National Veterans Legal Services Program v. United States ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES PROGRAM, et al.,
Plaintiffs,
Civil Action No. 16-745 (ESH)
v.
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION
The federal judiciary’s Public Access to Court Electronic Records (“PACER”) system,
which is managed by the Administrative Office of the United States Courts (“AO”), provides the
public with online access to the electronic records of federal court cases. The fees for using
PACER are established by the Judicial Conference of the United States Courts and set forth in
the judiciary’s Electronic Public Access (“EPA”) Fee Schedule. In this class action, users of the
PACER system contend that the fees charged from 2010 to 2016 violated federal law, see
28 U.S.C. § 1913 note (enacted as § 404 of the Judiciary Appropriations Act, 1991, Pub. L. 101-
515, 104 Stat. 2101 (Nov. 5, 1990) and amended by § 205(e) of the E-Government Act of 2002,
Pub. L. 107-347, 116 Stat. 2899 (Dec. 17, 2002)). Before the Court are the parties’ cross-
motions for summary judgment as to liability. (See Pls.’ Mot. Summ. J., ECF No. 52; Def.’s
Cross-Mot. Summ. J., ECF No. 73.) For the reasons stated herein, the Court will deny plaintiffs’
motion and grant in part and deny in part defendant’s motion.
BACKGROUND
I. FACTUAL BACKGROUND
Although the present litigation is a dispute over whether, during the years 2010–2016, the
PACER fees charged violated 28 U.S.C. § 1913 note, the relevant facts date back to PACER’s
creation.1
A. Origins of PACER and the Judiciary’s Electronic Public Access (“EPA”) Fee
Schedule
In September 1988, the Judicial Conference “authorized an experimental program of
electronic access for the public to court information in one or more district, bankruptcy, or
appellate courts in which the experiment can be conducted at nominal cost, and delegated to the
Committee [on Judicial Improvements] the authority to establish access fees during the pendency
of the program.” (Rep. of Proceedings of the Jud. Conf. of the U.S. (“Jud. Conf. Rep.”) at 83
(Sept. 18, 1988) (emphasis added) (Ex. A to the Decl. of Wendell Skidgel, Nov. 11, 2017, ECF
No. 73-2 (“Skidgel Decl.”)); see also Def.’s Statement Facts ¶¶ 1-2, ECF No. 73-3 (“Def.’s
Facts”)). The following year, the Federal Judicial Center initiated pilot PACER programs in
several bankruptcy and district courts. (See Chronology of the Fed. Judiciary’s Elec. Pub.
Access (EPA) Program at 1 (“EPA Chronology”) (Ex. C to the Decl. of Jonathan Taylor, Aug.
28, 2017, ECF No. 52-1 (“Taylor Decl.”)).)
In February 1990, during a hearing on judiciary appropriations for 1991, a subcommittee
of the House Committee on Appropriations took up the judiciary’s “request[] [for] authority to
collect fees for access to information obtained through automation.” Dep’ts of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations for 1991: Hearing Before
1
The facts set forth herein are undisputed.
2
a Subcomm. of the H. Comm. on Appropriations, 101st Cong. 323 (1990) (“1990 Hrg.”). It
asked a representative for the judiciary whether there were “any estimates on how much you will
collect and will this fee help offset some of your automation costs.” Id. at 324. The response
from the judiciary was that “estimates of the revenue that will be generated from these fees are
not possible due to the lack of information on the number of attorneys and individuals who have
the capability of electronic access,” but that there “ha[d] been a great deal of interest expressed”
and it was “anticipated that the revenue generated will offset a portion of the Judiciary’s cost of
automation.” Id. The Senate Report on 1991 appropriations bill noted that it “included language
which authorizes the Judicial Conference to prescribe reasonable fees for public access to case
information, to reimburse the courts for automating the collection of the information.” S. Rep.
No. 101-515, at 86 (1990) (“1990 S. Rep.”) (emphasis added).
In March 1990, “barring congressional objection,” the Judicial Conference “approved an
initial rate schedule for electronic public access to court data [in the district and bankruptcy
courts] via the PACER system.” (Jud. Conf. Rep. at 21 (Mar. 13, 1990) (Skidgel Decl. Ex. C);
Def.’s Facts ¶ 5.)2
Then, in November 1990, Congress included the following language in the Judiciary
Appropriations Act of 1991:
(a) The Judicial Conference 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. These fees may distinguish between classes of
persons, and shall provide for exempting persons or classes of persons from the
2
At that time, “PACER allow[ed] a law firm, or other organization or individual, to use a
personal computer to access a court’s computer and extract public data in the form of docket
sheets, calendars, and other records.” (Jud. Conf. Rep. at 21 (Mar. 13, 1990).) The initial fee
schedule included a Yearly Subscription Rate ($60 per court for commercial users; $30 per court
for non-profits) and a Per Minute Charge ($1 per minute for commercial users; 50 cents per
minute for non-profits). (Id.)
3
fees, in order to avoid unreasonable burdens and to promote public access to such
information. The Director, 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.
Pub. L. 101-515, § 404, 104 Stat. 2101 (Nov. 5, 1990) (codified at 28 U.S.C. § 1913 note).3
Three aspects of this law are relevant to this litigation: (1) 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,”4 which covered its newly-developed PACER
3
The statutory sections referenced authorize the federal courts to charge certain fees.
See 28 U.S.C. § 1913 (fees for courts of appeals); id § 1914 (fees for district courts); id. § 1926
(fees for Court of Federal Claims); id. § 1930 (fees for bankruptcy courts).
4
The term “automatic data processing equipment” is not defined in 28 U.S.C. § 1913 note, but it
was defined in 28 U.S.C. § 612 as having “the meaning given that term in section 111(a)(2)(A)
of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 759(a)(2)(A)),”
which at that time defined it as:
. . . any equipment or interconnected system or subsystems of equipment that is
used in the automatic acquisition, storage, manipulation, management, movement,
control, display, switching interchange, transmission, or reception, of data or
information—
...
(B) Such term includes—
(i) computers;
(ii) ancillary equipment;
(iii) software, firmware, and similar procedures;
(iv) services, including support services; and
(v) related resources as defined by regulations issued by the Administrator for
General Services.
4
system; (2) the Director of the AO was required to publish a “schedule of reasonable fees for
electronic access to information”; and (3) the fees collected by the judiciary pursuant to that fee
schedule were to be deposited in the Judiciary Automation Fund5 “to reimburse expenses
incurred in providing these services.” Id.
In the summer of 1992, the House Committee on Appropriations issued a report that
“note[d] that the Judiciary’s investments in automation have resulted in enhanced service to the
public and to other Government agencies in making court records relating to litigation available
by electronic media” and “request[ed] that the Judiciary equip all courts, as rapidly as is feasible,
with the capability for making such records available electronically and for collecting fees for
doing so.” H.R. Rep. No. 102-709, at 58 (July 23, 1992) (“1992 H.R. Rep.”) (report
accompanying appropriations bill for the judiciary for fiscal year (“FY”) 1993).6
5
Congress had established the Judiciary Automation Fund (“JAF”) in 1989 to be “available to
the Director [of the AO] without fiscal year limitation for the procurement (by lease, purchase,
exchange, transfer, or otherwise) of automatic data processing equipment for the judicial branch
of the United States” and “for expenses, including personal services and other costs, for the
effective management, coordination, operation, and use of automatic data processing equipment
in the judicial branch.” See Pub. L. 101-162, 103 Stat 988 (1989) (codified at 28 U.S.C.
§ 612(a)). Before 28 U.S.C. § 1913 note was enacted, PACER fees were required to be
deposited in the U.S. Treasury. (See Jud. Conf. Rep. at 20 (Mar. 14, 1989) (Skidgel Decl. Ex.
B).) In 1989, the Judicial Conference, “[o]bserving that such fees could provide significant
levels of new revenues at a time when the judiciary face[d] severe funding shortages,” had
“voted to recommend that Congress credit to the judiciary’s appropriations account any fees
generated by providing public access to court records”; determined that it would try to change
that. (See id.; Def.’s Facts ¶ 3; see also Jud. Conf. Rep. at 21 (Mar. 13, 1990) (noting that the FY
1990 appropriations act provided that the judiciary was “entitled to retain the fees collected for
PACER services in the bankruptcy courts,” and that the Conference would “seek similar
legislative language to permit the judiciary to retain the fees collected for district court PACER
services”).)
6
According to this report, the Committee believed that “more than 75 courts are providing this
service, most of them at no charge to subscribers”; that “approximately a third of current access
to court records is by non-Judiciary, governmental agencies” and that “fees for access in these
instances are desirable”; and that it was “aware that a pilot program for the collection of fees
ha[d] been successfully implemented in the Courts and encourage[d] the Judiciary to assess
charges in all courts, in accordance with the provisions of section 404(a) of P.L. 101-515[.]”
5
In 1993, the Judicial Conference amended the fee schedules for the Courts of Appeals to
include a “fee for usage of electronic access to court data” for “users of PACER and other
similar electronic access systems,” while deciding not to impose fees for another “very different
electronic access system” then in use by the appellate courts. (Jud. Conf. Rep. at 44–45 (Sept.
20, 1993) (Skidgel Decl. Ex. D).)7 In 1994, the Judicial Conference approved a “fee for usage of
electronic access to court data” for the Court of Federal Claims. (Jud. Conf. Rep. at 16 (Mar. 15,
1994) (Skidgel Decl. Ex. E).) Finally, in March 1997, it did the same for the Judicial Panel on
Multidistrict Litigation. (Jud. Conf. Rep. at 20 (Mar. 11, 1997)8; Def.’s Facts ¶ 13.)
