morning please the court if you look to for the plaintiffs this interlocutory appeal properly presents just two legal questions one jurisdictional and one on the merits and although the government tries to bring in new argu federal statute is that a claim for which the tucker act provides jurisdiction and the overwhelming answer offered by the supreme court in this court's precedent stretching back over a century is yes it is hornbook law that as this court put it in an era when a us at the tucker act provides jurisdiction to recover in a legal exaction when the exaction is based on an asserted statutory power in fact we don't know of any case i don't think the government has identified one 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 now in this piece 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 you don't have a lot of time do you mind if i distribute to the merits sure and i want to ask you  prescribe these for the public accessing information that's available through automatic process rate there's no dispute on that score your honor but i think so so here's the question i have though if at the time  that lots going on back and forth since this was st inactive there was a memo to the government's doing or the judicial conference sorry i'm going to the government unfortunately instead of judicial conference just because i'm used to say not i'm sure you're saying there's a difference here did you just feel conferences out and all that kind of stuff but out i suppose hypothetically at the time this was an act head the judiciary was being really really slow about providing electronic access and even though all the judges and the clerks offices and stuff were writing stuff were processing equipment and everybody knew it was there they refused to to provide any electronic access so congress in an attempt to prod them said look and we know at the if the courts had never done it before the infrastructure to do that yeah the servers and all of the like interfaces on the internet and and whatever else was necessary right i think that would be there would be a stronger case communicate with a court and say please send me an electronic copy of the brief in zones right and whoever took the information and court said well we will have a literally we're going to paper we have to digitize it right and we have to go to the expense of cost it certainly would have been more reasonable than it than it would be after the amended statute where it where the congress said we see that you're charging more than the marginal cost of disseminating this information and essentially cut it out please try to only what's necessary but i think it is when you to the courts inning please send me in this digital information everyone have digital information will create some for you so the verdict in the beginning was only never going to make the cost of building up an electronic database that they could ease cheaply structure and what the supreme court has said there is that the charge it in less congress specifically directs otherwise and there's a clear statement requirement the charges for a specific service to a specific individual for a believed to be maintaining updated right we constantly are shutting down or in c s you have program here in the court right to make adjustments and that costs money to do that so so let me i want to answer the question let me just st say there are categories of clear maybe i'm maybe my hypotheticals you're afraid that i'm trying to trap you i'm not i'm trying to draw the line between your argument which is all the way just the marginal cost of providing access right and judge for bell's middle position right i understand the government's going to go further and go the other way or they can argue about when they get upset but i do what i can it's it is not a model of clarity in terms of statutory writing i mean we see this all time obviously but what hold the line and say look you can charge for it as the supreme court put it in new england power and i reasonable charges and identify is made to an identifiable recipient for a measurable unit of government service and i think that's  the marginal cost that doesn't answer whether it's not just a marginal cost though i mean it doesn't answer the question of whether the portion of the underlying infrastructure that supports public access or is what we do internally as  is also properly term well one good analogy i think is the freedom of information act every agency charges people fees for getting records under the freedom of information act what they can charge is the marginal cost of disseminating that information copying it searching for it making it making it available what they cannot do is you tribute the cost of collecting that information to information or maintaining a records room and then putting that on the users i think a similar line can be drawn here but i also think that it i mean it's a good ology but unless i see this extra language and see what it's actually saying you can't and can't collect as for your visa doesn't answer right now and i understand the frustration here because congress said you know to the 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 i think they and the interest in that circumstance of they would have a better argument but when you get to two thousand and congress amends the statute to say you know what this is all up and running right we see that you are charging more than the marginal cost of disseminating this information we want you to move to a free structure that makes this information freely said you can charge only to the extent necessary i think that is an indication of what congress meant and it is consistent i mean look the legislative history here is helpful to us someplace and it's helpful to the government and other places because the house report early on says that one of the things that will be helpful to do and hans access to the public is this is from the one thousand nine hundred and six house report is enhancements for enhanced use of the internet and it's true that congress is encouraging the whole point of the government act was to encourage the courts to be more transparent in various ways but 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 do is interpret the statute but then leave it on remand for the government to be able to argue that within this c m s yes but get you know we don't really know there's been no discovery we don't know all of what what falls under that that the government could argue 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 but we do know that c m menes yeff are sort of two different things that have been merged c m beneficiaries to this structure yes for richard theater and other than the users that's right and congress didn't say you know you may charge this fee to the users and use it for things that benefit other people