National Veterans Legal Services Program v. United States , 235 F. Supp. 3d 32 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES PROGRAM, et al.,
Plaintiffs,
v. Civil Action No. 16-745 (ESH)
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION
Plaintiffs, organizations and individuals who have paid fees to obtain records through the
Public Access to Court Electronic Records system (PACER), claim that PACER’s fee schedule
is higher than necessary to cover the costs of operating PACER and therefore violates the E-
Government Act of 2002, Pub. L. No. 107-347, § 205(e), 116 Stat. 2899, 2915 (codified as 28
U.S.C § 1913 note). (Compl. at 2, ECF No. 1.) They have brought this class action against the
United States under the Little Tucker Act, 28 U.S.C. § 1346(a), to recover the allegedly
excessive fees that they have paid over the last six years. (Id. at 14-15, ¶¶ 33-34.) Plaintiffs
have moved to certify a class of “[a]ll individuals and entities who have paid fees for the use of
PACER within the past six years, excluding class counsel and agencies of the federal
government.” (Pls.’ Mot. Class Certif., ECF No. 8.) The proposed class representatives are
three nonprofit legal advocacy organizations: the National Veterans Legal Services Program, the
National Consumer Law Center, and the Alliance for Justice. (Id. at 14.) Defendant opposes
class certification primarily on the ground that the named plaintiffs are not adequate
representatives because they are eligible to apply for PACER fee exemptions, while some other
class members are not. (Def.’s Opp., ECF. No. 13) For the reasons herein, the Court will grant
plaintiffs’ motion and certify a class under Rule 23(b)(3).
BACKGROUND
PACER is an online electronic records system provided by the Federal Judiciary that
allows public access to case and docket information from federal courts. PACER,
https://www.pacer.gov (last visited Jan. 23, 2017). Congress has authorized the Judicial
Conference that it “may, only to the extent necessary, prescribe reasonable fees . . . for access to
information available through automatic data processing equipment.” 28 U.S.C. § 1913 note.
The fees “shall be deposited as offsetting collections . . . to reimburse expenses incurred in
providing these services.” Id. Plaintiffs allege that the fee to use PACER was $.07 per page in
1998, with a maximum of $2.10 per request introduced in 2002. (Compl. at ¶ 8.) The fee
increased to $.08 per page in 2005 and to $.10 per page in 2012. (Id. at ¶¶ 13, 19.)
The current PACER fee schedule issued by the Judicial Conference sets forth both the
access fees and the conditions for exemption from the fees. Electronic Public Access Fee
Schedule, PACER, https://www.pacer.gov/documents/epa_feesched.pdf (Effective Dec. 1, 2013).
The current fee is $.10 per page, with a maximum of $3.00 per record for case documents but no
maximum for transcripts and non-case specific reports. Id. There is no fee for access to judicial
opinions, for viewing documents at courthouse public access terminals, for any quarterly billing
cycle in which a user accrues no more than $15.00 in charges, or for parties and attorneys in a
case to receive one free electronic copy of documents filed in that case. Id. As a matter of
discretion, courts may grant fee exemptions to “indigents, bankruptcy case trustees, pro bono
attorneys, pro bono alternative dispute resolution neutrals, Section 501(c)(3) not-for-profit
organizations, and individual researchers associated with educational institutions,” but only if
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they “have demonstrated that an exemption is necessary in order to avoid unreasonable burdens
and to promote public access to information.” Id. “Courts should not . . . exempt individuals or
groups that have the ability to pay the statutorily established access fee.” Id. “[E]xemptions
should be granted as the exception, not the rule,” should be granted for a definite period of time,
and should be limited in scope. Id.
Plaintiffs claim that the fees they have been charged violate the E-Government Act
because they are “far more than necessary to recover the cost of providing access to electronic
records.” (Compl. at 2, ¶ 9.) For example, in 2012 the judiciary spent $12.1 million generated
from public access receipts on the public access system, while it spent more than $28.9 million
of the receipts on courtroom technology. (Id. at ¶ 20.) “In 2014 . . . the judiciary collected more
than $145 million in fees, much of which was earmarked for other purposes such as courtroom
technology, websites for jurors, and bankruptcy notification systems.” (Id. at ¶ 21.)