B. EPA Fees Before the E-Government Act (1993–2002)
As the Judicial Conference was adding EPA fees to the fee schedules for additional
courts, it became apparent that the “income accruing from the fee[s] w[ould] exceed the costs of
providing the service.” (Jud. Conf. Rep. at 13–14 (Mar. 14, 1995).) Accordingly, after noting
that this revenue “is to be used to support and enhance the electronic public access systems,” the
Judicial Conference reduced the fee from $1.00 to 75 cents per minute in 1995. (Id.) In 1996,
after noting that the previous reduction had been “to avoid an ongoing surplus,” it “reduce[d] the
1992 H.R. Rep. at 58.
7
The Judicial Conference Report explained that:
Some appellate courts utilize a very different electronic access system called
Appellate Court Electronic Services (ACES) (formerly known as Electronic
Dissemination of Opinions System (EDOS)). The Committee determined that, at
this time, the costs of implementing and operating a billing and fee collection
system for electronic access to the ACES/EDOS system would outweigh the
benefit of the revenues to be generated.
(Jud. Conf. Rep. at 44 (Sept. 20, 1993).)
8
Legislation authorizing the Judicial Conference to establish a fee schedule for the Judicial
Panel on Multidistrict Litigation was enacted in 1996. See Pub. L. No. 104-317 (1996) § 403(b),
Oct. 19, 1996, 110 Stat. 3854 (codified at 28 U.S.C. § 1932).
6
fee for electronic public access further,” from 75 to 60 cents per minute. (Jud. Conf. Rep. at 16
(Mar. 13, 1996) (Skidgel Decl. Ex. F); see also EPA Chronology at 1; Def.’s Facts ¶ 14.)
Shortly after the 1996 fee reduction, the House and Senate Appropriations Committees
issued reports that included commentary on the judiciary’s EPA fees. The House Report stated:
The Committee supports the ongoing efforts of the Judiciary to improve and
expand information made available in electronic form to the public. Accordingly,
the Committee expects the Judiciary to utilize available balances derived from
electronic public access fees in the Judiciary Automation Fund to make
information and services more accessible to the public through improvements to
enhance the availability of electronic information. The overall quality of service
to the public will be improved with the availability of enhancements such as
electronic case documents, electronic filings, enhanced use of the Internet, and
electronic bankruptcy noticing.
H.R. Rep. No. 104-676, at 89 (July 16, 1996) (emphasis added) (“1996 H.R. Rep.”). The Senate
Report stated that:
The Committee supports efforts of the judiciary to make electronic information
available to the public, and expects that available balances from public access fees
in the judiciary automation fund will be used to enhance availability of public
access.
S. Rep. No. 104-353, at 88 (Aug. 27, 1996) (“1996 S. Rep.”).
Soon thereafter, “the judiciary started planning for a new e-filing system called ECF
[Electronic Case Filing].” (Pls.’ Statement Facts ¶ 9, ECF No. 52-16 (“Pls.’ Facts”).) In March
1997, the staff of the AO prepared a paper, entitled “Electronic Case Files in the Federal Courts:
A Preliminary Examination of Goals, Issues and the Road Ahead,” “to aid the deliberations of
the Judicial Conference in this endeavor,” which would allow courts to maintain complete
electronic case files. (Taylor Decl. Ex. B, at 36 (“1997 AO Paper”).) In discussing how the ECF
system could be funded, the paper discussed the possibility of charging a separate fee for ECF,
but also opined that “[s]tarting with fiscal year 1997, the judiciary has greater freedom in the use
of revenues generated from electronic public access fees” because “the [1996] House and Senate
7
appropriations committee reports . . . include[d] language expressly approving use of these
monies for electronic filings, electronic documents, use of the Internet, etc.” (1997 AO Paper at
36; see Pls.’ Facts ¶ 9; see also Second Decl. of Wendell Skidgel, March 14, 2018, ECF 81-1
(“2d Skidgel Decl.”), Tab 1 (“FY 2002 Budget Request”) (“Fiscal year 1997 appropriations
report language expanded the judiciary’s authority to use these funds to finance automation
enhancements that improve the availability of electronic information to the public.”).) In the
summer of 1998, the Senate Appropriations Committee reiterated its view that it “support[ed]
efforts of the judiciary to make information available to the public electronically, and expect[ed]
that available balances from public access fees in the judiciary automation fund will be used to
enhance the availability of public access.” S. Rep. No. 105-235, at 114 (July 2, 1998) (“1998 S.
Rep.”).
At some point, “a web interface was created for PACER” and the Judicial Conference
prescribed the first Internet Fee for Electronic Access to Court Information, charging 7 cents per
page “for public users obtaining PACER information through a federal judiciary Internet site.”
(Jud. Conf. Rep. at 64 (Sept. 15, 1998) (Skidgel Decl. Ex. G); see EPA Chronology at 1.) The
Judicial Conference stated in its report that
The revenue from these fees is used exclusively to fund the full range of
electronic public access (EPA) services. With the introduction of Internet
technology to the judiciary’s current public access program, the Committee on
Court Administration and Case Management recommended that a new Internet
PACER fee be established to maintain the current public access revenue while
introducing new technologies to expand public accessibility to PACER
information.
(Jud. Conf. Rep. at 64 (Sept. 15, 1998).)9
9
At the same time, the Judicial Conference “addressed the issue of what types of data or
information made available for electronic public access should have an associated fee and what
types of data should be provided at no cost.” (Jud. Conf. Rep. at 64–65 (Sept. 15, 1998).) It
concluded that while it “prescribed a fee for access to court data obtained electronically from the
8
In March 2001, the Judicial Conference eliminated the EPA fees from the court-specific
miscellaneous fee schedules and replaced them with “an independent miscellaneous EPA fee
schedule that would apply to all court types.” (Jud. Conf. Rep. at 12–13 (Mar. 14, 2001)
(Skidgel Decl. Ex. H); see also EPA Chronology at 1.) At the same time, it amended the EPA
fee schedule to provide: (1) that attorneys of record and parties in a case would receive one free
electronic copy of all documents filed electronically, if receipt is required by law or directed by
the filer, which could then be printed and saved to the recipient’s own computer or network; (2)
that no fee is owed by a PACER user until charges of more than $10 in a calendar year are
accrued; (3) a new fee of 10 cents per page for printing paper copies of documents through
public access terminals at clerks’ offices; and (4) a new PACER Service Center search fee of
$20.10 (Jud. Conf. Rep. at 12–13 (Mar. 14, 2001).) In 2002, the Judicial Conference further
amended the EPA fee schedule “to cap the charge for accessing any single document via the
Internet at the fee for 30 pages.”11 (Jud. Conf. Rep. at 11 (Mar. 13, 2002) (Skidgel Decl. Ex. I).)
Starting no later than fiscal year 2000,12 the judiciary was using its EPA fees to pay for
public dockets of individual case records in the court,” courts should be allowed to “provide
other local court information at no cost,” such as local rules, court forms, news items, court
calendars, opinions designated by the court for publication, and other information—such as court
hours, court location, telephone listings—determined locally to benefit the public and the court.”
(Id.)
10
At the time, “[t]he PACER Service Center provide[d]s registration, billing, and technical
support for the judiciary’s EPA systems and receive[d] numerous requests daily for particular
docket sheets from individuals who d[id] not have PACER accounts.” (Jud. Conf. Rep. at 12–13
(Mar. 14, 2001).)
11
The Judicial Conference took this step because otherwise “the fee is based upon the total
number of pages in a document, even if only one page is viewed, because the case
management/electronic case files system (CM/ECF) software cannot accommodate a request for
a specific range of pages from a document,” which “can result in a relatively high charge for a
small usage.” (Jud. Conf. Rep. at 11 (Mar. 13, 2002).)
12
The record does not include any specifics as to the use of EPA fees prior to FY 2000.
9
PACER-related costs, CM/ECF-related costs, and Electronic Bankruptcy Noticing (“EBN”).13
(See 2d Skidgel Decl. ¶¶ 31–33 & Tabs 30–32 (“expenditures relating to the Judiciary’s
Electronic Public Access Program” for FY 2000–2002).)
C. E-Government Act of 2002
In December 2002, Congress passed the E-Government Act of 2002. Section 205
pertained to the “Federal Courts. Subsection (a) required all courts to have “individual court
websites” containing certain specified information or links to websites that include such
information (e.g., courthouse location, contact information, local rules, general orders, docket
information for all cases, access to electronically filed documents, written opinions, and any
other information useful to the public)”; subsection (b) provided that “[t]he information and rules
on each website shall be updated regularly and kept reasonably current; subsection (c), entitled
“Electronic Filings,” provided that, with certain exceptions for sealed documents and privacy and
security concerns, “each court shall make any document that is filed electronically publicly
available online”; subsection (d), entitled “Dockets with links to documents” provided that “[t]he
Judicial Conference of the United States shall explore the feasibility of technology to post online
dockets with links allowing all filings, decisions, and rulings in each case to be obtained from the
docket sheet of that case”; and subsections (f) and (g) address the time limits for courts to
comply with the above requirements. E-Government Act of 2002, § 205(a)–(d), (f), and (g)
(codified at 44 U.S.C. § 3501 note). Subsection (e), entitled Cost of Providing Electronic
Docketing Information, “amend[ed] existing law regarding the fees that the Judicial Conference
prescribes for access to electronic information” by amending the first sentence of 28 U.S.C. §
13
A line item amount expended from EPA fees for Electronic Bankruptcy Noticing appears in
AO’s accounting of EPA fees for FY 2000, but not for 2001 or 2002. (See 2d Skidgel Decl.
Tabs 30–32.)
10
1913 note to replace the words “shall hereafter” with “may, only to the extent necessary.” E-
Government Act of 2002, § 205(e). The E-Government Act left the remainder of 28 U.S.C. §
1913 note unchanged.
