In re: Application for Exemption Document 10

Court of Appeals for the Ninth Circuit
Case No. 12-16373
Filed October 22, 2012

Submitted (ECF) Opening brief for review. Submitted by Appellants Jennifer Gollan and Shane Shifflett. Date of service: 10/22/2012. [8371129] (RLW)

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No. 12-UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: APPLICATION FOR EXEMPTION FROM ELECTRONIC PUBLIC
ACCESS FEES BY JENNIFER GOLLAN AND SHANE SHIFFLETT,
JENNIFER GOLLAN; SHANE SHIFFLETT,
Applicants-Appellants.
On Appeal from the United States District Court
for the Northern District of California
D.C. No. 3:12-mc-80113-JW
(Honorable James Ware)
__________________________________________________
APPLICANT-APPELLANTS JENNIFER GOLLAN AND
SHANE SHIFFLETT’S OPENING BRIEF ON THE MERITS
__________________________________________________
THOMAS R. BURKE (SB# 141930)
thomasburke@dwt.com
ROCHELLE L. WILCOX (SB# 197790)
rochellewilcox@dwt.com
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite San Francisco, California Telephone: (415) 276-Facsimile: (415) 276-
JUDY ALEXANDER (SB# 116515)
jalexander@judyalexander.com
2302 Bobcat Trail
Soquel, CA Telephone: (831) 462-
Attorneys for Applicants-Appellants
JENNIFER GOLLAN and SHANE SHIFFLETT
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TABLE OF CONTENTS
Page
1.
STATEMENT OF JURISDICTION ...............................................................
2.
ISSUE PRESENTED FOR REVIEW .............................................................
3.
STATEMENT OF THE CASE .......................................................................
4.
STATEMENT OF FACTS ..............................................................................
5.
PROCEDURAL HISTORY ............................................................................
6.
STANDARD OF REVIEW ...........................................................................
7.
SUMMARY OF ARGUMENT .....................................................................
8.
ARGUMENT .................................................................................................
9.
CONCLUSION..............................................................................................
i
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TABLE OF AUTHORITIES
Page
CASES
Arkansas Writers’ Project, Inc. v. Ragland,
481 U.S. 221 (1987) ............................................................................................ Doe v. Rumsfeld,
435 F.3d 980 (9th Cir. 2006) .............................................................................. J-R Distributors, Inc. v. Eikenberry,
725 F.2d 482 (9th Cir. 1984), overruled on other grounds, Brockett v.
Spokane Arcades, Inc., 472 U.S. 491 (1985) ...................................................... Lively v. Wild Oats Markets, Inc.,
456 F.3d 933 (9th Cir. 2006) .............................................................................. Lonberg v. Sanborn Theaters Inc.,
259 F.3d 1029 (9th Cir. 2001) ............................................................................ Malcom v. Payne,
281 F.3d 951 (9th Cir. 2002) .............................................................................. Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue,
460 U.S. 575 (1983) ............................................................................................ San Luis & Delta-Mendota Water Auth. v. United States,
672 F.3d 676 (9th Cir. 2012) .............................................................................. The Ecology Center v. Castaneda,
426 F.3d 1144 (9th Cir. 2005) ............................................................................ STATUTES
28 U.S.C. § 1295 ........................................................................................................ 28 U.S.C. § 1331 ........................................................................................................ 28 U.S.C. § 1914 ........................................................................................................ 28 U.S.C. § 1914(b) ................................................................................................. ii
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CONSTITUTIONAL PROVISIONS
United States Constitution, First Amendment ......................................................... OTHER AUTHORITIES
About CIR, available at http://cironline.org/about-cir. .............................................. Electronic Public Access Fee Schedule, available at
http://www.pacer.gov/documents/epa_feesched.pdf. ......................................... http://www.kqed.org/news/bayarea/onshakyground/ ................................................ http://www.liu.edu/About/News/Univ-Ctr-PR/2012/February/Polk-PR_Feb20-2012.aspx. ........................................................................................................ http://www.macfound.org/press/press-releases/macarthur-foundationannounces-2012-winners-award-creative-and-effective-non
.................. http://www.pulitzer.org/finalists/2012. ...................................................................... http://www.scripps.com/foundation/news/releases/12march16.html ........................ https://ire.org/awards/ire-awards/winners/2011-ire-awards-winners/ ....................... Letter from Sen. Lieberman to Sen. Richard Durbin, Chairman,
Subcommittee on Financial Services and General Government,
Committee on Appropriations, available at
http://www.hsgac.senate.gov/media/majority-media/lieberman-detailsgovernment-management-needs. .......................................................................... Schultze, “What Does It Cost to Provide Electronic Public Access to Court
Records?,” available at
http://managingmiracles.blogspot.com/2010/05/what-is-electronicpublic-access-to.html .......................................................................................... Yu & Schultze, “Using Software to Liberate U.S. Case Law,” available at
https://www.recapthelaw.org/2012/01/10/recap-featured-in-xrdsmagazine/ ..............................................................................................................
