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

Filing 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)

Case 1:16-cv-00745-ESH Document 11 Filed 06/27/16 Page 1 of 23

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES PROGRAM, et al.,

)
)
)
Plaintiffs,
)
)
v.
) Civil Action No. 16-745 ESH
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
)
______________________________)
MOTION TO DISMISS OR,
IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Defendant hereby moves, pursuant to Fed. R. Civ. P. 12(b)(1)
and (6), to dismiss this action for failure to state a claim within
this Court’s jurisdiction and under the “first-to-file” rule.

In

the alternative, Defendant moves for summary judgment in its favor,
pursuant to Fed. R. Civ. P. 56, because there is no genuine issue
as to any material fact and the Defendant is entitled to judgment
as a matter of law.
The Court is respectfully referred to the accompanying

Case 1:16-cv-00745-ESH Document 11 Filed 06/27/16 Page 2 of 23

memorandum, declarations and statement of material facts which
accompany this motion.
Respectfully submitted,

CHANNING D. PHILLIPS, DC Bar #415793
United States Attorney

DANIEL F. VAN HORN, DC Bar #924092
Chief, Civil Division

By:

/s/

W. MARK NEBEKER, DC Bar #396739
Assistant United States Attorney
555 4th Street, N.W.
Washington, DC 20530
[phone]

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Case 1:16-cv-00745-ESH Document 11 Filed 06/27/16 Page 3 of 23

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES PROGRAM, et al.,

)
)
)
Plaintiffs,
)
)
v.
) Civil Action No. 16-745 ESH
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
)
______________________________)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
This is the third recent civil action instituted as a class
action challenging the fees charged by the Administrative Office of
United States Courts (“AO”) on the theory that it has overcharged
for access to information made available through its Public Access
to Court Electronic Records (“PACER”) system.

See Complaint at 2,

fn.1; Fisher v. United States, U.S. Court of Federal Claims Case No.
1:15-cv-01575-TCW; Fisher v. Duff, Case No. C15-5944 BHS (W.D.
Wash).1
rule.

Accordingly, it should be dismissed under the first-to-file
In any event, a prerequisite to an action challenging PACER

1
On December 28, 2015, Bryndon Fisher (“Fisher”) filed a class
action complaint against the United States in the Court of Federal
Claims (“CFC Complaint”). See June 15, 2016 Order in Fisher v. Duff,
Case No. C15-5944 BHS (W.D. Wash) (Exhibit 5) at 1. In the June
15, 2016 Order, the earlier District Court action was dismissed based
upon the first-to-file rule, because the district court action was
filed after the CFC Complaint and the putative class members could
obtain relief in the Court of Federal Claims suit. Id.

Case 1:16-cv-00745-ESH Document 11 Filed 06/27/16 Page 4 of 23

fees is the requirement that the entity billed for such fees has,
within 90-days of the date of the PACER bill, alerted the PACER
Service Center to any errors in billing.
Marie Garcia.

See Declaration of Anna

Docket No. 18 in Fisher v. Duff (Exhibit 1), ¶¶ 3-4.

As Plaintiffs do not allege that they have satisfied this contractual
obligation, the action should be dismissed for failure to state a
claim.

At a minimum, the claims should be limited to those

plaintiffs who have timely but unsuccessfully attempted to resolve
the alleged overbilling by alerting the PACER Service Center, as
required.2
BACKGROUND
PACER is an electronic public access service that allows users
to obtain case and docket information online from federal appellate,
district, and bankruptcy courts, and the PACER Case Locator.
Complaint (ECF No. 1), ¶ 7-8; https://www.pacer.gov/.

See

“PACER is

provided by the Federal Judiciary in keeping with its commitment to
providing public access to court information via a centralized
service.”

Id.

To that end, PACER allows users to access Court

documents for $0.10 per page, up to a maximum charge of $3.00 per

2
Moreover, the Plaintiff class members would have to exclude
those PACER users whose downloads exceeded the $3.00 maximum download
charge sufficiently to reduce the per page charge to that deemed
acceptable to Plaintiffs.