Furthermore, plaintiffs claim that excessive fees have “inhibited public understanding of the
courts and thwarted equal access to justice.” (Id. at 2.) Based on the alleged violation of the E-
Government Act, plaintiffs assert that the Little Tucker Act entitles them to a “refund of the
excessive PACER fees illegally exacted.” (Id. at ¶¶ 33-34.) “Each plaintiff and putative class
member has multiple individual illegal-exaction claims against the United States, none of which
exceeds $10,000.” (Id. at ¶ 5.)
Named plaintiffs are nonprofit organizations that have incurred fees for downloading
records from PACER. (Compl. at ¶¶ 1-3.) Plaintiff National Veterans Legal Services Program
(NVLSP) “has represented thousands of veterans in individual court cases, educated countless
people about veterans-benefits law, and brought numerous class-action lawsuits challenging the
legality of rules and policies of the U.S. Department of Veterans Affairs.” (Id. at ¶ 1; Stichman
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Decl. ¶ 1, ECF No. 30.) Plaintiff National Consumer Law Center (NCLC) conducts “policy
analysis, advocacy, litigation, expert-witness services, and training for consumer advocates.”
(Compl. at ¶ 2; Rossman Decl. ¶ 1, ECF No. 29.) Plaintiff Alliance for Justice (AFJ) “is a
national association of over 100 public-interest organizations that focus on a broad array of
issues” and “works to ensure that the federal judiciary advances core constitutional values,
preserves unfettered access to the courts, and adheres to the even-handed administration of
justice for all Americans.” (Compl. at ¶ 3; Goldberg Decl. ¶ 1, ECF No. 28.)
During the six years covered by this lawsuit, named plaintiffs regularly paid fees to use
PACER. NVLSP paid $317 in PACER fees in 2016 and estimates that it has paid similar
amounts annually over the past six years. (Stichman Decl. ¶ 2.) NCLC paid at least $5,863 in
fees during the past six years. (Rossman Decl. ¶ 2; Mot. Hr’g Tr. 2, Jan. 18, 2017.) AFJ paid at
least $391 in fees during the past six years. (Goldberg Decl. ¶ 2; Tr. 3.) None of the three
named plaintiffs asked for exemptions from PACER fees, because they could not represent to a
court that they were unable to pay the fees. (Tr. 3-4.) The reason for this is that each
organization has annual revenue of at least $3 million. (Id.; Stichman Decl. ¶ 2; Rossman Decl.
¶ 2; Goldberg Decl. ¶ 2.)
In a prior opinion, this Court denied defendant’s motion to dismiss the suit. See National
Veterans Legal Services Program v. United States, No. 16-cv-745, 2016 WL 7076986 (D.D.C.
Dec. 5, 2016). First, the Court held that the first-to-file rule did not bar this suit because it
concerns the legality of the PACER fee schedule, whereas the plaintiffs in Fisher v. United
States, No. 15-1575C (Fed. Cl. May 12, 2016), claim an error in the application of the fee
schedule. Id. at *3. Second, the Court held that plaintiffs were not required to alert the PACER
Service Center about their claims as a prerequisite to bringing suit under the Little Tucker
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Act. Id.
In the current motion, plaintiffs have asked this Court to certify a class under Rule
23(b)(3) or, in the alternative, 23(b)(1). (Pls.’ Mot. at 18.) Their motion proposed a class of
“[a]ll individuals and entities who have paid fees for the use of PACER within the past six years,
excluding class counsel and agencies of the federal government.” (Id. at 1.) In opposition to
class certification, defendant argues that (1) plaintiffs have failed to demonstrate that they satisfy
the numerosity requirement, because they have not established the number of users who raised
their concerns with the PACER Service Center or the number of potential plaintiffs who are
nonprofit organizations; (2) the class representatives fail the typicality and adequacy
requirements, because their nonprofit status makes them eligible to request fee exemptions,
which not all class members can do; (3) the Court should not allow this suit to proceed as a class
action, because it could produce results that conflict with those in Fisher; and (4) individual
questions predominate, because the Court would need to determine whether each user received
free pages in excess of the 30 charged pages, such that the user’s per page cost did not violate the
E-Government Act. (Def.’s Opp. at 9-22.)
