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

Filing 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)

Case 1:16-cv-00745-ESH Document 13 Filed 07/25/16 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.
)
)
______________________________)
OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
INTRODUCTION
Plaintiffs have brought this suit against the United States
seeking to represent a class of “[a]ll individuals and entities
who have paid fees for the use of PACER within the past six
years, excluding class counsel and agencies of the federal
government.”

Plaintiffs’ Motion For Class Certification (“Pl.

Class Motion”) at 1.

Defendant asserts that this action

encompasses some of the claims being pursued in the Court of
Federal Claims in Fisher v. United States, U.S. Court of Federal
Claims Case No. 1:15-cv-01575-TCW (ECF No. 11-1 at 24-42), and
that any claim based on asserted PACER overcharges should be
pursued in that action.

Moreover, Plaintiffs have failed to

establish numerosity, a commonality of claims, that the claims
of the named Plaintiffs are typical of all members of the class,
that questions common to the class predominate, that they will

Case 1:16-cv-00745-ESH Document 13 Filed 07/25/16 Page 2 of 23

fairly and adequately represent the class or that this action
would be superior to other available methods to adjudicate the
controversy.

Certification should therefore be denied.

As the Court of Appeals has reiterated, such a conclusion
would be set aside only if deemed an abuse of discretion, see
Garcia v. Johanns, 444 F.3d 625, 631 (D.C. Cir. 2006) (“we
review a certification ruling conservatively only to ensure
against abuse of discretion or erroneous application of legal
criteria, and we will affirm the district court even if we would
have ruled differently in the first instance.”) (citations and
internal quotations omitted); Love v. Johanns, 439 F.3d 723,
727-28 (D.C. Cir. 2006) (D.C. Cir. Feb. 6, 2006).

This Court

would act well within its discretion in declining class
certification in this instance.
The Fisher Class-Action
In the class action pending before the Court of Federal
Claims since December 28, 2015, Bryndon Fisher alleges that he
was overcharged by the AO for downloading certain docket sheets
from 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 Fisher and the class he purports to represents (PACER
users) were overcharged by the Administrative Office of United
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States Courts (“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 (ECF No. 11-1 at 27).1
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; Exhibit 3, ¶¶ 15, 29-41,
45(E) (ECF No. 11-1 at 27, 31-34).2

The purported class of users

1

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). See ECF 11-1, ¶ 16.
2

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
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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 (ECF No. 11-1 at 33).

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
I.
PLAINTIFFS HAVE FAILED TO ESTABLISH
THAT CLASS CERTIFICATION IS APPROPRIATE
A.

The Standards for Class Certification

A litigant seeking class certification must justify the use
of a litigation device that is “an exception to the usual rule.”
General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 155
(1982) (quoting California v. Yamasaki, 442 U.S. 682, 700
(1979)).

As a threshold matter, the putative class for which

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) (ECF No. 11-1 at 34-35).
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certification is sought must meet a standard that is not
explicit in Rule 23, but is implicit in the availability of the
class action as a tool of judicial efficiency in litigation: the
proposed class must be ascertainable and manageable; i.e.,
susceptible to precise definition.

See, e.g., Lewis v. National

Football League, 146 F.R.D. 5, 8 (D.D.C. 1992) (clearly defined
class is necessary “to ensure that the class is ‘neither
amorphous, nor imprecise’”) (internal citation omitted). The
class definition “must make it ‘administratively feasible for
the court to determine whether a particular individual is a
member.’” Rodriguez v. U.S. Dept. of Treasury, 131 F.R.D. 1, 7
(D.D.C. 1990) (citing cases); see also 7A Wright & Miller, Fed.
Practice and Procedure § 1760 at 120-21 (2d ed. 1986) (citing
cases).
Plaintiffs must also demonstrate that the proposed class
satisfies each of the four requirements of Rule 23(a) of the
Federal Rules of Civil Procedure, namely, that (1) the class is
so numerous that joinder of all members is impracticable, (2)
there are questions of law or fact common to the class, (3) the
claims or defenses of the representative parties are typical of
the claims or defenses of the class, and (4) the representative
parties will fairly and adequately protect the interests of the
class.

