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

Filing 74

Memorandum in opposition to re #52 MOTION for Summary Judgment as to Liability filed by UNITED STATES OF AMERICA. (Attachments: #1 Memorandum in Support, #2 Declaration Decl. of W. Skidgel, #3 Statement of Facts, #4 Text of Proposed Order)(Field, Brian)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES, et al.,
Plaintiffs,
Civil Action No. 16-745 (ESH)

v.
UNITED STATES OF AMERICA
Defendant.

DEFENDANT’S MEMORANDUM IN SUPPORT OF
CROSS-MOTION FOR SUMMARY JUDGMENT AND IN
OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

JESSIE K. LIU
D.C. Bar #472845
United States Attorney
DANIEL F. VAN HORN
D.C. BAR # 924092
Chief, Civil Division
By:

/s/ W. Mark Nebeker
W. MARK NEBEKER (D.C. Bar #396739)
BRIAN J. FIELD (D.C. Bar #985577)
Assistant United States Attorneys
555 4th Street, N.W.
Washington, D.C. 20530
[phone]
[e-mail]

TABLE OF CONTENTS
BACKGROUND ............................................................................................................................ 2
STANDARD OF REVIEW ............................................................................................................ 8
ARGUMENT .................................................................................................................................. 8
I.

DEFENDANT HAS COMPLIED WITH THE E-GOVERNMENT ACT ......................... 8
A.The Text of the E-Government Act Confirms That Defendant’s
PACER Fees are Lawful ............................................................................................. 9
B. The E-Government Act’s Legislative History Confirms that
Defendant’s PACER Fees are Lawful ....................................................................... 16
C. Defendant’s Use of PACER Fees is Lawful ............................................................. 19

II. PLAINTIFFS’ MISCELLANEOUS ARGUMENTS LACK MERIT .............................. 20
CONCLUSION ............................................................................................................................. 25

TABLE OF AUTHORITIES
Cases
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) .................................................................................................................... 8
Capital Cities Communications, Inc. v. FCC,
554 F.2d 1135 (D.C. Cir. 1976) ................................................................................................ 22
Carter v. United States,
530 U.S. 255 (2000) .................................................................................................................. 11
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) .................................................................................................................... 8
Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,
447 U.S. 102 (1980) .................................................................................................................. 18
Cox v. New Hampshire,
312 U.S. 569 (1941) .................................................................................................................. 24
Eastern Connecticut Citizens Action Grp. v. Powers,
723 F.2d 1050 (2d Cir. 1983).................................................................................................... 24

Fernandes v. Limmer,
663 F.2d 619 (5th Cir. 1981) .................................................................................................... 24
Gallenstein v. United States,
975 F.2d 286 (6th Cir.1992) ..................................................................................................... 21
Lumbert v. Illinois Dep’t of Corrections,
827 F.2d 257 (7th Cir. 1987) .................................................................................................... 22
Morton v. Mancari,
417 U.S. 535 (1974) .................................................................................................................. 21
Murdock v. Penn.,
319 U.S. 105 (1943) .................................................................................................................. 24
Murphy Exploration and Prod. Co. v. U.S. Dep’t of Interior,
252 F.3d 473 (D.C. Cir. 2001) ............................................................................................ 11, 12
Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
551 U.S. 644 (2007) .................................................................................................................. 21
Nat’l Ass’n of Mortg. Brokers v. Bd. of Govs. of Fed. Reserve Sys.,
773 F. Supp. 2d 151 (D.D.C. 2011) .......................................................................................... 14
Nat’l Awareness Found. v. Abrams,
50 F.3d 1159 (2d Cir. 1995)...................................................................................................... 24
Russello v. United States,
464 U.S. 16 (1983) .................................................................................................................... 13
Sullivan v. City of Augusta,
511 F.3d 16 (1st Cir. 2007) ....................................................................................................... 24
Sullivan v. Finkelstein,
496 U.S. 617 (1990) .................................................................................................................. 18
TRW, Inc. v. Andrews,
534 U.S. 19 (2001) .................................................................................................................... 14
United States v. Braxtonbrown-Smith,
278 F.3d 1348 (D.C. Cir. 2002) ................................................................................................ 16
Williams v. Taylor,
529 U.S. 362 (2000) .................................................................................................................. 11
Statutes
15 U.S.C. § 77f ............................................................................................................................. 15
28 U.S.C. § 612 ............................................................................................................. 3, 10, 14, 16
28 U.S.C. § 1911 ........................................................................................................................... 22
28 U.S.C. § 1913 note ............................................................................................... 3, 9, 11, 12, 18
28 U.S.C. § 1914 ....................................................................................................................... 3, 22
28 U.S.C. § 1926 ....................................................................................................................... 4, 22
ii

28 U.S.C. § 1930 ................................................................................................................. 4, 14, 22
31 U.S.C. § 9701 ..................................................................................................................... 20, 21
Pub. L. No. 101-162 .................................................................................................................. 2, 10
Pub. L. No. 101-515 ........................................................................................................................ 3
Pub. L. No. 102-140 .................................................................................... 1, 3, 6, 9, 10, 14, 15, 22
Pub. L. No. 104-106 ...................................................................................................................... 10
Pub. L. No. 104-317 ........................................................................................................................ 4
Pub. L. No. 107-347 ...................................................................................................... 1, 5, 6, 9, 13
Pub. L. No. 108-420 ...................................................................................................................... 10
Pub. L. No. 110-161 .................................................................................................................. 7, 15
Other Authorities
Government Accountability Office,
Principles of Federal Appropriations Law, 2008 WL 6969303 ............................................... 22
H. Rep. No. 102-709 ....................................................................................................................... 4
H. Rep. No. 104-676 ..................................................................................................................... 19
H. Rep. No. 107-787 ..................................................................................................................... 17
H. Rep. No. 108-221 ................................................................................................................. 6, 17
H. Rep. No. 108-401 ....................................................................................................................... 6
Judiciary FY07 Financial Plan (Mar. 14, 2007) ................................................................. 7, 17, 18
Ltr. from Rep. Serrano (May 2, 2007) ............................................................................................ 7
Ltr. from Sens. Durbin and Brownback (May 2, 2007) .................................................................. 7
Rep. of Proceedings of the Judicial Conference of the United States (Sept. 18, 1988) .................. 2
Rep. of Proceedings of the Judicial Conference of the United States (Mar. 14, 1989) .................. 2
Rep. of Proceedings of the Judicial Conference of the United States (Mar. 13, 1990) .................. 3
Rep. of Proceedings of the Judicial Conference of the United States (Sept. 20, 1993) .................. 4
Rep. of Proceedings of the Judicial Conference of the United States (Mar. 13, 1996) .................. 4
Rep. of Proceedings of the Judicial Conference of the United States (Sept. 15, 1998) .................. 5
Rep. of Proceedings of the Judicial Conference of the United States (Mar. 14, 2001) .................. 5
Rep. of Proceedings of the Judicial Conference of the United States (Mar. 13, 2002) .................. 5
Rep. of Proceedings of the Judicial Conference of the United States (Sept. 13, 2011) .................. 7
S. Rep. No. 104-676 ........................................................................................................................ 5
S. Rep. No. 105-235 ........................................................................................................................ 7
iii

