Theodore D'Apuzzo, P.A. v. UNITED STATES OF AMERICA
Filing
99
Order on Motions for Summary Judgment 67 70 . Closing Case. Signed by Judge Robert N. Scola, Jr. See attached document for full details. (zlz)
Case 0:16-cv-62769-RNS Document 99 Entered on FLSD Docket 06/27/2019 Page 1 of 17
United States District Court
for the
Southern District of Florida
Theodore D’Apuzzo, P.A.,
Individually and on Behalf of All
Others Similarly Situated,
Plaintiffs,
v.
United States of America,
Defendant.
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Civil Action No. 16-62769-Civ-Scola
Order on Motions for Summary Judgment
Plaintiff Theodore D’Apuzzo, P.A. (“D’Apuzzo”) claims the United States
Government wrongfully charged him to access two documents (the “Documents”)
on the Public Access to Court Electronic Records (“PACER”) system. The issue
central to his grievance is the meaning of the term judicial “opinion.” PACER
users receive “opinions” for free. But the Documents were not designated
“opinions” on PACER. D’Apuzzo believes this was wrong. In his view, the
Documents were in fact “opinions” and he should not have been charged to
access them. This lawsuit is D’Apuzzo’s attempt to recover the 80 cents in PACER
fees he incurred as a result.1
The parties now cross-move for summary judgment on the three claims
asserted by D’Apuzzo. (the “Motions,” ECF Nos. 67, 70.) The Court held a hearing
on the Motions on June 26, 2019. Having considered the parties’ written
submissions, the entire record in this case, the parties’ arguments and
presentations at the hearing, and the applicable law, the Court grants in part
and denies in part the Government’s motion (ECF No. 67) and grants in part
and denies in part D’Apuzzo’s motion (ECF No. 70) as follows.
1.
Background
The material facts in this case are not in dispute. In fact, aside from a
single objection to the Government’s legal interpretation of the E-Government
Act, D’Apuzzo agrees with every fact proffered by the Government to support its
entitlement to judgment as a matter of law. (See ECF Nos. 66, 82.) At the hearing,
D’Apuzzo also sought to proceed on behalf of a class of similarly situated
PACER users. The Court declined to certify that class. (ECF No. 47.)
1
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D’Apuzzo’s counsel reiterated that there are no material facts in dispute. A
summary of those stipulated facts, as well as those proffered by D’Apuzzo,
follows.
A.
The Undisputed Material Facts
The PACER system is a set of software programs, developed and
maintained by the Administrative Office of the United States Courts, that allow
the public to access court filings and case information residing on court
electronic databases. (ECF Nos. 66, 82 at ¶¶ 1; ECF Nos. 69, 77 at ¶¶ 5.) To
access this system, prospective PACER users must register for an account. (ECF
Nos. 69, 77 at ¶¶ 4.) The registration process is a series of webpages that provide
information about the PACER system and request information from registrants.
(ECF Nos. 66, 82 at ¶¶ 10-13.)
The first two pages request “account information” and “user information”
from registrants, including names, addresses, usernames and passwords. (Id. at
¶¶ 10; ECF No. 64-1 at pp. 2-22.)
The third page, titled “Payment Information,” informs PACER registrants
that:
All registered users will be charged as follows:
•
•
•
Use of PACER systems will generate a $.10 per-page charge
and is capped at $3.00 for single documents and case-specific
reports that are more than 30 pages
....
Judicial opinions accessed via PACER will not generate a
charge.
If your usage does not exceed $15 in a quarter, fees are
waived.
(ECF No. 64-1 at p. 25.) That page allows, but does not require, registrants to
input their credit card information. (Id.)
On the fourth and final page, registrants are required to review PACER’s
policies and procedures (the “Policies and Procedures”). The Policies and
Procedures are provided in full on that page by scrollable box and by hyperlink.
(Id. at pp. 27-30; ECF Nos. 66, 82 at ¶¶ 12.) Registrants are again informed by
the Policies and Procedures that the “[u]se of the PACER system will generate a
$.10 per page charge,” and that “[b]y registering for a PACER account” users
“assume responsibility for all fees incurred through the usage of this account.”
(ECF No. 64-1 at p. 30.) The term “opinion” is not mentioned in the Policies and
Procedures. (Id.) Registrants must click a box on that page “acknowledg[ing]”
that they “read and understand” the Policies and Procedures, at which point an
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account is created and the registrant may access PACER services. (Id. at p. 27;
ECF Nos. 66, 82 at ¶¶ 15.)
In August 2014, D’Apuzzo registered for a PACER account. (ECF No. 65-1
at 29:20-30:11.) Although he does not “really recall” the registration process,
D’Apuzzo does not dispute that the process remains the same today as it was in
August 2014. (Id. at 30:14; ECF No. 64-1 at p. 2; ECF Nos. 66, 82 at ¶¶ 9.)
On August 23, 2016, D’Apuzzo accessed an “Order Denying Defendants’
Request for Judicial Notice” entered by District Judge James Cohn in Georgian
v. Zodiac Group, Inc., No. 10-cv-60037, 2011 WL 3349573, at *1 (S.D. Fla. Aug.
