`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`NATIONAL VETERANS LEGAL SERVICES
`PROGRAM, NATIONAL CONSUMER LAW
`CENTER, ALLIANCE FOR JUSTICE,
`Plaintiffs-Appellants
`
`v.
`
`UNITED STATES,
`Defendant-Cross-Appellant
`______________________
`
`2019-1081, 2019-1083
`______________________
`
`Appeals from the United States District Court for the
`District of Columbia in No. 1:16-cv-00745-ESH, Judge El-
`len S. Huvelle.
`
`______________________
`
`Decided: August 6, 2020
`______________________
`
`DEEPAK GUPTA, Gupta Wessler PLLC, Washington,
`DC, argued for plaintiffs-appellants. Also represented by
`JONATHAN TAYLOR; WILLIAM H. NARWOLD, Motley Rice
`LLC, Hartford, CT; MEGHAN OLIVER, Mt. Pleasant, SC.
`
` ALISA BETH KLEIN, Appellate Staff, Civil Division,
`United States Department of Justice, Washington, DC, ar-
`gued for defendant-cross-appellant. Also represented by
`MARK B. STERN, ETHAN P. DAVIS.
`
`
`
`
`Case: 19-1081 Document: 95 Page: 2 Filed: 08/06/2020
`
`2
`
`NVLSP v. UNITED STATES
`
` SEAN MAROTTA, Hogan Lovells US LLP, Washington,
`DC, for amici curiae W. Royal Furgeson, Jr., Nancy
`Gertner, Brian L. Owsley, Viktor V. Pohorelsky, Shira Ann
`Scheindlin, Stephen W. Smith, Richard A. Posner. Also
`represented by STEPHEN SCHULTZE, CLAUDIA PARE.
`
` PHILLIP R. MALONE, Juelsgaard Intellectual Property
`and Innovation Clinic, Mills Legal Clinic, Stanford Law
`School, Stanford, CA, for amici curiae Casetext, Docket
`Alarm, Fastcase, Free Law Project, Internet Archive, Judi-
`cata, Mark A. Lemley, Ravel, Syntexys, UniCourt.
`
` BRUCE D. BROWN, The Reporters Committee for Free-
`dom of the Press, Arlington, VA, for amici curiae The Re-
`porters Committee for Freedom of the Press, American
`Society of Newspaper Editors, Associated Press Media Ed-
`itors, Association of Alternative News Media, First Amend-
`ment Coalition, First Look Media Works,
`Inc.,
`International Documentary Association, Investigative Re-
`porting Workshop, MPA, National Press Photographers
`Association, Online News Association, Radio Television
`Digital News Association, Reporters Without Borders, Se-
`attle Times Company, Society of Professional Journalists,
`Tully Center for Free Speech, Bay Area News Group,
`BuzzFeed, California News Publishers Association, Free-
`dom of the Press Foundation, The Media Institute, The Na-
`tional Press Club, National Press Club Journalism
`Institute, New York Times Company, PEN America,
`POLITICO LLC, Reveal from the Center for Investigative
`Reporting, Sinclair Broadcast Group, Inc.
`
` ELIZABETH WYDRA, Constitutional Accountability Cen-
`ter, Washington, DC, for amicus curiae Joseph I. Lieber-
`man.
`
` BRETT MAX KAUFMAN, Center for Democracy, American
`Civil Liberties Union Foundation, New York, NY, for amici
`curiae American Association of Law Libraries, American
`
`
`
`Case: 19-1081 Document: 95 Page: 3 Filed: 08/06/2020
`
`NVLSP v. UNITED STATES
`
`3
`
`Civil Liberties Union, American Library Association, Cato
`Institute, Knight First Amendment Institute at Columbia
`University.
` ______________________
`
`Before LOURIE, CLEVENGER, and HUGHES, Circuit Judges.
`HUGHES, Circuit Judge.
`These interlocutory cross-appeals challenge the district
`court’s interpretation of a statutory note to 28 U.S.C.