S. Rep. No. 107-174 ................................................................................................................ 13, 17
S. Rep. No. 108-144 .................................................................................................................. 6, 17
Rules
Fed. R. Civ. P. 56 ............................................................................................................................ 8

iv

Plaintiffs, a class of individuals and entities charged for using Defendant’s Public Access
to Court Electronic Records (“PACER”) system, ask this Court to grant summary judgment in
their favor on liability in this matter. See Pls.’ Mot. for Summ. J. at 1 (ECF No. 52) (hereinafter,
“Pls.’ Mot.”). In Plaintiffs’ estimation, the Defendant violated the E-Government Act of 2002 by
charging PACER fees that “far exceed the cost of providing the records[.]” Pls.’ Mot. 1. This
contention is rooted in Plaintiffs’ belief that the E-Government Act bars Defendant from charging
any fee “that exceed[s] the cost of administering PACER.” Pls.’ Mot. 12. Not so. Indeed,
Plaintiffs’ understanding runs counter to the plain text of the E-Government Act, as well as
Congress’ repeated approval of Defendant’s use of funds obtained through PACER. For these
reasons, as well as the others discussed herein, this Court should deny Plaintiffs’ Motion and
instead grant summary judgment in Defendant’s favor.
From 1991 to 2002, Congress required the Judicial Conference to prescribe reasonable fees
for services that provide electronic access to court data. See Pub. L. No. 102-140, § 303. Through
the E-Government Act of 2002, Congress eliminated this requirement. Instead, the E-Government
Act authorized the Judicial Conference to charge fees for public access services, as it deemed
necessary. See Pub. L. No. 107-347. Accordingly, there can be no real debate that Congress
expressly granted the Judicial Conference authority to determine the appropriate level of fees to
enhance public access beyond just the costs associated with administering PACER.
In the instant dispute, the question becomes whether the E-Government Act’s elimination
of the fee requirement was intended to require the Judicial Conference to set a PACER fee to cover
only “the cost of administering PACER,” as Plaintiffs contend, see Pls.’ Mot. 12, or whether it
was intended to grant the Judicial Conference discretion in setting fees and determining when to

charge such fees to fund its public access services and the services Congress expects will be funded
from these fees.
As discussed herein the relevant statutory text and legislative history reveal that the EGovernment Act was intended to provide the Judicial Conference with the discretion to determine
when it would charge PACER fees and the amount of those fees, with the goal of providing certain
information through the Internet and increasing free public access where possible. This is made
abundantly clear by the fact that the only funding Congress created for such public access services
were the fees charged for PACER access. Moreover, Congress’ treatment of the funds collected
and deposited into the Judiciary Automation Fund, as required by Congress both before and after
the passage of the E-Government Act, only confirms further that the funds received have been
properly used for more than just PACER access
BACKGROUND
PACER fees find their origin in a 1988 decision of the Judicial Conference to authorize
“an experimental program of electronic access for the public to court information in one or more
district, bankruptcy, or appellate courts[.]” Rep. of Proceedings of the Judicial Conference of the
United States at 83 (Sept. 18, 1988) (attached to Decl. of W. Skidgel, Jr. (hereinafter, “Skidgel
Decl.”) as Ex. A).

The Judicial Conference further authorized the Committee on Judicial

Improvement “to establish access fees during the pendency of the program.” Id. Shortly thereafter,
in 1989, the Judicial Conference voted to recommend that Congress credit to the judiciary’s
appropriations account any fees generated by providing electronic public access to court records.
See Rep. of Proceedings of the Judicial Conference of the United States at 19 (Mar. 14, 1989)
(Skidgel Decl. Ex. B). In the Judiciary Appropriations Act of 1990, Congress did exactly that—
establishing the Judiciary’s right to retain revenues from fees generated through the provision of
court records to the public. See Pub. L. No. 101-162, § 406(b). In 1990, the Judicial Conference
2

approved an initial rate schedule for electronic public access to court data via the PACER system.
See Rep. of Proceedings of the Judicial Conference of the United States at 21 (Mar. 13, 1990)
(Skidgel Decl. Ex. C).
In the Judicial Appropriations Act of 1991, Congress instituted a requirement that the
Judicial Conference set a schedule of “reasonable fees … for access to information available
through automatic data processing equipment.” Pub. L. No. 101-515, § 404. In doing so, Congress
determined that PACER users, rather than taxpayers generally, should fund public access
initiatives. Congress further required that the Judicial Conference submit each such fee schedule
to Congress at least thirty days before its effective date. See id. Additionally, Congress directed
that all such fees collected for services rendered be deposited into the Judiciary Automation Fund
(“JAF”)1 to reimburse expenses incurred in providing such services to the public. See id.
In the Judicial Appropriations Act of 1992, Congress expressly required that the Judicial
Conference “shall hereafter prescribe reasonable fees, pursuant to sections 1913, 1914, 1926, and
1930 of Title 28, United States Code, for collection by the courts under those sections for access
to information available through automatic data processing equipment.”2 Pub. L. No. 102-140.

1

The Judiciary Automation Fund was subsequently renamed the Judiciary Information
Technology Fund. See 28 U.S.C. § 612.
2

Notably, the cited portions of the United States Code do not present the limitations that Plaintiffs
would seek to add to the “reasonable[ness]” of the prescribed fees; rather in those statutes, there
are limitations as follows:


Under 28 U.S.C. § 1913, fees in the Courts of Appeals must be “prescribed from time to
time by the Judicial Conference of the United States … reasonable and uniform in all the
circuits.” 28 U.S.C. § 1913.



Under 28 U.S.C. § 1914, establishing filing fees at specific amounts in district courts, and
“such additional fees only as are prescribed by the Judicial Conference of the United States.
28 U.S.C. § 1914(a)-(b).

