F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

I N R E : A P P L I C A T I O N F O R E X E M P T I O N
F R O M E L E C T R

O N I C P U B L I C A C C E S S F E E S B Y J E

N N I F E R G O L L

A N A N D S H A N E S H I F F L E T T ,

J E N N I F E R G O L L

A N ; S H A N E S H I F F L E T T , Applicants-Appellants

. N o. 12-16373

D.C. No. 3:12-mc-80113- J W

OPI NI ON

A ppeal from the United States District Court for the Northern District of California J ames W are, District J udg e, Presiding

Arg ued and Submitted J une 10, 2013—San F rancisco, California

F iled Aug ust 29, 2013

B efore: Diarmuid F . O’Scannlain and Andrew D. Hurwitz

, Circuit J udg es, and L awrence L . Piersol, Senior District

J udg e. *

O pinion by

J udg e O’Scannlain; Concurrence by

J udg e O’Scannlain

* T h e Ho n o rab le La w r e n ce L

. P ierso l, Sen io r Un ited States District J u d g e f o r th e District o f

So u th Dak o ta, sittin g b y

d esig n atio n

.I N R E : A P P L I C A T I O N F O R E X E M P T I O N 2

SUMMARY * *

Appellate Jurisdiction

The panel dismiss e d for lack of jurisdiction an appeal from the district court’s order deny ing an ex parte a pplication for a n ex emption from the fees ass o c i a t ed with electronic access to court records.

As authoriz ed by Cong r ess, the fee protocol for users o f the Public A ccess to Court Electronic Records sy stem was set by t h e J u dicial Conference of the United States, in cooperation with the Administrative Office of the Courts. The PACER fee waiver was soug ht b y two journalists who were employ e d by a not-for-profit o rg an i z ation and wished to conduct a research project.

T h e panel held that it did not have jurisdiction under 28 U.S.C. § 1 291 to review the d istrict court’s order because the o rder w as an administrative order outside the scope of the court’s litig ative function, rather than a “decision” o f the district court. Disting uishing an unpublished decision of the Third Circuit and United States v. Poland ( I n re Derickson ), 640 F .2d 946 (9th Cir. 1981) (per curiam), the panel held that
t he order w as administrative b ecause it arose from a n o n

adversarial proceeding

, and the application for a f ee

ex e mption was wholly unconnected to pending litig ation.

Concurring specially

, J udg e O’Scannlain wrote that, assuming ordinary PACER- fe e determinations a re not

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.I N R E : A P P L I C A T I O N F O R E X E M P T I O N 3

reviewa ble by the judiciary ’s a dministrative a pparatus, including the J udicial Conference a n d the J udicial Council o f the Circuit, it will be u

p to C o n gr e s s to decide whether to fashion a n appellate-review mechanism, or whether to leave the fee determinations w ithin the e x clu sive purview of district
courts.

COUNSEL

Rochelle L

. Wilcox

, Davi s W rig ht T remaine L L P, San F rancisco, CA, a

rg ued the cau s e a n d filed the briefs for the applicants-appellants. W ith her o n the briefs was Thomas R. B urke, Davis W r ig ht Tremaine L L P, San F rancisco, CA.

H. Thomas B y

ron I I I
, United States Departm e n t o f J ustice, Civil A ppellate Division, W a shing ton, D C, arg ued the cause and filed the brief for the Administrative Office of the United States Courts as amicus curiae. W ith him on the b rief were Stuart F

. Delery

, P rincipal D eputy Assistant Attorney General, United States Department of J ustice, W a s hing ton, DC, Melinda L

. Haa g, United States Attorney f or the Northern District of California, Matthew M. C ollette, Attorney
, United Stat e s D epartment of J ustice, Civil Appellate Division, Washing ton, DC, Robert K. L oesche, General Counsel, Administrati v e Office of United States Courts, W ashing ton, D C, and Sig mund Adams, Attorney
, Administrative Office of United States Courts, W ashing ton, DC.I N R E : A P P L I C A T I O N F O R E X E M P T I O N 4

OP INION

O’SCANNL AI

N, Circuit J udg e:

W e must consider o ur power t o r e view a district court’s administrative order deny ing an e x e m p tion from the fees associated with electronic access to court records.

