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

Filing 27

ANSWER to Complaint by UNITED STATES OF AMERICA.(Nebeker, William)

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Case 1:16-cv-00745-ESH Document 27 Filed 12/19/16 Page 1 of 11 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. ) ) ______________________________) ANSWER For its answer to the class action complaint in t5he above action, Defendant admits, denies, and alleges as follows: Introduction1 The allegations contained in Plaintiffs’ opening paragraphs constitute conclusions of law, and Plaintiffs’ characterization of its case, to which no answer is required. 1. Defendant denies the allegations contained in first, second and third sentences of paragraph 1 for lack of knowledge or information sufficient to form a belief as to their truth. Denies the allegations contained in the fourth sentence of paragraph 1. Where Defendant has included the headings from Plaintiffs’ Complaint, it has done so merely for ease of reference. Defendant does not thereby admit that the headings are accurate. 1 Case 1:16-cv-00745-ESH Document 27 Filed 12/19/16 Page 2 of 11 2. Defendant denies the allegations contained in the first, second and third sentences of paragraph 2 for lack of knowledge or information sufficient to form a belief as to their truth. Denies the allegations contained in the fourth sentence of paragraph 2. 3. Defendant denies the allegations contained in first, second, third and fourth sentences of paragraph 3 for lack of knowledge or information sufficient to form a belief as to their truth. Denies the allegations contained in the fourth sentence of paragraph 3. 4. Defendant admits that the AO and the PACER Service Center administer PACER, but denies the allegation that the AO charges fees for access to public records. Jurisdiction And Venue 5. The allegations contained in paragraph 5 constitute conclusions of law to which no answer is required. 6. The allegations contained in paragraph 6 constitute conclusions of law to which no answer is required. Allegations 7. Denies the allegation contained in the first sentence of paragraph 7. Admits that PACER is managed by the AO, but denies the other allegations contained in the second sentence of -2- Case 1:16-cv-00745-ESH Document 27 Filed 12/19/16 Page 3 of 11 paragraph 7. Denies the allegation contained in the third and fourth sentence of paragraph 7. Admits that the current court fee is $0.10 per page with a maximum of $3.00 per document or case specific report, (excluding transcripts). Admits the charge for audio files is $2.40 per audio file and that there is no charge for opinions. Denies the allegations contained in the seventh sentence of paragraph 7. The allegations contained in the last sentence of paragraph 7 constitute conclusions of law to which no answer is required. 8. Defendant denies the allegations contained in the first sentence of paragraph 8. The allegations contained in the second sentence of paragraph 8 constitute conclusions of law to which no answer is required; to the extent that they may be deemed allegations of fact, they are denied. Defendant denies the allegations contained in the third sentence of paragraph 8. 9. 10. Denied. Defendant denies the allegations contained in the first sentence of paragraph 10, and denies the allegations in the second sentence of paragraph 10 that the discussion paper was an internal report on how the ECF system would be funded. Defendant denies the allegations contained in the third sentence of paragraph 10 with regard to any principles being emphasized. -3- Case 1:16-cv-00745-ESH Document 27 Filed 12/19/16 Page 4 of 11 Defendant denies the allegations contained in the fourth sentence of paragraph 10 that the AO contemplated how ECF could be funded. 11. Defendant denies the allegations contained in the first sentence of paragraph 11. The allegations contained in the second sentence of paragraph 11 constitute conclusions of law to which no answer is required; to the extent that it may be deemed an allegation of fact, it is denied. 12. Defendant admits the allegations of paragraph 12 to the extent supported by the source cited, which is the best evidence of its contents; otherwise the allegations are denied and the Court is respectfully referred to the cited document for a full, fair and accurate account of its contents. 13. Defendant Admits the allegations contained in the first sentence of paragraph 13 to the extent supported by the source cited, which is the best evidence of its contents; otherwise the allegations are denied and the Court is respectfully referred to the cited document for a full, fair and accurate account of its contents. Defendant denies the allegations contained in the remaining sentences of paragraph 13. -4- Case 1:16-cv-00745-ESH Document 27 Filed 12/19/16 Page 5 of 11 14. The allegations contained in the first sentence of paragraph 14 constitute Plaintiffs’ characterization of the case, to which no answer is required; to the extent that it may be deemed an allegation of fact, it is denied. Defendant admits the allegations contained in the second sentence of paragraph 14 to the extent supported by the source cited, which is the best evidence of its contents; otherwise the allegations are denied and the Court is respectfully referred to the cited document for a full, fair and accurate account of its contents. 15. Defendant admits the allegations contained in paragraph 15 to the extent supported by the source cited, which is the best evidence of its contents; otherwise the allegations are denied and the Court is respectfully referred to the cited document for a full, fair and accurate account of its contents. 