iii
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1. STATEMENT OF JURISDICTION
The district court has jurisdiction over this matter pursuant to 28 U.S.C.
§ 1331 because this action arises under the laws of the United States, including U.S.C. § 1914 and the acts of the Judicial Conference in implementing that statute.
This Court has jurisdiction over this appeal under 28 U.S.C. § 1295 because the
decision below is a final decision as to the rights of Applicants-Appellants Jennifer
Gollan and Shane Shifflett (collectively, “Appellants”) and Appellants have no
other effective means of appeal.
2. ISSUE PRESENTED FOR REVIEW
Did the district court err when it interpreted the Judicial Conference Policy
Notes to the Electronic Public Access Fee Schedule as prohibiting courts from
granting a temporary exemption from PACER fees to any journalists, even
journalists performing their research on behalf of a 501(c)(3) non-profit who
requested access for the sole purpose of research to educate the public on issues of
profound public importance, with no profit motive?
3. STATEMENT OF THE CASE
Jennifer Gollan and Shane Shifflett are reporters with the Center for
Investigative Reporting (“CIR”), an educational and charitable section 501(c)(3)
nonprofit organization in California dedicated to public education and engagement
through investigative and enterprise reporting. After requesting and receiving a
temporary exemption from PACER fees to research issues related to the
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effectiveness of the Court’s conflicts system, the district court in the Northern
District of California withdrew that exemption. Based exclusively on its
interpretation of the Judicial Council Policy Notes to the Electronic Public Access
Fee Schedule, the court concluded that it was precluded from granting a fee waiver
to a member of the media, even if that media member was acting on behalf of a
501(c)(3) corporation. Appellants contend that the district court misinterpreted the
Judicial Council Policy Notes in withdrawing the fee waiver it previously had
granted to them.
4. STATEMENT OF FACTS
CIR was granted section 501(c)(3) tax exempt status in 1978 because it was
organized and has always been operated for educational and charitable purposes.
Excerpts of Record (“E.R.”) 018. CIR achieves those purposes primarily, but not
exclusively, through the vehicle of journalism. Id. CIR’s Articles of Incorporation
explain its raison d’etre:
The specific and primary purposes of this corporation are to engage in
charitable and educational activities . . . including but not limited to
the following activities:
1)
To conduct research on important contemporary social,
political, and economic issues and to use on-line and traditional media
forms to disseminate results obtained through the production of news
articles and other printed materials to further public knowledge and
understanding of these important issues;
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2)
To educate the general public and promote free speech
and democracy through the publication of high quality, non-partisan
journalism . . ..”
Id.
CIR’s website emphasizes the difference between it and for-profit media
organizations:
In today’s media landscape, many news organizations no longer
report – they merely repost. The Center for Investigative Reporting
(CIR) is different. We arm the public with thoroughly reported stories
that offer deep explanations of complex issues – from the environment
to immigration, government accountability, education, health,
campaign finance and more. And we cover those stories locally,
nationally and internationally. Founded in 1977, CIR is the nation’s
oldest nonprofit investigative reporting organization – producing
multimedia reporting that enables people to demand accountability
from government, corporations and others in power.