3

Similarly, the House Appropriations Committee report for the Judicial Appropriations Act of 1993
expressly stated that charging fees for public access was “desirable.” H. Rep. No. 102-709. In the
following years, the Judicial Conference expanded the fee schedule to cover access to public
records in appellate courts and the Court of Federal Claims. See Rep. of Proceedings of the Judicial
Conference of the United States at 44–45 (Sept. 20, 1993) (Skidgel Decl. Ex. D); Rep. of
Proceedings of the Judicial Conference of the United States at 16 (Mar. 15, 1994) (Skidgel Decl.
Ex. E). Similarly, Congress required that the public access fee schedule be expanded to cover
multidistrict litigation. See Pub. L. No. 104-317, § 403. In 1996, the Judicial Conference also
approved a reduction in the fee for electronic public access for dial-up Internet connections. See
Rep. of Proceedings of the Judicial Conference of the United States at 16 (Mar. 13, 1996) (Skidgel
Decl. Ex. F).
In the following years, Congress repeatedly expressed its intention that the Judicial
Conference use the fees generated from electronic public access services to improve and update
various public access platforms. For instance, the Senate Committee on Appropriations Report
for the Judicial Appropriations Act of 1997 stated:
The Committee supports the ongoing efforts of the Judiciary to improve and expand
information made available in electronic form to the public. Accordingly, the
Committee expects the Judiciary to utilize available balances derived from
electronic public access fees in the Judiciary Automation Fund to make information
and services more accessible to the public through improvements to enhance the
availability of electronic information. The overall quality of service to the public
will be improved with the availability of enhancements such as electronic case



Under 28 U.S.C. § 1926, fees and costs in the Courts of Federal Claims are limited to those
“the Judicial Conference prescribes.” 28 U.S.C. § 1926(b).



Under 28 U.S.C. § 1930, specific fees are established for bankruptcy proceedings, and
other fees are contemplated under title 11 if those fees are prescribed by the Judicial
Conference and are “of the same kind as the Judicial Conference prescribes under section
1914(b) of [Title 28].” 28 U.S.C. § 1930(b) and (e).
4

documents, electronic filings, enhanced use of the Internet, and electronic
bankruptcy noticing.
S. Rep. No. 104-676 at 89.
The Judicial Conference’s decision to charge a per-page fee for public access also pre-dates
the E-Government Act. Indeed, in 1998, the Judicial Conference determined that with the
introduction of Internet technology to the Judiciary’s current public access program, it would
include a per-page fee for access, while also introducing new technologies to expand public
accessibility to information via PACER. Specifically, the Judicial Conference established a fee of
$0.07 per page for access to certain court records on PACER. See Rep. of Proceedings of the
Judicial Conference of the United States at 64–65 (Sept. 15, 1998) (Skidgel Decl. Ex. G). In 2001,
the Judicial Conference provided that attorneys of record and parties in a case would receive one
copy of all filed documents without charge and also that no fee will be owed until an individual
account holder accrues more than $10 in a calendar year. See Rep. of Proceedings of the Judicial
Conference of the United States at 12–13 (Mar. 14, 2001) (Skidgel Decl. Ex. H). In 2002, the
Judicial Conference established a fee cap for accessing any single document, where there will be
no charge after the first thirty pages of a document. See Rep. of Proceedings of the Judicial
Conference of the United States at 11 (Mar. 13, 2002) (Skidgel Decl. Ex. I).
In 2002, Congress passed the E-Government Act of 2002. See Pub. L. No. 107-347. The
E-Government Act amended existing law to remove the requirement that the Judicial Conference
“shall hereafter” prescribe fees for public access to, instead, provide that the Judicial Conference
“may, only to the extent necessary, prescribe reasonable fees.” Id. The E-Government Act also
included several directives. For instance, it required that all federal courts have websites with
certain general court information (e.g., courthouse location, contact information, local rules,
general orders, docket information), that all court opinions issued after April 16, 2005, be available
5

in text-searchable format, and that an annual report be provided to Congress identifying any court
requesting a deferral from these requirements. See id, § 205. Thus, for the first time, Congress
required the Judiciary to make information available through the Internet. Left unspecified,
however, in the text of the E-Government Act was any source of funding for providing this
information other than the “reasonable fees prescribed by the Judicial Conference for electronic
access to information stored in automated data processing equipment.” Pub. L. No. 102-140,
§ 303(a); Pub. L. No.107-347, § 205.
In 2003, Congress expanded the operations for which the Judicial Conference should use
public access fees. Specifically, the House Appropriations Committee stated that it “expect[ed]
the fee for the Electronic Public Access program to provide for Case Management Electronic Case
File (‘CM/ECF’) system enhancement and operational costs.” H. Rep. No. 108-221 at 116; see H.
Rep. No. 108-401 (“the conferees adopt the House report language concerning Electronic Public
Access fees.”). Similarly, the Senate Appropriations Committee stated that it was “impressed and
encouraged” by the “new and innovative” CM/ECF system and that it expected a report on “the
savings generated by this program at the earliest date possible.” S. Rep. No. 108-144 at 118.3 In
order to provide sufficient revenue to support the CM/ECF enhancements and operational costs
that Congress expected (and “expect[ed]” would be funded with fees from the “Electronic Public
Access program”), the Judicial Conference issued a new rate schedule, charging $0.08 per page.
See Rep. of Proceedings of the Judicial Conference of the United States at 12 (Sept. 21, 2004)
(Skidgel Decl. Ex. J). Notably, even before the E-Government Act, Congress expressed its
intention that the Judiciary will spend PACER receipts beyond just the cost of supporting PACER.

The Conference Report for the Omnibus Appropriations Act of 2004 expressly “adopt[ed] the
language in the House Report concerning Electronic Public Access fees.” 149th Cong. Rec.
H12312-01 at H12515.
3

6

In fact, the Senate Committee on Appropriations Report for the Judicial Appropriations Act of
1999 provided that the Committee “supports efforts of the judiciary to make information available
to the public electronically, and expects that available balances from public access fees in the
judiciary automation fund will be used to enhance the availability of public access.” S. Rep.
No. 105-235, at 114.
In 2007, the Administrative Office of the U.S. Courts (“AO”) submitted the Judiciary’s
Fiscal Year (“FY”) 2007 Financial Plan to both the House and Senate Appropriations Committees
providing for, among other things, “expanded use of the Electronic Public Access (‘EPA’)
revenues.” Judiciary FY07 Financial Plan (Mar. 14, 2007) (Skidgel Decl. Ex. K). On May 2,
2007, the Appropriations Committees sent letters to the AO, stating that the Committees had
“reviewed the information included and ha[d] no objection to the financial plan including the
following proposal[ ]: … the expanded use of [EPA] Receipts.” Ltr. from Sens. Durbin and
Brownback (May 2, 2007) (Skidgel Decl. Ex. L); Ltr. from Rep. Serrano (May 2, 2007) (Skidgel
Decl. Ex. M) (hereinafter, “2007 Letters”). Similarly, the AO submitted its FY07 Financial Plan
to both Appropriations Committees, outlining various courtroom technology installations and
maintenance that would be funded through EPA revenues. Judiciary FY07 Financial Plan at 43
(Mar. 14, 2007) (Skidgel Decl. Ex. K). These expenditures were approved through the Financial
Services and General Government Appropriations Act of 2008. See Pub. L. No. 110-161.
In 2011, the Judicial Conference again amended the PACER fee schedule, raising the perpage cost to $0.10. See Rep. of Proceedings of the Judicial Conference of the United States at 16
(Sept. 13, 2011) (Skidgel Decl. Ex. N). In doing so, the Judicial Conference expressly noted the
existing statutory and policy requirements of charging fees commensurate with the cost of
providing existing services and developing enhanced services. See id. Notably, the Judicial