I

A

W ith the Public Access to Court Electronic Reco r d s (“PACER”) sy stem u s e rs can view a n d print case filing s, judicial opinions, and o the r d o cket information from the federal trial, bankruptcy

, and appellate c ourts. Cong r ess has authori z e d the J u dicial Conference of the United States 1 to raise funds to support PACER by sett i ng a ppropriate user fees. I n order to ensure the fees do not impair public access to the courts, Cong ress directed the J u d i c ial Conference to “provide for ex e mpting persons or classe s o f persons” for wh o m f e es would be an unreasonable burden. Departments of Commerce, J ustice, and Stat e, the J udiciary

, and Related Ag encies Appropriations Act, Pub. L . No. 102-140, T itle I I I § 303, 105 Stat. 782 (1992).

I n cooperation with the A dministrative Office o f the Courts, the J udicial Conference has d evised a fee protocol for PACER. Any one ma y u s e the terminals in the n ation’s federal courthouses to view court documents at no c h a rg e

. However, non-litig ants who want access to documents

1 T h is is th e b o d y o f c i r c u i t a n d d istrict j u d g es ch aired by th e Ch i ef J u stice o f th e Un ited States. S

ee 2 8 U.S.C. § 3 31

.I N R E : A P P L I C A T I O N F O R E X E M P T I O N 5

remotely

, using the I n t e r n e t , are subject to a fee of ten cents per pag e. B ut in accord with Cong ress’s dir e c t ive about

ex e mptions, the 2012 PACER fee schedule called on district
courts to consider ex em pting

, “indig ents, bankruptcy case trustees, individual researchers a ssociated with educ ation i n s t i t u t i o n s , c o u r t s , s e c t i o n 5 0 1 ( c ) ( 3 ) n o t

- f o r- p r o f i t org aniz ations, court appointed p ro bono attorney s, and pro bono A DR neutrals from pay ment of these fees.” Electronic Public Access F ee Schedule of April 1
, 2012. The J udicial Conference also annotates the fee schedule with policy notes desig ned to help courts apply its terms. According to its 2012 policy notes, “[ c] ourts should n ot ex e mpt local, state o r federal g overnment ag encies, members of the med i a, attorney s or others not members of one of the g r oups listed” in the fee schedule.

B

J ennifer Gollan and Shane Shifflett are journalists with the Center f

or I nvestig ative Reporting ( “ C I R”), a section 501(c)(3) not-for-p rofit org aniz ation that reports on “contemporary social, p olitical, and economic issues” across traditional and new media. I n March 2 0 1 2
, Gollan a nd Shifflett applied in the district court for a four-month

ex e mption from the per pag e PACER fee. At the time, they

were employ e e s o f The B ay Citiz en—another 501(c)(3)
org aniz ation involved in journa l i sm. G ollan and Shifflett wanted to comb court filing s i n o rder to analy ze “the effectivenes s o f the court’s conflict-checking software a nd hardware to help federal judg e s identi fy s ituations requiring their recusal.” They planned to publish their finding s on The B ay Citiz en’s website.I N R E : A P P L I C A T I O N F O R E X E M P T I O N 6

After a n aly

z ing the terms of the April 1, 2012 J udicial Conference F ee Schedule, the district judg e issued an order
g ranting the ex emption. He did s o b ecause he credited that their statis t i c a l project would be prohibitively ex pensive for Gollan and Shifflett’s no t-for-profit employ er—at a cost o f “many thousands o f dol l a rs.” About a week later, the judg e ordered them to show cause why their ex emption from PACER fees “should not be revoked on the g round that they are members of the media.”

At an April 30 hearing

, Gollan and Shifflett informed the
court that The B ay C i tiz en had merg ed into the CI R. The judg e ex plained that althoug h the fee schedule g ave him the discretion to ex empt 501(c)(3) g r o u p s , he interpreted the
accompany

ing policy notes a s d i recting him not to e x empt members of the media. Thus, even p resuming their research project w ould impose the same financial hardship on the CI R

as The B ay Citiz en, CI R’s status as “501(c)(3) Media ” meant that it likely w as not q

ualified for the ex emption. Rather than definitively

ruling at the hearing , however, the judg e invited Gollan and Shifflett to submit a renewed a pplication. I n it, they arg ued that when (1) parsed c a r efully

, and (2) read in tandem with the ex emption lang u ag e, the policy note s d id allow ex emptions for media members wh o w o r k ed for a 501(c)(3) org a

niz ation. The judg e denied the new a pplication in a M a y 1 6
, 2012 order, stating that he would not adopt Gollan and Shifflett’s interpretation in the absence o f authority supporting it. They filed a timel y n o tice o f appeal seeking r eview of the denial of their a p p l i cation for

ex e mption.