3, 2011) (the “Cohn Order,” ECF No. 14-1). (ECF Nos. 66, 82 at ¶¶ 30; ECF No.
64-1 at p. 48.) The Cohn Order was not docketed as an opinion and cost 30 cents
to access, a fact made known to D’Apuzzo by a transaction receipt reviewed by
him prior to downloading that order. (ECF Nos. 66, 82 at ¶¶ 22, 25-26.) On
October 5, 2016, D’Apuzzo received an invoice for $66.60 for the billing quarter
in which he accessed the Cohn Order. (Id. at ¶¶ 31; ECF No. 64-1 at p. 50.)
D’Apuzzo paid that invoice on November 3, 2016. (ECF Nos. 66, 82 at ¶¶ 32; ECF
No. 64-1 at p. 51.)
That same day, D’Apuzzo accessed an order on a preliminary injunction
issued by District Judge Richard Jones in Organo Gold International, Inc. v.
Ventura, No. 2:16-cv-00487, 2016 WL 1756636, at *1 (W.D. Wash. May 3, 2016)
(the “Jones Order,” ECF No. 14-2). (ECF Nos. 66, 82 at ¶¶ 32.) The Jones Order
was not docketed as an opinion and was five pages long. (Id. at ¶¶ 23.) Prior to
downloading the Jones Order, D’Apuzzo reviewed a transaction receipt
memorializing that the cost of the order was 50 cents. (Id. at ¶¶ 26.) D’Apuzzo
downloaded the order on November 3, 2016. (Id. at ¶¶ 32.) He incurred $18.50
in PACER fees for that billing quarter, which he paid on March 29, 2017. (Id. at
¶¶ 36; ECF No. 64-1 at pp. 53-54.)
B.
Procedural History
D’Apuzzo filed this lawsuit on November 22, 2016. (ECF No. 1.) The
operative amended complaint (ECF No. 14) asserts three counts: Count I for
breach of contract, claiming that the Government breached a contract with
D’Apuzzo by charging him a fee to access the Documents, which he claims
should have been designated free judicial “opinions” but were not, (ECF No. 14
at ¶¶ 55-61); Count II for breach of the covenant of good faith and fair dealing,
claiming that the Government “breached the implied covenant of good faith and
fair dealing in the performance of these PACER contracts by charging users to
access judicial opinions,” and not promulgating sufficient guidance on which
orders constitute “opinions,” (id. at ¶¶ 62-70); and Count III for illegal exaction,
claiming that the Government “illegal[ly] exacte[d]” 80 cents in PACER fees from
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D’Apuzzo, which he argues was “unnecessary,” “unreasonable” and “in excess of
that authorized by the E-Government Act and the Fee Schedule,” (id. at ¶¶ 7179).
The Government moved to dismiss. (ECF No. 16.) The Court denied that
motion. (ECF No. 28.) D’Apuzzo then moved for class certification. (ECF No. 37.)
The Court denied that motion, too. (ECF No. 47.) At that point, D’Apuzzo
petitioned the Eleventh Circuit for leave to take a permissive appeal of the order
denying class certification. (ECF No. 48-1.) He further requested and received a
stay of this district court proceeding pending the appellate court’s decision. (ECF
Nos. 48, 49.) The Eleventh Circuit denied the petition on July 24, 2018, and the
Court reopened this case on July 31, 2018. (ECF Nos. 50, 51.) Seven days later,
and after failing to obtain interlocutory appellate review, D’Apuzzo reasserted his
class certification motion before this Court by way of a motion to reconsider “to
correct clear error or prevent manifest injustice.” (ECF No. 52.) Thereafter, the
parties filed the present motions for summary judgment. (ECF Nos. 67, 70.)
i.
The Government’s Motion
The Government seeks summary judgment on all claims based on waiver
and administrative exhaustion theories. As that argument goes, D’Apuzzo waived
his right to challenge the charges at issue because he knew the Documents were
not designated “opinions” but paid for them anyways. For its exhaustion
argument, the Government claims that D’Apuzzo was required to contest any
billing errors through an administrative appeal process prior to filing suit, which
he did not do. (ECF No. 67 at pp. 11-15, 18, 20; ECF No. 32 at p. 12.)
Specific to Count I, the breach of contract claim, the Government requests
summary judgment in its favor arguing that (1) no valid contract exists because
the term “opinion” is inherently subjective and thus insufficiently definite, (ECF
No. 67 at pp. 5-8); (2) no valid contract exists because D’Apuzzo gave no
consideration for the “opinions” he claims to be entitled to for free, (id. at pp. 910); and (3) even if a valid contract exists, Count I still fails because the
Government did not breach that contract by charging D’Apuzzo to access the
Documents, (id. at pp. 10-11).