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transaction; and PACER fees are waived if a user does not exceed $15
in a quarter.

Id. (Exhibit 4) at 2; Complaint, ¶ 73.

The terms provided to all PACER users during the registration
process include a requirement that users “must alert the PACER
Service Center to any errors in billing within 90 days of the date
of the bill.”

https://www.pacer.gov/documents/pacer_policy.pdf

(PACER Policies).

Similarly, the PACER User Manual states, “If you

think there is an error on your bill, you must submit the Credit
Request Form.
Center. . .”

Requests may also be faxed to the PACER Service
https://www.pacer.gov/documents/pacermanual.pdf

(PACER User Manual) at 5.

The Credit Request Form requires users

to “Complete this form and submit it along with a letter of
explanation in support of the credit request.”

It also requires

users to provide a “detailed explanation in support of the request
for credit,” a “list of transactions in question” and a “completed
refund request form if payment has been made on the account.”
Plaintiff does not allege that he, or any other member of the
purported class, submitted any claim to the PACER Service Center for
the overcharges he alleges in his complaint.
On December 28, 2015, Bryndon Fisher instituted a purported
class action against the United States based on allegations that he
was overcharged by the AO for downloading certain documents from

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PACER.

Docket No. 1 in Fisher v. United States, (Exhibit 2), ¶¶ 1-5,

37-45.

On May 12, 2016, Mr. Fisher filed an amended Complaint in

the case, but still pursues class action claims that he and the class
he represents (PACER users) were overcharged by the AO and that the
fees were not in compliance with the limitations placed on fees by
the Judicial Appropriations Act of 1992, Pub. L. 102–140, title III,
§ 303, 105 Stat. 810 (1991), and the E-Government Act of 2002, Pub.
L. 107–347, title II, § 205(e), 116 Stat. 2915 (2002).

Docket No.

8 (Amended Complaint) in Fisher v. United States, (Exhibit 3) ¶¶
14-16.3
Based on what Plaintiffs in the instant action allege are PACER
overcharges, Plaintiffs similarly assert class action claims for
illegal exaction, on one of the theories shared in the Fisher
litigation.

Plaintiffs here, like those in Fisher, similarly assert

that the fees charged through PACER are in excess of those authorized
by the E-Government Act of 2002 and its limitation allowing fees “only
to the extent necessary.”

Complaint, ¶¶ 11-12, 27-29, 33-34;

3
According to the Amended Complaint in Fisher v. United States,
“Congress expressly limited the AO’s ability to charge user fees for
access to electronic court information by substituting the phrase
“only to the extent necessary” in place of “shall hereafter” in the
above statute. E-Government Act of 2002, § 205(e). Exhibit 3, ¶ 16.

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Exhibit 3, ¶¶ 15, 29-41, 45(E).4

The purported class of users in

Fisher v. United States, consists of “All PACER users who, from
December 28, 2009 through present, accessed a U.S. District Court,
U.S. Bankruptcy Court, of the U.S. Court of Federal Claims and were
charged for at least one docket report in HTML format that included
a case caption containing 850 or more characters.”

Exhibit 3, ¶ 41.

In the instant action, Plaintiffs seek to certify a class of “All
individuals and entities who have paid for the use of PACER within
the past six years, excluding class counsel and agencies of the
federal government.” Complaint, ¶ 27.

Thus, the class in this action

would encompass all Plaintiffs in Fisher.
ARGUMENT
Standard Of Review
Federal courts are courts of limited jurisdiction.
They possess only that power authorized by Constitution
and statute, see Willy v. Coastal Corp., 503 U.S. 131,
136-137, 112 S.Ct. 1076, 1080, 117 L.Ed.2d 280 (1992);
Bender v. Williamsport Area School Dist., 475 U.S. 534,
541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986), which

4
Paragraph 45(E)-(F) of the Amended Complaint in Fisher v.
United States posits as an issue common to all of the purported class
members the following: Whether the AO’s conduct constituted an
illegal exaction by unnecessarily and unreasonably charging PACER
users more than the AO and the Judicial Conference authorized under
Electronic Public Access Fee Schedule and the E-Government Act of
2002; [and] Whether Plaintiff and the Class have been damaged by the
wrongs alleged and are entitled to compensatory damages.” Exhibit
3, ¶ 45(E)-(F).