B e cause Goll a n a n d Shifflett are c halleng ing an order arising o u t of an ex parte application, we asked the Administrative Office to appear as amicus to address (1)I N R E : A P P L I C A T I O N F O R E X E M P T I O N 7

whether we have appellate jurisdiction, and (2) “whether the J udicial Conference Policy d oes in f a ct prohibit ex emptions for media even w h en they are employ ed by a non-profit
org aniz ation.” 2

I I

The A dmi n i s trative Office a r g u es we lack jurisdiction because the denial of the PACER f ee waiver is not an appealable order. The questi o n of appellate jurisdiction “must a lway s be resolved before the merits of an appeal a re

ex a mined or addressed.” W illiamson v

. UNUM Life Ins. Co.

o f A m. , 1 60 F .3d 1247, 1250 (9th Cir. 1 998); see also Terenkian v. Republic of Iraq
, 694 F .3d 1122, 1130–31 (9th Cir. 2012) (analy

z ing a p p el l a t e j u r i s d i c t i o n b e fore determining whether the district co u rt had subject matter jurisdiction).

Our c ourt’s authority

, indeed, its very ex istence is pursuant to leg islation e nacted by Cong ress. See U.S. Const.
art. I I I
, § 1; Keene Corp. v. United States
, 508 U.S. 200, 207 (1993) (“Cong ress has the consti t u t i onal authority to define the jurisdiction of the lower federal courts, and, once the lines

are drawn, ‘limits upon federal ju r i s d i c tion

. . . must be neither disreg ard ed n or evaded.’” (alteration in orig inal)). Thus, “in every case, jurisdiction must e x ist by way of some affirmative source.” W

illiamson , 160 F .3d at 1250.

2 W e also ask ed th e A d m in i strativ e Of f ice w h eth er w e sh o u ld co n stru e th e n o tice o f ap peal as a req u est f o r a w rit o f m an d am

u s. S ee 2 8 U.S.C. § 1 6 5 1 (a). Ho w ev e r , G o l l a n an d Sh if f lett h av e n o t ask ed u s t o ex ercise j u risd ictio n o n th at b asis. W e th u s ex p ress n o v iew ab o u t th at p o ssib ility

.I N R E : A P P L I C A T I O N F O R E X E M P T I O N 8

A

L ike most parties who appear before us, Gollan a n d Shifflett identify 2 8 U.S.C. § 1291 as the source o f our appellate authority . I t provides that

[ t] he courts of a

ppeals

. . . shall have jurisdiction of a

ppeals from all final decisions of the d istrict courts of the United S tates, the United States District Court f or the District o f
t h e Canal Z one, the District Court o f G uam, and the District Court of the Virg in I s l a nds,

e x c ept where a direct review may be had i n the Supreme Court.

Gollan and Shifflett arg ue t h a t w hen the judg e denied their PACER ex emption he made a “decision,” that decision

was “final,” and thus it neatly fits within section 1 291' s terms. F inality is not at issue here b e c ause the matter of Gollan a nd Shifflett’s elig ibility for a fee waiver was no t “ o pen, unfinished, or inconclusive.” Cohen v. B e n e f icial I ndus. Loan Corp. , 337 U.S. 541, 546 (1949).

I nstead, the dispute in this appeal is whether the ord er insisting that Gollan and Shifflett pay PACER fees ranks “as

a ‘ d e c i s i o n’ o f the district court within the meaning o f 28 U.S.C. § 1291.” United Stat e s v. W alton ( In re Baker

), 693 F

. 2d 925, 926 (9th Cir. 1982). “Decision” is a term that could embrace countless a cts by district courts. They make decisions pertaining to “per s o nnel, facilities, equipment, supplies, budg eting

, accounting

, security

, r ulemak ing a

nd public relations.” Rini v

. C lerk, United States Bankr. Court ( I n re R ini ), 782 F .2d 603, 606 (6th C i r. 1 9 86). They “appoin t c l e rks and bailiffs, order supplies, write a ndI N R E : A P P L I C A T I O N F O R E X E M P T I O N 9

promulg a te rules, and so on.” Brooks v. Laws
, 208 F .2d 18, 29 (D.C. Cir. 1953). Yet in o r d e r fairly to interpret section 1291, w e must consider m o re than “the bare meaning of the word” decision. Bailey v. United States
, 516 U.S. 137, 145 (1995). W e must also analy z e “its placement and purpose in the statutory scheme.” I d

. ; s ee also King v. St. Vincent’s Hosp.
, 502 U.S. 215, 221 (1991) (“W ords are not p ebbles in alien j u x taposition; [ instead] they have only a communal

ex istence; and not only does the meaning o f e ach interpenetrate the other, b ut all in their ag g r e ga t e t ake their purport from the setting in which they are used. . . .”).

