Monday, August 10, 2020

The CAFC does PACER in NVLSP v. UNITED STATES: PACER fees LIMITED to the amount needed to cover expenses incurred in services

The outcome: These interlocutory cross-appeals challenge the district court’s interpretation of a statutory note to 28 U.S.C. § 1913 permitting the federal judiciary to charge “reasonable fees” for “access to information available through automatic data processing equipment.” Plaintiffs contend that under this provision unlawfully excessive fees have been charged for accessing federal court records through the Public Access to Court Electronic Records (PACER) system and that the district court identifies too little unlawful excess. The government argues that the district court identifies too much (and also that the district court lacked jurisdiction). We conclude that the district court got it just right. We therefore affirm and remand for further proceedings. Some history In April 2016, plaintiffs—three national nonprofit organizations that have downloaded public court records via PACER—brought a class action against the United States, alleging that the incurred PACER fees “exceeded the amount that could lawfully be charged” under § 1913 Note because the fees did not reflect the cost of operating PACER alone. J.A. 87 ¶ 34. Plaintiffs alleged that each individual download of a public record for which they were charged gave rise to a separate “illegal exaction” claim— that is, a claim that money was “improperly paid, exacted, or taken from the claimant” in violation of law, Norman v. United States, 429 F.3d 1081, 1095 (Fed. Cir. 2005). J.A. 75, 87 ¶ 34. Asserting subject-matter jurisdiction under the Little Tucker Act, 28 U.S.C. § 1346, plaintiffs sought the “return or refund of the excessive PACER fees” collected over the previous six years, from 2010 to 2016.5 J.A. 77 ¶ 5; J.A. 87 ¶ 34. Turning to the merits, the only issue presented in the main appeal is one of statutory interpretation, as neither party has identified any material disputed factual issues at this stage. We review de novo the district court’s statutory interpretation. BASR P’ship v. United States, 915 F.3d 771, 776 (Fed. Cir. 2019). “We focus our inquiry on the statutory language.” Id. Our “first step ‘is to determine whether the language at issue has a plain and unambiguous meaning.’” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). In making this assessment, we secondarily consider the surrounding legislative history and principles of constitutional avoidance. The outcome: We agree with plaintiffs and amici that the First Amendment stakes here are high. See generally Br. of Amici American Civil Liberties Union et al. (discussing the First Amendment right of access to judicial proceedings and records, including via PACER). If large swaths of the public cannot afford the fees required to access court records, it will diminish the public’s ability “to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government.” Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 606 (1982). Such concerns bolster our rejection of the government’s more sweeping interpretation of § 1913 Note as permitting EPA fees high enough to cover all electronic access to court information. But we do not foresee the district court’s middle-ground interpretation permitting EPA fees to be used for PACER, CM/ECF, and EBN as resulting in a level of user fees that will significantly impede public access to courts.16 As for the nondelegation concern, we agree with the district court that both the text and legislative history of § 1913 Note demonstrate that Congress adequately authorized the use of EPA fees for more than just operating PACER. See Summary Judgment Opinion, 291 F. Supp. 3d at 142–43. We therefore hold that § 1913 Note limits PACER fees to the amount needed to cover expenses incurred in services providing public access to federal court electronic docketing information.


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