16. Defendant admits the allegations contained in paragraph 16 to the extent supported by the source cited, which is the best evidence of its contents; otherwise the allegations are denied and the Court is respectfully referred to the cited document for a full, fair and accurate account of its contents. 17. Defendant admits the allegations contained in paragraph 17 to the extent supported by the source cited, which is the best evidence of its contents; otherwise the allegations -5- Case 1:16-cv-00745-ESH Document 27 Filed 12/19/16 Page 6 of 11 are denied and the Court is respectfully referred to the cited document for a full, fair and accurate account of its contents. 18. Defendant admits the allegations contained in paragraph 18 to the extent supported by the source cited, which is the best evidence of its contents; otherwise the allegations are denied and the Court is respectfully referred to the cited document for a full, fair and accurate account of its contents. 19. Defendant denies the allegation contained in the first sentence of paragraph 19. Admits the allegations contained in the second sentence of paragraph 18 to the extent supported by the source cited, which is the best evidence of its contents; otherwise denies the allegations; otherwise the allegations are denied and the Court is respectfully referred to the cited document for a full, fair and accurate account of its contents. Defendant denies the allegations contained in the remaining sentences of paragraph 19. 20. Defendant admits the allegations contained in paragraph 20 to the extent supported by the source cited, which is the best evidence of its contents; otherwise the allegations are denied and the Court is respectfully referred to the cited document for a full, fair and accurate account of its contents. -6- Case 1:16-cv-00745-ESH Document 27 Filed 12/19/16 Page 7 of 11 21. Defendant denies the allegations contained in the first sentence of paragraph 21, and admits the allegations contained in the second and third sentence of paragraph 21 to the extent supported by the sources cited, which are the best evidence of their contents; otherwise the allegations are denied and the Court is respectfully referred to the cited document for a full, fair and accurate account of its contents. 22. Admits the allegations contained in paragraph 22 to the extent supported by the source cited, which is the best evidence of its contents; otherwise denies the allegations. 23. Denied. 24. The allegations contained in the last sentence of paragraph 24 constitute conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact they are denied. Defendant admits the allegations contained in the rest of paragraph 24 to the extent supported by the sources cited, which are the best evidence of their contents; otherwise the allegations are denied and the Court is respectfully referred to the cited document for a full, fair and accurate account of its contents. 25. The allegations in the first sentence of paragraph 25 relate to a 10-year-old complaint that is not available on PACER -7- Case 1:16-cv-00745-ESH Document 27 Filed 12/19/16 Page 8 of 11 and are denied for lack of knowledge or information sufficient to form a belief as to their truth. The allegation contained in the last sentence of paragraph 25 constitutes a conclusion of law to which no response is required. Defendant admits the allegations contained in the other sentences in paragraph 25 to the extent supported by the source cited, which is the best evidence of its contents; otherwise the allegations are denied and the Court is respectfully referred to the cited document for a full, fair and accurate account of its contents. 26. The allegation contained in paragraph 26 constitutes a conclusion of law to which no response is required. 27. The allegation contained in paragraph 27 constitutes a restatement of Plaintiffs’ case to which no response is required; to the extent that it may be deemed an allegation of fact, it is denied. 28. The allegations contained in paragraph 28 constitute conclusions of law to which no answer is required; to the extent that it may be deemed an allegation of fact, it is denied. 29. The allegations contained in paragraph 29, including parts i and ii, constitute conclusions of law to which no answer is required; to the extent that they may be deemed allegations of fact, they are denied. -8- Case 1:16-cv-00745-ESH Document 27 Filed 12/19/16 Page 9 of 11 30-34. The allegations contained in paragraphs 30 to 34 constitute conclusions of law to which no answer is required; to the extent that they may be deemed an allegation of fact, they are denied. The remainder of the Complaint is Plaintiffs’ prayer for relief. Defendant denies that Plaintiffs are entitled to the relief set forth in the prayer for relief or to any relief whatsoever. Defendant denies each and every allegation not previously admitted or otherwise qualified. Affirmative Defense(s) Plaintiffs have failed timely to exhaust administrative remedies that were available to them and which they agreed to employ to contest their billings, and, as a result, they have also failed to mitigate damages. -9- Case 1:16-cv-00745-ESH Document 27 Filed 12/19/16 Page 10 of 11 WHEREFORE, defendant requests that the Court enter judgment in its favor, order that the complaint be dismissed, and grant defendant such other and further relief as the Court may deem just and proper. 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 (202) 252-2536 mark.nebeker@usdoj.gov -10- Case 1:16-cv-00745-ESH Document 27 Filed 12/19/16 Page 11 of 11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that service of the foregoing Answer has been made through the Court’s electronic transmission facilities on this 19th day of December, 2016. /s/ W. MARK NEBEKER, DC Bar #396739 Assistant United States Attorney 555 4th Street, N.W. Washington, DC 20530 (202) 252-2536 mark.nebeker@usdoj.gov

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