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

one constitutional a

nd one rooted in the statute’s h istory

. T o start, it stands to reason that Cong r e s s wanted the definition of our jurisdiction to be construed in the contex t of the usual work of courts, which is the adju d i cation of “cases” a nd “controversies.” U.S. Const. art. I I I
., § 2 ; cf. United States v

. Bailey

, 4 44 U.S. 394, 415 n.11 (1980) ( reasoning

, in a similar vein, that Cong ress “leg islates a g ainst a backgr o und o f Ang lo-Sax on common law”). T h ese two constitution al words—the S upreme Court has ex plained—“confine ‘the business o f federal courts to questions presented in an adversary context and in a f o r m historically viewed a s capable of resolution throug h the judicial p rocess .’” Massachusetts v. EPA
, 549 U.S. 497, 516 (2007) (emphasis added) (quoting F

last v. Cohen

, 392 U.S. 83, 95 (1968)); see also B ense v. Starling

, 719 F .2d 241, 244 (7th Cir. 1983) (“I t is essential

. . . to the ex istence of federal judicial power thatI N R E : A P P L I C A T I O N F O R E X E M P T I O N 10

there be present b e f

o re the court a proceeding and that such proceeding be an adversary one.”). 3

The amendment history of section 1 291 f urther illuminates its meaning

. S e e Bailey

, 516 U.S. at 5 0 7. I ts predecessor section provided that

[ t] he circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions—

F irst. I n the dis t r i c t courts, in a ll cases

s a v e where a direct review o f the decisio n may b e had in t h e S upreme Court under section 345 of this title.

Second. I n the U n i t e d States District Courts f or Hawaii a

nd for Puerto Rico, in all

cases.

Third. I n the District Court for the District of Alaska, or any division thereof, a nd in the District of the Virg in I slands, in all

3 T h e Su p rem e C o u rt recen tly d ecid ed t h at th ere w as “ ad eq u ate A rt. III ad v ersen ess” ev en th o u g h on e p arty “ larg ely ag ree[d ] w ith th e o p p o sin g p arty o n th e m erits o f th e co n t r o v e r sy .” Un ited S t a tes v. W

in d so r , 1 3 3 S. Ct. 2 67 5
, 2 6 86 (2 0 1 3). W h ile W in d so r arg u ab ly ref

in ed th e d ef in i tio n o f a d

vers e n e s s in circu m stan ces said t o b e “ u n u su al an d

u rg en t ,” presu m ab ly a m o re f u lso m e d ef

in itio n w o u ld ap p l y i n a ty pical

case. Id

. at 26 8 8

. In an y

ev en t, n oth in g in W

in dso r su g g ests th at it i s n o lo n g er accu rate to co n sid er “ j u d icial bu sin e s s ” as litig atio n p u rsu ed b y

c o u n terp arties. S

ee id

. at 26 8 4 (“ [W ]h en th is case w as in th e D i s t r i c t Co u rt it p resen te d a co n crete d isag reem en t betw een o p p o sin g p arties, a d isp u te su itab le f

o r j u d i cial reso lu tio n .”).I N R E : A P P L I C A T I O N F O R E X E M P T I O N 11

cases ; and in the United States District Court for the District of the Canal Z one in the cases and modes p rescribed in sec tions 61 and 62, Title 7, Canal Z one Code (48 Stat. 1122).

F ourth. I n the Supreme Courts of the Territory of Hawaii and o f Puerto Rico, in all

cases , civil or criminal . . . .

F ifth. I n the United States Court of China, in all cases.

2 8 U

. S.C. § 225(a) (1940) ( emphasis added). I n 1948, Cong r ess recast section 225(a) as what is no w section 1291 during a re-codification o f the country ’ s J udicial Code. That project was undertaken beca u se the array of leg islative
enactments concerning courts had n o t been sy stematiz ed since 1 911. See W illiam W. B arron, The Judicial Code: 1948 Revision
, 8 F .R.D. 439, 440–41 (1948) (cited in John R. Sand & Gravel Co. v. United States
, 5 52 U.S. 1 3 0
, 136 (2008)). B ecause the project’s g oal was simply “to state in clear a nd simpler terms the orig inal meaning of the statute revised,” B arron, supra at 446, w e must not “presume that the 1948 revision worked a chang e in the un d e r l y i ng substantive law unless an intent to make such a chang e is clearly ex pressed.” John R

. Sand & G ravel Co.
, 552 U.S. a t 136 (internal quotation marks omitted).

