FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE: APPLICATION FOR EXEMPTION

FROM ELECTRONIC PUBLIC ACCESS

FEES BY JENNIFER GOLLAN AND

SHANE SHIFFLETT,

JENNIFER GOLLAN; SHANE

SHIFFLETT,

Applicants-Appellants.

No. 12-16373

D.C. No.

3:12-mc-80113-

JW

OPINION

Appeal from the United States District Court

for the Northern District of California

James Ware, District Judge, Presiding

Argued and Submitted

June 10, 2013—San Francisco, California

Filed August 29, 2013

Before: Diarmuid F. O’Scannlain and Andrew D. Hurwitz,

Circuit Judges, and Lawrence L. Piersol, Senior District

Judge.*

Opinion by Judge O’Scannlain;

Concurrence by Judge O’Scannlain

* The Honorable Lawrence L. Piersol, Senior United States District

Judge for the District of South Dakota, sitting by designation.
2 IN RE: APPLICATION FOR EXEMPTION

SUMMARY**

Appellate Jurisdiction

The panel dismissed for lack of jurisdiction an appeal

from the district court’s order denying an ex parte application

for an exemption from the fees associated with electronic

access to court records.

As authorized by Congress, the fee protocol for users of

the Public Access to Court Electronic Records system was set

by the Judicial Conference of the United States, in

cooperation with the Administrative Office of the Courts. The

PACER fee waiver was sought by two journalists who were

employed by a not-for-profit organization and wished to

conduct a research project.

The panel held that it did not have jurisdiction under

28 U.S.C. § 1291 to review the district court’s order because

the order was an administrative order outside the scope of the

court’s litigative function, rather than a “decision” of the

district court. Distinguishing an unpublished decision of the

Third Circuit and United States v. Poland (In re Derickson),

640 F.2d 946 (9th Cir. 1981) (per curiam), the panel held that

the order was administrative because it arose from a nonadversarial proceeding, and the application for a fee

exemption was wholly unconnected to pending litigation.

Concurring specially, Judge O’Scannlain wrote that,

assuming ordinary PACER-fee determinations are not

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
IN RE: APPLICATION FOR EXEMPTION 3

reviewable by the judiciary’s administrative apparatus,

including the Judicial Conference and the Judicial Council of

the Circuit, it will be up to Congress to decide whether to

fashion an appellate-review mechanism, or whether to leave

the fee determinations within the exclusive purview of district

courts.

COUNSEL

Rochelle L. Wilcox, Davis Wright Tremaine LLP, San

Francisco, CA, argued the cause and filed the briefs for the

applicants-appellants. With her on the briefs was Thomas R.

Burke, Davis Wright Tremaine LLP, San Francisco, CA.

H. Thomas Byron III, United States Department of Justice,

Civil Appellate Division, Washington, DC, argued the cause

and filed the brief for the Administrative Office of the United

States Courts as amicus curiae. With him on the brief were

Stuart F. Delery, Principal Deputy Assistant Attorney

General, United States Department of Justice, Washington,

DC, Melinda L. Haag, United States Attorney for the

Northern District of California, Matthew M. Collette,

Attorney, United States Department of Justice, Civil

Appellate Division, Washington, DC, Robert K. Loesche,

General Counsel, Administrative Office of United States

Courts, Washington, DC, and Sigmund Adams, Attorney,

Administrative Office of United States Courts, Washington,

DC.
4 IN RE: APPLICATION FOR EXEMPTION

OPINION

O’SCANNLAIN, Circuit Judge:

We must consider our power to review a district court’s

administrative order denying an exemption from the fees

associated with electronic access to court records.

I

A

With the Public Access to Court Electronic Records

(“PACER”) system users can view and print case filings,

judicial opinions, and other docket information from the

federal trial, bankruptcy, and appellate courts. Congress has

authorized the Judicial Conference of the United States1to

raise funds to support PACER by setting appropriate user

fees. In order to ensure the fees do not impair public access

to the courts, Congress directed the Judicial Conference to

“provide for exempting persons or classes of persons” for

whom fees would be an unreasonable burden. Departments

of Commerce, Justice, and State, the Judiciary, and Related

Agencies Appropriations Act, Pub. L. No. 102-140, Title III

§ 303, 105 Stat. 782 (1992).

