NATIONAL VETERANS LEGAL SERVICES PROGRAM et al v. UNITED STATES OF AMERICA
MOTION to Certify Class by ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW CENTER, NATIONAL VETERANS LEGAL SERVICES PROGRAM (Attachments: #1 Declaration of Deepak Gupta, #2 Declaration of William Narwold, #3 Declaration of Jonathan Taylor, #4 Text of Proposed Order)(Gupta, Deepak)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES PROGRAM, NATIONAL
CONSUMER LAW CENTER, and
ALLIANCE FOR JUSTICE, for themselves
and all others similarly situated,
Case No. 16-745-ESH
UNITED STATES OF AMERICA,
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
This case challenges the legality of fees charged to access records through the Public
Access to Court Electronic Records system, commonly known as PACER. The theory of liability
is that these fees—set at the same rate across the judiciary—far exceed the cost of providing the
records, and thus violate the E-Government Act, which authorizes fees “as a charge for services
rendered,” but “only to the extent necessary” to “reimburse expenses in providing these
services.” 28 U.S.C. § 1913 note. As the Act’s sponsor put it: PACER fees are now “well higher
than the cost of dissemination” and hence “against the requirement of the E-Government Act,”
which allows fees “only to recover the direct cost of distributing documents via PACER”—not
unrelated projects that “should be funded through direct appropriations.” Taylor Decl., Ex. B.
Because this theory of liability applies equally to everyone who has paid a PACER fee
within the six-year limitations period, the plaintiffs move to certify the case as a class action under
Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and the following class:
“All individuals and entities who have paid fees for the use of PACER within the past six years,
excluding class counsel and agencies of the federal government.”
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PACER is a system that provides online access to federal judicial records and is managed
by the Administrative Office of the U.S. Courts (or AO). The AO has designed the system so
that, before accessing a particular record, a person must first agree to pay a specific fee, shown on
the computer screen, which says: “To accept charges shown below, click on the ‘View
Document’ button, otherwise click the ‘Back’ button on your browser.” Here is an example of
what the person sees on the screen:
The current PACER fee is set at $.10 per page (with a maximum of $3.00 per record) and
$2.40 per audio file. Only if the person affirmatively agrees to pay the fee will a PDF of the
record appear. Unless that person obtains a fee waiver or incurs less than $15 in PACER charges
in a given quarter, he or she will incur an obligation to pay the fees.
Each of the named plaintiffs here—the National Veterans Legal Services Program, the
National Consumer Law Center, and the Alliance for Justice—has repeatedly incurred fees to
access court records through the PACER system.
Congress authorizes fees “to reimburse” PACER expenses. This system
stretches back to the early 1990s, when Congress began requiring the judiciary to charge
“reasonable fees” for access to records. Judiciary Appropriations Act, 1991, Pub. L. No. 101–
515, § 404, 104 Stat. 2129, 2132–33. In doing so, Congress sought to limit the fees to the cost of
providing the records: “All fees hereafter collected by the Judiciary . . . as a charge for services rendered
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shall be deposited as offsetting collections . . . to reimburse expenses incurred in providing these services.”
Id. (emphasis added). The AO set the fees at $.07 per page in 1998. See Chronology of the Fed.
Judiciary’s Elec. Pub. Access (EPA) Program, http://1.usa.gov/1lrrM78.
It soon became clear that this amount was far more than necessary to recover the cost of
providing access to records. But rather than reduce the rate to cover only the costs incurred, the
AO instead used the extra revenue to subsidize other information-technology-related projects.
The AO begins using excess PACER fees to fund ECF. The expansion began in
1997, when the judiciary started planning for a new e-filing system called ECF. The AO
produced an internal report discussing how the system would be funded. It emphasized the
“long-standing principle” that, when charging a user fee, “the government should seek, not to
earn a profit, but only to charge fees commensurate with the cost of providing a particular
service.” AO, Electronic Case Files in the Federal Courts: A Preliminary Examination of Goals, Issues and the
Road Ahead (discussion draft), at 34 (Mar. 1997), http://bit.ly/1Y3zrX0. Yet, just two pages later,
the AO contemplated that ECF could be funded with “revenues generated from electronic public
access fees”—that is, PACER fees. Id. at 36. The AO did not offer any statutory authority to
support this view.
Congress responds by passing the E-Government Act of 2002. When Congress
revisited the subject of PACER fees a few years later, it did not relax the requirement that the
fees be limited to the cost of providing access to records. To the contrary, it amended the statute
to strengthen this requirement. Recognizing that, under “existing law, users of PACER are charged
fees that are higher than the marginal cost of disseminating the information,” Congress amended
the law “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
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information is freely available to the greatest extent possible.” S. Rep. No. 107–174, 107th
Cong., 2d Sess. 23 (2002).
