Case Number: 1:16-CV-745

Judge: Paul L. Friedman

Court: United States District Court for the District of Columbia (Washington County)

Plaintiff's Attorney:

Defendant's Attorney:

Description: Pacer Class Action Litigation


This case concerns the lawfulness of the fees charged by the federal judiciary for the use
of its Public Access to Court Electronic Records (PACER) system. Plaintiffs are PACER users
who contend that the fees charged from 2010 to 2016 exceeded the amount allowed by federal
law, see 28 U.S.C. § 1913 note (enacted as § 404 of the Judiciary Appropriations Act, 1991, Pub.
L. 101-515, 104 Stat. 2101 (Nov. 5, 1990) and amended by § 205(e) of the E-Government Act of
2002, Pub. L. 107-347, 116 Stat. 2899 (Dec. 17, 2002)). They brought suit under the Little
Tucker Act, seeking monetary relief from the excessive fees.
On December 5, 2016, the Court denied defendants’ motion to dismiss (see Order, ECF
Case 1:16-cv-00745-ESH Document 105 Filed 08/13/18 Page 1 of 8
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No. 24), and, on January 24, 2017, it granted plaintiffs’ motion for class certification (see Order,
ECF No. 32). Pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3), the Court certified a class
consisting of:
All individuals and entities who have paid fees for the use of PACER between
April 21, 2010, and April 21, 2016, excluding class counsel in this case and
federal government entities.
The parties then filed cross-motions for summary judgment on liability, which, they
agreed, depended on a single and novel question of statutory interpretation: “what restrictions
does 28 U.S.C. § 1913 note place on the amount the judiciary may charge in PACER fees?”
Nat'l Veterans Legal Servs. Program v. United States, 291 F. Supp. 3d 123, 138 (D.D.C. 2018).
The parties advocated for starkly different interpretations of the statute, id. at 139-40, neither of
which the Court found persuasive. In the end, it arrived at its own interpretation, which led to
the denial of plaintiffs’ motion and the granting in part and denying in part of defendant’s
motion. (See Order, ECF No. 89.)
At the first status conference after deciding the cross-motions for summary judgment, the
Court asked the parties to consider whether the March 31, 2018 Order should be certified for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b), given the fact that the exact determination
of damages would likely require a lengthy period of fact and expert discovery, additional
summary judgment briefing and potentially a bench trial. (See Tr., Apr. 18, 2018, at 5, 6, 13, 20;
see also Joint Status Report Proposing a Schedule to Govern Further Proceedings, ECF No. 91
(proposing an additional five months of fact discovery, then five months for expert discovery, to
be followed by summary judgment briefing or a bench trial).) Plaintiffs readily agreed that
certification would be appropriate and desirable. (Id. at 21.) The government indicated that it
needed additional time to respond in order to seek the necessary approval from the Solicitor
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General. (Id. at 20.)
On July 13, 2018, the parties filed a joint status report advising the Court that “the
Solicitor General has authorized interlocutory appeal in this case.” (Joint Status Report at 2,
ECF No. 98.) That same day, defendant filed the pending motion to certify the March 31, 2018
Order.1
At the status conference on July 18, 2018, and in their written response filed on July 27,
2018, plaintiffs noted their continued belief that the March 2018 Order should be certified. (See
Pls.’ Resp., ECF No. 102.)
ANALYSIS
A district judge may certify a non-final order for appeal if it is “of the opinion that such
order involves a controlling question of law as to which there is substantial ground for difference
of opinion and that an immediate appeal from the order may materially advance the ultimate
termination of the litigation.” 28 U.S.C. § 1292(b); see Z St. v. Koskinen, 791 F.3d 24, 28 (D.C.
Cir. 2015). The decision whether to certify a case for interlocutory appeal is within the
discretion of the district court. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 761 (D.C. Cir.
2014). If the district court finds that each requirement is met, it “shall so state in writing in such
order,” and the party seeking to appeal must then file an application with the Court of Appeals
“within ten days after the entry of the order.” 28 U.S.C. § 1292(b).
Although the statute does not expressly require the Court to do anything more than
state that each of these requirements is met in the order itself, the general rule is that “[a] district
court order certifying a § 1292(b) appeal should state the reasons that warrant appeal,” and “a