On Count II, for breach of the implied covenant of good faith and fair
dealing, the Government claims entitlement to summary judgment on three
grounds: (1) that no valid contract exists between D’Apuzzo and the Government,
(id. at pp. 15-16); (2) that the Government did not breach an implied covenant of
good faith and fair dealing by not adopting a different definition of “opinion” from
that which D’Apuzzo agreed to, (id. at p. 16); and, relatedly, (3) that no breach
occurs when a judge exercises his or her discretion to label, or not label, an order
as an “opinion,” (id. at pp. 17-18).
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Finally, the Government requests summary judgment on Count III for
illegal exaction, arguing (1) that the Court lacks jurisdiction to consider the claim
because no statute gives PACER users an express or implied damages remedy
for improper PACER charges, (id. at pp. 18-19); (2) that the claim fails because
the PACER charges at issue were not improper or illegal, (id. at p. 20); and (3)
that D’Apuzzo failed to comply with the administrative process for contesting
PACER billing errors.
ii.
D’Apuzzo’s Motion
D’Apuzzo requests partial summary judgment on four issues: (1) that a
contract, either express or implied-in-fact, exists between the Government and
D’Apuzzo related to his PACER usage, as is necessary to support Counts I and
II, (ECF No. 70 at pp. 2-6); (2) that the E-Government Act of 2002 “mandated
that federal courts provide the public with free access to their opinions,” as
relevant to Count III for the illegal exaction, (id. at pp. 1, 6-9 (emphasis in
original)); (3) that “the Government breached its contractual duty of good faith
and fair dealing, and the E-Government Act’s mandate, by failing to implement
a suitable opinions definition, thereby rendering it liable under Counts II and
III,” (id. at pp. 1, 9-15); and (4) that “the Government’s affirmative defenses of
exhaustion of administrative remedies and waiver fail as a matter of law,” (id. at
pp. 1, 15-21).
2.
Legal Standard
Summary judgment is proper if following discovery, the pleadings,
depositions, answers to interrogatories, affidavits and admissions on file show
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Fed. R. Civ. P. 56. “An issue of fact is ‘material’ if, under the
applicable substantive law, it might affect the outcome of the case.” Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). “An issue of
fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact
to find for the nonmoving party.” Id. at 1260. All the evidence and factual
inferences reasonably drawn from the evidence must be viewed in the light most
favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970).
Once a party properly makes a summary judgment motion by
demonstrating the absence of a genuine issue of material fact, whether or not
accompanied by affidavits, the nonmoving party must go beyond the pleadings
through the use of affidavits, depositions, answers to interrogatories and
admissions on file, and designate specific facts showing that there is a genuine
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issue for trial. Celotex, 477 U.S. at 323–24. The nonmovant’s evidence must be
significantly probative to support the claims. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). The Court will not weigh the evidence or make findings of
fact. Id. Rather, the Court’s role is limited to deciding whether there is sufficient
evidence upon which a reasonable fact finder could find for the nonmoving party.
Id.
When a case is set for bench trial, like this case is, “a district court may
draw inferences against the non-moving party at the summary judgment stage
in certain limited circumstances.” Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ. Inc.,
830 F.3d 1242, 1252 (11th Cir. 2016). To that end, in the Eleventh Circuit2:
where ‘there are no issues of witness credibility’ the district court
may conclude ‘on the basis of the affidavits, depositions, and
stipulations before it, that there are no genuine issues of material
fact’ and grant summary judgment, ‘even though its decision may
depend on inferences to be drawn from what has been
incontrovertibly proved.’ When ‘there are neither issues of credibility
nor controversies with respect to the substance of the proposed
testimony,’ a ‘trial on the merits would reveal no additional data,’
and ‘hearing and viewing the witnesses subject to cross-examination
would not aid the district court’s determination.’ Therefore, the
district judge, ‘as trier of fact, is in a position to and ought to draw
his inference without resort to the expense of a trial.’
Id. (citations and alterations omitted; quoting Nunez v. Superior Oil Co., 572 F.2d
1119, 1123-24 (5th Cir. 1978)).
Moreover, there are “limited circumstances wherein the district court may
treat cross-motions for summary judgment as a trial and resolve the case on the
merits.” Id. (quoting Ga. State Conf. of NAACP v. Fayette Cnty. Bd. of Comm’rs,
775 F.3d 1336, 1345-46 (11th Cir. 2015)). Relevant considerations in assessing
if such circumstances exist are “whether the district court held ‘a hearing on the
motions for summary judgment in which the facts were fully developed’[3];
whether the parties ‘expressly stipulated to an agreed set of facts’[4]; and whether
the record reflects that the parties had in ‘effect submitted the case to the court
for trial on an agreed statement of facts embodied in a limited written record,
Braintree Labs., Inc. v. Novel Labs., Inc., 749 F.3d 1349, 1356 (Fed. Cir.
2014) (“We review the grant of summary judgment under the law of the regional
circuit.”).
2
3
See ECF No. 98.
4
Compare ECF No. 66 with ECF No. 82.
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which would have enabled the district court to decide all issues and resolve all
factual disputes.[5]’” Id. at 1252-53.
3.
Discussion
A.
