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 Ellen 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, argued for defendant-cross-appellant. Also represented by 

MARK B. STERN, ETHAN P. DAVIS.

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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, Judicata, Mark A. Lemley, Ravel, Syntexys, UniCourt.

 BRUCE D. BROWN, The Reporters Committee for Freedom of the Press, Arlington, VA, for amici curiae The Reporters Committee for Freedom of the Press, American 

Society of Newspaper Editors, Associated Press Media Editors, Association of Alternative News Media, First Amendment Coalition, First Look Media Works, Inc., 

International Documentary Association, Investigative Reporting Workshop, MPA, National Press Photographers 

Association, Online News Association, Radio Television 

Digital News Association, Reporters Without Borders, Seattle Times Company, Society of Professional Journalists, 

Tully Center for Free Speech, Bay Area News Group, 

BuzzFeed, California News Publishers Association, Freedom of the Press Foundation, The Media Institute, The National 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 Center, Washington, DC, for amicus curiae Joseph I. Lieberman.

 BRETT MAX KAUFMAN, Center for Democracy, American 

Civil Liberties Union Foundation, New York, NY, for amici 

curiae American Association of Law Libraries, American 

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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 “reasonable fees” for “access to information available through automatic 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 excess. The government argues that the district court identifies 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 proceedings.

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 extent necessary, prescribe reasonable fees, pursuant 

to sections 1913, 1914, 1926, 1930, and 1932 of title 28, United States Code, for collection by the 

courts under those sections for access to information available through automatic data processing equipment. These fees may distinguish 

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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 Director 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 maintain and make available to the public.

(b) The Judicial Conference and the Director 

shall transmit each schedule of fees prescribed under paragraph (a) to the Congress at least 30 days 

before the schedule becomes effective. All fees 

hereafter collected by the Judiciary under paragraph (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 Administrative 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 federal courts, made up of the Chief Justice and certain federal 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).

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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 access 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 federal court dockets and case records. See Judiciary Appropriations 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). Section 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 records viewable from any web-connected computer.

Since PACER’s inception, the Judicial Conference has 

charged fees for its use because Congress has never appropriated funds to cover the cost of PACER operations. 

J.A. 2589, 2632. Although the federal judiciary is an independent branch of government, it depends largely on appropriations 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 Judicial Conference are available online at https://www.

uscourts.gov/about-federal-courts/reports-proceedings-judicial-conference-us. 

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6 NVLSP v. UNITED STATES

Annual appropriations for the judiciary cover judge and 

staff salaries, federal defender services, courthouse security, and juror payments, among other things. But the judiciary 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 connection,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—subject to certain exemptions, waivers, and caps. The applicable fees are listed in a periodically updated Electronic 

Public Access (EPA) Fee Schedule (available at

https://www.uscourts.gov/services-forms/fees/electronicpublic-access-fee-schedule) in accordance with § 1913 Note, 

paragraph (a).4 During the period relevant to this litigation, the Judicial Conference used these PACER fees to 

3 “Users with dial-in telephone modems . . . could receive 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-filingcontinue-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 interchangeably.

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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 detail, 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 attorneys and self-represented parties to file and update 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 bankruptcy 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 electronically notifies local police when new court documents 

are filed in cases of federal offenders under supervised release.

5. Web-Based Juror Services. The federal juror 

management system, “E-Juror,” provides prospective jurors with electronic copies of court documents 

regarding their jury service.

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8 NVLSP v. UNITED STATES

6. Courtroom Technology. Courtroom Technology

funds cover the maintenance, replacement, and upgrade of courtroom technology, including equipment 

used for electronically presenting evidence to courtroom audiences as well as digital audio recording 

equipment.

II

In April 2016, plaintiffs—three national nonprofit organizations 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 under 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 motion 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 judiciary “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 Judgment Opinion) (quoting plaintiffs’ motion). The government, 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 development of PACER and CM/ECF, the court determined that 

§ 1913 Note limited “the use of PACER fees to expenses incurred in providing services, such as CM/ECF and EBN, 

that are part of providing the public with access to electronic information maintained and stored by the federal 

courts on its CM/ECF docketing system.” Id. at 149. Accordingly, 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 Notification, Web-Based Juror Services, and most of the expenditures for Courtroom Technology. Id. at 145–46, 

149–50.

