[00:00:00] Speaker 02:
Morning again.

[00:00:19] Speaker 02:
The last case this morning is National Veterans Legal Services, National Consumer Law Center, Alliance for Justice versus the United States, 2019, 1081 and 83.

[00:00:38] Speaker 05:
This interlocutory appeal properly presents just two legal questions, one jurisdictional and one on the merits.

[00:00:50] Speaker 05:
And although the government tries to bring in new arguments under the rubric of jurisdiction, I think the only question that properly goes to subject matter jurisdiction is this.

[00:01:00] Speaker 05:
When a plaintiff who has paid a user fee to the government challenges that fee as an illegal exaction in contravention of a federal statute, is that a claim for which the Tucker Act provides jurisdiction?

[00:01:14] Speaker 05:
And the overwhelming answer offered by the Supreme Court's and this Court's precedent

[00:01:18] Speaker 05:
stretching back over a century, is yes.

[00:01:22] Speaker 05:
It is horn book law that, as this court put it in Ero Linnaeus, that the Tucker Act provides jurisdiction to recover an illegal exaction when the exaction is based on an asserted statutory power.

[00:01:35] Speaker 05:
In fact, we don't know of any case, I don't think the government has identified one,

[00:01:40] Speaker 05:
in which this court has held that it lacks jurisdiction to determine whether a government-imposed fee is unlawful and should be returned to those who paid it.

[00:01:50] Speaker 05:
Now, in this appeal, the government attempts to manufacture doubt on this score only by plucking some dicta, we think, out of context from this court's decision in Norman.

[00:02:10] Speaker 04:
stuff interspersed between the operative language is a little hard to parse for me, but as far as I can tell, it authorizes a digital conference to prescribe fees for the public accessing information that's available through automatic

[00:02:30] Speaker 04:
data processing.

[00:02:30] Speaker 05:
Right, there's no dispute on that score, Your Honor, but I think... So here's the question I have, though.

[00:02:35] Speaker 04:
If at the time, and I know that a lot's going on back and forth since this was first enacted, there was amendments the government's doing, or the Judicial Conference, sorry, I'm going to say the government, unfortunately, instead of the Judicial Conference, just because I'm used to saying that, and I understand there's a difference here.

[00:02:51] Speaker 04:
The Judicial Conference has gone through many iterations of this electronic CMECF and all that kind of stuff.

[00:02:57] Speaker 04:
Right.

[00:02:57] Speaker 04:
Suppose hypothetically, at the time this was enacted, the judiciary was being really, really slow about providing electronic access.

[00:03:06] Speaker 04:
And even though all the judges and the clerk's offices and stuff were writing stuff on word processing equipment and everybody knew it was there, they refused to provide any electronic access.

[00:03:17] Speaker 04:
So Congress, in an attempt to prod them, said,

[00:03:21] Speaker 04:
And we know you have this stuff available electronically.

[00:03:25] Speaker 04:
We're going to let you have fees to recover the cost of providing it.

[00:03:30] Speaker 04:
Do you think those fees would include more than just the marginal cost of providing the information?

[00:03:35] Speaker 04:
Would they include

[00:03:36] Speaker 04:
If the courts had never done it before, the infrastructure to do that, the servers and all the like, the interfaces on the internet and whatever else was necessary.

[00:03:48] Speaker 05:
Right.

[00:03:49] Speaker 05:
I think there would be a stronger case, certainly, in that scenario.

[00:03:54] Speaker 05:
And it's a little hard to know, because I don't know exactly what your hypothetical statute looks like.

[00:03:59] Speaker 05:
And I think that matters.

[00:04:00] Speaker 03:
Well, it looks like this one.

[00:04:01] Speaker 03:
That's the point.

[00:04:02] Speaker 03:
The same statute.

[00:04:03] Speaker 03:
But I mean, in the very beginning, when someone had the ability

[00:04:07] Speaker 03:
communicate with the court and say, please send me an electronic copy of the brief and so and so.

[00:04:13] Speaker 03:
And then whoever took the information, the court said, well, we don't have electronic.

[00:04:17] Speaker 03:
We've got it in paper.

[00:04:17] Speaker 03:
We have to digitize it.

[00:04:20] Speaker 03:
So we have to go to the expense of converting paper into digital information.

[00:04:25] Speaker 03:
And then we can send it back to you.

[00:04:27] Speaker 03:
So in the very beginning, would it have been reasonable for the judicial conference to have said, we're going to recoup that creation cost?

[00:04:37] Speaker 05:
It certainly would have been more reasonable than it would be after the amended statute where the Congress said, we see that you're charging more than the marginal cost of disseminating this information and essentially cut it out.

[00:04:49] Speaker 05:
Please charge only what's necessary.

[00:04:51] Speaker 03:
But I think when you... But isn't it true that in the very beginning, very few courts had digitized information?

[00:04:58] Speaker 03:
It started in Northern District of Ohio.

[00:04:59] Speaker 03:
That's right.

[00:05:00] Speaker 03:
So it's very interesting because the PACER user who's coming in electronically in dial-up

[00:05:07] Speaker 03:
to the court saying, please send me this digital information.

[00:05:10] Speaker 03:
The court said, we don't have digital information.

[00:05:12] Speaker 03:
We'll create some for you.

[00:05:14] Speaker 03:
So the burden in the beginning was on the government to make the cost to build up an electronic database that they could easily and cheaply transmit backwards.