`§ 1913 permitting the federal judiciary to charge “reasona-
`ble fees” for “access to information available through auto-
`matic data processing equipment.” Plaintiffs contend that
`under this provision unlawfully excessive fees have been
`charged for accessing federal court records through the
`Public Access to Court Electronic Records (PACER) system
`and that the district court identifies too little unlawful ex-
`cess. The government argues that the district court iden-
`tifies too much (and also that the district court lacked
`jurisdiction). We conclude that the district court got it just
`right. We therefore affirm and remand for further proceed-
`ings.
`
`I
`The statutory note at issue follows the section text of
`28 U.S.C. § 1913 and provides in relevant part:
`COURT FEES FOR ELECTRONIC ACCESS TO
`INFORMATION
`. . . .
`“(a) The Judicial Conference may, only to the ex-
`tent necessary, prescribe reasonable fees, pursuant
`to sections 1913, 1914, 1926, 1930, and 1932 of ti-
`tle 28, United States Code, for collection by the
`courts under those sections for access to infor-
`mation available through automatic data pro-
`cessing equipment. These fees may distinguish
`
`
`
`Case: 19-1081 Document: 95 Page: 4 Filed: 08/06/2020
`
`4
`
`NVLSP v. UNITED STATES
`
`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. The Di-
`rector of the Administrative Office of the United
`States Courts, 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 main-
`tain and make available to the public.
`(b) The Judicial Conference and the Director
`shall transmit each schedule of fees prescribed un-
`der paragraph (a) to the Congress at least 30 days
`before the schedule becomes effective. All fees
`hereafter collected by the Judiciary under para-
`graph (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.”
`28 U.S.C. § 1913 note (2012) (§ 1913 Note).1
`To briefly introduce the players referenced, the Admin-
`istrative Office of the United States Courts (AO) is an
`agency within the judicial branch that provides a broad
`range of support services to federal courts; and the Judicial
`Conference is the national policymaking body for the fed-
`eral courts, made up of the Chief Justice and certain fed-
`eral judges from each judicial circuit, see 28 U.S.C. § 331.
`These two bodies act in concert, with the AO advising and
`supporting the Judicial Conference, and developing the
`
`
`1 That this text appears as a statutory note, rather
`than as section text, is “of no moment.” Conyers v. Merit
`Sys. Prot. Bd., 388 F.3d 1380, 1382 n.2 (Fed. Cir. 2004).
`
`
`
`Case: 19-1081 Document: 95 Page: 5 Filed: 08/06/2020
`
`NVLSP v. UNITED STATES
`
`5
`
`annual judiciary budget for congressional approval, with
`input from the Judicial Conference.
`Congress passed the original version of § 1913 Note in
`the early 1990s soon after the Judicial Conference, in 1988,
`first authorized an “experimental program of electronic ac-
`cess for the public to court information.” REPORT OF THE
`PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED
`STATES 83 (Sept. 14, 1988) (1988 JUD. CONF. REP.)2;
`J.A. 2903. This “experimental program” eventually grew
`into the PACER system used today for online access to fed-
`eral court dockets and case records. See Judiciary Appro-
`priations Act, 1991, Pub. L. No. 101-515, § 404, 104 Stat.
`2101, 2132–33 (1990); Judiciary Appropriations Act, 1992,
`Pub. L. No. 102-140, § 303, 105 Stat. 782, 810 (1991). Sec-
`tion 1913 Note was last amended by the E-Government Act
`of 2002, Pub. L. No. 107-347, § 205(e), 116 Stat. 2899, 2915
`(2002). Before PACER’s advent, federal court dockets and
`filings were all on paper. If members of the public wanted
`to view those records, they had to travel to the courthouse
`to request access. PACER revolutionized public access to
`federal courts by making dockets and electronic case rec-
`ords viewable from any web-connected computer.
`
`Since PACER’s inception, the Judicial Conference has
`charged fees for its use because Congress has never appro-
`priated funds to cover the cost of PACER operations.
`J.A. 2589, 2632. Although the federal judiciary is an inde-
`pendent branch of government, it depends largely on ap-
`propriations of taxpayer dollars from Congress in order to
`function. See, e.g., J.A. 455–2351 (excerpts of Financial
`Services and General Government Appropriations budget
`requests to the House Committee on Appropriations).