The district court denied plaintiffs’ motion for summary judgment as to liability—while finding the government liable for the above four expenditures—and grantedin-part and denied-in-part the government’s cross-motion. 

Id. at 140, 151. At the parties’ request, the court later 

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10 NVLSP v. UNITED STATES

certified the summary judgment order for interlocutory appeal under 28 U.S.C. § 1292(b) and stayed further proceedings. 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 parties 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 action with a monetary remedy. We disagree.

“Whether a district court has subject matter jurisdiction 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 itself is simply a jurisdictional statute, we must determine 

6 In its motion to dismiss, the government offered a 

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 argument in denying the motion.

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NVLSP v. UNITED STATES 11

whether the only other federal provision alleged—§ 1913 

Note—“confer[s] a substantive right to recover money damages 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 during 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 Ontario Power Generation, Inc. v. United States, 

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 exaction 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 noncontract 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 Federal 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.

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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 improperly 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 jurisdiction. Ontario Power, 369 F.3d at 1301; see Eastport S.S., 

372 F.3d at 1007. For example, suits against the government for disability retired pay and wrongful dismissal actions 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 comprises claims for the return of money collected in the “absence of statutory authorization” while the moneymandating class comprises claims for money “founded on 

statutory authority.” Aerolineas Argentinas v. United 

States, 77 F.3d 1564, 1579 (Fed. Cir. 1996) (Nies, J., concurring). Both require a statute or other federal source beyond 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 apply the statute in the first instance to award damages. See

Ontario Power, 369 F.3d at 1301 (distinguishing illegal exaction claims from money-mandating claims, and specifying 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 government 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 exaction class of Little Tucker Act claims, the government relies 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 nowhere explicitly requires payment of damages by the government 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 overcharging 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 authorizes the government to collect a fee for certain purposes, and it is alleged that the government collected fees 

in excess of the statutory authorization, the “necessary implication” is that the fees can be recovered through an illegal 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 statute 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 government’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 confer jurisdiction, the complaint must identify precisely the 

amount each plaintiff has individually overpaid.

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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 determine whether the language at issue has a plain and unambiguous 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 textual arguments presented to the district court. Plaintiffs 

argue that the plain language of § 1913 Note unambiguously prohibits setting PACER fees above the amount necessary to recover the costs of providing access to records via 

PACER. Drawing from various portions of the text, plaintiffs 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 setting PACER fees high enough to cover the costs of operating 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 

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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 coverable by PACER fees to only the above three programs—because 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 expenses incurred in services providing public access to federal court electronic docketing information.

Plaintiffs overread the statutory text while the government underreads it. Plaintiffs arrive at their textual interpretation 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 processing equipment” was defined as “any equipment or interconnected system or subsystems of equipment that is 

used in the automatic acquisition, storage, manipulation, 

management, movement, control, display, switching interchange, 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 government have treated the phrase, as we do, to mean electronic access to information, and plaintiffs do not contest 

this definition.

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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” portion 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 automatic 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 paragraph (b) to answer that question: only to the extent necessary “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 allegedly restrictive prefatory text. Looking at paragraph (b) in 

full confirms the incorrectness of plaintiffs’ reading. The 

final sentence reads, as relevant: “All fees hereafter collected by the Judiciary under paragraph (a) as a charge for 

services rendered shall be deposited as offsetting collections 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 rendered EPA service to be “offset[].”

Plaintiffs also argue that the E-Government Act of 

2002’s amendment of § 1913 Note requires that we read the 

statute to restrict PACER fees from exceeding the amount 

necessary to offset PACER costs. Before the 2002 amendment, the first sentence of paragraph (a) read: “The Judicial Conference shall hereafter prescribe reasonable 

fees . . . for access to information available through 

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18 NVLSP v. UNITED STATES

automatic data processing equipment.” 28 U.S.C. 

§ 1913 note (Supp. V 1988) (emphasis added). Section 205(e) of the E-Government Act, entitled “Cost of 

Providing Electronic Docketing Information,” replaced the 

phrase “shall hereafter” so that the first sentence would 

read, as it now does: “The Judicial Conference may, only to 

the extent necessary, prescribe reasonable fees . . . .” 