ANALYSIS
I. JURISDICTION
Although defendant has not raised any jurisdictional arguments in its opposition to class
certification, courts must assure themselves that they have jurisdiction. Plaintiffs have brought
this case under the Little Tucker Act, which gives district courts jurisdiction over a “civil action
or claim against the United States, not exceeding $10,000 in amount, founded either upon the
Constitution, or any Act of Congress, or any regulation of an executive department, or upon any
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express or implied contract with the United States.” 28 U.S.C. § 1346(a)(2).1 Interpreting the
identical wording of the Tucker Act, which applies to claims that exceed $10,000, the Federal
Circuit has held that a plaintiff can “recover an illegal exaction by government officials when the
exaction is based on an asserted statutory power” and “was improperly paid, exacted, or taken
from the claimant in contravention of the Constitution, a statute, or a regulation.” Aerolineas
Argentinas v. United States, 77 F.3d 1564, 1572-73 (Fed. Cir. 1996) (quoting Eastport S.S. Corp.
v. United States, 372 F.2d 1002, 1007 (Ct. Cl. 1967)); Norman v. United States, 429 F.3d 1081,
1095 (Fed. Cir. 2005).2
In their complaint, plaintiffs request “monetary relief for any PACER fees collected by
the defendant in the past six years that are found to exceed the amount authorized by law.”
(Compl. at 14-15.) A suit in district court under the Little Tucker Act may seek over $10,000 in
total monetary relief, as long as the right to compensation arises from separate transactions for
which the claims do not individually exceed $10,000. Am. Airlines, Inc. v. Austin, 778 F. Supp.
72, 76-77 (D.D.C. 1991); Alaska Airlines v. Austin, 801 F. Supp. 760, 762 (D.D.C. 1992), aff’d
1
The Federal Circuit has exclusive jurisdiction over appeals from Little Tucker Act suits, and
therefore, the law of the Federal Circuit applies to both the merits of those cases and related
procedural issues. 28 U.S.C. § 1295(a)(2); Chrysler Motors Corp. v. Auto Body Panels of Ohio,
Inc., 908 F.2d 951, 952-53 (Fed. Cir. 1990); United States v. One (1) 1979 Cadillac Coupe De
Ville VIN 6D4799266999, 833 F.2d 994, 997 (Fed. Cir. 1987). This Court refers to Federal
Circuit precedent when it exists.
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For the Court to have jurisdiction over an illegal exaction claim under the Little Tucker Act, the
statute causing the exaction must also provide “either expressly or by ‘necessary implication,’
that ‘the remedy for its violation entails a return of money unlawfully exacted.’” Norman, 429
F.3d at 1095 (quoting Cyprus Amax Coal Co. v. United States, 205 F.3d 1369, 1373
(Fed.Cir.2000)). The Court of Federal Claims has taken an expansive view of the phrase
“necessary implication” because “[o]therwise, the Government could assess any fee or payment
it wants from a plaintiff acting under the color of a statute that does not expressly require
compensation to the plaintiff for wrongful or illegal action by the Government, and the plaintiff
would have no recourse for recouping the money overpaid.” N. Cal. Power Agency v. United
States, 122 Fed. Cl. 111, 116 (2015).
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in relevant part by Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 797 (Fed. Cir. 1993); United
States v. Louisville & Nashville R.R. Co., 221 F.2d 698, 701 (6th Cir. 1955). Plaintiffs assert that
no class member has a claim exceeding $10,000 for a single PACER transaction, and defendant
does not dispute this. (Pls.’ Mot. at 11; Tr. 22-23.) Therefore, plaintiffs’ monetary claim does
not exceed the jurisdictional limitation of the Little Tucker Act.
II. CLASS CERTIFICATION
Rule 23 sets forth two sets of requirements for a suit to be maintained as a class action.
Fed. R. Civ. P. 23. First, under Rule 23(a), all class actions must satisfy the four requirements of
numerosity, commonality, typicality, and adequacy. Second, the suit must fit into one of the
three types of class action outlined in Rule 23(b)(1), (b)(2), and (b)(3). The Court finds that this
suit satisfies the 23(a) requirements and that a class should be certified under 23(b)(3).