`
`2 This and other Reports of Proceedings for the Judi-
`cial Conference are available online at https://www.
`uscourts.gov/about-federal-courts/reports-proceedings-ju-
`dicial-conference-us.
`
`
`
`Case: 19-1081 Document: 95 Page: 6 Filed: 08/06/2020
`
`6
`
`NVLSP v. UNITED STATES
`
`Annual appropriations for the judiciary cover judge and
`staff salaries, federal defender services, courthouse secu-
`rity, and juror payments, among other things. But the ju-
`diciary can also self-fund certain services and operations
`by charging fees to the public for using them. PACER has
`operated as one of these self-funded services.
`When PACER was only accessible by dial-up phone con-
`nection,3 fees were charged by the minute. Once PACER
`moved to a web interface in 1998, the Judicial Conference
`started charging users $0.07 per page for downloads and
`printing—which increased to $0.10 per page in 2012—sub-
`ject to certain exemptions, waivers, and caps. The applica-
`ble fees are listed in a periodically updated Electronic
`Public Access
`(EPA) Fee Schedule
`(available at
`https://www.uscourts.gov/services-forms/fees/electronic-
`public-access-fee-schedule) in accordance with § 1913 Note,
`paragraph (a).4 During the period relevant to this litiga-
`tion, the Judicial Conference used these PACER fees to
`
`
`“Users with dial-in telephone modems . . . could re-
`3
`ceive docket sheet information, and see thumbnail case
`summaries on their computer screens.” U.S. COURTS,
`25 Years Later, PACER, Electronic Filing Continue to
`Change Courts 3 (Dec. 9, 2013), https://www.uscourts.gov/
`news/2013/12/09/25-years-later-pacer-electronic-filing-
`continue-change-courts (25 Years of PACER).
`4 Fees for downloading documents via PACER
`(“PACER fees”) are one of three categories of EPA fees,
`alongside charges for printing copies of records accessed
`electronically at a courthouse public terminal, and various
`PACER Service Center charges. J.A. 2522. Because the
`courthouse printing and Service Center fees constitute only
`a fraction of a percent of the revenue collected in PACER
`fees, though, we refer to PACER fees and EPA fees inter-
`changeably.
`
`
`
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`
`NVLSP v. UNITED STATES
`
`7
`
`fund six EPA programs and projects in addition to funding
`the operation of PACER itself:
`1. Case Management and Electronic Case Filing
`(CM/ECF) System. As will be explained in more de-
`tail, the judiciary started developing CM/ECF in the
`late 1990s as a counterpart to PACER. As today’s
`practitioners are well-aware, CM/ECF enables at-
`torneys and self-represented parties to file and up-
`date court records electronically over the internet; it
`also allows clerk’s offices to maintain completely
`electronic case files and dockets. There are no added
`fees for filing documents using CM/ECF, beyond the
`standard court filing fees. Non-parties accessing
`electronically filed documents, however, must use
`PACER and pay any applicable PACER fees.
`2. Electronic Bankruptcy Noticing (EBN). EBN is
`a free service provided by U.S. Bankruptcy Courts
`that electronically transmits court-generated bank-
`ruptcy notices to parties listed in the case. These
`notices were previously transmitted by mail.
`3. State of Mississippi Study. This program was a
`three-year feasibility study that involved sharing
`CM/ECF software and federal court documents with
`the State of Mississippi to provide electronic public
`access to Mississippi state court documents.
`4. Violent Crime Control Act (VCCA) Notification
`System. The VCCA Notification system electroni-
`cally notifies local police when new court documents
`are filed in cases of federal offenders under super-
`vised release.
`5. Web-Based Juror Services. The federal juror
`management system, “E-Juror,” provides prospec-
`tive jurors with electronic copies of court documents
`regarding their jury service.