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is not to be expanded by judicial decree, American Fire
& Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed.
702 (1951). It is to be presumed that a cause lies outside
this limited jurisdiction, Turner v. Bank of North America,
America, 4 U.S. (4 Dall.) 8, 11, 1 L.Ed. 718 (1799), and
the burden of establishing the contrary rests upon the party
party asserting jurisdiction, McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 182-183, 56 S.Ct. 780, 782,
80 L.Ed. 1135 (1936).
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377
(1994).
A Rule 12(b)(1) motion to dismiss for lack of jurisdiction may
be presented as a facial or factual challenge. “A facial challenge
attacks the factual allegations of the complaint that are contained
on the face of the complaint, while a factual challenge is addressed
to the underlying facts contained in the complaint.” Al-Owhali v.
Ashcroft, 279 F. Supp. 2d 13, 20 (D.D.C. 2003) (internal quotations
and citations omitted.) When defendants make a facial challenge, the
the district court must accept the allegations contained in the
complaint as true and consider the factual allegations in the light
most favorable to the non-moving party. Erby v. United States, 424
F. Supp. 2d 180, 182 (D.D.C. 2006). With respect to a factual
challenge, the district court may consider materials outside of the
pleadings to determine whether it has subject matter jurisdiction
over the claims. Jerome Stevens Pharmacy, Inc. v. FDA, 402 F.3d 1249,
1249, 1253 (D.C. Cir. 2005). The plaintiff bears the responsibility

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of establishing the factual predicates of jurisdiction by a
preponderance of evidence. Erby, 424 F. Supp. 2d at 182.
In order to survive a Rule 12(b)(6) motion, the plaintiff must
present factual allegations that are sufficiently detailed “to raise
a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). As with facial challenges to
subject-matter jurisdiction under Rule 12(b)(1), a district court
is required to deem the factual allegations in the complaint as true
and consider those allegations in the light most favorable to the
non-moving party when evaluating a motion to dismiss under Rule
12(b)(6). Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006).
However, where “a complaint pleads facts that are ‘merely consistent
with’ a defendant=s liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to relief.”’”

Ashcroft

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 557). Further, a “court considering a motion to dismiss can
choose to begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 679. While “Rule 8 marks a notable and generous
departure from the hyper-technical, code-pleading regime of a prior
era, [] it does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.” Id. at 678-79. Finally,

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Finally, as a general matter, the Court is not to consider matters
outside the pleadings, per Rule 12(b), without converting a
defendant’s motion to a motion for summary judgment. In interpreting
interpreting the scope of this limitation, however, the D.C. Circuit
has instructed that the Court may also consider “any documents either
attached to or incorporated in the complaint and matters of which
we may take judicial notice.” EEOC v. St. Francis Xavier Parochial
School, 117 F.3d 621, 624 (D.C. Cir. 1997). For example, the D.C.
Circuit has approved judicial notice of public records on file. In
re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (statements attached
to complaint that undermined inference advocated by plaintiff).
Defendant specifically asks that the Court take judicial notice of
the documents accompanying this filing. See Fed. R. Evid. 201.
Summary judgment is appropriate when, as here, the pleadings,
together with the declarations, demonstrate that “there is no genuine
issue as to any material fact and . . . the moving party is entitled
to judgment as a matter of law.” Washington Post Co. v. U.S. Dept.
of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989).
As the Supreme Court has declared, “[s]ummary judgment procedure is
properly regarded not as a disfavored procedural shortcut, but rather
as an integral part of the Federal Rules as a whole, which are designed
to secure the just, speedy and inexpensive determination of every

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action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary
Summary judgment is appropriate, under Rule 56, if the pleadings on
file, as well as the affidavits submitted, evidence that there is
no genuine issue of any material fact and that movant is entitled
to judgment as a matter of law.