A. Class Definition
In their motion for class certification, plaintiffs propose a class of “[a]ll individuals and
entities who have paid fees for the use of PACER within the past six years, excluding class
counsel and agencies of the federal government.” (Pls.’ Mot. at 1.) At the motion hearing,
plaintiffs suggested that it would actually only be necessary to exclude federal executive branch
agencies, because their concern was that the Justice Department could not both defend the suit
and represent executive branch agency plaintiffs. (Tr. 5-7.) The Court shares plaintiffs’ concern
but finds that the issue is not limited to executive branch agencies. “Except as otherwise
authorized by law, the conduct of litigation in which the United States, an agency, or officer
thereof is a party . . . is reserved to officers of the Department of Justice, under the direction of
the Attorney General.” 28 U.S.C. § 516. Many independent agencies lack independent litigating
authority and are instead represented by the Justice Department, at least on some issues or in
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some courts. See Neal Devins, Unitariness and Independence: Solicitor General Control over
Independent Agency Litigation, 82 Cal. L. Rev. 255, 263-80 (1994); Kirti Datla & Richard L.
Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769,
799-804 (2013). Some commentators consider independent regulatory commissions and boards
to be on the boundary between the executive and legislative branches, and yet the Solicitor
General typically controls their litigation before the Supreme Court. Anne Joseph O’Connell,
Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841, 867, 920-21 (2014). To avoid
individualized questions about the litigating authority of federal entities, the Court will exclude
from the class all federal government entities, not only executive branch agencies.
For the sake of clarity, the Court will make two additional minor modifications to the
proposed class definition before analyzing the requirements of Rule 23. First, the class definition
that plaintiffs introduced in their complaint and repeated in their motion for class certification
defines the class in terms of those “who have paid fees for the use of PACER within the past six
years,” but that language is unclear when it is no longer associated with the dated complaint.
Thus, the Court will substitute the actual dates for the six-year period ending on the date of the
complaint—April 21, 2016. (Compl. at 15.) Second, rather than stating that the definition
excludes “class counsel,” the Court will state that it excludes “class counsel in this case.”
Plaintiffs’ counsel stated at the motion hearing that they were excluding only themselves, not all
PACER users who have acted as counsel in class actions. (See Tr. 7.). The modified class
definition is: “All 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.”
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B. Rule 23(a) Requirements
Under Rule 23(a), a suit may be maintained as a class action “only if: (1) the class is so
numerous that joinder of all members is impracticable; (2) there are questions of law or fact
common to the class; (3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative parties will fairly and adequately
protect the interests of the class.” Fed. R. Civ. P. 23(a). “Rule 23 does not set forth a mere
pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Rather, “[a] party
seeking class certification must affirmatively demonstrate his compliance with the Rule—that is,
he must be prepared to prove that there are in fact sufficiently numerous parties, common
questions of law or fact, etc.” Id.
1. Numerosity
Plaintiffs claim that the joinder of all members of their proposed class would be
impracticable because they estimate that the class contains at least several hundred thousand
members. (Pls.’ Mot. at 12-13.) Defendant raises two arguments to challenge this contention.
First, defendant argues that “[p]laintiffs have failed to establish that there exist sufficient
numbers of would-be class members who may pursue viable claims for alleged overpayment of
PACER fees, because all PACER users agree that they will raise any concerns with their PACER
bills with the PACER Service Center within 90 days of receiving their bills.” (Def.’s Opp. at 9.)
In denying defendant’s motion to dismiss, this Court has already held that plaintiffs were not
required to alert the PACER Service Center about their claims as a prerequisite to bringing suit
under the Little Tucker Act. NVLSP, 2016 WL 7076986, at *3. Therefore, defendant is wrong
to count only potential class members who have alerted the PACER Service Center.