In cooperation with the Administrative Office of the

Courts, the Judicial Conference has devised a fee protocol for

PACER. Anyone may use the terminals in the nation’s

federal courthouses to view court documents at no charge. 

However, non-litigants who want access to documents

1 This is the body of circuit and district judges chaired by the Chief

Justice of the United States. See 28 U.S.C. § 331.
IN RE: APPLICATION FOR EXEMPTION 5

remotely, using the Internet, are subject to a fee of ten cents

per page. But in accord with Congress’s directive about

exemptions, the 2012 PACER fee schedule called on district

courts to consider exempting, “indigents, bankruptcy case

trustees, individual researchers associated with education

institutions, courts, section 501(c)(3) not-for-profit

organizations, court appointed pro bono attorneys, and pro

bono ADR neutrals from payment of these fees.” Electronic

Public Access Fee Schedule of April 1, 2012. The Judicial

Conference also annotates the fee schedule with policy notes

designed to help courts apply its terms. According to its 2012

policy notes, “[c]ourts should not exempt local, state or

federal government agencies, members of the media,

attorneys or others not members of one of the groups listed”

in the fee schedule.

B

Jennifer Gollan and Shane Shifflett are journalists with

the Center for Investigative Reporting (“CIR”), a section

501(c)(3) not-for-profit organization that reports on

“contemporary social, political, and economic issues” across

traditional and new media. In March 2012, Gollan and

Shifflett applied in the district court for a four-month

exemption from the per page PACER fee. At the time, they

were employees of The Bay Citizen—another 501(c)(3)

organization involved in journalism. Gollan and Shifflett

wanted to comb court filings in order to analyze “the

effectiveness of the court’s conflict-checking software and

hardware to help federal judges identify situations requiring

their recusal.” They planned to publish their findings on The

Bay Citizen’s website.
6 IN RE: APPLICATION FOR EXEMPTION

After analyzing the terms of the April 1, 2012 Judicial

Conference Fee Schedule, the district judge issued an order

granting the exemption. He did so because he credited that

their statistical project would be prohibitively expensive for

Gollan and Shifflett’s not-for-profit employer—at a cost of

“many thousands of dollars.” About a week later, the judge

ordered them to show cause why their exemption from

PACER fees “should not be revoked on the ground that they

are members of the media.”

At an April 30 hearing, Gollan and Shifflett informed the

court that The Bay Citizen had merged into the CIR. The

judge explained that although the fee schedule gave him the

discretion to exempt 501(c)(3) groups, he interpreted the

accompanying policy notes as directing him not to exempt

members of the media. Thus, even presuming their research

project would impose the same financial hardship on the CIR

as The BayCitizen, CIR’s status as “501(c)(3) Media” meant

that it likely was not qualified for the exemption. Rather than

definitively ruling at the hearing, however, the judge invited

Gollan and Shifflett to submit a renewed application. In it,

they argued that when (1) parsed carefully, and (2) read in

tandem with the exemption language, the policy notes did

allow exemptions for media members who worked for a

501(c)(3) organization. The judge denied the new application

in a May 16, 2012 order, stating that he would not adopt

Gollan and Shifflett’s interpretation in the absence of

authority supporting it. They filed a timely notice of appeal

seeking review of the denial of their application for

exemption.

Because Gollan and Shifflett are challenging an order

arising out of an ex parte application, we asked the

Administrative Office to appear as amicus to address (1)
IN RE: APPLICATION FOR EXEMPTION 7

whether we have appellate jurisdiction, and (2) “whether the

Judicial Conference Policy does in fact prohibit exemptions

for media even when they are employed by a non-profit

organization.”2

II

The Administrative Office argues we lack jurisdiction

because the denial of the PACER fee waiver is not an

appealable order. The question of appellate jurisdiction

“must always be resolved before the merits of an appeal are

examined or addressed.” Williamson v. UNUM Life Ins. Co.

of Am., 160 F.3d 1247, 1250 (9th Cir. 1998); see also

Terenkian v. Republic of Iraq, 694 F.3d 1122, 1130–31 (9th

Cir. 2012) (analyzing appellate jurisdiction before

determining whether the district court had subject matter

jurisdiction).