The result was a provision of the E-Government Act of 2002 that amended the language
authorizing the imposition of fees—removing the mandatory “shall prescribe” language and
replacing it with language permitting the Judicial Conference to charge fees “only to the extent
necessary.” Pub. L. No. 107–347, § 205(e), 116 Stat. 2899, 2915 (Dec. 17, 2002) (codified at 28
U.S.C. § 1913 note). The full text of the statute is thus as follows:
(a) The Judicial Conference may, only to the extent necessary, prescribe reasonable
fees, pursuant to sections 1913, 1914, 1926, 1930, and 1932 of title 28, United
States Code, for collection by the courts under those sections for access to information
available through automatic data processing equipment. These fees may distinguish
between classes of persons, and shall provide for exempting persons or classes of
persons from the fees, in order to avoid unreasonable burdens and to promote
public access to such information. The Director of the [AO], under the direction
of the Judicial Conference of the United States, shall prescribe a schedule of
reasonable fees for electronic access to information which the Director is required
to maintain and make available to the public.
(b) The Judicial Conference and the Director shall transmit each schedule of fees
prescribed under paragraph (a) to the Congress at least 30 days before the
schedule becomes effective. All fees hereafter collected by the Judiciary under
paragraph (a) as a charge for services rendered shall be deposited as offsetting collections
to the Judiciary Automation Fund pursuant to 28 U.S.C. 612(c)(1)(A) to reimburse
expenses incurred in providing these services.
28 U.S.C. § 1913 note (emphasis added).
Even after the E-Government Act, the AO increases PACER fees. Rather than
reduce or eliminate PACER fees, however, the AO increased them to $.08 per page in 2005.
Memorandum from AO Director Leonidas Ralph Mecham to Chief Judges and Clerks (Oct. 21,
2004). To justify this increase, the AO did not point to any growing costs of providing access to
records through PACER. It relied instead on the fact that the judiciary’s information-technology
fund—the account into which PACER fees and other funds (including appropriations) are
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deposited, 28 U.S.C. § 612(c)(1)—could be used to pay the costs of technology-related expenses
like ECF. Id. As before, the AO cited no statutory authority for this increase.
The AO finds new ways to spend extra PACER fees as they keep growing. By
the end of 2006, the judiciary’s information-technology fund had accumulated a surplus of nearly
$150 million—at least $32 million of which was from PACER fees. AO, Judiciary Information
Technology Annual Report for Fiscal Year 2006, at 8, http://bit.ly/1V5B9p2. But once again, the AO
declined to reduce or eliminate PACER fees. It instead sought out new ways to spend the excess,
using it to cover “courtroom technology allotments for installation, cyclical replacement of
equipment, and infrastructure maintenance”—services that relate to those provided by PACER
only in the sense that they too concern technology and the courts. Taylor Decl., Ex. A (Letter
from Sen. Lieberman to Sens. Durbin and Collins (Mar. 25, 2010)).
Two years later, in 2008, the chair of the Judicial Conference’s Committee on the Budget
testified before the House. She admitted that the judiciary used PACER fees not only to
reimburse the cost of “run[ning] the PACER program,” but also “to offset some costs in our
information technology program that would otherwise have to be funded with appropriated
funds.” Hearings Before a Subcomm. of the Sen. Comm. on Appropriations on H.R. 7323/S.
3260, 110th Cong. 51 (2008). Specifically, she testified, “[t]he Judiciary’s fiscal year 2009 budget
request assumes $68 million in PACER fees will be available to finance information technology
requirements . . . , thereby reducing our need for appropriated funds.” Id.
The E-Government Act’s sponsor says that the AO is violating the law. In
early 2009, Senator Joe Lieberman (the E-Government Act’s sponsor) wrote the AO “to inquire
if [it] is complying” with the law. Taylor Decl., Ex. B (Letter from Sen. Lieberman to Hon. Lee
Rosenthal (Feb. 27, 2009)). He noted that the Act’s “goal” was “to increase free public access to
[judicial] records,” yet “PACER [is] charging a higher rate” than it did when the law was passed.
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Id. Importantly, he explained, “the funds generated by these fees are still well higher than the cost
of dissemination.” Id. Invoking the key statutory text, he asked the judiciary to explain “whether
[it] is only charging ‘to the extent necessary’ for records using the PACER system.” Id.