Second, defendant argues that “[p]laintiffs are only able adequately to represent the
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interests of non-profit PACER users” and “named Plaintiffs have made no attempt to identify the
number of non-profit organizations who would share their claims.” (Def.’s Opp. at 10.) As
defendant’s own language suggests, defendant’s argument is actually about adequacy of
representation, not about numerosity. When the Court reaches the adequacy requirement below,
it will address plaintiffs’ ability to represent entities other than nonprofit organizations.
Defendant does not dispute that it would be impracticable to join all members of the class
that plaintiffs have proposed: “[a]ll individuals and entities who have paid fees for the use of
PACER within the past six years, excluding class counsel and agencies of the federal
government.” (Pls.’ Mot. at 1; Def.’s Opp. at 9-10.) In 2012 the Judiciary reported that there
were currently more than 1.4 million user accounts, and there had been 325,000 active users in
2009. Electronic Public Access Program Summary, PACER (Dec. 2012), https://www.pacer.
gov/documents/epasum2012.pdf. Accepting the Judiciary’s estimate that approximately 65-75
percent of active users are exempt from fees in at least one quarter during a typical fiscal year,
id., there remain a very large number of users paying fees in a typical year. Although the parties
have not presented any precise data about the size of the class, there is no question that the class
satisfies the numerosity requirement.
2. Commonality
A common question is a question “of such a nature that it is capable of classwide
resolution—which means that determination of its truth or falsity will resolve an issue that is
central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350.
Plaintiffs argue that the two most important questions presented by their suit are common:
(1) “Are the fees imposed for PACER access excessive in relation to the cost of providing the
access . . . ?” and (2) “[W]hat is the measure of damages for the excessive fees charged?” (Pls.’
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Mot. at 13.) Defendant has not argued that plaintiffs’ proposed class fails to satisfy the
commonality requirement (see Def.’s Opp. at 8),3 and this Court agrees that the legality of the
PACER fee schedule and the formula for measuring any damages are common questions.
3. Typicality
A class representative’s “‘claim is typical if it arises from the same event or practice or
course of conduct that gives rise to a claim of another class member’s where his or her claims are
based on the same legal theory.’” Bynum v. Dist. of Columbia, 214 F.R.D. 27, 34 (D.D.C. 2003)
(quoting Stewart v. Rubin, 948 F. Supp. 1077, 1088 (D.D.C.1996)). A leading treatise on class
actions has explained that “typicality focuses on the similarities between the class
representative’s claims and those of the class while adequacy focuses on evaluating the
incentives that might influence the class representative in litigating the action, such as conflicts
of interest.” William B. Rubenstein, Newberg on Class Actions § 3:32 (5th ed. 2016).
According to named plaintiffs, their claims “are typical of the class because they arise
from the same course of conduct by the United States (imposing a uniform PACER fee schedule
that is higher than necessary to reimburse the cost of providing the service) and are based on the
same legal theory (challenging the fees as excessive, in violation of the E-Government Act).”
(Pls.’ Mot. at 14.). In response, defendant argues that named plaintiffs are “unlike other PACER
users, in that they have the ability to request PACER fee exemptions as non-profits.” (Def.’s
Opp. at 11.) According to defendant, named plaintiffs’ claims are not typical because they
“appear unwilling to push to reduce those fees beyond the limit that would affect free access to
their favored sub-set of PACER users.” (Id. at 13.)
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Defendant stated on the first page of its filing that “Plaintiffs have failed to establish . . . a
commonality of claims.” (Def.’s Opp. at 1.) However, it omitted commonality from a later list
of challenges, see id. at 8, and failed to raise any argument about commonality.
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Contrary to defendant’s argument, plaintiffs satisfy the typicality requirement. Named
plaintiffs and all class members are challenging the PACER fee schedule on the theory that it
violates the E-Government Act by generating revenue that exceeds the costs of providing
PACER. Defendant’s objection focuses not on differences between named plaintiffs’ claims and
those of other class members but on incentives that could affect how named plaintiffs would
pursue the litigation. Thus, the Court will address defendant’s objection under the rubric of
adequacy, which is the crux of defendant’s opposition.