Our court’s authority, indeed, its very existence is

pursuant to legislation enacted by Congress. See U.S. Const.

art. III, § 1; Keene Corp. v. United States, 508 U.S. 200, 207

(1993) (“Congress has the constitutional authority to define

the jurisdiction of the lower federal courts, and, once the lines

are drawn, ‘limits upon federal jurisdiction . . . must be

neither disregarded nor evaded.’” (alteration in original)). 

Thus, “in every case, jurisdiction must exist by way of some

affirmative source.” Williamson, 160 F.3d at 1250.

2 We also asked the Administrative Office whether we should construe

the notice of appeal as a request for a writ of mandamus. See 28 U.S.C.

§ 1651(a). However, Gollan and Shifflett have not asked us to exercise

jurisdiction on that basis. We thus express no view about that possibility.
8 IN RE: APPLICATION FOR EXEMPTION

A

Like most parties who appear before us, Gollan and

Shifflett identify 28 U.S.C. § 1291 as the source of our

appellate authority. It provides that

[t]he courts of appeals . . . shall have

jurisdiction of appeals from all final decisions

of the district courts of the United States, the

United States District Court for the District of

the Canal Zone, the District Court of Guam,

and the District Court of the Virgin Islands,

except where a direct review may be had in

the Supreme Court.

Gollan and Shifflett argue that when the judge denied

their PACER exemption he made a “decision,” that decision

was “final,” and thus it neatly fits within section 1291's terms. 

Finality is not at issue here because the matter of Gollan and

Shifflett’s eligibility for a fee waiver was not “open,

unfinished, or inconclusive.” Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546 (1949).

Instead, the dispute in this appeal is whether the order

insisting that Gollan and Shifflett pay PACER fees ranks “as

a ‘decision’ of the district court within the meaning of

28 U.S.C. § 1291.” United States v. Walton (In re Baker),

693 F.2d 925, 926 (9th Cir. 1982). “Decision” is a term that

could embrace countless acts by district courts. They make

decisions pertaining to “personnel, facilities, equipment,

supplies, budgeting, accounting, security, rulemaking and

public relations.” Rini v. Clerk, United States Bankr. Court

(In re Rini), 782 F.2d 603, 606 (6th Cir. 1986). They

“appoint clerks and bailiffs, order supplies, write and
IN RE: APPLICATION FOR EXEMPTION 9

promulgate rules, and so on.” Brooks v. Laws, 208 F.2d 18,

29 (D.C. Cir. 1953). Yet in order fairly to interpret section

1291, we must consider more than “the bare meaning of the

word” decision. Bailey v. United States, 516 U.S. 137, 145

(1995). We must also analyze “its placement and purpose in

the statutory scheme.” Id.; see also King v. St. Vincent’s

Hosp., 502 U.S. 215, 221 (1991) (“Words are not pebbles in

alien juxtaposition; [instead] they have only a communal

existence; and not only does the meaning of each

interpenetrate the other, but all in their aggregate take their

purport from the setting in which they are used. . . .”).

There are two, interrelated, clues about 1291's meaning:

one constitutional and one rooted in the statute’s history. To

start, it stands to reason that Congress wanted the definition

of our jurisdiction to be construed in the context of the usual

work of courts, which is the adjudication of “cases” and

“controversies.” U.S. Const. art. III., § 2; cf. United States v.

Bailey, 444 U.S. 394, 415 n.11 (1980) (reasoning, in a similar

vein, that Congress “legislates against a background of

Anglo-Saxon common law”). These two constitutional

words—the Supreme Court has explained—“confine ‘the

business of federal courts to questions presented in an

adversary context and in a form historically viewed as

capable of resolution through the judicial process.’” 

