                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                                  No. 98-10524



NICKIE CHRISTOPHER CHANCE,
                                                               Plaintiff-Appellant,
                                      versus

DALLAS COUNTY HOSPITAL DISTRICT, doing business
as Parkland Memorial Hospital, ET AL.,
                                                                       Defendants,
DALLAS COUNTY HOSPITAL DISTRICT, doing business
as Parkland Memorial Hospital,
                                              Defendant-Appellee.


                  Appeal from the United States District Court
                      for the Northern District of Texas


                                   June 3, 1999
Before REYNALDO G. GARZA, POLITZ, and BARKSDALE, Circuit Judges.

POLITZ, Circuit Judge:

      Nickie Christopher Chance contends that the trial court erred by granting

judgment as a matter of law for defendant, rejecting a jury verdict; by refusing to

allow him to discover counseling and guidance reports for several years prior to the

incident; and by instructing the jury to disregard the testimony of one of the
witnesses. We find no merit in these contentions. We write to address another

issue raised by Chance: whether the trial court erred in awarding costs against him

when he pursued causes of action under the Uniformed Services Employment and

Reemployment Rights Act (USERRA)1 while also pursuing other causes of action.

                                 BACKGROUND

      For purposes of the issue of the taxing of costs, we need only note a few

details surrounding Chance’s amended complaint and the dispositions of his several

causes of action. Chance’s amended complaint alleged causes of action under the

Texas Commission on Human Rights Act, the Texas Whistleblower Act, the Equal

Pay Act of 1963, the Civil Rights Act of 1964, the Civil Rights Act of 1871, as well

as claims under the USERRA. Chance pursued his claims against the Dallas

County Hospital District, doing business as Parkland Memorial Hospital.2 Prior to

trial, the Hospital filed a motion for summary judgment on all claims except the

Equal Pay Act claim, which Chance voluntarily dismissed. The court 3 granted the

Hospital’s motion on all claims save the USERRA causes of action.


      1
          38 U.S.C. § 4301 et seq.
      2
        Chance also pursued his claims against Cassandra Miller, a supervisor, but
the action against Miller was dismissed by an agreed order.
      3
       In accordance with 28 U.S.C. § 636(c), the parties consented to have a
United States Magistrate Judge conduct all proceedings in the case.
                                         2
      As to the USERRA claims, the jury found for the Hospital on Chance’s

discriminatory denial of promotion and retaliation claims, and it found for Chance

on his wrongful discharge claim. The Hospital renewed its earlier motion for

judgment as a matter of law, which the court granted. In rendering its final

judgment, the court taxed costs against Chance.         Chance contends that the

USERRA prohibits this taxing of costs against him.

                                    ANALYSIS

      Whether the trial court possessed the authority to award costs is a question

of law that we review de novo.4

      The USERRA prohibits the taxing of fees or court costs against any person

claiming rights under the statute.5 Chance recognizes that Rule 54 of the Federal

Rules of Civil Procedure provides that “costs other than attorneys’ fees shall be


      4
        Chase v. Shop ‘N Save Warehouse Foods, Inc., 110 F.3d 424 (7th Cir.
1997); see also Garrett v. Derbes, 110 F.3d 317 (5th Cir. 1997) (employing de novo
review of the applicability of a statute’s terms).
      5
        After the parties filed their briefs, Congress enacted the Veterans’ Programs
Enhancement Act of 1998, Pub. L. No. 105-368, 112 Stat. 3315 (Nov. 10, 1998).
The 1998 Act amended and renumbered 38 U.S.C. § 4323(c)(2)(A) (1997).
Compare Pub. L. No. 105-368 (“No fees or court costs may be charged or taxed
against any person claiming rights under this chapter.”) (numbering this provision
§ 4323(h)(1)) with 38 U.S.C. § 4323(c)(2)(A) (1997) (“No fees or court costs shall
be charged or taxed against any person claiming rights under this chapter.”). The
1998 Act’s amendments to § 4323 apply to actions commenced under Chapter 43
before November 10, 1998 that were not final on that date.
                                         3
allowed as of course to the prevailing party,” but he emphasizes one of the rule’s

caveats – “[e]xcept when express provision therefor is made . . . in a statute of the

United States . . . .”6 Chance contends that this caveat applies because the

USERRA – a statute of the United States – expressly prohibits the taxing of court

costs against him, a person claiming rights under the statute.

      Chance’s contention is not without force, but we are not persuaded. Chance

is correct to the extent that one claiming rights under the USERRA, and only under

the USERRA, may not be taxed costs; the statute clearly so provides, and we

previously have so held.7 Chance, however, would extend the reach of the statute

to bar the taxing of costs to one who prosecutes any claims, as long as there is also

a claim under the USERRA. We reject this broad interpretation of the relevant

language. We do not read the USERRA to bar the taxing of costs against a party

who unsuccessfully prosecutes his claims under statutes other than the USERRA

in light of the express language of Rule 54 providing that these costs are allowed

as a matter of course. One “contending that legislative action changed settled law

has the burden of showing that the legislature intended such a change.” 8 We are


      6
          FED. R. CIV. P. 54(d)(1).
      7
          Jordan v. Jones, 84 F.3d 729 (5th Cir. 1996).
      8
          Green v. Bock Laundry Mach. Co., 490 U.S. 504, 521 (1989).
                                          4
not favored herein with such a showing.