7

Conference recognized that it had not increased PACER access fees since 2005 and also that its
EPA obligations during the past three fiscal years had exceeded revenue. See id.
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings and evidence “show[] that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment must demonstrate the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine
issue of material fact is one that “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Once the moving party has satisfied
its burden, the nonmoving party “may not rest upon the mere allegations or denials of his pleadings,
but … must set forth specific facts showing that there is a genuine issue for trial.” Id.

ARGUMENT
I.

DEFENDANT HAS COMPLIED WITH THE E-GOVERNMENT ACT
This dispute presents two widely divergent readings of the same statutory text. As

discussed below, Defendant’s reading and application of this statute is supported by the statute’s
text, its legislative history, and Congressional actions in the years since it was passed. In contrast,
Plaintiffs rely on a strained reading of the statutory text and subsequent legislative history to arrive
at their desired end. Specifically, Plaintiffs contend that the E-Government Act expressly bars
Defendant from charging any PACER fees beyond just those fees necessary to keep the PACER
system operating.4 And Plaintiffs further allege that the current PACER fees must be deemed

4

In fact, notwithstanding that Congress directed public access fees to be used for the CM/ECF
system, see supra at 6, Plaintiffs reject even the notion that PACER fees may be used for this
system, see Pls.’ Mot. 9.
8

excessive based on the way in which Defendant has spent the money received from these fees.
Both arguments miss the mark and this Court should grant summary judgment in Defendant’s
favor.
A.

The Text of the E-Government Act Confirms That Defendant’s PACER Fees
are Lawful

Plaintiffs appear to operate under the misimpression that the E-Government Act is the lone
source of Defendant’s authorization to charge PACER fees. Yet, Defendant’s authorization to
charge such fees predates the E-Government Act, with that Act merely amending the existing
authorization to charge reasonable fees that Defendant deems necessary for providing PACER
access and other public access services. See Pub. L. No. 102-140; see also 28 U.S.C. § 1913 note.
In the E-Government Act, Congress amended Pub. L. No. 102-140, § 303 to read:
(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
Administrative Office of the United States Courts, 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 Judicial Automation Fund pursuant to 28 U.S.C.
§ 612(c)(1)(A) to reimburse expenses incurred in providing these services.
Pub. L. No. 107-347, § 205(e); 28 U.S.C. § 1913 note.
In order to understand the E-Government Act properly, it must be read in the context of
the previous statutory requirements regarding PACER fees and public access services.

9

First, it is important to understand the fund that Congress selected as the source for
depositing PACER receipts. In 1989, Congress created the JAF with “[m]oneys … available to
the Director [of the Administrative Office of the United States Courts] without fiscal year
limitation for the procurement … of automatic data processing equipment for the judicial branch
of the United States.” Pub. L. No. 101-162, § 404(b)(1). The Director was also required to
provide, with the approval from the Judicial Conference, an annually updated “long range plan for
meeting the automatic data processing needs of the judicial branch.” Id.5 The plan, along with
revisions, is submitted to Congress annually. See id.; 28 U.S.C. § 612(b)(1). And the Director
may “use amounts in the Fund to procure information technology resources for the activities
funded under [28 U.S.C. § 612(a)] only in accordance with the plan[.]” 28 U.S.C. § 612(b)(2).
Section 612(a) describes how money in the fund may be expended:
Moneys in the Fund shall be available to the Director without fiscal year limitation
for the procurement (by lease, purchase, exchange, transfer, or otherwise) of
information technology resources for program activities included in the courts of
appeals, district courts, and other judicial services account of the judicial branch
of the United States. The Fund shall also be available for expenses, including
personal services, support personnel in the courts and in the Administrative Office
of the United States Courts, and other costs, for the effective management,
coordination, operation, and use of information technology resources purchased by
the Fund.
28 U.S.C. § 612(a) (emphasis added). As noted, this is the fund Congress selected for depositing
receipts of PACER fees, which informs how Congress intended the fees received from PACER
access to be spent.6 See Pub. L. No. 102-140, § 303.

With some changes in terminology (e.g., “meeting the automatic data processing needs of the
judicial branch” became “meeting the information technology resources needs of the activities
funded under subsection (a)”), the law is now codified at 28 U.S.C. § 612. See Pub. L. No. 108420; Pub. L. No. 104-106, § 5602.
5

6

Notably, Plaintiffs do not identify any uses of PACER funds that do not satisfy this broad range
of information technology expenditures approved by Congress.
10

Second, it is important to understand the ways in which the E-Government Act amended
existing statutory language. The plain text of Public Law 102-140, as amended by the EGovernment Act, states that Defendant “may, only to the extent necessary, prescribe reasonable
fees … for access to information available through automatic data processing equipment.”
28 U.S.C. § 1913 note. Notably, this authorization makes no mention of PACER. Rather, the fees
may be charged for providing information “through automatic data processing equipment.” See id.
Further, 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.” Id. Continuing, Congress crafted an oversight role for itself
with respect to these fees: “The Judicial Conference and the Director shall transmit each schedule
of fees prescribed” by the preceding provision “at least 30 days before the schedule becomes
effective.” Id. Finally, Congress directed that these fees be accounted for by being “deposited as
offsetting collections to the Judiciary Automation Fund … to reimburse expenses incurred in
providing these services.” Id. Accordingly, the plain text of the E-Government Act authorizes the
Judicial Conference to charge fees, as it deems necessary, for the provision of information to the
public through electronic means.
“As always, in interpreting a statute,” the starting point is “the text of the statute itself.”
Murphy Exploration and Prod. Co. v. U.S. Dep’t of Interior, 252 F.3d 473, 480 (D.C. Cir. 2001)
(citing Carter v. United States, 530 U.S. 255 (2000)). When interpreting a statute, courts operate
under the “cardinal principle of statutory construction” to “give effect, if possible, to every clause
and word of a statute.” Williams v. Taylor, 529 U.S. 362, 404 (2000). A plain reading of this text
confirms that the Defendant’s PACER fees are lawful.