and just abo the court i know the merits are interesting but i'd like to start with jurisdiction because we don't think congress authorized this quarter joshua bell to be engaging the merits in this way and i can be brief but i just it's extremely important to understand the three that's correct but we're talking about whether to infer a damages remedy that is not express and get so like as with any statutory interpretation question you look at all of the relevant in disha but let me ask you a hypothetical improperly generally speaking no i mean saying that when the when congress says to the judicial because generally speaking these fish structures there is an interest rate of feeling mechanisms that congress has and set up a damages agency goes out and collects double what that sacha's do you think congress has actually say that statute that the agent if the agency collects more you can sue under the tucker well we do think it would be different current executive branch agency that the normal avenue identify the three differences here from what we call the typical illegal exaction claim st is we're talking about a decision maker that is i mean i don't again i think we're more interested in various and i don't want to run too much of that but what you seem to be arguing is something that the government has continuously argue it in all of these to correct a little talk earth cases is that even if the case involves money at some level you have to read a further intent into the statu i 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 work a statute involves money sure alvira cases like normal where i and as opposed to an actual statute versus for money in the system think of some other tucker and cases involving contracts that weren't actually about money when it's about money isn't the implied remedy were wrongfully paid over has to be able to plead and show 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 an aggregate terms that do not like the old shipping cases allowed the determination of what a correct feel would be it is impossible d for any pace or user to make that showing a member this is a class action it's just a collection of individual claims and as defined by pla thousand and fourteen i paid a dollar to download a document even if you imagine certain expenditures were not made under the statute whether they're judge you belz categories or whatever categories they are if you look at actually the period extended period a lengthy period of fact an expert discovery additional summary judgment briefing a bit country a bench trial to try to answer the hypothetical question of what and in any particular user would have paid for a download january st which was doubled the fee waiver per quarter so it's now if you don't accrue a fee and up to thirty dollars you don't owe any money they could have said we're going to expand the individual eyes exemptions there there is this  is so far from what we told talk about is the paradigmatic illegal exaction i find i'm honestly i still don't understand why this is the damages question the judiciary should be able to figure out here's how much it spends on these projects here's how much of it comes from general appropriations here's how much it comes from the and the court can say here are the activities that you're allowed us and fees on and how you parse it and the excess that comes from the over that they are allowed to incur fees absolutely no room it's not that there's no oversight here so i'm just telling you that's what your position is now you run it by statute that the fee schedule when it's changed has to go to congress in advance of congress every year by statu but the point is this is just a statutory claim and congress a year after here and acts appropriations legislation in which it decides this is what i'm giving you direct appropriations for and i've seen what you're planning to use pacer fee revenue for easier category do we have any idea what that number means well i think this is what we were discussing earlier i think what that number means needs to be fleshed out on remand and i think you know we've got some users that we whether things within this cme category are truly necessary for the marginal cost of disseminating records to users because we know that you know that's assuming we agree with your marginal cost that there's and i assume we don't agree if you don't agree with us and we agree with that cost plus infrastructure right you still have to be able to allocate the infrastructure to those costs 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 we know that this is a service that is primarily for the convenience of litigants right been in filing these things it's not that the whole reason  cases the courts draw a line and don't allow and i realize i'm going to getting into my time but i would just recommend the new england power case from the supreme court it is not the case that the government can just attribute all of the overhead costs to the service build an infrastructure they build in salaries they build an overhead it's not limited to marginal cost the filing fee to docket an appeal in this court for other courts is five hundred dollars no suggestion that that's just about marginal cost building so poor officers and things like that about violence in criminal cases i may not be getting the details right i was curious as to if you thought there was a logical distinction between those two and it could go either way over whether you should get him or not because  creditors or innocence potential litigators or people affected their the public but they're also affected by this specific case it seems to me that sheriff's officers in the same way or a subset of the public  know i mean we agree and also even for the standard pacers ham e c f 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 perspective jurors are also members of the public 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 that's fits comfortably within the terms of the statute  again we're talking about how the judicial conference how to read these instructions and said access to information available through automatic data processing equipment and then provide her exemptions and you know has to be read in conjunction with the review would be shape stretch of the imagination judge you vello drew the context to be related to case materials that are largely judicial system whether it's bankruptcy courts as well as regular court judicial conference as actions reviewable the judiciary's you wouldn't give less deference than you would give to an executive branch agency chevron is just a gloss an assumption about when congress delegates to a part of the government to administer a scheme here the delegation present it is then uploaded to cmu seattle then you can count the technology expenses 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 it's