Fed. R. Civ. P. 56(c); see also Mendoza

Mendoza v. Drug Enforcement Admin., 465 F.Supp.2d 5 (D.D.C. 2006).
Courts are required to view the facts and inferences in a light
most favorable to the non-moving party. See Flythe v. District of
Columbia, 791 F.3d 13, 19 (D.C. Cir. 2015)(citing Scott v. Harris,
550 U.S. 372, 383 (2007).

However, the party opposing the motion

cannot simply “rest upon the mere allegations or denials of the adverse
party’s pleading, but. . . must set forth specific facts showing that
there is a genuine issue for trial.” Mendoza, 465 F.Supp.2d at 9
(quoting Fed R. Civ. P. 56(e). A non-moving party must show more than
“that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986).
In Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992), the Court
recognized that “any factual assertions in the movants affidavits
will be accepted as being true unless [the opposing party] submits
his own affidavits or other documentary evidence contradicting the
assertion.” Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982).

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“[A] complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Since the Court is

constrained to “treat the complaint’s factual allegations as true”,
Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.
2000), the facts alleged in the Complaint “must be enough to raise
a right to relief above the speculative level.” Schuer v. Rhodes,
416 U.S. 232, 236 (1974).
Finally, where the District Court has employed the first-to-file
rule, its action has been reviewed on appeal only for abuse of
discretion. See Washington Metro. Area Transit Auth. v. Ragonese,
617 F.2d 828, 830 (D.C. Cir. 1980) (judge acted within his discretion
when he dismissed the action).
First-To-File
Where two cases between the same parties on the same cause of
action are commenced in two different Federal courts, the one which
is commenced first is to be allowed to proceed to its conclusion
first.

Food Fair Stores v. Square Deal Mkt. Co., 187 F.2d 219, 220-21

(D.C. Cir. 1951).

Relying on principles of comity, the Court of

Appeals has affirmed that a District Court acts within its discretion
when it dismisses an action under the “first-to-file rule.”
Washington Metro. Area Transit Auth. v. Ragonese, 617 F.2d at 830-31.

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Just as was the case in Fisher v. Duff, the claims here overlap
with those in the Claims court litigation.

Both cases involve

allegations that the same entities utilized the PACER system and were
charged more for downloading information than is authorized by the
same statutes and agreements.

The class here would include nearly

every class member in Fisher,5 and the Fisher litigation was filed
first, on December 28, 2015.

Accordingly, this action should be

dismissed to allow the Claims Court litigation to proceed.

See

Docket No. 25 in Fisher v. Duff (Exhibit 5); Food Fair Stores v. Square
Deal Mkt. Co., 187 F.2d at 220-21; Washington Metro. Area Transit
Auth. v. Ragonese, 617 F.2d at 830-31.
Plaintiffs Do Not Allege They Timely
Alerted The PACER Service Center
Under their agreements with the Defendant, the Plaintiffs, when
using PACER, agree that if there is an error in the user’s PACER bill,
the user “must alert the PACER Service Center to any errors in billing
within 90 days of the date of the bill.”

Exhibit 1, ¶ 3.

Essentially, the submission of claims to the PACER Service Center

5
Plaintiffs’ Motion For Class Certification recognizes that the
class would be limited to those charged within the six-year
limitations period. ECF No. 8 at 1; Complaint at 15 (limiting the
demanded monetary recovery to “the past six years that are found to
exceed the amount authorized by law”). Thus, the class would exclude
those whose PACER fees were charged before April 21, 2010. The
limitations period in Fisher v. United States would presumably go
back six years from the filing of the original complaint on December
28, 2015, an extra few months.