11

Rather than relying on “the text of the statute itself,” Murphy Exploration, 252 F.3d at 480,
Plaintiffs ask this Court to act as legislator and add words to the statute that Congress did not
include. Indeed, Plaintiffs suggest that the “only permissible reading of this language is that it bars
the Judicial Conference from charging more in PACER fees, in the aggregate, than the reasonable
costs of administering the PACER system.” Pls.’ Mot. 1. But the text includes no such limitation.
Rather, Plaintiffs cobble together various clauses of this statutory language to reach their desired
conclusion. See Pls.’ Mot. 1 (quoting portions of 28 U.S.C. § 1913 note). Ultimately, Plaintiffs
wish Congress to have stated that “[t]he Judicial Conference may, only to the extent necessary [to
fund PACER], prescribe reasonable fees” and that “all fees hereafter collected as a charge for
[PACER] shall be deposited as offsetting collections to the Judiciary Automation Fund … to
reimburse expenses incurred in providing [PACER.]” But that is not what Congress provided. In
fact, as discussed in Part I.B below, such a reading runs directly counter to the clear Congressional
intent of the E-Government Act—not to mention the fact that this reading ignores that the EGovernment Act never mentions PACER in any way. See infra at Part I.B.7
In addition to the language of the E-Government Act itself, the lawfulness of Defendant’s
PACER fees is further confirmed by the language Congress did not include in the E-Government
Act. Specifically, Plaintiffs suggest that the “liability question” in this matter “is straightforward”
because in 2002 “Congress found that PACER fees (then set at $.07 per page) were ‘higher than
the marginal cost of disseminating the information.’” Pls.’ Mot. 5. But the Congressional Report

7

Notably, the brief of amici Reporters Committee for Freedom of the Press and Seventeen Media
Organizations relies on the same misunderstanding. Specifically, amici suggest that the EGovernment Act imposes a “limitation on fees for access to court records through PACER,”
notwithstanding that nothing in the E-Government Act includes such a limitation. Amici Br. of
Reporters Committee at 2 (ECF No. 59). Accordingly, amici’s arguments fail for the same reasons
as do Plaintiffs’.
12

on which Plaintiffs rely goes on to note that this fee was made “[p]ursuant to existing law.” See
S. Rep. No. 107-174 at 5. Had Congress intended the E-Government Act to change that “existing
law,” it would have expressly done so.
In fact, Congress made clear in the E-Government Act that it knew how to require the
Judicial Conference to take action. For instance, the Act included several express requirements,
including, inter alia, that all courts have operating websites within several years and that the
websites include certain specific categories of information. See Pub. L. No. 107-347, § 205(a), (f).
Congress further required that the courts “update[ ]” this information “regularly.” Id. § 205(b)(1).
But Congress did not include any express directives regarding the amount of fees that the Judicial
Conference could charge for PACER access. And where Congress chose not to use similar
language imposing requirements onto Defendant with regard to PACER, courts are not to read
such requirements into the text. See Russello v. United States, 464 U.S. 16, 23 (1983). Thus,
where, as here, Congress affirmatively established duties on the Judiciary by clear language, see
Pub. L. No. 107-347, § 205(a)(1)-(7) (the chief judges “shall cause to be established and
maintained … a website that contains … the following [seven categories of] information”), but
has not required the reduction of fees if they exceed actual costs of providing a specific service,
there is a presumption that Congress omitted such a requirement knowingly, see Russello, 464 U.S.
at 23.
In fact, Congress showed in other statutory provisions that it knew how to include exactly
the type of language that Plaintiffs ask the Court to read into the E-Government Act. Specifically,
Plaintiffs place great weight on the E-Government Act’s “offsetting collections” language,
suggesting that they are entitled to recoup “reasonable” fees paid if it turns out that the fees
collected exceed the cost of providing the on-line access to documents, because the legislation at

13

issue provides that “the fees … collected … 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.” Pls.’ Mot. 5. Plaintiffs appear to argue
that this language requires that fees deposited not be used for anything other than PACER and that
fees may be collected only as necessary to reimburse the cost of PACER.
This reading, however, is cast into doubt by at least two other statutory provisions. For
instance, in two other portions of Public Law 102-140, Congress used similar language with no
hint that the amount of the fees collected would be altered by including a requirement that receipts
“shall be deposited as offsetting collections[.]” Specifically, in Section 111, Congress effected
specific changes to the bankruptcy fees allowed under 28 U.S.C. § 1930(a), increasing certain fees
by exact dollar amounts and calling for precise percentages of the fees collected to be “deposited
as offsetting collections to the appropriation “United States Trustee System Fund[.]” Pub. L.
No. 102-140, § 111. If Plaintiffs’ reading of such language were correct, this statutory language
would have an internal conflict. In Plaintiffs’ estimation, such fees may only be charged to the
extent necessary to “offset[ ]” expenses. But if that were correct, it would raise serious questions
about whether bankruptcy fees may still be charged at the statutorily required rates if the receipts
exceed expenses. Of course, such a reading must be rejected. See Nat’l Ass’n of Mortg. Brokers
v. Bd. of Govs. of Fed. Reserve Sys., 773 F. Supp. 2d 151, 168 (D.D.C. 2011) (“it is a cardinal
principle of statutory construction that the statute ought, upon the whole, be so construed that, if it
can be prevented, no clause, sentence, or word shall be superfluous, void or insignificant”)
(quoting TRW, Inc. v. Andrews, 534 U.S. 19, 21 (2001)).
Additionally, for a second time in the statute, Congress used the “offsetting collections”
language with no suggestion that this language would affect the amount of fees collected.

14

Specifically, Congress increased the fees collected by the Security and Exchange Commission
(“SEC”): “upon enactment of this Act, the rate of fees under [15 U.S.C. § 77f(b)] shall increase
[to a certain percent] and such increase shall be deposited as an offsetting collection to this
appropriation to recover costs of services of the securities registration process: Provided further,
That such fees shall remain available until expended.”) Again, Plaintiffs’ reading of such statutory
language would require that this “offsetting” language be read to require the fees to be deemed
unlawful if the receipts exceed the “costs of the services.” Id. But as that would require the SEC
to reduce fees below the statutorily required level, such a reading cannot be countenanced.
Indeed, when Congress concluded that estimated fees collected by the Federal Trade
Commission may exceed what an agency should be permitted to spend in a given fiscal year, it
provided an explicit limitation. See Pub. L. No. 102-140, § 111 (“fees made available to the
Federal Trade Commission shall remain available until expended, but … any fees in excess of
$13,500,000 shall not be available until fiscal year 1993”). Ultimately, Congress knew how to
place limits on an agency’s ability to collect and expend fees with express language, none of which
did it do in the E-Government Act of 2002.8
In sum, it is clear both from the language that Congress included (and did not include) in
the E-Government Act that the most accurate way to read the Act is that: (1) Defendant may charge
“reasonable” fees for access to information available through automatic data processing equipment
(e.g., information available on-line, including through PACER access); (2) those fees may be

