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).

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NOTE: This order is nonprecedential.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: 18-155

Document: 10

Page: 2

2

Filed: 10/16/2018

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: 18-155

NVLSP

v. US

Document: 10

Page: 3

Filed: 10/16/2018

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: 18-155

Document: 10

4

Page: 4

Filed: 10/16/2018

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