The Senate Governmental Affairs Committee Report describes Section 205 as follows:
Section 205 requires federal courts to provide greater access to judicial
information over the Internet. Greater access to judicial information enhances
opportunities for the public to become educated about their legal system and to
research case-law, and it improves access to the court system. The mandates
contained in section 205 are not absolute, however. Any court is authorized to
defer compliance with the requirements of this section, and the Judicial
Conference of the United States is authorized to promulgate rules to protect
privacy and security concerns.
S. Rep. No. 107-174, at 23 (June 24, 2002) (“2002 S. Rep.”) (Taylor Decl. Ex. D). As to the
amending language in subsection 205(e), the report stated:
The Committee intends to encourage the Judicial Conference to move from a fee
structure in which electronic docketing systems are supported primarily by user
fees to a fee structure in which this information is freely available to the greatest
extent possible. For example, the Administrative Office of the United States
Courts operates an electronic public access service, known as PACER, that allows
users to obtain case and docket information from Federal Appellate, District and
Bankruptcy courts, and from the U.S. Party/Case Index. Pursuant to existing law,
users of PACER are charged fees that are higher than the marginal cost of
disseminating the information.
2002 S. Rep. at 23.
D. EPA Fees After the E-Government Act
1. 2003–2006
After the passage of the E-Government Act, the judiciary continued to use EPA fees for
the development of its CM/ECF system. (See Taylor Decl. Ex. F (FY 2006 Annual Report for
the Judiciary Information Technology Fund (“JITF”) (formerly the “Judiciary Automation
Fund”)14 (“The entire development costs for the Case Management/Electronic Case Files
14
In 2005, 28 U.S.C. § 612 had been amended to substitute “Judiciary Information Technology
11
(CM/ECF) project have been funded solely through EPA collections.”).)
In 2003, a report from the House Appropriations Committee stated that: “The Committee
expects the fee for the Electronic Public Access program to provide for Case
Management/Electronic Case Files system enhancements and operational costs.” H.R. Rep.
No. 108-221, at 116 (July 21, 2003) (“2003 H.R. Rep.”). The Senate Appropriations Committee
also expressed its enthusiasm for CM/ECF:
The Committee fully supports the Judiciary’s budget request for the Judiciary
Information Technology Fund [JITF]. The Committee would like to see an even
greater emphasis on automation in the local courts. To this end, the Committee
expects the full recommended appropriation for the JITF, as reflected in the
budget request, be deposited into this account. The Committee lauds the Judicial
Committee on Information Technology (IT Committee) and their Chairman for
their successes helping the Courts run more efficiently through the use of new
automation. Of particular note, the Committee is impressed and encouraged by
the new Case Management/Electronic Case File system [CM/ECF]. This new and
innovative system allows judges, their staffs, the bar and the general public to
work within the judicial system with greater efficiency. This new system is
currently implemented in many bankruptcy and district courts and will soon begin
implementation in the appellate courts. The CM/ECF system is already showing
its potential to revolutionize the management and handling of case files and
within the next few years should show significant cost savings throughout the
Judiciary. The Committee on Appropriations expects a report on the savings
generated by this program at the earliest possible date.
S. Rep. No. 108-144, at 118 (Sept. 5, 2003) (“2003 S. Rep.”). The associated Conference
Committee report “adopt[ed] by reference the House report language concerning Electronic
Public Access fees.” See 149 Cong Rec. H12323, at H12515 (Nov. 23, 2003) (“2003 Conf.
Rep.”).
In September 2004, the Judicial Conference, “[i]n order to provide sufficient revenue to
fully fund currently identified case management/electronic case files system costs,” “increase[d]
Fund” for “Judiciary Automation Fund” and “information technology” for “automatic data
processing.”
12
the fee for public users obtaining information through a federal judiciary Internet site from seven
to eight cents per page.” (Jud. Conf. Rep. at 12 (Sept. 21, 2004) (Skidgel Decl. Ex. J); see also
EPA Chronology at 2; Taylor Decl. Ex. E (Oct. 21, 2004 AO memorandum) (“This increase is
predicated upon Congressional guidance that the judiciary is expected to use PACER fee revenue
to fund CM/ECF operations and maintenance. The fee increase will enable the judiciary to
continue to fully fund the EPA Program, in addition to CM/ECF implementation costs until the
system is fully deployed throughout the judiciary and its currently defined operations and
maintenance costs thereafter.”).)
The judiciary’s Financial Plan for fiscal year 2006 described its EPA program at the time:
The judiciary’s Electronic Public Access (EPA) program provides for the
development, implementation and enhancement of electronic public access
systems in the federal judiciary. The EPA program provides centralized billing,
registration and technical support services for PACER (Public Access to Court
Electronic Records), which facilitates Internet access to data from case files in all
court types, in accordance with policies set by the Judicial Conference. The
increase in fiscal year 2006 EPA program operations includes one-time costs
associated with renegotiation of the Federal Telephone System (FTS) 2001
telecommunications contract.
Pursuant to congressional directives, the program is self-funded and collections
are used to fund information technology initiatives in the judiciary related to
public access. Fee revenue from electronic access is deposited into the Judiciary
Information Technology Fund. 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 related to public access. The
development and implementation costs for the CM/ECF project have been funded
through EPA collections. Beginning last year, in accordance with congressional
direction, EPA collections were used to support CM/ECF operations and
maintenance as well. In fiscal year 200[6], the judiciary plans to use EPA
collections to continue PACER operations, complete CM/ECF development and
implementation, and operate and maintain the installed CM/ECF systems in the
various courts across the country.
(2d Skidgel Decl. Tab 9 (FY 2006 Financial Plan at 45).)
2. 2006–2009
In July 2006, the Senate Appropriations Committee issued a report pertaining to the 2007
13
appropriations bill in which it stated: “The Committee supports the Federal judiciary sharing its
case management electronic case filing system at the State level and urges the judiciary to
undertake a study of whether sharing such technology, including electronic billing processes, is a
viable option.” S. Rep. No. 109-293, at 176 (July 26, 2006) (“2006 S. Rep.”) (2d Skidgel Decl.
Tab 38).
By the end of 2006, “resulting from unanticipated revenue growth associated with public
requests for case information,” the judiciary found that its EPA fees fully covered the costs of its
“EPA Program” and left it with an “unobligated balance” of $32.2 million from EPA fees in the
JITF. (FY 2006 JITF Annual Rep. at 8; Pls.’ Facts ¶ 16.) In light of this “unobligated balance,”
the judiciary reported that it was “examining expanded use of the fee revenue in accordance with
the authorizing legislation.” (FY 2006 JITF Annual Rep. at 8.)
In March 2007, the judiciary submitted its financial plan for fiscal year 2007 to the House
and Senate Appropriations Committees. (Def.’s Facts ¶ 27.) In the section of the plan that
covered the JITF, it proposed using EPA fees “first to pay the expenses of the PACER program”
and then “to fund other initiatives related to public access.” (Skidgel Decl. Ex. K (FY 2007
Financial Plan at 45).) It identified the “public access initiatives” that it planned to fund with
EPA fees as CM/ECF Infrastructure and Allotments; EBN; Internet Gateways; and Courtroom
Technology Allotments for Maintenance/Technology Refreshment. (Id.) With respect to
Courtroom Technology, the plan requested “expanded authority” to use EPA fees for that
purpose:
Via this financial plan submission, the Judiciary seeks authority to expand use of
Electronic Public Access (EPA) receipts to support courtroom technology
allotments for installation, cyclical replacement of equipment, and infrastructure
maintenance. The Judiciary seeks this expanded authority as an appropriate use
of EPA receipts to improve the ability to share case evidence with the public in
the courtroom during proceedings and to share case evidence electronically
14
through electronic public access services when it is presented electronically and
becomes an electronic court record.
(FY 2007 Financial Plan at 43, 46.) With no specific reference to EPA fees, the plan also sought
spending authority to implement a Memorandum of Agreement with the State of
Mississippi to undertake a three-year study of the feasibility of sharing the
Judiciary’s case management electronic case filing system at the state level, to
include electronic billing processes. The estimated cost of this three year pilot will
not exceed $1.4 million.
(Id. at 41.) In May 2007, the FY 2007 Financial Plan was approved by the House and Senate
Appropriations Committees, with the approval letter signed on May 2, 2007, by the Chairman
and the Ranking Member of the Subcommittee on Financial Services and General Government,
stating that there was no objection to “the expanded use of Electronic Public Access Receipts” or
“a feasibility study for sharing the Judiciary’s case management system with the State of
Mississippi.” (Skidgel Decl. Ex. L (“FY 2007 Senate Approval Letter”); id. Ex. M (“FY 2007
House Approval Letter”).)
The judiciary began using EPA fees to pay for courtroom technology expenses in 2007,
“to offset some costs in [its] information technology program that would otherwise have to be
funded with appropriated funds.” (Pls.’ Facts ¶ 18; 2d Skidgel Decl. Tab 35 (FY 2007–08 EPA
Expenditures); Hearings Before a Subcomm. of the Sen. Comm. on Appropriations on
H.R. 7323/S. 3260, 110th Cong. 51 (2008) (testimony of the chair of the Judicial Conference’s
Comm. on the Budget) (“[t]he Judiciary’s fiscal year 2009 budget request assumes $68 million in
PACER fees will be available to finance information technology requirements in the courts’
Salaries and Expenses account, thereby reducing our need for appropriated funds”).)
