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

Filing 108

Transmission of the Notice of Grant of Permission to Appeal Under 28 U.S.C. 1292(B)and Docket Sheet to Federal Circuit. The appeal fee was paid this date re #107 Notice of Appeal to the Federal Circuit. (jf)

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 1 of 32

APPEAL,STAYED,TYPE−E

U.S. District Court
District of Columbia (Washington, DC)
CIVIL DOCKET FOR CASE #: 1:16−cv−00745−ESH
NATIONAL VETERANS LEGAL SERVICES PROGRAM et
al v. UNITED STATES OF AMERICA
Assigned to: Judge Ellen S. Huvelle
Case in other court: USCA for the Federal Circuit,
19−01083−SJ
USCA for the Federal Circuit,
18−00154−CP
USCA for the Federal Circuit,
18−00155−CP
USCA for the Federal Circuit,
19−01081−SJ
Cause: 28:1346 Tort Claim
Plaintiff
NATIONAL VETERANS LEGAL
SERVICES PROGRAM

Date Filed: 04/21/2016
Jury Demand: None
Nature of Suit: 890 Other Statutory
Actions
Jurisdiction: U.S. Government Defendant

represented by Jonathan E. Taylor
GUPTA WESSLER PLLC
1900 L Sreet, NW
Suite 312
Washington, DC 20036
(202) 888−1741
LEAD ATTORNEY
PRO HAC VICE
ATTORNEY TO BE NOTICED
Meghan S.B. Oliver
MOTLEY RICE, LLC
28 Bridgeside Blvd.
Mt. Pleasant, SC 29464
(843) 216−9492
Fax: (843) 216−9430
LEAD ATTORNEY
PRO HAC VICE
ATTORNEY TO BE NOTICED
William H. Narwold
1 Corporate Center
20 Church Street
17th Floor
Hartford, CT 06103
860−882−1676
Fax: 860−882−1682
Email: [e-mail]
LEAD ATTORNEY
PRO HAC VICE
ATTORNEY TO BE NOTICED

1

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 2 of 32

Elizabeth S. Smith
MOTLEY RICE, LLC
401 9th Street, NW
Suite 1001
Washington, DC 20004
(202) 386−9627
Fax: (843) 216−9350
Email: [e-mail]
ATTORNEY TO BE NOTICED
Deepak Gupta
GUPTA WESSLER PLLC
1900 L Sreet, NW
Suite 312
Washington, DC 20036
(202) 888−1741
Email: [e-mail]
ATTORNEY TO BE NOTICED
Plaintiff
NATIONAL CONSUMER LAW
CENTER

represented by Jonathan E. Taylor
(See above for address)
LEAD ATTORNEY
PRO HAC VICE
ATTORNEY TO BE NOTICED
Meghan S.B. Oliver
(See above for address)
LEAD ATTORNEY
PRO HAC VICE
ATTORNEY TO BE NOTICED
William H. Narwold
(See above for address)
LEAD ATTORNEY
PRO HAC VICE
ATTORNEY TO BE NOTICED
Elizabeth S. Smith
(See above for address)
ATTORNEY TO BE NOTICED
Deepak Gupta
(See above for address)
ATTORNEY TO BE NOTICED

Plaintiff
ALLIANCE FOR JUSTICE

represented by Jonathan E. Taylor
(See above for address)
LEAD ATTORNEY

2

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 3 of 32

PRO HAC VICE
ATTORNEY TO BE NOTICED
Meghan S.B. Oliver
(See above for address)
LEAD ATTORNEY
PRO HAC VICE
ATTORNEY TO BE NOTICED
William H. Narwold
(See above for address)
LEAD ATTORNEY
PRO HAC VICE
ATTORNEY TO BE NOTICED
Elizabeth S. Smith
(See above for address)
ATTORNEY TO BE NOTICED
Deepak Gupta
(See above for address)
ATTORNEY TO BE NOTICED

V.
Defendant
UNITED STATES OF AMERICA

represented by Brian J. Field
U.S. ATTORNEY'S OFFICE
Civil Division
555 Fourth Street, NW
Washington, DC 20530
(202) 252−2551
Fax: (202) 234−2806
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
William Mark Nebeker
U.S. ATTORNEY'S OFFICE
Civil Division
555 Fourth Street, NW
Washington, DC 20530
(202) 252−2536
Fax: (202) 252−2599
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

V.
Interested Party

3

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 4 of 32

ROSEMARIE HOWELL

represented by ROSEMARIE HOWELL
9504 N.E. 5th Street
Vancouver, WA 98664
(360) 953−0798
PRO SE

Interested Party
ROB RAWSON

represented by ROB RAWSON
P.O. Box 632
Sanford, FL 32772−0632
PRO SE

Movant
DON KOZICH

represented by DON KOZICH
P.O. Box 2032
Fort Lauderdale, FL 33303−2032
(954) 709−0537
Email: [e-mail]
PRO SE

Amicus
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS

represented by Bruce D. Brown
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1156 15th St, NW
Suite 1020
Washington, DC 20005
(202) 795−9301
Fax: (202) 795−9310
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
AMERICAN ASSOCIATION OF
LAW LIBRARIES

represented by Sasha Samberg−Champion
RELMAN, DANE & COLFAX PLLC
1225 19th Street, NW
Suite 600
Washington, DC 20036
(202) 728−1888
Fax: (202) 728−0848
Email: ssamberg−[e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
JOSEPH I. LIEBERMAN

represented by Mark I. Bailen
BAKER & HOSTETLER LLP
1050 Connecticut Avenue, NW
Suite 1100

4

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 5 of 32

Washington, DC 20036
(202) 861−1715
Fax: (202) 861−1783
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Amicus
AMERICAN SOCIETY OF
NEWSPAPER EDITORS

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
ASSOCIATED PRESS MEDIA
EDITORS

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
ASSOCIATION OF ALTERNATIVE
NEWS MEDIA

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
CENTER FOR INVESTIGATIVE
REPORTING

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
FIRST AMENDMENT COALITION

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
FIRST LOOK MEDIA WORKS, INC.

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
INTERNATIONAL
DOCUMENTARY ASSOCIATION

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

5

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 6 of 32

Amicus
INVESTIGATIVE REPORTING
WORKSHOP

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
MEDIA CONSORTIUM

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
MPA
The Association of Magazine Media

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
NATIONAL PRESS
PHOTOGRAPHERS ASSOCIATION

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
ONLINE NEWS ASSOCIATION

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
RADIO TELEVISION DIGITAL
NEWS ASSOCIATION

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
REPORTERS WITHOUT BORDERS

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
SEATTLE TIMES COMPANY

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

6

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 7 of 32

Amicus
SOCIETY OF PROFESSIONAL
JOURNALISTS

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
TULLY CENTER FOR FREE
SPEECH

represented by Bruce D. Brown
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
DEBORAH BEIM

represented by Sasha Samberg−Champion
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
THOMAS BRUCE

represented by Sasha Samberg−Champion
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
PHILLIP MALONE

represented by Sasha Samberg−Champion
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
JONATHAN ZITTRAIN

represented by Sasha Samberg−Champion
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Amicus
DARRELL ISSA
Congressman

Date Filed
04/21/2016

represented by Mark I. Bailen
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

#

Page
1

Docket Text
COMPLAINT against All Defendants United States of America
( Filing fee $ 400 receipt number 0090−4495374) filed by
NATIONAL VETERANS LEGAL SERVICES PROGRAM,
ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW

7

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 8 of 32

CENTER. (Attachments: # 1 Civil Cover Sheet, # 2 Summons
to United States Attorney General, # 3 Summons to U.S.
Attorney for the District of Columbia)(Gupta, Deepak)
(Entered: 04/21/2016)
04/21/2016

2

04/21/2016

LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate
Affiliations and Financial Interests by ALLIANCE FOR
JUSTICE, NATIONAL CONSUMER LAW CENTER,
NATIONAL VETERANS LEGAL SERVICES PROGRAM
(Gupta, Deepak) (Entered: 04/21/2016)
Case Assigned to Judge Ellen S. Huvelle. (jd) (Entered:
04/22/2016)

