Argument Preview

Only one case being argued next week at the Federal Circuit attracted any amicus brief. That said, the case, National Veterans Legal Services Program v. United States, attracted five amicus briefs filed by 51 parties. In a nutshell, the case focuses on the legality of user fees charged by the federal judiciary for access to records via the Public Access to Court Electronic Records (PACER) system. Here is our argument preview.

This case is an interlocutory appeal with a cross-appeal. The specific question presented by the plaintiffs-appellants (National Veterans Legal Services Program, National Consumer Law Center, and Alliance for Justice) for the Federal Circuit to answer is one of statutory interpretation.

According to the plaintiffs-appellants, prior to 2002, the relevant statute stated that PACER fees were “a charge for serves rendered” to “reimburse expenses incurred in providing these services.” In 2002, however, the plaintiffs-appellants allege that, recognizing that “users of PACER are charged fees that are higher than the marginal cost of disseminating the information,” Congress passed the E-Government Act. One part of that Act amended the relevant statutory section, say the plaintiffs-appellants, to add that PACER fees would be assessed “only to the extent necessary.”

On Monday, February 3, the parties in this case will present their arguments to a panel of the Federal Circuit about what this language means—and whether PACER users have been overcharged.

In particular, here is the question presented to the Federal Circuit by the plaintiffs-appellants: Did the language added by the E-Government Act “require a reduction in PACER fees” (the plaintiffs’ position), did the language “lock in the status quo” (the district court’s holding), or did it authorize an “expansion in fees” (the government’s position)?”

It its opening brief, the plaintiffs-appellants argue that the statute permits the judiciary to impose fees for “electronic access to information, ‘as a charge for services rendered,’ but ‘only to the extent necessary’ to ‘reimburse expenses incurred in providing these services.’” They contend that the statute is unambiguous, such that “PACER fees may be charged only to the extent necessary to recover the costs of providing access to records via PACER (the service rendered).”

They also argue that, even if the statutory text were ambiguous, the ultimate result would be the same due to precedent. They point to the Supreme Court case of Skinner v. Mid-America Pipeline Co., in which the Court required Congress to give “clear authorization before another branch of government may charge user fees to ‘recover [the] administrative costs’ of programs ‘not inuring directly to the benefit’ of those paying the costs.” The plaintiffs argue that Congress has given no such authorization here and, in fact, “did the opposite.”

In addition, they contend that the district court correctly rejected various arguments made by the government. Specifically, they maintain that the district court correctly applied Tennessee Valley Authority v. Hill to hold that the “[t]he Appropriations Committee has no authority over how revenue is raised, but only how it is spent.” Moreover, they argue that the Appropriations Committee “has not even attempted to provide (nor could it provide) the necessary clear congressional authorization to delegate taxing authority.” The plaintiffs also contend that the district court correctly “rejected the government’s reliance on the fact that PACER fees are deposited into the judiciary’s information-technology fund” because this “is irrelevant to the question in this case.”

Finally, the plaintiffs argue that the district court misread the relevant statute as “authorizing imposition of some PACER fees that exceed the amount necessary to fund PACER, so long as they are used only to fund certain non-PACER expenses.”

The government, in its opening brief, makes three primary arguments.

The government’s first argument is that the plaintiffs “have not established a basis for jurisdiction under the Little Tucker Act.” According to the government, “[t]he statutes that govern PACER fees and the expenditure of fee revenue provide no basis for any inference—much less a necessary inference—that Congress intended to permit claims for illegal exaction.”

The government’s second and third arguments relate to the merits of the district court’s summary judgment ruling. It’s second argument is that the statute, which authorized “the Judiciary to prescribe reasonable fees, to the extent necessary, ‘for access to information available through automatic data processing equipment,’” is reasonably interpreted to “allow fees to be used to support any service that provides access to information available through automatic data processing equipment.” Its third argument is that “[t]he district court correctly rejected plaintiffs’ contention that a 2002 amendment . . . impliedly precluded the Judiciary’s spending.”

In their response and reply brief, the plaintiffs-appellants divide their argument into two parts. In the first part, they argue the government cannot provide a valid defense on the merits of the case. They base this argument on the allegation that the government “offers no account of what the phrase ‘only to the extent necessary’ means or why Congress would have amended the statute to add it.” They also contend the government “doubles down” on the same two arguments it made at the district court, “both of which the district court correctly rejected.”

In the second part, the plaintiffs-appellants argue that the jurisdictional challenge made by the government is foreclosed by “decades of settled precedent.” In short, they argue that the Little Tucker Act’s text and precedent interpreting it establish jurisdiction.

In their conclusion they ask the Federal Circuit to “answer the controlling question of law that formed the basis of this interlocutory appeal by interpreting [the relevant statute] to authorize PACER fees ‘only to the extent necessary’ to ‘reimburse expenses incurred’ in providing access to records through PACER, which is the ‘service[] rendered’ in return for the fees.”

The government, in its reply brief, maintains that the plaintiffs “cannot satisfy the basic prerequisite for an illegal exaction claim” and, therefore, that there is no jurisdiction here. On the merits, moreover, the government contends that “[a]ll of the contested expenditures were for services that provide “access to information available through automatic data processing equipment.” The government further argues that, “[a]lthough plaintiffs contend that the aggregate fee revenue collected was greater than ‘necessary’ to provide such access, the extent to which fee revenue is necessary depends on the funding that Congress otherwise provides.” And, according to the government, “Congress . . . made the proposed expenditures of PACER fee revenue ‘necessary’ to fund [various] Electronic Public Access programs.”

As already noted, this case attracted five amicus briefs.

A group of companies (and one individual) calling themselves “Next-Generation Legal Research Platforms and Databases” submitted an amicus brief to the court in favor of the plaintiffs. They argue that PACER fees are excessive and violate the E-Government Act, but also prevent access to public information.

Retired Senator Joseph Lieberman submitted his own amicus brief. In it he argues that the plain text of the statute at issue makes clear that PACER fees may not be greater than the cost of providing access to court records.

A group calling itself “The Reporters Committee for Freedom of the Press and 27 other Media Organizations” filed another amicus brief in support of the plaintiffs. They maintain that the public and press benefit from access to electronic court records, and argue that PACER fees in excess of those authorized by the E-Government Act hinder electronic access to court records.

The fourth and final amicus brief filed in support of the plaintiffs was submitted by the American Civil Liberties Union, American Association of Law Libraries, American Library Association, Cato Institute, & Knight First Amendment Institute at Columbia University. This brief asserts that the First Amendment guarantees the public a right of access to judicial records, which in turn “attaches to PACER.”

A fifth amicus brief was submitted to the court by seven retired federal judges (including, notably, Richard Posner). These former judges, however, do not support either party. Instead, they argue that “free electronic access to federal court records would promote the institutional interests of the Judiciary.” They also contend that, “given PACER’s minimal actual costs, the Judiciary can and should fund PACER through appropriations.”

While two of the amicus briefs filed in support of the plaintiffs clearly reflect self-interested parties who would be able to reduce their costs by reduced PACER fees, the case drew broader interest. Indeed, three of the amicus briefs were filed by individuals and organizations seeking to promote their understanding of the public interest. Moreover, if the Federal Circuit interprets the statute consistent with the plaintiff’s view of the case, presumably the cost of accessing federal court records will drop precipitously and for everyone interested in these records, which of course would include not just companies re-selling court records and journalists commenting on those records. In short, the case has broad potential impact. But, of course, the public interest and, more generally, the broad potential impact won’t decide the case. It will be decided based on the Federal Circuit’s interpretation of the relevant statute. And we’ll report on how the court does so.