Massachusetts v. EPA, 549 U.S. 497, 516 (2007) (emphasis

added) (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)); see

also Bense v. Starling, 719 F.2d 241, 244 (7th Cir. 1983) (“It

is essential . . . to the existence of federal judicial power that
10 IN RE: APPLICATION FOR EXEMPTION

there be present before the court a proceeding and that such

proceeding be an adversary one.”).3

The amendment history of section 1291 further

illuminates its meaning. See Bailey, 516 U.S. at 507. Its

predecessor section provided that

[t]he circuit courts of appeal shall have

appellate jurisdiction to review by appeal final

decisions—

First. In the district courts, in all cases

save where a direct review of the decision

may be had in the Supreme Court under

section 345 of this title.

Second. In the United States District

Courts for Hawaii and for Puerto Rico, in all

cases.

Third. In the District Court for the

District of Alaska, or any division thereof, and

in the District of the Virgin Islands, in all

3 The Supreme Court recently decided that there was “adequate Art. III

adverseness” even though one party “largely agree[d] with the opposing

party on the merits of the controversy.” United States v. Windsor,

133 S. Ct. 2675, 2686 (2013). While Windsor arguably refined the

definition of adverseness in circumstances said to be “unusual and

urgent,” presumably a more fulsome definition would apply in a typical

case. Id. at 2688. In any event, nothing in Windsor suggests that it is no

longer accurate to consider “judicial business” as litigation pursued by

counterparties. See id. at 2684 (“[W]hen this case was in the District

Court it presented a concrete disagreement between opposing parties, a

dispute suitable for judicial resolution.”).
IN RE: APPLICATION FOR EXEMPTION 11

cases; and in the United States District Court

for the District of the Canal Zone in the cases

and modes prescribed in sections 61 and 62,

Title 7, Canal Zone Code (48 Stat. 1122).

Fourth. In the Supreme Courts of the

Territory of Hawaii and of Puerto Rico, in all

cases, civil or criminal . . . .

Fifth. In the United States Court of China,

in all cases.

28 U.S.C. § 225(a) (1940) (emphasis added). In 1948,

Congress recast section 225(a) as what is now section 1291

during a re-codification of the country’s Judicial Code. That

project was undertaken because the array of legislative

enactments concerning courts had not been systematized

since 1911. See William W. Barron, The Judicial Code: 1948

Revision, 8 F.R.D. 439, 440–41 (1948) (cited in John R. Sand

& Gravel Co. v. United States, 552 U.S. 130, 136 (2008)). 

Because the project’s goal was simply “to state in clear and

simpler terms the original meaning of the statute revised,”

Barron, supra at 446, we must not “presume that the 1948

revision worked a change in the underlying substantive law

unless an intent to make such a change is clearly expressed.” 

John R. Sand & Gravel Co., 552 U.S. at 136 (internal

quotation marks omitted).

With the enactment of section 1291, the references to

“cases” in each of section 225's original five paragraphs were

eliminated. Although the omission of this word, which

facially “seems to bear upon the courts of appeals’ power to

review administrative actions of district courts,” is not

specifically explained in the drafting history there is also no
12 IN RE: APPLICATION FOR EXEMPTION

language suggesting a substantive change was intended. In

re Rini, 782 F.2d at 606. Quite the opposite in fact. The

Reviser’s Notes make clear that the new section 1291 merely

“rephrase[d] and simplifie[d] paragraphs ‘First,’ ‘Second,’

and ‘Third’ [et cetera] of section 225(a)” that “referred to

each Territory and Possession separately.” H.R. Rep. No. 80-

308, A109 (1947). “Statements made by several of the

persons having importantly to do with the 1948 revision” as

well as the “reports of the Committee on the Judiciary of the

Senate, and of the House” explain that “every change made

in the text is explained in detail in the Reviser[’s] Notes.” 

Fourco Glass Co. v. Tansmirra Prods. Corp., 353 U.S. 222,

226–27 (1957).4

It is therefore appropriate to interpret

section 1291 as though it still makes explicit reference to

“final decisions . . . in all cases.” 28 U.S.C. § 225 (1940)

(emphasis added); cf. Keene, 508 U.S. at 209 (declining “to

see significance in the deletion of [certain] language . . . in

the comprehensive revision of the Judicial Code completed in

1948” from the provision on the Court of Federal Claims’s

jurisdiction).