28 U.S.C. § 1913 note (2012) (emphasis added); see Pub. L. 

No. 107-347, § 205(e), 116 Stat. 2899, 2915 (2002). Plaintiffs urge that the only way to give meaning to the new

phrase “only to the extent necessary” is to understand it as 

limiting the scope of the fee authorization. Appellants’ 

Br. 28–29, 41–42 (“When Congress acts to amend a statute, 

we presume it intends its amendment to have real and substantial effect.” (quoting Ross v. Blake, 136 S. Ct. 1850, 

1858 (2016) (alterations removed in original))).

We disagree. By its plain text, the amendment simply 

changed the fee structure from a mandatory to a permissive scheme. Whereas the judiciary previously was required to charge fees for electronic access to court 

information, after the 2002 amendment it could choose 

whether to do so. The language “only to the extent necessary” certainly suggests that Congress sought to encourage 

the judiciary to limit its imposition of such fees—since otherwise the amendment could have simply swapped “shall” 

for “may.” But, as we continue to stress, the text lacks a 

clear object or purpose of the supposed limitation (“only to 

the extent necessary” to what?) and we are unwilling to 

supply one of our own—or one of plaintiffs’—making. If 

Congress had intended to limit fees only to the extent necessary to reimburse expenses incurred in providing access 

to PACER, it would have said so more clearly. We can give 

full effect to the 2002 amendment by reading it as removing 

the electronic access fee obligation and encouraging the judiciary to rein in fees—without imparting any specific limitation on the fee-setting.

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NVLSP v. UNITED STATES 19

But the government’s textual arguments stray too far 

in the other direction. We reject the government’s proposed 

textual interpretation of § 1913 Note as authorizing fees to 

cover costs related to any electronic court access service or 

program. The opening sentence of paragraph (a), on its 

own, supports the government’s interpretation, as it authorizes charging fees for electronic access to information 

without any express restrictions. Reading that sentence 

within the context of § 1913 Note as a whole, and against 

the legislative history surrounding its enactment and 

amendment, however, leads us to affirm the two limitations the district court identified: Section 1913 Note limits 

the use of PACER fees to expenses incurred in providing

(1) electronic access for members of the public (2) to information stored on a federal court docketing system. See 

Summary Judgment Opinion, 291 F. Supp. 3d at 149.11

B

The district court thoroughly charted the development 

of PACER and CM/ECF against the backdrop of numerous 

congressional appropriations acts and committee reports, 

as well as the E-Government Act. We summarize the most 

relevant portions of that timeline with a few additions.

In 1988, the Judicial Conference authorized the

PACER pilot program in several bankruptcy and district 

courts—described as “an experimental program of electronic access for the public to court information.” 1988 JUD.

CONF. REP. at 83; J.A. 2903. Two years later, Congress 

11 To the extent the government maintains its argument that paragraph (b)’s directive to deposit the fees in 

the Judiciary Automation Fund (now the Judiciary Information Technology Fund), 28 U.S.C. § 612, dictates the 

broad use of those fees, we reject this argument for the reasons explained by the district court. See Summary Judgment Opinion, 291 F. Supp. 3d at 143.

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20 NVLSP v. UNITED STATES

enacted the first version of the predecessor to § 1913 Note. 

Judiciary Appropriations Act, 1991, Pub. L. No. 101-515, 

§ 404, 104 Stat. 2101, 2132–33 (1990).12 The accompanying Senate Committee on Appropriations report stated that 

§ 404 of the Act “authorizes the Judicial Conference to prescribe reasonable fees for public access to case information, 

to reimburse the courts for automating the collection of the 

information.” S. REP. NO. 101-515, at 86 (1990).

In 1992, PACER expanded to additional district and 

bankruptcy courts. J.A. 2589. That summer, the House 

Committee on Appropriations noted that “the Judiciary’s 

investments in automation have resulted in enhanced service to the public and to other Government agencies in 

making court records relating to litigation available by 

electronic media,” with more than 75 courts providing this 

service, and mostly for free. H.R. REP. NO. 102-709, at 58

(1992). The Committee “request[ed] that the Judiciary 

equip all courts, as rapidly as is feasible, with the capability for making such records available electronically and for 

collecting fees for doing so,” in accordance with § 1913 

Note. Id. 