An Express Contract Exists, But the Government Did Not
Breach It
In Count I, D’Apuzzo argues that he had a contract with the Government
entitling him to access judicial “opinions” for free, and that the Government
breached this contract when it charged him to access the Documents, which he
claims were wrongly not labeled “opinions.”
“To recover for breach of contract, a party must allege and establish (1) a
valid contract between the parties, (2) an obligation or duty arising out of the
contract, (3) a breach of that duty, and (4) damages caused by the breach.” San
Carlos Irrigation & Draining Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir.
1989).
The parties cross-move for summary judgment on Count I, raising
arguments under the first and third elements. The Court agrees with D’Apuzzo
that a valid contract was formed between the parties. But the Court also finds
that the Government did not breach the terms of that contract. Summary
judgment is therefore entered for the Government on Count I.
i.
The Parties Formed an Express Contract
D’Apuzzo claims an express contract was formed through the PACER
account registration process and his acceptance of the Policies and Procedures.
(ECF No. 70 at pp. 3-4 (identifying his contract as “the contract that all PACER
users enter into with the Government when they sign up [i.e. register] for PACER
accounts” (quoting this Court’s prior order on the Government’s motion to
dismiss)).) The Government disagrees, arguing that the term “opinion” is
insufficiently definite to give rise to contractual obligations and, further, that any
such contract fails for lack of consideration. (ECF No. 67 at pp. 5-11; ECF No.
78 at pp. 2-6.)
Under federal contract law, which governs this case,6 an express contract
with the United States exists where there is “a mutual intent to contract
See Parties’ Joint Motion for Modification of Scheduling Order and
Continuance of Trial Date, ECF No. 93 (“Both Parties believe that a trial is
unnecessary to resolve Plaintiff’s claims, given that the material facts are
undisputed, and indeed both have moved for summary judgment.”).
5
“[O]bligations to and rights of the United States under its contracts are
governed exclusively by federal law.” Boyle v. United Techs. Corp., 487 U.S. 500,
6
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including offer, acceptance, and consideration; and authority on the part of the
government representative who entered or ratified the agreement to bind the
United States in contract.” Total Med. Mgmt., Inc. v. United States, 104 F.3d 1314,
1319 (Fed. Cir. 1997); Hoag v. United States, 99 Fed. Cl. 246, 253 (2011).
Completion of the PACER registration process created an express contract
between the Government and D’Apuzzo. Through the registration process, the
Government offered D’Apuzzo “[j]udicial opinions accessed via PACER” for free
and other court documents for 10 cents per page. (ECF No. 64-1 at p. 25.)
D’Apuzzo was presented these terms during the registration process and could
not have registered for PACER or used that service without “acknowledg[ing]”
that he “read and underst[ood]” the Policies and Procedures. (Id. at p. 30.) The
Government thus offered D’Apuzzo access to the PACER system on condition
that he pay 10 cents per page for court documents, except for “[j]udicial opinions
accessed via PACER” which would be provided for free. (ECF No. 64-1 at p. 27;
ECF Nos. 66, 82 at ¶¶ 15.) D’Apuzzo accepted this offer by completing the
registration process and creating a PACER account.
The contract terms are sufficiently definite. “The requirement for certainty
in contracts serves two purposes. One is the need to determine whether the
parties in fact intended to contract at all, and the other relates to the ability of a
court to determine when a breach has occurred and to formulate an appropriate
remedy.” Aviation Contractor Emps., Inc. v. United States, 945 F.2d 1568, 1572
(Fed. Cir. 1991) (citing Restatement (Second) Contracts § 33 (1981)). There is a
clear, mutual intent of the parties to create an express contract through which
D’Apuzzo receives “[j]udicial opinions accessed via PACER” for free, but otherwise
pays the Government 10 cents per page to access PACER documents subject to
certain limitations irrelevant here.7
504 (1988). Subject to exceptions inapplicable here, the Federal Circuit Court of
Appeals has “exclusive jurisdiction” of “an appeal from a final decision of a
district court” when federal jurisdiction is based 28 U.S.C. § 1346(a)(2), as it is
in this case. 28 U.S.C. § 1295(a)(2); (ECF No. 14 at ¶ 12.) Because of this, the
federal contract law governing this case “for the most part has been developed
by the Court of Appeals for the Federal Circuit and the Court of Claims.”
Seaboard Lumber Co. v. United States, 15 Cl. Ct. 366, 369 (1988).
Although an “expressed contract ‘speaks for itself and leaves no room for
implications,’” Webster Univ. v. United States, 20 Cl. Ct. 429, 432-33 (1990), the
Court notes that the parties’ subsequent performance also evidences a mutual
intent to be bound by these terms. For example, with respect to the transactions
challenged in this suit, the Government charged D’Apuzzo 10 cents per page to
access the Documents, which were not designated “opinions” on PACER, and
D’Apuzzo accepted and paid those charges. (ECF Nos. 66, 82 at ¶¶ 26, 31, 36.)