1 Defendants’ motion also sought certification of the December 5, 2016 Order denying their
motion to dismiss. The Court explained in open court during the status conference on July 18,
2018, why it would not certify that Order, but noted that defendant was free to raise a challenge
to the Court’s subject matter jurisdiction at any time. (See Tr., July 18, 2018.)
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thoroughly defective attempt may be found inadequate to support appeal.” 16 Wright & Miller,
Federal Practice & Procedure § 3929 (3d ed. 2008). Accordingly, the Court sets forth herein the
basis for its conclusion that the March 31, 2018 Order satisfies each of the three requirements of
§ 1292(b).
1. Controlling Question of Law
The first requirement for § 1292(b) certification is that the order involve a “controlling
question of law.” “[A] ‘controlling question of law is one that would require reversal if decided
incorrectly or that could materially affect the course of litigation with resulting savings of the
court's or the parties' resources.’” APCC Servs. v. Sprint Communs. Co., 297 F. Supp. 2d 90, 95–
96 (D.D.C. 2003) (quoting Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 233 F. Supp.
2d 16, 19 (D.D.C. 2002)). The March 31, 2018 Order involves a controlling question of law
under either prong.
The parties’ cross-motions for summary judgment presented the Court with a pure legal
issue -- the proper interpretation of 28 U.S.C. § 1913 note. That statute provides, in relevant
part:
The Judicial Conference may, only to the extent necessary, prescribe reasonable
fees, pursuant to sections 1913, 1914, 1926, 1930, and 1932 of title 28, United
States Code, for collection by the courts under those sections for access to
information available through automatic data processing equipment. These fees
may distinguish between classes of persons, and shall provide for exempting
persons or classes of persons from the fees, in order to avoid unreasonable
burdens and to promote public access to such information. The Director of the
Administrative Office of the United States Courts, under the direction of the
Judicial Conference of the United States, shall prescribe a schedule of reasonable
fees for electronic access to information which the Director is required to
maintain and make available to the public.
(b) The Judicial Conference and the Director shall transmit each schedule of fees
prescribed under paragraph (a) to the Congress at least 30 days before the
schedule becomes effective. All fees hereafter collected by the Judiciary under
paragraph as a charge for services rendered shall be deposited as offsetting
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collections to the Judiciary Automation Fund pursuant to 28 U.S.C. 612(c)(1)(A)
to reimburse expenses incurred in providing these services.
Plaintiffs took the position that the statute prohibits the government from charging more in
PACER fees “than is necessary to recoup the total marginal cost of operating PACER,’” and that
the government is liable for fees it has charged in excess of this amount. Nat’l Veterans Legal
Servs. Program, 291 F. Supp. 3d at 139. The government “readily admit[ted] that PACER fees
are being used to cover expenses that are not part of the ‘marginal cost’ of operating PACER,”
but countered that the statute allows the government to “charge [PACER] fees in order to fund
the dissemination of information through electronic means,” which was exactly what it had done.
Id. at 140. The Court adopted neither view, concluding the statute did not preclude the use of
PACER fees to cover certain expenses beyond the marginal cost of operating PACER, but that
certain uses of PACER fees were impermissible. Id. at 140-150. Thus, if the Court’s
interpretation is incorrect, the March 31, 2018 Order would require reversal – one of the prongs
of the definition of a “controlling question of law.”
In addition, regardless of which of these three interpretations of the statute is correct, the
answer will “materially affect the course of [the] litigation.” If the Federal Circuit were to
reverse and adopt defendant’s view, there would be no liability and the case would be over. If it
were to reverse and adopt plaintiffs’ view or affirm this Court, the case would continue, but the
nature of what would follow would differ significantly. If the Circuit were to adopt plaintiffs’
interpretation, the government would be liable for the difference between the approximately
$923 million in PACER user fees collected from 2010 to 2016 and the “marginal cost” of
operating PACER. Therefore, the main issue would be determining the marginal cost of
operating PACER. Plaintiffs concede that at least $129 million was part of the “marginal cost”
Case 1:16-cv-00745-ESH Document 105 Filed 08/13/18 Page 5 of 8
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of operating PACER, while defendant admits that at least $271 million was not,
2
and as to the
remaining $522 million the parties agree “at least some” is not part of the “marginal cost,” but
there is no agreement as to how much of that $522 million is part of the marginal cost.3
On the
other hand, if the Federal Circuit affirms this Court’s Order, there will be no need to determine
the marginal cost of operating PACER, for the only issue unresolved by the Court’s opinion is
the precise amount spent from PACER fees on impermissible expenditures.4
These vastly
different possible outcomes lead to the conclusion that immediate review of the March 31, 2018
Order will materially affect the course of this litigation with resulting savings of time and
resources.
Accordingly, the March 31, 2018 Order involves a “controlling question of law.”
2. Substantial ground for difference of opinion
The second requirement for § 1292(b) certification is that there must “exist a substantial
ground for difference of opinion.” “A substantial ground for difference of opinion is often
established by a dearth of precedent within the controlling jurisdiction and conflicting decisions
in other circuits.” APCC Servs., 297 F. Supp. 2d at 97. Here, there is a complete absence of any
precedent from any jurisdiction. In addition, although the Court ultimately found the arguments