The Judicial Conference replied with a letter defending the AO’s position that it may use
PACER fees to recoup non-PACER-related costs. The letter acknowledged that the Act
“contemplates a fee structure in which electronic court information ‘is freely available to the
greatest extent possible.’” Letter from Hon. Lee Rosenthal and James C. Duff to Sen. Lieberman
(Mar. 26, 2009). Yet the letter claimed that Congress has “expand[ed] the permissible use of the
fee revenue to pay for other services,” id.—even though it actually did the opposite, enacting the
E-Government Act specifically to limit any fees to those “necessary” to “reimburse expenses
incurred” in providing the records. 28 U.S.C. § 1913 note. The sole support that the AO offered
for its view was a sentence in a conference report accompanying the 2004 appropriations bill,
which said that the Appropriations Committee “expects the fee for the Electronic Public Access
program to provide for [ECF] system enhancements and operational costs.” Letter from
Rosenthal and Duff to Sen. Lieberman. The letter did not provide any support (even from a
committee report) for using fees to recover non-PACER-related expenses beyond ECF.
Later, in his annual letter to the Appropriations Committee, Senator Lieberman
expressed his “concerns” about the AO’s interpretation. Taylor Decl., Ex. A (Letter from Sen.
Lieberman to Sens. Durbin and Collins). “[D]espite the technological innovations that should
have led to reduced costs in the past eight years,” he observed, the “cost for these documents has
gone up.” Id. It has done so because the AO uses the fees to fund “initiatives that are unrelated to
providing public access via PACER.” Id. He reiterated his view that this is “against the
requirement of the E-Government Act,” which permits “a payment system that is used only to
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recover the direct cost of distributing documents via PACER.” Id. Other technology-related
projects, he stressed, “should be funded through direct appropriations.” Id.
The AO again increases PACER fees. The AO responded by raising PACER fees
once again, to $.10 per page beginning in 2012. It acknowledged that “[f]unds generated by
PACER are used to pay the entire cost of the Judiciary’s public access program, including
telecommunications, replication, and archiving expenses, the [ECF] system, electronic
bankruptcy noticing, Violent Crime Control Act Victim Notification, on-line juror services, and
http://1.usa.gov/1Ryavr0. But the AO believed that the fees comply with the E-Government
Act because they “are only used for public access.” Id. at 10. It did not elaborate.
Subsequent congressional budget summaries, however, indicate that the PACER revenue
at that time was more than enough to cover the costs of providing the service. The judiciary
reported that in 2012, of the money generated from “Electronic Public Access Receipts,” it spent
just $12.1 million on “public access services,” while spending more than $28.9 million on
courtroom technology. The Judiciary: Fiscal Year 2014 Congressional Budget Summary, App. 2.4.
The AO continues to charge fees that exceed the cost of PACER. Since the 2012
fee increase, the AO has continued to collect large amounts in PACER fees and to use these fees
to fund activities beyond providing access to records. In 2014, for example, the judiciary
collected more than $145 million in fees, much of which was earmarked for other purposes, like
courtroom technology, websites for jurors, and bankruptcy-notification systems. AO, The Judiciary
Fiscal Year 2016 Congressional Budget Summary 12.2, App. 2.4 (Feb. 2015).
The chart on the following page—based entirely on data from the published version of
the judiciary’s annual budget, see Taylor Decl. ¶ 3—illustrates the rapid growth in PACER
revenue over the past two decades, a period when “technological innovations,” including
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exponentially cheaper data storage, “should have led to reduced costs.” Taylor Decl., Ex. A
(Letter from Sen. Lieberman to Sens. Durbin and Collins).
For much of this period, the judiciary projected that the annual cost of running the
program would remain well under $30 million. AO, Long Range Plan for Information Technology in the
Federal Judiciary: Fiscal Year 2009 Update 16 (2009).
Some members of the federal judiciary have been open about the use of PACER revenue
to cover unrelated expenses. When questioned during a 2014 House appropriations hearing,
representatives from the judiciary admitted that the “Electronic Public Access Program
encompasses more than just offering real-time access to electronic records.” Fin. Servs. and General
Gov. Appropriations for 2015, Part 6: Hearings Before a Subcomm. of the House Comm. on Appropriations,
113th Cong. 152 (2014).1 And Judge William Smith (a member of the Judicial Conference’s
Committee on Information Technology) has acknowledged that the fees “also go to funding
As a percentage of the judiciary’s total budget, however, PACER fees are quite small.
Based on the judiciary’s budget request of $7.533 billion for fiscal year 2016, PACER fees make
up less than 2% of the total budget—meaning that the excess fees are a fraction of a fraction.
Matthew E. Glassman, Judiciary Appropriations FY2016, at 1 (June 18, 2015),
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courtroom technology improvements, and I think the amount of investment in courtroom
technology in ‘09 was around 25 million dollars. . . . Every juror has their own flat-screen
monitor. . . . [There have also been] audio enhancements. . . . This all ties together and it’s
funded through these [PACER] fees.” Panel Discussion, William and Mary Law School
Conference on Privacy and Public Access to Court Records (Mar. 4–5, 2010), bit.ly/1PmR0LJ.
This Court has jurisdiction over the claims of all class members.