Fed. R. Civ. P. 23(a); Love v. Johanns, 439 F.3d at 727.
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In addition, the class claims must fit within at least one of
the categories set forth in Rule 23(b).

Id. (citing Amchem

Prods., Inc. v. Windsor, 521 U.S. 591, 613–16 (1997)).

In this

case, Plaintiffs claim that their proposed class satisfies Fed.
R. Civ. P. 23(b)(1) and (3).

These provisions provide as

follows:
A class action may be maintained if Rule 23(a) is
satisfied and if:
(1) prosecuting separate actions by or against
individual class members would create a risk of:
(A) inconsistent or varying adjudications
with respect to individual class members that
would establish incompatible standards of conduct
for the party opposing the class; or
(B) adjudications with respect to individual
class members that, as a practical matter, would
be dispositive of the interests of the other
members not parties to the individual
adjudications or would substantially impair or
impede their ability to protect their interests;
* * *
(3) the court finds that the questions of law or
fact common to class members predominate over any
questions affecting only individual members, and that
a class action is superior to other available methods
for fairly and efficiently adjudicating the
controversy. The matters pertinent to these findings
include:
(A) the class members' interests in
individually controlling the prosecution or
defense of separate actions;
(B) the extent and nature of any litigation
concerning the controversy already begun by or
against class members;
(C) the desirability or undesirability of
concentrating the litigation of the claims in the
particular forum; and
(D) the likely difficulties in managing a
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class action.
Fed. R. Civ. P. 23(b).
Plaintiffs bear the burden of proof with respect to
satisfying each of the requirements of Rule 23(a) and
establishing compliance with Rule 23(b).

See In re American

Medical Sys., Inc., 75 F.3d 1069, 1086 (6th Cir. 1996)
(reversing the district court which had erroneously asked the
defendants to show why a class should not be certified);
McCarthy v. Kleindienst, 741 F.2d 1406, 1414 n.9 (D.C. Cir.
1984). “Strict adherence to those prerequisites [of Rule 23] is
necessary to avoid unfairness to the defendant and to protect
the interests of potential class members who may assert timely,
representative claims in the future.” Sperling v. Donovan, 104
F.R.D. 4, 9 (D.D.C. 1984).

Plaintiffs must establish that a

class action would “advance ‘the efficiency and economy of
litigation which is a principal purpose of the procedure.’”
Falcon, 457 U.S. at 159 (quoting American Pipe & Constr. Co. v.
Utah, 414 U.S. 538, 553 (1974)).

The Court is to undertake a

“rigorous analysis” of whether Rule 23(a) has been satisfied,
because “actual, not presumed, conformance with Rule 23(a) [is]
. . . indispensable.” Falcon, 457 U.S. at 160-61.

Further,

while an undue inquiry into the merits of the class claims is
not appropriate in adjudicating class certification, “an
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analysis of the nature of the proof which will be required at
trial is ‘directly relevant to the determination of whether the
matters in dispute are principally individual in nature or are
susceptible of proof equally applicable to all class members.’”
Rodriguez, 131 F.R.D. at 8 (internal citation omitted); see
also, e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 469
(1978) (“class determination generally involves considerations
that are ‘enmeshed in the factual and legal issues comprising
the plaintiff's cause of action’”) (internal citations omitted);
Wagner v. Taylor, 836 F.2d 578, 587 (D.C. Cir. 1987) (“some
inspection of the circumstances of the case is essential to
determine whether the prerequisites of . . . Rule 23 have been
met.

Necessarily, the Court must examine both the claims

presented and the showing in support of class certification for
their adherence to the requirements of Rule 23.”) (footnotes
omitted).

In addition, even if the requirements of Rule 23 are

satisfied, the decision of whether to certify a class is firmly
committed to the trial court’s discretion.

