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

Filing 63

AMICUS BRIEF by JOSEPH I. LIEBERMAN, DARRELL ISSA. (znmw)

Case 1:16-cv-00745-ESH Document 63 Filed 09/13/17 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL SERVICES
PROGRAM, NATIONAL CONSUMER LAW
CENTER, and ALLIANCE FOR JUSTICE, for
themselves and all others similarly situated,

Case No. 16-745-ESH

Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
BRIEF OF AMICI CURIAE SENATOR JOSEPH I. LIEBERMAN AND
CONGRESSMAN DARRELL ISSA IN SUPPORT OF PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AS TO LIABILITY

September 5, 2017

Of counsel:
Michael K. Farrell
Michael D. Meuti
BakerHostetler LLP
Key Tower
127 Public Square, Suite 2000
Cleveland, OH 44114-1214
Telephone: [phone]
[e-mail]
[e-mail]

Mark I. Bailen (D.C. Bar No. 459623)
BakerHostetler LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036-5304
Telephone: [phone]
[e-mail]

Counsel for Amici Curiae Senator Joseph I. Lieberman an
Congressman Darrell Issa

Case 1:16-cv-00745-ESH Document 63 Filed 09/13/17 Page 2 of 11

TABLE OF CONTENTS
STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE .................................1
SUMMARY OF ARGUMENT ...................................................................................................2
ARGUMENT ...............................................................................................................................3
A.

The E-Government Act was intended to prohibit the AO from charging more in
PACER fees than is necessary to recoup the cost of operating PACER. ............3
1.
2.

B.

Congress’ intent in passing the E-Government Act of 2002. ..................3
Plaintiffs’ reading of the Act is confirmed by its sponsor, Senator
Lieberman. ...............................................................................................4

Since 2002, the AO has continually violated the E-Government Act. ................6

CONCLUSION ............................................................................................................................8

Case 1:16-cv-00745-ESH Document 63 Filed 09/13/17 Page 3 of 11

TABLE OF AUTHORITIES
Page(s)
Statutes
28 U.S.C. 612(c)(1)(A) ....................................................................................................................4
28 U.S.C. § 612(c)(1).......................................................................................................................6
28 U.S.C. § 1913 note ..........................................................................................................2, 3, 4, 7
Judiciary Appropriations Act, 1991, Pub. L. No. 101–515, § 404, 104 Stat. 2129,
2132–33......................................................................................................................................3
Rules
Local Civ. R. 7(o) ............................................................................................................................1
Other Authorities
S. Rep. No. 107–174, 2d Sess. (2002) ......................................................................................1, 4,7

ii
611257290.1

Case 1:16-cv-00745-ESH Document 63 Filed 09/13/17 Page 4 of 11

STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE
Amicus curiae Senator Joseph Lieberman served as United States Senator from
Connecticut from 1989 until his retirement from Congress in 2013. Senator Lieberman served as
Chair of the United States Senate Committee on Homeland Security and Governmental Affairs
and in that capacity was the sponsor of the E-Government Act of 2002—the legislation upon which
this lawsuit turns.
Given his experience, Senator Lieberman is uniquely situated to confirm that plaintiffs’
reading of the E-Government Act accurately reflects Congress’ intent in passing that Act and to
confirm that the judiciary’s practice of charging “PACER” fees for access to public information
that far exceed the cost of providing that information is contrary to the intent of the Act.
Amicus curiae Congressman Darrell Issa is a member of the United States House of
Representatives, representing the 49th District of California. As Chairman of the House Judiciary
Subcommittee on Courts, Intellectual Property, and the Internet, he has examined PACER fees.
He also co-founded of the Congressional Transparency Caucus, based on the simple idea that all
Americans have the right to know exactly what their government is doing.
He is also a lifelong technophile with a passion for open, accountable government. The
Congressman co-founded the OpenGov Foundation, an apolitical 501(c)(3), which supports free
software solutions that help citizens to access government information and give them a voice in
governance.
Pursuant to Local Civ. R. 7(o), amici have submitted a motion for leave to file this brief as
amici curiae.1

1

Counsel for amici declare that no party’s counsel authored this brief in whole or in part; no party
or party’s counsel contributed money that was intended to fund preparing or submitting this brief;
1