In its fiscal year 2008 financial plan, the judiciary indicated that it intended to use EPA
fees for Courtroom Technology ($24.8 million) and two new programs: a Jury Management
System (“JMS”) Web Page ($2.0 million) and a Violent Crime Control Act (“VCCA”)
15
Notification. (2d Skidgel Decl. Tab 11 (FY 2008 Financial Plan at 11).) Actual expenditures for
fiscal year 2008 included spending on those programs. (Id. Tab 35 (FY 2008 EPA Expenditures)
($24.7 million spent on Courtroom Technology; $1.5 million spent on the JMS Web Page; $1.1
million spent on the VCCA Notification).) Its fiscal year 2009 financial plan included a third
new expense category: a CM/ECF state feasibility study ($1.4 million)—this was previously
described in the 2007 financial plan as the State of Mississippi study, albeit not in the section
related to EPA fee use. (Id. Tab 12 (FY 2009 Financial Plan at 45).) The judiciary also
projected spending $25.8 million on Courtroom Technology; $200,000 on the JMS Public Web
Page; and $1 million on VCCA Notification. (Id.) Again, actual expenditures for fiscal year
2009 included each of these programs. (Id. Tab 36 (FY 2009 EPA Expenditures) ($160,000
spent on the State of Mississippi study; $24.6 million spent on Courtroom Technology; $260,000
spent on Web-Based Juror Services (replacing line item for JMS); and $69,000 spent on VCCA
Notification).)
In February 2009, Senator Lieberman, in his capacity as Chair of the Senate Committee
on Homeland Security and Government Affairs, sent a letter to the Chair of the Judicial
Conference Committee on Rules of Practice and Procedure, inquiring whether the judiciary was
complying with the E-Government Act. (See Taylor Decl. Ex. H.) According to Senator
Lieberman, the “goal of this provision . . . was to increase free public access to [court] records.”
(Id.) Given that PACER fees had increased since 2002, and that “the funds generated by these
fees [were] still well higher than the cost of dissemination,” he asked the Judicial Conference to
“explain whether the Judicial Conference is complying with Section 205(e) of the E-Government
Act, how PACER fees are determined, and whether the Judicial Conference is only charging ‘to
the extent necessary’ for records using the PACER system.” (Id.)
16
On behalf of the Judicial Conference and its Rules Committee, the Committee Chair and
the Director of the AO responded that the judiciary was complying with the law because EPA
fees are “used only to fund public access initiatives,” such as “CM/ECF, the primary source of
electronic information on PACER,” and the “EBN system, which “provides access to bankruptcy
case information to parties listed in the case by eliminating the production and mailing of
traditional paper notices and associated postage costs, while speeding public service.” (Taylor
Decl. Ex. I (“3/26/2009 AO Letter”).)
In March 2010, Senator Lieberman raised his concerns in a letter to the Senate
Appropriations Committee. (See Taylor Decl. Ex. G.) In addition, he specifically questioned the
use of EPA receipts for courtroom technology, acknowledging that the Appropriations
Committees had approved this use in 2007, but expressing his opinion that this was “an initiative
that [was] unrelated to providing public access via PACER and against the requirement of the E-
Government Act.” (Id. at 3.)
In 2011, the Judicial Conference, “[n]oting that . . . for the past three fiscal years the EPA
program’s obligations have exceeded its revenue,” again amended the PACER fee schedule,
raising the per-page cost from 8 to 10 cents. (Jud. Conf. Rep. at 16 (Sept. 13, 2011) (Skidgel
Decl. Ex. N).) At the same time, it increased the fee waiver amount from $10 to $15 per quarter.
(Id.)
3. 2010–201615
From the beginning of fiscal year 2010 to the end of fiscal year 2016, the judiciary
collected more than $920 million in PACER fees; the total amount collected annually increased
15
These are the years that are relevant to the present litigation because there is a six-year statute
of limitation on plaintiffs’ claims.
17
from about $102.5 million in 2010 to $146.4 million in 2016. 16 (See Pls.’ Facts ¶¶ 28, 46, 62,
80, 98, 116, 134; Taylor Decl. Ex. L; see also Attachment 1 hereto.17)
During that time, PACER fees were used to pay for the costs of PACER, CM/ECF, EBN,
the State of Mississippi study, Web-Based Juror Services, VCCA Notification, and Courtroom
Technology. In its internal accounting, the judiciary divided these costs into Program
Requirements and Congressional Priorities. (Taylor Decl. Ex. L.)
Under Program Requirements, there are five categories: (1) Public Access Services;
(2) CM/ECF System; (3) Telecommunications (2010–11) or Communications Infrastructure,
Services and Security (2012–16); (4) Court Allotments; and (5) EBN. (Id.) The Public Access
Services category includes only expenses that relate directly to PACER. (See Taylor Decl. Ex.
M, at 22-23 (“Def.’s Resp. to Pls.’ Interrogs.”); 3/23/18 Tr. at __.) From 2010 to 2016, the
judiciary spent nearly $129.9 million on Public Access Services. (Id.) The next three categories,
CM/ECF System, Telecommunications/Communications Infrastructure, and Court Allotments,
include only expenses that relate to CM/ECF or PACER. (See 3/23/18 Tr. at __18; see also
Def.’s Resp. to Pls.’ Interrogs. at 22–26.) From 2010 to 2016, the judiciary spent $217.9 million
on the CM/ECF System; $229.4 million on Telecommunications/ Communications
Infrastructure; and $74.9 million on Court Allotments. (Taylor Decl. Ex. L (FY 2010-2016 EPA
16
This number does not include print fee revenues, which are also collected pursuant to the EPA
fee schedule.
17
The document submitted to the Court as Exhibit L to the Taylor Declaration is defendant’s
internal accounting of PACER revenues and the use of PACER fees from FY 2010 through FY
2016. (See Taylor Decl. Ex. L; 3/23/18 Tr. at __.) While the contents of this document are
described in this Memorandum Opinion, for the reader’s benefit, an example of this internal
accounting for the year 2010 is appended hereto as Attachment 1 in order to demonstrate how the
judiciary has described and categorized the expenditures that were paid for by PACER fees.
18
The official transcript from the March 23, 2018 motions hearing is not yet available. The
Court will add page citations once it is.
18
Expenditures).) The final category, Electronic Bankruptcy Noticing, refers to the system which
“produces and sends court documents (bankruptcy notices, including notices of 341 meetings)
electronically to creditors in bankruptcy cases.” (Def.’s Resp. to Pls.’ Interrogs. at 10.) From
2010 to 2016, the judiciary spent a total of $73.3 million on EBN. (Taylor Decl. Ex. L.)
Under Congressional Priorities, there are four categories: (1) State of Mississippi;
(2) VCCA Victim Notification; (3) Web-Based Juror Services; and (4) Courtroom Technology.
(Id.) The State of Mississippi category refers to a study which “provided software, and court
documents to the State of Mississippi, which allowed the State of Mississippi to provide the
public with electronic access to its documents.” (Def.’s Resp. to Pls.’ Interrogs. at 5.) In 2010—
the only year this category appears between 2010 and 2016—the judiciary spent a total of
$120,988 for the State of Mississippi study. (Taylor Decl. Ex. L.) The next category is Victim
Notification (Violent Crime Control Act), which refers to “[c]osts associated with the program
that electronically notifies local law enforcement agencies of changes to the case history of
offenders under supervision.” (Def.’s Resp. to Pls.’ Interrogs. at 5.) Via this program, “[l]aw
enforcement officers receive electronic notification of court documents that were previously sent
to them through the mail.” (Id.) From 2010 to 2016, the judiciary spent $3.7 million on the
VCCA victim notification program. The third category, Web-Based Juror Services, refers to
“[c]osts associated with E-Juror software maintenance, escrow services, and scanner support.”
(Id. at 26.) “E-Juror provides prospective jurors with electronic copies of courts documents
regarding jury service.” (Id.) From 2010 to 2016, the judiciary spent $9.4 million on Web-
Based Juror Services. (Taylor Decl. Ex. L.) Finally, the category labeled Courtroom
Technology funds “the maintenance, cyclical replacement, and upgrade of courtroom technology
in the courts.” (Def.’s Resp. to Pls.’ Interrogs. at 26.) From 2010 to 2016, the judiciary spent
19
$185 million on courtroom technology. (Taylor Decl. Ex. L.)
II. PROCEDURAL HISTORY
On April 21, 2016, three national nonprofit organizations, National Veterans Legal
Services Program, National Consumer Law Center, and Alliance for Justice, on behalf of
themselves and a nationwide class of similarly-situated PACER users, filed suit against the
United States under the Little Tucker Act, 28 U.S.C. § 1346(a), claiming that the PACER fees
charged by the Administrative Office of the United States Courts “exceeded the amount that
could be lawfully charged, under the E-Government Act of 2002” and seeking “the return or
refund of the excessive PACER fees.” (Compl. ¶¶ 33–34.)
After denying defendant’s motion to dismiss (see Mem. Op. & Order, Dec. 5, 2016, ECF
Nos. 24, 25), the Court granted plaintiffs’ motion for class certification (see Mem. Op. & Order,
Jan. 24, 2017, ECF Nos. 32, 33). Pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3), the Court
certified a class consisting of: “[a]ll individuals and entities who have paid fees for the use of
PACER between April 21, 2010, and April 21, 2016, excluding class counsel in this case and
federal government entities” and “certifie[d] one class claim: that the fees charged for accessing
court records through the PACER system are higher than necessary to operate PACER and thus
violate the E-Government Act, entitling plaintiffs to monetary relief from the excessive fees
under the Little Tucker Act.” (Order, Jan. 24, 2017, ECF No. 32.)
On August 28, 2017, plaintiffs filed a motion seeking “summary adjudication of the
defendant’s liability,” while “reserving the damages determination for after formal discovery.”
(Pls.’ Mot. at 1.) On November 17, 2017, defendant filed a cross-motion for summary judgment
as to liability. The Court permitted the filing of three amicus briefs.19 The cross-motions for
19
Amicus briefs were filed by the Reporters Committee for Freedom of the Press, et al., ECF
No. 59, the American Association of Law Libraries, et al., ECF No. 61, and Senator Joseph
20
summary judgment on liability are fully-briefed and a hearing on the motions was held on March
23, 2018.