In 1995, the Judicial Conference approved changes in 

the federal rules to permit the electronic filing of case documents. Peter W. Martin, Online Access to Court Records—from Documents to Data, Particulars to Patterns, 

53 VILL. L. REV. 855, 861 n.26 (2008). In 1996, a few federal 

courts began experimenting with systems for electronic filing. ADMIN. OFFICE OF THE U.S. COURTS, ELECTRONIC CASE 

FILES IN THE FEDERAL COURTS: A PRELIMINARY 

12 The initially enacted language was not added to the 

U.S. Code. An appropriations act the following year supplied the almost identical language that was codified at 

§ 1913 note. Judiciary Appropriations Act, 1992, Pub. L. 

No. 102-140, § 303, 105 Stat. 782, 810 (1991); 28 U.S.C. 

§ 1913 note (Supp. V 1988).

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EXAMINATION OF GOALS, ISSUES, AND THE ROAD AHEAD (discussion draft) vii, 4 (1997). That year’s House and Senate 

appropriations committee reports lauded the judiciary’s efforts to enhance electronic public access while emphasizing 

that these efforts were to be funded via EPA fees. See H.R.

REP. NO. 104-676, at 89 (1996) (“The Committee supports 

the ongoing efforts of the Judiciary to improve and expand 

information made available in electronic form to the public. 

Accordingly, the Committee expects the Judiciary to utilize 

available balances derived from electronic public access 

fees in the Judiciary Automation Fund to make information and services more accessible to the public through 

improvements to enhance the availability of electronic information.”); S. REP. NO. 104-353, at 88 (1996) (“The Committee supports efforts of the judiciary to make electronic 

information available to the public, and expects that available balances from public access fees in the judiciary automation fund will be used to enhance availability of public 

access.”). The House appropriations committee specifically 

suggested “enhancements such as electronic case documents, electronic filings, enhanced use of the Internet, and 

electronic bankruptcy noticing.” H.R. REP. NO. 104-676, 

at 89.

The development of the CM/ECF case management 

and e-filing system continued throughout the late 1990s, 

with the national rollout carrying through the early 2000s. 

In 1998, the judiciary developed a web interface for PACER 

and set a $0.07 per page fee for accessing case filings over 

the internet. J.A. 2589. In 2002, 11 district courts and 40 

bankruptcy courts were using CM/ECF. 25 Years of 

PACER.

In December 2002, Congress passed the E-Government 

Act, sponsored by Senator Joseph Lieberman. Pub. L. 

No. 107-347, 116 Stat. 2899 (2002). The E-Government 

Act’s stated purpose was “[t]o enhance the management 

and promotion of electronic Government services and processes,” in part by requiring use of “Internet-based 

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22 NVLSP v. UNITED STATES

information technology to enhance citizen access to Government information and services.” 116 Stat. 2899 (title). 

Section 205 of the Act set several new requirements for federal courts: to create and regularly maintain court websites

providing (among other things) access to “docket information” for each case; and to “make any document that is 

filed electronically publicly available online,” subject to certain exceptions. § 205(a)–(c), 116 Stat. at 2913–14. It also 

required the Judicial Conference to “explore the feasibility 

of technology to post online dockets with links allowing all

filings, decisions, and rulings in each case to be obtained 

from the docket sheet of that case.” § 205(d), 

116 Stat. at 2915. In its final substantive subsection directed to the judiciary, entitled “Cost of Providing Electronic Docketing Information,” the E-Government Act

amended § 1913 Note, as discussed above, to make EPA 

fees permissive rather than mandatory. § 205(e), 

116 Stat. at 2915.

The accompanying Senate Governmental Affairs Committee Report stated that by amending § 1913 Note, see

§ 205(e), the Committee “intend[ed] to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user 

fees to a fee structure in which this information is freely 

available to the greatest extent possible.” S. REP.

NO. 107-174, at 23 (2002). The Committee then cited 

PACER as an example of a public access service where, under existing law, users were being “charged fees that are 

higher than the marginal cost of disseminating the information.” Id.