04/22/2016

3

SUMMONS (2) Issued Electronically as to UNITED STATES
OF AMERICA, U.S. Attorney and U.S. Attorney General
(Attachment: # 1 Consent Forms)(jd) (Entered: 04/22/2016)

04/26/2016

4

RETURN OF SERVICE/AFFIDAVIT of Summons and
Complaint Executed as to the United States Attorney. Date of
Service Upon United States Attorney on 4/26/2016. Answer
due for ALL FEDERAL DEFENDANTS by 6/25/2016.
(Gupta, Deepak) (Entered: 04/26/2016)

04/26/2016

5

NOTICE of Appearance by Elizabeth S. Smith on behalf of All
Plaintiffs (Smith, Elizabeth) (Entered: 04/26/2016)

04/26/2016

6

MOTION for Leave to Appear Pro Hac Vice :Attorney Name−
William H. Narwold, :Firm− Motley Rice LLC, :Address− 20
Church Street, 17th Floor, Hartford, CT 06103. Phone No. −
860−882−1676. Fax No. − 860−882−1682 Filing fee $ 100,
receipt number 0090−4500590. Fee Status: Fee Paid. by
ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW
CENTER, NATIONAL VETERANS LEGAL SERVICES
PROGRAM (Attachments: # 1 Declaration, # 2 Text of
Proposed Order)(Smith, Elizabeth) (Entered: 04/26/2016)

04/26/2016

MINUTE ORDER granting 6 Motion for Leave to Appear Pro
Hac Vice: It is hereby ORDERED that the motion for leave to
appear pro hac vice is GRANTED; and it is further ORDERED
that William H. Narwold is admitted pro hac vice for the
purpose of appearing in the above−captioned case. Signed by
Judge Ellen S. Huvelle on April 26, 2016. (AG) (Entered:
04/26/2016)

05/02/2016

7

RETURN OF SERVICE/AFFIDAVIT of Summons and
Complaint Executed on United States Attorney General. Date
of Service Upon United States Attorney General 05/02/2016.
(Gupta, Deepak) (Entered: 05/02/2016)

05/02/2016

8

MOTION to Certify Class by ALLIANCE FOR JUSTICE,
NATIONAL CONSUMER LAW CENTER, NATIONAL
VETERANS LEGAL SERVICES PROGRAM (Attachments: #
1 Declaration of Deepak Gupta, # 2 Declaration of William
Narwold, # 3 Declaration of Jonathan Taylor, # 4 Text of

8

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 9 of 32

Proposed Order)(Gupta, Deepak) (Entered: 05/02/2016)
05/16/2016

9

05/16/2016

10

05/17/2016

NOTICE of Appearance by William Mark Nebeker on behalf
of UNITED STATES OF AMERICA (Nebeker, William)
(Entered: 05/16/2016)
Unopposed MOTION for Extension of Time to File
Response/Reply as to 8 MOTION to Certify Class by UNITED
STATES OF AMERICA (Attachments: # 1 Text of Proposed
Order)(Nebeker, William) (Entered: 05/16/2016)
MINUTE ORDER: It is hereby ORDERED that defendant's
unopposed 10 Motion for Extension of Time to File
Response/Reply is GRANTED, and defendant's Response is
due by July 11, 2016. Signed by Judge Ellen S. Huvelle on May
17, 2016. (lcesh2 ) (Entered: 05/17/2016)

06/27/2016

11

MOTION to Dismiss Or, In The Alternative, MOTION for
Summary Judgment by UNITED STATES OF AMERICA
(Attachments: # 1 Exhibit (1 through 5), # 2 Text of Proposed
Order)(Nebeker, William) (Entered: 06/27/2016)

07/08/2016

12

Joint MOTION for Extension of Time to File Response/Reply
as to 8 MOTION to Certify Class , 11 MOTION to Dismiss Or,
In The Alternative MOTION for Summary Judgment by
ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW
CENTER, NATIONAL VETERANS LEGAL SERVICES
PROGRAM (Attachments: # 1 Text of Proposed Order)(Gupta,
Deepak) (Entered: 07/08/2016)

07/08/2016

MINUTE ORDER granting 12 Motion for Extension of Time
to File Response re 8 MOTION to Certify Class and 11
MOTION to Dismiss: Upon consideration of the parties' joint
motion to extend the briefing schedule, it is hereby ORDERED
that the motion is GRANTED; it is FURTHER ORDERED that
the time within which the defendant may file a memorandum of
points and authorities in response to plaintiffs' motion for class
certification is further extended though July 25, 2016, and no
additional extensions shall be granted; and it isFURTHER
ORDERED that the time within which the plaintiffs may file a
memorandum of points and authorities in response to
defendant's motion to dismiss is initially extended though July
29, 2016. Signed by Judge Ellen S. Huvelle on July 7, 2016.
(AG) (Entered: 07/08/2016)

07/25/2016

13

Memorandum in opposition to re 8 MOTION to Certify Class
filed by UNITED STATES OF AMERICA. (Attachments: # 1
Exhibit A, # 2 Declaration Garcia, # 3 Text of Proposed
Order)(Nebeker, William) (Entered: 07/25/2016)

07/26/2016

14

MOTION to Stay Discovery by UNITED STATES OF
AMERICA (Attachments: # 1 Text of Proposed
Order)(Nebeker, William) (Entered: 07/26/2016)

07/29/2016

15

9

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 10 of 32

RESPONSE re 11 MOTION to Dismiss Or, In The Alternative
MOTION for Summary Judgment filed by ALLIANCE FOR
JUSTICE, NATIONAL CONSUMER LAW CENTER,
NATIONAL VETERANS LEGAL SERVICES PROGRAM.
(Attachments: # 1 Exhibit Govt's MTD in Fisher, # 2 Exhibit
Complaint in NVLSP v. USA, # 3 Exhibit Complaint in
Fisher)(Gupta, Deepak) (Entered: 07/29/2016)
08/04/2016

16

Unopposed MOTION for Extension of Time to File
Response/Reply as to 11 MOTION to Dismiss Or, In The
Alternative MOTION for Summary Judgment by UNITED
STATES OF AMERICA (Attachments: # 1 Text of Proposed
Order)(Nebeker, William) (Entered: 08/04/2016)

08/04/2016

17

REPLY to opposition to motion re 8 MOTION to Certify Class
filed by ALLIANCE FOR JUSTICE, NATIONAL
CONSUMER LAW CENTER, NATIONAL VETERANS
LEGAL SERVICES PROGRAM. (Gupta, Deepak) (Entered:
08/04/2016)

08/05/2016

08/09/2016

MINUTE ORDER granting 16 Unopposed Motion for
Extension of Time to File Reply re 11 MOTION to Dismiss Or,
In The Alternative, MOTION for Summary Judgment : Upon
consideration of the Unopposed Motion For An Enlargement
Of Time, And Memorandum In Support Thereof, and for the
reasons set forth in support thereof, it is hereby ORDERED that
the motion is GRANTED; and it is FURTHER ORDERED that
the time within which Defendant may file a reply to Plaintiffs'
opposition to the pending Motion To Dismiss Or, In The
Alternative, For Summary Judgment is enlarged up to and
including August 16, 2016. Signed by Judge Ellen S. Huvelle
on August 5, 2016. (AG) (Entered: 08/05/2016)
18

Joint MOTION for Scheduling Order by ALLIANCE FOR
JUSTICE, NATIONAL CONSUMER LAW CENTER,
NATIONAL VETERANS LEGAL SERVICES PROGRAM
(Attachments: # 1 Text of Proposed Order)(Narwold, William)
(Entered: 08/09/2016)

08/16/2016

MINUTE ORDER: It is hereby ORDERED that the 18 Joint
Motion for Scheduling Order is GRANTED. Signed by Judge
Ellen S. Huvelle on August 16, 2016. (lcesh2) (Entered:
08/16/2016)