ANALYSIS
The parties’ cross-motions for summary judgment on liability present the following
question of statutory interpretation: what restrictions does 28 U.S.C. § 1913 note place on the
amount the judiciary may charge in PACER fees?
In relevant part, 28 U.S.C. § 1913 note reads:
Court Fees for Electronic Access to Information
(a) The Judicial Conference may, only to the extent necessary, prescribe
reasonable fees . . . for collection by the courts . . . for access to information
available through automatic data processing equipment.
...
The Director, 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) . . . 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 . . . to reimburse expenses incurred in providing these
services.
28 U.S.C. § 1913 note.
I. LEGAL STANDARD
Statutory interpretation “begins with the language of the statute.” Esquivel-Quintana v.
Sessions, 137 S. Ct. 1562, 1569 (2017). This means examining “‘the language itself, the specific
context in which that language is used, and the broader context of the statute as a whole’” to
determine if it has a “‘plain and unambiguous meaning with regard to the particular dispute in
the case.’” United States v. Wilson, 290 F.3d 347, 352–53 (D.C. Cir. 2002) (quoting Robinson v.
Lieberman and Congressman Darrell Issa, ECF No. 63.
21
Shell Oil Co., 519 U.S. 337, 340 (1997)); see also Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S. 546, 558 (2005) (statutory interpretation “requires examination of the statute’s text in
light of context, structure, and related statutory provisions”). A statutory term that is neither a
term of art nor statutorily defined is customarily “construe[d] . . . in accordance with its ordinary
or natural meaning,” frequently derived from the dictionary. FDIC v. Meyer, 510 U.S. 471, 476
(1994).
Where statutory language does not compel either side’s interpretation, the Court may
“look to the statute’s legislative history to determine its plain meaning.” U.S. Ass’n of Reptile
Keepers, Inc. v. Jewell, 103 F. Supp. 3d 133, 146 (D.D.C. 2015) (citing Petit v. U.S. Dep’t of
Educ., 675 F.3d 769, 781 (D.C. Cir. 2012)); see also Milner v. Dep’t of Navy, 562 U.S. 562, 572
(2011) (“Those of us who make use of legislative history believe that clear evidence of
congressional intent may illuminate ambiguous text.”). The fact that a statute can be read in
more than one way does not demonstrate that it lacks “plain meaning.” United States v. Hite,
896 F. Supp. 2d 17, 25 (D.D.C. 2012); see, e.g., Abbott v. United States, 562 U.S. 8, 23 (2010).
A statute’s legislative history includes its “statutory history,” a comparison of the current
statute to its predecessors and differences between their language and structure, see, e.g.,
Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 231–32 (2007), along with relevant
committee reports, hearings, or floor debates. In general, “‘the views of a subsequent Congress
form a hazardous basis for inferring the intent of an earlier one.’” Pub. Citizen Health Research
Grp. v. Food & Drug Admin., 704 F.2d 1280, 1289 n.26 (D.C. Cir. 1983) (quoting Consumer
Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 117 (1980)). But even though, “[t]he
view of a later Congress cannot control the interpretation of an earlier enacted statute,” O’Gilvie
v. United States, 519 U.S. 79, 90 (1996), in certain narrow circumstances, “‘congressional
22
acquiescence to administrative interpretations of a statute’” may “inform the meaning of an
earlier enacted statute.” U.S. Ass’n of Reptile Keepers, 103 F. Supp. 3d at 153 & 154 n.7
(D.D.C. 2015) (quoting O’Gilvie, 519 U.S. at 90); Solid Waste Agency v. U.S. Army Corps of
Eng’rs, 531 U.S. 159, 169 (2001)). Such a situation may be where Congress has amended the
relevant provisions without making any other changes. See, e.g., Barnhart v. Walton, 535 U.S.
212, 220 (2002). However, “[e]xpressions of committees dealing with requests for
appropriations cannot be equated with statutes enacted by Congress.” Tenn. Valley Auth. v. Hill,
437 U.S. 153, 191 (1978).
II. APPLICATION
Applying the “ordinary principles of statutory construction,” the parties arrive at starkly
different interpretations of this statute. Plaintiffs take the position that the statute “prohibits the
AO from charging more in PACER fees than is necessary to recoup the total marginal cost of
operating PACER.” (Pls.’ Mot. at 12.) Under plaintiffs’ interpretation, defendant’s liability is
established because with the exception of the category of expenditures labeled Public Access
Services (see Attachment 1), most, if not all, of the other expenditures covered by PACER fees
are not part of the “‘marginal cost of disseminating records’ through PACER.” (See Pls.’ Mot.
at 17; see also, e.g., Pls.’ Facts ¶¶ 32, 34, 36, 38, 41, 43, 45 (fiscal year 2010).) Defendant
readily admits that PACER fees are being used to cover expenses that are not part of the
“marginal cost” of operating PACER (see, e.g., Def.’s Resp. to Pls.’ Facts ¶¶ 32, 34, 36, 38, 41,
43, 45), but it rejects plaintiffs’ interpretation of the statute. Instead, defendant reads the statute
broadly to mean that the Judicial Conference “may charge [PACER] fees in order to fund the
dissemination of information through electronic means.” (3/23/18 Tr. at __; see also Def.’s Mot.
at 11 (Judicial Conference may “charge fees, as it deems necessary, for the provision of
23
information to the public through electronic means”).) Under defendant’s interpretation, it is not
liable because “every single expenditure . . . [is] tied to disseminating information through
electronic means.” (3/23/18 Tr. at __.)
If the Court agreed with either proposed interpretation, the ultimate question of
defendant’s liability would be relatively straightforward. If PACER fees can only be spent to
cover the “marginal cost” of operating PACER, defendant is liable most expenditures.20 If
PACER fees can be spent on any expenditure that involves “the dissemination of information
through electronic means,” defendant is not liable. But the Court rejects the parties’ polar
opposite views of the statute, and finds the defendant liable for certain costs that post-date the
passage of the E-Government Act, even though these expenses involve dissemination of
information via the Internet.
A. Does the E-Government Act Limit PACER Fees to the Marginal Cost of
Operating PACER?
As noted, plaintiffs interpret the statute as prohibiting the AO “from charging more in
20
The Court would still have to determine the meaning of “marginal cost” and whether any of
the expenditures beyond those in the category of Public Access Services are part of that cost,
since plaintiffs only expressly challenged “some” of the expenditures in several important
categories, and defendant has only admitted that “some” of the expenditures in those categories
are not part of the marginal cost. (See, e.g., Pls.’ Facts ¶¶ 41 (CM/ECF), 43
(Telecommunications), 45 (Court Allotments); Def.’s Resp. to Pls.’ Facts ¶¶ 41, 43, 45.) The
categories that plaintiffs argue should be examined as part of a determination of damages (as
opposed to liability), since they may include PACER-related costs, are CM/ECF,
Telecommunications/Communications Infrastructure, and Court Allotments. (Pls.’ Mot. at 19;
see also Attachment 1.)
Defendant, on the other hand, responds that even though only some of the costs associated
with these categories involve PACER-related expenses, all of the expenses related to PACER
and/or CM/ECF. (3/23/18 Tr. at __.)
However these costs are categorized, the Court rejects plaintiffs’ suggestion that the issue is
one to be decided as part of a determination of damages, for the issue as to liability necessarily
requires a determination of whether these costs are proper expenditures under the E-Government
Act.
24
PACER fees than is necessary to recoup the total marginal cost of operating PACER.” (Pls.’
Mot. at 12.) Plaintiffs concede, as they must, that this is not what the text of the statute actually
says. But they argue that this is the best reading of the statutory language in light of its “plain
language,” its “history,” and the need to “avoid[] two serious constitutional concerns that would
be triggered by a broader reading.” (See Pls.’ Reply at 1.)
Plaintiffs first argue that it is clear from the text that the words “these services” in the last
sentence of subparagraph (b), where it provides that the fees collected must be used “to
reimburse expenses incurred in providing these services,” include only the services that the AO
is actually charging fees for as set forth in the EPA Fee Schedule, i.e., the PACER system, the
PACER Service Center, and the provision of printed copies of documents “accessed
electronically at a public terminal in a courthouse.” (Pls.’ Reply at 3–4; 3/23/18 Tr. at __.) The
Court does not agree that the text dictates this constraint. The term “these services” could also
mean any service that provides “access to information available through automatic data
processing equipment,” whether or not it is expressly part of the EPA fee schedule.
Plaintiffs’ next argument is based on the legislative history of the 2002 amendment,
which consists of the following single paragraph in a Senate Committee Report:
The Committee intends to encourage the Judicial Conference to move from a fee
structure in which electronic docketing systems are supported primarily by user
fees to a fee structure in which this information is freely available to the greatest
extent possible. For example, the Administrative Office of the United States
Courts operates an electronic public access service, known as PACER, that allows
users to obtain case and docket information from Federal Appellate, District and
Bankruptcy courts, and from the U.S. Party/Case Index. Pursuant to existing law,
users of PACER are charged fees that are higher than the marginal cost of
disseminating the information.
2002 S. Rep. at 23. Plaintiffs argue that this paragraph “makes clear that Congress added this
language because it sought to prevent the AO from ‘charg[ing] fees that are higher than the
marginal cost of disseminating the information,’” as it had been doing for several years, and that
25
“although the E-Government Act does not refer to PACER by name, Congress clearly had
PACER in mind when it passed the Act.” (Pls.’ Mot. at 11 (quoting 2002 S. Rep. at 23).)