4. Adequacy
“‘Two criteria for determining the adequacy of representation are generally recognized:
1) the named representative must not have antagonistic or conflicting interests with the unnamed
members of the class, and 2) the representative must appear able to vigorously prosecute the
interests of the class through qualified counsel.”” Twelve John Does v. Dist. of Columbia, 117
F.3d 571, 575-76 (D.C. Cir. 1997) (quoting Nat’l Ass’n of Reg’l Med. Programs, Inc. v.
Mathews, 551 F.2d 340, 345 (D.C. Cir. 1976)). Conflicts of interest prevent named plaintiffs
from satisfying the adequacy requirement only if they are “fundamental to the suit and . . . go to
the heart of the litigation.” Keepseagle v. Vilsack, 102 F. Supp. 3d 205, 216 (D.D.C. 2015)
(quoting Newberg § 3:58); Matamoros v. Starbucks Corp., 699 F.3d 129, 138 (1st Cir. 2012).
Furthermore, conflicts will not defeat the adequacy requirement if they are speculative or
hypothetical. Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 430 (4th Cir. 2003).
“[P]otential conflicts over the distribution of damages . . . will not bar a finding of adequacy at
the class certification stage.” Newberg § 3:58.
According to defendant, named plaintiffs are not adequate representatives because
“[t]heir interests in free PACER access for their favored subset of PACER users diverge from the
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interests of those PACER [users] seeking to minimize their costs of PACER use.” (Def.’s Opp.
at 15.) Defendant argues that named plaintiffs’ nonprofit status gives them “the ability to request
PACER fee exemptions.” (Id. at 11.) Defendant further asserts that named plaintiffs are
“interest[ed] in free PACER access to their groups of veterans, elderly and low-income
consumers, and other public interest organizations of concern to the named Plaintiffs.” (Id. at
12.) As a result, defendant reasons, “Plaintiffs appear unwilling to push to reduce those fees
beyond the limit that would affect free access to their favored sub-set of PACER users.” (Id. at
13.)
Defendant greatly exaggerates the relevance of named plaintiffs’ nonprofit status. It is
true that “a court may consider exempting . . . Section 501(c)(3) not-for-profit organizations”
from payment of PACER fees. Electronic Public Access Fee Schedule. However, the Fee
Schedule also instructs courts that applicants must “have demonstrated that an exemption is
necessary in order to avoid unreasonable burdens and to promote public access to information.”
Id. “Courts should not . . . exempt individuals or groups that have the ability to pay the
statutorily established access fee.” Id. “[E]xemptions should be granted as the exception, not the
rule.” Id. (emphasis added). Courts grant exemptions only for access to their own district’s
records, and some districts are more willing than others to grant exemptions. See Christina L.
Boyd & Jacqueline M. Sievert, Unaccountable Justice? The Decision Making of Magistrate
Judges in the Federal District Courts, 34 Just. Sys. J. 249, 255 & n.1 (2013). This Court has
found examples where courts granted exemptions to nonprofit organizations for purposes of
litigation, but those organizations had claimed that payment of PACER fees was a financial
hardship. See, e.g., Orders Granting Request for Exemption, PACER Service Center Exemption
Requests & Orders, No. 3:02-mc-00006 (D. Or. 2015), ECF Nos. 33, 35.
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Named plaintiffs are not exempt from PACER fees and thus share with the other class
members an interest in reducing the fees. The PACER fees that named plaintiffs have paid are
low relative to their annual revenue and other costs of litigation. Because of their multimillion
dollar annual budgets, named plaintiffs have averred that they cannot represent that they are
unable to pay PACER fees, and as a result, they cannot qualify for exemptions. (Tr. 3-4.) Thus,
named plaintiffs must pay PACER fees and accordingly have an interest in reducing those fees.
In fact, the nonprofit organizations who are named plaintiffs in this case make
particularly good class representatives. They are interested in reducing PACER fees not only for
themselves but also for their constituents. As nonprofit organizations, named plaintiffs exist to
advocate for consumers, veterans, and other public-interest causes. (Compl. at ¶¶ 1-3.) The
Alliance for Justice is an association of over 100 public-interest organizations, many of whom
may face the same barriers as named plaintiffs to obtaining fee exemptions. Individual
consumers and veterans may be eligible to apply for exemptions if they are indigent. Electronic
Public Access Fee Schedule. However, courts frequently deny exemptions even to plaintiffs who
have in forma pauperis status. See, e.g., Oliva v. Brookwood Coram I, LLC, No. 14–cv–2513,
2015 WL 1966357, at *2 (E.D.N.Y. April 30, 2015); Emrit v. Cent. Payment Corp., No. 14–cv–
00042, 2014 WL 1028388, at *3 (N.D. Cal. Mar. 13, 2014); Scott v. South Carolina, Civ. No.