About CIR, available at http://cironline.org/about-cir. CIR’s website goes on to
explain that it is “committed to ‘story before glory,’” and therefore works
collaboratively with other news organizations to develop stories. Id. Thus, for
example, CIR “partnered with NPR for an investigation into intelligence gathering
10 years after the 9/11 attacks.” Id. Similarly, “California Watch is leading a
collaboration of 12 media outlets to report on a proposed $98 billion high-speed
rail system, which would be the most expensive public works project in the state’s
history.” Id.
CIR’s reporting has resulted in a number of journalism awards including, in
the last year alone:
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• CIR received a MacArthur Award for Creative and Effective Institutions
(one of only 15 awarded that year), for its “groundbreaking nonprofit
investigative journalism.” See http://www.macfound.org/press/pressreleases/macarthur-foundation-announces-2012-winners-award-creativeand-effective-nonp

• CIR received a Long Island University George Polk Award for the
California Watch series, “Decoding Prime,” a groundbreaking, yearlong
series of articles demonstrating how a California hospital chain increased its
Medicare reimbursements by classifying patients as suffering from rare
medical conditions. See http://www.liu.edu/About/News/Univ-CtrPR/2012/February/Polk-PR_Feb-20-2012.aspx.• CIR received a Scripps Howard Award for public service, an IRE medal for
outstanding investigative work, and was a Pulitzer finalist in the local
reporting category, all for the California Watch series “On Shaky Ground.”
See http://www.scripps.com/foundation/news/releases/12march16.html;

The announcement explained that “[t]he stories, which appeared in
newspapers across California, offered a glimpse into the broader problem of waste,
fraud and abuse within the nation’s $2.5-trillion health care system. The reporters
sorted through more than 2,500 pages of legal filings and – using an ambitious
computer-assisted data program – examined more than 51 million patient records
of hospital and emergency room visits. In the wake of the series, Congress and the
California State Assembly called for deeper investigations into fraud and
malfeasance.” Id.
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https://ire.org/awards/ire-awards/winners/2011-ire-awards-winners/;
http://www.pulitzer.org/finalists/2012.
“On Shaky Ground” illustrates the breadth of CIR’s educational activities.
E.R. 018-019; see http://www.kqed.org/news/bayarea/onshakyground/. In 2009 a
CIR reporter was given a simple assignment to write about seismic safety at
California schools keyed to the 20th anniversary of the Loma Prieta earthquake.
E.R. 018. However, reporter Corey Johnson discovered a staggering regulatory
failure – thousands of school buildings were occupied even though they did not
meet seismic safety standards. Id. Bad inspectors missed major defects or falsified
reports, while being rewarded with more work. Id. And the state made it
practically impossible for schools to get access to available seismic repair money.
Id. The original “simple assignment” turned into a nineteen month investigation.
Id.
CIR distributed in early April 2011 the original three-part “On Shaky
Ground” series to every major media market in the state, from California’s largest
daily newspapers to television, radio, and the web. E.R. 018-019. The stories
were translated into Spanish, Korean, Chinese and Vietnamese and distributed by
the ethnic media. E.R. 019. Based on circulation numbers and TV and radio
audience size, “On Shaky Ground” reached more than 7 million people over the
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course of three days. Id. Key follow-up stories were distributed throughout the
remainder of 2011. Id.
However, CIR did not stop there. Id. It went to great lengths to engage the
public and raise awareness about the importance of earthquake preparedness. Id.
For young school children, CIR created and produced an earthquake safety
coloring book in five languages and distributed more than 36,000 copies at no
charge to schools. Id. For parents, it compiled an interactive database featuring
every public K-12 school in the state, allowing parents to see if their child attends a
school near faults or with seismically unsafe buildings. Id. CIR assembled safety
packets with whistles and ID cards and handed them out at community events
throughout the state. Id. It also built an iPhone app enabling users to pinpoint
quake faults near them. Id. The app also includes earthquake preparation
checklists and a flashlight.
