Federal Circuit Seems to Look Askance at Challenge of Pacer Fees Authority

DOJ's contention the U.S. Court of Appeals for the Federal Circuit lacks jurisdiction under the Little Tucker Act to hear a case on Pacer usage fee legality found some receptivity among part of a three-judge Federal Circuit panel hearing oral argument Monday. Judges challenged plaintiff/appellant arguments Pacer fees can't be used to cover the costs of electronic records keeping. Plaintiff/appellant lawyer Deepak Gupta of Gupta Wessler told us a decision likely is months away.

Plaintiff-appellants National Veterans Legal Services Program, National Consumer Law Center and Alliance for Justice are challenging use of Pacer fees to fund some non-Pacer expenses (see 1901170031). They are appealing a 2018 ruling (in Pacer) by U.S. District Judge Ellen Huvelle of the District of Columbia about the identified amount of Pacer overcharges/ DOJ is cross-appealing Huvelle's denial of the governments' motion to dismiss for lack of jurisdiction.

Judge Todd Hughes and Gupta disagreed whether Pacer fees could cover the marginal costs of providing a particular electronic documents and the costs of the underlying electronic infrastructure. Gupta said the Supreme Court has been clear that unless Congress says otherwise, fees can be only for specific costs. He said the fees levied under the Freedom of Information Act are a useful comparison since those can be charged only for costs of retrieving sought information. He said government often wants to build overhead costs into fees, but courts have drawn a line on that. DOJ Civil Division lawyer Alisa Klein said it's common for fees to be used toward salaries and other costs, not just marginal costs of the government service itself.

Hughes said that doesn't answer whether Congress also says fees could be levied for the costs of providing access to information, in addition to the information. The statute "is not a model of clarity" but seems to indicate underlying infrastructure costs also are recoverable via fees, the judge said. Gupta urged the panel to interpret the statute and remand the case to the lower court so it can seek clarity on expenses beyond marginal costs and flesh out damages issues.

Klein and the court also debated illegal extraction fees. Hughes questioned whether determining how much should be paid back if there was a Pacer fee overcharge is as simple as ascertaining an overall overcharge amount and then crafting a formula. Klein disputed that, saying knowing hypotheticals is impossible.

Klein said Congress didn't intend for individual Pacer users to make damages claims and didn't put the court in the position of going back over judiciary expenditures. Judge Raymond Clevenger resisted the idea of the judiciary not having such oversight ability. Klein said such oversight is the role of Congress in its budget-making capacity. Clevenger said it's not likely to care much about Pacer fees as long as it doesn't have to appropriate money to court operations.

Judge Alan Lourie asked no questions.