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,
v.

Civil Action No. 16-745 (ESH)

UNITED STATES OF AMERICA
Defendant.
DEFENDANT’S STATEMENT OF MATERIAL FACTS
AS TO WHICH THERE IS NO GENUINE DISPUTE AND RESPONSE
TO PLAINTIFFS’ STATEMENT OF UNDISPUTED MATERIAL FACTS
Pursuant to Local Rule 7(h), Defendant submits the following list of material facts as to
which there is no genuine dispute:
1.

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)
2.

The Judicial Conference authorized the Committee on Judicial Improvement “to

establish access fees during the pendency of the program.” Id.
3.

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).

4.

In the Judiciary Appropriations Act of 1990, Congress established 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).
5.

In 1990, the Judicial Conference 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).
6.

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.
7.

Through the Judicial Appropriations Act of 1991, 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 Pub. L. No. 101-515, § 404.
8.

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. Pub. L. No. 101-515, § 404.
9.

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.” Pub. L.
No. 102-140.

The Judiciary Automation Fund was renamed the Judiciary Information Technology Fund. See
28 U.S.C. § 612.
1

2

10.

Congress also allowed that fees need not be collected for all access; rather the “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.
11.

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.
12.

The Judicial Conference later 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); Rep. of Proceedings of the Judicial
Conference of the United States at 16 (Mar. 15, 1994).
13.

Congress also required that the public access fee schedule be expanded to cover

multidistrict litigation. See Pub. L. No. 104-317, § 403.
14.

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).
15.

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 [EPA]
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 documents, electronic
filings, enhanced use of the Internet, and electronic bankruptcy noticing.
3

S. Rep. No. 104-676 at 89.
16.

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 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)
17.

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)
18.

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).
19.

In 2002, Congress passed the E-Government Act of 2002. See Pub. L. No. 107-

20.

The E-Government Act amended existing law to remove the requirement that the

347.

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.” Pub. L. No.
107-347.
21.

The E-Government Act also included several directives, including 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

4

April 16, 2005, be available in text-searchable format, and that an annual report be provided to
Congress identifying any court requesting a deferral from these requirements. See Pub. L.
No. 107-347, § 205.
22.

The E-Government Act did not include any provisions regarding sources 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. 104-347, § 205.
23.

In 2003, 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 also
H. Rep. No. 108-401 (“the conferees adopt the House report language concerning Electronic
Public Access fees.”).
24.

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.
25.

In order to provide sufficient revenue to support the CM/ECF operational and

maintenance costs that Congress expected, 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).
26.

The Senate Committee on Appropriations Report for the Judicial Appropriations

Act of 1999 provides 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

5

in the judiciary automation fund will be used to enhance the availability of public access.” S. Rep.
No. 105-235, at 114.
27.

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 that, among other things, provided for “expanded use of the Electronic Public Access
(‘EPA’) revenues.” Judiciary FY07 Financial Plans (Mar. 14, 2007).
28.

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); Ltr. from Rep. Serrano (May 2, 2007).
29.

The AO submitted its FY 2007 Financial Plan to both Appropriations Committees,

outlining various courtroom technology installations and maintenance that would be funded
through EPA revenues. Declaration of Wendell A. Skidgel Jr. (“Skidgel Decl.”), Ex. K at 43.
These expenditures were approved through the Financial Services and General Government
Appropriations Act of 2008. Pub. L. No. 110–161.
30.

In 2011, the Judicial Conference amended the PACER fee schedule, raising the per-

page cost to $0.10. See Rep. of Proceedings of the Judicial Conference of the United States at 16
(Sept. 13, 2011).
31.

The Judicial Conference noted, in raising the PACER fee schedule to $0.10 per

page, the existing statutory and policy requirements of charging fees commensurate with the cost
of providing existing services and developing enhanced services. See id.

6

32.

The Judicial Conference also 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.
*

*

*

Pursuant to Local Rule 7(h), Defendant submits the following response to Plaintiffs’
Statement of Undisputed Material Facts. As many of Plaintiffs’ statements consist of immaterial
facts, mischaracterizations of the record, and improper argument, all in violation of Local Rule
7(h), the fact that Defendant denies any of Plaintiffs’ statements does not preclude this Court from
granting Defendant’s Cross-Motion for Summary Judgment. The following responds to each
numbered paragraph included in Plaintiffs’ Statement of Undisputed Material Facts:
1.-4. Admitted.
5. Denied, except to admit that no fee is owed for electronic access to court data or audio
files via PACER until the account holder accrues charges of more than $15. A person accessing
an electronically filed document for the first time who is a party in a case does not incur a fee; no
fee is charged for access to judicial opinions; and no fee is charged for viewing case information
or documents at courthouse public access terminals. Taylor Decl. Ex. A at 2.
6.-8. Admitted
9. Defendant admits that the language similar to that cited can be found in Exhibit B to the
Taylor Declaration, but also notes that each page of the document (Electronic Case Files in the
Federal Courts: A Preliminary Examination of Goals, Issues, and the Road Ahead – Discussion
Draft) contains a footer stating:
This paper was prepared by staff of the Administrative Office of the United States
Courts, with substantial assistance from judges and court staff, to aid the
deliberations of the Judicial Conference of the United States and its committees.
The ideas expressed in this paper do not necessarily reflect the policies of the
7

