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

Filing 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)

Case 1:16-cv-00745-ESH Document 23 Filed 10/01/16 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES PROGRAM, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

Case No. 16-745-ESH

PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY
The decision earlier this week in Fisher v. United States, No. 15-1575C (Ct. Cl. Sept. 26,
2016) (attached), confirms why the government’s motion to dismiss this case should be denied.
First, the government contends that our case should be dismissed under the first-to-file
rule because Fisher also involves PACER fees. But, as the Court of Federal Claims made clear,
the plaintiff in Fisher advances an entirely different claim based on an entirely different legal
theory. He narrowly alleges that “a ‘systemic error’ in PACER’s billing system causes PACER to
count the bytes in the case caption section of an HTML-formatted docket report five times when
the case caption is more than 850 characters long”—a billing error that he claims has led to a
contractual violation of the judiciary’s own “ten-cents-per-page fee structure” for certain PACER
users (those who “were charged for at least one docket report in HTML format that included a
case caption containing 850 or more characters”). Op. 2–3.
The plaintiffs here, by sharp contrast, challenge the legality of the fee structure itself,
claiming that it exceeds the costs of providing records, in violation of the E-Government Act of
2002. And whereas the plaintiff in Fisher has not yet sought class certification (and his class, even
assuming it were ascertainable, would consist of only those who affirmatively agree to join), the
plaintiffs here have already moved for certification of a Rule 23 opt-out class of all PACER users.

Case 1:16-cv-00745-ESH Document 23 Filed 10/01/16 Page 2 of 3

Second, the government in Fisher contended (as it did here) that a one-sentence provision in
PACER’s terms and conditions—that users “must alert the PACER Service Center to any errors
in billing within 90 days of the date of the bill”—creates an administrative-exhaustion
requirement and precludes an illegal-exaction claim. Op. 4. But the Court of Federal Claims
squarely rejected these arguments, holding that this sentence does “not require a plaintiff to
exhaust administrative remedies before filing suit,” nor does it preclude an illegal-exaction claim.
Id. (internal capitalization omitted). If that is true there—in an actual “billing error” case—then it
is certainly true here. The government’s motion to dismiss should be denied.
Respectfully submitted,
/s/ Deepak Gupta
DEEPAK GUPTA
JONATHAN E. TAYLOR
GUPTA WESSLER PLLC
1735 20th Street, NW
Washington, DC 20009
Phone: [phone]
[e-mail], [e-mail]

October 1, 2016

WILLIAM H. NARWOLD
MOTLEY RICE LLC
3333 K Street NW, Suite 450
Washington, DC 20007
Phone: [phone]
[e-mail]
Attorneys for Plaintiffs

Case 1:16-cv-00745-ESH Document 23 Filed 10/01/16 Page 3 of 3

CERTIFICATE OF SERVICE
I hereby certify that on October 1, 2016, I filed the foregoing notice of supplemental
authority through this Court’s CM/ECF system, and that all parties required to be served have
been thereby served.
/s/ Deepak Gupta
Deepak Gupta