08/16/2016

MINUTE ORDER: It is hereby ORDERED that defendant's 14
Motion to Stay is DENIED as moot. Signed by Judge Ellen S.
Huvelle on August 16, 2016. (lcesh2) (Entered: 08/16/2016)

08/16/2016

19

SCHEDULING ORDER: The parties' 18 Joint Motion for
Proposed Phased Schedule is hereby GRANTED. See Order for
details. Signed by Judge Ellen S. Huvelle on August 16, 2016.
(lcesh2) (Entered: 08/16/2016)

08/16/2016

20

REPLY to opposition to motion re 11 MOTION to Dismiss Or,
In The Alternative MOTION for Summary Judgment filed by

10

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 11 of 32

UNITED STATES OF AMERICA. (Attachments: # 1
Declaration Second Garcia)(Nebeker, William) (Entered:
08/16/2016)
08/17/2016

21

MOTION for Leave to File Sur−Reply by ALLIANCE FOR
JUSTICE, NATIONAL CONSUMER LAW CENTER,
NATIONAL VETERANS LEGAL SERVICES PROGRAM
(Attachments: # 1 Exhibit Sur−Reply, # 2 Statement of Facts, #
3 Text of Proposed Order)(Gupta, Deepak) (Entered:
08/17/2016)

08/17/2016

22

RESPONSE re 21 MOTION for Leave to File Sur−Reply filed
by UNITED STATES OF AMERICA. (Attachments: # 1 Text
of Proposed Order)(Nebeker, William) (Entered: 08/17/2016)

10/01/2016

23

NOTICE OF SUPPLEMENTAL AUTHORITY by
ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW
CENTER, NATIONAL VETERANS LEGAL SERVICES
PROGRAM (Attachments: # 1 Exhibit Opinion in Fisher v.
United States)(Gupta, Deepak) (Entered: 10/01/2016)

12/05/2016

MINUTE ORDER granting in part and denying in part 21
Plaintiffs' Motion for Leave to File Sur−Reply: It is hereby
ORDERED that plaintiffs may file [21−2] Plaintiffs' Concise
Statement of Genuine Issues of Material Fact, but plaintiffs
may not file [21−1] Plaintiffs' Sur−Reply. A sur−reply is
unnecessary because plaintiffs seek to reply to a statement that
defendant originally presented in its motion to dismiss. Signed
by Judge Ellen S. Huvelle on December 5, 2016. (lcesh2)
(Entered: 12/05/2016)

12/05/2016

24

ORDER denying 11 Defendant's Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment for the reasons
stated in the accompanying Memorandum Opinion. Signed by
Judge Ellen S. Huvelle on December 5, 2016. (lcesh2)
(Entered: 12/05/2016)

12/05/2016

25

MEMORANDUM OPINION in support of 24 Order Denying
11 Defendant's Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment. Signed by Judge Ellen S.
Huvelle on December 5, 2016. (lcesh2) (Entered: 12/05/2016)

12/05/2016

26

SUPPLEMENTAL MEMORANDUM (Statement of Genuine
Issues of Material Fact) to re 11 MOTION to Dismiss Or, In
The Alternative MOTION for Summary Judgment filed by
ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW
CENTER, NATIONAL VETERANS LEGAL SERVICES
PROGRAM. (znmw) (Entered: 12/06/2016)

12/15/2016

MINUTE ORDER Setting Hearing on Motion: It is hereby
ORDERED that a motion hearing on 8 Plaintiffs' MOTION to
Certify Class is set for 1/18/2017 at 02:30 PM in Courtroom
23A before Judge Ellen S. Huvelle. Signed by Judge Ellen S.
Huvelle on December 15, 2016. (lcesh2) (Entered: 12/15/2016)

11

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 12 of 32

12/19/2016

27

01/18/2017

ANSWER to Complaint by UNITED STATES OF
AMERICA.(Nebeker, William) (Entered: 12/19/2016)
Minute Entry for proceedings held before Judge Ellen S.
Huvelle: Motion Hearing held on 1/18/2017, re 8 MOTION to
Certify Class, heard and taken under advisement. (Court
Reporter Scott Wallace) (gdf) (Entered: 01/18/2017)

01/20/2017

28

AFFIDAVIT re 8 MOTION to Certify Class of Daniel L.
Goldberg by ALLIANCE FOR JUSTICE, NATIONAL
CONSUMER LAW CENTER, NATIONAL VETERANS
LEGAL SERVICES PROGRAM. (Gupta, Deepak) (Entered:
01/20/2017)

01/20/2017

29

AFFIDAVIT re 8 MOTION to Certify Class of Stuart Rossman
by ALLIANCE FOR JUSTICE, NATIONAL CONSUMER
LAW CENTER, NATIONAL VETERANS LEGAL
SERVICES PROGRAM. (Gupta, Deepak) (Entered:
01/20/2017)

01/20/2017

30

AFFIDAVIT re 8 MOTION to Certify Class of Barton F.
Stichman by ALLIANCE FOR JUSTICE, NATIONAL
CONSUMER LAW CENTER, NATIONAL VETERANS
LEGAL SERVICES PROGRAM. (Gupta, Deepak) (Entered:
01/20/2017)

01/20/2017

31

AFFIDAVIT re 8 MOTION to Certify Class of Deepak Gupta
(Second) by ALLIANCE FOR JUSTICE, NATIONAL
CONSUMER LAW CENTER, NATIONAL VETERANS
LEGAL SERVICES PROGRAM. (Attachments: # 1 Exhibit A,
# 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6
Exhibit F)(Gupta, Deepak) (Entered: 01/20/2017)

01/24/2017

32

ORDER granting 8 Plaintiffs' Motion to Certify Class for the
reasons stated in the accompanying Memorandum Opinion. See
Order for details. Signed by Judge Ellen S. Huvelle on January
24, 2017. (lcesh2) (Entered: 01/24/2017)

01/24/2017

33

MEMORANDUM OPINION in support of 32 Order Granting 8
Plaintiffs' Motion to Certify Class. Signed by Judge Ellen S.
Huvelle on January 24, 2017. (lcesh2) (Entered: 01/24/2017)

01/24/2017

34

SCHEDULING ORDER: See Order for deadlines and details.
Signed by Judge Ellen S. Huvelle on January 24, 2017. (lcesh2)
(Entered: 01/24/2017)

02/14/2017

35

TRANSCRIPT OF PROCEEDINGS before Judge Ellen S.
Huvelle held on 1−18−17; Page Numbers: (1−29). Date of
Issuance:1−29−17. Court Reporter/Transcriber Scott Wallace,
Telephone number 202−354−3196, Transcripts may be ordered
by submitting the <a
href="http://www.dcd.uscourts.gov/node/110">Transcript
Order Form</a><P></P><P></P>For the first 90 days after
this filing date, the transcript may be viewed at the courthouse
at a public terminal or purchased from the court reporter

12

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 13 of 32

referenced above. After 90 days, the transcript may be accessed
via PACER. Other transcript formats, (multi−page, condensed,
CD or ASCII) may be purchased from the court
reporter.<P>NOTICE RE REDACTION OF
TRANSCRIPTS: The parties have twenty−one days to file
with the court and the court reporter any request to redact
personal identifiers from this transcript. If no such requests are
filed, the transcript will be made available to the public via
PACER without redaction after 90 days. The policy, which
includes the five personal identifiers specifically covered, is
located on our website at www.dcd.uscourts.gov.<P></P>
Redaction Request due 3/7/2017. Redacted Transcript Deadline
set for 3/17/2017. Release of Transcript Restriction set for
5/15/2017.(Wallace, Scott) (Entered: 02/14/2017)
02/21/2017

36

NOTICE of Appearance by Brian J. Field on behalf of All
Defendants (Field, Brian) (Entered: 02/21/2017)