Before certifying the class, the Court must first assure itself that it has subject-matter
jurisdiction over the claims of all class members. The basis for jurisdiction here is the Little
Tucker Act, which waives the federal government’s sovereign immunity and “provides
jurisdiction to recover an illegal exaction by government officials when the exaction is based on
an asserted statutory power.” Telecare Corp. v. Leavitt, 409 F.3d 1345, 1348 (Fed. Cir. 2005)
(quoting Aerolineas Argentinas v. United States, 77 F.3d 1564, 1573 (Fed. Cir. 1996)). Courts have
long recognized such illegal-exaction claims—claims that money was “improperly paid, exacted,
or taken from the claimant” in violation of a statute, Norman v. United States, 429 F.3d 1081, 1095
(Fed. Cir. 2005)—regardless of whether the statute itself creates an express cause of action.
By its terms, the Little Tucker Act grants district courts “original jurisdiction, concurrent
with the United States Court of Federal Claims,” over any non-tort, non-tax “claim against the
United States, not exceeding $10,000,” 28 U.S.C. § 1346(a)(2), while vesting exclusive appellate
jurisdiction in the Federal Circuit, id. § 1295(a). This means that the Federal Circuit’s
interpretation of the Act is binding on district courts. And the Federal Circuit has made clear
that, in a class action, “there will be no aggregation of claims” for purposes of assessing the
$10,000 limit. Chula Vista City Sch. Dist. v. Bennett, 824 F.2d 1573, 1579 (Fed. Cir. 1987).
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The Federal Circuit has also made clear that the Little Tucker Act does not require that
each plaintiff’s total recovery be $10,000 or less. Quite the contrary: Federal Circuit precedent
holds that even a single plaintiff seeking millions of dollars may bring suit in federal district court
under the Little Tucker Act if the total amount sought represents the accumulation of many
separate transactions, each of which gives rise to a separate claim that does not itself exceed
$10,000. See Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 797 (Fed. Cir. 1993).
In the 1990s, airline companies brought two lawsuits in this district seeking to recover
what they claimed were illegal exactions by the government. In one case, the General Services
Administration (or GSA) deducted roughly $100 million from future payments it owed the
airlines after determining that it had overpaid for plane tickets. Alaska Airlines v. Austin, 801 F.
Supp. 760 (D.D.C. 1992). In the other, GSA “withheld future payments to the airlines to offset”
the costs of tickets that were never used. Am. Airlines, Inc. v. Austin, 778 F. Supp. 72, 74 (D.D.C.
1991). The airlines claimed that GSA was “recouping alleged overcharges from them in violation
of the law,” and sought “return of the funds” that had “been assessed against them unlawfully.”
Alaska Airlines, 801 F. Supp. at 761.
In both cases, the court recognized that each airline was seeking well over $10,000, but
determined that the total amount each plaintiff sought “represents the accumulation of disputes
over alleged overcharges on thousands of individual tickets.” Id. at 762. Thus, the court held that
the asserted overcharge for each individual ticket constituted its own claim under the Little
Tucker Act—even though the airlines paid numerous overcharges at a time through GSA’s
withholdings, and even though each case presented one “straightforward” legal question. Id.
Because “[e]ach contested overcharge is based on a single ticket and is for less than $10,000,” the
district court had jurisdiction. Id.; see Am. Airlines, 778 F. Supp. at 76. The court explained that
“[t]he Government cannot escape [Little Tucker Act] jurisdiction by taking a lump sum offset
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that totals over $10,000 and then alleging that the claims should be aggregated.” Id. On appeal,
the Federal Circuit agreed, holding that “the district court had concurrent jurisdiction with the
Court of Federal Claims.” Alaska Airlines, 8 F.3d at 797.
Under this binding precedent, each transaction to access a record through PACER in
exchange for a certain fee—a fee alleged to be excessive, in violation of the E-Government Act—
constitutes a separate claim under the Little Tucker Act. As a result, each class member has
multiple individual illegal-exaction claims, none of which exceeds $10,000. Even if a very small
percentage of class members might ultimately receive more than $10,000, that amount
“represents the accumulation of disputes over alleged overcharges on thousands of individual
[transactions]”; it is no bar to this Court’s jurisdiction. Alaska Airlines, 801 F. Supp. at 762.
Nor does the Little Tucker Act’s venue provision pose a barrier to certifying the class
here. Although it requires that individual actions be brought “in the judicial district where the
plaintiff resides,” 28 U.S.C. § 1402(a)(1), it does not alter the general rule in class actions that
absent class members “need not satisfy the applicable venue requirements,” Briggs v. Army & Air
Force Exch. Serv., No. 07–05760, 2009 WL 113387, *6 (N.D. Cal. 2009); see also Whittington v. United
States, 240 F.R.D. 344, 349 (S.D. Tex. 2006); Bywaters v. United States, 196 F.R.D. 458, 463–64
(E.D. Tex. 2000).