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is, by the plain terms of the agreement between Plaintiffs and the
Defendant, a condition precedent to any duty to refund billing
errors.

See 13 Williston on Contracts § 38:7 (4th ed.) (“A condition

precedent is either an act of a party that must be performed or a
certain event that must happen before a contractual right accrues
or a contractual duty arises.”).

Because Plaintiffs have not

alleged that this condition precedent was performed, they have not
stated a claim for relief.
As with exhaustion of statutory administrative remedies, there
are sound policy reasons to require the plaintiffs to fulfill their
contractual duty to submit any claim to the PACER Service Center.
As the Supreme Court noted in McKart v. United States, such reasons
“are not difficult to understand.”

Id., 395 U.S. 185, 193 (1969).

Since agency decisions “frequently require expertise, the agency
should be given the first chance to . . . apply that expertise.”

Id.

“And of course it is generally more efficient for the administrative
process to go forward without interruption than it is to permit the
parties to seek aid from the courts at various intermediate stages.”
Id.; see Thomson Consumer Elecs., Inc. v. United States, 247 F.3d
1210, 1214 (Fed. Cir. 2001) (citing McKart while explaining that
administrative remedies are sometimes preferable to litigation
because “courts may never have to intervene if the complaining party

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is successful in vindicating his rights” and “the agency must be given
a chance to discover and correct its own errors.”).
Here, the billing errors at issue are clearly a matter of highly
specific expertise.

If Plaintiffs would fulfil their obligations

and submit a claim for a specific alleged overcharge to the PACER
Service Center, they could engage in a dialog with those at the PACER
Service Center and allow the Defendant to exercise its expertise
regarding the workings of the PACER system and respond directly to
Plaintiffs’ concerns about the accuracy of the PACER bill.

Such a

result is required by the agreement, and would also be more efficient
than testing Plaintiff’s theories in Court.
Plaintiffs Have Not Alleged A Statutory
Remedy That Supports An Illegal Exaction Claim
In both the Tucker Act, 28 U.S.C. § 1491, and the
Little Tucker Act, 28 U.S.C. § 1346(a)(2), Congress has
waived sovereign immunity for certain actions for monetary
relief against the United States. United States v.
Mitchell, 463 U.S. 206, 212–18, 103 S.Ct. 2961, 77 L.Ed.2d
580 (1983). The pertinent portions of the Tucker Act and
the Little Tucker Act waive sovereign immunity for claims
“founded either upon the Constitution, or any Act of
Congress or any regulation of an executive department, or
upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases
not sounding in tort.” 28 U.S.C. § 1491(a)(1); id. §
1346(a)(2). The Little Tucker Act permits an action to
be brought in a district court, but only if a claim does
not exceed $10,000 in amount; the Tucker Act contains no
such monetary restriction but authorizes actions to be
brought only in the Court of Federal Claims.

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Doe v. United States, 372 F.3d 1308, 1312 (Fed. Cir. 2004).

Because

Plaintiff has relied upon the Little Tucker Act for this Court’s
jurisdiction, Complaint, ¶ 5, any review of the final judgment will
likely be in the United States Court of Appeals for the Federal
Circuit.

28 U.S.C. § 1295(a)(2).

To invoke federal court jurisdiction over an illegal exaction
claim, “a claimant must demonstrate that the statute or provision
causing the exaction itself provides, either expressly or by
‘necessary implication,’ that ‘the remedy for its violation entails
a return of money unlawfully exacted.’”

Norman v. United States,

429 F.3d 1081, 1095 (Fed. Cir. 2005) (quoting Cyprus Amax Coal Co.
v. United States, 205 F.3d 1369, 1373 (Fed. Cir. 2000)).6
Here, Plaintiffs’ illegal exaction claim fails because that
claim expressly recognizes that the liability comes only after an
agreement is reached between the PACER user and the AO.

See

Complaint, ¶ 7 (“each person must agree to pay a specific fee”).