`
`
`
`Case: 19-1081 Document: 95 Page: 8 Filed: 08/06/2020
`
`8
`
`NVLSP v. UNITED STATES
`
`6. Courtroom Technology. Courtroom Technology
`funds cover the maintenance, replacement, and up-
`grade of courtroom technology, including equipment
`used for electronically presenting evidence to court-
`room audiences as well as digital audio recording
`equipment.
`
`II
`In April 2016, plaintiffs—three national nonprofit or-
`
`ganizations that have downloaded public court records via
`PACER—brought a class action against the United States,
`alleging that the incurred PACER fees “exceeded the
`amount that could lawfully be charged” under § 1913 Note
`because the fees did not reflect the cost of operating
`PACER alone. J.A. 87 ¶ 34. Plaintiffs alleged that each
`individual download of a public record for which they were
`charged gave rise to a separate “illegal exaction” claim—
`that is, a claim that money was “improperly paid, exacted,
`or taken from the claimant” in violation of law, Norman v.
`United States, 429 F.3d 1081, 1095 (Fed. Cir. 2005).
`J.A. 75, 87 ¶ 34. Asserting subject-matter jurisdiction un-
`der the Little Tucker Act, 28 U.S.C. § 1346, plaintiffs
`sought the “return or refund of the excessive PACER fees”
`collected over the previous six years, from 2010 to 2016.5
`J.A. 77 ¶ 5; J.A. 87 ¶ 34.
`
`In January 2017, after denying the government’s mo-
`tion to dismiss, the district court certified an opt-out class
`consisting of all individuals and entities who had paid
`PACER fees between April 21, 2010, and April 21, 2016,
`excluding federal government entities and present class
`counsel. And the court certified one class claim: “that the
`fees charged for accessing court records through the
`PACER system are higher than necessary to operate
`
`
`5 See 28 U.S.C. § 2401(a) (setting a six-year statute
`of limitations for civil actions against the United States).
`
`
`
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`
`NVLSP v. UNITED STATES
`
`9
`
`PACER and thus violate the E-Government Act, entitling
`plaintiffs to monetary relief from the excessive fees under
`the Little Tucker Act.” J.A. 2354.
`
`After some limited informal discovery, the parties filed
`cross-motions for summary judgment regarding liability.
`Plaintiffs interpreted § 1913 Note as prohibiting the judi-
`ciary “from charging more in PACER fees than is necessary
`to recoup the total marginal cost of operating PACER.”
`Nat’l Veterans Legal Servs. Program v. United States,
`291 F. Supp. 3d 123, 139 (D.D.C. 2018) (Summary Judg-
`ment Opinion) (quoting plaintiffs’ motion). The govern-
`ment, by contrast, argued that the statute allows the
`judiciary to use PACER fees “to fund the dissemination of
`information through electronic means.” Id. at 140 (quoting
`motion hearing transcript).
`The district court adopted neither of these extremes.
`Instead, after thoroughly charting the legislative history of
`§ 1913 Note against the backdrop of the judiciary’s devel-
`opment of PACER and CM/ECF, the court determined that
`§ 1913 Note limited “the use of PACER fees to expenses in-
`curred in providing services, such as CM/ECF and EBN,
`that are part of providing the public with access to elec-
`tronic information maintained and stored by the federal
`courts on its CM/ECF docketing system.” Id. at 149. Ac-
`cordingly, the court decided that the federal judiciary
`properly used PACER fees to pay for the costs of operating
`CM/ECF and EBN; but that it should not have used
`PACER fees to pay for the Mississippi Study, VCCA Noti-
`fication, Web-Based Juror Services, and most of the ex-
`penditures for Courtroom Technology. Id. at 145–46,
`149–50.
`The district court denied plaintiffs’ motion for sum-
`mary judgment as to liability—while finding the govern-
`ment liable for the above four expenditures—and granted-
`in-part and denied-in-part the government’s cross-motion.