See Yamasaki, 442

U.S. at 703; Love v. Johanns, 439 F.3d at 727-28.
For the reasons stated herein, Plaintiffs are unable to
carry their heavy burden of showing that class certification is
appropriate.

Specifically, Plaintiffs have failed to satisfy

the requirements of Rule 23(a)(1), (3), (4) and Rule 23(b)(1) or
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(3).
B.

The Numerosity Requirement (Rule 23(a)(1))

The “numerosity” requirement of Rule 23(a) states
that the class must be “so numerous that joinder of
all members is impracticable.” Fed. R. Civ. P.
23(a)(1). “The numerosity requirement ‘imposes no
absolute limitations,’ but rather ‘requires
examination of the specific facts of each case.’ ”
[Cohen v.] Chilcott, 522 F.Supp.2d [105, 114 (D.D.C.
2007)] (quoting Gen. Telephone Co. of the Nw., Inc.
v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d
319 (1980)). “Courts in this District have generally
found that the numerosity requirement is satisfied and
that joinder is impracticable where a proposed class
has at least forty members.” Id.; see also McKinney v.
U.S. Postal Serv., 11–cv–631, 2013 WL 164283, at *5
(D.D.C. Jan. 16, 2013) (numerosity satisfied when
class would “likely exceed” 40); Smith v. Wash. Post
Co., 962 F.Supp.2d 79, 91 (D.D.C. 2013) (“Plaintiff's
complaint states a plausible claim for class-wide
relief” at approximately 60 class members); Meijer,
Inc. v. Warner Chilcott Holdings Co. III, Ltd., 246
F.R.D. 293, 307 (D.D.C. 2007) (numerosity requirement
satisfied for a class with 30 members).

Alvarez v. Keystone Plus Constr. Corp., 303 F.R.D. 152, 160
(D.D.C. 2014).
Plaintiffs have failed to establish that there exist
sufficient numbers of would-be class members who may pursue
viable claims for alleged overpayment of PACER fees, because all
PACER users agree that they will raise any concerns with their
PACER bills with the PACER Service Center within 90 days of
receiving their bills.

See Memorandum Of Points And Authorities

In Support Of Motion To Dismiss Or, In The Alternative, For
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Summary Judgment (“Def. Mem.“) (ECF No. 11) at 13-15 and Exhibit
1 (ECF No. 11-1) at 1-2; Declaration of Anna Garcia (“Garcia
Decl.”), ¶¶ 3-4 (a copy of which accompanies this memorandum).
Plaintiffs have made no effort to identify what number of
potential Plaintiffs have properly presented their claims to the
PACER Service Center as required.

Similarly, as set forth in

greater detail below, Plaintiffs are only able adequately to
represent the interests of non-profit PACER users (i.e., users
who can seek PACER fee exemptions under the current system for
assessing PACER fees), as they are unlike other users because
they have the ability to request PACER fee exemptions.

If the

exemption is granted, this would allow the named Plaintiffs to
avoid all user fees.3

This, in effect, shifts the fees to those

not eligible for a waiver of fees.

The named Plaintiffs have

made no attempt to identify the number of non-profit
organizations who would share their claims in the case and their
priorities.

Thus, Plaintiffs’ claim of numerosity fails to

satisfy Fed. R. Civ. P. 23(a)(1).
C.

Typicality of Claims/Fair and
Adequate Representation (Rule 23(a)(3)-(4))

The absence of typical claims gives rise to inadequate
3

The named Plaintiffs do not allege that they have even
tried to secure a waiver for their non-profit work. Had they
done so, they may have secured the relief they seek without the
need to pursue this litigation.
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representation because class representatives lack incentive to
pursue fully the claims of the other class members.

See Falcon,

457 U.S. at 158 n.13 (commonality and typicality tend to merge
with adequacy of representation); American Medical, 75 F.3d at
1083 (“adequate representation requirement overlaps with the
typicality requirement”).