The Court finds this argument unconvincing for several reasons. First, there is no
mention in the statute of PACER or its “marginal cost,” and in the 2002 Senate Report, the
reference to PACER and “marginal cost” follows the words “For example,” suggesting that the
amendment was not intended to apply only to PACER. See Pension Benefit Guar. Corp. v. LTV
Corp., 496 U.S. 633, 649 (1990) (“[T]he language of a statute—particularly language expressly
granting an agency broad authority—is not to be regarded as modified by examples set forth in
the legislative history.”). And, in fact, the 2002 Senate Report recognizes that PACER is only a
subset of a larger system when it stated: “[t]he Committee intends to encourage the Judicial
Conference to move from a structure in which electronic docketing systems are supported
primarily by user fees to a fee structure in which this information is freely available to the
greatest extent possible.” 2002 S. Rep. at 23 (emphasis added). The use of the phrase
“electronic docketing systems” appears to envision more than just PACER, and to at least
encompass CM/ECF, given that it, unlike PACER, is an electronic docketing system.
Second, a single committee’s report reflects only what the committee members might
have agreed to, not the “intent” of Congress in passing the law. As the Supreme Court observed,
“[u]nenacted approvals, beliefs, and desires are not laws.” P.R. Dep’t of Consumer Affairs v.
Isla Petrol. Corp., 485 U.S. 495, 501 (1988). As the Supreme Court observed in rejecting
reliance on “excerpts” said to reflect congressional intent to preempt state law, “we have never
[looked for] congressional intent in a vacuum, unrelated to the giving of meaning to an enacted
statutory text.” Id.
Perhaps most tellingly, the E-Government Act changed only one phrase in the first
26
sentence of the first paragraph—replacing “shall hereafter” with “may, only to the extent
necessary.” It did not alter the third sentence of paragraph (b), which is the part of the statute
that governs what expenses can be reimbursed by PACER fees. Thus, even though the 2002
Senate Report correctly observes that PACER fees exceeded the marginal cost of operating
PACER, the amendment to the statute did not address which services could be reimbursed, but
only the amount of fees for services that could be charged. In addition, at the time the E-
Government Act was passed, CM/ECF had been in operation for at least four years, PACER fees
were already being used to pay for non-PACER costs, such as EBN and CM/ECF (see 2d
Skidgel Decl. Tabs 30–32), and there is nothing in the statute’s text or legislative history to
suggest that Congress intended to disallow the use of PACER fees for those services. In the end,
a single sentence in a committee report, which has been taken out of context, is not enough to
persuade the Court that Congress intended the E-Government Act to impose a specific limitation
on the judiciary’s collection and use of EPA fees to the operation of only PACER.
Plaintiffs also point to “[p]ost-enactment history”—the letters from the E-Government
Act’s sponsor, Senator Joseph Lieberman, in 2009 and 2010. (Pls.’ Mot. at 11–12 (“The Act’s
sponsor has repeatedly expressed his view, in correspondence with the AO’s Director, that the
law permits the AO to charge fees ‘only to recover the direct cost of distributing documents via
PACER,’ and that the AO is violating the Act by charging more in PACER fees than is necessary
for providing access to ‘records using the PACER system.’”).) But, as plaintiffs essentially
conceded during the motions hearing, the post-enactment statements of a single legislator carry
no legal weight when it comes to discerning the meaning of a statute. (3/23/18 Tr. at __); see
Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J. concurring) (“the views of a
legislator concerning a statute already enacted are entitled to no more weight than the views of a
27
judge concerning a statute not yet passed”); see also Consumer Prod. Safety Comm’n, 447 U.S.
at 117–18 (“even the contemporaneous remarks of a single legislator who sponsors a bill are not
controlling in analyzing legislative history”).
Plaintiffs’ final argument is that the “constitutional doubt” canon of construction requires
their interpretation because any other interpretation would raise a question as to whether
Congress had unconstitutionally delegated its taxing authority because the statute does not
clearly state its intention to do so. Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 224 (1989)
(“Congress must indicate clearly its intention to delegate to the Executive the discretionary
authority to recover administrative costs not inuring directly to the benefit of regulated parties by
imposing additional financial burdens, whether characterized as ‘fees’ or ‘taxes,’ on those
parties.”). Assuming arguendo that this doctrine applies with equal force to unregulated parties,
an issue not addressed by the parties, the Court does not find plaintiffs’ argument persuasive.
First, this canon of construction has a role only where the statute is ambiguous, which, as
explained herein, the Court concludes is not the case. See FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 516 (2009) (“The so-called canon of constitutional avoidance is an interpretive
tool, counseling that ambiguous statutory language be construed to avoid serious constitutional
doubts.”). Second, the canon can only be applied where there is a “reasonable alternative
interpretation,” Gomez v. United States, 490 U.S. 858, 864 (1989), but the Court has already
explained that it does not find plaintiffs’ proposed interpretation to be a reasonable alternative
interpretation. Finally, as will be discussed in Section C, infra, the Court finds that the statute
does clearly state that the judiciary has the authority to use its PACER fees for services that may
not directly benefit a particular PACER user. See Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S.
145, 153–54 (2013) (“This is not to say that Congress must incant magic words in order to speak
28
clearly. We consider context . . . as probative of [Congress’ intent].”).
For these reasons, the Court will not adopt plaintiffs’ interpretation of the statute as
limiting PACER fees to the total marginal cost of operating PACER.
B. Does the E-Government Act Allow PACER Fees to Fund Any
“Dissemination of Information Through Electronic Means”?
Defendant’s interpretation of the statute embraces the other extreme, positing that the
statute allows PACER fees to be used for any expenditure that is related to “disseminating
information through electronic means.” (3/23/18 Tr. at __; see Def.’s Mot. at 11.) It is not
entirely clear to the Court how the defendant arrived at this definition. Most of the reasons
defendant gives to justify its interpretation are really just arguments against plaintiffs’
interpretation, such as (1) the authority to charge EPA fees and use them to reimburse “services”
predated the E-Government Act and that language was not changed by the Act; (2) there is no
mention of PACER or “marginal cost” in the 2002 amendment; and (3) the legislative history
discussed PACER only as an “example.” As for defendant’s affirmative arguments, addressed
below, none demonstrates that defendant’s conclusion is correct.
Defendant’s first argument is based on the fact that the text of the statute requires that
EPA fees be deposited in the JITF, which is the fund that the judiciary is allowed to use for
“broad range of information technology expenditures.” (Def.’s Mot. at 10.) According to
defendant, the fact that EPA fees are deposited in this fund “informs how Congress intended the
fees received from PACER access to be spent.” (Id.) However, while the statute provides that
PACER fees are to be deposited in the JITF, it also directs that they are to be used to “reimburse
expenses incurred” in providing “access to information available through data processing
equipment.” That statutory language cannot be ignored as defendant attempts to do. See Hibbs
v. Winn, 542 U.S. 88, 101 (2004) (“A statute should be construed so that effect is given to all its
29
provisions, so that no part will be inoperative or superfluous, void or insignificant.”). Notably, it
is clear that the judiciary has never treated its EPA fees in the JITF as fungible with the rest of
the money in the JAF. (See FY 2006 JITF Annual Report; FY 2007 Financial Plan; 3/26/2009
AO Letter at 3-4 (“While fee collections from the EPA program are also deposited into the JITF,
they are used only to fund electronic public access initiatives and account for only a small
portion of its balance.”).)
Defendant’s main argument is that its interpretation of the statute has been accepted by
Congress because the Appropriations Committees, either explicitly or implicitly, endorsed,
mandated, or approved every request pertaining to the use of EPA fees. For example, defendant
points out that the 1996 House Report stated that the Committee “expect[ed] available balances
from public access fees” to be used for electronic bankruptcy noticing and electronic case filing,
1996 H.R. Rep. at 89; the 2003 House and Senate Committee Reports “expressly directed the
AO to use PACER fees to update the CM/ECF system,” 2003 H.R. Rep. at 116; 2003 S. Rep. at
118; those same Committees endorsed the Judiciary’s FY 2007 Financial Plan, which set forth
the AO’s plan “to use receipts from PACER fees to fund courtroom technology and to perform
infrastructure maintenance consistent with Congressional actions” (FY 2007 Financial Plan at
45; FY 2007 Senate Approval Letter; FY 2007 House Approval Letter); and the 2006 Senate
Report, which urged the judiciary to undertake a study about the feasibility of sharing CM/ECF
technology with states, see 2006 S. Rep. at 176, which the judiciary then did via its State of
Mississippi study (FY 2009 EPA Expenditures). (See Def.’s Mot. at 17–18.) More generally,
and applicable at least as to the expenditures that post-date the passage of the E-Government Act,
congressional approval is reflected by the fact that after the judiciary submitted its proposed
budget to Congress and Congress appropriated money to the judiciary, the judiciary was then
30
required to submit its proposed financial plan, which included its intended use of EPA fees, to
the House and Senate Appropriations Committees for approval. (Def.’s Reply at 3; 3/23/18 Tr.
at__.) Looking at this entire process as a “totality,” defendant argues, establishes that by
implicitly approving certain expenditures, Congress agreed with the Judicial Conference’s
interpretation of the statute. (3/23/18 Tr. at __ (“[W]e have 26 years where the only legislative
history that has gone to the judicial conference, but for Senator Lieberman’s letter, says the
judicial conference’s interpretation is correct. The judicial conference’s interpretation of that
language that PACER fees may be used more broadly is correct.”).)
For a number of reasons, defendant’s argument is flawed. First, the record does not
reflect meaningful congressional approval of each category of expenditures. Each so-called
“approval” came from congressional committees, which is not the same as approval by Congress
“as a whole.” See Tenn. Valley Auth., 437 U.S. at 192.21 Moreover, the Court questions whether
it is even possible to infer approval of a specific expenditure based solely on committee-approval
of the judiciary’s financial plans, where the record does not show any particular attention was
paid to this itemization of intended uses of EPA fees. For almost of all the years for which
defendant has included copies of approvals, the “approvals” consist of a mere line in an email or
letter that indicates, without any elaboration or specification, that the Appropriations Committee
has “no objection.” 22 (See, e.g., 2d Skidgel Decl. Tab 16 (2010); see also id. Tabs 15, 17, 20–27
21
Despite having the opportunity to respond to the holding of Tennessee Valley Authority v.
