Last Wednesday, the Federal Circuit issued its opinion in National Veterans Legal Services Program v. United States, a case we have been tracking because it attracted amicus briefs. In this case, NVLSP argues that that the federal government has been overcharging for electronic access to documents filed in court cases. This case was brought to the Federal Circuit as an interlocutory appeal seeking to clarify the correct interpretation of a federal statute, 28 U.S.C § 1913. In the opinion, the panel (including Judge Lourie, Clevenger, and Hughes) unanimously affirmed a district court’s interpretation of the statute and remanded the case back to the district court for it to resolve the case using the correct interpretation. Here is a summary of the opinion.

As explained in our argument preview, this case involved an interlocutory appeal and a cross-appeal.

In its appeal, the National Veterans Legal Services Program (NVLSP) argued that an amendment to 28 U.S.C § 1913 requires a reduction in Public Access to Electronic Records (PACER) fees. In particular, NVLSP asked: Did 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)?”

In its cross appeal, the government contended that the district court lacked Little Tucker Act jurisdiction over the case, and on the merits it argued that the statute broadly allows for PACER fees to be used to fund the dissemination of information through electronic means.

This case attracted four amicus briefs in support of NVLSP and an amicus brief in support of neither party.

Judge Hughes wrote the opinion for the panel, which as mentioned affirmed the district court’s interpretation of the relevant statute and remanded the case back to the district court. In the introduction to the opinion, the court described the relevant facts:

Since PACER’s inception, the Judicial Conference has charged fees for its use because Congress has never appropriated funds to cover the cost of PACER operations. . . . During the period relevant to this litigation, the Judicial Conference used these PACER fees to fund six [Electronic Public Access] EPA programs and projects in addition to funding the operation of PACER itself. . . . Plaintiffs interpreted § 1913 Note as prohibiting the judiciary “from charging more in PACER fees than is necessary to recoup the total marginal cost of operating PACER.” . . . The government, by contrast, argued that the statute allows the judiciary to use PACER fees “to fund the dissemination of information through electronic means.” . . . The district court adopted neither of these extremes. . . . [T]he court determined that § 1913 Note limited “the use of PACER fees to expenses incurred in providing services, such as CM/ECF and EBN . . . Accordingly, the court decided that the federal judiciary properly used PACER fees to pay for the costs of operating CM/ECF and EBN; but that it should not have used PACER fees to pay for the Mississippi Study, VCCA Notification, Web-Based Juror Services, and most of the expenditures for Courtroom Technology.

The court first addressed the government’s jurisdictional argument and, ultimately, rejected it. The government contended that the district court lacked jurisdiction because § 1913 Note does not provide a cause of action with a monetary remedy. While it is true that § 1913 Note does not explicitly require payment of damages for overcharging users, the court noted, § 1913 Note “is a fee-authorizing statute, and the government is alleged to have illegally collected more than the authorized fee.” The court found that “the implied remedy for any violation through over-charging is that the government must return the excess collected.” Thus, the court held, “the illegal exaction claim possesses all the basic elements for Little Tucker Act jurisdiction: a non-tort claim against the United States pursuant to a federal source of law whose violation entitles the plaintiff to money from the government.”

The court next turned to the question of whether the district court correctly interpreted the statute. The court ultimately agreed with the district court’s interpretation.

The court first noted that, on appeal, both parties made “the same textual arguments presented to the district court.” NVLSP still contended that “PACER fees must be limited to PACER costs.” The government asserted that “the district court erred by limiting the permissible costs coverable by PACER fees to only . . . three programs—because the four remaining disallowed programs were also services that provide electronic access to information.”

The court first explained how NVLSP overextended the meaning of the relevant statute. The court found that by “focusing only on the ‘only to the extent necessary’ portion of the first sentence of paragraph (a), [NVLSP] fail[ed] to address the significance of the remainder of the sentence: which reads in relevant part: . . . ‘prescribe reasonable fees . . . for access to information available through automatic data processing equipment.’” The court read the rest of the paragraph to provide that any Electronic Public Access (EPA) service will be somewhat self-funded, and held that the statute does not limit the amount of fees to be imposed or the type of rendered EPA service to be “offset.”

The court also rejected NVLSP’s argument that the 2002 amendment saying “[t]he Judicial Conference shall hereafter prescribe reasonable fees” limits the fees to use for PACER. The court explained that the amendment “simply changed the fee structure from a mandatory to a permissive scheme.”

The court then explained that the government’s arguments “strayed too far in the other direction.” Contrary to the government’s arguments, the court concluded that Congress did intend to “limit[] the use of PACER fees to expenses incurred in providing (1) electronic access for members of the public (2) to information stored on a federal court docketing system.”

Additionally, the court partially agreed with NVLSP and amici that the principle of constitutional avoidance supported these two limitations, though it did not extend these limits to prohibit the use of PACER fees for other EPA operations. Specifically, the court acknowledge the concern that excessive PACER fees may infringe the First Amendment right of access to the courts. The court read § 1913 Note “as permitting EPA fees high enough to cover all electronic access to court information,” which it did not foresee resulting in fees that will significantly impair public access to the courts.

In sum, the Federal Circuit found that the district court thoroughly analyzed the history of the statute and reasonably interpreted the text. The Federal Circuit agreed with the district court’s determination that “the government is liable for the amount of EPA fees used to cover the Mississippi Study, VCCA Notifications, E-Juror Services, and most Courtroom Technology expenses.”

The interpretation made by the district court was therefore affirmed, and the case was remanded to the district court for further proceedings.