Instead, Congress required the AO to submit a “comprehensive financial plan for the Judiciary
allocating all sources of available funds including appropriations, fee collections, and carryover
balances, to include a separate and detailed plan for the Judiciary Information Technology fund.”
Pub. L. No. 110–161. Never has Congress responded to such a plan by limiting expenditures;
rather, as discussed herein, it has frequently encouraged spending in areas such as courtroom
technology.
8

15

prescribed to the extent necessary; (3) Defendant may provide PACER access without fees for
certain classes of users; and (4) receipts from PACER fees shall be deposited in a specific fund
and accounted for as offsets for services rendered, but they should be deposited in that fund
regardless of the artificial limitations proposed by Plaintiffs.
But as noted earlier, Plaintiffs would instead have this Court believe that Congress meant
the E-Government Act to read as follows: “(a) The Judicial Conference may, only to the extent
necessary [to pay for PACER], prescribe reasonable fees …[and] (b) … All fees hereafter collected
by the Judiciary under paragraph (a) as a charge for services rendered [PACER] 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 [PACER].”
That is, of course, not what Congress included in the E-Government Act and the Court
should reject Plaintiffs’ attempt to have this Court act as legislator and add text to the EGovernment Act.
B.

The E-Government Act’s Legislative History Confirms that Defendant’s
PACER Fees are Lawful

To the extent that there remains any doubt about what Congress meant through the portions
of the E-Government Act at issue here, the legislative history supports Defendant’s reading.
United States v. Braxtonbrown-Smith, 278 F.3d 1348, 1352 (D.C. Cir. 2002) (“where the language
is subject to more than one interpretation and the meaning of Congress is not apparent from the
language itself,” courts may “look to the general purpose of Congress in enacting the statute and
to its legislative history for helpful clues”).

Notably, though, the Court “must avoid an

interpretation that undermines congressional purpose considered as a whole when alternative
interpretations consistent with the legislative purpose are available.” Id.

16

In the Senate Appropriations Committee Report on the E-Government Act,9 the Committee
explained that the purpose behind changing from a requirement to charge fees (“shall”) to an
ability to charge fees (“may”) was to “encourage the Judicial Conference to move from a fee
structure in which electronic docketing systems are supported primarily by user fees to a fee
structure in which this information is freely available to the greatest extent possible.” S. Rep.
No. 107-174, § 205(e) (emphasis added). The Senate Committee Report proceeded to discuss
PACER as just one example of the ways in which the AO disseminates information to the public.
See id. In so doing, this Report confirms that the statutory text at issue is not limited to PACER
alone, but rather confirms that PACER is merely one component of Defendant’s responsibility for
disseminating information to the public.
Further, Congressional treatment of Defendant’s PACER fees since the E-Government Act
was passed confirms this reading. Indeed, less than a year after the E-Government Act was passed,
both the House and Senate Appropriations Committees expressly directed the AO to use PACER
fees to update the CM/ECF system.10 See S. Rep. No. 108-144 at 118; H. Rep. No. 108-221 at 116.
And several years later, the AO informed Congress that it planned to use receipts from PACER
fees to fund courtroom technology and to perform infrastructure maintenance. See Judiciary FY07

9

The House Appropriations Committee Report on the E-Government Act is silent as to the purpose
behind the language in question. See H. Rep. No. 107-787.
Notably, Congress indicated that it “expects the fee for the [EPA] program to provide for
[CM/ECF] Case Files system enhancements and operational costs.” H. Rep. No. 108-221 at 116.
the following are direct costs associated with development and maintenance of CM/ECF:
Software Development, Implementation, Operations, Maintenance, Training on CM/ECF and
attempts to modernize or replace CM/ECF. Skidgel Decl. ¶ 17.
10

17

Financial Plan at 43 (Mar. 14, 2007) (Skidgel Decl. Ex. K). In response, the Committees expressly
endorsed these expenditures. See 2007 Letters (Skidgel Decl. Exs. L & M).11
Similarly, the March 25, 2010 letter from Senator Lieberman on which Plaintiffs heavily
rely, see Pls.’ Mot. 1–2, confirms Defendant’s understanding of the E-Government Act.
Specifically, Senator Lieberman emphasized that the goal of the Act was to change from a
mandatory fee to a discretionary fee. See Pls.’ Mot. Ex. G at 4. And in this letter itself, Senator
Lieberman confirms that Defendant “asked for and received written consent from the
Appropriations Committees to ‘expand use of [EPA] receipts to support courtroom technology
allotments for installation, cyclical replacement of equipment, and infrastructure maintenance.”
Id. (emphasis added). Statements made by Senator Lieberman years later do not change this fact.12

11

Much has been made in this litigation about television monitors in certain federal district
courtrooms, which were purchased with PACER funds. But Congress was notified about this use
of PACER funds and did not respond with any objection. See Judiciary FY07 Financial Plan at
43 (Mar. 14, 2007) (Skidgel Decl. Ex. K). Moreover, proving a method for jurors and the general
public to see case documents in a courtroom is entirely consistent with Defendant’s charge to
“make [such records] available to the public.” 28 U.S.C. § 1913 note.
Plaintiffs also suggest that Senator Lieberman’s letter “reproach[ed] the AO for continuing to
charge fees ‘well higher than the cost of dissemination.’” Pls.’ Mot. 1; Taylor Decl. Exs. G & H.
And while the Court may review the text of Senator Lieberman’s letter to determine whether he,
in fact, “reproach[ed]” the AO, that is largely beside the point. The statutory text confirms the
Defendant’s reading of the E-Government Act and Senator Lieberman’s isolated statements years
later do nothing to change that fact. See Sullivan v. Finkelstein, 496 U.S. 617, 631 (1990)
(Scalia, J. concurring) (“the views of a legislator concerning a statute already enacted are entitled
to no more weight than the views of a judge concerning a statute not yet passed.”). Indeed, not
only do “the views of a subsequent Congress form a hazardous basis for inferring the intent of an
earlier one,” but “even the contemporaneous remarks of a single legislator who sponsors a bill are
not controlling in analyzing legislative history.” Consumer Prod. Safety Comm’n v. GTE Sylvania,
Inc., 447 U.S. 102, 117–18 (1980). Ultimately, the letter from Sen. Lieberman expressly confirms
that Congress “consent[ed]” to the exact “use of [EPA] receipts to support courtroom technology”
about which Plaintiffs now complain. See Taylor Decl. Ex. G. Any attempt to twist Senator
Lieberman’s words from 2010 to suggest a different legislative intent behind the E-Government
Act—one that is not supported by the statute’s text—should be disregarded. The same fate befalls
the amici brief that Senator Lieberman filed in this action. See ECF No. 56. That brief, which
attempts to offer evidence of legislative intent fifteen years after the E-Government Act’s passage,
12

18

C.