W ith the e nactment of section 1291, th e r ef erences to “cases” in each of section 225' s orig inal f ive parag raphs were eliminated. Althoug h t h e o m ission of this word, which facially “seems to bear upon the courts of appeals’ power to

r eview administrative actions of district courts,” i s n o t specifically ex plained in the draft i n g h istory there is also noI N R E : A P P L I C A T I O N F O R E X E M P T I O N 12

l a ng uag e sug g esting a substantive chang e was intended. I n

re Rini
, 7 8 2 F .2d at 606. Quite t h e opposite in fact. The Reviser’s Notes make c lear that the new section 1 2 91 merely “rephrase[ d] and simplifie[ d ] parag raphs ‘F irst,’ ‘Second,’

a n d ‘ T hird’ [ et cetera ] of section 2 25(a)” that “referred t o each Territory and Possession separately .” H.R. Rep. N o. 80- 3 0 8
, A109 (1947). “Statements made by several of th e persons having importantly to do with the 1948 revision” a s well as the “ reports of the Committee on the J udiciary of the Senate, and of the House” ex p l a i n that “every chang e made in the tex t is ex plained in detail in the Reviser [ ’ s ] Notes.” Fourco Glass Co. v. Tansmirra Prods. Corp.

, 353 U.S. 222, 226–27 (1957). 4 I t is therefore appropriate to interpret

s e c tion 1291 as thoug h it still makes ex plicit reference t o “final decisions

. . . i n all cases .” 28 U.S.C. § 2 25 (1940) (emphasis added); c

f. Keene
, 508 U.S. at 209 (decli n i n g “to

see sig nificance in the deletion o f [ c ertain] lang uag e

. . . in the comprehensive revision of the J udicial Code completed in 1948” from the provision o n the Court o f Federal Claims’s jurisdiction).

On the b asis of its statutory and constitutional mooring s,

we hold that section 1 2 9 1 “necessarily refers to final decisions of

a judicial character

, not to administrative actions

. . . outside the scope of the litig ative function.” In re Baker

, 693 F .2d at 927; see also Brooks

, 208 F .2d at 29 (ex plaining that “if every a ct performed by virtue o f judicial power were deemed a ‘decision’ [ under section 1291]
, there would be no

4 T h e Su p rem e Co u rt h as re gu l a r l y c o n su lted th e l eg islativ e h isto ry of sectio n 1 29 1 an d th e Rev iser’ s No tes. S ee, e.g

. , Jo h n R. S a nd & Gra vel Co

. , 5 5 2 U.S. at 1 3 6 (u sin g b o th th e Ho u se Rep ort an d B arro n ’ s article); Keen e , 5 08 U .S. a t 2 0 9 (rely in g o n th e f act t h at “ th e Rev iser’ s No te to § 1 5 0 0 in d icates n o th i n g m o re th an a ch an g e ‘ in

p h raseo lo g y ’ ”).I N R E : A P P L I C A T I O N F O R E X E M P T I O N 13

meaning to the restrictive intention in the section of the statute with which we are dealing .”).

B

1

Althoug h disting uishing a “ judicial decision” from a

n “an administrative or ministerial order f r o m w hich appeal is not available” i s n ot alway s simple, two characteristics of the order d e ny ing Gollan and Shifflett’s fee waiver put it squarely on the administrative side of the line. United States

v. Ray
, 3 75 F .3d 980, 986 n.7 (9th Cir. 2 004). F irst, it arises from a non-a d v e rsarial proceeding

. See Massachusetts

, 549 U.S. at 516. There was no p arty to oppose their request below, a nd we have n o appellee b efore 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 J ustice Act] voucher process, which is who l ly e x parte , evidences an administrative a ct n ot a j u d i c i al decision.”). Second, and w hat makes this appeal e asy to resolve, is that the application for ex emption is wholly unconnected to pending litig ation. See In re Long
, 475 F .3d 880 (7th Cir. 2007) (“The o r d e r ex c luding L ong from the library is an administrative rather than a judicial o rder. No proceeding has been instituted a g ainst L ong

