NATIONAL VETERANS LEGAL SERVICES PROGRAM et al v. UNITED STATES OF AMERICA

Filing 107

NOTICE OF GRANT OF PERMISSION TO APPEAL UNDER 28 U.S.C. 1292(B)by ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW CENTER, NATIONAL VETERANS LEGAL SERVICES PROGRAM. Filing fee $ 505, receipt number 0090-5811958. Fee Status: Fee Paid. Parties have been notified. (Attachments: #1 USCA Order)(Narwold, William) Modified on 11/29/2018 to correct docket event/text (jf).

Download PDF
Case 1:16-cv-00745-ESH Document 107 Filed 11/28/18 Page 1 of 3   IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL VETERANS LEGAL SERVICES PROGRAM, NATIONAL CONSUMER LAW CENTER, and ALLIANCE FOR JUSTICE, for themselves and all others similarly situated, Plaintiffs, Case No. 16-745-ESH v. UNITED STATES OF AMERICA, Defendant. NOTICE OF GRANT OF PERMISSION TO APPEAL UNDER 28 U.S.C. § 1292(B) Notice is hereby given on this 28 day of November, 2018, that the plaintiffs’ petition for permission to appeal the order entered on March 31, 2018 (ECF. No. 88) was granted by the United States Court of Appeals for the Federal Circuit. Both parties filed petitions for permission to appeal on August 22, 2018 (Fed. Cir. Nos. 18-154, 18-155), which were granted on October 16, 2018 (Fed. Cir. Nos. 19-1081, 19-1083). The order granting permission to appeal is attached. Pursuant to Fed. R. App. P. Rule 5(d), plaintiffs file this notice to effect payment of the filing fee for the appeal. Respectfully submitted, /s/ Meghan S.B. Oliver Meghan S.B. Oliver (D.C. Bar No. 493416) MOTLEY RICE LLC 28 Bridgeside Blvd. Mount Pleasant, SC 29464 (843) 216-9000 moliver@motleyrice.com       1 Case 1:16-cv-00745-ESH Document 107 Filed 11/28/18 Page 2 of 3   DEEPAK GUPTA (D.C. Bar No. 495451) JONATHAN E. TAYLOR (D.C. Bar No. 1015713) GUPTA WESSLER PLLC 1900 L Street, NW, Suite 312 Washington, DC 20036 Phone: (202) 888-1741 Fax: (202) 888-7792 deepak@guptawessler.com jon@guptawessler.com WILLIAM H. NARWOLD (D.C. Bar No. 502352) MOTLEY RICE LLC One Corporate Center 20 Church Street, 17th Floor Hartford, CT 06103 (860) 882-1681 bnarwold@motleyrice.com Elizabeth Smith (D.C. Bar No. 994263) MOTLEY RICE LLC 401 9th Street, NW, Suite 1001 Washington, DC 20004 (202) 232-5504 November 28, 2018       Attorneys for Plaintiffs 2 Case 1:16-cv-00745-ESH Document 107 Filed 11/28/18 Page 3 of 3   CERTIFICATE OF SERVICE I hereby certify that on November 28, 2018, I filed this notice through this Court’s CM/ECF system, and that all parties required to be served have been thereby served. /s/ Meghan S.B. Oliver Meghan S.B. Oliver       3 Case 1:16-cv-00745-ESH Document 107-1 Filed 11/28/18 Page 1 of 4 Case: 18-155 Document: 10 Page: 1 Filed: 10/16/2018 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ NATIONAL VETERANS LEGAL SERVICES PROGRAM, NATIONAL CONSUMER LAW CENTER, ALLIANCE FOR JUSTICE, Plaintiffs-Respondents v. UNITED STATES, Defendant-Petitioner ______________________ 2018-154 ______________________ On Petition for Permission to Appeal pursuant to 28 U.S.C. Section 1292(b) from the United States District Court for the District of Columbia in No. 1:16-cv-00745ESH, Judge Ellen S. Huvelle. --------------------------------------------------------------------------------NATIONAL VETERANS LEGAL SERVICES PROGRAM, NATIONAL CONSUMER LAW CENTER, ALLIANCE FOR JUSTICE, Plaintiffs-Petitioners v. UNITED STATES, Defendant-Respondent ______________________ Case 1:16-cv-00745-ESH Document 107-1 Filed 11/28/18 Page 2 of 4 Case: 18-155 Document: 10 Page: 2 Filed: 10/16/2018 2 NVLSP v. US 2018-155 ______________________ On Petition for Permission to Appeal pursuant to 28 U.S.C. Section 1292(b) from the United States District Court for the District of Columbia in No. 1:16-cv-00745ESH, Judge Ellen S. Huvelle. ______________________ ON PETITION ______________________ Before PROST, Chief Judge, NEWMAN