Conference or any committee thereof, any court of the United States, or the
Administrative Office.
Taylor Decl. Ex. B.
10.-11. Admitted.
12. Defendant admits that language similar to that cited can be found in the cited statute,
but denies that Plaintiffs’ selective quotations from the statute present a fair reading of the
enactment. See Pub. L. No. 107-347, § 205; Pub. L. No. 102-140, § 303; Pub. L. No. 101-515,
§ 404; 28 U.S.C. § 612.
13. Defendant admits that Plaintiffs have accurately quoted the selected language from the
Congressional enactment found in the note to 28 U.S.C § 1913, but denies that these selective
quotations present a fair reading of the enactments reflected in the legislation. See, e.g., Pub. L.
No. 102-140, § 303; Pub. L. No. 104-317, § 403; Pub. L. No. 107-347, § 205.
14. Defendant admits that, where a per-page fee was charged, it was not reduced, but notes
that the Judiciary did, as contemplated in the E-Government Act, increase the amount of data it
made freely available. Taylor Decl. Ex. L.
15. Defendant admits this statement and notes that “[t]his increase is predicated upon
Congressional guidance that the judiciary is expected to use Pacer fee revenue to fund CM/ECF
operations and maintenance.” Taylor Decl. Ex. E.
16. Defendant admits this statement, except to note that the correct terminology for what
Plaintiffs call a surplus is an unobligated available balance, as allowed for in the legislation
creating the Judiciary Information Technology Fund (“JITF”). 28 U.S.C. § 612; Pub. L. No. 101162, § 404(b)(1).
17. Defendant admits that Plaintiffs have accurately quoted the selected language from the
cited document, but denies that their selective quotations from the document present a fair reading
8

of the contents, noting, for instance, that Plaintiffs have omitted the following language from
Exhibit F (JITF annual report): “in accordance with authorizing legislation”; “with the
authorization of Congress.” Taylor Decl. Ex. F. Defendant further notes that the “Judiciary asked
for and received written consent from the Appropriations Committees to use Electronic Public
Access (‘EPA’) receipts to support courtroom technology allotments.” Ltr. from Sen. Lieberman
(Taylor Decl. Ex. G at 4), see also Ltr. from Sens. Durbin and Brownback (May 2, 2007) (Skidgel
Decl. Ex. L); Ltr. from Rep. Serrano (May 2, 2007) (Skidgel Decl. Ex. M).
18. Defendant admits that Plaintiffs have accurately quoted the selected language from the
cited testimony, but denies that their selective quotations from the testimony present a fair reading
of the contents, noting, for instance, that Plaintiffs have omitted the pertinent part of Judge
Gibbons’ statement that reads: “Congress has authorized the Judiciary to utilize these fees to run
the PACER program as well as to offset some costs in our information technology program that
would otherwise have to be funded with appropriated funds. The Judiciary’s fiscal year 2009
budget request assumes $68 million in PACER fees will be available to finance information
technology requirements in the courts’ Salaries and Expenses account, thereby reducing our need
for appropriated funds.” See www.uscourts.gov/file/3563/download (emphasis added).
19. Admitted.
20. Plaintiffs claim that the sole support that Director Duff offered for the view that the
Judiciary was charging PACER fees only to the extent necessary was a 2004 conference report is
false. Director Duff explained that “many services and documents are provided to the public for
free, and charges that are imposed are the minimum possible only to recover costs.” Ltr. from
Hon. Lee Rosenthal and James C. Duff to Sen. Lieberman (Mar. 26, 2009) (Taylor Decl. Ex. I).
The letter further explained: “And that as such, the Judiciary believed it was meeting the E-