2 Defendant admits that none of the money spent on EBN, the State of Mississippi study, the
VCCA Notification System, and Web-Based Juror Services was part of the “marginal cost” of
operating PACER,
3 Defendant admits that “at least some of the money” spent on CM/ECF, Telecommunications,
Court Allotments, and Courtroom Technology is not part of the “marginal cost” of operating
PACER.
4 Based on the current record, that amount is approximately $192 million. This number reflects
the total expenditures from 2010 to 2016 for the State of Mississippi study ($120,998); the
Violent Crime Control Act notification system ($3,650,979); Web-Based Juror Services
($9,443,628); and Courtroom Technology ($185,001,870), less the expenditures made for digital
audio equipment, including software ($6,052,647).
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in favor of each parties’ position unpersuasive, this Court’s opinion made clear that these
arguments are not without merit and that “the issue is truly one on which there is a substantial
ground for dispute.” APCC Servs., 297 F. Supp. 2d at 98; see also Molock v. Whole Foods Mkt.
Grp., 2018 WL 2926162, at *3 (D.D.C. June 11, 2018). Accordingly, the Court concludes that
there exists a substantial ground for difference of opinion on the issue resolved by the March 31,
2018 Order.
3. Materially advance the litigation
The third requirement for § 1292(b) certification is that an immediate appeal will
“materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). “To satisfy
this element a movant need not show that a reversal on appeal would actually end the litigation.
Instead, the relevant inquiry is whether reversal would hasten or at least simplify the litigation in
some material way, such as by significantly narrowing the issues, conserving judicial resources,
or saving the parties from needless expense.” Molock, 2018 WL 2926162, at *3 (citing APCC
Servs., 297 F. Supp. 2d at 100). Here, there is no question that this requirement is satisfied. As
previously explained, if the Court’s Order is reversed in the government’s favor, the litigation
will be over. If it is reversed in plaintiffs’ favor, it would significantly alter the issues to be
addressed. Either outcome now, instead of later, would conserve judicial resources and save the
parties from needless expenses. Thus, before proceeding to a potentially lengthy and
complicated damages phase based on an interpretation of the statute that could be later reversed
on appeal, it is more efficient to allow the Federal Circuit an opportunity first to determine what
the statute means. Accordingly, the Court concludes that an immediate appeal will “materially
advance the ultimate termination of the litigation.”