On the basis of its statutory and constitutional moorings,

we hold that section 1291 “necessarily refers to final

decisions of a judicial character, not to administrative actions

. . . outside the scope of the litigative function.” In re Baker,

693 F.2d at 927; see also Brooks, 208 F.2d at 29 (explaining

that “if every act performed by virtue of judicial power were

deemed a ‘decision’ [under section 1291], there would be no

4 The Supreme Court has regularly consulted the legislative history of

section 1291 and the Reviser’s Notes. See, e.g., John R. Sand & Gravel

Co., 552 U.S. at 136 (using both the House Report and Barron’s article);

Keene, 508 U.S. at 209 (relying on the fact that “the Reviser’s Note to

§ 1500 indicates nothing more than a change ‘in phraseology’”).
IN RE: APPLICATION FOR EXEMPTION 13

meaning to the restrictive intention in the section of the

statute with which we are dealing.”).

B

1

Although distinguishing a “judicial decision” from an “an

administrative or ministerial order from which appeal is not

available” is not always simple, two characteristics of the

order denying Gollan and Shifflett’s fee waiver put it

squarely on the administrative side of the line. United States

v. Ray, 375 F.3d 980, 986 n.7 (9th Cir. 2004). First, it arises

from a non-adversarial proceeding. See Massachusetts,

549 U.S. at 516. There was no party to oppose their request

below, and we have no appellee before us. See In re Carlyle,

644 F.3d 694 (8th Cir. 2011) (Riley, J., in chambers)

(concluding that “the non-adversarial nature of the [Criminal

Justice Act] voucher process, which is wholly ex parte,

evidences an administrative act not a judicial decision.”). 

Second, and what makes this appeal easy to resolve, is that

the application for exemption is wholly unconnected to

pending litigation. See In re Long, 475 F.3d 880 (7th Cir.

2007) (“The order excluding Long from the library is an

administrative rather than a judicial order. No proceeding has

been instituted against Long. . . . Such an action is not

judicial; rather it is the kind of action that the person against

whom it was taken might seek judicial redress for.”); Bense

v. Starling, 719 F.2d 241, 244 (7th Cir. 1983) (no appeal from

rejection of pro hac vice application because without the

filing of a complaint under Federal Rule of Civil Procedure

3 there was no “case” or true “‘parties’ before the Court”). 

Gollan and Shifflett have not filed a civil action, nor do they
14 IN RE: APPLICATION FOR EXEMPTION

seek free PACER access in the service of some third party’s

litigation.

One of Gollan and Shifflett’s contentions on appeal is that

if the fee schedule does require courts categorically to

exclude media members from fee waivers, it is an

unconstitutional discrimination against the press. See

Minneapolis Star & Tribune Co. v. Minn. Comm’r of

Revenue, 460 U.S. 575, 582–83 (1983) (explaining that the

First Amendment prohibits certain regulations that single out

the media for “differential treatment”). If they initiate a civil

action seeking to enjoin the fee schedule and policy notes

under the Constitution, then that may well lead to a decision

that we have the power to review. See, e.g., Russell v. Hug,

275 F.3d 812, 819–23 (9th Cir. 2002) (entertaining an appeal

from a judgment dismissing a complaint alleging a Criminal

Justice Act Plan for the Northern District of California

violated the Constitution, while declining to review the

substance of the plan because our power “to review final

judgments of the district courts, conferred by 28 U.S.C.

§ 1291, does not authorize us to engage in supervisory

oversight of administrative actions of the district courts”).5

5 The official position of the Administrative Office is that the April 2012

policy “notes identifying those generally ill-suited to an exemption [are]

neither exclusive nor categorical.” But, it acknowledges that the policy

was confusing and in need ofrevision. That clarification occurred in April

2013, while this appeal was pending. According to the Administrative

Office, Gollan and Shifflett should now be able to qualify for a PACER

exception under the 2013 fee schedule and policy notes provided they

document financial hardship. As explained to us by the Administrative

Office, a judge need not exempt a 501(c)(3) group under the new policy

notes, although he should consider doing so since most not-for-profits

have limited budgets. By the same token, a judge should approach an

application for exemption filed by “members of the media” with caution,

since media organizations typically will “have the ability to pay the fee.” 
IN RE: APPLICATION FOR EXEMPTION 15

However, because the order denying Gollan and Shifflett

a PACER fee exemption comes to us today strictly in an

administrative context we may not review it under section

1291.