Were the law otherwise, the Little Tucker Act would preclude nationwide class actions,
instead requiring nearly a hundred mini class actions, one in each federal district, to remedy a
widespread, uniform wrong committed by the federal government. That extreme result “simply
is not to be found in the text of the Act itself,” and “the venue provision would be an awkward
vehicle by which to effectuate any anti-class policy.” Briggs, 2009 WL 113387, at *7. This Court
thus has the authority to certify the class if it meets the requirements of Rule 23.
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This Court should certify the class under Rule 23.
Class certification is appropriate where, as here, the plaintiffs can satisfy the requirements
of both Rule 23(a) and (b). Rule 23(a) requires a showing that (1) the class is sufficiently numerous
to make joinder of all class members impracticable, (2) there are common factual or legal issues,
(3) the named plaintiffs’ claims are typical of the class, and (4) the named plaintiffs will fairly and
adequately protect the interests of the class.
Rule 23(b) requires one of three things. Under subsection (b)(1), the plaintiffs may show
that prosecuting separate actions would create a risk of inconsistent results, such as where the
defendant is “obliged by law to treat the members of the class alike.” Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 614 (1997). Under (b)(2), the plaintiffs may show that the defendant “has
acted or refused to act on grounds that apply generally to the class,” such that declaratory or
injunctive relief is appropriate. And under (b)(3), the plaintiffs may show that “the questions of
law or fact common to class members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.” The class in this case satisfies both (b)(1) and (b)(3).
This case meets Rule 23(a)’s requirements.
The class is sufficiently numerous.
To begin, this case satisfies Rule 23(a)(1)’s requirement that the class be “so numerous
that joinder of all members is impracticable.” “Courts in this District have generally found that
the numerosity requirement is satisfied and that joinder is impracticable where a proposed class
has at least forty members,” Cohen v. Warner Chilcott Public Ltd. Co., 522 F. Supp. 2d 105, 114
(D.D.C. 2007), and a plaintiff need not “provide an exact number of putative class members in
order to satisfy the numerosity requirement,” Pigford v. Glickman, 182 F.R.D. 341, 347 (D.D.C.
1998); see Meijer, Inc. v. Warner Chilcott Holdings Co. III, Ltd., 246 F.R.D. 293, 305–06 (D.D.C. 2007)
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(certifying class of 30 people). Although the plaintiffs do not have access to the defendant’s
records, and so cannot yet know exactly how many people have paid PACER fees in the past six
years, they estimate that the class contains at least several hundred thousand class members.
According to documents prepared by the judiciary and submitted to Congress, there are nearly
two million PACER accounts, “approximately one-third” of which “are active in a given year.”
The Judiciary: Fiscal Year 2016 Congressional Budget Justification, App. 2.1. Making even the most
generous assumptions about how many of these people receive fee waivers or have never
incurred more than $15 in charges in a given quarter (and thus have never paid a fee), there can
be no serious dispute that this class satisfies Rule 23(a)(1).
The legal and factual issues are common to the class.
This case likewise easily satisfies Rule 23(a)(2)’s requirement of “questions of law or fact
common to the class.” This requirement is met if “[e]ven a single common question” exists,
Thorpe v. District of Columbia, 303 F.R.D. 120, 145 (D.D.C. 2014) (Huvelle, J.), so long as
“determination of its truth or falsity will resolve an issue that is central to the validity of each one
of the claims in one stroke,” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Here, the two
most important questions in the case are common: (1) Are the fees imposed for PACER access
excessive in relation to the cost of providing the access—that is, are the fees higher than
“necessary” to “reimburse expenses incurred in providing the services” for which they are
“charge[d]”? 28 U.S.C. § 1913 note; and (2) what is the measure of damages for the excessive
fees charged? See Compl. ¶ 29. These questions “will generate common answers for the entire
class and resolve issues that are central (and potentially dispositive) to the validity of each
plaintiff’s claim and the claims of the class as a whole.” Thorpe, 303 F.R.D. at 146–47.
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The named plaintiffs’ claims are typical of the class.
This case also meets Rule 23(a)(3)’s requirement that the named plaintiffs’ claims be
typical of the class’s claims, a requirement that is “liberally construed.” Bynum v. District of
Columbia, 214 F.R.D. 27, 34 (D.D.C. 2003). When “the named plaintiffs’ claims are based on the
same legal theory as the claims of the other class members, it will suffice to show that the named
plaintiffs’ injuries arise from the same course of conduct that gives rise to the other class
members’ claims.” Id. at 35. That is the case here. The named plaintiffs’ claims are typical of the
class because they arise from the same course of conduct by the United States (imposing a
uniform PACER fee schedule that is higher than necessary to reimburse the cost of providing
the service) and are based on the same legal theory (challenging the fees as excessive, in violation
of the E-Government Act). See Compl. ¶ 30.