[00:05:24] Speaker 03:
Once EMC ECF comes along, the burden goes on to the

[00:05:29] Speaker 03:
private practitioners and whatnot to create the electronic information that they ship to the courts, that the courts save and then ship back.

[00:05:39] Speaker 05:
Right.

[00:05:39] Speaker 05:
So I think it's important when you're trying to interpret the statute to remember that the Supreme Court has provided a jurisprudence for how to do statutory interpretation where you have a use or a fees statute.

[00:05:52] Speaker 05:
And what the Supreme Court has said there is that the charge, unless Congress specifically directs otherwise, and there's a clear statement requirement, the charge is for a specific service to a specific individual for a specific cost.

[00:06:10] Speaker 04:
But the problem is, to me, none of that solves the problem, which is what was Congress talking about when they said you can prescribe fees for access to information.

[00:06:22] Speaker 04:
Did it just mean the fees involved in sending the information back to you, or did it mean the fees, as at least Judge Huvel have in part, for building out the underlying infrastructure that made that possible?

[00:06:34] Speaker 05:
Well, remember that the class period here starts in 2010, and the statute that we're dealing with, the amended statute, was in 2002.

[00:06:41] Speaker 05:
By the time you get to 2010, the infrastructure is already created.

[00:06:48] Speaker 03:
The infrastructure has been created, but it needs to be maintained and updated.

[00:06:53] Speaker 03:
We constantly are shutting down our EMCCF program here in the court to make adjustments, and that costs money to do that.

[00:07:00] Speaker 05:
So let me, I want to answer the question, let me just first say there are categories of expenses here that are neither CME-CF or PACER, right?

[00:07:09] Speaker 05:
The funds are being used for, you know, notices to crime victims, flat screens for jurors.

[00:07:15] Speaker 03:
The four categories that were identified.

[00:07:17] Speaker 04:
Let me make it clear.

[00:07:21] Speaker 04:
Maybe my hypothetical is you're afraid that I'm trying to trap you.

[00:07:23] Speaker 04:
I am not.

[00:07:24] Speaker 04:
I am trying to draw the line between your argument, which is all the way just the marginal cost of providing access, and Judge Hubell's middle position.

[00:07:33] Speaker 04:
I understand the government's going to go further and go the other way.

[00:07:36] Speaker 04:
They can argue that when they get up.

[00:07:38] Speaker 04:
It is not a model of clarity in terms of statutory writing.

[00:07:44] Speaker 04:
I mean, we see this all the time, obviously.

[00:07:47] Speaker 04:
But why is Judge Hubell wrong that the underlying, which maybe you disagree with this characterization, but what I agree to her opinion in saying is,

[00:07:58] Speaker 04:
the underlying infrastructure costs that are attributable to providing access are also recoverable, not just as you said in the argument.

[00:08:07] Speaker 05:
What's wrong with that argument?

[00:08:08] Speaker 05:
What's wrong with that argument is all bureaucracies are going to want to do that with user fees.

[00:08:13] Speaker 05:
And what the Supreme Court's and the lower court's user fees jurisprudence is designed to do is to hold the line and say, look, you can charge for, as the Supreme Court put it in New England power,

[00:08:25] Speaker 05:
And a reasonable charge is made to an identifiable recipient for a measurable unit of government service.

[00:08:32] Speaker 04:
And I think that's the marginal cost.

[00:08:36] Speaker 04:
It's not just the marginal cost, though.

[00:08:39] Speaker 04:
I mean, it doesn't answer the question of whether the portion of the underlying infrastructure that supports public access versus what we do internally as a judiciary is also properly charged.

[00:08:51] Speaker 05:
Well, one good analogy, I think, is the Freedom of Information Act.

[00:08:54] Speaker 05:
Every agency charges people fees for getting records under the Freedom of Information Act.

[00:09:00] Speaker 05:
What they can charge is the marginal cost of disseminating that information, copying it, searching for it, making it available.

[00:09:07] Speaker 05:
What they cannot do is attribute the cost of collecting that information or maintaining a records room and then putting that on the users.

[00:09:16] Speaker 05:
I think a similar line can be drawn here, but I also think...

[00:09:20] Speaker 04:
It's a good analogy, but unless I see the statutory language and see what it's actually saying you can and can't collect as FOIA fees, it doesn't answer the question.

[00:09:30] Speaker 05:
And I understand the frustration here, because Congress said, to the extent necessary, reimburse the cost, and then you have to wonder what is the cost.

[00:09:37] Speaker 04:
Well, that's why I asked you the initial hypothetical, which is, if there was none of this infrastructure in place, and Congress said, look, judiciary, go out and do this, and you can get fees to compensate for this, because we don't want to give you a general appropriation, then wouldn't it seem natural to read this as allowing for fees to cover both the marginal cost and the infrastructure?

[00:09:58] Speaker 05:
In that circumstance, they would have a better argument.

[00:10:01] Speaker 05:
But when you get to 2002 and Congress amends the statute to say, you know, this is all up and running, right, we see that you are charging more than the marginal cost of disseminating this information.

[00:10:13] Speaker 05:
We want you to move to a free structure that makes this information freely available to users to the extent possible.

[00:10:20] Speaker 03:
But they didn't say you can only get your marginal cost.

[00:10:25] Speaker 03:
They said to the extent necessary.

[00:10:26] Speaker 05:
Well, the marginal cost language is in the Senate report, not in the text of the statute.