Hill, defendant has failed to cite any legal support for its use of approvals by the Committee on
Appropriations.
22
The one exception was courtroom technology. In response to the judiciary’s request in its FY
2007 Financial Plan to use PACER fees for Courtroom Technology, the Chairman and Ranking
Member of the Subcommittee on Financial Services and General Government wrote on May 2,
2007: “We have reviewed the information included and have no objection to the financial plan
including . . . the expanded use of Electronic Public Access Receipts.” (2007 Senate Approval
Lettter; see also id. 2007 House Approval Letter.)
31
(2011, 2013–2016).) In 2009 and 2012, there are letters from the Appropriations Committees
which reflect a closer analysis of some parts of the financial plan, but neither mentions the
judiciary’s planned uses of PACER fees. (Id. Tabs 14, 18–19.) By contrast, in July 2013, the
AO sent an email to the Senate Appropriation Committee at 1:02 p.m. noting that “[i]n looking
through our records we don’t seem to have approval of our FY 2013 financial plan. Would you
be able to send us an email or something approving the plan? The auditors ask for it so we like
to have the House and Senate approvals on file.” (2d Skidgel Decl. Tab 20.) Less than an hour
later, at 1:47 p.m., an email came from a staff member on the Senate Appropriations Committee
stating “Sorry about that and thanks for the reminder. We have no objection.” (Id.)
Second, even if the record established approval of the various uses of EPA fees, there is
nothing to support the leap from approval of specific expenditures to defendant’s contention that
the Appropriations Committees were cognizant and approved of the Judicial Conference’s
“interpretation.” (See 3/23/18 Tr. at __). In fact, the AO never used the definition defendant
now urges the Court to adopt—the “dissemination of information through electronic means”—to
explain its use of EPA fees for more than PACER. Rather, it used terms like “public access
initiatives” to describe these expenditures. (See FY 2007 Financial Plan (“collections are used to
fund information technology initiatives in the judiciary related to public access”); 2d Skidgel
Decl. Tab 12 (FY 2009 Financial Plan at 45) (EPA revenues “are used to fund IT projects related
to public access”); Taylor Decl. Ex. J at 10 (AO document, entitled Electronic Public Access
Program Summary, December 2012, stating that EPA revenue “is dedicated solely to promoting
and enhancing public access”).)
Finally, as defendant acknowledges, the post-enactment action of an appropriations
committee cannot alter the meaning of the statute, which is what controls what expenditures are
32
permissible. See Tenn. Valley Auth., 437 U.S. at 191 (“Expressions of committees dealing with
requests for appropriations cannot be equated with statutes enacted by Congress.”).23 Thus, the
fact that appropriations committees expressly or implicitly endorsed the use of EPA fees for
certain expenditures cannot establish that those expenditures are permissible uses of EPA fees.
For these reasons, the Court is not persuaded that the statute permits the collection of
EPA fees to fund any expense that involves the “dissemination of information through electronic
means.”
C. What Limitation Did the E-Government Act Place on the Use of PACER
Fees?
Having rejected the parties’ diametrically opposed interpretations, the Court must embark
on its own analysis to determine whether defendant’s use of PACER fees between 2010 and
2016 violated the E-Government Act. The Court concludes that defendant properly used
PACER fees to pay for CM/ECF24 and EBN, but should not have used PACER fees to pay for
the State of Mississippi Study, VCCA, Web-Juror, and most of the expenditures for Courtroom
23
Even an appropriations Act passed by Congress cannot alter the meaning of statute. See Tenn.
Valley Auth., 437 U.S. at 190–91 (“We recognize that both substantive enactments and
appropriations measures are ‘Acts of Congress,’ but the latter have the limited and specific
purpose of providing funds for authorized programs. When voting on appropriations measures,
legislators are entitled to operate under the assumption that the funds will be devoted to purposes
which are lawful and not for any purpose forbidden. Without such an assurance, every
appropriations measure would be pregnant with prospects of altering substantive legislation,
repealing by implication any prior statute which might prohibit the expenditure. [This] would
lead to the absurd result of requiring Members to review exhaustively the background of every
authorization before voting on an appropriation . . . .”).
24
It is undisputed that the expenses in the categories now labeled CM/ECF, Court Allotments
and Telecommunication/Communications Infrastructure include only expenses that are directly
related to PACER or CM/ECF. (See 3/23/18 Tr. at __; see also Skidgel Decl. ¶ 19 (“through
court allotments, “courts are able to determine the best ways to improve electronic public access
services (such as by adding a public printer or upgrading to a more robust internet web server)”
and “[f]unding court staff to work on EPA projects, such as CM/ECF, utilizes existing expertise
and reduces training time and associated costs compared to that of hiring contractors”; Def.’s
Resp. to Pls.’ Interrogs. at 22–26.)
33
Technology. (See Attachment 1.)
The statutory language in 28 U.S.C. § 1913 note is clear that, to be paid for with PACER
fees, a “service” must be one that provides the public with “access to information available
through automatic data processing equipment.” An examination of this statutory provision’s
history—dating from its enactment in 1990 and culminating in its amendment by the E-
Government Act in 2002—resolves any ambiguity in its meaning and allows the Court to
determine which expenditures between 2010 and 2016 were properly funded by PACER fees.
When the 28 U.S.C. § 1913 note was first enacted in 1989, see Pub. L. 101-515, § 404,
PACER was in its infancy, but it was operational, and the statute clearly applied to it. (See Jud.
Conf. Rep. at 83 (Sept. 14, 1988); EPA Chronology at 1; Jud. Conf. Rep. at 19 (Mar. 14, 1989);
Jud. Conf. Rep. at 21 (Mar. 13, 1990); 1990 S. Rep. at 86.) Yet, there was no mention of
PACER in the statute, nor was there any suggestion that the judiciary was precluded from
recouping expenses beyond the cost of operating PACER. In fact, it is apparent that Congress
recognized the possibility that fees would cover the costs of making court records available to
the public electronically. See 1990 S. Rep. at 86 (“language . . . authorizes the Judicial
Conference to prescribe reasonable fees for public access to case information, to reimburse the
courts for automating the collection of the information”); see also 1992 H.R. Rep. at 58 (noting
that “the Judiciary’s investments in automation have resulted in enhanced service to the public
and to other Government agencies in making court records relating to litigation available by
electronic media” and “request[ing] that the Judiciary equip all courts, as rapidly as is feasible,
with the capability for making such records available electronically and for collecting fees for
doing so”).
The first federal court experiment with electronic case filing began in the Northern
34
District of Ohio in 1996. (1997 AO Paper at 4.) Later that year, both the House and Senate
Appropriations Committees made clear that they expected the judiciary to use its EPA fee
collections for more than just paying for the cost of PACER. (1996 H.R. Rep. at 89 (“The
Committee supports the ongoing efforts of the Judiciary to improve and expand information
made available in electronic form to the public. Accordingly, the Committee expects the
Judiciary to utilize available balances derived from electronic public access fees in the Judiciary
Automation Fund to make information and services more accessible to the public through
improvements to enhance the availability of electronic information. The overall quality of
service to the public will be improved with the availability of enhancements such as electronic
case documents, electronic filings, enhanced use of the Internet, and electronic bankruptcy
noticing.”) (emphasis added); 1996 S. Rep. at 88 (“The Committee supports efforts of the
judiciary to make electronic information available to the public, and expects that available
balances from public access fees in the judiciary automation fund will be used to enhance
availability of public access.”).)
While these statements in the reports of the Committee on Appropriations predated the
passage of the E-Government Act, they are not dispositive in terms of discerning what Congress
intended the statute to mean. They are part of a bigger picture and an important backdrop to the
passage of the E-Government Act. Contemporaneously with Congress’s prompting the judiciary
to use EPA fees to pay for public access to electronically-stored case documents “[t]he transition
towards electronic case files (“ECF”) in the federal courts [wa]s underway” by March 1997.
(1997 AO Paper at v.) Over the next few years, relying expressly on the 1996 House and Senate
Reports relating to fiscal year 1997 appropriations, the judiciary began using EPA fees to fund
the development of a national case management and electronic case filing system, CM/ECF,
35
which would allow federal courts to maintain complete electronic files. (See, e.g., FY 2002
Budget Request (“Fiscal year 1997 appropriations report language expanded the Judiciary’s
authority to use these funds to finance automation enhancements that improve the availability of
electronic information to the public.”).) The judiciary anticipated that CM/ECF would “produce
an impressive range of benefits . . . including . . . public access to case file information.” (1997
AO Paper at v.) For instance, in 1998, the Judicial Conference created a web interface for
PACER and added a per page fee for accessing case dockets and electronic filings via the
Internet. (Jud. Conf. Rep. at 64–65 (Sept. 15, 1998); EPA Chronology at 1.) At that time, the
Judicial Conference noted in its report that
The revenue from these fees is used exclusively to fund the full range of
electronic public access (EPA) services. With the introduction of Internet
technology to the judiciary’s current public access program, the Committee on
Court Administration and Case Management recommended that a new Internet
PACER fee be established to maintain the current public access revenue while
introducing new technologies to expand public accessibility to PACER
information.
(Jud. Conf. Rep. at 64–65 (Sept. 15, 1998) (emphasis added).) By no later than fiscal year 2000,
the judiciary was spending substantial sums of money, derived from EPA fees, on CM/ECF and
EBN. (2d Skidgel Decl. Tab 30 (FY 2000 EPA Expenditures).) In fact, over $10 million was
spent on case management/electronic case files, infrastructure and electronic bankruptcy noticing
in 2000. (Id.)