and LOURIE, Circuit Judges. LOURIE, Circuit Judge. ORDER The parties both petition for permission to appeal an order of the United States District Court for the District of Columbia concerning the extent to which fee revenue generated by the federal judiciary’s Public Access to Court Electronic Records (“PACER”) system may be used for purposes other than the operation of PACER. This case arises out of a class action brought by National Veterans Legal Services Program, National Consumer Law Center, and Alliance for Justice (collectively, “the plaintiffs”) against the United States, alleging that fees charged for using PACER from 2010 to 2016 violated 28 U.S.C. § 1913 note, as amended by the E-Government Act of 2002. That provision states, in relevant part, “[t]he Judicial Conference may, only to the extent necessary, prescribe reasonable fees . . . for collection by the courts . . . for access to information available through automatic data processing equipment. . . . [These fees] shall be deposited as offsetting collections to the Judiciary Automation fund . . . to reimburse expenses incurred in providing these services.” 28 U.S.C. § 1913 note. Case 1:16-cv-00745-ESH Document 107-1 Filed 11/28/18 Page 3 of 4 Case: 18-155 Document: 10 Page: 3 Filed: 10/16/2018 NVLSP v. US 3 After the district court denied the United States’ motion to dismiss the complaint for failing to establish a cognizable claim for damages under the Little Tucker Act, 28 U.S.C. § 1346(a), the parties filed cross-motions for summary judgment of liability. The plaintiffs argued that the E-Government Act barred the judiciary from using PACER fees for anything other than the marginal cost of operating PACER. The government asserted that PACER fees can be spent on any expenditure involving the dissemination of information through electronic means. The district court adopted neither party’s position. Instead, it determined that revenue from the PACER system may be used only for “expenses incurred in providing services . . . that are part of providing the public with access to electronic information maintained and stored by the federal courts on its CM/ECF docketing system.” Nat’l Veterans Legal Servs. Program v. United States, 291 F. Supp. 3d 123, 149 (D.D.C. Mar. 31, 2018). On this basis, the district court ruled that several categories of the judiciary’s expenditures were impermissible but also rejected the plaintiffs’ position that the class was entitled to fees paid in excess of the amount necessary to recoup the total marginal cost of operating PACER. At the request of both parties, the district court certified its summary judgment order for interlocutory appeal and stayed further proceedings. The district court noted that the issue to be appealed was a purely legal one, that the issue was one of first impression, and that interlocutory appeal would materially advance the litigation because “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.” Under 28 U.S.C. § 1292(b), a district court may certify that an order that is not otherwise appealable is one involving a controlling question of law as to which there is Case 1:16-cv-00745-ESH Document 107-1 Filed 11/28/18 Page 4 of 4 Case: 18-155 Document: 10 Page: 4 Filed: 10/16/2018 4 NVLSP v. US substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. Ultimately, this court must exercise its own discretion in deciding whether it will grant permission to appeal an interlocutory order. See In re Convertible Rowing Exerciser Patent Litig., 903 F.2d 822, 822 (Fed. Cir. 1990). Having considered the petitions, we agree with the parties and the district court that interlocutory review is appropriate here. Accordingly, IT IS ORDERED THAT: The petitions are granted. FOR THE COURT /s/ Peter R. Marksteiner Peter R. Marksteiner Clerk of Court s25

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?