See Garcia Decl., ¶¶ 5-6 (noting that

many PACER users do not pay fees or pay reduced fees, leaving
37% of PACER users to pay for the cost of maintenance and
operation of the system).
Plaintiffs have described themselves as “three of the
nation’s leading nonprofit legal advocacy organizations,”
concerned about “unfettered access to the courts” and ensuring
that “court records are ‘freely available to the greatest extent
possible’”

Pl. Class Motion at 3-4 (citing S. Rep. No. 107-174,

107th Cong. 2d Sess. 23 (2002).

In this way, they are unlike

other PACER users, in that they have the ability to request
PACER fee exemptions as non-profits, which would allow them to
avoid all user fees.

Garcia Decl., ¶¶ 5-6; Exhibit A4; see also

Fee Schedules adopted December 1, 2015 and December 1, 2013 (set
out in the notes to 28 U.S.C.A. § 1913).
4

The Electronic Public

Exhibit A is from a website maintained by the
Administrative Office of United States Courts, available at
https://www.pacer.gov/documents/epa_feessched.pdf. Defendant
asks that the Court take judicial notice of the document
pursuant to Fed. R. Evid. 201.
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Access (“EPA”) program at issue is completely self-funded
through the user fees.

Revenues from the fees pay for providing

and enhancing the public access system, including designing,
implementing, operating, and enhancing the Case
Management/Electronic Case Filing (“CM/ECF”) system.

When a

customer is exempt from the fees, these costs are shifted to
other fee-paying users.

That means that the named Plaintiffs’

interests in free PACER access to their groups of veterans,
elderly and low-income consumers, and other public interest
organizations of concern to the named Plaintiffs (see Pl. Class
Motion at 15-16) make them far different from those PACER users
who do not share the named Plaintiffs’ interests in seeing that
other users receive free services.

Because the interests of the

named Plaintiffs is to ensure that their constituencies receive
free PACER access and because the named Plaintiffs are eligible
to request free PACER access through the non-profit exception to
PACER fees, their interests will diverge from the interests of
all of the PACER users whose concern is simply to minimize their
costs of accessing PACER.
Plaintiffs’ claims are not typical of the class.
Plaintiffs seek to limit what services or materials PACER fees
may be expended for.

In this way, they would categorize what

items may be paid for through the amounts deposited into the
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fund established under 28 U.S.C. § 612 insofar as those amounts
come from PACER fees.

And, one presumes, the named Plaintiffs

would seek to limit the charges of PACER fees for actual pages
of information downloaded plus those costs needed to pay for the
free access for their favored groups of users.

They have not

indicated that they would be seeking to limit PACER fees to
“services rendered” to individual users who do not want to pay
for any portion of “services rendered” to others, such as those
individuals chosen by the named Plaintiffs to warrant free PACER
access.

Thus, while Plaintiffs and other PACER users may share

a desire to reduce PACER fees to a point, Plaintiffs appear
unwilling to push to reduce those fees beyond the limit that
would affect free access to their favored sub-set of PACER
users.

Indeed, if PACER fees are reduced to those able merely

to cover “services rendered” (see Pl. Class Motion at 18-19
(“The central argument is that the E-Government Act
unambiguously limits any PACER fees “charge[d] for services
rendered”. . .), then free PACER access to non-profits, such as
the named Plaintiffs themselves, would be in jeopardy.
Federal Rule of Civil Procedure 23(a)(4) requires
that a certified class have adequate representation.
This requirement involves both adequacy of the named
plaintiffs and adequacy of counsel. The requirement
is met when: (1) there is no conflict of interest
between the legal interests of the named plaintiffs
and those of the proposed class; and (2) counsel for
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the class is competent to represent the class. Twelve
John Does v. District of Columbia, 117 F.3d 571, 575
(D.C. Cir. 1997). The adequacy of representation
requirement involves a constitutional due process
dimension because of the binding effect of a final
judgment on absent class members. See Nat’l Ass’n of
Regional Med. Programs, Inc. v. Mathews, 551 F.2d 340,
345-46 (D.C. Cir. 1976).
Bame v. Dillard, No. Civil Action No. 05-1833 RMC, 2008 WL
2168393, at *7 (D.D.C. May 22, 2008).
Plaintiffs also bear the burden of showing that they can
“fairly and adequately protect the interests of the class,” as
required by Rule 23(a)(4).