2

We recognize that one of our sister circuits allowed an

appeal from the denial of PACER fees. See Zied-Campbell

v. Richman, 317 F. App’x 247 (3d. Cir. 2009) (unpublished

per curiam). That appeal, however, was taken by a civil

plaintiff who had named the Secretary of the Pennsylvania

Department of Welfare as a defendant in a lawsuit. See id. at

248. As opposed to Gollan and Shifflett who seek to conduct

research unconnected to a case, Zied-Campbell wanted to use

PACER as a substitute for Westlaw (a commercial legal

research application) so she could retrieve legal authorities

relevant to her pending litigation. Id. at 249.

Pointing to an authority from our circuit, Gollan and

Shifflett also claim that they may appeal on the basis of

United States v. Poland (In re Derickson), 640 F.2d 946 (9th

Cir. 1981) (per curiam). The appellant was an attorney

appointed under the Criminal Justice Act (“CJA”) “to

represent defendant Michael Kent Poland, who was charged

with murder and bank robbery.” Id. at 947. The attorney had

represented Poland at a four-week jury trial, and fifteen

Electronic Public Access Fee Schedule of April 1, 2013 (reprinted at

28 U.S.C. § 1914 (West. 2013)).

The Administrative Office has no objection to Gollan and Shifflett’s

reapplying in the district courts now that the fee schedule and policy notes

have been revised.
16 IN RE: APPLICATION FOR EXEMPTION

months after his client’s conviction sought payment for

services rendered. Id. Because it came after a forty-five-day

period for submitting a CJA voucher, the judge concluded

that he was “compelled not to recommend any payment on

the application submitted[,] on the sole ground that (the

court) lack(ed) jurisdiction.” Id. at 949. We held that the

attorney could appeal such denial, because it fell “within that

‘small class (of claims) which finally determine claims of

right (too important to be denied review, and) separable from,

and collateral to, rights asserted in the (underlying) action.” 

Id. at 948 (quoting Cohen, 337 U.S. at 546). The fact that

there is no underlying action here makes In re Derickson

distinguishable for the same reason as Zied-Campbell.

There are two other critical reasons why In re Derickson

is not the ticket to appellate jurisdiction that Gollan and

Shifflett hope to obtain. First, as later cases have noted, In re

Derickson was unique in that the lawyer sought to appeal

from a “district court’s decision that it lacked jurisdiction

under the CJA to award fees at all.” United States v. Ray,

375 F.3d 980, 986 n.7 (9th Cir. 2004) (emphasis added); see

also United States v. French, 556 F.3d 1091, 1094–95 (10th

Cir. 2009) (identifying the jurisdictional limit as Derickson’s

key feature). By contrast, the judge did not articulate any

jurisdictional limit on his power to entertain an application

for exemption such as Gollan and Shifflett’s; rather he simply

interpreted the fee schedule in a fashion that would have

excluded them. Second, Derickson does not analyze the

principle at the heart of today’s appeal—the notion that

section 1291 only embraces decisions of a judicial, as
IN RE: APPLICATION FOR EXEMPTION 17

opposed to administrative, character. See In re Derickson,

640 F.2d at 947–48.6

III

For the foregoing reasons, Gollan and Shifflett’s appeal

is DISMISSED for lack of appellate jurisdiction.7

O’SCANNLAIN, Circuit Judge, concurring specially:

I write individually to acknowledge “the elephant in the

room”: to whom does one go for review when an application

for an exemption from PACER fees has been denied?