The

obligations of those using PACER are further set forth in the PACER
User Manual and the policies and procedures promulgated by the AO,

6
Because the allegation of a proper statute or provision is
a jurisdictional issue under the Little Tucker Act, Defendant moves
to dismiss the claim under Fed. R. Civ. p. 12(b)(1). Dismissal is
also warranted under Fed. R. Civ. P. 12(b)(6), because, even if
jurisdiction is present, Plaintiffs have alleged a
statutory/regulatory framework that expressly requires his claims
to be submitted to the PACER Service Center. See Kipple v. United
States, 102 Fed. Cl. 773, 779 (2012).

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which form the basis for Plaintiffs’ claim that the user consents
‘statute or provision’ causing the exaction.

See Complaint ¶ 7-10;

Exhibit 1 (Declaration of Anna Marie Garcia), ¶¶ 2-4.

That manual

and those regulations, however, require all claims regarding billing
errors to be submitted to the PACER Service Center.

The complaint

does not allege that the plaintiff took the necessary steps to receive
a refund: submitting the requisite paperwork to the PACER Service
Center.

Accordingly, Plaintiffs have failed to allege that the

statute and associated regulations provide a remedy for the specific
exactions they allege.
Plaintiffs cite the “E-Government Act of 2002, the Electronic
Public Access Fee Schedule” as well as other policies and procedures
promulgated by the AO in the PACER User Manual to suggest that fees
adopted and charged are excessive.

See Complaint, ¶ 7-10.

They

then allege that these laws and regulations resulted in excessive
fees. See Complaint, ¶¶ 11-13, 21.7
In fact, Plaintiffs’ proposed remedy – the return of all monies
(regardless of whether claims are presented to the PACER Service
Center) – is contrary to the express terms of the governing

7
In addition, the statutory authority cited by Plaintiffs they
expressly recognize that the PACER Service Center is a part of the
regulatory framework, by including “PACER Service Center” fees as
part of the “the Electronic Public Access Program” See Complaint,
¶ 19.

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contractual requirements, namely the AO’s policies and procedures
and the PACER User Manual.

The framework in place expressly limits

the monetary remedy to those claims that are submitted to the PACER
Service Center within 90 days of the bill.

Pacer Policy (users “must

alert the PACER Service Center to any errors in billing within 90
days of the date of the bill”); Pacer User Manual at 5 (“If you think
there is an error on your bill, you must submit the Credit Request
Form.”); Exhibit 1, ¶¶ 2-4.
Plaintiffs’ claim is dependent on the inclusion of the PACER
User Manual and other AO policies and procedures, including the PACER
Policy, because the cited statutory authority states only that the
Director of the AO and the Judicial Conference may “prescribe
reasonable fees” for PACER information, 28 U.S.C. § 1913, and that
those fees are $0.10 per “page” for docket reports, not to exceed
thirty pages.

28 U.S.C. §§ 1913, 1914, 1926, 1930, 1932.

This

language, standing alone, is insufficient to create the remedy of
return of all possible claims (including those not submitted to the
AO).

See Norman, 429 F.3d at 1096 (dismissing claim where law did

not “directly result in an exaction”).
Instead, the policies and procedures of the AO are a necessary
part of the framework supporting Plaintiffs’ alleged exaction.

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Those same policies and procedures that establish the fees to
be paid, however, are fatal to Plaintiffs’ exaction claim, because
they also require claims to be submitted to the PACER Service Center
within 90 days of the date of the bill.