The positive impact of “On Shaky Ground” has been enormous:
• Shortly after the initial stories were distributed, legislators voted to audit the
office that oversees public school construction in California.
• Regulators vowed to adopt every safety recommendation in the audit report.
• New state standards were created making it possible for schools with known
seismic hazards to tap into a $200 million repair fund.
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• A series of policy changes ensured more safety oversight of school project
and created more accountability measures for safety inspectors.
• Some school officials took matters into their own hands. Superintendents
shut down buildings after learning about potential dangers as a result of the
series.
E.R. 019. CIR’s comprehensive educational efforts are what support its status as a
section 501(c)(3) nonprofit organization.
5. PROCEDURAL HISTORY
On March 19, 2012, Gollan and Shifflett, then reporters for The Bay Citizen,
submitted an application for exemption from the fees imposed for public access to
the PACER system, limited to their work on a specific project and also limited in
time. E.R. 046-049. Gollan and Shifflett advised the court that The Bay Citizen is
“a charitable and educational 501(c)(3) nonprofit organization in California that is
dedicated to informing and engaging the public with incisive research.” E.R. 046.
Their application explained:
Jennifer Gollan and Shane Shifflett of The Bay Citizen intend to
conduct original and comprehensive empirical research by analyzing
the effectiveness of the court’s conflict-checking software and
hardware to help federal judges identify situations requiring their
recusal. We propose to cross reference court records available
through PACER against separate data sets, such as judges’ statements
of economic interest. By harvesting dockets from PACER and
analyzing their grammatical patterns, we intend to design processes
that classify documents and search them for context. This project
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would involve accessing PACER records in the Northern District of
California.
E.R. 047. It continued that the fee waiver was necessary because The Bay Citizen
has limited funding and is wholly dependent on donations, and therefore without a
waiver, Gollan and Shifflett would be unable to do the research. Id.2 It stated that
the reporting they intended to conduct would be available on The Bay Citizen’s
website, which would “increase the public’s understanding of the federal judiciary
and its commitment to accountability,” thereby increasing “the public’s trust in the
legal system by providing greater transparency into the recusal process arising
from financial conflicts of interest.” E.R. 048. They requested a temporary fee
waiver, lasting only a few months, which they believed would be adequate for
them to harvest the data they needed to conduct their analysis. E.R. 046-047.

As one commentator pointed out, court documents are only available
through PACER. Yu & Schultze, “Using Software to Liberate U.S. Case Law,”
available at https://www.recapthelaw.org/2012/01/10/recap-featured-in-xrdsmagazine/. Thus, “[a]cademics who want to study large quantities of court
documents are effectively shut out. Also affected are journalists, non-profit
groups, and other interested citizens, whose limited budgets make paying for
PACER access an unfair burden.” Id. In his March 25, 2010 letter to the Senate
Appropriations Committee addressing funding needs for 2011, Homeland Security
and Governmental Affairs Chairman Joe Lieberman expressed his concern about
public access. Letter from Sen. Lieberman to Sen. Richard Durbin, Chairman,
Subcommittee on Financial Services and General Government, Committee on
Appropriations, available at http://www.hsgac.senate.gov/media/majoritymedia/lieberman-details-government-management-needs. Sen. Lieberman
recommended changes that “could allow for free bulk access to raw data that
would allow increased analytical and oversight capability by third parties.” Id.
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The Court granted their application on March 21, 2012. E.R. 040-045.
Shortly later (at some point before April 10, 2012), the Court realized that Gollan
and Shifflett may be “members of the media,” which the Court stated may render
them ineligible for a PACER fee exemption under the Policy Notes to the Fee
Schedule. E.R. 037. The Court scheduled a hearing for April 30, 2012 to address
this issue. Id.