Still, the next year’s congressional appropriations committee reports expressed support for CM/ECF along with 

an expectation that it would be funded by EPA fees. See

H.R. REP. NO. 108-221, at 116 (2003) (“The Committee expects the fee for the [EPA] program to provide for 

[CM/ECF] system enhancements and operational costs.”); 

S. REP. NO. 108-144, at 118 (2003); 149 CONG REC. H12323, 

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NVLSP v. UNITED STATES 23

at H12515 (daily ed. Nov. 25, 2003) (adopting by reference 

the House report statement on EPA fees). So, in 2004, the 

Judicial Conference increased PACER fees from $0.07 per 

page to $0.08 per page to cover the cost of implementing 

and maintaining CM/ECF nationwide. J.A. 2598 (EPA Fee 

Schedule Change Memorandum).

Eventually, the judiciary found itself with a surplus in

EPA fees and informed Congress that it planned to expand 

its use of those funds beyond PACER and CM/ECF to other 

“public access initiatives.” J.A. 3090 (FY 2007 Financial 

Plan); see Summary Judgment Opinion, 291 F. Supp. 3d 

at 134. In addition to submitting annual budget requests 

to Congress for judiciary appropriations, the AO also annually submits its “Financial Plans” for each fiscal year.13 

See, e.g., J.A. 3090–98 (Financial Plan excerpts); ECF 

No. 81.114 (2d Skidgel Decl.), Tabs 1–13 (budget request 

and Financial Plan excerpts). The House and Senate appropriations committees, or members of their staffs, typically respond to the Financial Plans by letter or email 

conveying the committee’s approval and/or concerns.

Beginning in fiscal year 2007, the AO’s Financial Plans 

indicated that the judiciary would use EPA fees to fund 

various projects and programs beyond PACER and 

CM/ECF. See J.A. 3090; Summary Judgment Opinion, 

291 F. Supp. 3d at 135–36. Over the years, the AO disclosed its plans to use EPA fees for each of the expenditure 

13 Annual appropriations legislation generally requires the AO to submit these plans. See, e.g., Judiciary 

Appropriations Act, 2010, Pub. L. 111-117, § 304, 

123 Stat. 3034, 3177 (2009) (“Within 90 days after the date 

of the enactment of this Act, the [AO] shall submit to the 

Committees on Appropriations a comprehensive financial 

plan for the Judiciary . . . .”).

14 Citations to “ECF No.” are to the district court 

docket, No. 16-cv-0745 (D.D.C.).

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24 NVLSP v. UNITED STATES

categories contested in this appeal. J.A. 3090–98. None of 

the appropriations committee responses contained in the 

record voiced any objection to the broadened spending of 

the judiciary’s EPA income on these items. J.A. 2946 (Senate Committee on Appropriations FY 2007 Letter);

ECF 81.1, Tabs 14–27.

The judiciary’s formal congressional budget requests 

for the relevant period reported both past and anticipated 

EPA spending, noting that the EPA program is “funded entirely through user fees.” J.A. 2012. These budget requests 

reflect use of EPA funds for CM/ECF, EBN, Courtroom 

Technology, the Mississippi Study, Web-Based Juror Services, and VCCA Notification. J.A. 813, 1372, 1375, 1690, 

2014, 2351 (Utilization of EPA Receipts for FY 2009–2015). 

And each year, Congress passed judicial appropriations 

legislation that neither appropriated taxpayer dollars for 

these programs nor expressed opposition to the judiciary’s 

EPA fee spending.

In 2009 and 2010, Senator Lieberman did individually 

express concerns both to the Judicial Conference and to the 

Senate Committee on Appropriations about PACER fees 

exceeding the cost of disseminating documents via PACER. 

J.A. 2622, 2627. But in 2011, the Judicial Conference 

again raised PACER fees from $0.08 to $0.10 per page, the 

rate at which it currently stands. REPORT OF THE 

PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED 

STATES 16 (Sept. 13, 2011); ECF No. 73.2 (Skidgel Decl., 

Ex. N).

