National Veterans Legal Services Program v. United States, No. 19-1081 (Fed. Cir. 2020)
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Nonprofit organizations that have downloaded public court records via the Public Access to Court Electronic Records (PACER) system brought a class action, alleging that the incurred PACER fees “exceeded the amount that could lawfully be charged” under a note to 28 U.S.C. 1913 because the fees did not reflect the cost of operating PACER alone. Asserting subject-matter jurisdiction under the Little Tucker Act, 28 U.S.C. 1346, the plaintiffs sought the “return or refund of the excessive PACER fees.” After denying the government’s motion to dismiss, the district court certified an opt-out class consisting of all individuals and entities who had paid PACER fees, April 21, 2010-April 21, 2016, excluding federal government entities and present class counsel.
The Federal Circuit affirmed. The statute authorizes the government to collect a fee for certain purposes. It is alleged that the government collected fees in excess of the statutory authorization, so the “necessary implication” is that the fees can be recovered through an illegal exaction claim. There is no need for a separate express money damages provision in the fee-authorizing statute for a plaintiff to proceed under the Little Tucker Act. The Section 1913 Note limits PACER fees to the amount needed to cover expenses incurred in services providing public access to federal court electronic docketing information. Those fees cannot be used to promote access purely for select entities or individuals.
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