Defendant’s Use of PACER Fees is Lawful

In addition to arguing that the E-Government Act expressly limits the permissible fees
charged for PACER access, Plaintiffs go to great lengths to argue by implication that Defendant
must be violating the E-Government Act because, in Plaintiffs’ estimation, it is spending PACER
funds on improper things. But in each instance, Plaintiffs are either relying on faulty information
or fail to realize that the expenditures are being made at the behest of Congress.
As noted earlier, Plaintiffs place great weight on the televisions that were placed into
various courtrooms to provide jurors and the general public with the ability to view electronic
records during judicial proceedings. See supra n.11. Plaintiffs similarly raise questions with the
use of PACER fees to “(2) send notices to creditors in bankruptcy proceedings … ; (3) send notices
to law-enforcement agencies under the Violent Crime Control Act … ; (4) provide online services
to jurors … ; (5) cover ‘costs associated with support for the uscourts.gov website,’ … ; and (6)
fund a state-court study in Mississippi.” Pls.’ Mot. 17. Not only are Plaintiffs misguided with
respect to the televisions, see supra n. 11, but they fail to recognize that each of these identified
items have been subject to Congressional approval. For instance, it was the Report from the House
Committee on Appropriations regarding the Appropriations Act of 1997, which stated that the
“Committee supports efforts of the judiciary to make electronic information available to the public,
and expects that available balances from public access fees in the judiciary automation fund will
be used to enhance the availability of public access,” including “electronic bankruptcy noticing.”
H. Rep. No. 104-676 at 89.

Similarly, in 1998, the Report of the Senate Committee on

Appropriations expressed that the Committee “expect[ed] that available balances from public

cannot be read to supersede the clear text of the statute and actions of Congress at the time of the
Act’s passage.
19

access fees in the judiciary automation fund [would] be used to enhance availability of public
access.” See S. Rep. No 105-235 at 114. The Judiciary relied on these and similar reports to
develop a system for probation and pretrial services that would electronically notify local law
enforcement agencies of changes to the case history and to create a web-based juror notice system.
Additionally, for the “study in Mississippi,” the AO undertook a study in accordance with the
Senate Committee on Appropriations’ Report of July 2006, which expressed the Committee’s
support for the Federal Judiciary sharing its case management electronic case filing system at the
State level and encouraged the Judiciary to study whether sharing such technology, including
electronic billing processes, is viable. See S. Rep. No. 109-293 at 176. Notably, these expenditures
were also approved by the Committees on Appropriations from both the House and Senate.
See 2007 Letters (Skidgel Decl. Exs. L & M).
II.

PLAINTIFFS’ MISCELLANEOUS ARGUMENTS LACK MERIT
Plaintiffs also rely on a scattering of miscellaneous arguments in their challenge to the

PACER fees, none of which has merit.
A. Independent Offices Authorities Act
Plaintiffs ask the Court to adopt their reading of the E-Government Act based also on an
analogy to the 1982 Independent Offices Authorities Act (“IOAA”). See Pls.’ Mot. 12 (suggesting
that the IOAA is an “analogous statute”). This statute authorizes agencies to charge a user fee for
“each service or thing of value provided by [the] agency,” 31 U.S.C. § 9701(a), but limits the fees
that may be charged to fees that are “fair” and “based on” the cost to the Government, the value of
the service, public policy and “other relevant facts[,]” id. Plaintiffs suggest that this language, read
alongside the E-Government Act, shows a “clear[ ] inten[tion] for fees to be restricted to the costs
of providing the services for which they are charged … and nothing more.” Pls.’ Mot. 14.

20

Plaintiffs are misguided for several reasons. First, they suggest that “[l]ike the E-Government Act,
the IOAA’s goal is to make agency programs conferring benefits on recipients ‘self-sustaining to
the extent possible.’” Pls.’ Mot. 12 (quoting 31 U.S.C. § 9701(a)). But it is worth noting that the
E-Government Act does not include any similar language as to that which Congress included in
IOAA regarding the goal of “self-sustain[ment].” Moreover, Plaintiffs appear to suggest that this
1982 Act operates as an across-the-board restriction on any fee that an agency charges for any
service where, according to Plaintiffs, there is a per se bar on agencies “charging fees that exceed
the costs of providing the service.” Pls.’ Mot. 12. Not only is that unsupported by the cases on
which Plaintiffs rely, it is belied by the fact that Congress routinely sets fee levels in statutes,
irrespective of the exact cost of providing the underlying service. See supra at 14–15 (discussing
several statutorily enacted fees).
Moreover, the AO is not subject to the IOAA; but even if it were, it is not subject to the
IOAA regarding the portion of the E-Government Act at issue here. If the two statutes are in
conflict, the E-Government Act, coming twenty years after the IOAA, would govern, allowing
more discretion in the assessments of fees that can provide the services called for in the EGovernment Act. Indeed, a repeal by implication may be found when earlier and later statutes are
irreconcilable. See Gallenstein v. United States, 975 F.2d 286, 290–91 (6th Cir.1992) (quoting
Morton v. Mancari, 417 U.S. 535, 550 (1974)); Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
551 U.S. 644, 662 (2007) (Courts may infer a statutory repeal if such a construction is necessary
in order that the words of the later statute shall have meaning). Here, the E-Government Act
expressly required courts to establish websites with specific information, including courthouse
addresses and text-searchable opinions, but included no separate funding beyond that collected as

21

a reasonable fee for electronic access to court records. The clear intent was to permit the free
access to such information even if the funds had to come from PACER fees to cover the costs.
Although the IOAA states generally that the head of an agency may establish fees, the fees
at issue here are expressly provided for in another statute, which directs that the Judicial
Conference, not the Director, may prescribe fees. Additionally, the D.C. Circuit held in Capital
Cities Communications, Inc. v. FCC, 554 F.2d 1135 (D.C. Cir. 1976), that the IOAA does not
authorize an agency to vary its fees among beneficiaries. Id. at 1138. In contrast, the Judiciary’s
enabling statute, specifically allowed for varying fees among beneficiaries when it
stated: “Judicial Conference shall hereafter prescribe reasonable fees …. These fees may
distinguish between classes of persons, and shall provide for exempting persons or classes of
persons from the fees.” Pub. L. No. 102-140, § 303. The section on exempting persons and classes
of persons, and distinguishing between classes was not changed by the E-Government Act.
Furthermore, according to the Government Accountability Office’s Principles of Federal
Appropriations Law, which Plaintiffs reference, see Pls.’ Mot. 14, “[f]ees incident to litigation in
the courts are also commonplace, but they implicate certain constitutional considerations and are
prescribed under statutes other than the IOAA.”