02/23/2017

37

Unopposed MOTION For Approval of Plan of Class Notice by
ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW
CENTER, NATIONAL VETERANS LEGAL SERVICES
PROGRAM (Attachments: # 1 Exhibit 1 − Email Notice, # 2
Exhibit 2 − Postcard Notice, # 3 Exhibit 2 − Website Notice, #
4 Text of Proposed Order)(Narwold, William) (Entered:
02/23/2017)

02/28/2017

38

RESPONSE re 37 Unopposed MOTION For Approval of Plan
of Class Notice filed by UNITED STATES OF AMERICA.
(Nebeker, William) (Entered: 02/28/2017)

03/31/2017

39

NOTICE of Joint Filing of Proposed Order by ALLIANCE
FOR JUSTICE, NATIONAL CONSUMER LAW CENTER,
NATIONAL VETERANS LEGAL SERVICES PROGRAM re
37 Unopposed MOTION For Approval of Plan of Class Notice
(Attachments: # 1 Text of Proposed Order)(Narwold, William)
(Entered: 03/31/2017)

03/31/2017

40

Consent MOTION for Protective Order by ALLIANCE FOR
JUSTICE, NATIONAL CONSUMER LAW CENTER,
NATIONAL VETERANS LEGAL SERVICES PROGRAM
(Attachments: # 1 Text of Proposed Order)(Narwold, William)
(Entered: 03/31/2017)

04/03/2017

41

STIPULATED PROTECTIVE ORDER granting 40 Motion for
Protective Order. Signed by Judge Ellen S. Huvelle on April 3,
2017. (lcesh2) (Entered: 04/03/2017)

04/13/2017

42

Unopposed MOTION for Approval of Revised Plan of Class
Notice and Class Notice Documents by ALLIANCE FOR
JUSTICE, NATIONAL CONSUMER LAW CENTER,
NATIONAL VETERANS LEGAL SERVICES PROGRAM
(Attachments: # 1 Exhibit 1 − Email Notice, # 2 Exhibit 1−A −
BLACKLINE Email Notice, # 3 Exhibit 2 − Postcard Notice, #
4 Exhibit 2−A − BLACKLINE Postcard Notice, # 5 Exhibit 3 −

13

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 14 of 32

Website Notice, # 6 Exhibit 3−A − BLACKLINE Website
Notice, # 7 Exhibit 4 − Online Exclusion, # 8 Exhibit 5 −
Printable Exclusion, # 9 Exhibit 6 − Proposed Order, # 10
Exhibit 6−A − BLACKLINE Proposed Order)(Narwold,
William) (Entered: 04/13/2017)
04/14/2017

43

NOTICE of Filing of Revised Notice Documents by
ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW
CENTER, NATIONAL VETERANS LEGAL SERVICES
PROGRAM (Attachments: # 1 Exhibit 1 Revised Email Notice,
# 2 Exhibit 1A Revised and Blacklined Email Notice, # 3
Exhibit 2 Revised Postcard Notice, # 4 Exhibit 2A Revised and
Blacklined Postcard Notice)(Narwold, William) (Entered:
04/14/2017)

04/17/2017

44

ORDER granting 42 Plaintiffs' Unopposed Motion for
Approval of Revised Plan of Class Notice and Class Notice
Documents: See Order for details. Signed by Judge Ellen S.
Huvelle on April 17, 2017. (lcesh2) (Entered: 04/17/2017)

04/17/2017

MINUTE ORDER finding as moot 37 Motion for Approval of
Class Notice in light of approval of 42 Motion for Approval of
Revised Class Notice. Signed by Judge Ellen S. Huvelle on
April 17, 2017. (AG) (Entered: 04/17/2017)

05/22/2017

45

NOTICE to Exclude by ROSEMARIE HOWELL re 44
ORDER granting 42 Plaintiffs' Unopposed Motion for
Approval of Revised Plan of Class Notice and Class Notice
Documents (jf) (Entered: 05/24/2017)

06/15/2017

46

MOTION for Order for Exclusion by ROB RAWSON. "Let
this be filed" signed by Judge Ellen Segal Huvelle on
06/09/2017 (jf) Modified event title on 6/16/2017 (znmw).
(Entered: 06/15/2017)

06/15/2017

MINUTE ORDER: It is hereby ORDERED that the Clerk shall
mail a copy of 46 NOTICE of and MOTION For An Order For
Exclusion filed by ROB RAWSON to the PACER Fees Class
Action Administrator, P.O. Box 43434, Providence, RI
02940−3434. Signed by Judge Ellen S. Huvelle on June 15,
2017. (lcesh2) (Entered: 06/15/2017)

07/05/2017

47

NOTICE of Change of Address by Deepak Gupta (Gupta,
Deepak) (Entered: 07/05/2017)

07/05/2017

48

Unopposed MOTION for Extension of Time to File Motion for
Summary Judgment by ALLIANCE FOR JUSTICE,
NATIONAL CONSUMER LAW CENTER, NATIONAL
VETERANS LEGAL SERVICES PROGRAM (Attachments: #
1 Text of Proposed Order)(Gupta, Deepak) (Entered:
07/05/2017)

07/05/2017

MINUTE ORDER granting 48 Unopposed Motion for
Extension of Time to File Motion for Summary Judgment:
Upon consideration of the plaintiffs' unopposed motion to

14

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 15 of 32

extend the briefing schedule, it is hereby ORDERED that the
motion is GRANTED; and it is FURTHER ORDERED that the
time within which the plaintiffs may file their motion for
summary judgment solely on the issue of liability, i.e., whether
the fees charged to access records through PACER violate the
E−Government Act of 2002, Pub. L. No. 107−347, § 205(e),
116 Stat. 2899, 2915 (Dec. 17, 2002) (28 U.S.C. § 1913 note),
is extended through August 28, 2017; and it is FURTHER
ORDERED that the defendant shall file its opposition 20 days
after this date, on September 18, 2017, and the plaintiffs' reply
is due 10 days after that, on September 28, 2017, consistent
with this Courts scheduling order entered on January 24, 2017.
Signed by Judge Ellen S. Huvelle on July 5, 2017. (AG)
(Entered: 07/05/2017)
07/07/2017

Set/Reset Deadlines: Plaintiff's Summary Judgment motion due
by 8/28/2017. Response to Motion for Summary Judgment due
by 9/18/2017. Plaintiff's Reply in support of Motion for
Summary Judgment due by 9/28/2017. (hs) (Entered:
07/07/2017)

07/17/2017

49

MOTION for Leave to File Amicus Curiae, MOTION to
Appear by Phone, by DON KOZICH (Attachments: # 1 Exhibit
Application to Proceed In Forma Pauperis)(jf) Modified text on
7/19/2017 (znmw). (Entered: 07/18/2017)

07/19/2017

50

SUPPLEMENT re 45 NOTICE to Exclude by ROSEMARIE
HOWELL re 44 ORDER granting 42 Plaintiffs' Unopposed
Motion for Approval of Revised Plan of Class Notice and Class
Notice Documents filed by ROSEMARIE HOWELL. (jf)
(Entered: 07/19/2017)

08/24/2017

51

NOTICE of Change of Address by Elizabeth S. Smith (Smith,
Elizabeth) (Entered: 08/24/2017)

08/28/2017

52

MOTION for Summary Judgment as to Liability by
ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW
CENTER, NATIONAL VETERANS LEGAL SERVICES
PROGRAM (Attachments: # 1 Declaration Declaration of
Jonathan Taylor, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, #
4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit
E, # 7 Exhibit Exhibit F, # 8 Exhibit Exhibit G, # 9 Exhibit
Exhibit H, # 10 Exhibit Exhibit I, # 11 Exhibit Exhibit J, # 12
Exhibit Exhibit K, # 13 Exhibit Exhibit L, # 14 Exhibit Exhibit
M, # 15 Declaration Declaration of Thomas Lee and Michael
Lissner, # 16 Statement of Facts Plaintiffs' Statement of
Undisputed Material Facts)(Gupta, Deepak) (Entered:
08/28/2017)