[00:10:30] Speaker 03:
But I think it informs what... Why does that govern?

[00:10:35] Speaker 05:
Well, I think for those who use legislative history to inform their understanding of what the text means, when Congress said, you can charge only to the extent necessary, I think that is an indication of what Congress meant.

[00:10:48] Speaker 05:
And it is consistent.

[00:10:49] Speaker 04:
Sure, but I mean, look, the legislative history here is helpful to you in some places and is helpful for the government in other places, because the House report early on says that one of the things that will be helpful to enhance access to the public is

[00:11:03] Speaker 04:
This is from the 1996 House Report, is enhancements for enhanced use of the internet and electronic bankruptcy filings and things like that.

[00:11:13] Speaker 04:
When I read enhanced use of the internet, it sounds to me like enhanced capabilities to have better portals and things like that, which again, it sounds like infrastructure rather than just here is a way to get these documents.

[00:11:27] Speaker 05:
Well, it's true that Congress is encouraging the whole point of the E-Government Act was to encourage the courts to be more transparent in various ways.

[00:11:34] Speaker 05:
But I think the Senate report is the only time you're actually seeing language that's pegged to what does only to the extent necessary mean.

[00:11:42] Speaker 05:
Let me also suggest if you're looking for something like a middle ground position between Judge Huvel's view and our view, one way to handle this is you have an interlocutory appeal here.

[00:11:52] Speaker 05:
You're being asked to interpret the statute.

[00:11:55] Speaker 05:
And I think what you can do is

[00:11:57] Speaker 05:
interpret the statute, but then leave it on remand for the government to be able to argue that within this CMACF bucket, you know, we don't really know, there's been no discovery, we don't know all of what falls under that bucket.

[00:12:09] Speaker 05:
The government could argue we need some of this is absolutely necessary to disseminate these records to users.

[00:12:17] Speaker 05:
We don't think that's the case.

[00:12:19] Speaker 03:
We don't have the nitty-gritty in the numbers.

[00:12:23] Speaker 03:
Correct.

[00:12:23] Speaker 03:
So I mean, when they talk about

[00:12:25] Speaker 03:
you know, the cost of maintaining the CMECF, I don't know what that means.

[00:12:31] Speaker 03:
If it means simply expenditures that the court can identify, that unless we make these expenditures, this service will be impaired, or the service will not be as good as the customers want it.

[00:12:45] Speaker 03:
So enhancement, somebody comes along and says, I can figure out a way to make PACER

[00:12:50] Speaker 03:
requesters who ask for information can get it demonstrably faster.

[00:12:56] Speaker 05:
Right.

[00:12:56] Speaker 03:
And that's something that the user wants.

[00:12:59] Speaker 03:
And if it costs something to do that, it would seem to be reasonable to allow the fee to embrace that cost.

[00:13:04] Speaker 05:
Yeah.

[00:13:04] Speaker 05:
And I mean, I understand all you have here.

[00:13:06] Speaker 03:
If the cost is for decorating the office of my EMECF officer in the court, I'm not so sure that that qualifies.

[00:13:15] Speaker 05:
Right.

[00:13:16] Speaker 03:
And we know that- We don't know from the record that Judge Huvel is going to get to do that, right?

[00:13:20] Speaker 05:
Right, I think that's the best course, is to send the case back down and on remand, let's see where... With a clear explication as to what we're talking about in terms of...

[00:13:31] Speaker 03:
cost beyond what you call marginal cost, and what the government may try to tell us on its side what it thinks that bundle looks like.

[00:13:40] Speaker 05:
Yes, Your Honor, because all we have here right now is just a spreadsheet, and so I don't see how you have the tools available to you to really discern what's behind that.

[00:13:48] Speaker 05:
But we do know that CM and ECF are sort of two different things that have been merged.

[00:13:53] Speaker 03:
CM... You can't have PACER without it, right?

[00:13:57] Speaker 05:
Well, you could.

[00:13:58] Speaker 03:
I mean... What's a PACER user want?

[00:14:02] Speaker 05:
A PACER user wants to download PDF documents of court records, right?

[00:14:08] Speaker 02:
Which have been filed through electronic means.

[00:14:11] Speaker 05:
Which have been filed through electronic means in the same way that, you know, if any agency runs a records room, there's some process for gathering those records.

[00:14:18] Speaker 03:
Everybody now creates a digital record and sends it to us and we store it.

[00:14:23] Speaker 03:
And then we massage it for judges getting access to it internally or outside people getting access to it.

[00:14:31] Speaker 05:
Correct.

[00:14:32] Speaker 05:
And all of that benefits, there are lots of components of CMECF that benefit the courts internally.

[00:14:37] Speaker 05:
There are case management systems just for the courts.

[00:14:40] Speaker 05:
And there's also features that are for the convenience of litigants.

[00:14:43] Speaker 03:
And all of that is known to Congress at the time Congress learned that CMECF was going to be used and PACER would have access to it.

[00:14:51] Speaker 05:
Correct.

[00:14:51] Speaker 03:
So the Congress clearly knows that there are beneficiaries to this structure for which a fee is charged other than the users.

[00:15:01] Speaker 05:
That's right.

[00:15:02] Speaker 05:
And Congress didn't say, you know, you may charge this fee to the users and use it for things that benefit other people.

[00:15:08] Speaker 02:
Counsel, you've just about used your rebuttal time.