The named plaintiffs are adequate representatives.
Rule 23(a)(4) asks whether the named plaintiffs “will fairly and adequately protect the
interests of the class,” an inquiry that “serves to uncover conflicts of interest between named
parties and the class they seek to represent.” Amchem, 521 U.S. at 625. It has two elements:
“(1) the named representative must not have antagonistic or conflicting interests with the
unnamed members of the class, and (2) the representative must appear able to vigorously
prosecute the interests of the class through qualified counsel.” Twelve John Does v. District of
Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997); Thorpe, 303 F.R.D. at 150. Both are met here.
a. The named plaintiffs. The plaintiffs are three of the nation’s leading nonprofit legal
advocacy organizations: the National Veterans Legal Services Program, the National Consumer
Law Center, and the Alliance for Justice. Compl. ¶¶ 1–3. They all care deeply about
“preserv[ing] unfettered access to the courts,” id. ¶ 3, and brought this suit to vindicate
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Congress’s goal in passing the E-Government Act: to ensure that court records are “freely
available to the greatest extent possible.” S. Rep. 107–174, 107th Cong., 2d Sess. 23 (2002).
Since 1980, the National Veterans Legal Services Program has represented thousands of
veterans in individual court cases, and has worked to ensure that our nation’s 25 million veterans
and active-duty personnel receive all benefits to which they are entitled for disabilities resulting
from their military service. Compl. ¶ 1. Excessive PACER fees impede this mission in numerous
ways—including by making it difficult to analyze patterns in veterans’ cases, and thus to detect
pervasive problems and delays. The organization is concerned that the fees have not only
hindered individual veterans’ ability to handle their own cases, but have also “inhibited public
understanding of the courts and thwarted equal access to justice.” Id. at 2.
The excessive fees likewise impede access to justice for low-income consumers—like those
waging legal battles to try to save their homes from foreclosure—which is why the National
Consumer Law Center also brought this suit. The Law Center conducts a wide variety of
research, litigation, and other activities on behalf of elderly and low-income consumers, and
publishes 20 different treatises that comprehensively report on the development of consumer law
in the courts. Id. ¶ 2. The organization has incurred PACER fees in carrying out all of these
activities, id., and is also concerned about the many pro se consumers whose interaction with the
judicial system has been made far more difficult by the PACER fee structure.
Finally, the Alliance for Justice is a national association of over 100 public-interest
organizations—such as the National Center on Poverty Law and the National Legal Aid &
Defender Association—nearly all of whom are affected by excess PACER fees. Id. ¶ 3. These
organizations also strongly support the judiciary’s efforts to obtain whatever resources it needs.
They do not aim to deplete the judiciary’s budget, nor do they object to the judiciary’s quest for
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increased funding. All they object to is using excess PACER fees to fund unrelated projects that
“should be funded through direct appropriations.” Letter from Sen. Lieberman to Rosenthal.
Because excess PACER fees are unlawful and significantly impede public access (and yet
make up only a fraction of a fraction of the judiciary’s budget, as explained in footnote 1), the
named plaintiffs will vigorously prosecute this case on behalf of themselves and all absent class
members. Each named plaintiff has paid numerous PACER fees in the past six years, and each
has the same interests as the unnamed class members. Compl. ¶ 31. And the relief the plaintiffs
are seeking—a full refund of excess fees charged within the limitations period, plus a declaration
that the fees violate the E-Government Act—would plainly “be desired by the rest of the class.”
McReynolds v. Sodexho Marriott Servs., Inc., 208 F.R.D. 428, 446 (D.D.C. 2002) (Huvelle, J.).
b. Class counsel. Proposed co-lead class counsel are Gupta Wessler PLLC, a national
boutique based in Washington that specializes in Supreme Court, appellate, and complex
litigation; and Motley Rice LLC, one of the nation’s largest and most well-respected class-action
firms. The firms will also consult with two lawyers with relevant expertise: Michael Kirkpatrick of
Georgetown Law’s Institute for Public Representation and Brian Wolfman of Stanford Law
School. Together, these law firms and lawyers have a wealth of relevant experience.
One of the two co-lead firms, Gupta Wessler, has distinctive experience with class actions
against the federal government. Two of its lawyers, Deepak Gupta and Jonathan Taylor,
represent a certified class of federal bankruptcy judges and their beneficiaries in a suit concerning
judicial compensation, recently obtaining a judgment of more than $56 million. See Gupta Decl.
