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

Filing 85

RESPONSE to Defendant's supplemental authority by ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW CENTER, NATIONAL VETERANS LEGAL SERVICES PROGRAM re #84 Notice (Other) (Gupta, Deepak) Modified event title on 3/29/2018 (znmw).

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,
Plaintiffs,
v.

Case No. 16-745 (ESH)

UNITED STATES OF AMERICA,
Defendant.
PLAINTIFFS’ RESPONSE TO DEFENDANT’S SUPPLEMENTAL AUTHORITY
1. At the hearing, the Court repeatedly asked the government to identify any case law
supporting its argument that, contrary to TVA v. Hill, 437 U.S. 153, 191 (1978), Appropriations
Committees may override statutory limits on the use of user fees. This question is important
because the AO has admitted that it uses PACER fees to fund services other than PACER and
has sought “expanded authority” from the Appropriations Committees for these otherwise
unauthorized expenditures. See Dkt. 81-1, at 27–28 (“Funds are used first to pay the expenses of
the PACER program. Funds collected above the level needed for the PACER program are then
used to fund other initiatives,” for which “[t]he Judiciary seeks this expanded authority[.]”). The
government even relies on hasty email exchanges with Committee staff as the sole evidence of
congressional approval for a given fiscal year. See Dkt. 81-1, at 50 (“We have no objection.”).
Unable to locate even a single example of an Appropriations Committee providing the
requisite “expanded authority,” the government has now submitted examples of virtually every
other permutation: language that requires reporting on the use of funds (Exhibits A and B),
express limits on the use of funds (Exhibits C and D), general expressions of concern about the
use of funds (Exhibit E) and statements disapproving of agency proposals to create new user fees
(Exhibits F and G). It should come as no surprise that the government can’t find an example of

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the one thing that would matter: a committee expanding, on its own, existing statutory
limitations on the ability to impose user fees. No such example exists, of course, because
“substantive legislation [cannot be] undone by the simple—and brief—insertion of some
inconsistent language in Appropriations Committees’ Reports.” TVA, 437 U.S. at 191.
2. The government cited a new case for the first time at oral argument, Rural Cellular Ass’n
v. FCC, 588 F.3d 1095 (D.C. Cir. 2009), to support its view that the AO enjoys “flexibility” to use
PACER fees for services other than PACER. But that case did not involve user fees at all. And
the Supreme Court’s user-fees cases supply a clear-statement rule that controls here: Because
only Congress may impose taxes, a user fee may not exceed the cost of providing the service
“inuring directly to the benefit” of the person who pays the fee—unless Congress has “indicate[d] clearly
its intention to delegate” its taxing power. Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 224
(1989).
The

government’s

contrary

argument

ignores

this

clear-statement

rule

and

misunderstands the very concept of a user fee. On its view, the user of one discrete service—for
example, a journalist or researcher who wishes to download a brief on PACER—may be lawfully
charged a fee that reimburses the cost of other services provided to other people: notices to bankruptcy
creditors; notifications for law enforcement agencies; case management and document filing
services for litigants and judges; and flat screens for jurors, to name just a few examples.
That approach reads crucial language out of the statute—particularly the requirement
that “[a]ll fees … collected” for services listed in the prescribed “schedule of fees” shall be
collected “as a charge for services rendered” to the user “to reimburse expenses incurred in providing these
services.” 28 U.S.C. 1913 note. The “expenses incurred in providing these services,” as the AO fee
schedule and the 2002 E-Government Act’s text and history make clear, are the “marginal costs
of disseminating the information” to the user through PACER. Dkt. 52-5, at 6. The “marginal

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costs” of operating PACER are the additional costs—on top of fixed costs for filing and storing
records—of providing copies (that is, PDF documents) of the filings to members of the public
upon request. Those costs do not include the costs of providing services to other groups of people,
or to the public more broadly. See Dkt. 52-8 & 52-9 (Senator Lieberman, the Act’s author,
explaining that the AO violates the Act by charging fees “well higher than the cost of dissemination”
rather than fees “used only to recover the direct cost of distributing documents on PACER”). The same
approach applies in the FOIA context, in which fees may be charged only for the “the direct costs
of search, duplication, or review,” 5 U.S.C. 552(a)(4)(A)(iv), which are defined by regulation as
“expenses that an agency incurs in searching for and duplicating … records in order to respond
to a FOIA request.” 28 C.F.R. § 16.10(b)(2). “Direct costs do not include overhead expenses such as the
costs of space, and of heating or lighting a facility.” Id.
3. At the hearing, the Court recognized our position that discovery may help illuminate
whether any expenses attributed to CM/ECF are actually within the marginal cost of providing
records via PACER. See, e.g., Dkt 52-13, at 15:21–33. Because the motion now before the Court
concerns only whether the AO has violated the statute Act in any respect—not the extent of the
liability or damages—the Court may wish to defer this question until the next phase of litigation,
after discovery. For example, it may prove relevant that new features of NextGen CM/ECF—
developed during the class period—are extensively if not exclusively focused on needs of the
courts and litigants rather than PACER users. See Greenwood & Brinkema, E-Filing Case
Management Services in the US Federal Courts: The Next Generation, Int’l J. Court Admin (2015), at 8–10,
15–16, available at www.iacajournal.org (e.g., “access control”; “attorney services”; “calendars and
schedules”; “case processing/ management”; “chambers, courtroom, and judicial support”;
“data exchanges and case transfers”; “filing, e-forms, and e-file”; “legal research” for “judges and
law clerks”; and “reports, e-queries & e-analytics” for “for judges or chambers staff”).

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Respectfully submitted,
/s/ Deepak Gupta
DEEPAK GUPTA
JONATHAN E. TAYLOR
GUPTA WESSLER PLLC
1900 L Street NW, Suite 312
Washington, DC 20036
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
WILLIAM H. NARWOLD
MEGHAN S.B. OLIVER
ELIZABETH SMITH
MOTLEY RICE LLC
3333 K Street NW, Suite 450
Washington, DC 20007
Phone: [phone]
Fax: [phone]
[e-mail]
March 28, 2018

Attorneys for Plaintiffs
CERTIFICATE OF SERVICE

I hereby certify that on March 28, 2018, I electronically filed this response through this
Court’s CM/ECF system. I understand that notice of this filing will be sent to all parties by
operation of the Court’s electronic filing system.
/s/ Deepak Gupta
Deepak Gupta

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