6:08-1684, 2009 WL 750419, at *1-*2 (D.S.C. March 18, 2009). Thus, named plaintiffs have
dual incentives to reduce PACER fees, both for themselves and for the constituents that they
represent. In addition, “organizational representatives with experience” can “provide more
vigilant and consistent representation than individual representatives.” In re Pharm. Indus.
Average Wholesale Price Litig., 277 F.R.D. 52, 62 (D. Mass. 2011).
In an attempt to argue that named plaintiffs’ commitment to increasing public PACER
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access actually disqualifies them from being representatives in this suit, defendant asserts that
“[p]laintiffs appear unwilling to push to reduce those fees beyond the limit that would affect free
access to their favored sub-set of PACER users.” (Def.’s Opp. at 13.) This argument assumes
the existence of some class members who would argue that the E-Government Act requires the
Judicial Conference to eliminate exemptions and charge paying users only the fees that are
necessary to provide PACER to them. Not only is such a claim based on sheer speculation, it
also lacks viability given that Congress has explicitly directed the Judicial Conference that the
“fees may distinguish between classes of persons, and shall provide for exempting persons or
classes of persons from the fees, in order to avoid unreasonable burdens and to promote public
access to such information.” 28 U.S.C. § 1913 note. Even if a claim to eliminate exemptions
were viable and not speculative, it would not create a conflict of interest that would prevent
named plaintiffs from being adequate representatives, for a claim to eliminate exemptions would
be independent from the claim in this case (i.e., that the E-Government Act prevents the
Judiciary from collecting PACER fees that are not necessary to fund PACER). Named
plaintiffs’ pursuit of this class action will not interfere with other plaintiffs’ ability to pursue a
claim for elimination of exemptions. For all of these reasons, whether named plaintiffs lack
interest in challenging the current exemption policy is irrelevant to their ability to serve as
representatives in this suit.
Regarding the adequacy of class counsel, defendant argues only that the divergence in
interests between named plaintiffs and other class members prevents named plaintiffs’ counsel
from adequately representing all class members. (Def.’s Opp. at 15.) The Court rejects this
argument for the same reasons that it has already rejected defendant’s argument that named
plaintiffs have a conflict of interest with other class members. There is no dispute about the
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competency of class counsel. (See Pls.’ Mot., Attachments 1-3; Def.’s Opp. at 15.) In sum,
named plaintiffs and their counsel satisfy the adequacy requirement.
C. Rule 23(b) Requirements
Rule 23(b) describes three types of class action and requires every class action to match
one or more of the three types. Fed. R. Civ. P. 23(b); Newberg § 4:1. Plaintiffs argue that their
proposed class can be certified under 23(b)(1) or 23(b)(3).
1. Rule 23(b)(1)
In a 23(b)(1) class action, “prosecuting separate actions by or against individual class
members would create a risk of: (A) inconsistent or varying adjudications with respect to
individual class members that would establish incompatible standards of conduct for the party
opposing the class; or (B) adjudications with respect to individual class members that, as a
practical matter, would be dispositive of the interests of the other members not parties to the
individual adjudications or would substantially impair or impede their ability to protect their
interests.” Fed. R. Civ. P. 23(b)(1). According to the Advisory Committee notes to Rule 23, an
action “to compel or invalidate an assessment” is the type of class action contemplated in Rule
23(b)(1). Fed. R. Civ. P. 23(b)(1) advisory committee’s note to 1966 amendment.
In their motion, plaintiffs argue that Rule 23(b)(1) permits certification of this class
action because plaintiffs’ complaint “seeks equitable relief,” and inconsistent results in separate
actions for equitable relief could force the Judiciary into a conflicted position. (Pls.’ Mot. at 18.)
