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

Filing 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)

Case 1:16-cv-00745-ESH Document 53 Filed 09/05/17 Page 1 of 6

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 FOR LEAVE TO FILE AMICI CURIAE BRIEF AND [PROPOSED] AMICI
CURIAE BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS AND 17 MEDIA ORGANIZATIONS IN SUPPORT OF PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT AS TO LIABILITY
Bruce D. Brown (D.C. Bar No. 457317)
Counsel of record for Amicus Curiae
Caitlin Vogus (D.C. Bar No. 988826)
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1156 15th Street NW, Ste. 1250
Washington, D.C. 20005
[phone]

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INTRODUCTION
Pursuant to Local Civ. Rule 7(o)(1)–(2), the Reporters Committee for Freedom of the
Press and 17 other news media organizations (collectively, the “News Media Movants”)
respectfully move for leave to file the attached brief in support of Plaintiffs as amici curiae in the
above captioned case. The other organizations are: American Society of News Editors,
Associated Press Media Editors, Association of Alternative Newsmedia, The Center for
Investigative Reporting, First Amendment Coalition, First Look Media Works, Inc., International
Documentary Assn., Investigative Reporting Workshop at American University, The Media
Consortium, MPA - The Association of Magazine Media, National Press Photographers
Association, Online News Association, Radio Television Digital News Association, Reporters
Without Borders, The Seattle Times Company, Society of Professional Journalists, and Tully
Center for Free Speech.
Plaintiffs consent to the filing of this brief. Defendant takes no position on the News
Media Movants’ request for consent to file this brief.
ARGUMENT
I.

The News Media Movants can offer timely, useful, and unique information to the
Court.
District courts have inherent authority, derived from Federal Rule of Appellate Procedure

29, to allow participation as amicus curiae. Jin v. Ministry of State Sec., 557 F. Supp. 2d 131,
136 (D.D.C. 2008) (quoting Smith v. Chrysler Fin. Co., L.L.C., No. Civ.A. 00-6003(DMC), 2003
WL 328719, at *8 (D.N.J. Jan. 15, 2003)). In deciding whether to grant a third party leave to file
an amicus curiae brief, the Court’s discretion is “broad.” Nat’l Ass’n of Home Builders v. U.S.
Army Corps of Eng’rs, 519 F. Supp. 2d 89, 93 (D.D.C. 2007).

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“Generally, ‘a court may grant leave to appear as an amicus if the information offered is
timely and useful.’” Ellsworth Assocs., Inc. v. United States, 917 F. Supp. 841, 846 (D.D.C.
1996) (quoting Waste Mgmt. of Pa., Inc. v. City of New York, 162 F.R.D. 34, 36 (M.D. Pa. 1995)
(internal quotation omitted)). And, an amicus brief should be allowed “‘when the amicus has
unique information or perspective that can help the court beyond the help that the lawyers for the
parties are able to provide.’” Cobell v. Norton, 246 F. Supp. 2d 59, 62 (D.D.C. 2003) (quoting
Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir. 1997)). Moreover, “[t]he filing of an amicus brief
should be permitted if it will assist the judge ‘by presenting ideas, arguments, theories, insights,
facts or data that are not to be found in the parties’ briefs.’” Northern Mariana Islands v. United
States, Civil Action No. 08-1572(PLF), 2009 WL 596986, at *3-4 (D.D.C. Mar. 6, 2009)
(quoting Voices for Choices v. Illinois Bell Telephone Co., 339 F.3d 542, 545 (7th Cir. 2003)).
The News Media Movants have a strong interest in upholding First Amendment
principles that impact the news media. This case concerns the ability of the press and public to
access to court records. Reporters rely on access to court records to understand the facts and
arguments of a case so that they can accurately convey that information to the public. Public
Access to Court Electronic Records system (“PACER”) fees in excess of those permitted by law
hinder and in some cases may prevent journalists from accessing these records. Facing
significant financial stress, both established news organizations as well as smaller news outlets
and freelance reporters are impacted by higher PACER fees. Thus, the resolution of this case
will affect reporters’ ability to access these essential primary documents in order to inform the
public about matters of public concern.
The News Media Movants will present arguments and insights that are not found in the
parties’ briefs and are especially relevant to the Court’s disposition of this case. The News

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Media Movants will provide important context by explaining how the news media and the public
benefit from ready access to court documents. The News Media Movants will also illuminate the
First Amendment interests that underlay the statutory requirement that PACER fees be
reasonable and no greater than necessary. Finally, the News Media Movants will describe the
extensive negative effects that excessive PACER fees have on the news media and its ability to
serve the public. Because each of these arguments is timely, useful, and unique, the Court
should grant the News Media Movants permission to file the attached brief of amici curiae.
II.

The News Media Movants potential membership in the class does not preclude the
Court from granting their motion for leave to file their brief.
Many of the News Media Movants paid fees for the use of PACER between April 21,

2010, and April 21, 2016 and thus fall within the class certified by this Court. See Order, Nat’l
Veterans Legal Servs. Program, et al. v. United States, 1:16-cv-00745-ESH (D.D.C. Jan. 24,
2017), ECF No. 32. However, the News Media Movants should still be permitted to file their
brief because the Court should not consider them parties for the purpose of the filing of an amici
brief. “Nonnamed class members … may be parties for some purposes and not for others. The
label ‘party’ does not indicate an absolute characteristic, but rather a conclusion about the
applicability of various procedural rules that may differ based on context.” Devlin v.
Scardelletti, 536 U.S. 1, 9-10 (2002) (holding that nonnamed class members who object in
timely manner to approval of settlement at fairness hearing can bring appeal without first
intervening).
For the purpose of filing this brief, the News Media Movants serve “as ‘friend[s] of the
court,’ . . . [and do] not represent the parties but participate[] only for the benefit of the Court.’”
Cobell, 246 F. Supp. 2d at 62 (granting leave to file amicus brief by one entity representing many
Native American tribes and presenting unique arguments but denying leave to file amicus brief
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by entity representing only a single Native American tribe that had filed its own independent
civil action against defendants) (quoting United States v. Microsoft Corp., No. Civ.A.981232(CKK), 2002 WL 319366 (D.D.C. Feb. 28, 2002)). As members of the news media or
organizations who advance the interests of journalists and the press, the News Media Movants
seek to inform the Court of their independent insight into the effect of excessive PACER fees on
the news media’s ability to accurately convey information to the public, and, as noted above, will
provide unique information and arguments that have not been presented by Plaintiffs.
Accordingly, the Court should not deny News Media Movants’ motion to participate as amici
based on their payment of PACER fees between April 21, 2010, and April 21, 2016.
CONCLUSION
For the foregoing reasons, the News Media Movants respectfully request that this motion
for leave to file the accompanying brief be granted.
Dated: September 5, 2017

/s/ Bruce D. Brown
Bruce D. Brown (D.C. Bar No. 457317)
Counsel for Amici Curiae
THE REPORTERS COMMITTEE
FOR FREEDOM OF THE PRESS
1156 15th St. NW, Suite 1250
Washington, D.C. 20005
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on September 5, 2017, I electronically filed the foregoing document
with United States Court for the District of Columbia by using the CM/ECF system. I certify that
the following parties or their counsel of record are registered as ECF filers and that they will be
served through the CM/ECF system to parties.
Dated: September 5, 2017
/s/ Bruce D. Brown
Counsel for Amici Curiae

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