Outcome: Having concluded that the March 31, 2018 Order satisfies all three requirements for §1292(b) certification, the Court will exercise its discretion and certify that Order for immediate appeal.

[PROPOSED] ORDER GRANTING PLAINTIFFS’ REVISED MOTION FOR
PRELIMINARY APPROVAL OF CLASS SETTLEMENT
After considering Plaintiffs’ Revised Motion for Preliminary Approval of Class Settlement
(“Plaintiffs’ Motion”),
IT IS HEREBY ORDERED THAT:
1. Plaintiffs’ Motion is GRANTED.
2. After a preliminary review, the Settlement appears to be fair, reasonable, and
adequate. The Settlement: (a) resulted from arm’s-length negotiations between experienced
counsel overseen by an experienced mediator; (b) eliminates the risk, costs, delay, inconvenience,
and uncertainty of continued litigation; (c) involves the previously certified Class of individuals and
entities who paid PACER fees between April 21, 2010 and April 21, 2016, but also a proposed
additional Settlement Class of individuals and entities who paid PACER fees between April 22,
2016 and May 31, 2018; (d) does not provide undue preferential treatment to Class Representatives
or to segments of the Class; (e) does not provide excessive compensation to counsel for the Class;
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and (f) is therefore sufficiently fair, reasonable, and adequate to warrant providing notice of the
Settlement to the Class. Accordingly, the Court preliminarily approves the Settlement, subject to
further consideration at the Settlement Hearing described below.
3. A hearing (the “Settlement Hearing”) shall be held before this Court on _____, at
___:___ __.m, 150 days from the date of this order, at the United States District Court for the
District of Columbia, 333 Constitution Avenue N.W., Washington D.C. 20001 for the following
purposes:
a. to determine whether the Settlement is fair, reasonable, and adequate, and
should be approved by the Court;
b. to determine whether judgment should be entered, dismissing the Complaint
on the merits and with prejudice;
c. to consider the fee and expense application;
d. to consider Class Members’ objections to the Settlement, or the application
for fees and expenses, if any;
e. to rule upon such other matters as the Court may deem appropriate.

4. The Court may adjourn the Settlement Hearing without further notice to the
members of the Class, and reserves the right to approve the Settlement with such modifications as
may be agreed upon or consented to by the parties and without further notice to the Class where
to do so would not impair Class Members’ rights in a manner inconsistent with Rule 23 and due
process of law. The Court further reserves the right to enter its judgment approving the Settlement,
and dismissing the Complaint on the merits and with prejudice regardless of whether it has
approved the fee and expense application.
5. The Court will consider comments or objections to the Settlement or the request
for fees and expenses, only if such comments or objections and any supporting papers are
submitted to the Court at least thirty days prior to the Settlement Hearing according to the
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procedure described in the website notice. Attendance at the Settlement Hearing is not necessary,
but any person wishing to be heard orally in opposition to the Settlement is required to indicate in
their written objection whether they intend to appear at the Settlement Hearing.
6. All opening briefs and documents in support of the Settlement and any fee and
expense application, shall be filed no later than forty-five days before the Settlement Hearing.
Replies to any objections shall be filed at least nine days prior to the Settlement Hearing.
7. The revised Settlement Class satisfies Rule 23 and is certified for the same reasons
set forth in the Court’s prior class certification order. The Settlement Class is defined as:
All persons or entities who paid PACER Fees
between April 21, 2010 and May 31, 2018, excluding
persons or entities that have already opted out,
federal agencies, and Class Counsel.
8. The notice documents advising the previously certified Class Members (“Initial
Class Members”) of the Settlement are hereby approved as to form and content. Exhibit 1 (2010-
2016 email notice); Exhibit 3 (2010-2016 postcard notice).
9. The notice documents advising the Additional Class Members of the Settlement
and providing for opt-out rights are hereby approved as to form and content. Exhibit 2 (2016-2018
email notice); Exhibit 4 (2016-2018 postcard notice).
10. The long-form website notice advising the Class Members of the Settlement and
providing for opt-out rights for the Additional Class Members is hereby approved as to form and
content. Exhibit 5.
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11. The publication notice advising the Class Members of the Settlement and providing
for opt-out rights for the Additional Class Members is hereby approved as to form and content.
Exhibit 6.
12. The firm of KCC Class Action Services LLC (“KCC” or “Administrator”) is
appointed to supervise and administer the notice procedure.
13. To the extent they are not already produced, within fourteen days from the entry
of this order, Defendant shall produce to Plaintiffs the names, postal addresses, email addresses,
phone numbers, PACER-assigned account numbers, and firm name of all individuals or entities
with a PACER account that paid PACER fees during the class period (“Notice Data”). For purposes
of this paragraph, “individuals and entities” is defined as all PACER users except the following:
(1) any user who, during the quarter billed, is on the master Department of Justice list for that
billing quarter; (2) any user with an @uscourts.gov email address extension; or (3) any user whose
PACER bill is sent to and whose email address extension is shared with a person or entity that
received PACER bills for more than one account, provided that the shared email address extension
is one of the following: @oig.hhs.gov, @sol.doi.gov, @state.gov, @bop.gov, @uspis.gov,
@cbp.dhs.gov, @ussss.dhs.gov, @irscounsel.treas.gov, @dol.gov, @ci.irs.gov, @ice.dhs.gov,
@ssa.gov, @psc.uscourts.gov, @sec.gov, @ic.fbi.gov, @irs.gov, and @usdoj.gov.1