`Id. at 140, 151. At the parties’ request, the court later
`
`
`
`Case: 19-1081 Document: 95 Page: 10 Filed: 08/06/2020
`
`10
`
`NVLSP v. UNITED STATES
`
`certified the summary judgment order for interlocutory ap-
`peal under 28 U.S.C. § 1292(b) and stayed further proceed-
`ings. Nat’l Veterans Legal Servs. Program v. United States,
`321 F. Supp. 3d 150 (D.D.C. 2018). With our permission,
`see Nat’l Veterans Legal Servs. Program v. United States,
`No. 2018-154 (Fed. Cir. Oct. 16, 2018), Dkt. No. 9, the par-
`ties filed these cross-appeals. We have jurisdiction under
`28 U.S.C. § 1292(b), (c)(1).
`
`III
`We first address the government’s argument that we
`should vacate the summary judgment order because the
`district court lacked Little Tucker Act jurisdiction over the
`case. Specifically, the government contends that the trial
`court lacked jurisdiction over plaintiffs’ illegal exaction
`claim because § 1913 Note does not provide a cause of ac-
`tion with a monetary remedy. We disagree.
`“Whether a district court has subject matter jurisdic-
`tion over an action is a question of law that we review de
`novo.” De Archibold v. United States, 499 F.3d 1310, 1313
`(Fed. Cir. 2007). We may resolve this jurisdictional issue
`for the first time on appeal.6 Fanning, Phillips & Molnar
`v. West, 160 F.3d 717, 720 (Fed. Cir. 1998).
`
`“District courts have jurisdiction under the Little
`Tucker Act to hear claims ‘against the United States, not
`exceeding $10,000[.]’” Corr v. Metro. Washington Airports
`Auth., 702 F.3d 1334, 1336 (Fed. Cir. 2012) (quoting
`28 U.S.C. § 1346(a)(2)). Because the Little Tucker Act it-
`self is simply a jurisdictional statute, we must determine
`
`In its motion to dismiss, the government offered a
`6
`version of its present jurisdictional argument (that § 1913
`Note does not provide a monetary remedy) as one of several
`reasons the district court should dismiss the complaint.
`But the district court did not directly address that argu-
`ment in denying the motion.
`
`
`
`Case: 19-1081 Document: 95 Page: 11 Filed: 08/06/2020
`
`NVLSP v. UNITED STATES
`
`11
`
`whether the only other federal provision alleged—§ 1913
`Note—“confer[s] a substantive right to recover money dam-
`ages from the United States.” United States v. Testan,
`424 U.S. 392, 398 (1976).
`
`Plaintiffs’ theory of jurisdiction rests on their “illegal
`exaction” claim that the government unlawfully charged
`them excessive PACER fees and must return the amount
`found to exceed the marginal cost of operating PACER dur-
`ing the period in question. Illegal exaction claims are one
`of two classes of non-contract claims over which the Little
`Tucker Act provides district court jurisdiction.7 See On-
`Inc. v. United States,
`tario Power Generation,
`369 F.3d 1298, 1301 (Fed. Cir. 2004). Both rest on the
`principle that to invoke (Little) Tucker Act jurisdiction, the
`plaintiff must identify a statute, or other source of federal
`law, entitling her to receive money from the government.
`But the two classes of non-contract claims demonstrate
`that entitlement through different routes. In the illegal ex-
`action class of claims, “the plaintiff has paid money over to
`the [g]overnment, directly or in effect, and seeks return of
`all or part of that sum.” Eastport S.S. Corp. v. United
`States, 372 F.2d 1002, 1007 (Ct. Cl. 1967) (en banc). The
`classic example of an illegal exaction claim is a tax refund
`suit. Norman, 429 F.3d at 1095. The second class of non-
`contract claims—commonly coined “money-mandating”—
`involves “demands in which money has not been paid but
`the plaintiff asserts that he is nevertheless entitled to a
`
`
`7 The Little Tucker Act follows the same rules as its
`bigger sibling, the Tucker Act, 28 U.S.C. § 1491(a)(1),
`which assigns jurisdiction exclusively to the Court of Fed-
`eral Claims regardless of the monetary amount claimed.
`United States v. Bormes, 568 U.S. 6, 10 n.2 (2012); Evans
`v. United States, 694 F.3d 1377, 1379 n.5 (Fed. Cir. 2012).