7
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Because the parties intended to contract, the Court is hesitant “to deny
enforcement on the basis of indefiniteness.” Id. (citing 1 A. Corbin, Corbin on
Contracts § 97 (1963)). And the Court finds that the contract term “judicial
opinion” is sufficiently definite. Here, the Government agreed to provide D’Apuzzo
“[j]udicial opinions accessed via PACER” for free. For the purposes of the
contract, the Court interprets the term “judicial opinion” to mean only the
documents that are designated “opinions” on PACER.8 See P.J. Maffei Bldg.
Wrecking Corp. v. United States, 732 F.2d 913, 916-17 (Fed. Cir. 1984) (matters
of contract interpretation present “question[s] of law which may be decided by
this court for itself”).9 Those are the court records that D’Apuzzo is contractually
entitled to for free. In this way, the term “opinion” is “sufficient[ly] definite[] so as
to provide a basis for determining the existence of a breach and for giving an
appropriate remedy,” Horn v. United States, 98 Fed. Cl. 500, 505 (2011); indeed,
were the Government to charge D’Apuzzo for “opinions” so designated on PACER,
it would breach the contract and entitle D’Apuzzo to damages.
The remaining elements of an express contract are met. “Consideration, in
the context of a government contract, must render a benefit to the government,
and not merely a detriment to the contractor.” Montefiore Hosp. Ass’n of W. Pa.
v. United States, 5 Cl. Ct. 471, 476 (1984). Here, the Government provides
D’Apuzzo access to court records through the PACER system. In exchange,
D’Apuzzo conferred a benefit on the Government by agreeing to pay money to
Both parties argue that numerous extraneous documents either render,
or don’t render, the term “opinion” ambiguous or indefinite as used in the
contract. (See, e.g., ECF Nos. 67 at pp. 6-8 and 80 at pp. 3-6 (citing to the PACER
user manual, the official guidance documents issued by the Judicial Conference,
and various other PACER-related announcements).) Notably, none of those
documents are presented to PACER users during the four-step registration
process. Nor do the parties suggest that D’Apuzzo reviewed these documents
prior to completing that process. The Court does not consider these documents
in its review of the breach of contract claim both because an “express contract
‘speaks for itself and leaves no room for implications,’” Webster, 20 Cl. Ct. at
433, and because “parol evidence may not be utilized” to “create an ambiguity”
in a definite contract term, like “judicial opinion” here. King Fisher Marine Servs.,
Inc. v. United States, 16 Cl. Ct. 231, 234 (1989) (citing Zim v. W. Pub. Co., 573
F.2d 1318, 1323 (5th Cir. 1978)); Axion Corp. v. United States, 68 Fed. Cl. 468,
476 n.4 (2005) (“It is well settled that the court will not consider parol evidence
to create an ambiguity where the language is plain on its face.”).
8
At the hearing on the Motions, D’Apuzzo agreed that the Court can
interpret the contract as a matter of law.
9
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access certain of those records. That the contract also permits D’Apuzzo free
access to other PACER documents does not invalidate this monetary benefit to
the Government or render consideration lacking. And for the authority to
contract on behalf of the United States, Total Med. Mgmt., 104 F.3d at 1319,
there is no dispute that the Administrative Office of the United States Courts has
actual authority to bind the Government by exercising its statutory duty to
administer the PACER program. (See ECF No. 28 at p. 4.) All elements of an
express contract are met.
In sum, the Court finds there is no dispute of material fact that an express
contract was formed between the Government and D’Apuzzo governing his use
of PACER. D’Apuzzo is therefore entitled to summary judgment on that limited
ground, (ECF No. 70 at pp. 3-5). The Government’s arguments against the
existence of such a contract, (ECF No. 67 at pp. 5-10), are denied.10
ii.
The Government Did Not Breach the Contract
The existence of an express contract does not end the inquiry. To prevail
on Count I, D’Apuzzo must still establish the remaining elements of a claim for
breach of contract. D’Apuzzo claims that the Government breached its contract
by charging him to access the Documents. In its motion, the Government argues
that it did not breach the contract as a matter of law because the Documents
were not designated as “opinions” and D’Apuzzo was appropriately charged to
access them. The Court agrees with the Government.
A “breach of contract is a failure to perform a contractual duty when it is
due.” Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997).
Analysis of this element requires the Court to first determine what performance
the contract required, and then determine whether a party performed as
Because there is an express contract between the Government and
D’Apuzzo governing his use of PACER, an implied-in-fact contract on that subject
cannot exist as a matter of law. Atlas Corp. v. United States, 895 F.2d 745, 75455 (Fed. Cir. 1990) (“The existence of an express contract precludes the existence
of an implied contract dealing with the same subject, unless the implied contract
is entirely unrelated to the express contract.” (citing ITT Fed. Support Servs., Inc.
v. United States, 531 F.2d 522, 528 n.12 (Ct. Cl. 1976)). Thus, D’Apuzzo’s
alternative argument—that an implied in fact contract was formed “as to PACER
charges for opinions access,” (ECF No. 70 at pp. 5-6)—“does not deal with subject
matter that is separate from and unrelated to the valid express contract[],” and
is denied accordingly. Lee v. United States, 895 F.3d 1363, 1370 (Fed. Cir. 2018);
see also Lee v. United States, 130 Fed. Cl. 243, 258-59 (2017) (“The Court has
no juridical power to replace the terms of the express contracts with judicially
crafted implied . . . contract terms.”).