14. Within thirty days from the later of (a) the date of this order, or (b) Plaintiffs’ receipt
of the Notice Data from Defendant, the Administrator shall provide the publication notice, in
1
For example, accounting@dol.gov at 200 Constitution Avenue, NW, Washington, DC 20210 receives bills
for johndoe1@dol.gov, johndoe2@dol.gov, and janedoe1@dol.gov. None of those email addresses
(accounting@dol.gov, johndoe1@dol.gov, johndoe2@dol.gov, and janedoe1@dol.gov) would receive notice.
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substantially the same form as Exhibit 6, to American Bankers Association (“ABA”), Banking
Journal, The Slant, and Cision PR Newswire for publication.
15. Within thirty days from the later of (a) the date of this order, or (b) Plaintiffs’ receipt
of the Notice Data from Defendant, the Administrator shall cause the email notices to be
disseminated, in substantially the same form as Exhibits 1 and 2, by sending them out via email to
all Class Members. The Initial Class Members will be emailed Exhibit 1. The Additional Class
Members will be emailed Exhibit 2. The email notices shall direct Class Members to a website
maintained by the Administrator. The sender of the email shall appear to recipients as “PACER
Fees Class Action Administrator,” and the subject line of the email shall be “PACER Fees – Notice
of Class Action Settlement.”
16. Contemporaneous with the emailing of the notices and continuing through the date
of the Settlement Hearing, the Administrator shall display on the internet website dedicated to this
case, www.pacerfeesclassaction.com, the long-form notice in substantially the same form as Exhibit
5. The Administrator shall continue to maintain the website and respond to inquiries by Class
Members as necessary. The website will include the printable Exclusion Request form, the online
Exclusion Request form, Plaintiffs’ Class Action Complaint, Defendant’s Answer, the Order on the
Motion for Class Certification, the Memorandum Opinion on the Motion for Class Certification,
the District Court’s summary judgment opinion, the Federal Circuit’s summary judgment opinion,
the Settlement Agreement, this order, and any other relevant documents. The website will include
the ability for Class Members to check the status of their refund check if the Court grants final
approval of the settlement and update their mailing address. The website will also allow
accountholders to notify the Administrator that an entity paid PACER fees on their behalf, and
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will allow payers to notify the Administrator that they paid PACER fees on an accountholder’s
behalf. These changes must be made on the website no later than 60 days after dissemination of
email notice.
17. Within thirty days from the entry of this order, the Administrator shall make
available to Class Members telephone support to handle any inquiries from Class Members.
18. Within forty-five days from the later of (a) the date of this order, or (b) Plaintiffs’
receipt of the Notice Data from Defendant, the Administrator shall cause the postcard notices to
be disseminated, in substantially the same form as Exhibits 3 and 4 by sending them out via U.S.
mail to all Class Members: (1) without an email address; or (2) for whom email delivery was
unsuccessful. The Initial Class Members will be mailed Exhibit 3. The Additional Class Members
will be mailed Exhibit 4. The postcard notices will direct Class Members to the website maintained
by the Administrator.
19. Additional Class Members can ask to be excluded from the settlement by: (1)
sending an Exclusion Request in the form of a letter; (2) completing and submitting the online
Exclusion Request form; or (3) sending an Exclusion Request form by mail. Ninety days after the
entry of this order, the opt-out period for the Additional Class Members will expire.
20. Class Members can object to the Settlement or the request for fees and expenses
by submitting their comments or objections and any supporting papers to the United States District
Court for the District of Columbia according to the procedure described in the website notice.
Such comments or objections must be submitted at least thirty days prior to the settlement hearing.
21. The Court finds that the dissemination of the notice under the terms and in the
forms provided for constitutes the best notice practicable under the circumstances, that it is due and
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sufficient notice for all purposes to all persons entitled to such notice, and that it fully satisfies the
requirements of due process and all other applicable laws.
IT IS SO ORDERED.