. . . . Such an a ct i o n i s not judicial; rather it is the kind of action that the person ag ainst whom it was tak e n mig ht seek judicial redress for.”); Bense

v. Starling

, 719 F .2d 241, 244 ( 7th Cir. 1983) (no appeal from rejection of p ro hac vice application b ecause wit h out the filing o f a complaint under F ederal Rule of Civil Procedure 3 there was no “case” or true “‘parties’ b e f o r e the Court”). Gollan and Shifflett have not filed a civil action, nor do theyI N R E : A P P L I C A T I O N F O R E X E M P T I O N 14

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

One o f Gollan a

n d Shifflett’s contentions on appeal is that if the fee schedule d oes require courts c ateg orically to

ex c lude media me m b e rs from fee waivers, it is an unconstitutional discrimination ag ain s t the press. See Minneapolis S t a r & Tribune Co. v. Minn. Comm’r of Revenue
, 460 U.S. 575, 582–8 3 (1983) (ex plaining that the F irst Amendment prohibits certain reg ulations that sing le out the media for “differential treatment”). I f they initiate a civil action seeking to e njoin the fee schedule and p o l i c y notes under the Constitution, then that may well lead to a decision that w e have the power to re v iew. S ee, e.g. , R ussell v. Hug
, 275 F .3d 812, 819–23 (9th Cir. 2002) (entertaining an appeal from a judg ment dismissing a complaint alleg ing a Criminal J ustice Act Plan f

or the Northern D istrict of California violated the Constitution, while declining to review the substance of the plan because our power “to r eview final judg ments of the d istrict courts, conferred by 28 U .S.C. § 1291, d o es not a

uthoriz e us to eng ag e in supervisory oversig ht of administrative actions of the district courts”). 5

5 T h e o f f icial p o sitio n o f th e A dm in i strativ e Of f ice is th at th e A

p ril 2 0 1 2
p o licy “ n o tes id en tif

y in g th o se g en erally ill- su i ted to an ex em p tio n [are]

n eith er ex clu siv e n o r categ o rical.” B u t , i t a ck n o w led g es th at th e p o licy

w as co n f u sin g an d in n eed o f rev i sio n

. T h at clarif icatio n occu rred in A

p ril 2 0 1 3
, w h ile th is ap p eal w as p en d in g

. A cc o r d i ng to th e A d m in istrativ e Of f i c e , G o l l an an d S h if

f lett sh o u ld n o w be ab le to q u alif y f o r a P A CER

ex cep tio n u n d er th e 2 0 1 3 fe e sch ed u le an d po licy n o tes p ro v id ed th ey d o cu m en t f

in an cial h ard sh i p

. A s ex

p lain ed to u s b y th e Ad m i n i strativ e Of f ice, a j u d g e n eed n o t ex em p t a 5 01 (c)(3 ) g ro u

p u n d er th e n ew p o licy

n o tes, alth o u g h h e sh o u ld co n sid er d o i n g so sin ce m o st n o t- f o r- p ro f its h a v e l im i t ed b u d g ets. B y th e sam e to k en , a j u dg e sh o u ld ap pro ac h a n ap p licatio n f

o r ex em p tio n f iled b y “ m em

bers o f th e m ed ia” w ith cau tio n , sin ce m ed ia o rg an izatio n s t y pically w ill “ h av e th e ab ility to p ay th e f ee.”I N R E : A P P L I C A T I O N F O R E X E M P T I O N 15

However, because the order deny ing Gollan and Shifflett

a PACER f

ee ex emption comes to u s to day strictly in an administrative contex t w e may not review it under section 1291.

2

W e recog niz e that one o f our sister circui t s allowed an appeal fr o m t h e denial of PACER fees. See Zied-Campbell

v. Richman

, 317 F

. App’x 247 ( 3 d

. Cir. 2009) (unpublished
per curiam). T h at appeal, however, was taken by a civil plaintiff who had named the Sec r etary of the Pennsy lvania Department of W elfare 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, Z ied-Campbell wanted to use PACER a s a substitute for W e s t l aw ( a commercial leg al

researc h ap plication) so she could retrieve leg al authorities relevant to her pending

litig ation. Id. at 249.