Accordingly, Plaintiffs’

illegal exaction claim fails.
CONCLUSION
For the foregoing reasons the Complaint should be dismissed or,
in the alternative, summary judgment should be granted in favor of
the Defendant based both on to the first-to-file rule and as to any
claim that was not presented to the PACER Service Center with alleged
errors in billing within 90 days of the date of the bill.
Respectfully submitted,

CHANNING D. PHILLIPS, DC Bar #415793
United States Attorney

DANIEL F. VAN HORN, DC Bar #924092
Chief, Civil Division

By:

/s/
W. MARK NEBEKER, DC Bar #396739
Assistant United States Attorney

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES PROGRAM, et al.,

)
)
)
Plaintiffs,
)
)
v.
) Civil Action No. 16-745 ESH
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
)
______________________________)
DEFENDANT’S STATEMENT OF MATERIAL FACTS AS
TO WHICH THERE IS NO GENUINE ISSUE
Pursuant to Local Civil Rule 7(h), the Defendant hereby provides
the following statement of material facts as to which there is no
genuine dispute:
1.

On December 28, 2015, Bryndon Fisher instituted a purported

class action against the United States based on allegations that he
was overcharged by the AO for downloading certain documents from
PACER.

Docket No. 1 in Fisher v. United States, (Exhibit 2), ¶¶ 1-5,

37-45.
2.

On May 12, 2016, Mr. Fisher filed an amended Complaint in

the case, but still pursues class action claims that he and the class
he represents (PACER users) were overcharged by the AO and that the
fees were not in compliance with the limitations placed on fees by
the Judicial Appropriations Act of 1992, Pub. L. 102–140, title III,

Case 1:16-cv-00745-ESH Document 11 Filed 06/27/16 Page 21 of 23

§ 303, 105 Stat. 810 (1991), and the E-Government Act of 2002, Pub.
L. 107–347, title II, § 205(e), 116 Stat. 2915 (2002).

Docket No.

8 (Amended Complaint) in Fisher v. United States, (Exhibit 3) ¶¶
14-16.
3.

According to the Amended Complaint in Fisher v. United

States, “Congress expressly limited the AO’s ability to charge user
fees for access to electronic court information by substituting the
phrase “only to the extent necessary” in place of “shall hereafter”
in the above statute. E-Government Act of 2002, § 205(e).

Exhibit

3, ¶ 16.
4.

The purported class of users in Fisher v. United States,

consists of “All PACER users who, from December 28, 2009 through
present, accessed a U.S. District Court, U.S. Bankruptcy Court, of
the U.S. Court of Federal Claims and were charged for at least one
docket report in HTML format that included a case caption containing
850 or more characters.”
5.

Exhibit 3, ¶ 41.

Paragraph 45(E)-(F) of the Amended Complaint in Fisher v.

United States posits as an issue common to all of the purported class
members the following: Whether the AO’s conduct constituted an
illegal exaction by unnecessarily and unreasonably charging PACER
users more than the AO and the Judicial Conference authorized under
Electronic Public Access Fee Schedule and the E-Government Act of

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Case 1:16-cv-00745-ESH Document 11 Filed 06/27/16 Page 22 of 23

2002; [and] Whether Plaintiff and the Class have been damaged by the
wrongs alleged and are entitled to compensatory damages.”

Exhibit

3, ¶ 45(E)-(F).
6.

Under their agreements with the Defendant, the Plaintiffs,

when using PACER, agree that if there is an error in the user’s PACER
bill, the user “must alert the PACER Service Center to any errors
in billing within 90 days of the date of the bill.”

Exhibit 1, ¶

3.
Respectfully submitted,

CHANNING D. PHILLIPS, DC Bar #415793
United States Attorney

DANIEL F. VAN HORN, DC Bar #924092
Chief, Civil Division

By:

/s/
W. MARK NEBEKER, DC Bar #396739
Assistant United States Attorney

-3-

Case 1:16-cv-00745-ESH Document 11 Filed 06/27/16 Page 23 of 23

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that service of the foregoing Motion To Dismiss
Or, In The Alternative, For Summary Judgment, supporting memorandum,
statement of material facts, exhibits and a proposed Order has been
made through the Court’s electronic transmission facilities on this
27th day of June, 2016.

/s/
W. MARK NEBEKER, DC Bar #396739
Assistant United States Attorney
555 4th Street, N.W.
Washington, DC 20530
[phone]
[e-mail]