09/05/2017

53

MOTION for Leave to File Amicus Curiae Brief by
REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2
Proposed Order, # 3 Certificate of Corporate
Disclosure)(Brown, Bruce) (Entered: 09/05/2017)

15

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 16 of 32

09/05/2017

54

NOTICE of Appearance by Sasha Samberg−Champion on
behalf of AMERICAN ASSOCIATION OF LAW LIBRARIES
(Samberg−Champion, Sasha) (Entered: 09/05/2017)

09/05/2017

55

MOTION for Leave to File Brief Amici Curiae by AMERICAN
ASSOCIATION OF LAW LIBRARIES (Attachments: # 1
Proposed Brief, # 2 Text of Proposed
Order)(Samberg−Champion, Sasha) (Entered: 09/05/2017)

09/05/2017

56

MOTION for Leave to File Amicus Curiae Brief by JOSEPH I.
LIEBERMAN (Attachments: # 1 Exhibit Proposed Amicus
Brief, # 2 Text of Proposed Order)(Bailen, Mark) (Entered:
09/05/2017)

09/13/2017

57

MOTION for Extension of Time to File Response/Reply by
UNITED STATES OF AMERICA (Field, Brian) (Entered:
09/13/2017)

09/13/2017

MINUTE ORDER granting 53 55 56 Movants' Motions for
Leave to File Briefs as Amicus Curiae: Upon consideration of
the above−referenced motions, plaintiffs' consent and
defendant's representation that it will not oppose, it is hereby
ORDERED that the motions are GRANTED and movants are
granted leave to file briefs as amicus curiae. Signed by Judge
Ellen S. Huvelle on September 13, 2017. (AG) (Entered:
09/13/2017)

09/13/2017

58

RESPONSE re 57 MOTION for Extension of Time to File
Response/Reply filed by ALLIANCE FOR JUSTICE,
NATIONAL CONSUMER LAW CENTER, NATIONAL
VETERANS LEGAL SERVICES PROGRAM. (Gupta,
Deepak) (Entered: 09/13/2017)

09/13/2017

59

AMICUS BRIEF by REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS, AMERICAN SOCIETY OF
NEWSPAPER EDITORS, ASSOCIATED PRESS MEDIA
EDITORS, ASSOCIATION OF ALTERNATIVE NEWS
MEDIA, CENTER FOR INVESTIGATIVE REPORTING,
FIRST AMENDMENT COALITION, FIRST LOOK MEDIA
WORKS, INC., INTERNATIONAL DOCUMENTARY
ASSOCIATION, INVESTIGATIVE REPORTING
WORKSHOP, MEDIA CONSORTIUM, MPA, NATIONAL
PRESS PHOTOGRAPHERS ASSOCIATION, ONLINE
NEWS ASSOCIATION, RADIO TELEVISION DIGITAL
NEWS ASSOCIATION, REPORTERS WITHOUT
BORDERS, SEATTLE TIMES COMPANY, SOCIETY OF
PROFESSIONAL JOURNALISTS, TULLY CENTER FOR
FREE SPEECH. (znmw) (Entered: 09/14/2017)

09/13/2017

60

LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate
Affiliations and Financial Interests by AMERICAN SOCIETY
OF NEWSPAPER EDITORS, ASSOCIATED PRESS MEDIA
EDITORS, ASSOCIATION OF ALTERNATIVE NEWS
MEDIA, CENTER FOR INVESTIGATIVE REPORTING,

16

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 17 of 32

FIRST AMENDMENT COALITION, FIRST LOOK MEDIA
WORKS, INC., INTERNATIONAL DOCUMENTARY
ASSOCIATION, INVESTIGATIVE REPORTING
WORKSHOP, MEDIA CONSORTIUM, MPA, NATIONAL
PRESS PHOTOGRAPHERS ASSOCIATION, ONLINE
NEWS ASSOCIATION, RADIO TELEVISION DIGITAL
NEWS ASSOCIATION, REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS, REPORTERS WITHOUT
BORDERS, SEATTLE TIMES COMPANY, SOCIETY OF
PROFESSIONAL JOURNALISTS, TULLY CENTER FOR
FREE SPEECH identifying Other Affiliate SYRACUSE
UNIVERSITY for TULLY CENTER FOR FREE SPEECH;
Other Affiliate AMERICAN UNIVERSITY SCHOOL OF
COMMUNICATION for INVESTIGATIVE REPORTING
WORKSHOP; Corporate Parent MCCLATCHY COMPANY
for SEATTLE TIMES COMPANY. (znmw) (Entered:
09/14/2017)
09/13/2017

61

AMICUS BRIEF by AMERICAN ASSOCIATION OF LAW
LIBRARIES, DEBORAH BEIM, THOMAS BRUCE,
PHILLIP MALONE, JONATHAN ZITTRAIN. (znmw)
(Entered: 09/14/2017)

09/13/2017

62

LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate
Affiliations and Financial Interests by AMERICAN
ASSOCIATION OF LAW LIBRARIES. (See Docket Entry 61
to view document). (znmw) (Entered: 09/14/2017)

09/13/2017

63

AMICUS BRIEF by JOSEPH I. LIEBERMAN, DARRELL
ISSA. (znmw) (Entered: 09/14/2017)

09/14/2017

MINUTE ORDER granting in part and denying in part 57
defendant's Motion for Extension of Time to File Response re
52 plaintiffs' MOTION for Summary Judgment as to Liability:
Upon consideration of defendant's motion, plaintiff's partial
consent and partial opposition thereto, and the entire record
herein, it is hereby ORDERED that the motion is GRANTED;
and it is further ORDERED that defendant shall have until
November 2, 2017, to file its response to plaintiffs' motion for
summary judgment; and it is further ORDERED that plaintiffs
reply is due by November 13, 2017. Signed by Judge Ellen S.
Huvelle on September 14, 2017. (AG) (Entered: 09/14/2017)

09/25/2017

64

Verified MOTION For Free Access To Pacer by DON
KOZICH (jf) (Entered: 09/27/2017)

09/29/2017

65

RESPONSE re 64 MOTION For Free Access To Pacer filed by
ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW
CENTER, NATIONAL VETERANS LEGAL SERVICES
PROGRAM. (Gupta, Deepak) (Entered: 09/29/2017)

10/02/2017

66

ORDER DENYING as moot 64 Motion for Free Access to
PACER Until Final Disposition of this Case. Signed by Judge
Ellen S. Huvelle on October 2, 2017. (lcesh2,) (Entered:

17

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 18 of 32

10/02/2017)
10/10/2017

67

MOTION to Clarify Minute Order dated 09/13/2017 by DON
KOZICH (jf) (Entered: 10/13/2017)

10/17/2017

68

ORDER denying 49 Motion for Leave to File Amicus Brief and
to Appear Telephonically; denying as moot 67 Motion to
Clarify: see Order for details. Signed by Judge Ellen S. Huvelle
on October 17, 2017. (lcesh2) (Entered: 10/17/2017)

10/30/2017

69

Unopposed MOTION for Extension of Time to File
Response/Reply as to 52 MOTION for Summary Judgment as
to Liability by UNITED STATES OF AMERICA
(Attachments: # 1 Text of Proposed Order)(Nebeker, William)
(Entered: 10/30/2017)

10/30/2017

72

STRIKEN PURSUANT TO MINUTE ORDER FILED ON
11/9/17.....Verified MOTION with Briefing by ROSEMARIE
HOWELL (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3
Appendix 3)(jf) Modified on 11/12/2017 (zgdf). (Entered:
11/08/2017)