`This opinion therefore discusses jurisdictional decisions
`under both statutes interchangeably.
`
`
`
`Case: 19-1081 Document: 95 Page: 12 Filed: 08/06/2020
`
`12
`
`NVLSP v. UNITED STATES
`
`payment from the treasury” for some covered type of injury.
`Eastport S.S., 372 F.3d at 1007. Because in this second
`class of claims no money is alleged to have been ceded im-
`properly to the government in the first place, plaintiffs are
`required to identify a “money-mandating” statute (or other
`source of federal law) authorizing monetary damages for
`its violation in order to invoke Little Tucker Act jurisdic-
`tion. Ontario Power, 369 F.3d at 1301; see Eastport S.S.,
`372 F.3d at 1007. For example, suits against the govern-
`ment for disability retired pay and wrongful dismissal ac-
`tions for back pay fall in this second class of claims
`requiring a “money-mandating” source. Eastport S.S.,
`372 F.3d at 1008.
`
`The above two classes of Little Tucker Act claims are
`flip sides of the same coin: the illegal exaction class com-
`prises claims for the return of money collected in the “ab-
`sence of statutory authorization” while the money-
`mandating class comprises claims for money “founded on
`statutory authority.” Aerolineas Argentinas v. United
`States, 77 F.3d 1564, 1579 (Fed. Cir. 1996) (Nies, J., con-
`curring). Both require a statute or other federal source be-
`yond the Tucker Act itself. But illegal exaction claims
`assert the statute’s prior improper use as a basis to recover
`money paid; money-mandating claims ask the court to ap-
`ply the statute in the first instance to award damages. See
`Ontario Power, 369 F.3d at 1301 (distinguishing illegal ex-
`action claims from money-mandating claims, and specify-
`ing that claims in the money-mandating category “require
`that the ‘particular provision of law relied upon grants the
`claimant, expressly or by implication, a right to be paid a
`certain sum’” (quoting Eastport S.S., 372 F.2d at 1007));
`see also Martinez v. United States, 333 F.3d 1295, 1302–03
`(Fed. Cir. 2003) (en banc) (describing Tucker Act authority
`for both “actions to recover illegal exactions” and “actions
`brought pursuant to money-mandating” sources).
` Despite this long-recognized distinction, the govern-
`ment here argues that plaintiffs’ illegal exaction claim fails
`
`
`
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`
`NVLSP v. UNITED STATES
`
`13
`
`because its statutory source, § 1913 Note, does not provide
`a cause of action for damages. Essentially attempting to
`inject a money-mandating requirement into the illegal ex-
`action class of Little Tucker Act claims, the government re-
`lies on the following language from Norman: “To invoke
`Tucker Act jurisdiction over an illegal exaction claim, a
`claimant must demonstrate that the statute or provision
`causing the exaction itself provides, either expressly or by
`‘necessary implication,’ that ‘the remedy for its violation
`entails a return of money unlawfully exacted.’” 429 F.3d
`at 1095 (quoting Cyprus Amax Coal Co. v. United States,
`205 F.3d 1369, 1373 (Fed. Cir. 2000)). And according to the
`government, § 1913 Note does not expressly or impliedly
`provide for a return of any excess fees to PACER users.
`The government argues that, based on Norman, a
`money-mandating statute is required for illegal exaction
`claims just as it is for money-mandating claims. We need
`not decide whether that is true because in this case the
`statute does provide “by necessary implication” that the
`remedy for its violation is the return of money unlawfully
`exacted. Norman, 429 F.3d at 1095 (internal quotation
`marks omitted). We acknowledge that § 1913 Note no-
`where explicitly requires payment of damages by the gov-
`ernment for overcharging users. But because § 1913 Note
`is a fee-authorizing statute, and the government is alleged
`to have illegally collected more than the authorized fee, the
`necessarily implied remedy for any violation through over-
`charging is that the government must return the excess
`fees collected. See Norman, 429 F.3d at 1095; Cyprus
`Amax, 205 F.3d at 1373. When the government “‘has the
`citizen’s money in its pocket,’” the Tucker Act permits suit
`“to recover the money exacted.” Aerolineas Argentinas v.