Effective on the date of the hearing The Bay Citizen merged with and into
the Center for Investigative Reporting (“CIR”), and Gollan and Shifflett became
employees of CIR. E.R. 027. Thus, counsel for CIR and Gollan and Shifflett
appeared at the hearing. Id. The Court explained that it had not initially focused
on the fact that Gollan and Shifflett might fairly be classified as members of the
media. E.R. 028. It continued:
And once my attention was drawn to – that the exemption – it’s a
policy kind of an exemption that is established by the administrative
office of the court, is that PACER exemptions not be granted to the
media, because you can understand, quite frankly, there are lots of
media that would wish to cover the court in various ways. So as not
to discriminate among them, 501(c)(3) or otherwise, the guidance that
we were given was to not exempt the media as a class.
E.R. 028-029. After Appellants’ counsel pointed out that the 501(c)(3) status
focuses on the charitable purposes of the organization, and not whether the
organization is a media entity (E.R. at 029-031), the court responded, “that poses
perhaps a dilemma for the court in following the policy, because I’m directed that
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the exemption should not be granted to media ordinarily” (E.R. 032). The court
explained that it intended to reconsider the application with the understanding that
Gollan and Shifflett “are members of the media.” Id. The court ordered an
immediate suspension of the exemption, although it recognized the importance of
the work being done by Appellants. E.R. 033-034. That day, the Court issued an
order revoking the fee waiver previously granted to Gollan and Shifflett and
permitting them to file a renewed application. E.R. 023-024.
Gollan and Shifflett filed their renewed Application on May 8, 2012. E.R.
015-022. In it, they reiterated their reason for conducting the research they
intended (repeating what they had stated in their initial application). E.R 017.
They explained CIR’s mission and discussed some of the reporting and related
work it had conducted in recent years. E.R. 018-019. After analyzing the Fee
Schedule and Policy Notes, they committed to abide by the Court’s requirements
for a fee waiver,3 and asked the court to reinstate the waiver. E.R. 020. The Court

The district court did not dispute Appellants’ commitment to comply with
the requirements established by the Judicial Council. As required by the PACER
Fee Schedule, Gollan and Shifflett assured the court that “CIR and its reporters
understand and agree that the fee exemption (i) will apply only apply [sic] to
Gollan and Shifflett, (ii) will be valid only for the research study described above,
and (iii) will apply only to the electronic case files of this court that are available
through PACER. While the research study may yield published reports, CIR and
its reporters agree not to use the raw data obtained through the fee exemption for
commercial purposes or Internet redistribution, and not to transfer any of the data
unless authorized by the Court.” E.R. 020.
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refused, issuing its order on May 16, 2012, denying the requested fee waiver. E.R.
011-013. This timely appeal followed. E.R. 001-010.
6. STANDARD OF REVIEW
This case addresses the question of whether the district court properly
interpreted the Electronic Public Access Fee Schedule promulgated by the Judicial
Counsel (the “Fee Schedule”) and the related Judicial Conference Policy Notes
(the “Policy Notes”). The district court’s interpretation and construction of federal
law are questions of law reviewed de novo. See, e.g., San Luis & Delta-Mendota
Water Auth. v. United States, 672 F.3d 676, 699 (9th Cir. 2012); Lively v. Wild
Oats Markets, Inc., 456 F.3d 933, 938 (9th Cir. 2006). In addition, the
constitutionality of a federal statute is reviewed de novo. See Doe v. Rumsfeld, F.3d 980, 984 (9th Cir. 2006); The Ecology Center v. Castaneda, 426 F.3d 1144,
1147 (9th Cir. 2005) (Flathead and Kootenai National Forest Rehabilitation Act).
This Court should review de novo the trial court’s ruling because it is based
exclusively on the court’s interpretation of the Fee Schedule and Policy Notes and
all relevant facts are undisputed.
7. SUMMARY OF ARGUMENT
This case presents a single discrete issue: Did the district court err when it
interpreted the Judicial Council Policy Notes to hold that no members of the press
can receive a benefit (a fee waiver) that is available to all other qualified citizens,
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where the benefit is denied to the press solely because they are members of the
press? As explained below, the answer can only be that the Court erred.