Plaintiff's Experts:

Defendant's Experts:

Comments: To All PACER Users Who Paid Fees to Access Federal Court Records Between April 21, 2010 and May 31, 2018 Your Rights Might Be Affected By a Proposed Class Action Settlement The back of this card provides a summary of the action. Class Action Administrator P.O. Box 301134 Los Angeles, CA 90030-1134 *100000001* Postal Service: Please do not mark barcode TDA—100000001 1 First1 Last1 c/o Addr2 Addr1 City, ST Zip «Country» NOTICE OF PROPOSED CLASS ACTION SETTLEMENT National Veterans Legal Services Program, et al. v. United States, 1:16-cv-00745-PLF Nonprofit groups filed a class action lawsuit against the United States claiming that the government has unlawfully charged PACER users more than necessary to cover the costs of providing public access to federal court records through PACER. This notice is to inform you that the parties have decided to settle the case for $125,000,000. This amount is referred to as the common fund. The settlement has been preliminarily approved by the Court. Why am I receiving this notice? You are receiving this notice because you may have paid PACER fees between April 21, 2010 and May 31, 2018. This notice explains that the parties have entered into a proposed class action settlement that may affect you. You may have legal rights and options that you may exercise before the Court decides to grant final approval to the settlement. What is this lawsuit about? The lawsuit alleges that federal courts have been charging unlawfully excessive PACER fees. It alleges that Congress has authorized the federal courts to charge PACER fees only to the extent necessary to cover the costs of providing public access to federal court records, and that the fees for use of PACER exceed its costs. The lawsuit further alleges that the excess PACER fees have been used to pay for projects unrelated to PACER. The government denies these claims and contends that the fees are lawful. The parties have agreed to settle. Who represents me? The Court has appointed Gupta Wessler PLLC and Motley Rice LLC as Class Counsel. You may hire your own attorney, if you wish, at your own expense. What are my options? If you are an accountholder and directly paid your own PACER fees, you do not have to do anything to receive a share of the common fund. You will automatically receive a check for your share of the common fund assuming the Court grants final approval of the settlement. If someone directly paid PACER Fees on your behalf, you should direct your payment to that individual or entity at the website below no later than [insert date for 60 days after dissemination of email notice]. If you accept payment of any settlement proceeds, you are verifying that you paid the PACER fees and are the proper recipient of the settlement funds. You may object to any aspect of the proposed settlement. You must object by [date]. If you object, you may also request to appear at the final hearing on [date]. For more information: [number] or www.pacerfeesclassaction.com