Last week the Federal Circuit heard one case that attracted amicus briefs, National Veterans Legal Services Program v. United States. As we noted in our argument preview, in this case the court considered whether language added by the E-Government Act requires “a reduction in PACER fees” (the plaintiffs’ position), locks “in the status quo” in terms of fees (the district court’s holding), or authorizes an “expansion in fees” (the government’s position). Last Monday, the plaintiffs-appellants (National Veterans Legal Services Program, National Consumer Law Center, and Alliance for Justice) and the defendant-appellee United States presented their arguments to a panel of the court that included Judges Lourie, Clevenger, and Hughes. This is our argument recap.
Arguing on behalf of the plaintiffs-appellants, Deepak Gupta began by framing the case. Gupta noted that this case arrived at the Federal Circuit through an interlocutory appeal presenting two legal questions. According to Gupta, the first of these questions asked whether, “when a plaintiff pays a user fee to the government and challenges that fee as an illegal exaction in contravention of a federal statute, is that a claim for which the Tucker Act provides jurisdiction?” Gupta made one argument in support of jurisdiction before the judges redirected him to the merits of the case.
Upon turning to the merits of the case, the judges focused on whether the fees for providing electronic access to documents should be limited to the marginal costs of providing the information, or whether the fees instead should include the costs associated with establishing and maintaining the infrastructure required to complete such a task. While considering these possibilities, the court acknowledged that making a digital version of a paper brief available was, at first at least, a laborious process. As a result, the court asked whether, “in the very beginning, would it have been reasonable for the Judicial Conference to say they were going to recoup the creation cost,” so as to account for this laborious process. Gupta agreed that, at the time digitized records were first made available, it “would have been more reasonable” to take into account the full cost of the infrastructure as compared to “after the amended statute, whe[n] Congress said they saw the [judiciary] was charging more than the marginal cost of disseminating this information.” Gupta’s argument led to an apparent agreement that when digitized information was scarce, the burden of “having to build up an electronic database” where digital documents could be easily and cheaply transmitted was on the judiciary.
Gupta argued, however, that the burden has since shifted to private practitioners to create the electronic information to send to courts. In response, the court noted that the judiciary is constantly updating its infrastructure, which is costly. This led the court to ask whether it would be reasonable to charge fees for “the portion of the underlying infrastructure that supports public access,” but to exclude the costs associated with what the judiciary does internally using the same system. Gupta answered this question by drawing a comparison with the fees associated with the Freedom of Information Act. He argued that Act allow for charging the marginal cost of obtaining information (copying, searching, and making documents available), but prohibits passing the cost of maintaining information (keeping a records room) on to users. The court indicated that this might be “a good analogy,” but that it would need to see the statutory language of the Freedom of Information Act to determine its strength.
In closing, Gupta reiterated that this case is appearing before the court on interlocutory appeal, and he suggested that the court remand the case to the lower court with a clear explanation of the meaning of the relevant statutory language.
Alisa Klein, arguing on behalf of the government, also began by addressing the jurisdictional issue. Klein argued, for example, that Congress has not authorized nor created a damages action for any PACER user. The court, however, as they did with Gupta, focused on the merits of the case for the majority of the argument.
Klein argued that the case centers on “whether to infer a damages remedy that is not express” in the statute. Klein maintained that the court should not do so because Congress did not mean to give an individual PACER user a damages remedy. The court then posed the following hypothetical:
“You know that the Supreme Court has a cafeteria. . . . Let’s assume that on PACER you can get the current menu for the Supreme Court’s cafeteria, and the Judicial Conference determines that the cost of building up that electronic information should be passed on to PACER users because it is available electronically. Would it be appropriate to have that cost in the fee? Yes or no?”
Klein attempted to differentiate the hypothetical situation from the present case several times. Each time Klein attempted to do so, and to elaborate beyond a yes or no answer, the court interjected. Eventually, however, Klein argued that the statute says that a fee structure should be developed that “promotes public access,” which may include the hypothetical situation.
Klein concluded her argument by noting that Congress enacts yearly appropriations legislation in which “it decides what it gives direct appropriations for,” including spending PACER fees. She thus implied that Congress has approved how the Judiciary spends the money it collects.
The court permitted both parties rebuttal time. The rebuttal arguments, however, were kept brief.
During his rebuttal, Gupta reiterated his position that the court should correctly interpret the statute and remand the case back to the lower court. Gupta supported the request for a remand by arguing that the categories of expenses and total cost of these expenses need to be determined through discovery on remand.
In her rebuttal, Klein focused on precedent related to user fees, which she argued usually cover more than just marginal costs.
This case could have significant impact on public access to federal court records. If the Federal Circuit interprets the statute consistent with the plaintiffs-appellants’ position, presumably the fees the government charges for accessing federal court records will drop significantly. We will monitor the case and report on its outcome.