9

Government Act’s requirements to promote public access to federal court documents while
recognizing that such access cannot be entirely free of charge.” Id. The Director also reminded
Senator Lieberman that eighteen years earlier, Congress mandated that the Judiciary charge user
fees for electronic access to court files as a way to pay for this service.” Id. And that, “[s]ince that
time, various legislative directives have amended the mandate, mostly to expand the permissible
use of the fee revenue to pay for other services related to the electronic dissemination of court
information, such as the Case Management/Electronic Case Files (‘CM/ECF’) system and an
Electronic Bankruptcy Noticing (‘EBN’) system.” Id. The letter included a citation to H. Rep.
No. 108-401, at 614 (adopting the language of H. Rep. No. 108-221).
21. Admitted, except to note that Plaintiffs fail to disclose that in the cited annual letter to
the Appropriations Committee, Senator Lieberman expressly acknowledged that “the judiciary
asked for and received written consent from the House and Senate Appropriations Committees, to
“expand use of [EPA] receipts to support courtroom technology allotments for installation, cyclical
replacement of equipment, and infrastructure maintenance.” Taylor Decl. Ex. G.
22. Admitted, except to note that Plaintiffs state that in the EPA program Summary (Taylor
Decl. Ex. J) the AO posits that the fees comply with the E-Government Act because they “are only
used for public access, and are not subject to being redirected for other purposes.” Defendant notes
that the preceding sentences state, in part:
In order to maintain the level of service presently provided through the public
access program, the Judiciary would need appropriated funds to replace the fee
revenue, and in this fiscal climate increased appropriations are not available. Fee
revenue allows the Judiciary to pursue new technologies for providing public
access, develop prototype programs to test the feasibility of new public access
technologies, and develop enhancements to existing systems. By authorizing the
fee, Congress has provided the Judiciary with revenue that is dedicated solely to
promoting and enhancing public access. These fees are only used for public access,
and are not subject to being redirected for other purposes. The fee, even a nominal

10

fee, also provides a user with a tangible, financial incentive to use the system
judiciously and efficiently, and in the absence of a fee the system can be abused.
Taylor Decl. Ex. J.
23. Defendant admits the assertions in this paragraph, but also notes that all of the
2012 expenditures listed in Plaintiffs’ Exhibit K, were contained in the Judiciary’s 2012 spending
plan, and were approved by Congress. See Taylor Decl. Ex. K (Defendant’s 2012 spending plan,
and Plaintiff’s 2012 House and Senate Appropriations Reports).
24. The first sentence is a characterization rather than a fact, which characterization is not
supported by the citation; the second sentence is admitted, but Defendant notes that the spending
amounts made “information available to the public electronically” and were included in the
Judiciary’s yearly spending plan, was approved by Congress. See Judiciary FY07 Financial Plans
(Mar. 14, 2007) (Skidgel Decl. Ex. K); 2007 spending plan, Ltr. from Sens. Durbin and Brownback
(May 2, 2007) (Skidgel Decl. Ex. L); Ltr. from Rep. Serrano (May 2, 2007) (Skidgel Decl. Ex.
M)); S. Rep. No. 105-235 at 114 (stating that “[t]he Committee ... expects that available balances
from public access fees in the judiciary automation fund will be used to enhance availability of
public access.)”
25. Defendant admits this assertion and notes that this was done in accordance with
Congressional directives, and is consistent with Public Law 102-140, which states that fees
collected shall be used “to reimburse expenses incurred in providing these services.” Pub. L.
No. 102-140.
26. Defendant admits this assertion and notes that the Judiciary requested and received
written consent from the Congressional Appropriators to use EPA funds for courtroom technology.
See Judiciary FY07 Financial Plans (Mar. 14, 2007) (Skidgel Decl. Ex. K); 2007 spending plan,

11

Ltr. from Sens. Durbin and Brownback (May 2, 2007) (Skidgel Decl. Ex. L); Ltr. from Rep.
Serrano (May 2, 2007) (Skidgel Decl. Ex. M)).
28. Defendant admits this assertion and notes that the Judiciary spent $110,985,208, which
was $8.4 million more than was received in Fiscal Year 2010.
29. The cost of the EPA program in 2010 was $110,985,208, not $18,768,552 as Plaintiffs
claim. See Taylor Decl. Ex. L. at 2 (line 50). It appears that Plaintiffs’ assertion resulted from
extracting a number from a place-holder subheading, under the Public Access Services and
Applications Heading, to argue that the EPA program subheadings represent the only expenses
PACER fees should fund. However, every expenditure in the Quarterly Report comprises public
access services and are part of the Judiciary’s Electronic Public Access Program. Taylor Decl.
Ex. L.
30. Denied, except as admitted in the paragraphs that follow. Plaintiffs offer no citation
in support of this enumerated paragraph and Plaintiffs appear to confuse the EPA program (which
encompasses all the electronic public access services the Judiciary provides) with the text of line
item 8, which is a description attached to Budget Organization Code (“BOC”) OXEEPAX but is
not an accurate representation of the services and programs funded through the Judiciary’s EPA
program. Taylor Decl. Ex. L. at 1–2 lines 6–50 (listing the expenditures for the Judiciary’s
entire EPA program).
31. Admitted.
32. Defendant admits this assertion and notes that Congress specifically authorized
the use of EPA funds for courtroom technology allotments for installation, cyclical
replacement of equipment, and infrastructure maintenance. Skidgel Decl. Exs. K at 43, L, & M.
33. Admitted.