[00:15:12] Speaker 02:
Let's hear from the government, and we'll give you back three minutes.

[00:15:16] Speaker 02:
Thank you.

[00:15:20] Speaker 02:
Ms.

[00:15:20] Speaker 02:
Klein.

[00:15:23] Speaker 01:
May it please the court?

[00:15:25] Speaker 01:
I know the merits are interesting, but I'd like to start with jurisdiction, because we don't think Congress authorized this court or Judge Huvel to be engaging the merits in this way.

[00:15:34] Speaker 01:
And I can be brief, but it's extremely important to understand the three central features of this statutory scheme that show that Congress did not impliedly create a damages action for an individual pacer user.

[00:15:48] Speaker 01:
First, whose decisions are at issue here?

[00:15:51] Speaker 01:
They're the decisions of part of the Judiciary, the Judicial Conference chaired by the Chief Justice.

[00:15:57] Speaker 01:
And Congress exempted the Judicial Conference, Judiciary at large, from review under the APA.

[00:16:05] Speaker 01:
But not from the Tucker Act.

[00:16:06] Speaker 04:
There's a little Tucker Act.

[00:16:07] Speaker 01:
We're now talking about, that's correct, but we're talking about whether to infer a damages remedy that is not expressed.

[00:16:16] Speaker 01:
And to get so, as with any statutory interpretation question, you look at all of the relevant indicia.

[00:16:22] Speaker 04:
Let me ask you a hypothetical.

[00:16:24] Speaker 04:
Instead of giving complete discretion to the judiciary to set the fees, Congress had said, we want all this to happen.

[00:16:32] Speaker 04:
You charge.

[00:16:34] Speaker 04:
10 cents per page or whatever the actual cost to you, whichever is lower.

[00:16:42] Speaker 04:
Is that a statutory charge that would lead to an illegal exaction if the court implemented it improperly?

[00:16:52] Speaker 01:
Generally speaking, no.

[00:16:53] Speaker 01:
I mean, when Congress says to the judicial... Because generally speaking, these fee structures, there are administrative billing mechanisms, but Congress hasn't set up a damages remedy.

[00:17:05] Speaker 01:
So for example... Wait, wait, wait, wait.

[00:17:07] Speaker 04:
We're saying that if Congress enacts a statute setting a fee, a specific fee, and says, government, you can collect XML.

[00:17:18] Speaker 04:
And just put aside, if you have any separation of powers concerns, just assume we're talking about an executive branch agency.

[00:17:25] Speaker 04:
I don't see any difference between the two for this kind of claim myself.

[00:17:29] Speaker 04:
But if it makes it easier for you to answer, assume it's an executive branch agency.

[00:17:33] Speaker 04:
And that executive branch agency goes out and collects double.

[00:17:37] Speaker 04:
what that statute is.

[00:17:38] Speaker 04:
Do you think Congress has to actually say in that statute that if the agency collects more, you can sue under the Tucker Act?

[00:17:45] Speaker 01:
Well, we do think it would be different per an executive branch agency, that the normal avenue would be to challenge the agency's action under the APA and get the money back from the agency's budget.

[00:17:56] Speaker 01:
not an implied damages remedy against the United States.

[00:18:00] Speaker 04:
But that's a typical illegal-exaction claim.

[00:18:02] Speaker 01:
Well, there's... Let me identify the three differences here from what we'll call the typical illegal-exaction claim.

[00:18:10] Speaker 01:
First is we're talking about a decision-maker that is... I mean, I don't...

[00:18:15] Speaker 04:
I think we're more interested in merits, and I don't want to run too much of this.

[00:18:18] Speaker 04:
But what you seem to be arguing is something that the government has continuously argued in all of these Tucker Act and Little Tucker Act cases is that even if the case involves money at some level, you have to read a further intent into the statute or the contract or whatever is the money mandating supporting piece of jurisdiction.

[00:18:41] Speaker 04:
to allow the court the court of federal claims or the district courts and a little Tucker Act exercise jurisdiction and haven't we routinely

[00:18:50] Speaker 04:
disagree with the government on every single one of those cases if it is a case where the underlying instrument whether it's a contract or a statute involves money.

[00:19:02] Speaker 04:
Sure there are outlier cases like Norman where it's about land as opposed to an actual statute for money and I can think of some other Tucker Act cases involving contracts that weren't actually about money but when it's about money isn't the implied remedy for

[00:19:19] Speaker 04:
wrongfully paid over money, either a breach of contract claim or an implied or an illegal exemption claim.

[00:19:25] Speaker 01:
Well, for Cyprus Amex, which was about money, taxes illegally collected, the court correctly set out the inquiry, which is you have to look at the substantive law to determine whether it was intended to provide monetary compensation.

[00:19:39] Speaker 01:
That was this court unanimously in Cyprus Amex.

[00:19:42] Speaker 01:
But here, even if you use the narrower jurisprudence of legal exaction, the claimant has to be able to plead and then show

[00:19:52] Speaker 01:
that the particular amount sought the value was the particular amount was illegally exacted and because of the way this statute is written which is in aggregate terms

[00:20:02] Speaker 01:
that do not, like the old shipping cases, allow the determination of what a correct fee would be.

[00:20:08] Speaker 01:
It is impossible for any PACER user to make that showing.

[00:20:13] Speaker 01:
And remember, this is a class action.

[00:20:15] Speaker 01:
It's just a collection of individual claims.