¶¶ 1, 4–8; Houser v. United States, No. 13-607 (Fed. Cl.). Mr. Gupta and Mr. Taylor both received
the President’s Award from the National Conference of Bankruptcy Judges for their work on the
case. Gupta Decl. ¶ 8. Just over a month ago, the American Lawyer reported on the firm’s work,
observing that “[i]t’s hard to imagine a higher compliment than being hired to represent federal
Case 1:16-cv-00745-ESH Document 8 Filed 05/02/16 Page 17 of 22
judges” in this important class-action litigation. Id. Mr. Gupta and Mr. Taylor also currently
represent (along with Motley Rice) a certified class of tax-return preparers seeking the recovery of
unlawful fees paid to the IRS. See id. ¶¶ 1, 9–10; Steele v. United States, No. 14-1523 (D.D.C.). And
Mr. Gupta, who worked at the Consumer Financial Protection Bureau and Public Citizen
Litigation Group before founding the firm, has successfully represented a certified class of
veterans challenging the government’s illegal withholding of federal benefits to collect old debts
arising out of purchases of military uniforms, recovering about $7.4 million in illegal charges.
Gupta Decl. ¶¶ 1, 13–16.
The other co-lead firm, Motley Rice, regularly handles class actions and complex
litigation in jurisdictions across the U.S., and currently serves as lead or co-lead counsel in over
25 class actions and as a member of the plaintiffs’ steering committee in numerous MDL actions.
Narwold Decl. ¶ 3. William Narwold, chair of the firm’s class-action practice, will play a lead role
in prosecuting this case and is also currently class counsel in Steele v. United States, the tax-returnpreparer case mentioned above. Id. ¶¶ 1–3, 6. His colleague Joseph Rice, one of the top classaction and mass-tort-settlement negotiators in American history, will play a lead role in any
settlement negotiations. Id. ¶ 1. Under their leadership, Motley Rice has secured some of the
largest verdicts and settlements in history, in cases involving enormously complex matters. The
firm is a member of the plaintiffs’ steering committee in the BP Deepwater Horizon Oil Spill
Litigation, where Mr. Rice served as one of the two lead negotiators in reaching settlements. One
of those settlements, estimated to pay out between $7.8 billion and $18 billion to class members,
is the largest civil class-action settlement in U.S. history. Id. ¶ 6. The firm also served as co-lead
trial counsel on behalf of ten California cities and counties against companies that had concealed
the dangers of lead paint. In 2014, after a lengthy bench trial, the court entered judgment in
favor of the cities and counties for $1.15 billion. Id.
Case 1:16-cv-00745-ESH Document 8 Filed 05/02/16 Page 18 of 22
This case meets Rule 23(b)’s requirements.
This case satisfies Rule 23(b)(1).
Rule 23(b)(1) permits class certification if prosecuting separate actions by individual class
members would risk “inconsistent or varying adjudications” establishing “incompatible
standards of conduct” for the defendant. Because this case seeks equitable relief in addition to
return of the excessive PACER fees already paid, the risk of inconsistent results is acute. If there
were separate actions for equitable relief, the AO could be “forced into a ‘conflicted position,’”
Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil
Procedure, 81 Harv. L. Rev. 356, 388 (1967), potentially subjecting it to “incompatible court
orders,” 2 William B. Rubenstein, Newberg on Class Actions § 4.2 (5th ed. 2015). That makes this
case the rare one in which a class action is “not only preferable but essential.” Rubenstein,
Newberg on Class Actions § 4.2; see also Fed. R. Civ. P. 23(b)(1), 1966 advisory committee note
(listing as examples cases against the government “to declare a bond issue invalid or condition or
limit it, to prevent or limit the making of a particular appropriation or to compel or invalidate
an assessment”). Under these circumstances, Rule 23(b)(1) is satisfied.
This case satisfies Rule 23(b)(3).
Because this case seeks the return of all excessive PACER fees paid in the last six years,
however, the most appropriate basis for certification is Rule 23(b)(3). See Dukes, 563 U.S. at 362
(“[I]ndividualized monetary claims belong in Rule 23(b)(3).”). Rule 23(b)(3) contains two
requirements, predominance and superiority, both of which are met here.
“The first requirement is that common factual and legal issues predominate over any
such issues that affect only individual class members.” Bynum, 214 F.R.D. at 39. As already
explained, the plaintiffs allege that the AO lacks the authority to charge (and in fact charges)
PACER fees that exceed the costs of providing the service. The central argument is that the E!
Case 1:16-cv-00745-ESH Document 8 Filed 05/02/16 Page 19 of 22
Government Act unambiguously limits any PACER fees “charge[d] for services rendered” to
those “necessary” to “reimburse expenses in providing these services”—a limit the AO has failed
to heed. 28 U.S.C. § 1913 note. And even if this language were somehow ambiguous, the
background rule of administrative law is that user fees may not exceed the cost of the service
provided (because then they would become taxes) unless Congress “indicate[d] clearly” an
“intention to delegate” its taxing authority. Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 224
(1989). The plaintiffs might prevail on their theory; they might not. But either way, these are the
common predominant legal questions in this case.