12

34. Defendant admits this assertion and notes that Congress indicated that it “expects
the Judiciary to utilize available balances derived from [EPA] 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[,]” H. Rep. No 104-676 at
89, and that the overall quality of service to the public will be improved with the availability
of enhancements such as … enhanced use of the Internet,” id.
35. Admitted.
36. Defendant admits this assertion and notes that Congress did “urge[] the judiciary to
undertake a study of whether sharing such technology, including electronic billing processes,
is a viable option.” S. Rep. No. 109-293 at 176.
37. Admitted.
38. Defendant admits this assertion and notes that Congress indicated that it “expects the
Judiciary to utilize available balances derived from [EPA] 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
bankruptcy noticing.” H. Rep. No. 104-676 at 89.
39.-40. Admitted.
41. Defendant admits this assertion and notes that 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. Furthermore, the following are direct costs
associated with development and maintenance of CM/ECF:

13

Software Development,

Implementation, Operations, Maintenance, Training on CM/ECF and attempts to modernize
or replace CM/ECF. Skidgel Decl. ¶ 17.
42. Admitted.
43. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] 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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at
89. Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for
services rendered shall be deposited as offsetting collections … reimburse expenses incurred
in providing these services.” Pub. L. No. 102-140, § 303. Telecommunication costs, (including
communications hardware, maintenance and security services) are direct costs associated with
CM/ECF, PACER, and the other public access services the Judiciary provides. Skidgel Decl.
¶ 18.
44. Admitted.
45. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] fees in the Judiciary Automation
Fund to make information and services more accessible to the public through improvements

14

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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at
89. Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for
services rendered shall be deposited as offsetting collections … reimburse expenses incurred
in providing these services.” Pub. L. No. 102-140, § 303. Through EPA allotments, courts are
able to determine the best ways to improve electronic public access services (such as by adding a
public printer or upgrading to a more robust internet web server). Funding court staff to work on
EPA projects, such as CM/ECF, utilizes existing expertise and reduces training time and
associated costs compared to that of hiring contractors. Skidgel Decl. ¶ 19.
46. Admitted.
47. The cost of the EPA program in 2011 was $108,665,271, not $3,363,770 as
Plaintiffs claim. See Taylor Decl. Ex. L. at 4 (line 64). It appears that Plaintiffs’ assertion
results from extracting a number from a placeholder subheading, under the Public Access
Services and Applications Heading, to argue that the EPA program subheadings represent the
only expenses PACER fees should fund. However, every expenditure in the Quarterly Report
comprises public access services and are part of the Judiciary’s Electronic Public Access
Program. Accordingly, they are properly funded by PACER fees. See Taylor Decl. Ex. L.
48. Denied. Plaintiffs appear to be confusing the EPA program (which encompasses
all the electronic public access services the Judiciary provides) with the text of line item 12,
which is a description attached to BOC OXEEPAX but is not an accurate representation of
the services and programs funded through the Judiciary’s EPA program. See Taylor Decl.
Ex. L. at 3–4 lines 9–64 (listing the expenditures for the Judiciary’s entire EPA program).

15

49. Denied, except as admitted in the paragraphs that follow. Plaintiffs offer no citation
in support of this enumerated paragraph.
50. Admitted.
51. Defendant admits this assertion and notes that Congress specifically authorized
the use of EPA funds for courtroom technology allotments for installation, cyclical
replacement of equipment, and infrastructure maintenance. Skidgel Decl. Exs. K at 43, L, & M.
52. Admitted.
53. Defendant admits this assertion and notes that Congress indicated that it “expects
the Judiciary to utilize available balances derived from [EPA] 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.” H. Rep. No. 104-676 at
89, and, that the overall quality of service to the public will be improved with the availability
of enhancements such as ... enhanced use of the Internet.” Id.
54. Admitted.
55. Defendant admits this assertion and notes that Congress indicated that it “expects
the Judiciary to utilize available balances derived from [EPA] 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 bankruptcy noticing.” H. Rep. No. 104-676 at 89.
56. Admitted.
57. Defendant admits this assertion and notes that Congress indicated that it “expects
the fee for the [EPA] program to provide for [CM/ECF] Files system enhancements and

16

operational costs.” H. Rep. No. 108-221 at 116. Furthermore, Software Development,
Implementation, Operations, Maintenance, Training on CM/ECF and attempts to modernize
or replace CM/ECF are direct costs associated with development and maintenance of
CM/ECF. Skidgel Decl. ¶ 17.
58. Admitted.
59. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] 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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at
89. Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for
services rendered shall be deposited as offsetting collections … reimburse expenses incurred
in providing these services.” Pub. L. No. 102-140, § 303. Telecommunication costs, (including
communications hardware, maintenance and security services) are direct costs associated with
CM/ECF, PACER, and the other public access services the Judiciary provides. Skidgel Decl.
¶ 18.
60. Admitted.
61. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the