10
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required. In this respect, and as relevant to adjudication of the parties’ motions,
the Federal Circuit has explained that:
the determination of whether non-compliance with the terms of a
contract is material, so as to constitute a breach, is a mixed question
of fact and law. What was required by way of contract performance
turns on contract interpretation, which is an issue of law. At the
same time, the conduct of the allegedly breaching party—in other
words, what the party did or did not do—is an issue of fact. Where,
as here, the facts are undisputed, the determination of whether
there has been material non-compliance with the terms of a
contract, and hence breach, necessarily reduces to a question of law.
Golbert v. Dep’t of Justice, 334 F.3d 1065, 1071-72 (Fed. Cir. 2003) (citations
omitted).
For the first inquiry, as earlier stated, the Government was contractually
required to provide D’Apuzzo free access to court records designated as
“opinions” on PACER. (See § 3.A.i., supra.) So, to constitute a breach, the
Government must have charged D’Apuzzo to access such records. But there is
no dispute that the Documents were not designated as “opinions” on PACER.
(ECF Nos. 66, 82 at ¶¶ 22-23.) Payment was therefore required to access them.
The Government did not breach the contract by charging D’Apuzzo 80 cents to
access the Documents.11
Summary judgment is entered for the Government on Count I.
B.
The Government Did Not Breach a Duty of Good Faith and Fair
Dealing
D’Apuzzo contends in Count II that the Government breached its implied
covenant of good faith and fair dealing by “fail[ing] to promulgate a definition of
‘judicial opinion’ that could be applied consistently by various courts of the
United States, or to otherwise implement safeguards to ensure free access to
judicial opinions via PACER, so as to not deprive PACER users of this contractual
benefit.” (ECF No. 14 at ¶ 67.)
The Government seeks summary judgment on this claim on the grounds
that the Government did not breach an implied covenant of good faith and fair
dealing by not adopting a different definition of “opinion” from that which the
D’Apuzzo apparently concedes as much. (See ECF No. 80 at p. 12 (“To be
clear, Plaintiff’s position is not that the authoring judges committed a breach of
contract by not designating the two rulings that Plaintiff paid for”).)
11
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Plaintiff agreed to and, relatedly, that no breach occurs when a judge exercises
his or her discretion to label, or to not label, an order as an “opinion.”12
“The duty of good faith and fair dealing is inherent in every contract.”
Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 828 (Fed. Cir. 2010)
(citing Restatement (Second) of Contracts § 205). “The covenant imposes
obligations on both contracting parties that include the duty not to interfere with
the other party’s performance and not to act so as to destroy the reasonable
expectations of the other party regarding the fruits of the contract.” Centex Corp.
v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005). The purpose of this
“covenant is to protect the reasonable expectations of the parties by implying
terms in the agreement.” Barseback Kraft AB v. United States, 36 Fed. Cl. 691,
706 (1996) affirmed by 121 F.3d 1475 (Fed. Cir. 1997). And the “modus
operandi” of this claim “typically involve[s] some variation on the old bait-andswitch”:
First, the government enters into a contract that awards a
significant benefit in exchange for consideration. Then, the
government eliminates or rescinds that contractual provision or
benefit through a subsequent action directed at the existing
contract. The government may be liable for damages when the
subsequent government action is specifically designed to
reappropriate the benefits the other party expected to obtain from
the transaction, thereby abrogating the government’s obligations
under the contract.
Id. at 829 (citations omitted). That is not this case.
D’Apuzzo could not have reasonably expected that the contract would
entitle him to any say in what court orders were designated “opinions.” His
contract grants him free access to documents designated “opinions” on PACER.
That’s it. No contract term remotely supports an agreement of the parties as to
how judicial “opinions” would be designated as such. (See D’Apuzzo’s Mot., ECF
No. 70 at p. 9 (“[N]either the Act’s mandate nor PACER’s contractual terms have
any qualifiers as to which opinions should be accessible free of charge.”).) So,
D’Apuzzo could not reasonably expect his contract to provide him free access to
the specific types of court records he claims a right to in this case.13 Nor could
Because an express contract was formed between the parties, the Court
denies the Government’s argument that it is entitled to summary judgment on
Count II based on the absence of such a contract, (see ECF No. 67 at pp. 15-16).
12
(See, e.g., ECF No. 70 at p. 9 (“any document issued by a judge or judges
of the court, sitting in that capacity, that sets forth a reasoned explanation for a
13
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D’Apuzzo reasonably expect that the contract granted him the ability to challenge
an “opinion” designation or non-designation. Put differently, there is no basis for
D’Apuzzo’s belief that the contract allows him (or requires this Court) to
supervise Judge Cohn and Judge Jones’ exercise of their official duties.