Then in 2002, Congress passed the E-Government Act. This Act encompassed far more
than § 205(e)’s limitation on the charging of fees. The overall purpose of the section pertaining
to the judiciary was to “require federal courts to provide greater access to judicial information
over the Internet.” 2002 S. Rep. at 23. To that end, the Act mandated that the judiciary expand
the public’s access to electronically stored information that was accessible via PACER:
 § 205(a), “Individual Court Websites,” “require[d] the Supreme Court, each circuit court,
36
each district court, and each bankruptcy court of a district to establish a website that
would include public information such as location and contact information for
courthouses, local rules and standing orders of the court, docket information for each
case, and access to written opinions issued by the court, in a text searchable format.”
2002 S. Rep. at 22.
 § 205(b), “Maintenance of Data Online,” required that “[t]he information and rules on
each website . . . be updated regularly and kept reasonably current.”
 § 205(c), “Electronic Filings,” required, subject to certain specified exceptions, that
courts provide public access to all electronically filed documents and all documents filed
in paper that the court converts to electronic form.
and
 § 205(d), “Dockets with Links to Documents,” directed the Judicial Conference to
“explore the feasibility of technology to post online dockets with links allowing all filing,
decision, and rulings in each case to be obtained from the docket sheet of that case.”
Subsection 205(e), entitled “Cost of Providing Electronic Docketing Information,” changed the
language that required the judiciary to charge fees (“shall, hereafter”) to make its decision to
charge fees discretionary and to limit those fees “to the extent necessary.” Even though the
judiciary was already using EPA fees to pay for the costs of CM/ECF and EBN, no changes were
made to the last sentence of subparagraph (b), which defined the scope of services that can be
reimbursed with EPA fees.
As is clear from the E-Government Act, Congress intended in 2002 for the judiciary to
expand its capability to provide access to court information, including public information
relating to the specific court and docket information for each case, including filings and court
opinions. With certain exceptions, documents filed electronically were to be made available
publicly, and the judiciary was to explore the possibility of providing access to the underlying
contents of the docket sheets through links to filings, decisions and rulings. This ambitious
program of providing an electronic document case management system was mandated by
Congress, although no funds were appropriated for these existing and future services, but
37
Congress did provide that fees could be charged even though the fees could be “only to the
extent necessary.”
Consistent with this view the Appropriations Committees reiterated their support for
allowing EPA fees to be spent on CM/ECF in 2003. 2003 H.R. Rep. at 116; 2003 S. Rep. at 118;
2003 Conf. Rep. at H12515.
Although congressional “acquiescence” as an interpretative tool is to be viewed with
caution, the Court is persuaded that when Congress enacted the E-Government Act, it effectively
affirmed the judiciary’s use of EPA fees for all expenditures being made prior to its passage,
specifically expenses related to CM/ECF and EBN. Accordingly, the Court concludes that the E-
Government Act allows the judiciary to use EPA fees to pay for the categories of expenses listed
under Program Requirements: CM/ECF, EBN, Court Allotments and
Telecommunications/Communications Infrastructure.25 (See Attachment 1.)
However, Congress’ endorsement of the expenditures being made in 2002, in conjunction
with the statutory language, the evolution of the E-Government Act, and the judiciary’s practices
as of the date of the Act’s passage, leads the Court to conclude that the E-Government Act and
its predecessor statute imposed a limitation on the use of PACER fees to expenses incurred in
providing services, such as CM/ECF and EBN, that are part of providing the public with access
to electronic information maintained and stored by the federal courts on its CM/ECF docketing
system. This interpretation recognizes that PACER cannot be divorced from CM/ECF, since
25
Plaintiffs’ recent supplemental filing after the motions hearing suggested for the first time that
the CM/ECF category might require closer examination to determine whether the expenditures
therein, in particular CM/ECF NextGen, were all appropriately treated as “public access
services.” (See Pls.’ Resp. to Def.’s Supp. Authority at 3, ECF No. 85.) But plaintiffs made no
such argument in response to defendant’s motion for summary judgment. (See Pls.’ Reply at 6
(raising no challenge to CM/ECF if the statute authorizes “PACER fees to cover all costs
necessary for providing PACER access and other public access services”).)
38
PACER is merely the portal to the millions of electronically-filed documents that are housed by
the judiciary on CM/ECF and are available to the public via the Internet only because of
CM/ECF.
With this understanding, the Court will consider whether the judiciary properly used
PACER fees for the remaining categories of expenses, which the judiciary now identifies as
Congressional Priorities: Courtroom Technology, the State of Mississippi study, Web-Juror, and
VCCA. (See Attachment 1.)
The judiciary only began using EPA fees for these expenses five or more years after the
E-Government Act. Defendant’s first attempt to justify the use of EPA fees for each of these
categories focused almost exclusively on purported congressional approvals. As previously
discussed, post-enactment legislative history as a general rule is of limited use in statutory
interpretation, particularly when the action comes from a committee—especially an
appropriations committee—rather than Congress as a whole. Compounding that problem here,
also as previously noted (with the exception of courtroom technology, see supra note 22), is the
questionable substance of the congressional approvals for several of these expenditures with the
exception of courtroom technology.
Even if defendant could rely on congressional approvals, the Court would still have to
decide whether the expenses fit within the definition of permissible expenses.
State of Mississippi: The category labeled “State of Mississippi” is described by
defendant as a study that “provided software, and court documents to the State of Mississippi,
which allowed the State of Mississippi to provide the public with electronic access to its
documents.” (Def.’s Resp. to Pls.’ Interrogs. at 5.) It is apparent from this description that this
study was not a permissible expenditure since it was unrelated to providing access to electronic
39
information on the federal courts’ CM/ECF docketing system.
VCCA: The category labeled Victim Notification (Violent Crime Control Act) refers to
“[c]osts associated with the program that electronically notifies local law enforcement agencies
of changes to the case history of offenders under supervision.” (Def.’s Resp. to Pls.’ Interrogs. at
11.) Via this program, “[l]aw enforcement officers receive electronic notification of court
documents that were previously sent to the through the mail.” (Id.) Defendant first defended the
use of EPA fees to pay for this program on the ground that it “improves the overall quality of
electronic service to the public via an enhanced use of the Internet.” (Def.’s Resp. to Pls.’ Facts
¶¶ 34, 53, 69, 87, 105, 123, 141.) Defendant has also argued that this program benefits the
public because by sharing this information electronically, the information gets to law
enforcement agencies more quickly, and they in turn may be able to revoke supervision, if
warranted, more quickly. (See 3/23/18 Tr. at __.) But neither of these justifications establishes
that VCCA is a permissible expenditure of PACER funds. While this program disseminates
federal criminal case information, and its outcome may indirectly have some benefit to the
public, it does not give the public access to any electronically stored CM/ECF information.
Web-Juror: The category labeled Web-Based Juror Services refers to the costs associated
with E-Juror, a juror management system. (Def.’s Resp. to Pls.’ Interrogs. at 11.) It “provides
prospective jurors with electronic copies of court documents regarding jury service.” (Id.)
Defendant’s justification for using EPA fees to pay for these costs is that the E-Juror program
“improves the overall quality of electronic service to the public via an enhanced use of the
Internet.” (Def.’s Resp. to Pls.’ Facts ¶¶ 71, 89, 107, 125, 143.) Again, whether a program
“improves the overall quality of electronic service to the public via an enhanced use of the
Internet” does not establish that it is permissible use of EPA fees where there is no nexus to the
40
public’s ability to access information on the federal court’s CM/ECF docketing system.
Courtroom Technology: The category labeled “Courtroom Technology” funds “the
maintenance, cyclical replacement, and upgrade of courtroom technology in the courts.” (Def.’s
Resp. to Pls.’ Interrogs. at 11.) The expenses in this category include “the costs of repairs and
maintenance for end user IT equipment in the courtroom; obligations incurred for the acquisition
and replacement of digital audio recording equipment in the courtroom; costs for audio
equipment in the courtroom, including purchase, design, wiring and installation; and costs for
video equipment in the courtroom, including purchase, design, wiring and installation.” (Def.’s
Resp. to Pls.’ Interrogs. at 32.) Defendant argues that EPA fees are appropriately used for
courtroom technology because “it improves the ability to share case evidence with the public in
the courtroom during proceedings and to share case evidence electronically through electronic
public access services when it is presented electronically and becomes an electronic court
record.” (FY 2007 Financial Report at 46.) Again, there is a lack of nexus with PACER or
CM/ECF. From the existing record, it would appear that the only courtroom technology
expenditure that might be a permissible use of EPA fees is the “digital audio equipment” that
allows digital audio recordings to be made during court proceedings and then made part of the
electronic docket accessible through PACER. (See Taylor Decl. Ex. A (2013 EPA Fee
Schedule) (charging $2.40 “for electronic access to an audio file of a court hearing via
PACER”).) But, the Court does not see how flat-screen TVs for jurors or those seated in the
courtroom, which are used to display exhibits or other evidence during a court proceeding, fall
within the statute as they do not provide the public with access to electronic information
maintained and stored by the federal courts on its CM/ECF docketing system.
Accordingly, with the exception of expenses related to digital audio equipment that is
41
used to create electronic court records that are publicly accessible via PACER, the Court
concludes that the expenses in the categories listed as Congressional Priorities are not a
permissible use of EPA fees.26
CONCLUSION
For the reasons stated above, the Court will deny plaintiffs’ motion for summary
judgment as to liability and will grant in part and deny in part defendant’s cross-motion for
summary judgment as to liability. A separate Order, ECF No. 88, accompanies this
Memorandum Opinion.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: March 31, 2018
26
The Court urges the parties to confer prior to the next status conference to determine for the
years 2010 to 2016 the amount of courtroom technology expenditures that cannot be paid with
PACER fees.
42