17

Judiciary to utilize available balances derived from [EPA] 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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at
89. Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for
services rendered shall be deposited as offsetting collections … reimburse expenses incurred
in providing these services.” Pub. L. No. 102-140, § 303. Through EPA allotments, courts are
able to determine the best ways to improve electronic public access services (such as by adding a
public printer or upgrading to a more robust internet web server). Funding court staff to work on
EPA projects, such as CM/ECF, utilizes existing expertise and reduces training time and
associated costs compared to that of hiring contractors. Skidgel Decl. ¶ 19.
62. Admitted.
63. The cost of the EPA program in 2012 was $120,176,766, not $3,547,279 as
Plaintiffs claim. See Taylor Decl. Ex. L. at 7 (line 57). It appears that Plaintiffs’ assertion
resulted from extracting a number from a placeholder subheading, under the Public Access
Services Heading, to argue that the EPA program subheadings represent the only expenses
PACER fees should fund. However, every expenditure in the Quarterly Report comprises
public access services and are part of the Judiciary’s Electronic Public Access Program.
Accordingly, they are properly funded by PACER fees. See Taylor Decl. Ex. L.
64. Denied. Plaintiffs appear to be confusing the EPA program (which encompasses
all the electronic public access services the Judiciary provides) with the text of line item 11,
which is a description attached to BOC OXEEPAX but is not an accurate representation of

18

the services and programs funded through the Judiciary’s EPA program. See Taylor Decl.
Ex. L. at 6–7 lines 9–57 (listing the expenditures for the Judiciary’s entire EPA program).
65. Denied, except as admitted in the paragraphs that follow. Plaintiffs offer no citation
in support of this enumerated paragraph.
66. Admitted.
67. Defendant admits this assertion and notes that Congress specifically authorized the
use of EPA funds for courtroom technology allotments for installation, cyclical replacement
of equipment, and infrastructure maintenance. Skidgel Decl. Exs. K at 43, L & M.
68. Admitted.
69. Defendant admits this assertion and notes that Congress indicated that it “expects
the Judiciary to utilize available balances derived from [EPA] 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.” H. Rep. No. 104-676 at
89. And that the overall quality of service to the public will be improved with the availability
of enhancements such as ... enhanced use of the Internet.” Id.
70. Admitted.
71. Defendant admits this assertion and notes that providing prospective jurors with
electronic copies of court documents is consistent with Congress’ expectation for “the
Judiciary to utilize available balances derived from [EPA] 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 ... enhanced use of the
Internet.” H. Rep. No. 104-676 at 89.

19

72. Admitted.
73. Defendant admits this assertion and notes that Congress indicated that it “expects
the Judiciary to utilize available balances derived from [EPA] 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 bankruptcy noticing.” H. Rep. No. 104-676 at 89.
74. Admitted.
75. Defendant admits this assertion and notes that Congress indicated that it “expects
the fee for the [EPA] program to provide for [CM/ECF] system enhancements and operational
costs.” H. Rep. No. 108-221 at 116. Furthermore, Software Development, Implementation,
Operations, Maintenance, Training on CM/ECF and attempts to modernize or replace
CM/ECF are direct costs associated with development and maintenance of CM/ECF. Skidgel
Decl. ¶ 17.
76. Admitted.
77. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] 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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at

20

89. Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for
services rendered shall be deposited as offsetting collections … reimburse expenses incurred
in providing these services.” Pub. L. No. 102-140, § 303. Telecommunication costs, (including
communications hardware, maintenance and security services) are direct costs associated with
CM/ECF, PACER, and the other public access services the Judiciary provides. Skidgel Decl.
¶ 18.
78. Admitted.
79. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] 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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at
89. Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for
services rendered shall be deposited as offsetting collections … reimburse expenses incurred
in providing these services.” Pub. L. No. 102-140, § 303. Through EPA allotments, courts
are able to determine the best ways to improve electronic public access services (such as by
adding a public printer or upgrading to a more robust internet web server). Funding court
staff to work on EPA projects, such as CM/ECF, utilizes existing expertise and reduces
training time and associated costs compared to that of hiring contractors. Skidgel Decl. ¶ 19.
80. Admitted.

21

81. The cost of the EPA program in 2013 was $143,339,525, not $4,652,972 as
Plaintiffs claim. See Taylor Decl. Ex. L. at 11 (line 66). It appears that Plaintiffs’ assertion
resulted from extracting a number from a placeholder subheading, under the Public Access
Services Heading, to argue that the EPA program subheadings represent the only expenses
PACER fees should fund. However, every expenditure in the Quarterly Report comprises
public access services and are part of the Judiciary’s Electronic Public Access Program.
Accordingly, they are properly funded by PACER fees. See Taylor Decl. Ex. L.
82. Denied. Plaintiffs appear to be confusing the EPA program (which encompasses
all the electronic public access services the Judiciary provides) with the text of line item 14,
which is a description attached to BOC OPCEPAX but is not an accurate representation of
the services and programs funded through the Judiciary’s EPA program. See Taylor Decl.
Ex. L. at 9–11 lines 12–66. (listing the expenditures for the Judiciary’s entire EPA program).
83. Denied, except as admitted in the paragraphs that follow. Plaintiffs offers no citation
in support of this enumerated paragraph.
84. Admitted.
85. Defendant admits this assertion and notes that Congress specifically authorized
the use of EPA funds for courtroom technology allotments for installation, cyclical
replacement of equipment, and infrastructure maintenance. Skidgel Decl. Exs. K at 43, L, & M.
86. Admitted.
87. Defendant admits this assertion and notes that providing prospective jurors with
electronic copies of court documents is consistent with Congress’ expectation for “the
Judiciary to utilize available balances derived from [EPA] fees in the Judiciary Automation
Fund to make information and services more accessible to the public through improvements