Instead, the contract left to the Government—namely, federal judges—the
absolute authority to decide what court orders constitute judicial “opinions.”
The Government did not breach an implied duty of good faith and fair dealing by
exercising this complete discretion, as permitted by the contract and consistent
with D’Apuzzo’s reasonable expectations flowing therefrom. Barseback, 36 Fed.
Cl. at 706 (“if the parties contract for a provision that provides one party with
unconditional discretion, the only reasonable expectations of the parties is that
the party vested with such discretion will exercise that discretion at some point
in time”); see also Precision Pine, 596 F.3d at 831.
Summary judgment is entered for the Government on Count II.14
C.
There is No Jurisdiction for Count III
In Count III, for “illegal exaction,” D’Apuzzo seeks the return of “improperly
collected user fees from [D’Apuzzo] . . . in excess of those authorized by Congress
under the E-Government Act and under the PACER Fee Schedule.” (ECF No. 14
at ¶ 79.) The Government seeks summary judgment on this count, claiming the
Court lacks jurisdiction to entertain it under 28 U.S.C. § 1346. The Court agrees
with the Government.
“In both the Tucker Act, 28 U.S.C. § 1491, and the Little Tucker Act, 28
U.S.C. § 1346(a)(2), Congress has waived sovereign immunity for certain actions
for monetary relief against the United States.” Doe v. United States, 372 F.3d
1308, 1312 (Fed. Cir. 2004). “To invoke Tucker Act jurisdiction over an illegal
exaction claim, a claimant must demonstrate that the statute or provision
causing the exaction itself provides, either expressly or by ‘necessary
implication,’ that ‘the remedy for its violation entails a return of money
unlawfully exacted.’” Norman v. United States, 429 F.3d 1081, 1095 (Fed. Cir.
2005) (quoting Cyprus Amax Coal Co. v. United States, 25 F.3d 1369, 1373 (Fed.
court’s decision”), p. 10 (all reports and recommendations and orders adopting
them).)
In his briefing, D’Apuzzo did not identify any authority to support a finding
that the Government can breach a duty of good faith and fair dealing by failing
to enact legislation or regulations, or otherwise govern. (See D’Apuzzo’s Mot. ECF
No. 70 at p. 1 (arguing that “the Government breached its contractual duty of
good faith and fair dealing, and the E-Government Act’s mandate, by failing to
implement a suitable opinions definition”).)
14
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Cir. 2005) (“[T]o invoke jurisdiction under the Tucker Act, a party must point to
a complementary substantive right found in another source of federal law, such
as the Constitution, federal statutes, or executive regulations.”)).15
There is no jurisdiction over the illegal exaction claim. First, and as
indicated in the order denying class certification in this case (ECF No. 47 at p.
4), the Court does not agree with D’Apuzzo that section 205(a)(5) of the EGovernment Act mandates free access to judicial opinions. Section 205(a)(5)
requires courts to maintain websites providing “[a]ccess to the substance of all
written opinions issued by the court, regardless of whether such opinions are to
be published in the official court reporter, in a text searchable format.” Pub. L.
No. 107-347, § 205(a)(5). This language does not evoke a congressional intent to
govern if, and to what extent, judicial opinions are charged to the public.
Instead, section 205(a)(5) simply mandates that the substance of opinions be
provided on a website in “text searchable format.” Id.
The Court’s understanding of section 205(a)(5) is informed by section
205(a)(4). Id., § 205(a)(4). That provision requires website “[a]ccess to docket
information for each case.” Id. But the PACER Fee Schedule, set by the Judicial
Conference of the United States, charges 10 cents per page to access “docket
sheets.” (ECF No. 64-1 at p. 7.) The Court does not believe that Congress
intended the term “access” to mean “free access” with respect to judicial opinions
in section 205(a)(5), but not for “docket information” under section 205(a)(4). See
Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980) (“In the end, we cannot accept
respondent’s position without unreasonably giving the word ‘filed’ two different
meanings in the same section of the statute.”). Nor does the Court believe the
Judicial Conference—which consists of the Chief Justice of the United States
Supreme Court, the chief judges for each judicial circuit and other federal judges,
28 U.S.C. § 331—misconstrued the E-Government Act in charging to access
docket information.
Finally, interpreting section 205(a)(5) as not requiring free access to
judicial opinions finds support in 28 U.S.C. §§ 1913, 1914. Through those
statutes, Congress delegated to the Judicial Conference of the United States the
authority to prescribe fees that may be collected by district courts (with exception
for case filing fees required under the statute). Id., § 1914 (“The clerk shall collect
from the parties such additional fees only as are prescribed by the Judicial
Conference of the United States.”); see also Pub. L. 101-515, § 404, 104 Stat.
2132 (Nov. 5, 1990) (codified at 28 U.S.C. § 1913 note) (“The Judicial Conference
Crocker v. United States, 37 Fed. Cl. 191, 200 (1997) (“[O]ther than the
dollar limit on district court jurisdiction, there is no difference between the ‘little’
and ‘big’ Tucker Act.”).