`United States, 77 F.3d 1564, 1573 (Fed. Cir. 1996) (quoting
`Clapp v. United States, 117 F. Supp. 576, 580 (Ct. Cl.
`1954)).
`We need not decide that an illegal exaction claim is the
`default remedy for misuse of a fee-imposing statute. In this
`
`
`
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`
`14
`
`NVLSP v. UNITED STATES
`
`case, however, the illegal exaction claim possesses all the
`basic elements for Little Tucker Act jurisdiction: a non-tort
`claim against the United States pursuant to a federal
`source of law whose violation entitles the plaintiff to money
`from the government.8 In this case, where the statute au-
`thorizes the government to collect a fee for certain pur-
`poses, and it is alleged that the government collected fees
`in excess of the statutory authorization, the “necessary im-
`plication” is that the fees can be recovered through an ille-
`gal exaction claim. There is no need to find a separate
`express money damages provision in the fee-authorizing
`statute for a plaintiff to proceed under the (Little) Tucker
`Act. See Aerolineas, 77 F.3d at 1573–74.
`The sole certified class claim here asserts that the
`value sued for—the excessive PACER fees remitted9—was
`improperly collected in contravention of a statute, namely
`§ 1913 Note. J.A. 87 ¶ 34; J.A. 2354. Plaintiffs’ complaint
`accordingly states a claim over which the district court had
`jurisdiction under the Little Tucker Act. See N.Y. Life Ins.
`Co. v. United States, 118 F.3d 1553, 1556 (Fed. Cir. 1997);
`Eastport S.S., 372 F.2d at 1007.
`
`
`8 Of course, plaintiffs also must plausibly allege that
`the exaction was truly due to a misapplication of the stat-
`ute identified as having been violated. See Ontario Power,
`369 F.3d at 1303 (“[T]he government is considered to have
`illegally exacted money from a plaintiff only where the gov-
`ernment’s actions . . . have a direct and substantial impact
`on the plaintiff . . . .” (internal quotations omitted)). But no
`causality problems are raised in this appeal.
`9 We reject the government’s argument that, to con-
`fer jurisdiction, the complaint must identify precisely the
`amount each plaintiff has individually overpaid.
`
`
`
`Case: 19-1081 Document: 95 Page: 15 Filed: 08/06/2020
`
`NVLSP v. UNITED STATES
`
`15
`
`IV
`Turning to the merits, the only issue presented in the
`main appeal is one of statutory interpretation, as neither
`party has identified any material disputed factual issues at
`this stage. We review de novo the district court’s statutory
`interpretation.
` BASR P’ship v. United States,
`915 F.3d 771, 776 (Fed. Cir. 2019). “We focus our inquiry
`on the statutory language.” Id. Our “first step ‘is to deter-
`mine whether the language at issue has a plain and unam-
`biguous meaning.’”
` Barnhart v. Sigmon Coal Co.,
`534 U.S. 438, 450 (2002) (quoting Robinson v. Shell Oil Co.,
`519 U.S. 337, 340 (1997)). In making this assessment, we
`secondarily consider the surrounding legislative history
`and principles of constitutional avoidance.
`A
` On appeal, the parties reassert basically the same tex-
`tual arguments presented to the district court. Plaintiffs
`argue that the plain language of § 1913 Note unambigu-
`ously prohibits setting PACER fees above the amount nec-
`essary to recover the costs of providing access to records via
`PACER. Drawing from various portions of the text, plain-
`tiffs read § 1913 Note to authorize fees “only to the extent
`necessary” “to reimburse expenses incurred in providing”
`the “services rendered” (i.e., PACER access) in exchange for
`the fees. Appellants’ Br. 24–26 (quoting § 1913 Note). In
`other words, they say, “PACER fees must be limited to
`PACER costs.” Id. at 2. In plaintiffs’ view, the district
`court thus erred by interpreting § 1913 Note to allow set-
`ting PACER fees high enough to cover the costs of operat-
`ing CM/ECF, EBN, and courtroom audio recording
`equipment in addition to PACER operating costs.