On de novo review, this Court should reverse the district court’s
interpretation of the Judicial Council Policy Notes and reinstate the PACER fee
waiver that the Court previously had granted to Appellants. The court
misinterpreted the Policy Notes, which only prohibit fee waivers for members of
the media if they are not one of the groups identified in the Fee Schedule
(including 501(c)(3) organizations). Because CIR is a 501(c)(3) organization, it is
eligible for the fee waiver.
Moreover, the fee waiver is fundamentally important here. Gollan and
Shifflett hope to conduct an independent review and analysis of the effectiveness
of this Court’s conflict system – an analysis that indisputably will contribute to the
transparency that is a fundamental goal of the Court. The interpretation adopted by
the district court, which denies a valuable benefit to CIR solely because it is a
member of the media, will frustrate the transparency in court proceedings that this
Court consistently has embraced. It should be reversed.
8. ARGUMENT
28 U.S.C. § 1914(b) authorizes the district courts to collect such fees “as are
prescribed by the Judicial Conference of the United States.” Pursuant to this
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authority, the Judicial Conference has adopted the Fee Schedule, governing access
to documents through the PACER system. That Fee Schedule provides in part:
Consistent with Judicial Conference policy, courts may, upon a
showing of cause, exempt indigents, bankruptcy case trustees,
individual researchers associated with educational institutions, courts,
section 501(c)(3) not-for-profit organizations, court appointed pro
bono attorneys, and pro bono ADR neutrals from payment of these
fees. Courts must find that parties from the classes of persons or
entities listed above seeking exemption have demonstrated that an
exemption is necessary in order to avoid unreasonable burdens and to
promote public access to information. For individual researchers,
courts must also find that the defined research project is intended for
academic research, and not for commercial purposes or internet
redistribution. Any user granted an exemption agrees not to sell for
profit the data obtained as a result.
E.R. 022 (emphasis added); see Electronic Public Access Fee Schedule, available
at http://www.pacer.gov/documents/epa_feesched.pdf.
As shown, the Fee Schedule authorizes exemptions from fees for access to
the PACER database, upon a showing of cause, for section 501(c)(3) not-for-profit
organizations, among others. There is no dispute – and the district court agreed –
that because CIR has been classified by the IRS as a section 501(c)(3) not-forprofit organization since May 1978, it is part of a group eligible for exemption
from PACER fees under the plain language of the Fee Schedule. E.R. 027-029,
040-042.
However, the Judicial Council also clarified the authority of the district
courts to grant a fee waiver. Its Policy Notes addressing this issue state in part:
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Courts should not exempt local, state or federal government agencies,
members of the media, attorneys or others not members of one of the
groups listed above.
E.R. 022, Judicial Council Policy Notes. The district court concluded that under
the Policy Notes, the court is required to deny a fee waiver exemption to all
members of the media, and thus that the court had no discretion to permit a fee
waiver to Appellants. E.R. 029. But the court erred in its interpretation of the
Policy Notes.
A careful analysis of the language of the Policy Notes makes clear that it is
not intended to exempt all members of the media from the PACER fee waiver
provisions. Instead, the Notes make clear that only those members of the media
that are for-profit organizations are ineligible for the fee waiver. The Policy Notes
state that the court should not exempt “members of the media … or others not
members of one of the groups listed above.” E.R. 022. Thus, the Policy Notes
assume that the “members of the media” referenced in the Policy Notes are “not
members of one of the groups listed above,” i.e., not 501(c)(3) organizations or
otherwise eligible for an exemption. “Members of the media” is offered as an
example of one of the entities that may not receive a fee waiver, because members
of the media – typically – are not members of one of the groups entitled to a fee
waiver.
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The other example provided by the Judicial Conference makes this point
more clearly. In addition to “members of the media,” the Policy Notes direct
courts to not grant PACER fee exemptions to attorneys. E.R. 022. Yet, this
prohibition plainly does not apply to all attorneys because the Fee Schedule
explicitly authorizes fee exemptions for court appointed pro bono attorneys. Thus,
while the Policy Notes state that “attorneys” – without limitation or qualification –
may not receive a fee waiver, the Fee Schedule itself establishes that this
prohibition is qualified. Some attorneys – pro bono attorneys – are entitled to fee
waivers. Pro bono attorneys are not part of the “others not members of one of the
groups listed above” who are ineligible to receive a fee waiver.