[00:20:18] Speaker 01:
And as defined by plaintiff, each download for which a charge was paid.

[00:20:23] Speaker 04:
That sounds like a damages question to me.

[00:20:25] Speaker 04:
We know that there's a class of people that have paid, at least under their theory, if we agree with them on the merits, there are a class of people that have paid more money than they should.

[00:20:34] Speaker 04:
How much they should get back depends on the court determining how much is in excess and then coming up with some kind of formula, doesn't it?

[00:20:44] Speaker 01:
No, Your Honor.

[00:20:44] Speaker 01:
So let's just imagine an individual pacer user says, you know, in July 12, 2014, I paid a dollar to download a document.

[00:20:55] Speaker 01:
Even if you imagine certain expenditures were not made under the statute, okay, whether they're judge you bells categories, whatever categories they are.

[00:21:03] Speaker 01:
If you look at actually the substantive statutes that govern the judicial conferences fees and expenditures.

[00:21:09] Speaker 01:
First, you see.

[00:21:11] Speaker 01:
under 28 USC 612, you can carry forward surpluses, which they do routinely, you know, $40 million a year.

[00:21:18] Speaker 01:
This is because IT projects are not conducted within a fiscal year.

[00:21:23] Speaker 01:
So even if you imagined, okay, we're just going to not spend that money, whether it's on, you know, web-based juror services, whatever,

[00:21:31] Speaker 01:
They could carry it forward.

[00:21:33] Speaker 03:
Second.

[00:21:33] Speaker 03:
What's that got to do with whether or not a portion of the fee was illegal?

[00:21:37] Speaker 01:
Because they could say.

[00:21:38] Speaker 03:
The fact that they can carry it forward and use it for something else.

[00:21:41] Speaker 01:
They wouldn't change the fees.

[00:21:42] Speaker 01:
So they're just, they're saying like, look, okay, we're not expending.

[00:21:45] Speaker 03:
The only time they're going to change the fee is if the court tells them that a portion of the fee is illegal.

[00:21:50] Speaker 01:
This is now, it's getting circular, but there is.

[00:21:53] Speaker 03:
Judge Ubell won't have any trouble at all at the end of the day.

[00:21:57] Speaker 03:
giving a precise number to say what portion of the fee was illegal.

[00:22:00] Speaker 01:
No, actually she will.

[00:22:01] Speaker 01:
I mean, what the certification order that she issued contemplated was an extended period, a lengthy period of fact and expert discovery, additional summary judgment briefing, and potentially a bench trial to try to answer the hypothetical question of what

[00:22:16] Speaker 01:
and any particular user would have paid for a download if certain expenditures hadn't been made.

[00:22:22] Speaker 01:
That is unknowable.

[00:22:23] Speaker 01:
We're not going to depose, you know, the Chief Justice and the judges of the judicial conference to say, if you hadn't used this money, you know, for the juror services back in 2014, well, would you have carried forward a surplus?

[00:22:35] Speaker 01:
Might you have accelerated the enhancements to PACER and CMECF?

[00:22:39] Speaker 01:
All right, or let's imagine you would change the fees somehow.

[00:22:44] Speaker 01:
Given the way these statutes are written, you don't know how.

[00:22:47] Speaker 01:
They could have done what they actually did quite recently as of January 1st, which was double the fee waiver per quarter.

[00:22:54] Speaker 01:
So it's now, if you don't accrue a fee and up to $30, you don't owe any money.

[00:22:59] Speaker 01:
They could have said, we're going to expand the individualized exemptions.

[00:23:04] Speaker 01:
This statute is so far from what we talked about as the paradigmatic illegal exacting claim.

[00:23:09] Speaker 04:
Honestly, I still don't understand why this is a damages question.

[00:23:13] Speaker 04:
The judiciary should be able to figure out, here's how much it spends on these projects.

[00:23:18] Speaker 04:
Here's how much of it comes from general appropriations.

[00:23:21] Speaker 04:
Here's how much it comes from fees.

[00:23:23] Speaker 04:
And the court can say, here are the activities that you're allowed to spend fees on and how you parse it.

[00:23:29] Speaker 04:
And the excess that comes from fees over that that they're allowed to incur fees for is the cumulative amount that was an illegal exemption.

[00:23:38] Speaker 04:
And how you divvy up that among the class, again, seems like a damages calculation to me.

[00:23:44] Speaker 01:
No, because it goes to the basic point that Congress did not mean to give an individual PACER user a damages remedy that lets the PACER user come into court and say, look, imagine just an individual claim.

[00:23:57] Speaker 01:
Because on their theory, this happens to be a class, but someone could come in tomorrow.

[00:24:00] Speaker 02:
Why don't you address the merits finally?

[00:24:03] Speaker 01:
I will address the merits, but I want to make very clear that we do not believe Congress put this court in the position

[00:24:08] Speaker 01:
of going back over the judiciary's internal accounting and expenditures and compelling the judiciary to produce documents that are exempt under FOIA in aid of the inquiry that the district court began to undertake in this case.

[00:24:22] Speaker 03:
And instead authorize judicial Congress to charge a fee, even if it was knowingly, blatantly illegal, and to collect the fee and to have absolutely no remedy.

[00:24:33] Speaker 01:
Well, to be clear, we're talking about the judiciary.

[00:24:37] Speaker 03:
That's your position.

[00:24:38] Speaker 01:
No, Your Honor, but we're talking about the judiciary.