Plaintiffs’ complaint does ask the Court to “[d]eclare that the fees charged for access to records
through PACER are excessive.” (Compl. at 15.) However, at the motion hearing, plaintiffs
stated that the declaration they are requesting is merely a step on the way to granting monetary
relief, it is “not . . . equitable relief,” and it “wouldn’t bind anyone.” (Tr. 12-13.) Indeed,
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plaintiffs acknowledged that they “couldn’t seek equitable relief” under the Little Tucker Act.
(Id.; see also Doe v. United States, 372 F.3d 1308, 1312-14 (Fed. Cir. 2004); Bobula v. U.S.
Dep’t of Justice, 970 F.2d 854, 859 (Fed. Cir. 1992).) Therefore, the Court will not certify the
class under Rule 23(b)(1).
2. Rule 23(b)(3)
To certify a class under Rule 23(b)(3), a court must find “that the questions of law or fact
common to class members predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Plaintiffs argue that “[t]he sole
individual issue—calculation of each class member’s recovery . . . is ministerial” and therefore
the common legal questions predominate. (Pls.’ Mot. at 19.) In opposition, defendant contends
that “the Court will have to assess whether and in what degree the individual Plaintiffs were able
to secure free pages in excess of the 30 pages for which they were charged for lengthy
documents. If the individual plaintiff’s downloads of these documents operate to decrease the
per page cost to below that sought by Plaintiffs, then there will be no liability to the class-
member.” (Def.’s Opp. at 20.) The Court does not share defendant’s concern, because
plaintiffs’ theory of liability is that the fee schedule itself violated the E-Government Act, not
that charges to individual plaintiffs violated the Act when they amounted to more than the cost of
distribution to those particular plaintiffs. (See Pls.’ Reply at 6, ECF No. 17.) If plaintiffs prevail
on their common legal theory that the Judiciary was required to set a lower rate that
corresponded to PACER’s funding needs, defendant would be liable to any class member who
paid the illegal higher rate. Calculating the amount of damages would be ministerial because it
would be proportional to the fees that plaintiffs paid, rather than dependent upon the types of
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documents that they obtained. Therefore, the Court finds that common questions predominate.
Although defendant does not use the word “superiority,” it also objects that “class action
litigation was not intended to facilitate two class actions, which would result if this case proceeds
as a class and the Fisher case is similarly prosecuted.” (Def.’s Opp. at 21.) This Court has
already rejected the argument that Fisher should bar this suit, explaining that the suits make
different claims. NVLSP, 2016 WL 7076986, at *3. Besides, defendant’s argument has nothing
to do with the superiority of the class action vehicle, as opposed to individual actions.4
Allowing this action to proceed as a class action is superior to requiring individual
actions, both for reasons of efficiency and to enable individuals to pursue small claims. As the
Supreme Court has explained, “‘[t]he policy at the very core of the class action mechanism is to
overcome the problem that small recoveries do not provide the incentive for any individual to
bring a solo action prosecuting his or her rights.’” Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 617 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997)).
In sum, the Court will certify the class under Rule 23(b)(3), but it in no way resolves the
merits of plaintiffs’ challenge to the PACER fee schedule.
III. NOTICE TO CLASS MEMBERS
“For any class certified under Rule 23(b)(3), the court must direct to class members the
best notice that is practicable under the circumstances, including individual notice to all members
who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). In their motion
for class certification, plaintiffs proposed a class-notice plan involving “email notice . . . to each
class member using the contact information maintained by the government” for PACER users.
(See Pls.’ Mot. at 20.) Plaintiffs “request that the Court direct the parties to file an agreed-upon
4
Furthermore, the plaintiff in Fisher has not yet moved for class certification. (Tr. 9.)
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proposed form of notice (or, if the parties cannot agree, separate forms of notice) within 30 days
of the Court’s certification order, and direct that email notice be sent to the class within 90 days
of the Court’s approval of a form of notice.” (Id.) With no opposition from defendant, the Court
will grant this request.
CONCLUSION
Plaintiffs’ motion for class certification is granted, with minor modifications to the
proposed class definition. A separate Order accompanies this Memorandum Opinion.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: January 24, 2017
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