From this legislative history, the parties draw opposing 

conclusions. According to plaintiffs, Congress passed the 

E-Government Act to halt the judiciary’s use of PACER 

fees for all non-PACER expenses. True, the Senate report 

regarding the passage of the E-Government Act stated that 

its amendment of § 1913 Note reflected a desire to move 

the judiciary toward providing more free access to court 

records; and the only cited example of overcharging was 

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NVLSP v. UNITED STATES 25

PACER. S. REP. NO. 107-174, at 23 (stating that PACER 

users were being “charged fees that are higher than the 

marginal cost of disseminating the information”). And we 

acknowledge that the E-Government Act’s sponsor, Senator Lieberman (who supports plaintiffs as an amicus here), 

has previously expressed the view that the Act limited the 

use of PACER fees to the direct costs of PACER. J.A. 2622,

2627. But “the views of a single legislator, even a bill’s 

sponsor, are not controlling.” Mims v. Arrow Fin. Servs., 

LLC, 565 U.S. 368, 385 (2012).15

The district court correctly rejected reading the E-Government Act’s amendment as injecting a PACER-only limitation onto the fees authorized in § 1913 Note. See 

Summary Judgment Opinion, 291 F. Supp. 3d at 141–42. 

The statute’s text makes no mention of PACER, and—to 

the extent a committee’s description of legislative intent 

can supply that missing limitation—the Senate Governmental Affairs Committee’s mention of PACER as one troubling source of overcharging does not mean that the 

Committee meant for the amendment to limit PACER fees 

to PACER costs. Rather, both the literal amendment and 

the Committee’s explanation for it support our view that 

the limited change worked by § 205(e)—replacing “shall 

hereafter” with “may, only to the extent necessary”—

merely reflects a shift away from mandatory electronic access fees. Thus, plaintiffs fail to persuade us that the 

E-Government Act amendment means that PACER fees 

cannot be used to cover CM/ECF and EBN operating costs, 

as the district court held they could.

15 We also note that in his brief Senator Lieberman 

expressly “takes no position on whether, as the district 

court held, PACER and CM/ECF are so inextricably connected that PACER fees may permissibly be used to support the costs of CM/ECF and [EBN].” Amicus Br. of 

Sen. Lieberman 11 n.4.

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26 NVLSP v. UNITED STATES

On the other side, the government focuses on the postamendment congressional budgetary actions and communications as demonstrating the propriety—and indeed necessity—of setting EPA fees high enough to cover all the 

EPA programs and projects contested in this litigation. 

But the district court properly rejected this reading, too. 

See Summary Judgment Opinion, 291 F. Supp. 3d at 144. 

According to the government, Congress’s continued

passage of appropriations legislation that did not allocate 

funds for EPA programs—despite the judiciary reporting 

its financing of these programs—demonstrate its silent ratification of the judiciary’s present EPA financing arrangement. Government’s Opening Br. 28–29. The government 

apparently interprets “only to the extent necessary” as 

meaning to the extent Congress does not appropriate taxpayer dollars to cover EPA programs. See Government’s 

Reply Br. 16–17. We disagree. Although in certain circumstances subsequent appropriations acts may impliedly repeal a pre-existing statutory obligation to pay, see Me.

Cmty. Health Options v. United States, 140 S. Ct. 1308, 

1325–26 (2020); Belknap v. United States, 150 U.S. 588, 

592–97 (1893), that logic does not extend to cases like this 

where Congress has never obligated the government to pay 

anything in the first place. We decline to hold that Congress’s failure to appropriate funds for EPA programs imparts any new meaning onto the text of § 1913 Note.

The government’s corollary argument based on the appropriations committees’ annual letters and emails approving the AO’s Financial Plans fares no better. As the district 

court observed, these communications largely consisted of 

pro forma, cursory statements of approval or “no objection”

to each submitted Financial Plan in its entirety. See Summary Judgment Opinion, 291 F. Supp. 3d at 144–45; 

ECF 81.1, Tabs 14–27. And these appropriations committee responses cannot be taken as expressing the will of Congress as a whole. We will not so lightly abdicate to 

Congress, or its substituent bodies, the exclusively judicial 

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power “to say what the law is.” Marbury v. Madison, 

5 U.S. (1 Cranch) 137, 177 (1803).

Instead, the statutory text and this historical background confirm the district court’s understanding of § 1913 

Note as limiting EPA fees to providing public access to federal electronic docketing information—and properly covering costs associated only with operating PACER, CM/ECF, 

and EBN.