See Government Accountability Office,

Principles of Federal Appropriations Law, 2008 WL 6969303; see also 28 U.S.C. §§ 1911
(Supreme Court), 1913 (courts of appeals), 1914 (district courts), 1926 (Court of Federal Claims),
1930 (bankruptcy fees). Thus, notwithstanding the IOAA, these provisions permit reasonable fees
to be charged to those seeking access to the courts. See, e.g., Lumbert v. Illinois Dep’t of
Corrections, 827 F.2d 257 (7th Cir. 1987).
Ultimately, Plaintiffs’ reliance on the IOAA is misguided as it offers no insight into either
the E-Government Act or the statutory authorization for Defendant to charge PACER fees. If

22

anything, the IOAA language only confirms further that Congress knows how to tether an agency’s
charge of fees to the costs of providing a particular service. This Court may, and indeed should,
cast aside Plaintiffs reliance on the IOAA.
B. First Amendment
Notwithstanding that their Complaint does not include a claim that PACER fees somehow
violate the First Amendment, Plaintiffs now suggest that the First Amendment should guide the
Court’s resolution of how much may be charged for electronic access to Court records. See Pls.’
Mot. 2, 14–16. But Plaintiffs fail to identify any authority for this proposition. Indeed, Plaintiffs
are misguided in their belief that PACER fees create a barrier to access, as they are able to view
all electronically filed records free of charge through terminals available at the courthouse. 13
Moreover, the cases on which Plaintiffs rely are inapposite, addressing fees sought to be collected
for utilizing a public forum for purposes of engaging in First Amendment protected speech or other

13

Similarly, amici appear to fall into the same trap. The brief of the Reporters Committee for
Freedom of the Press and Seventeen Media Organizations, for instance, bases its argument on the
notion that “accuracy and fairness in the news media’s reporting” is aided through “unfettered and
inexpensive access to court documents.” Amici Br. of Reporters Committee at 2 (ECF No. 59).
But as noted, all such records are readily available through terminals at the courthouse and, to the
extent that amici are suggesting that there is a First Amendment right to access court filings
electronically, they fail to offer any support for such a proposition. See id. at 9–10 (citing cases
discussing First Amendment right to access court documents, none of which suggests a First
Amendment right to free electronic access). The brief of the American Association of Law
Libraries similarly focuses on an “essential” need for “[p]ublic access to federal court proceedings
and records[.]” Amici Br. of Am. Assoc. of Law Libraries, et al. at 2 (ECF No. 61). But amici
similarly fail to note that court records are freely accessible at the courthouse and that provisions
exist for individuals to obtain free access through fee waiver requests. Ultimately, the American
Association of Law Libraries offers no legal basis for concluding that the current PACER fees
violate any statutory provisions. Rather, they appear simply to be using their brief to complain
about the process for obtaining fee waivers. Ultimately, this Court may reject the American
Association of Law Libraries’ arguments, as they provide no basis for concluding that Defendant
has violated any statutory provisions relevant to PACER fees.
23

exercise of the free exercise clause. Plaintiff’s hint that somehow the First Amendment could
prohibit the charging of fees as a convenience is unsupported.
The Complaint makes no mention of the First Amendment as a basis for Plaintiffs claims,
nor do the cases they cite offer any support for the suggestion that the First Amendment would
support a requirement to limit fees to electronic access to Court information. Plaintiffs rely on
several cases that address only the collection of fees as a prerequisite to engaging in free speech.
See, e.g., Sullivan v. City of Augusta, 511 F.3d 16, 38 (1st Cir. 2007) (permit requirements for
demonstration too onerous to pass First Amendment scrutiny); Eastern Connecticut Citizens
Action Grp. v. Powers, 723 F.2d 1050, 1056 (2d Cir. 1983) (invalidating permit processing fees
and insurance requirements for demonstration on public property). These cases involved fees
collected as a precondition to granting a permit for the plaintiffs to engage in expressive activity
and have no bearing here. Likewise, Murdock v. Penn., 319 U.S. 105, 113–14 (1943) (Jehovah’s
Witnesses door to door distribution of literature and soliciting people to purchase religious books
and pamphlets) and Nat’l Awareness Found. v. Abrams, 50 F.3d 1159, 1165 (2d Cir. 1995)
(approving flat annual registration fee of $80 for all professional fundraisers as nominal and
reasonably connected to administrative costs, including enforcement, of registration system, and
concluding fee did not violate First Amendment), involved limitations placed on expressive
conduct and have no relevance here.14

14

Similarly, Plaintiffs rely on Fernandes v. Limmer, 663 F.2d 619, 633 (5th Cir. 1981) (discussing
rights under free exercise clause); Cox v. New Hampshire, 312 U.S. 569, 577 (1941) (appeal of
conviction for taking part in a parade or procession upon a public street without a license); and
Nat’l Awareness Found. v. Abrams, 50 F.3d 1159, 1165 (2d Cir. 1995) (approving flat annual
registration fee of $80 for all professional fundraisers as nominal and reasonably connected to
administrative costs, including enforcement, of registration system, and concluding fee did not
violate First Amendment). Pl. Mot. at 15. Those cases also support only a right freedom of
expression and have no bearing on the instant dispute.
24

Indeed, Plaintiffs admit that the First Amendment would not act as a bar to adoption of fees
above and beyond the cost to administer PACER. Pls.’ Mot. 16 (“This does not necessarily mean
that a statute would actually be unconstitutional if it were to expressly allow the judiciary to recoup
more than the costs of administering PACER.”). Thus, the First Amendment argument posited by
Plaintiffs is nothing but an admission that the Judicial Conference has the power to charge the
reasonable fees for access to Court information and that what remains is whether the fees charged
are in compliance with the E-Government Act. In short, the imposition of a lesser fee is not
compelled by the First Amendment.
CONCLUSION
For the foregoing reasons, Defendant respectfully requests that the Court deny Plaintiffs’
Motion for Summary Judgment and, instead, grant summary judgment in Defendant’s favor.
November 17, 2017

Respectfully submitted,
JESSIE K. LIU
D.C. Bar #472845
United States Attorney
DANIEL F. VAN HORN
D.C. BAR # 924092
Chief, Civil Division
By:

/s/ W. Mark Nebeker
W. MARK NEBEKER (D.C. Bar #396739)
BRIAN J. FIELD (D.C. Bar #985577)
Assistant United States Attorneys
555 4th Street, N.W.
Washington, D.C. 20530
[phone]
[e-mail]

25