22

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 ... enhanced use of the
Internet.” H. Rep. No. 104-676 at 89.
88. Admitted.
89. Defendant admits this assertion and notes that providing prospective jurors with
electronic copies of court documents is consistent with Congress’ expectation for “the
Judiciary to utilize available balances derived from [EPA] 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 ... enhanced use of the
Internet.” H. Rep. No. 104-676 at 89.
90. Admitted.
91. Defendant admits this assertion and notes that providing prospective jurors with
electronic copies of court documents is consistent with Congress’ expectation for “the
Judiciary to utilize available balances derived from [EPA] 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 ... enhanced use of the
Internet.” H. Rep. No. 104-676 at 89.
92. Admitted.
93. Defendant admits this assertion and notes that 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. Furthermore, Software Development,

23

Implementation, Operations, Maintenance, Training on CM/ECF and attempts to modernize
or replace CM/ECF are direct costs associated with development and maintenance of
CM/ECF. Skidgel Decl. ¶ 17.
94. Admitted.
95. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] 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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at
89. Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for
services rendered shall be deposited as offsetting collections … reimburse expenses incurred
in providing these services.” Pub. L. No. 102-140, § 303. Telecommunication costs, (including
communications hardware, maintenance and security services) are direct costs associated with
CM/ECF, PACER, and the other public access services the Judiciary provides. Skidgel Decl.
¶ 18.
96. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] fees in the Judiciary Automation
Fund to make information and services more accessible to the public through improvements

24

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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at
89. Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for
services rendered shall be deposited as offsetting collections … reimburse expenses incurred
in providing these services.” Pub. L. No. 102-140, § 303.
97. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] 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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at
89. Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for
services rendered shall be deposited as offsetting collections … reimburse expenses incurred
in providing these services.” Pub. L. No. 102-140, § 303. Through EPA allotments, courts are
able to determine the best ways to improve electronic public access services (such as by adding a
public printer or upgrading to a more robust internet web server). Funding court staff to work on
EPA projects, such as CM/ECF, utilizes existing expertise and reduces training time and
associated costs compared to that of hiring contractors. Skidgel Decl. ¶ 19.
98. Admitted.

25

99. Denied. The cost of the EPA program in 2014 was $142,855,084, not $3,547,279
as Plaintiffs claim. See Taylor Decl. Ex. L. at 13 (line 57). It appears that Plaintiffs’ assertion
resulted from extracting a number from a placeholder subheading, under the Public Access
Services Heading, to argue that the EPA program subheadings represent the only expenses
PACER fees should fund. However, every expenditure in the Quarterly Report comprises
public access services and are part of the Judiciary’s Electronic Public Access Program.
Accordingly, they are properly funded by PACER fees. See Taylor Decl. Ex. L.
100. Denied. Plaintiffs appear to be confusing the EPA program (which encompasses
all the electronic public access services the Judiciary provides) with the text of line item 10,
which is a description attached to BOC OPCEPAX but is not an accurate representation of
the services and programs funded through the Judiciary’s EPA program. See Taylor Decl.
Ex. L. at 12–13 lines 8–56 (listing the expenditures for the Judiciary’s entire EPA program).
101. Denied, except as admitted in the paragraphs that follow. Plaintiffs offer no citation
in support of this enumerated paragraph.
102. Admitted.
103. Defendant admits this assertion and notes that Congress specifically authorized
the use of EPA funds for courtroom technology allotments for installation, cyclical
replacement of equipment, and infrastructure maintenance. Skidgel Decl. Exs. K at 43, L, & M.
104. Admitted.
105.