The reference to “members of the media” in the Policy Notes should receive
a parallel interpretation. Malcom v. Payne, 281 F.3d 951, 958 & n.2 (9th Cir.
2002) (giving statutes parallel interpretation due to their similarities); Lonberg v.
Sanborn Theaters Inc., 259 F.3d 1029, 1035 (9th Cir. 2001) (giving statutes
parallel interpretation in part because of problems that may flow out of alternative
interpretation). Like “attorneys,” “members of the media” is qualified, and
encompasses only those members of the media that are not “one of the groups
listed above.” But CIR is “one of the groups listed above” – a 501(c)(3)
organization. It will not profit from the research it intended to undertake. It is
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eligible for a PACER fee waiver and should not be denied that benefit merely
because it is – in addition to a 501(c)(3) organization – a press organization.
Any other interpretation would raise serious constitutional questions about
the Fee Schedule and Policy Notes. Plainly, government cannot discriminate
against the press by denying its members a benefit it affords to others. As the U.S.
Supreme Court explained in Minneapolis Star & Tribune Co. v. Minnesota
Commissioner of Revenue, 460 U.S. 575 (1983), “differential treatment [of the
press], unless justified by some special characteristic of the press, suggests that the
goal of the regulation is not unrelated to suppression of expression, and such a goal
is presumptively unconstitutional.” Id. at 585 (rejecting tax imposed only on
newspapers).
This Court similarly has rejected a fine that was imposed based on the
content of speech, finding that it was “unnecessary to the achievement of any
legitimate state goal” and therefore that “the presumption of unconstitutionality
cannot be rebutted here.” J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482, (9th Cir. 1984), overruled on other grounds, Brockett v. Spokane Arcades, Inc.,
472 U.S. 491 (1985). The Court explained that the state “could have achieved its
legislative goals by more carefully tailored means that would be less restrictive of
free expression.” Id. (citation omitted).
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The district court’s interpretation of the Policy Notes does exactly what this
Court and the Supreme Court have condemned.4 The district court found that
Gollan and Shifflett were entitled to a fee waiver exemption, which it granted.
E.R. 040-042. It then withdrew that exemption only because the court became
aware that Gollan and Shifflett were members of the media. E.R. 011-012, 029,
037-038. This overtly disparate treatment of a press organization is a fortiori
unconstitutional.
Gollan and Shifflett do not suggest that the court had an improper motive,
nor is it necessary for the Court to find one to reverse the district court’s
interpretation of the Policy Notes. As the Supreme Court explained, “[i]llicit
legislative intent is not the sine qua non of a violation of the First Amendment. …
We have long recognized that even regulations aimed at proper governmental
concerns can restrict unduly the exercise of rights protected by the First
Amendment.” Id. at 592 (citations omitted); see also Arkansas Writers’ Project,
Inc. v. Ragland, 481 U.S. 221, 228 (1987) (discriminatory treatment of the press
“can be established even where, as here, there is no evidence of an improper
censorial motive” (citation omitted)).
There also is no question that the court will not be harmed by granting the
exemption. The district court made clear that Gollan and Shifflett’s use of the fee
waiver to access court records – while it was available to them – caused no
technical interference to the PACER system. E.R. 033. Moreover, as one noted
academic found, the courts receive a significant financial benefit from PACER fees
– far more than their expenses associated with the PACER system. See Schultze,
“What Does It Cost to Provide Electronic Public Access to Court Records?,”
available at http://managingmiracles.blogspot.com/2010/05/what-is-electronicpublic-access-to.html. Thus, granting PACER fee waivers to those few members
of the media who also are 501(c)(3) organizations would not impose an undue
expense on the courts.