[00:24:40] Speaker 03:
Excuse me.

[00:24:41] Speaker 03:
Don't interrupt me, please.

[00:24:43] Speaker 03:
Let's assume that the initial conference says, you know, guess what?

[00:24:46] Speaker 03:
This is a great argument.

[00:24:47] Speaker 03:
We can charge everything we want for the fee.

[00:24:51] Speaker 03:
It has nothing to relate to anything.

[00:24:53] Speaker 03:
It has no relationship at all to the cost of supplying things electronically.

[00:25:00] Speaker 03:
We're going to charge for the curtains at the Supreme Court, the Chief Justice's new chair, and all the rest.

[00:25:05] Speaker 03:
Stick it in the fee.

[00:25:07] Speaker 03:
And we told the whole world we're doing that.

[00:25:09] Speaker 03:
We're redecorating all judges' offices with gold plate.

[00:25:14] Speaker 03:
And they do it.

[00:25:15] Speaker 03:
And they put it on the front page of the Post.

[00:25:17] Speaker 03:
And there's absolutely no remedy.

[00:25:19] Speaker 01:
It's not that there's no oversight.

[00:25:22] Speaker 03:
There's no remedy.

[00:25:22] Speaker 03:
So I'm just telling you, that's what your position is.

[00:25:25] Speaker 01:
Your Honor, by statute, the fee schedule, when it's changed, has to go to Congress in advance.

[00:25:30] Speaker 01:
Congress, every year, by statute, requires a detailed

[00:25:35] Speaker 01:
description of the expenditures.

[00:25:36] Speaker 03:
Well, what Congress has shown in this case is that they love the fees because it means they don't have to appropriate.

[00:25:42] Speaker 03:
So we don't have to appropriate for the curtains for the Chief Justice, the gold-plated toilet.

[00:25:47] Speaker 03:
We don't have to appropriate for that.

[00:25:48] Speaker 03:
Great.

[00:25:49] Speaker 03:
Let the PACER users, what is it?

[00:25:51] Speaker 03:
It's three big users and a bunch of law firms.

[00:25:55] Speaker 03:
So let me ask you this question on the merits, just to test where you are.

[00:25:58] Speaker 03:
You know that the Supreme Court has a cafeteria.

[00:26:01] Speaker 03:
That's not a bad place to eat, although Justice Gorsuch doesn't like the pizza now.

[00:26:06] Speaker 03:
So let's assume that on PACER now, you can hook into PACER and you can get the current menu for the Supreme Court's cafeteria.

[00:26:17] Speaker 03:
And the Judicial Conference decides that the cost of building up that electronic information should be passed on to PACER users.

[00:26:27] Speaker 03:
because it's available electronically.

[00:26:29] Speaker 03:
Would it be appropriate to have that cost in the fee, yes or no?

[00:26:34] Speaker 01:
The Judicial Conference has limited... Yes or no on my hypothetical?

[00:26:38] Speaker 03:
Again... The cost of the menu, preparing the menu for the Supreme Court, is that or is that not an appropriate pace or fee cost?

[00:26:46] Speaker 03:
We're not saying the Judicial Conference would ever do this, but the statute says... You have a lot of trouble answering questions.

[00:26:53] Speaker 03:
generally in life or just when you come in front of the court?

[00:26:56] Speaker 01:
The statute says for access to information available through automatic data processing equipment.

[00:27:02] Speaker 03:
My hypothetical covers that.

[00:27:04] Speaker 01:
That information would provide access available through automatic data processing equipment, but the next sentence also says you should be developing a fee structure that promotes public access and exempts persons and lessens persons for free.

[00:27:21] Speaker 03:
No, there are people who go up there and want to know what to eat the day they go.

[00:27:24] Speaker 03:
and make the order electronically.

[00:27:25] Speaker 03:
You can do all that now on Pacer.

[00:27:28] Speaker 01:
Again, each year these expenditures culminate in appropriations legislation.

[00:27:34] Speaker 01:
So Congress is presumably not going to say you can charge for the Chief Justice's curtains, but the point is this is just a statutory claim and Congress year after year enacts appropriations legislation in which it decides

[00:27:48] Speaker 01:
This is what I'm giving you direct appropriations for.

[00:27:50] Speaker 01:
And I've seen what you're planning to use PACER free revenue for.

[00:27:53] Speaker 01:
And Congress doesn't have to accept that.

[00:27:57] Speaker 01:
It could modify it.

[00:27:58] Speaker 01:
But the claim here is that Congress should have appropriated direct funds for the particular programs, but not that Congress did do so.

[00:28:06] Speaker 02:
So there's- Councilor, you're into your rebuttal time.

[00:28:09] Speaker 02:
Do you wish to continue to use it or save it?

[00:28:12] Speaker 01:
I'll save it, Your Honor.

[00:28:16] Speaker ?:
Thank you.

[00:28:17] Speaker ?:
Mr. Goff.

[00:28:18] Speaker 05:
Unless the court has specific questions about jurisdiction or damages, I want to jump to the merits.

[00:28:24] Speaker 04:
I have a question about damages, and I think this is probably best left to judge who developed it.

[00:28:30] Speaker 04:
There's a number, right, for the CMACF category.

[00:28:33] Speaker 04:
Do we have any idea what that number means?

[00:28:36] Speaker 05:
Well, I think this is what we were discussing earlier.