Pointing t o a n authority f rom our circuit, Gollan a nd Shifflett also claim that they may appea l o n the basis o f United States v. Poland (

In re D erickson ), 640 F

. 2 d 946 (9th Cir. 19 8 1) ( per curiam). The appellant was an attorney appointed unde r the Criminal J ustice Act (“CJ A ”) “to represent defendant Michael Kent Poland, who was charg ed with murder and bank r obbery .” Id. a t 947. The attorney h ad represented Poland a t a four-week jury trial, an d fifteen

Electro n ic P u

b lic A ccess Fee Sch ed u le o f A p ril 1
, 2 0 1 3 (rep rin ted at 2 8 U.S.C. § 1 9 1 4 (W est. 2 0 1 3)).

T h e A d m in istrativ e Of

f ice h as n o o bj ectio n to Go llan an d Sh if f lett’ s reap p ly in g in th e d istrict co u rts n o w th at th e f ee sch ed u le an d p o licy n otes h av e b een rev ised

.I N R E : A P P L I C A T I O N F O R E X E M P T I O N 16

months a f

ter his c lient’s conviction soug ht pay ment for services rendered. Id. B ecause it c ame a fter a forty -five-day period for submitting a CJ A voucher, the judg e c o n c l u d ed that he was “compelled n ot to recommend any pay men t on the application submitted[ ,] on the sole g r ound that (the court) lack(ed) jurisdi c t i o n

. ” Id. at 9 49. We held that the attorney c ould appeal such denial, because it fell “within that ‘small class (of claims) which f inally d etermine c l ai m s o f rig ht (too important to be denied review, and) separable f r om, and collateral to, rig hts a sserted in the (unde r ly ing ) action.” Id. at 948 (quoting Cohen

, 3 37 U.S. at 546). The fact that there is no underl y i n g ac tion here makes In re Derickson disting uishable 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 Go l l an a nd Shifflett hope to obtain. F irst, as later cases have noted, I n re Derickson w as unique in that the law y e r s o u g ht to appeal from a “district court’s decision that it lacked juris d i c t i on under the CJ A to award fees at all .” U n i t e d States v. Ray
, 375 F

. 3d 980, 986 n .7 (9th Cir. 2 004) (emphasis added); see also United States v. French

, 5 56 F

. 3d 1091, 1094–95 (10th Cir. 2009) (identify ing the jurisdictional limit as D erickson ’s key feature). B y contrast, the judg e did not articulate any jurisdiction a l limit on his power to entertain a n a pplication for ex emption such as Gollan and Shifflett’s; rather he simply interpreted the fee schedule in a fashion that w o uld have

ex c l u d e d them. Second, Derickson does not analy z e the principle at t h e h eart of today ’s appeal—the notion that section 1291 onl y embraces decisions of a judicial, a sI N R E : A P P L I C A T I O N F O R E X E M P T I O N 17

opposed to administrative, c haracter. See In re Derickson

, 640 F .2d at 947–48. 6

I I I

F or the foreg oing reasons, Gollan and Shifflett’s a ppeal is D ISMISSED for lack of appellate jurisdiction. 7

O’SCANNL AI

N, Circuit J udg e, concurring specially :

I write individually to acknowledg e “ the elephant in the room”: to whom does o ne g o for review when an a pplication for an ex emption from PACER fees has been denied?

6 Go llan an d Sh if f lett ex p an siv ely

read In re D erickso n . In th eir v iew

, it p av es th e w ay f

o r ap p ellate j u risd ictio n o v er all ch allen g es to “ a d istrict

c o u rt’ s co n stru ctio n o r in terp reta tio n o f a ru le o r law co m m itted to th e d i s t r i c t co u

rt to ad m in ister.” W e d eclin e to d raw a b ro ad l y ap p l icab le

m ax im f ro m th e case co n sid erin g t h at its leg al an aly sis strictly ex p l o r ed

w h at “ f in ality ” m ean s u n d er 1 2 9 1

. In re D erickso n , 6 4 0 F.2 d at 9 4 7

– 4 8

. T h e f o llo w i n g y ear, w

h en w e d ecid ed th at th e a m o u n t o f a CJ A v o u ch er

w as a n o n

- ap p ealab l e d eterm in atio n , w e lo o k ed (as w e h av e in th is ap p eal)
to th e co n to u

rs of th e ter m “d e c i s i o n .” See In re Ba ker

, 6 9 3 F.2 d at 9 2 6

– 2 7 (“ O u r j u risd i c t i on to en tertain th e p resen t ap p eal m u st th eref ore

a r i s e , i f at all, f

ro m 2 8 U.S.C. § 1 2 9 1
, w h ich g ran ts u s j u risd ictio n ov er ap p eals ‘ f ro m all f in al d ecisio n s of th e d istrict co u rts.’ Bak er co n ten d s th at th e d istrict co u rt’ s certif