Defendant admits this assertion and notes that Congress indicated that it:

“expects the Judiciary to utilize available balances derived from [EPA] 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.” H. Rep. No. 104-676 at

26

89. And, that the overall quality of service to the public will be improved with the availability
of enhancements such as ... enhanced use of the Internet” Id.
106. Admitted.
107. Defendant admits this assertion and notes that providing prospective jurors with
electronic copies of court documents is consistent with Congress’ expectation for “the
Judiciary to utilize available balances derived from [EPA] 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 … enhanced use of the
Internet.” H. Rep. No. 104-676 at 89.
108. Admitted.
109. Defendant admits this assertion and notes that Congress indicated that it: “expects
the Judiciary to utilize available balances derived from [EPA] 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 bankruptcy noticing.” H. Rep. No. 104-676 at 89.
110. Admitted.
111. Defendant admits this assertion and notes that Congress indicated that it: “expects
the fee for the [EPA] program to provide for [CM/ECF] system enhancements and operational
costs.” H. Rep. No. 108-221 at 116. Furthermore, Software Development, Implementation,
Operations, Maintenance, Training on CM/ECF and attempts to modernize or replace

27

CM/ECF are direct costs associated with development and maintenance of CM/ECF. Skidgel
Decl. ¶ 17.
112. Admitted.
113. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] 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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at
89. Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for
services rendered shall be deposited as offsetting collections … reimburse expenses incurred
in providing these services.” Pub. L. No. 102-140, § 303. Telecommunication costs, (including
communications hardware, maintenance and security services) are direct costs associated with
CM/ECF, PACER, and the other public access services the Judiciary provides. Skidgel Decl.
¶ 18.
114. Admitted.
115. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] fees in the Judiciary Automation
Fund to make information and services more accessible to the public through improvements

28

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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at
89. Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for
services rendered shall be deposited as offsetting collections … reimburse expenses incurred
in providing these services.” Pub. L. No. 102-140, § 303.. Through EPA allotments, courts are
able to determine the best ways to improve electronic public access services (such as by adding a
public printer or upgrading to a more robust internet web server). Funding court staff to work on
EPA projects, such as CM/ECF, utilizes existing expertise and reduces training time and
associated costs compared to that of hiring contractors. Skidgel Decl. ¶ 19.
116. Admitted.
117.

Denied.

The cost of the [EPA] program in 2015 was $147,722,744, not

$2,575,977 plus $642,160 as plaintiffs claim. See Taylor Decl. Ex. L. at 16 (line 60). It
appears that Plaintiffs’ assertion resulted from extracting a number from a placeholder subheading,
under the Public Access Services Heading, to argue that the EPA program subheadings
represent the only expenses PACER fees should fund. However, every expenditure in the
Quarterly Report comprises public access services and are part of the Judiciary’s EPA
program. Accordingly, they are properly funded by PACER fees. See Taylor Decl. Ex. L.
118. Denied. Plaintiffs appear to be confusing the EPA program (which encompasses
all the electronic public access services the Judiciary provides) with the text of line item 12,
which is a description attached to BOC OXEEPAX but is not an accurate representation of
the services and programs funded through the Judiciary’s EPA program. See Taylor Decl.
Ex. L. at 14–16 lines 10–60 (listing the expenditures for the Judiciary’s entire EPA program).

29

119. Denied, except as admitted in the paragraphs that follow. Plaintiffs offer no citation
in support of this enumerated paragraph.
120. Admitted.
121. Defendant admits this assertion and notes that Congress specifically authorized
the use of EPA funds for courtroom technology allotments for installation, cyclical
replacement of equipment, and infrastructure maintenance. Skidgel Decl. Exs. K at 43, L, & M.
122. Admitted.
123. Defendant admits this assertion and notes that Congress indicated that it “expects
the Judiciary to utilize available balances derived from [EPA] 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,” and “that the overall
quality of service to the public will be improved with the availability of enhancements such
as ... enhanced use of the Internet.” H. Rep. No. 104-676 at 89.
124. Admitted.
125. Defendant admits this assertion and notes that providing prospective jurors with
electronic copies of court documents is consistent with Congress’ expectation for “the
Judiciary to utilize available balances derived from [EPA] 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 ... enhanced use of the
Internet.” H. Rep. No. 104-676 at 89.
126. Admitted.

30

127. Defendant admits this assertion and notes that Congress indicated that it: “expects
the Judiciary to utilize available balances derived from [EPA] 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 bankruptcy noticing.” H. Rep. No. 104-676 at 89.
128. Admitted.
129. Defendant admits this assertion and notes that 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.

Furthermore, Software Development,

Implementation, Operations, Maintenance, Training on CM/ECF and attempts to modernize
or replace CM/ECF are direct costs associated with development and maintenance of
CM/ECF. Skidgel Decl. ¶ 17.
130. Admitted.
131. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] 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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at
89. Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for

31

services rendered shall be deposited as offsetting collections … reimburse expenses incurred
in providing these services.” Pub. L. No. 102-140, § 303. Telecommunication costs, (including
communications hardware, maintenance and security services) are direct costs associated with
CM/ECF, PACER, and the other public access services the Judiciary provides.

Skidgel

Decl. ¶ 18.
132. Admitted.
133. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] 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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at
89. Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for
services rendered shall be deposited as offsetting collections … reimburse expenses incurred
in providing these services.” Pub. L. No. 102-140, § 303. Through EPA allotments, courts are
able to determine the best ways to improve electronic public access services (such as by adding a
public printer or upgrading to a more robust internet web server). Funding court staff to work on
EPA projects, such as CM/ECF, utilizes existing expertise and reduces training time and associated
costs compared to that of hiring contractors. Skidgel Decl. ¶ 19.
134. Admitted.

