National Veterans Legal Services Program v. United States
235 F. Supp. 3d 32
| D.D.C. | 2017Background
- Plaintiffs (three large nonprofit public-interest organizations) sued the United States under the Little Tucker Act, alleging PACER fees (2010–2016) exceed the costs of providing access and thus violate the E‑Government Act, seeking refunds as an illegal-exaction claim.
- PACER fee schedule: $0.10 per page (max $3.00 for case documents), discretionary court exemptions for certain users including §501(c)(3) nonprofits; courts instructed to grant exemptions only when necessary.
- Named plaintiffs regularly paid PACER fees (hundreds to thousands over six years) but did not request exemptions because their organizations’ revenues made them ineligible to claim inability to pay.
- Defendant opposed class certification largely on adequacy grounds, arguing named nonprofit representatives differ from some class members because they are eligible for fee exemptions; defendant also raised numerosity, potential individual issues, and overlap with Fisher (another PACER case).
- The court found numerosity, commonality, typicality, and adequacy satisfied, rejected certification under Rule 23(b)(1), and certified the class under Rule 23(b)(3) with a refined class definition (PACER users who paid fees between April 21, 2010 and April 21, 2016, excluding class counsel in this case and federal government entities).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under Little Tucker Act | Illegal-exaction claim for refunds of excess PACER fees; each individual claim < $10,000 so district court jurisdiction appropriate | No jurisdictional challenge in opposition | Jurisdiction proper: district court may hear multiple < $10,000 transactions under Little Tucker Act |
| Numerosity (Rule 23(a)(1)) | Class comprises many paying PACER users (hundreds of thousands) making joinder impracticable | Plaintiffs failed to show viable claimants because of PSC notice practice; also focused on nonprofit subset | Numerosity satisfied given large number of PACER accounts and active users; joinder impracticable |
| Adequacy/Typicality (Rule 23(a)(3)&(4)) | Named nonprofits share the same legal theory and interests in fee reduction; they and counsel can vigorously prosecute | Named plaintiffs differ because as nonprofits they could seek fee exemptions and thus have divergent incentives | Typicality satisfied; adequacy satisfied — speculative conflicts about exemptions do not defeat adequacy; organizations are good representatives |
| Predominance/Superiority (Rule 23(b)(3)) | Liability turns on common legal question (whether fee schedule unlawfully exceeded costs); damages calculation ministerial; class action superior for small claims | Individual issues (e.g., whether particular users obtained enough free pages to alter per-page cost) and overlap with Fisher counsel against class treatment | Predominance and superiority satisfied; class certified under Rule 23(b)(3); Fisher does not bar this suit |
Key Cases Cited
- Aerolineas Argentinas v. United States, 77 F.3d 1564 (Fed. Cir.) (discusses illegal-exaction recovery under Tucker Acts)
- Norman v. United States, 429 F.3d 1081 (Fed. Cir.) (addresses scope of Little Tucker Act and necessary-implication requirement)
- Eastport S.S. Corp. v. United States, 372 F.2d 1002 (Ct. Cl.) (foundational illegal-exaction doctrine)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (U.S.) (class-certification standards: plaintiff must prove Rule 23 requirements)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (U.S.) (policy favoring class actions where individual recoveries are small)