      Chance seemingly reads the USERRA’s “person” in isolation, he is a

“person” who claimed rights under the USERRA, thus, his argument runs, he

cannot be taxed for any costs. We read “person” to be limited by “claiming rights

under [the USERRA],” and conclude that the text does not apply in an instance in

which a person claims rights other than those provided by the USERRA. We

therefore hold that the USERRA does not bar the taxing of costs for claims other

than those established by the USERRA, even though the person also simultaneously

pursues a cause of action under that Act.9

      The courts do not favor implicit amendments and repeals of statutes.10 In the

absence of a clear expression from Congress, we are disinclined to hold that the

USERRA amends a Federal Rule.11 If Congress had intended the result that Chance


      9
         Key v. Hearst Corp., 963 F. Supp. 283 (S.D.N.Y. 1997) (without
specifically discussing the issue, taxing costs against a USERRA plaintiff when that
plaintiff’s original complaint also included a claim for breach of contract, a state
military law claim, and alleged violations of Title VII and § 1981).
      10
        United States v. United Continental Tuna Corp., 425 U.S. 164, 168 (1976)
(“cardinal principle of statutory construction that repeals by implication are not
favored”).
      11
        Jackson v. Stinnett, 102 F.3d 132 (5th Cir. 1996) (discussing the effect of
the PLRA on FED. R. APP. P. 24(a)); 7 JAMES WM. MOORE ET AL., MOORE’S
FEDERAL PRACTICE ¶ 86.04[4] (2d ed. 1996) (“[A] subsequently enacted statute
should be so construed as to harmonize with the Federal Rules if that is at all
                                         5
seeks, it could have and would have drafted the statute to demonstrate that

intention. For example, Congress could have penned the pertinent provision to

read: No fees or court costs may be charged or taxed against any person claiming

rights under this chapter, even if additional rights simultaneously are claimed.12

Further, if Congress had intended the result that Chance seeks, it could have

included an additional provision in 38 U.S.C. § 4302, which it entitled “Relation

to other law and plans or agreements”. In § 4302(b), Congress was careful to

explain that the USERRA superseded “any State law (including any local law or

ordinance), contract, agreement, policy, plan, practice, or other matter that reduces,

limits, or eliminates in any manner any right or benefit provided by [the Act].” If

Congress had intended the result that Chance suggests, then it could have added a

reference to federal laws, rules, or practice.13


feasible.”).
       12
        We candidly concede that Congress could have written the statute in a
manner that better supports the conclusion reached in this opinion. E.g., 42 U.S.C.
§ 9607(d)(1) (“[N]o person shall be liable under this subchapter for costs . . . . This
paragraph shall not preclude liability for costs . . . as the result of negligence . . . .”).
The arguments, however, better support our conclusion than that offered by
Chance.
       13
         E.g., 20 U.S.C. § 4074 (“The provisions of this subchapter shall supercede
all other provisions of Federal law that are inconsistent with the provisions of this
subchapter.”); 42 U.S.C. § 14408 (“The provisions of this Act supercede other
Federal laws . . . .”).
                                             6
      Our review of the legislative history reveals nothing undermining this

conclusion.14 We note that the legislative history does not touch on the sweeping

implication of the interpretation pressed by Chance. If Congress had intended 38

U.S.C. § 4323 to prohibit a court from awarding costs to a prevailing defendant,

when a plaintiff pursues a cause of action under a statute other than the USERRA,

while also pursuing one under that Act, then Congress would have made its

intentions clear in the statute, or there would have been some enlightening evidence

of such intention in the legislative history.15 That no such evidence exists bolsters

our conclusion.

      The trial court taxed all costs of court against Chance. This ruling is overly

broad. Only costs not attributable to the filing and advancing of the USERRA

claim may be taxed. The trial court must, therefore, closely examine the costs

      14
         The legislative history does reveal that the USERRA is to be “liberally
construed.” H.R. REP. NO. 103-65, at 19 (1993), reprinted in 1994 U.S.C.C.A.N.
2449, 2452; Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285
(1946) (interpreting a precursor of the USERRA). Liberal construction, however,
does not warrant “distort[ion.]” Id.
      15
         Chisom v. Roemer, 501 U.S. 380, 396 n. 23 (1991) (citing Harrison v.
PPG Indus., Inc., 446 U.S. 578, 602 (1980) (Rehnquist, J., dissenting) (“In a case
where the construction of legislative language such as this makes so sweeping and
so relatively unorthodox a change as that made here, I think judges . . . may take
into consideration the [absence of legislative history.]”)). But see Chisom, 501 U.S.
at 406 (Scalia, J., dissenting) (“We are here to apply the statute, not legislative
history, and certainly not the absence of legislative history.”).
                                         7
incurred à quo and separate out and tax to Chance only those costs not related to

his USERRA claim. 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.

                                 CONCLUSION

      For the foregoing reasons, we AFFIRM the judgment of the district court in

the defendant’s favor, VACATE the taxing of all costs to plaintiff, and REMAND

for further proceedings consistent herewith.




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