10/31/2017

MINUTE ORDER granting 69 Unopposed Motion for
Extension of Time to File Response re 52 MOTION for
Summary Judgment as to Liability: Upon Consideration of the
Unopposed Motion For An Enlargement Of Time,
AndMemorandum In Support Thereof in response thereto, and
for the reasons set forth in support thereof, it is hereby
ORDERED that the motion should be and is hereby
GRANTED; and it is FURTHER ORDERED that Defendant
file its opposition to Plaintiff's Motion For Summary Judgment
As To Liability (ECF No. 52 ) on or before November 17,
2017; and it is FURTHER ORDERED that Plaintiffs may
respond to Defendant's filing on or before December 5, 2017.
Signed by Judge Ellen S. Huvelle on October 31, 2017. (AG)
(Entered: 10/31/2017)

10/31/2017

70

MOTION for Reconsideration re 68 Order on Motion for
Miscellaneous Relief, Order on Motion for Leave to File, Order
on Motion to Clarify by DON KOZICH (Attachments: # 1
Exhibit)(jf) (Entered: 11/01/2017)

11/06/2017

71

ORDER denying 70 Motion for Reconsideration of October 17,
2017 Order Denying Petitioners Motion for Clarification of
September 13, 2017 Order and Denying Petitioners Motion to
File Amicus Curiae; and granting Movant access to documents
filed in this case. See Order for details. Signed by Judge Ellen
S. Huvelle on November 6, 2017. (lcesh2) (Entered:
11/06/2017)

11/09/2017

MINUTE ORDER: It is hereby ORDERED that Rosemarie
Howell's Verified Motion with Briefing 72 is STRICKEN from
the docket as filed without leave of Court; it is further
ORDERED that leave to file is denied because Rosemarie
Howell has opted out of the class, see ECF 45; and it is further

18

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 19 of 32

ORDERED that the Clerk shall return the motion to Rosemarie
Howell, along with a copy of this Minute Order. Signed by
Judge Ellen S. Huvelle on November 9, 2017. (lcesh2)
(Entered: 11/09/2017)
11/17/2017

73

Cross MOTION for Summary Judgment by UNITED STATES
OF AMERICA (Attachments: # 1 Memorandum in Support, # 2
Declaration Decl. of W. Skidgel, # 3 Statement of Facts, # 4
Text of Proposed Order)(Field, Brian) (Entered: 11/17/2017)

11/17/2017

74

Memorandum in opposition to re 52 MOTION for Summary
Judgment as to Liability filed by UNITED STATES OF
AMERICA. (Attachments: # 1 Memorandum in Support, # 2
Declaration Decl. of W. Skidgel, # 3 Statement of Facts, # 4
Text of Proposed Order)(Field, Brian) (Entered: 11/17/2017)

12/05/2017

75

REPLY to opposition to motion re 52 MOTION for Summary
Judgment as to Liability, filed by ALLIANCE FOR JUSTICE,
NATIONAL CONSUMER LAW CENTER, NATIONAL
VETERANS LEGAL SERVICES PROGRAM. (Attachments:
# 1 Statement of Facts Response to Defendant's Statement of
Facts)(Gupta, Deepak) Modified to remove link on 12/6/2017
(znmw). (Entered: 12/05/2017)

12/05/2017

76

Memorandum in opposition to re 73 Cross MOTION for
Summary Judgment filed by ALLIANCE FOR JUSTICE,
NATIONAL CONSUMER LAW CENTER, NATIONAL
VETERANS LEGAL SERVICES PROGRAM. (See Docket
Entry 75 to view document). (znmw) (Entered: 12/06/2017)

12/08/2017

77

MOTION for Extension of Time to File Response/Reply as to
73 Cross MOTION for Summary Judgment by UNITED
STATES OF AMERICA (Field, Brian) (Entered: 12/08/2017)

12/08/2017

MINUTE ORDER granting in part and denying in part 77
defendant's opposed Motion for Extension of Time to File
Reply re 73 Cross Motion for Summary Judgment: Upon
consideration of the above−referenced motion, and the entire
record herein, it is hereby ORDERED that the motion is
GRANTED IN PART AND DENIED IN PART; and it is
further ORDERED that defendant shall have until January 5,
2018, to file its reply in support of its cross−motion for
summary judgment. Signed by Judge Ellen S. Huvelle on
December 8, 2017. (lcesh2) (Entered: 12/08/2017)

12/12/2017

78

LEAVE TO FILE DENIED− Declaration of Amended Service.
This document is unavailable as the Court denied its filing.
"Leave To File Denied" Signed by Judge Ellen S. Huvelle on
12/12/2017. (jf) (Entered: 12/15/2017)

01/05/2018

79

REPLY to opposition to motion re 73 Cross MOTION for
Summary Judgment filed by UNITED STATES OF
AMERICA. (Field, Brian) (Entered: 01/05/2018)

02/27/2018

19

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 20 of 32

MINUTE ORDER Setting Hearing on Motions: It is hereby
ORDERED that a hearing on 52 plaintiffs' MOTION for
Summary Judgment as to Liability and 73 defendant's Cross
MOTION for Summary Judgment is set for Monday, March 19,
2017, at 11:00 a.m. in Courtroom 23A before Judge Ellen S.
Huvelle. Signed by Judge Ellen S. Huvelle on February 27,
2018. (AG) (Entered: 02/27/2018)
03/01/2018

80

03/02/2018

Consent MOTION to Continue Motions Hearing by UNITED
STATES OF AMERICA (Field, Brian) (Entered: 03/01/2018)
MINUTE ORDER granting in part and denying in part 80
Consent Motion to Continue: Upon consideration of the
Consent Motion to Continue, it is hereby ORDERED that the
motion is granted in part and denied in part; and it is further
ORDERED that the Summary Judgment Motions Hearing
presently set for 3/19/2018 is CONTINUED TO 3/21/2018 at
11:00 AM in Courtroom 23A. Signed by Judge Ellen S.
Huvelle on March 2, 2018. (AG) (Entered: 03/02/2018)

03/15/2018

81

NOTICE Of Filing by UNITED STATES OF AMERICA re 52
MOTION for Summary Judgment as to Liability, Order Setting
Hearing on Motion, 73 Cross MOTION for Summary Judgment
(Attachments: # 1 Exhibit Tabs 1 through 40)(Nebeker,
William) (Entered: 03/15/2018)

03/21/2018

82

Unopposed MOTION for Leave to Appear Pro Hac Vice
:Attorney Name− Meghan Oliver, :Firm− Motley Rice LLC,
:Address− 28 Bridgeside Blvd, Mt. Pleasant, SC 29464. Phone
No. − 843−216−9492. Fax No. − 843−216−9430 Filing fee $
100, receipt number 0090−5382765. Fee Status: Fee Paid. by
ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW
CENTER, NATIONAL VETERANS LEGAL SERVICES
PROGRAM (Attachments: # 1 Declaration Declaration of
Meghan Oliver, # 2 Text of Proposed Order Proposed
Order)(Smith, Elizabeth) (Entered: 03/21/2018)

03/21/2018

MINUTE ORDER: It is hereby ORDERED that the hearing on
plaintiffs' MOTION for Summary Judgment as to Liability and
defendant's Cross MOTION for Summary Judgment is
CONTINUED from Wednesday, March 21, 2018, to Friday,
March 23, 2018, at 1:30 p.m. in Courtroom 23A before Judge
Ellen S. Huvelle. Signed by Judge Ellen S. Huvelle on March
21, 2018. (AG) (Entered: 03/21/2018)

03/21/2018

MINUTE ORDER granting 82 Unopposed Motion for Leave to
Appear Pro Hac Vice: Upon consideration of the
above−referenced motion, it is hereby ORDERED that the
motion is GRANTED; and it is further ORDERED that
Meghan Oliver is admitted pro hac vice for the purpose of
appearing in the above−captioned case. Signed by Judge Ellen
S. Huvelle on March 21, 2018. (AG) (Entered: 03/21/2018)