See Fed. R. Civ. P. 23(a)(4).

The

adequacy of representation requirement involves a constitutional
due process dimension because of the binding effect of a final
judgment on absent class members.

National Ass'n of Regional

Medical Programs, Inc. v. Mathews, 551 F.2d 340, 345-46 (D.C.
Cir. 1976).

Accordingly, the Court should “undertake a

stringent and continuing examination of the adequacy of
representation.”

Kas v. Financial General Bankshares, Inc., 105

F.R.D. 453, 462 (D.D.C. 1984).

The two requirements for

determining the adequacy of representation: are (1) the named
plaintiffs must not have antagonistic or conflicting interests
with unnamed class members, and (2) the named plaintiffs must be
able to vigorously and competently pursue the interests of the
class through qualified counsel.

Twelve John Does v. District

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of Columbia, 117 F.3d 571, 575-76 (D.C. Cir. 1997).

As set

forth herein, the named Plaintiffs cannot satisfy these
criteria.

Their interests in free PACER access for their

favored subset of PACER users diverge from the interests of
those PACER fees seeking to minimize their costs of PACER use.
Defendant challenges the ability of the named Plaintiffs
adequately to represent the interests of those who are not nonprofit, public interest organizations, or who may not share the
goals of providing free access to a substantial number of PACER
users.
And, with respect to counsel, Defendant does not dispute
the abilities of Plaintiffs’ counsel.

However, what appears to

be a potential conflict with some clients, and the
impracticality of securing waivers from the clients, suggests
that Plaintiffs’ counsel cannot fulfill the obligations of
representing all members of the proposed class in the instant
action.

As recounted herein, the named Plaintiffs have

interests that diverge from the typical PACER user, who is
simply interested in minimizing costs.

A separate set of

counsel would be required for the profit-minded PACER users, or,
at a minimum, waivers would have to be secured for those class
members who are not non-profit organizations with similar
interests as the named Plaintiffs.
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The logistical hurdle would make it impractical for counsel
to continue to represent the Plaintiffs in the instant action.
See, e.g., District of Columbia Rules Of Professional
Responsibility, Rule 1.7.

That Rule provides:

(a) A lawyer shall not advance two or more adverse
positions in the same matter.
(b) Except as permitted by paragraph (c) below, a
lawyer shall not represent a client with respect to a
matter if:
(1) That matter involves a specific party or
parties and a position to be taken by that client in
that matter is adverse to a position taken or to be
taken by another client in the same matter even though
that client is unrepresented or represented by a
different lawyer;
(2) Such representation will be or is likely to
be adversely affected by representation of another
client;
(3) Representation of another client will be or
is likely to be adversely affected by such
representation;
(4) The lawyer’s professional judgment on behalf
of the client will be or reasonably may be adversely
affected by the lawyer’s responsibilities to or
interests in a third party or the lawyer’s own
financial, business, property, or personal interests.
(c) A lawyer may represent a client with respect to
a matter in the circumstances described in paragraph (b)
above if
(1) Each potentially affected client provides
informed consent to such representation after full
disclosure of the existence and nature of the possible
conflict and the possible adverse consequences of such
representation; and
(2) The lawyer reasonably believes that the
lawyer will be able to provide competent and diligent
representation to each affected client.
(d) If a conflict not reasonably foreseeable at the
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outset of representation arises under paragraph (b)(1)
after the representation commences, and is not waived under
paragraph (c), a lawyer need not withdraw from any
representation unless the conflict also arises under
paragraphs (b)(2), (b)(3), or (b)(4).
D.C. Rules of Professional Conduct, Rule 1.7.