Case 1:16-cv-00745-ESH Document 63 Filed 09/13/17 Page 5 of 11

SUMMARY OF ARGUMENT
In 2002, Congress found that PACER fees were “higher than the marginal cost of
disseminating the information” accessed through that system. Taylor Decl., Ex. D, at 5 (S. Rep.
No. 107–174, 2d Sess., at 23 (2002)); Plaintiffs’ Statement of Undisputed Material Facts ¶ 11. 2
To correct this, and to ensure that court records be “freely available to the greatest extent possible,”
the E-Government Act prohibits the imposition of fees that are not “necessary” to “reimburse
expenses in providing” access to the records. Id.; 28 U.S.C. § 1913 note. The purpose and intent
of including this language in the Act was to prevent the judiciary from charging PACER fees that,
in the aggregate, exceed the reasonable costs of administering the PACER system.
Despite passage of the Act, PACER fees have only increased since 2002. Those fees now
greatly exceed the cost of providing the records, and with the excess being used to fund projects
that are entirely unrelated to PACER. As a result, Senator Lieberman, as sponsor of the Act and
Chairman of the Senate Homeland Security and Governmental Affairs Committee, twice
challenged the imposition by the Administrative Office of the U.S. Courts (“AO”) of PACER fees
that are “well higher than the cost of dissemination” and urged it to adopt “a payment system that
is used only to recover the direct cost of distributing documents via PACER.” Taylor Decl., Exs.
G & H. The AO, however, continues to charge PACER fees that exceed the costs of providing
records and violate the E-Government Act. As Congressman Issa has observed, the courts earn a
“tidy profit” from PACER in a way that “circumvent[s] appropriations.” Judicial Transparency
and Ethics: Hearing Before the H. Subcomm. on Courts, Intellectual Property and the Internet of

and no person—other than amicus or his counsel—contributed money that was intended to fund
the preparation or submission of this brief.
2

In the interest of brevity, Plaintiffs’ Statement of Undisputed Material Facts (“Statement”) is
incorporated by reference herein and citations herein are to the evidence and exhibits submitted
therewith.
2

Case 1:16-cv-00745-ESH Document 63 Filed 09/13/17 Page 6 of 11

the H. Comm. on the Judiciary, 115th Cong. 2 (Feb. 14, 2017). For these reasons, Senator
Lieberman and Congressman Issa urge this Court to grant Plaintiffs’ Motion for Summary
Judgment As to Liability, and thus vindicate the purpose of the Act and ensure that it is enforced
as Congress intended.
ARGUMENT
A.

The E-Government Act was intended to prohibit the AO from charging more in
PACER fees than is necessary to recoup the cost of operating PACER.
On its face, the E-Government Act allows the AO to impose PACER fees only “as a charge

for services rendered” in providing “electronic access to information” through PACER, and “only
to the extent necessary” to “reimburse expenses” incurred in providing that service. 28 U.S.C.
§ 1913 note. In other words, the Act prohibits the AO from charging more for PACER than the
cost of providing access to records through PACER. Moreover, the statutory history of the Act
and the interpretation of it by its sponsor, Senator Lieberman, confirm that that is exactly what
Congress intended to do.
1.

Congress’ intent in passing the E-Government Act of 2002.

Before PACER, Congress required the judiciary to charge “reasonable fees” to access court
records, including those now available through PACER. Judiciary Appropriations Act, 1991, Pub.
L. No. 101–515, § 404, 104 Stat. 2129, 2132–33. Congress also sought to limit those fees to breakeven levels. Id.; Plaintiffs’ Statement of Undisputed Material Facts (Statement) ¶ 10.
During PACER’s early years, it became clear that PACER fees exceeded the amount
necessary to recover the cost of providing access to those records, and that the AO was using the
extra revenue to subsidize other information-technology-related projects. Statement ¶¶ 8-11.
Recognizing this, Congress enacted the E-Government Act of 2002 “to encourage the Judicial
Conference to move from a fee structure in which electronic docketing systems are supported
3