[00:28:39] Speaker 05:
I think what that number means needs to be fleshed out on remand.

[00:28:43] Speaker 05:
And I think, you know, we've got some uses that we know are totally impermissible and unrelated to PACER.

[00:28:50] Speaker 05:
We've got the PACER expenses that we concede are permissible.

[00:28:53] Speaker 05:
And then CME-CF is a category that may include some things that are permissible because they are truly necessary to the marginal cost of disseminating.

[00:29:03] Speaker 04:
Well, I mean, a large part of CME-CF is what now supports PACER.

[00:29:05] Speaker 04:
The electronic docket that's created by litigants going on and filing documents is what allows public access through PACER.

[00:29:14] Speaker 04:
And so those two seem inextricably intertwined.

[00:29:20] Speaker 04:
I understand you want to argue something different, but what I'm trying to ask you about is there are definitely portions of CMECF that are only used by the judiciary, the clerk's office, and the like, and actually aren't even necessarily used by the litigants.

[00:29:39] Speaker 04:
I guess for damages purposes, I wondered if you had any idea whether that broad category had in any way been narrowed down, or was it just from a budget line number for the judicial conference?

[00:29:52] Speaker 05:
Right.

[00:29:52] Speaker 05:
Well, we've done no discovery.

[00:29:54] Speaker 05:
We've only gotten informally these spreadsheets.

[00:29:57] Speaker 05:
But we do think it's going to be possible to segregate out the CM component from CMECF, and we do think that's plainly

[00:30:04] Speaker 05:
impermissible.

[00:30:06] Speaker 05:
What I would suggest is that this court, because the court doesn't have a record really, that what it should do is interpret the statute and send it back to the district court to determine whether things within this CM category are truly necessary to the marginal cost of disseminating records to users.

[00:30:23] Speaker 04:
Because we know that, you know... That's assuming we agree with your marginal cost definition.

[00:30:28] Speaker 04:
But I assume we don't agree with the marginal cost.

[00:30:30] Speaker 04:
If you don't agree with me... And we agree with the cost plus

[00:30:34] Speaker 04:
plus infrastructure, you still have to be able to allocate the infrastructure to those costs.

[00:30:41] Speaker 05:
Well, right, but I think the devil will be in the details because it is often the case in user fees cases that the government wants to take some of its overhead or infrastructure and attribute that to the service.

[00:30:51] Speaker 05:
We know that this is a service that is primarily for the convenience of litigants, right, in filing these things.

[00:30:58] Speaker 05:
The whole reason CM-ECF exists is not because it delivers documents via PACER.

[00:31:04] Speaker 03:
You're not just litigants in a case who are doing the filing, as opposed to people in the public who want access to the information to write their own briefs or write articles or newspaper articles.

[00:31:15] Speaker 03:
Yeah, I mean that is certainly... It's a whole category of users, isn't it?

[00:31:18] Speaker 05:
There's certainly a side effect of the existence of the CM system, which is that it disseminates, allows for the dissemination of these records.

[00:31:26] Speaker 05:
But I'll just give you the analogy to the FOIA cases or other user fee cases.

[00:31:31] Speaker 05:
The courts draw a line and don't allow, and I realize I'm getting eating into my time, but I would just recommend the New England Power case from the Supreme Court.

[00:31:40] Speaker 05:
It is not the case that the government can just attribute all of the overhead costs to the service.

[00:31:45] Speaker 05:
And I would suggest that the better course is to leave that issue to be fleshed out on remand.

[00:31:50] Speaker 05:
Thank you.

[00:31:53] Speaker 02:
Thank you, counsel.

[00:31:55] Speaker 02:
Ms.

[00:31:55] Speaker 02:
Klein.

[00:31:56] Speaker 01:
Okay, just briefly, even in the user fee cases, the user fees generally build in infrastructure.

[00:32:01] Speaker 01:
They build in salaries.

[00:32:02] Speaker 01:
They build in overhead.

[00:32:04] Speaker 01:
It's not limited to marginal cost.

[00:32:06] Speaker 01:
The filing fee to docket an appeal in this court or other courts is $500.

[00:32:10] Speaker 01:
No suggestion that that's just about marginal cost.

[00:32:14] Speaker 01:
So PACER itself is a portal to CME-CF, as described by Judge Chauvel.

[00:32:20] Speaker 01:
There's really little point in accessing PACER if you don't get the records on CME-CF.

[00:32:26] Speaker 01:
The electronic bankruptcy noticing is giving creditors information, case information.

[00:32:35] Speaker 04:
to ask you about on your opening is she found that one OK, but not the notice to, I guess, local police officers and things like that about filings in criminal cases.

[00:32:48] Speaker 04:
I may not be getting the details right.

[00:32:51] Speaker 04:
I was curious as to if you thought there was a logical distinction between those two.

[00:32:56] Speaker 04:
And it could go either way over whether you should get them or not, because bankruptcy creditors are, in a sense,

[00:33:02] Speaker 04:
potential litigants or people affected they're the public but they're also affected by the specific case it seems to me that sheriff's officers in the same way are a subset of the public that's that is affected and i didn't really see any logic for the distinction between those two groups if we thought one was good the other one should be good and if we thought they were

[00:33:24] Speaker 04:
It was, and they should both be out, but I didn't.

[00:33:27] Speaker 04:
Did you argue a different logic for chopping this up?

[00:33:30] Speaker 01:
No, I mean, we agree.