The divergence of

the interests of the purported class members would appear to
warrant caution in assessing whether a single team of lawyers
can adequately represent all members of the class (including
those bent of securing for their constituents free PACER access
and those seeking only to minimize their PACER fees).

Moreover,

the practical problems associated with securing waivers from all
unnamed class members (assuming that any claims are allowed to
proceed where the class members have not exhausted their
administrative remedies) would prove unworkable.
The named Plaintiffs’ claims are, therefore, not typical of
the class and they cannot adequately represent the class as a
whole, as required by Fed. R. Civ. P. 23(a)(3) and (4).
D.

Plaintiff’s Fail to Meet The Requirements of Rule 23(b)

Plaintiffs incorrectly argue that they can satisfy the
requirements of Fed. R. Civ. P. 23(b)(1) and (3).

They argue

that a class action, rather than multiple actions, is preferable
here, because “[i]f there were separate actions for equitable
relief, the AO could be ‘forced into a ’conflicted position’”.
Pl. Class Motion at 18 (citing Benjamin Kaplan, Continuing Work
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of the Civil Committee: 1966 Amendments of the Federal Rules of
Civil Procedure, 81 Harv. L. Rev. 356, 388 (1967)).

Plaintiffs

fail to grasp, however, that allowing this class action to
proceed, will have exactly the same potential for inconsistent
judgments.

Plaintiffs’ theory of recovery appears to require

the Court to establish what costs may and may not be assessed
against the fund into which PACER fees are deposited.5

Any

accounting into such proper expenses must, therefore, include an
assessment of the fees properly assessed against the
plaintiff(s) in Fisher.

In essence, if this action and Fisher

are allowed to proceed, there will be two Courts deciding what
excess PACER fees have been collected and then both Courts will
purport to spread those fees among its plaintiffs.

If differing

calculations are reached by both courts as to the amount of fees
properly collected for the PACER docket sheets at issue in

5

Plaintiffs’ burden is likely to be a substantial one,
given that expenditures from the fund into which PACER fees are
deposited (the Judiciary Automation Fund established pursuant to
28 U.S.C. § 612(c)(1)(A)) are defined by Congress in that
statute. See Complaint, ¶ 12 (citing Pub. L. No. 107–347, §
205(e), 116 Stat. 2899, 2915 (Dec. 17, 2002) (28 U.S.C. § 1913
note)). That is, in establishing the Judiciary Automation Fund,
Congress specifically identified the categories of items that
its coffers could be used to purchase. 28 U.S.C. § 612. These
include the purchases to which Plaintiffs object in this action.
Defendant, however, will address these merits issues at the
appropriate time.
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Fisher,6 then the AO may be unable to satisfy the relief ordered
by both Courts.

In short, Plaintiffs have admitted that only

one Court should be assessing whether (or how much) the fees
collected for PACER access are in excess of those allowed by the
E-Government Act of 2002, Pub. L. 107–347, title II, § 205(e),
116 Stat. 2915 (2002).

See Pl. Class Motion at 18.

That issue

is, in some measure, before the Federal Circuit, and a separate
action (a class action or otherwise), would potentially
interfere with the orderly resolution of both cases.7

See

Amended Complaint in Fisher v. United States, (ECF No. 11-1) ¶¶
14-16, 45.8
Defendant does not believe that Plaintiffs have adequately

6

The Amended Complaint in Fisher includes among its
requests for relief unspecified equitable and injunctive relief.
See ECF No. 11-1 at 41, ¶ I.
7

Plaintiffs concede that they are seeking “return of all
PACER fees paid in the last six years. . . .” Pl. Class Motion
at 18. Both here (Complaint at 1) and in Fisher’s Amended
Complaint (ECF No. 11-1 at 35, ¶ 45), the plaintiffs seek to
challenge the PACER fees exacted as in excess of the fees
allowed by the E-Government Act of 2002. Thus, Plaintiffs here
seek the same relief that is already at issue in Fisher but on a
broader scale.
8

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 (ECF No. 11-1 at 27).
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established that legal or factual questions predominate over the
questions affecting the individual members.