 

6

 Gollan and Shifflett expansively read In re Derickson. In their view,

it paves the way for appellate jurisdiction over all challenges to “a district

court’s construction or interpretation of a rule or law committed to the

district court to administer.” We decline to draw a broadly applicable

maxim from the case considering that its legal analysis strictly explored

what “finality” means under 1291. In re Derickson, 640 F.2d at 947–48. 

The following year, when we decided that the amount of a CJA voucher

was a non-appealable determination, we looked (as we have in this appeal)

to the contours of the term “decision.” See In re Baker, 693 F.2d at

926–27 (“Our jurisdiction to entertain the present appeal must therefore

arise, if at all, from 28 U.S.C. § 1291, which grants us jurisdiction over

appeals ‘fromall final decisions ofthe district courts.’Baker contends that

the district court’s certification is ‘final’ within the meaning of Cohen v.

Beneficial Industrial Loan Corporation, 337 U.S. 541, 546 (1949). We

agree that the district court’s order is ‘final’ with regard to Baker’s fees,

but we cannot regard it as a ‘decision’ of the district court within the

meaning of 28 U.S.C. § 1291.”).

7 Gollan and Shifflet’s July 10, 2013 Motion to Supplement the Record

is GRANTED.
18 IN RE: APPLICATION FOR EXEMPTION

We posed just this question to the Administrative Office

at oral argument. Since the Judicial Conference is the body

Congress tasked with writing the fee schedule, naturally, the

Administrative Office suggested that comments about either

the clarity or substantive coverage of the policy could be

directed there. By statute, the Judicial Conference studies

“the condition of business in the courts of the United States”

and makes recommendations “to the various courts to

promote uniformity of management procedures and the

expeditious conduct of court business.” 28 U.S.C. § 331. 

Reviewing individual applications for exemption such as

Gollan and Shifflett’s, however, would not be—as the

AdministrativeOffice recognized—consistent with this broad

national mission.

PACER fee determinations are just one of the “increasing

numbers of administrative responsibilities” being assigned to

district courts “that are not subject to review by appeal.” 15A

Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 3903 (2d. ed. 1992). The authors of a

leading treatise on federal procedure argue that perhaps

“control may be exercised by the Judicial Council of the

Circuit.” Wright & Miller, supra, at § 3903. Comprised of

district and circuit judges, but not vested with “traditional

judicial powers,” the Circuit Council has been described as a

“‘board of directors’ for the circuit.” Chandler v. Judicial

Council of the Tenth Circuit of the United States, 398 U.S.

74, 86 n.7 (1970); see also 28 U.S.C. § 332. Outside of the

realm of judicial-misconduct allegations,1the Judicial

1 For a synopsis of that aspect of the Judicial Councils’ work, see

J. Clifford Wallace, Resolving Judicial Corruption While Preserving

Judicial Independence: Comparative Perspectives, 28 Cal. W. Int’l

L.J.341, 348–51 (1998).
IN RE: APPLICATION FOR EXEMPTION 19

Councils typically “avoid involvement with any matter

specific to the decision of an individual case.” Wright &

Miller, supra, at § 3939. Under extraordinary circumstances

not present here, i.e. a district court interpreting the fee

schedule in bad-faith, the Administrative Office thought it

was conceivable that those circuit bodies might appropriately

deal with a PACER fee dispute. Cf. J. Clifford Wallace,

Report of the Committee on Reorganization of the Circuit

Conference and Conference Committees, 68 F.R.D. 469, 474

(1975) (explaining that each “circuit council has supervisory

powers which are not clearly defined but do exist”). 

However, for more quotidian PACER applications the

judicial councils would not be the place to turn.

Because (as the opinion discusses) there is “no right of

formal appeal” to contest the amount of a Criminal Justice

Act fee award, Congress decided to create an administrative

“review process separate from the traditional right of appeal.” 

In re Smith, 586 F.3d 1169, 1173 (9th Cir. 2009) (explaining

that “excess fees must be approved both by the presiding

judge and the chief circuit judge or his delegate”).

Assuming ordinary PACER-fee determinations are not

reviewable by the judiciary’s administrative apparatus, it will

be up to Congress to decide whether to fashion an appellatereview mechanism, or whether to leave them within the

exclusive purview of district courts.