03/21/2018

83

20

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 21 of 32

Unopposed MOTION for Leave to Appear Pro Hac Vice
:Attorney Name− Jonathan Taylor, :Firm− Gupta Wessler
PLLC, :Address− [e-mail]. Phone No. −
2028881741. Fax No. − 2028887792 Address: 1900 L Street
NW, Suite 312, Washington DC 20036 Filing fee $ 100, receipt
number 0090−5383035. Fee Status: Fee Paid. by ALLIANCE
FOR JUSTICE, NATIONAL CONSUMER LAW CENTER,
NATIONAL VETERANS LEGAL SERVICES PROGRAM
(Attachments: # 1 Declaration of Jonathan Taylor, # 2 Text of
Proposed Order)(Gupta, Deepak) (Entered: 03/21/2018)
03/21/2018

MINUTE ORDER granting 83 Unopposed Motion for Leave to
Appear Pro Hac Vice: Upon consideration of the Unopposed
MOTION for Leave to Appear Pro Hac Vice, it is hereby
ORDERED that the motion is GRANTED; and it is further
ORDERED that Jonathan Taylor is admitted pro hac vice for
the purpose of appearing in proceedings in the above−captioned
case. Counsel is reminded that pursuant to LCvR 83.2(c)(2)
"An attorney who engages in the practice of law from an office
located in the District of Columbia must be a member of the
District of Columbia Bar and the Bar of this Court to file papers
in this Court." Signed by Judge Ellen S. Huvelle on March 21,
2018. (AG) (Entered: 03/21/2018)

03/22/2018

Set/Reset Hearings: Motion Hearing set for 3/23/2018 at 1:30
PM in Courtroom 23A before Judge Ellen S. Huvelle. (gdf)
(Entered: 03/22/2018)

03/23/2018

Minute Entry; for proceedings held before Judge Ellen S.
Huvelle: Oral Arguments held on 3/23/2018. Plaintiffs' 52
MOTION for Summary Judgment as to Liability and
Defendant's 73 Cross MOTION for Summary Judgment; heard
and Taken Under Advisement. (Court Reporter Lisa Griffith)
(hs) (Entered: 03/23/2018)

03/24/2018

84

NOTICE by UNITED STATES OF AMERICA (Attachments:
# 1 Exhibit Ex. A, # 2 Exhibit Ex. B, # 3 Exhibit Ex. C, # 4
Exhibit Ex. D, # 5 Exhibit Ex. E, # 6 Exhibit Ex. F, # 7 Exhibit
Ex. G)(Field, Brian) (Entered: 03/24/2018)

03/28/2018

85

RESPONSE to Defendant's supplemental authority by
ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW
CENTER, NATIONAL VETERANS LEGAL SERVICES
PROGRAM re 84 Notice (Other) (Gupta, Deepak) Modified
event title on 3/29/2018 (znmw). (Entered: 03/28/2018)

03/29/2018

86

RESPONSE re 85 Notice (Other) filed by UNITED STATES
OF AMERICA. (Field, Brian) (Entered: 03/29/2018)

03/29/2018

87

REPLY re 86 Response to Document filed by ALLIANCE
FOR JUSTICE, NATIONAL CONSUMER LAW CENTER,
NATIONAL VETERANS LEGAL SERVICES PROGRAM.
(Gupta, Deepak) (Entered: 03/29/2018)

03/31/2018

88

21

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 22 of 32

ORDER denying 52 plaintiffs' Motion for Summary Judgment;
granting in part and denying in part 73 defendant's Motion for
Summary Judgment; and setting Status Conference for
4/18/2018 at 03:00 PM in Courtroom 23A. Joint status report
due by April 16, 2018. Signed by Judge Ellen S. Huvelle on
March 31, 2018. (AG) (Entered: 03/31/2018)
03/31/2018

89

MEMORANDUM OPINION accompanying Order, ECF No.
88 , denying 52 plaintiffs' Motion for Summary Judgment and
granting in part and denying in part defendant's Cross−Motion
for Summary Judgment. Signed by Judge Ellen S. Huvelle on
March 31, 2018. (AG) Modified on 4/2/2018 to remove
attachment. Attachment docketed separately for opinion posting
purposes.(ztnr) (Entered: 03/31/2018)

03/31/2018

90

ATTACHMENT to 89 Memorandum & Opinion Signed by
Judge Ellen S. Huvelle on March 31, 2018. (ztnr) (Entered:
04/02/2018)

04/02/2018
04/16/2018

Set/Reset Deadlines: Joint Status Report due by 4/16/2018.
(gdf) (Entered: 04/02/2018)
91

04/18/2018

Joint STATUS REPORT Proposing a Schedule to Govern
Further Proceedings by ALLIANCE FOR JUSTICE,
NATIONAL CONSUMER LAW CENTER, NATIONAL
VETERANS LEGAL SERVICES PROGRAM. (Narwold,
William) (Entered: 04/16/2018)
Minute Entry for proceedings held before Judge Ellen S.
Huvelle: Status Conference held on 4/18/2018. Status Report
due by 5/11/2018. Status Conference set for 5/18/2018 at 1:30
PM in Courtroom 23A before Judge Ellen S. Huvelle. (Court
Reporter Lisa Griffith) (gdf) (Entered: 04/18/2018)

04/18/2018

92

ORDER setting Status Conference for May 18, 2018, at 1:30
p.m. in Courtroom 23A. Joint Status Report due by May 11,
2018. See order for details. Signed by Judge Ellen S. Huvelle
on April 18, 2018. (AG) (Entered: 04/18/2018)

04/26/2018

93

MOTION for Extension of Time to File Status Report,
MOTION to Continue Status Conference by UNITED STATES
OF AMERICA (Attachments: # 1 Exhibit, # 2 Text of Proposed
Order)(Field, Brian) (Entered: 04/26/2018)

04/27/2018

MINUTE ORDER denying 93 Motion for Extension of Time to
file Status Report; granting in part and denying in part 93
Motion to Continue Status Conference: Upon consideration of
defendant's motion, plaintiffs' opposition thereto, and the entire
record herein, it is hereby ORDERED that defendant's motion
for an extension of time to file a status report is DENIED; and
it is further ORDERED that defendant's motion to continue the
Status Conference presently set for May 18, 2018, is
GRANTED IN PART AND DENIED IN PART; and it is
further ORDERED that the Status Conference presently
scheduled for May 18, 2018, is RESCHEDULED to May 17,

22

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 23 of 32

2018, at 11:00 a.m. in Courtroom 23A. Signed by Judge Ellen
S. Huvelle on April 27, 2018. (AG) (Entered: 04/27/2018)
05/11/2018

94

Joint STATUS REPORT by UNITED STATES OF
AMERICA. (Field, Brian) (Entered: 05/11/2018)

05/17/2018

95

TRANSCRIPT OF PROCEEDINGS before Judge Ellen S.
Huvelle held on 3−23−18; Page Numbers: 1−121. Date of
Issuance:5−17−18. Court Reporter/Transcriber Lisa Griffith,
Telephone number (202) 354−3247, Transcripts may be
ordered by submitting the <a
href="http://www.dcd.uscourts.gov/node/110">Transcript
Order Form</a><P></P><P></P>For the first 90 days after
this filing date, the transcript may be viewed at the courthouse
at a public terminal or purchased from the court reporter
referenced above. After 90 days, the transcript may be accessed
via PACER. Other transcript formats, (multi−page, condensed,
CD or ASCII) may be purchased from the court
reporter.<P>NOTICE RE REDACTION OF
TRANSCRIPTS: The parties have twenty−one days to file
with the court and the court reporter any request to redact
personal identifiers from this transcript. If no such requests are
filed, the transcript will be made available to the public via
PACER without redaction after 90 days. The policy, which
includes the five personal identifiers specifically covered, is
located on our website at www.dcd.uscourts.gov.<P></P>
Redaction Request due 6/7/2018. Redacted Transcript Deadline
set for 6/17/2018. Release of Transcript Restriction set for
8/15/2018.(Griffith, Lisa) (Entered: 05/17/2018)

