United States District Court, District of Columbia
SEGAL HUVELLE United States District Judge.
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 suit 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.) Defendant has moved to dismiss the suit under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6), claiming that
it is barred by the first-to-file rule and does not state a
claim within this Court's jurisdiction under the Little
Tucker Act. (Def.'s Mot. Dismiss, ECF. No. 11; see
also Pls.' Opp., ECF No. 15; Def.'s Reply, ECF
No. 20.) For the reasons herein, the Court will deny the
to plaintiffs, “PACER is a decentralized system of
electronic judicial-records databases” operated by the
Administrative Office for the U.S. Courts (“AO”).
(Compl. at 1, ¶ 7.) “Any person may access records
through PACER” but “must first agree to pay a
specific fee.” (Id. at ¶ 7.) 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
allege that the fee was $.07 per page in 1998, with a maximum
of $2.10 per request introduced in 2002. (Compl. at ¶
8.) The AO increased the fee to $.08 per page in 2005 and to
$.10 per page in 2012. (Id. at ¶¶ 13, 19.)
The current fee is $.10 per page, with a maximum of $3.00 per
record. (Id. at ¶ 7.) Plaintiffs claim that
these fees are “far more than necessary to recover the
cost of providing access to electronic records.”
(Id. at ¶ 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.)
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.) Plaintiff National Consumer Law Center (NCLC)
conducts “policy analysis, advocacy, litigation,
expert-witness services, and training for consumer
advocates.” (Id. at ¶ 2.) 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.” (Id. at ¶ 3.)
claim that the fees they have been charged violate the
E-Government Act because they exceed the cost of providing
the records. (Compl. at 2.) Furthermore, they 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.) Plaintiffs seek to pursue this claim on behalf of a
class of “all 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 ¶ 27.) “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.)
seeks dismissal of plaintiffs' complaint on two grounds.
First, defendant argues that this suit is barred because a
similar suit was filed first in the Court of Federal Claims.
Second, it argues that plaintiffs have failed to state a
claim under the Little Tucker Act because they did not first
present their challenge to the PACER Service Center. The
Court rejects both arguments.
survive a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a complaint “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In ruling on a 12(b)(6) motion, a court may consider
the complaint, documents incorporated in the complaint, and
matters of which courts may take judicial notice.
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007). To survive a motion to dismiss
under Rule 12(b)(1), plaintiffs bear the burden of
demonstrating that the Court has subject-matter jurisdiction,
and the Court may consider materials outside the pleadings.
Herbert v. Nat'l Acad. of Sciences, 974 F.2d
192, 197 (D.C. Cir. 1992); Cedars-Sinai Med. Ctr. v.
Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993).
the “first-to-file rule, ” “when two cases
are the same or very similar, efficiency concerns dictate
that only one court decide both cases.” In re
Telebrands Corp., 824 F.3d 982, 984 (Fed. Cir. 2016);
see also UtahAmerican Energy, Inc. v. Dep't of
Labor, 685 F.3d 1118, 1124 (D.C. Cir. 2012)
(“[W]here two cases between the same parties on the
same cause of action are commenced in two different Federal
courts, the one which is commenced first is to be allowed to
proceed to its conclusion first.” (quoting Wash.
Metro. Area Transit Auth. v. Ragonese, 617 F.2d 828, 830
(D.C. Cir. 1980))). The rule reflects concerns that
“district courts would be required to duplicate their
efforts” and “twin claims could generate
contradictory results.” UtahAmerican, 685 F.3d
at 1124. A judge considering a first-to-file challenge to a
suit that was filed second and that raises different claims
from the first suit should determine “whether the facts
and issues ‘substantially overlap.'”
Telebrands, 824 F.3d at 984-85.
contends that this suit is barred by Fisher v. United
States, No. 15-1575C, 2016 WL 5362927 (Fed. Cl. Sept.
26, 2016). According to defendant, both this case and
Fisher “involve allegations that the same
entities utilized the PACER System and were charged more for
downloading information than is authorized by the same
statutes and agreements.” (Def.'s Mot. at 13.)
Furthermore, defendant asserts that “[t]he class here
would include nearly every class member in
Fisher.” (Id.) Plaintiffs respond
that “plaintiff in Fisher challenges a
particular aspect of the formula that PACER uses ...