Case 1:16-cv-00745-ESH Document 63 Filed 09/13/17 Page 7 of 11

primarily by user fees to a fee structure in which this information is freely available to the greatest
extent possible.” Taylor Decl., Ex. D, at 5 (S. Rep. No. 107–174, 2d Sess., at 23 (2002)); see
Statement ¶ 11.
The E-Government Act of 2002 amended language requiring the imposition of fees to
remove the mandatory phrase “shall prescribe” and replace it with language permitting fees to be
charged “only to the extent necessary” “to reimburse expenses in providing these services.” Pub.
L. No. 107–347, § 205(e), 116 Stat. 2899, 2915 (Dec. 17, 2002) (codified at 28 U.S.C. § 1913
note). Congress added this language specifically to prevent the AO from “charg[ing] fees that are
higher than the marginal cost of disseminating the information.” Statement ¶ 11.
With these critical changes, the full statute reads as follows:
(a) The Judicial Conference may, only to the extent necessary, prescribe reasonable
fees, pursuant to sections 1913, 1914, 1926, 1930, and 1932 of title 28, United
States Code, for collection by the courts under those sections for access to
information available through automatic data processing equipment. These fees
may distinguish between classes of persons, and shall provide for exempting
persons or classes of persons from the fees, in order to avoid unreasonable burdens
and to promote public access to such information. The Director of the [AO], under
the direction of the Judicial Conference of the United States, shall prescribe a
schedule of reasonable fees for electronic access to information which the Director
is required to maintain and make available to the public.
(b) The Judicial Conference and the Director shall transmit each schedule of fees
prescribed under paragraph (a) to the Congress at least 30 days before the schedule
becomes effective. All fees hereafter collected by the Judiciary under paragraph (a)
as a charge for services rendered shall be deposited as offsetting collections to the
Judiciary Automation Fund pursuant to 28 U.S.C. 612(c)(1)(A) to reimburse
expenses incurred in providing these services.
28 U.S.C. § 1913 note (emphasis added).
2.

Plaintiffs’ reading of the Act is confirmed by its sponsor, Senator
Lieberman.

Senator Lieberman’s commitment to the E-Government Act and its intended effects, did
not end with its passage. For example, in early 2009, Senator Lieberman wrote the AO “to
4

Case 1:16-cv-00745-ESH Document 63 Filed 09/13/17 Page 8 of 11

inquire if [it] is complying” with the Act. Taylor Decl., Ex. H, at 1 (Letter from Sen. Lieberman
to Hon. Lee Rosenthal (Feb. 27, 2009)); see Statement ¶ 19. This letter noted that although the
Act was intended “to increase free public access to” judicial records by limiting fees to “the
marginal cost of disseminating the information,” PACER fees were higher than when the law
was passed and that the revenue from them was “still well higher than the cost of dissemination.”
Taylor Decl., Ex. H, at 1. Invoking the statute’s text, the senator then asked the judiciary to
explain “whether [it] is only charging ‘to the extent necessary’ for records using the PACER
system.” Id.
Despite the fact that the E-Government Act was enacted to do the opposite, the AO
responded by claiming that Congress had “expand[ed] the permissible use of the fee revenue to
pay for other services,” which permitted it to use PACER fees to pay non-PACER costs. Taylor
Decl., Ex. I, at 2. The sole support that the AO offered for its view was a sentence in a conference
report accompanying the 2004 appropriations bill, which said that the Appropriations Committee
“expects the fee for the Electronic Public Access program to provide for [ECF] system
enhancements and operational costs.” Taylor Decl., Ex. I, at 2.
The next year, Senator Lieberman again expressed concerns about the AO’s interpretation
of the Act in his annual letter to the Appropriations Committee. Taylor Decl., Ex. G, at 2; Statement
¶ 21. He wrote: “despite the technological innovations that should have led to reduced costs in the
past eight years,” the “cost for these documents has gone up” because the AO uses the fees to fund
“initiatives that are unrelated to providing public access via PACER.” Id. Significantly, Senator
Lieberman also reiterated his understanding that, as plaintiffs argue here, this is “against the
requirement of the E-Government Act,” because it permits “a payment system that is used only to

5

Case 1:16-cv-00745-ESH Document 63 Filed 09/13/17 Page 9 of 11

recover the direct cost of distributing documents via PACER.” Id. Other technology-related
projects, he stressed, “should be funded through direct appropriations.” Id.
Nonetheless, the AO then raised PACER fees again, to $.10 per page, in 2012. It
acknowledged that “[f]unds generated by PACER are used to pay the entire cost of the Judiciary’s
public access program, including telecommunications, replication, and archiving expenses, the
[ECF] system, electronic bankruptcy noticing, Violent Crime Control Act Victim Notification, online juror services, and courtroom technology.” Statement ¶ 22.
Moreover, the apparent backdoor-appropriations scheme is troubling as a constitutional
and policy matter. As Congressman Issa observed, “when it comes to the taxation of the American
people, which includes fees; when it comes to transparency, meaning American citizens and
others’ right to know; when it comes to the ethics of the judiciary, we have an obligation.” Judicial
Transparency and Ethics: Hearing Before the H. Subcomm. on Courts, Intellectual Property and
the Internet of the H. Comm. on the Judiciary, 115th Cong. 2 (Feb. 14, 2017). Congress has made
this statute clear, but it is up to the courts to say what the law is—even to the most powerful and
democratically devoted holders of government power.
B.