05/17/2018

96

TRANSCRIPT OF PROCEEDINGS before Judge Ellen S.
Huvelle held on 4−18−18; Page Numbers: 1−38. Date of
Issuance:5−17−18. Court Reporter/Transcriber Lisa Griffith,
Telephone number (202) 354−3247, Transcripts may be
ordered by submitting the <a
href="http://www.dcd.uscourts.gov/node/110">Transcript
Order Form</a><P></P><P></P>For the first 90 days after
this filing date, the transcript may be viewed at the courthouse
at a public terminal or purchased from the court reporter
referenced above. After 90 days, the transcript may be accessed
via PACER. Other transcript formats, (multi−page, condensed,
CD or ASCII) may be purchased from the court
reporter.<P>NOTICE RE REDACTION OF
TRANSCRIPTS: The parties have twenty−one days to file
with the court and the court reporter any request to redact
personal identifiers from this transcript. If no such requests are
filed, the transcript will be made available to the public via
PACER without redaction after 90 days. The policy, which
includes the five personal identifiers specifically covered, is
located on our website at www.dcd.uscourts.gov.<P></P>
Redaction Request due 6/7/2018. Redacted Transcript Deadline
set for 6/17/2018. Release of Transcript Restriction set for
8/15/2018.(Griffith, Lisa) (Entered: 05/17/2018)

23

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 24 of 32

05/17/2018

Minute Entry for proceedings held before Judge Ellen S.
Huvelle on 5/17/18 : Status Conference held. Order to be
issued. Joint Status Report due by 7/13/18. Further Status
Conference set for 7/18/18 at 12:00 PM in Courtroom 23A
before Judge Ellen S. Huvelle. (Court Reporter: Lisa Griffith)
(kk) (Entered: 05/17/2018)

05/17/2018

97

ORDER re discovery and future proceedings. Joint Status
Report due by 7/13/2018. Status Conference set for 7/18/2018
at 12:00 PM in Courtroom 23A before Judge Ellen S. Huvelle.
See order for details. Signed by Judge Ellen S. Huvelle on May
17, 2018. (AG) (Entered: 05/17/2018)

07/13/2018

98

Joint STATUS REPORT by UNITED STATES OF
AMERICA. (Field, Brian) (Entered: 07/13/2018)

07/13/2018

99

MOTION for Certification for interlocatory appeal, MOTION
to Stay by UNITED STATES OF AMERICA (Attachments: #
1 Memorandum in Support, # 2 Text of Proposed Order)(Field,
Brian). Added MOTION to Stay on 7/17/2018 (jf). (Entered:
07/13/2018)

07/18/2018

Minute Entry for proceedings held before Judge Ellen S.
Huvelle: Status Conference held on 7/18/2018. Parties should
submit a report by the C.O.B. on Friday, 7/20/18. (Court
Reporter: Scott Wallace) (gdf) (Entered: 07/19/2018)

07/20/2018

100

NOTICE Regarding Annual Courtroom Technology
Expenditures by UNITED STATES OF AMERICA (Field,
Brian) (Entered: 07/20/2018)

07/20/2018

101

Joint STATUS REPORT by ALLIANCE FOR JUSTICE,
NATIONAL CONSUMER LAW CENTER, NATIONAL
VETERANS LEGAL SERVICES PROGRAM. (Gupta,
Deepak) (Entered: 07/20/2018)

07/27/2018

102

RESPONSE re 99 MOTION for Certification for interlocatory
appeal MOTION to Stay filed by ALLIANCE FOR JUSTICE,
NATIONAL CONSUMER LAW CENTER, NATIONAL
VETERANS LEGAL SERVICES PROGRAM. (Gupta,
Deepak) (Entered: 07/27/2018)

08/02/2018

103

REPLY to opposition to motion re 99 MOTION for
Certification for interlocatory appeal MOTION to Stay filed by
UNITED STATES OF AMERICA. (Field, Brian) (Entered:
08/02/2018)

08/13/2018

104

ORDER granting in part and denying in part 99 defendant's
Motion for to Certify Orders for Interlocutory Appeal;
amending Order filed on March 31, 2018, ECF No. 88 , to
certify for interlocutory appeal for the reasons stated in an
accompanying Memorandum Opinion, ECF No. 105 ; and
granting 99 unopposed Motion to Stay. See order for details.
Signed by Judge Ellen S. Huvelle on August 13, 2018. (AG)
(Entered: 08/13/2018)

24

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 25 of 32

08/13/2018

105

MEMORANDUM OPINION accompanying August 13, 2018
Order, ECF No. 104 , re certification of March 31, 2018 Order,
ECF No. 88 for interlocutory appeal. Signed by Judge Ellen S.
Huvelle on August 13, 2018. (AG) (Entered: 08/13/2018)

08/20/2018

106

TRANSCRIPT OF PROCEEDINGS before Judge Ellen S.
Huvelle held on 7−18−18; Page Numbers: 1−21. Date of
Issuance:7−18−18. Court Reporter/Transcriber Scott Wallace,
Telephone number 202−354−3196, Transcripts may be ordered
by submitting the <a
href="http://www.dcd.uscourts.gov/node/110">Transcript
Order Form</a><P></P><P></P>For the first 90 days after
this filing date, the transcript may be viewed at the courthouse
at a public terminal or purchased from the court reporter
referenced above. After 90 days, the transcript may be accessed
via PACER. Other transcript formats, (multi−page, condensed,
CD or ASCII) may be purchased from the court
reporter.<P>NOTICE RE REDACTION OF
TRANSCRIPTS: The parties have twenty−one days to file
with the court and the court reporter any request to redact
personal identifiers from this transcript. If no such requests are
filed, the transcript will be made available to the public via
PACER without redaction after 90 days. The policy, which
includes the five personal identifiers specifically covered, is
located on our website at www.dcd.uscourts.gov.<P></P>
Redaction Request due 9/10/2018. Redacted Transcript
Deadline set for 9/20/2018. Release of Transcript Restriction
set for 11/18/2018.(Wallace, Scott) (Entered: 08/20/2018)

08/23/2018

USCA for the Federal Circuit Case Number 18−154−CP (zrdj)
(Entered: 08/23/2018)

08/23/2018

USCA for the Federal Circuit Case Number 18−155−CP (zrdj)
(Entered: 08/23/2018)

10/16/2018

USCA for the Federal Circuit Case Number 19−1081−SJ (zrdj)
(Entered: 10/18/2018)

10/16/2018

USCA for the Federal Circuit Case Number 19−1083−SJ (zrdj)
(Entered: 10/18/2018)

11/28/2018

107

26 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). (Entered: 11/28/2018)

25

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 26 of 3
Case 1:16-cv-00745-ESH Document 107 Filed 11/28/18 Page 1 32

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
[phone]
[e-mail]

1
26

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 27 of 3
Case 1:16-cv-00745-ESH Document 107 Filed 11/28/18 Page 2 32

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: [phone]
Fax: [phone]
[e-mail]
[e-mail]
WILLIAM H. NARWOLD (D.C. Bar No. 502352)
MOTLEY RICE LLC
One Corporate Center
20 Church Street, 17th Floor
Hartford, CT 06103
[phone]
[e-mail]
Elizabeth Smith (D.C. Bar No. 994263)
MOTLEY RICE LLC
401 9th Street, NW, Suite 1001
Washington, DC 20004
[phone]
November 28, 2018

Attorneys for Plaintiffs

2
27

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 28 of 3
Case 1:16-cv-00745-ESH Document 107 Filed 11/28/18 Page 3 32

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
28

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 291of 32
Case 1:16-cv-00745-ESH Document 107-1 Filed 11/28/18 Page 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
______________________

29

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 302of 32
Case 1:16-cv-00745-ESH Document 107-1 Filed 11/28/18 Page 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.

30

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 313of 32
Case 1:16-cv-00745-ESH Document 107-1 Filed 11/28/18 Page 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

31

Case 1:16-cv-00745-ESH Document 108 Filed 11/29/18 Page 324of 32
Case 1:16-cv-00745-ESH Document 107-1 Filed 11/28/18 Page 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

32