First, the overwhelming thrust of the above-cited conference and committee reports is that EPA fees were intended to be spent on creating and increasing access to the 

federal judiciary’s electronic court records and docketing 

information. See supra pp. 19–21 (detailing conference and 

committee reports authorizing “an experimental program 

of electronic access for the public to court information,”

1988 JUD. CONF. REP. at 83 (emphasis added), and “reasonable fees for public access to case information,” S. REP.

NO. 101-515, at 86 (emphasis added); urging the judiciary 

to make court records available electronically for a fee, 

H.R. REP. NO. 102-709, at 58; and highlighting “electronic 

case documents, electronic filings, . . . and electronic bankruptcy noticing,” H.R. REP. NO. 104-676, at 89). Moreover, 

the E-Government Act specifically required the judiciary to 

explore “post[ing] online dockets with links” to all filings

and decisions, see § 205(d), 116 Stat. at 2915; and the section amending § 1913 Note refers to “[p]roviding [e]lectronic [d]ocketing [i]nformation” in its title, see § 205(e),

116 Stat. at 2915. Congress expressly contemplated 

PACER, CM/ECF, and EBN as it urged the judiciary to expand electronic access to the courts in the late 1990s and 

early 2000s. The district court properly construed § 1913 

Note as authorizing the judiciary to set PACER fees high 

enough to cover these services providing access to federal 

electronic docketing information.

Second, this background confirms that the access being 

provided through the aid of EPA fees authorized by § 1913 

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28 NVLSP v. UNITED STATES

Note must be public access. See supra pp. 19–21 (describing conference and committee reports, including reports

authorizing “an experimental program of electronic access 

for the public to court information,” 1988 JUD. CONF. REP.

at 83 (emphasis added), and “reasonable fees for public access to case information” S. REP. NO. 101-515, at 86 (emphasis added); and supporting efforts to “improve and 

expand information available in electronic form to the public” and urging use of EPA fees to make more information 

electronically available “to the public,” H.R. REP.

NO. 104-676, at 89 (emphasis added)). The E-Government

Act overall required use of “Internet-based information 

technology to enhance citizen access to Government information and services.” 116 Stat. at 2899 (title) (emphasis 

added). And the second sentence of paragraph (a) of § 1913 

Note specifically permits distinguishing among classes of 

users “to promote public access.” Thus, we agree that the 

fees authorized under § 1913 Note cannot be used to promote access purely for select entities or individuals.

C

Principles of constitutional avoidance further support 

identifying the above two limitations in § 1913 Note’s EPA 

fee authorization. But such principles do not lead as far as 

plaintiffs would have us take them—i.e., to prohibit using 

EPA fees for CM/ECF and EBN operations.

As their final argument, plaintiffs urge that § 1913 

Note must be read narrowly—to authorize PACER fees to 

cover only PACER costs—in order to avoid two areas of 

substantial constitutional doubt: (1) that excessive PACER 

fees may infringe the First Amendment right of access to 

courts, and (2) that in § 1913 Note, Congress may have unconstitutionally delegated its taxation authority by imposing user fees that go beyond the cost of providing the 

service for which the fees are charged, see Skinner v. Mid–

Am. Pipeline Co., 490 U.S. 212, 224 (1989) (requiring clear 

indication of intent to delegate this power). 

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We agree with plaintiffs and amici that the First 

Amendment stakes here are high. See generally Br. of 

Amici American Civil Liberties Union et al. (discussing the 

First Amendment right of access to judicial proceedings 

and records, including via PACER). If large swaths of the 

public cannot afford the fees required to access court records, it will diminish the public’s ability “to participate in 

and serve as a check upon the judicial process—an essential component in our structure of self-government.” Globe 

Newspaper Co. v. Superior Court for Norfolk Cty., 

457 U.S. 596, 606 (1982). Such concerns bolster our rejection of the government’s more sweeping interpretation of 

§ 1913 Note as permitting EPA fees high enough to cover 

all electronic access to court information. But we do not 

foresee the district court’s middle-ground interpretation 

permitting EPA fees to be used for PACER, CM/ECF, and 

EBN as resulting in a level of user fees that will significantly impede public access to courts.16 As for the nondelegation concern, we agree with the district court that both 

the text and legislative history of § 1913 Note demonstrate 

that Congress adequately authorized the use of EPA fees 

for more than just operating PACER. See Summary Judgment Opinion, 291 F. Supp. 3d at 142–43.