Since 2002, the AO has continually violated the E-Government Act.
By the end of 2006, the judiciary’s information-technology fund—the account into which

PACER fees and other funds are deposited--had a surplus of nearly $150 million. Of that $150
million, at least $32 million was from PACER fees. 28 U.S.C. § 612(c)(1); Statement ¶ 16. Rather
than reduce PACER fees, the AO sought out new ways to spend the excess on things unrelated to
PACER, like “courtroom technology allotments for installation, cyclical replacement of
equipment, and infrastructure maintenance.” Id.; Taylor Decl., Ex. G, at 3 (Letter from Sen.
Lieberman to Sens. Durbin and Collins (Mar. 25, 2010)).

6

Case 1:16-cv-00745-ESH Document 63 Filed 09/13/17 Page 10 of 11

From 2010 through 2016, the judiciary collected over $920 million in PACER fees, and
the annual fees increased from $102.5 million to $146.4 million. Id. ¶¶ 28, 46, 62, 80, 98, 116,
134. PACER revenue grew dramatically during this period despite “technological innovations,”
including exponentially cheaper data storage, that “should have led to reduced costs.” Taylor Decl.,
Ex. G, at 3; see also Lee and Lissner Decl. ¶ 16 (explaining that cost per gigabyte of storage fell
by 99.9% during this period).
According to the AO’s own records, the costs of operating the “Electronic Public Access
Program” declined significantly over this same period, going from nearly $19 million for fiscal
year 2010 to less than $1 million for fiscal year 2016. Statement ¶¶ 29 & 135. Even including all
other expenses that the AO includes as costs of providing “Public Access Services”—including
“[d]evelopment and [i]mplementation costs for CM/ECF,” “expenses for CM/ECF servers,” “costs
associated with the support of the uscourts.gov website,” and “[c]osts associated with managing
the non-technical portion of the PACER Service Center”—the total annual expenses of providing
these services ranged between $12 and $24 million over this period. Id. ¶¶ 29, 47–48, 63–64, 81–
82, 99–100, 117–18, 135–36; see Taylor Decl., Ex. L.
Thus, undisputed evidence submitted by plaintiffs shows that “users of PACER are charged
fees that are higher than the marginal cost of disseminating the information.” Taylor Decl., Ex. D,
at 5 (S. Rep. No. 107–174, 2d Sess., at 23 (2002)); see Statement ¶ 11. That evidence also shows
that during the class period, the AO has used PACER fees to: (1) upgrade courtroom technology,
Statement ¶¶ 31, 50, 66, 84, 102, 120, 138; (2) send notices to creditors in bankruptcy proceedings,
id. ¶¶ 37, 54, 72, 90, 108, 126, 144; (3) send notices to law-enforcement agencies under the Violent
Crime Control Act, id. ¶¶ 33, 52, 68, 86, 104, 122, 140; (4) provide online services to jurors, id.

7

Case 1:16-cv-00745-ESH Document 63 Filed 09/13/17 Page 11 of 11

¶¶ 70, 88, 106, 124, 142; (5) cover “costs associated with the support of the uscourts.gov website,”
¶ 118; and (6) fund a state-court study in Mississippi, id. ¶ 35.
Worthy or not, none of these things is part of the marginal cost of making records available
through PACER and, as Senator Lieberman has explained, such projects “should be funded
through direct appropriations,” not by overcharging PACER users. Taylor Decl., Ex. G, at 3.
CONCLUSION
Under any fair reading of the E-Government Act, the AO is not charging PACER fees only
“to the extent necessary” to make records available through that system. For this reason and those
set forth above, amici curiae Senator Lieberman and Congressman Issa urge this Court to grant
the plaintiffs’ motion for summary judgment as to liability.
Respectfully submitted,

September 5, 2017

/s/ Mark I. Bailen
Mark I. Bailen
BakerHostetler LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036-5304
Telephone: [phone]
[e-mail]
Of counsel
Michael K. Farrell
Michael D. Meuti
BakerHostetler LLP
Key Tower
127 Public Square, Suite 2000
Cleveland, OH 44114-1214
Telephone: [phone]
[e-mail]
[e-mail]
Counsel for Amicus Curiae Senator Joseph I.
Lieberman
8