`The government maintains its opposing construction,
`drawn primarily from the statute’s opening sentence, that
`§ 1913 Note authorizes setting fees to the extent necessary
`“for access to information available through automatic data
`
`
`
`Case: 19-1081 Document: 95 Page: 16 Filed: 08/06/2020
`
`16
`
`NVLSP v. UNITED STATES
`
`processing equipment.”10 Government’s Opening Br. 26
`(quoting § 1913 Note). According to the government, the
`district court erred by limiting the permissible costs cover-
`able by PACER fees to only the above three programs—be-
`cause the four remaining disallowed programs were also
`services that provide electronic access to information.
` We do not accept either party’s reading. Instead, we
`agree with the district court’s interpretation that § 1913
`Note limits PACER fees to the amount needed to cover ex-
`penses incurred in services providing public access to fed-
`eral court electronic docketing information.
`
`Plaintiffs overread the statutory text while the govern-
`ment underreads it. Plaintiffs arrive at their textual inter-
`pretation by combining several phrases from opposite ends
`of § 1913 Note. They combine part of the first sentence of
`paragraph (a) (“The Judicial Conference may, only to the
`extent necessary, prescribe reasonable fees . . . .”) with two
`parts of the last sentence of paragraph (b) (“to reimburse
`expenses incurred in providing” the “services rendered,”
`which plaintiffs construe to mean PACER access), paying
`
`10 We understand “access to information available
`through automatic data processing equipment” to mean, in
`modern parlance, “electronic access to information.” At the
`time of § 1913 Note’s enactment, “automatic data pro-
`cessing equipment” was defined as “any equipment or in-
`terconnected system or subsystems of equipment that is
`used in the automatic acquisition, storage, manipulation,
`management, movement, control, display, switching inter-
`change, transmission, or reception, of data or information.”
`Summary Judgment Opinion, 291 F. Supp. 3d at 128 n.4
`(discussing 28 U.S.C. § 612(k)
`(1990) and 40 U.S.C.
`§ 759(a)(2)(A) (1990)). Both the district court and the gov-
`ernment have treated the phrase, as we do, to mean elec-
`tronic access to information, and plaintiffs do not contest
`this definition.
`
`
`
`Case: 19-1081 Document: 95 Page: 17 Filed: 08/06/2020
`
`NVLSP v. UNITED STATES
`
`17
`
`little heed to the substantial amount of text in between.
`This seems to us an odd way to read a statute.
`
`By focusing on the “only to the extent necessary” por-
`tion of the first sentence of paragraph (a), plaintiffs fail to
`address the significance of the remainder of the sentence,
`which reads in relevant part: “The Judicial Conference
`may, only to the extent necessary, prescribe reasonable
`fees . . . for access to information available through auto-
`matic data processing equipment.” § 1913 Note para. (a)
`(emphasis added). Read on its own, and in its entirety, this
`sentence does not suggest any specific restriction on what
`expenses these fees may cover. As plaintiffs point out, the
`phrase “only to the extent necessary” markedly omits any
`object, leaving us to wonder: “only to the extent necessary”
`to what? Plaintiffs direct us to the very end of para-
`graph (b) to answer that question: only to the extent neces-
`sary “to reimburse expenses incurred in providing” PACER
`access. But, again, we are unpersuaded that Congress
`would bury the object of a restriction so far from the alleg-
`edly restrictive prefatory text. Looking at paragraph (b) in
`full confirms the incorrectness of plaintiffs’ reading. The
`final sentence reads, as relevant: “All fees hereafter col-
`lected by the Judiciary under paragraph (a) as a charge for
`services rendered shall be deposited as offsetting collec-
`tions to the Judiciary Automation Fund . . . to reimburse
`expenses incurred in providing these services.” § 1913
`Note para. (b). This sentence simply conveys that any EPA
`services will be at least somewhat self-funded; it does not
`limit the amount of fees to be imposed or the type of ren-
`dered EPA service to be “offset[].”
`Plaintiffs also argue that the E-Government Ac