32

135.

Denied.

The cost of the Electronic Public Access Program in 2016 was

$150,814,134, not $748,495 plus $2,443,614 as plaintiffs claim. Taylor Decl. Ex. L. at 19
(line 60). It appears that Plaintiffs’ assertion resulted from extracting a number from a placeholder
subheading, under the Public Access Services Heading, to argue that the EPA program
subheadings represent the only expenses PACER fees should fund.

However, every

expenditure in the Quarterly Report comprises public access services and are part of the
Judiciary’s EPA program. Accordingly, they are properly funded by PACER fees. See Taylor
Decl. Ex. L.
136. Denied. Plaintiffs appear to be confusing the EPA program (which encompasses
all the electronic public access services the Judiciary provides) with the text of line item 12,
which is a description attached to BOC OPCEPAX but is not an accurate representation of
the services and programs funded through the Judiciary’s EPA program. See Taylor Decl.
Ex. L. at 17–19 lines 10–60 (listing the expenditures for the Judiciary’s entire EPA program).
137. Denied, except as admitted in the paragraphs that follow. Plaintiffs offer no citation
in support of this enumerated paragraph.
138. Admitted.
139. Defendant admits this assertion and notes that Congress specifically authorized
the use of EPA funds for courtroom technology allotments for installation, cyclical
replacement of equipment, and infrastructure maintenance. Skidgel Decl. Exs. K at 43, L, & M.
140. Admitted.
141. Defendant admits this assertion and notes that Congress indicated that it: “expects
the Judiciary to utilize available balances derived from [EPA] fees in the Judiciary
Automation Fund to make information and services more accessible to the public through

33

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 bankruptcy noticing.” H. Rep. No. 104-676 at 89.
142. Admitted.
143. Defendant admits this assertion and notes that providing prospective jurors with
electronic copies of court documents is consistent with Congress’ expectation for “the
Judiciary to utilize available balances derived from [EPA] 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 ... enhanced use of the
Internet.” H. Rep. No. 104-676 at 89.
144. Admitted.
145. Defendant admits this assertion and notes that Congress indicated that it: “expects
the Judiciary to utilize available balances derived from [EPA] 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 bankruptcy noticing.” H. Rep. No. 104-676 at 89.
146. Admitted.
147. Defendant admits this assertion and notes that 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.

Furthermore, Software Development,

Implementation, Operations, Maintenance, Training on CM/ECF and attempts to modernize

34

or replace CM/ECF are direct costs associated with development and maintenance of
CM/ECF. Skidgel Decl. ¶ 17.
148. Admitted.
149. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] 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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at 89.
Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for services
rendered shall be deposited as offsetting collections … reimburse expenses incurred in
providing these services.” Pub. L. No. 102-140, § 303. Telecommunication costs, (including
communications hardware, maintenance and security services) are direct costs associated with
CM/ECF, PACER, and the other public access services the Judiciary provides.

Skidgel

Decl. ¶ 18.
150. Admitted.
151. Defendant admits this assertion and notes that Congress indicated 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. Congress also stated that it “expects the
Judiciary to utilize available balances derived from [EPA] fees in the Judiciary Automation
Fund to make information and services more accessible to the public through improvements

35

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
documents, electronic filings, [and] enhanced use of the Internet.” H. Rep. No. 104-676 at 89.
Congress also stated that “[a]ll fees … collected by the Judiciary … as a charge for services
rendered shall be deposited as offsetting collections … reimburse expenses incurred in
providing these services.” Pub. L. No. 102-140, § 303. Through EPA allotments, courts are
able to determine the best ways to improve electronic public access services (such as by adding a
public printer or upgrading to a more robust internet web server). Funding court staff to work on
EPA projects, such as CM/ECF, utilizes existing expertise and reduces training time and associated
costs compared to that of hiring contractors. Skidgel Decl. ¶ 19.
152. This purported fact exceeds the Court’s limitation on the subject of the current
briefing (i.e. motions as to liability), because it addresses what damages, if any, may exist.
Defendant reserves the right to seek discovery into such an issue, should it be deemed significant.
Moreover, the purported fact is not material to liability (or damages) because it alone does not
reflect the cost of disseminating court information through PACER or otherwise in that the
CM/ECF system is more than a data storage system. Accordingly, reliance on cost of data storage
alone, without factoring in the other costs associated with PACER and CM/ECF (e.g., security),
does not provide a meaningful analysis of the relevant expenses. Indeed, Plaintiffs’ own experts,
(Lee and Lissner) readily admit that “as outside analysts with limited information, we cannot
anticipate or account for all of the costs that could conceivably be associated with access to PACER
records.” Lee & Lissner Decl. at 10 (ECF No. 52-15).

36

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]

37