15
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shall 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.”); Nat’l Veterans Legal Servs. Program v. United States, 291 F. Supp.
3d 123, 127-29 (D.D.C. 2018) (“the Judicial Conference was given the authority
(indeed, it was required) to charge reasonable fees for ‘access to information
available through automatic data processing equipment,’ which covered its
newly-developed PACER system” (footnote omitted)). The Court does not read
section 205(a)(5) to impinge on Congress’ delegation of authority to the Judicial
Conference to determine the fees that may be charged to access court records.
See S. Rep. No. 107-174, 2002 WL 1425816, at **22-23 (June 24, 2002) (Report
on the E-Government Act by the Senate Committee on Governmental Affairs,
“encourag[ing] the Judicial Conference” to amend its fee structure for access to
PACER documents (emphasis added)).
In sum, the E-Government Act neither mandates free access to judicial
opinions nor creates a remedy for the return of monies purportedly paid to access
such documents. Norman, 429 F.3d at 1095, 1096. The Act thus is not a source
of jurisdiction for D’Apuzzo’s illegal exaction claim. Id.
D’Apuzzo argues in the alternative that the PACER Fee Schedule is an
independent basis for jurisdiction over Count III. The Court disagrees. “[T]o
invoke jurisdiction under the Tucker Act, a party must point to a complementary
substantive right found in another source of federal law, such as the
Constitution, federal statutes, or executive regulations.” Cyprus, 205 F.3d at
1373 (citing United States v. Mitchell, 463 U.S. 206, 216 (1983) (“If a claim falls
within the terms of the Tucker Act, the United States has presumptively
consented to suit.”)); 28 U.S.C. § 1346(a)(1) (waiving the United States’ sovereign
immunity for claims founded upon the Constitution, any Act of Congress or any
regulation of an executive department). The PACER Fee Schedule is set by the
Judicial Conference, an entity composed of federal judges belonging to the
judicial branch. 28 U.S.C. § 331. So, to the extent the illegal exaction claim is
based on the Fee Schedule—rather than the Constitution, an Act of Congress or
a regulation of an executive department, 28 U.S.C. § 1346(a)(1)—the Court lacks
jurisdiction to entertain that claim. Cyprus, 205 F.3d at 1373; but see In re
United States, 463 F.3d 1328, 1336 n.6 (Fed. Cir. 2006) (leaving as open question
whether Judicial Conference regulations can provide a basis for Tucker Act
jurisdiction).
In any event, Count III fails on the merits. An illegal exaction claim exists
when “the plaintiff has paid money over to the Government, either directly or in
effect, and seeks return of all or part of that sum that was improperly paid,
exacted, or taken from the claimant in contravention of the Constitution, a
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statute, or a regulation.” Aerolineas Argentinas v. United States, 77 F.3d 1564,
1572-73 (Fed. Cir. 1996) (quotations omitted).
D’Apuzzo did not improperly pay for the Documents. The guidance
documents implementing the E-Government Act delegate to the “authoring
judge” the ultimate “responsibility for determining which documents” constitute
“opinions.” (ECF No. 40-5 at p. 3.) And it is undisputed that Judge Cohn and
Judge Jones did not designate the Documents as “opinions.” (ECF Nos. 66, 82
at ¶¶ 22-23.) Thus, even if jurisdiction existed over Count III, that claim would
still fail because D’Apuzzo was appropriately charged to access the Documents,
which were not designated as opinions by the authoring judges. See Citizens Ins.
Co. of Am. v. United States, 102 Fed. Cl. 733, 741-42 (2011) (illegal exaction
claims fail where payment to the government was not contrary to law).
The Court therefore grants the Government’s motion with respect to Count
III and dismisses the illegal exaction claim.
4.
Conclusion
In sum, the Court orders as follows:
•
D’Apuzzo’s motion for summary judgment (ECF No. 70) is granted in part,
only to the extent that the Court finds a valid express contract exists between
the Government and D’Apuzzo.
•
The Government’s motion for summary judgment (ECF No. 67) is granted in
part. The Court enters summary judgment for the Government on Counts I
and II of the amended complaint and dismisses Count III.
•
All arguments raised by the parties in their motions for summary judgment
that are not expressly adjudicated in this order are denied as moot.
•
D’Apuzzo’s motion to reconsider the Court’s prior order denying class
certification (ECF No. 52) is denied as moot. Rink v. Cheminova, Inc., 400
F.3d 1286, 1297 (11th Cir. 2005) (“Because we have found that summary
judgment was properly granted as to the underlying claims of the class
representatives, the issue of class certification is moot.”); Greenlee Cnty., Ariz.
v. United States, 487 F.3d 871, 880-81 (Fed. Cir. 2007) (same).
•
The Government’s motion in limine (ECF No. 90) and all other motions are
denied as moot.
•
The Clerk is directed to close this case.
Case 0:16-cv-62769-RNS Document 99 Entered on FLSD Docket 06/27/2019 Page 17 of 17
Done and ordered, in chambers, at Miami, Florida on June 27, 2019.
Robert N. Scola, Jr.
United States District Judge
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