We therefore hold that § 1913 Note limits PACER fees 

to the amount needed to cover expenses incurred in services providing public access to federal court electronic 

docketing information.

V

Applying this interpretation to the contested projects 

and programs for which EPA fees were used from 2010 to 

16 As to those amici urging the elimination of all fees 

for accessing electronically available court records, we 

agree with the government that those calls are better directed to Congress.

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30 NVLSP v. UNITED STATES

2016, we agree with the district court’s determination that 

the government is liable for the amount of EPA fees used 

to cover the Mississippi Study, VCCA Notifications, E-Juror Services, and most Courtroom Technology expenses.

The Mississippi Study unquestionably pertained to increasing public access to state court documents, not to federal court docketing information. See Government’s 

Opening Br. 27 (describing the Study as “allow[ing] the 

State to provide the public with electronic access to its documents” (emphasis added)). Although the Study was undertaken at the behest of the Senate Committee on 

Appropriations, see J.A. 3154; S. REP. NO. 109-293, at 176 

(2006) (urging the judiciary to study the feasibility of sharing CM/ECF technology at the state level), the Study was 

not an effort to increase access to federal court case information.

Funding the VCCA Notification system through EPA 

fees was impermissible for a different reason: it only provides access to federal court case information for local law 

enforcement officers, not for the general public. Though

the VCCA Notification system may benefit the public by 

providing police speedier electronic notifications than

awaiting mailed court documents, it does not provide public access.

Using EPA fees to fund E-Juror services and most of 

the Courtroom Technology category was impermissible for 

yet another reason: they do not provide access to electronic 

docketing information. E-Juror provides prospective jurors 

with electronic copies of documents regarding their jury 

service, Summary Judgment Opinion, 291 F. Supp. 3d

at 150; it does not provide access to case-specific filings or 

other material appearing in a case docket. Likewise, 

Courtroom Technology funds largely go toward improving 

the courtroom experience—providing electronic presentations of evidence on flat-screen TVs, for instance—in ways 

unrelated to providing access to electronic information 

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NVLSP v. UNITED STATES 31

stored in courts’ CM/ECF docketing system. We do, however, agree with the one Courtroom Technology exception 

identified by the district court: that EPA fees can be used 

to cover expenses related to courtroom “digital audio equipment” used to create digital audio recordings of court proceedings because these recordings are electronic court 

records stored in CM/ECF and made publicly accessible for 

download via PACER. See Summary Judgment Opinion, 

291 F. Supp. 3d at 150.

Finally, there is one other potential source of liability 

not scrutinized by the district court: CM/ECF expenditures. Based on the limited record before us in this interlocutory appeal, it is impossible for us to decide whether all 

the costs of maintaining CM/ECF could permissibly be covered by EPA fees—that is, whether those expenses were

incurred in providing public access to federal court electronic docketing information. At oral argument, plaintiffs 

suggested that we leave it open to the district court on remand to decide—with the benefit of further argument and 

discovery—what portion of expenses in the CM/ECF 

“bucket” could be paid with EPA fees. Oral Arg. 

at 11:42–14:00, http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2019-1081.mp3. But the reason the district 

court did not scrutinize the CM/ECF line item was that 

plaintiffs themselves did not request a “closer examination” of the expenditures within the CM/ECF category until 

after the summary judgment motions hearing. Summary 

Judgment Opinion, 291 F. Supp. 3d at 148 n.25. In light of 

this apparent forfeiture, on remand, we leave it to the district court’s discretion whether to permit additional argument and discovery regarding the nature of the expenses 

within the CM/ECF category and whether EPA fees could 

pay for all of them.

VI

We have considered the parties’ remaining arguments 

and find them unpersuasive. We affirm the district court’s 

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32 NVLSP v. UNITED STATES

statutory interpretation of § 1913 Note. The case is remanded to the district court for further proceedings consistent with this opinion.

AFFIRMED AND REMANDED

No costs.

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