icatio n i s ‘ f

i n al’ w ith in

th e m ean in g o f C

o h en v. Ben eficia l In d

u stria l Lo a n Co rp o ra t io n , 3 3 7 U.S. 5 4 1
, 5 4 6 (1 9 4 9 ). W e ag ree th at th e d istrict co u rt’ s o rd er is ‘ f in al’ w ith reg ard to Bak er’ s f ees, b u t w e can n o t re g a r d i t a s a ‘ decisio n ’ o f th e d istrict co u rt w ith i n th e

m ean in g o f

2 8 U.S.C. § 1 2 9 1 .”).

7 G o llan an d Sh if

f let’ s J u l y 1 0
, 20 1 3 Mo tio n to Su p plem en t th e Reco rd is G RANTED.I N R E : A P P L I C A T I O N F O R E X E M P T I O N 18

W e posed just this q

uestion to the Administrative Office
at oral arg u ment. Since the J udici al Conference is the body Cong r ess tasked with writing the f ee schedule, naturally

, the Administrative Office sug g ested that comments about either
t h e clarity or substantive coverag e of the policy cou l d b e directed there. B y statute, the J udicial Conference s t u dies “the c ondition of business in the courts o f the United States” and makes recommendations “to the v a r ious c ourts to promote uniformity of manag ement p rocedures an d t h e

ex p editious conduct of c ourt b u s i n ess.” 28 U.S.C. § 331. Re v i e wing individual applications for ex emption such a s Gollan and Shifflett’s, however, would not be—as the A d m i n i s t r a t i v e O f fice recog niz ed—consistent with this broad national mission.

PACER fee determinations are just one of the “increasing numbers of administrative responsibilities” being assig ned to district c ourts “that are not subject to review by appeal.” 1 5A Charles Alan W rig ht & A rthur R. Miller, F e de ral Practice

a n d P rocedure § 3903 (2d. e d. 1992). The authors of a leading treatise on federal p r ocedure arg ue t hat perhaps “control may be ex ercised by the J udicial Counci l o f the Circuit.” W rig ht & Miller, su p r a , a t § 3903. Comprised o f district and circui t j u d g es, but n ot v ested with “traditional judicial powers,” the Circuit Council h as been described a s a “‘boa rd of directors’ for the circuit.” Chandler v. J udicial Council of the Ten t h C i r cuit 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 alleg ations, 1 the J udicial

1 Fo r a sy

n o p sis o f th at asp ect o f t h e J u d i cial Co u n cils’ w ork

, see J

. C lif f o rd Wallace, Reso lvin g Ju d icia l Co rru p tio n W h ile Preservin g Ju d icia l In d

ep en d en ce: Co mp a ra tive Persp ectives
, 2 8 Cal. W. In t ’ l L .J .3 4 1 , 3 4 8

– 5 1 (1 9 9 8 ).I N R E : A P P L I C A T I O N F O R E X E M P T I O N 19

Councils ty

pically “avoid involvement with any matter

s p ecific to the decision of an individual case.” W rig ht & Miller, supra , at § 3939. Under e x traordinary circumstances

no t p re s e nt here, i.e. a district c o u rt interpreting the f ee schedule in bad-faith, th e A d m inistrative Office thoug ht it

was conceivable that those circuit bodies mig ht appropriately dea l w i th a PACER fee d ispute. Cf. J

. Clifford W a llace, Report o f t he Committee on Reorganization of the Circuit Conference and Conference Committees
, 68 F .R.D. 4 6 9, 474 (1975) (ex plaining that e ach “circuit council has supervisory
powers which are not clearl y d e f ined but do ex ist”). However, for more quotidian PACE R ap plications the judicial councils would not be the place to turn.

B e cause (as the opinion dis c u sses) there is “no rig ht o f formal a ppeal” to contest the amount of a C riminal J u stice Act f ee award, Cong ress decided to create an administrative “review p rocess separate from the traditional rig ht of appeal.” In re Smith

, 586 F .3d 1169, 1173 ( 9 th Cir. 2009) (ex plaining that “ ex cess fees must be approved both by t h e presiding judg e and the chief circuit judg e or his deleg ate”).

Assuming ordinary PACER-fee determinations are not reviewable by the judiciary ’s administrative apparatus, it will be up to Cong ress to decide whether to f ashion an appellatereview mech a n ism, or w hether to leave them within the

ex c lusive purview of district courts.