jordan's testimony that he believed he

was allowed to have the materials at the office as long as they

were not on his desk.         Given the trial court's superior ability to

assess the credibility of the witnesses, we conclude that the

court's finding that Jordan knew his behavior was prohibited by his

employer was not clearly erroneous.              Accordingly, the district

court did not err in concluding that Kleberg County had cause to

terminate Jordan.

                                       III

      Jordan next argues that the district court erred in holding

that Nueces County was not his employer and therefore not subject


                                       -6-
to liability under the VRRA.      Section 4302 entitles an employee

veteran to file suit against his employer if the employer fails to

comply with the VRRA.      The term "employer" in § 4302 should be

broadly construed to include the "one to whom the veteran provides

services and from whom he receives wages," as well as those bodies

to   whom a   veteran's   "employer   in   the   traditional   sense,   has

delegated certain aspects of the employment relationship." Bunnell

v. New England Teamsters and Trucking Indus. Pension Fund, 486 F.

Supp. 714 (D. Mass. 1980), aff'd, 655 F.2d 451 (1st Cir. 1981).

      The testimony at trial indicated that Jordan received his

salary, vehicle, gas, and the furnishings for his office from

Kleberg County.     Although Jordan accepted ten guilty pleas and

worked on two cases for the Nueces County office during his three

year period as assistant district attorney, this amount of work is

extremely insignificant in comparison to the seven to eight hundred

cases that Jordan prosecuted for Kleberg County each year.          Based

on the foregoing evidence, we conclude that the district court did

not err in concluding that Nueces County was not Jordan's employer.

                                  IV

      Finally, Jordan argues that the district court erred in

assessing costs against him.      Valdez and Kleberg County concede

that it was error for the court to assess costs against Jordan.

Nueces County cites an irrelevant statute, and simply states that

if the court finds that the award of costs was in error, the error

was harmless.

      Section 4302 specifically provides:


                                  -7-
          If any employer, who is a private employer of a State or
     political subdivision thereof, fails or refuses to comply with
     the provisions of [specified sections] of this title, the
     [appropriate] district court of the United States . . . shall
     have the power, upon filing of a motion, petition, or other
     appropriate pleading by the person entitled to the benefits of
     such provisions, specifically to require such employer to
     comply with such provisions and to compensate such person for
     any loss of wages or benefits suffered by reason of such
     employer's unlawful action. . . . Upon application to the
     United States attorney or comparable official . . . by any
     person claiming to be entitled to such benefits provided for
     in such provisions, such United States attorney or official,
     if reasonably satisfied that the person so applying is
     entitled to such benefits, shall appear and act as attorney
     for such person in the amicable adjustment of the claim or in
     the filing of any motion, petition, or other appropriate
     pleading and the prosecution thereof specifically to require
     such employer to comply with such provisions.      No fees or
     court costs shall be taxed against any person who may apply
     for such benefits. . . .

38 U.S.C. § 4302.   One court has interpreted the "no fees shall be

taxed" provision as being controlling only when the plaintiff

applies to and is represented by a United States attorney or a

comparable official.   See Newport v. Michelin Aircraft Tire Corp.,

851 F. Supp. 1406, 1408 (W.D.Mo. 1994).   Arguably, it is ambiguous

whether the language "any person who may apply for such benefits"

is meant to refer only to a person who makes "an application to the

United States attorney or a comparable official," not one who

pursues his rights under the VRRA through a private attorney.

However, the legislative history accompanying the enactment of a

subsequent provision of the VRRA, which applies to reemployments

initiated on or after the first day after the 60-day period

beginning on Oct. 13, 1994, convinces us that Congress intended

§ 4302 to prevent any person claiming benefits under the VRRA from

being assessed costs. In describing the new provisions, the Senate


                                -8-
Report states:

     New section 4322(c)(2) would provide that no fees or
     court costs could be charged or taxed against any
     individual pursuing a claim of a violation of his or her
     [rights under the VRRA]. If that individual were the
     prevailing party, the court could, in its discretion,
     award the individual reasonable attorney fees, expert
     witness fees, and other litigation expenses when not
     represented by the Attorney General.     The prohibition
     against charging fees or costs exists in present section
     4302. The Committee bill would authorize the award of
     attorney fees, expert witness fees, and other litigation
     expenses as a further effort to make servicemembers whole
     and not have them suffer any loss in realizing their
     reemployment rights.

S.Rep. No. 158, 103d Cong., 1st Sess. (1993).             Accordingly, we

conclude that Congress intended § 4302 to prohibit district courts

from awarding costs against a person who is pursuing a claim of a

violation   of   his   rights   under   the   VRRA   irregardless   of   who

represents him.    Therefore, we hold that the district court erred

in awarding costs for the defendants.

                                    V

     For the foregoing reasons, we AFFIRM the judgment of the

district court in the defendants' favor and VACATE the award of

costs against Jordan.




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