The sole individual issue—calculation of the amount of each class member’s recovery,
which depends on how many PACER fees they have paid—is ministerial, and hence cannot
defeat predominance. The government’s “own records . . . reflect the monetary amount that
each plaintiff” has paid in fees over the past six years. Hardy v. District of Columbia, 283 F.R.D. 20,
28 (D.D.C. 2012). Once the total excess amount is calculated and the measure of damages is
determined (both common questions), divvying up the excess on a pro rata basis would “clearly
be a mechanical task.” Id.
“The second requirement of Rule 23(b)(3) is that the Court find that maintaining the
present action as a class action will be superior to other available methods of adjudication.”
Bynum, 214 F.R.D. at 40. This requirement, too, presents no obstacle here. Class treatment is
most appropriate in cases like this one, “in which the individual claims of many of the putative
class members are so small that it would not be economically efficient for them to maintain
individual suits.” Id. The vast majority of class members “stand to recover only a small amount of
damages,” making it difficult to “entice many attorneys into filing such separate actions.” Id. Nor
are there any concerns that “potential difficulties in identifying the class members and sending
them notice will make the class unmanageable.” Id. To the contrary, this class is manageable
Case 1:16-cv-00745-ESH Document 8 Filed 05/02/16 Page 20 of 22
because the government itself has all the information needed to identify and notify every class
member, including their names and email addresses. Class counsel can send notice to the email
addresses the PACER Service Center has on file for everyone who has paid a fee.
The Court should approve class counsel’s notice proposal.
As required by Local Civil Rule 23.1(c), we propose the following class-notice plan, as
reflected in the proposed order filed with this motion. First, we propose that class counsel retain a
national, reputable class-action-administration firm to provide class notice. Second, to the extent
possible, we propose that email notice be sent to each class member using the contact
information maintained by the government for each person or entity who has paid PACER fees
over the past six years. Third, we propose that if the PACER Service Center does not have an
email address on file for someone, or if follow-up notice is required, notice then be sent via U.S.
mail. Class counsel would pay all costs incurred to send the notice, and all responses would go to
the class-action-administration firm. We respectfully request that the Court direct the parties to
file an agreed-upon proposed form of notice (or, if the parties cannot agree, separate forms of
notice) within 30 days of the Court’s certification order, and direct that email notice be sent to
the class within 90 days of the Court’s approval of a form of notice.
Because the government has yet to enter an appearance, we were unable to confer with
opposing counsel under Local Civil Rule 7(m) regarding the notice proposal or this motion. We
are filing the motion now to toll the limitations period for the class, see Am. Pipe & Constr. Co. v.
Utah, 414 U.S. 538 (1974), and to ensure that class certification is decided at the outset, cf. Fed.
R. Civ. P. 23 (class certification must be decided “[a]t an early practicable time after a person
sues”); Local Civil Rule 23(b) (requiring motion to be filed “[w]ithin 90 days after the filing of a
complaint in a case sought to be maintained as a class action”). We intend to confer with
opposing counsel as soon as they make their appearance.
Case 1:16-cv-00745-ESH Document 8 Filed 05/02/16 Page 21 of 22
The plaintiffs’ motion for class certification should be granted.
/s/ Deepak Gupta
DEEPAK GUPTA (D.C. Bar No. 495451)
JONATHAN E. TAYLOR (D.C. Bar No. 1015713)
GUPTA WESSLER PLLC
1735 20th Street, NW
Washington, DC 20009
Phone: (202) 888-1741
Fax: (202) 888-7792
WILLIAM H. NARWOLD (D.C. Bar No. 502352)
MOTLEY RICE LLC
3333 K Street NW, Suite 450
Washington, DC 20007
Phone: (202) 232-5504
Fax: (202) 232-5513
MICHAEL T. KIRKPATRICK (D.C. Bar No. 486293)
INSTITUTE FOR PUBLIC REPRESENTATION
Georgetown University Law Center
600 New Jersey Avenue, Suite 312
Washington, DC 20001
Phone: (202) 662-9535
Fax: (202) 662-9634
May 2, 2016
Attorneys for Plaintiffs
Case 1:16-cv-00745-ESH Document 8 Filed 05/02/16 Page 22 of 22
CERTIFICATE OF SERVICE
I hereby certify that on May 2, 2016, I filed this class-certification motion through this
Court’s CM/ECF system. I further certify that, because no counsel for the defendant has yet
appeared, I served copies via U.S. mail on the following counsel:
United States Attorney for the District of Columbia
555 Fourth Street, NW
Washington, DC 20530
Attorney General of the United States
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
/s/ Deepak Gupta
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