[00:33:31] Speaker 01:
And also, even for the standard PACER CMECF, there are some cases that are sealed, and so they're open to a subset of the public, not the public generally, like immigration and social security.

[00:33:42] Speaker 01:
Prospective jurors are also members of the public.

[00:33:45] Speaker 01:
And since Congress has said you can have free use for categories of members of the public, so jurors get their juror summons electronically for free.

[00:33:55] Speaker 01:
That fits comfortably within the terms of the statute.

[00:33:58] Speaker 01:
I mean, again, remember, the statute just says access to information through automatic data processing equipment.

[00:34:03] Speaker 01:
It doesn't say it has to be housed on CME-CF.

[00:34:06] Speaker 01:
which would have been an anomalous way to write the statute back then, since it was anticipating technological developments.

[00:34:13] Speaker 03:
The Mississippi... Would you agree with carrying the subject, with the subject matter beyond EMACF, out to any information that the public might find of interest, would you say related to the judicial system?

[00:34:28] Speaker 01:
Well, again, we're talking about how the Judicial Conference had to read these instructions.

[00:34:33] Speaker 01:
It said, access to information available through automatic data processing equipment, and then provide for exemptions.

[00:34:39] Speaker 01:
And, you know, it has to be read in conjunction.

[00:34:41] Speaker 03:
So the Mississippi study, in your view, would be covered.

[00:34:44] Speaker 01:
Yes, Your Honor.

[00:34:45] Speaker 03:
Also, to be clear, that was $120,000 out of $920 million, so I don't think it's... Forget about the amount of money, but that's an example that goes to the edge, for me, goes to the edge of what I think Congress sort of had in mind.

[00:35:01] Speaker 03:
The fascinating thing about this case is it's a statutory interpretation case.

[00:35:06] Speaker 03:
And we don't have a Chevron type situation where there's an agency interpretation and all that pattern over time to follow.

[00:35:13] Speaker 03:
So it's sort of like the law before Chevron.

[00:35:16] Speaker 03:
And context matters, the context in which this whole thing was created.

[00:35:21] Speaker 03:
And the context certainly doesn't include Mississippi by any shape, stretch of the imagination.

[00:35:31] Speaker 03:
Judge Huvel drew the context to be related to case materials that are lodged in a judicial system, whether it's bankruptcy courts as well as regular courts, to which the public wants access.

[00:35:48] Speaker 03:
So why isn't that in contextually a reasonable line that she drew?

[00:35:54] Speaker 01:
The statute is written in anticipating

[00:35:57] Speaker 01:
tech developments.

[00:35:58] Speaker 01:
It's not meant to freeze things in time, and you wouldn't give... Well, let me just stop right there.

[00:36:02] Speaker 03:
How do we know that?

[00:36:04] Speaker 03:
The statue originally was created because somebody came up with the idea to paste it, right?

[00:36:09] Speaker 01:
Right, but as Judge Uvell noted, there's no reference to PACER.

[00:36:12] Speaker 01:
There's no reference to a specific... Not in the statute.

[00:36:15] Speaker 03:
The context is what's not in the statute for interpretive purposes.

[00:36:20] Speaker 01:
But you wouldn't give less deference to the Judicial Conference than you would give to an executive agency if, hypothetically, we had an EPA cause of action.

[00:36:28] Speaker 03:
And why are we giving any deference here?

[00:36:29] Speaker 03:
There's no deference in volunteer, is there?

[00:36:31] Speaker 01:
No, of course there is.

[00:36:32] Speaker 01:
In fact, Judge Uvell applied a Chevron framework.

[00:36:34] Speaker 01:
It's just that... What?

[00:36:36] Speaker 01:
The court concluded that the language was ambiguous.

[00:36:40] Speaker 03:
She didn't conclude the language ambiguous.

[00:36:42] Speaker 03:
She said it's clear.

[00:36:43] Speaker 03:
She said both sides claim that the statute is clear, but that doesn't make it ambiguous.

[00:36:49] Speaker 03:
And she goes back and cites to sort of, Justice Scalia has just rolled over twice, right?

[00:36:55] Speaker 01:
Just to be clear, if you were going to deem the judicial conference's actions reviewable, the judiciary's, you wouldn't give less deference than you would give to an executive branch agency.

[00:37:05] Speaker 01:
Chevron is just a gloss and assumption about when Congress delegates to a part of the government to administer a scheme, here are the delegations to the Judicial Conference, that they get deference.

[00:37:16] Speaker 01:
And the tax, but I want to make sure I touch on the courtroom technology, just because, as I said, the Mississippi study is a drop in the bucket.

[00:37:23] Speaker 01:
I don't think there's any claim it would have affected fees.

[00:37:26] Speaker 03:
The courtroom technology- Well, you're not going to get some fast air on Mississippi.

[00:37:28] Speaker 03:
No, Your Honor, but- Because, I mean, you're going to have to let the Supreme Court in.

[00:37:33] Speaker 01:
I want to make sure that we address the bigger ticket item, which is that Judge Huvelle, the way she analyzed courtroom technology, is that if it's AV equipment and the information presented is then uploaded to CMECF, then you can count the technology expenses.

[00:37:48] Speaker 01:
But if it's presented to the public, who care enough to come into court and want to see this case information available through automatic data processing equipment,

[00:37:57] Speaker 01:
it's verboten, and there's nothing in the text of the statute that would...