As noted, the Court

will have to assess whether and in what degree the individual
Plaintiffs were able to secure free pages in excess of the 30
pages for which they were charged for lengthy documents.

If the

individual plaintiff’s downloads of these documents operate to
decrease the per page cost to below that sought by Plaintiffs,
then there will be no liability to the class-member.

Thus, the

assessment of liability will be unique to each user, and would
not lend itself to class-wide resolution.
Courts have concluded that the predominance requirement
called for in Fed. R. Civ. P. 23(b)(3) is not satisfied and
class certification is improper when individualized
consideration would be required for one or more issues.

See

Castano v. American Tobacco Co., 84 F.3d 734, 745 (5th Cir.
1996) (predominance requirement of Rule 23(b)(3) cannot be
satisfied in a fraud case where individual reliance will be an
issue); McCarthy, 741 F.2d at 1415 (district court properly
denied class certification to persons allegedly wrongfully
arrested at a mass demonstration where individualized issues,
such as whether probable cause existed for each arrest, had to
be resolved); Simer v. Rios, 661 F.2d 655, 673 (7th Cir. 1981)
(issue of whether the regulation challenged by plaintiffs was
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Case 1:16-cv-00745-ESH Document 13 Filed 07/25/16 Page 21 of 23

inconsistent with the authorizing statute would be common to the
class, but could be expeditiously resolved by the trial court;
in contrast, the issue of the effect of the allegedly illegal
regulation on each class member would require individualized and
time-consuming proof); Davenport v. Gerber Products Co., 125
F.R.D. 116, 119-20 (E.D. Pa. 1989); Polich v. Burlington
Northern, Inc., 116 F.R.D. 258, 262-63 (D. Mont. 1987).
In this case, the class action vehicle is especially
inappropriate because individualized adjudication would be
required of each class member’s very entitlement to prevail.
Moreover, the Rule’s language is focused on the virtues of “a
class action.”

Fed. R. Civ. p. 23(b)(3).

This suggests that

class action litigation was not intended to facilitate two class
actions, which would result if this case proceeds as a class and
the Fisher case is similarly prosecuted.

Nor would there be any

efficiency in pursuing claims of alleged PACER fees collected in
excess of those allowed by the same statute in two courts.

The

Fisher action is in its relatively early stages; no order has
issued as yet on the class certification issue.

And having a

single court decide the issues in both cases would protect
against inconsistent judgments and, at the same time, afford for
whatever efficiency can be garnered by pursuing a class action.
Thus, the considerations reflected in Rule 23(b)(3)(A) through
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(D) all counsel in favor of requiring the Plaintiffs to pursue
any class claims in the pending Fisher case.
CONCLUSION
In sum, certifying Plaintiffs’ requested class would
neither satisfy the explicit requirements of Rule 23, nor serve
the Rule’s purpose of “achiev[ing] economies of time, effort,
and expense.”

See Amchem Products, Inc. v. Windsor, 521 U.S.

591, 615 (1997).

Also, it does not appear practical for current

counsel to proceed to represent all class members, where there
are diverging interests involved.

Instead, should the

plaintiffs wish to pursue class claims, they should do so in the
pending Fisher case.

For the reasons stated herein and in

support of Defendant’s Motion To Dismiss Or, In The Alternative,
For Summary Judgment, Plaintiffs’ Motion For Class Certification
should be denied.
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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Case 1:16-cv-00745-ESH Document 13 Filed 07/25/16 Page 23 of 23

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that service of the foregoing Opposition
To Plaintiffs’ Motion For Class Certification and a proposed
Order has been made through the Court's electronic transmission
facilities on this 25th day of July, 2016.

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