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The district court’s interpretation would frustrate a key goal of the fee
exemption and of this Court – transparency in the court system – by denying the
fee exemption to the very organizations that are most likely to provide the kind of
careful analysis that most benefits the public. As CIR explains on its website, it is
dedicated to in-depth investigation and reporting to facilitate public oversight of all
levels of government (and others). This type of investigation is both
fundamentally necessary and increasingly scarce, as for-profit media organizations
cut costs in response to the challenges of a severe recession combined with a
changing market.
Here, for example, Gollan and Shifflett hoped to conduct thorough, careful
research, to evaluate the efficacy of the conflict system used in the district courts.
E.R. 017. Nobody can deny the importance of this issue to the public, and to the
judiciary as a whole. To perform this research, Gollan and Shifflett asked for –
and initially received – a temporary fee waiver, allowing them unfettered access to
the court’s public records for a few months. E.R. 040-042. They received this
exemption so that they could
cross reference court records available through PACER against
separate data sets, such as judges’ statements of economic interest.
By harvesting dockets from PACER and analyzing their grammatical
patterns, we intend to design processes that classify documents and
search them for context.
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E.R. 047. They explained, however, that without the fee waiver, the project would
require extensive PACER access “at an anticipated cost of many thousands of
dollars.” Id. Thus, they explained, because of their non-profit status, they will not
be able to conduct the research they planned without a fee waiver. Id. In denying
that fee waiver, and withdrawing the unfettered access that Gollan and Shifflett
need to conduct their research, the transparency consistently embraced by this
Court was thwarted.
Under the district court’s interpretation, the very people who are most likely
to conduct government oversight are at a disadvantage, and charged for the access
that is free to others. The skewed result is less information and analysis to the
public at a time when they most need it. As a non-profit organization, CIR is
eligible for a fee waiver, as evidenced by the district court’s initial grant of Gollan
and Shifflett’s application. E.R. 040-042. The court erred in interpreting the
Policy Notes to deny them that benefit solely because they provide the public
service of in-depth research and analysis to gather information for dissemination to
the public.
9. CONCLUSION
The district court’s interpretation of the Policy Notes resulted in disparate
treatment of Gollan and Shifflett because of their status as members of the press.
The court erred in reading the Policy Notes as an absolute prohibition on fee
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waivers for members of the press. A more reasonable interpretation – one that
protects public access while ensuring that organizations that can pay for access do
so – is that members of the press may be exempted from PACER fees if they fall
into one of the groups identified in the Fee Schedule. Gollan and Shifflett, as
employees of a 501(c)(3) organization, plainly were eligible for a waiver. The
court erred in withdrawing that waiver.
For the foregoing reasons, Gollan and Shifflett respectfully request that the
Court reverse the order of the district court and hold that all non-profits, including
members of the press, are eligible for a fee waiver under the Electronic Public
Access Fee Schedule and Policy Notes.
RESPECTFULLY SUBMITTED this 22nd day of October, 2012.
LAW OFFICES OF JUDY ALEXANDER
JUDY ALEXANDER
DAVIS WRIGHT TREMAINE LLP
THOMAS R. BURKE
ROCHELLE L. WILCOX
By /s/ Thomas R. Burke
Thomas R. Burke
Attorneys for Applicants-Appellants
JENNIFER GOLLAN and SHANE SHIFFLETT
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CERTIFICATE OF COMPLIANCE
The foregoing brief complies with the requirements of Circuit Rule 32. The
brief is proportionately spaced in Times New Roman 14-point type. According to
the word processing system used to prepare the brief, the word count of the brief is
4,611, not including the table of contents, table of citations, certificate of service,
certificate of compliance, statement of related cases, or any addendum containing
statutes, rules or regulations required for consideration of the brief.
RESPECTFULLY SUBMITTED this 22nd day of October, 2012.
LAW OFFICES OF JUDY ALEXANDER
JUDY ALEXANDER
DAVIS WRIGHT TREMAINE LLP
THOMAS R. BURKE
ROCHELLE L. WILCOX
By /s/ Rochelle L. Wilcox
Rochelle L. Wilcox
Attorneys for Applicants-Appellants
JENNIFER GOLLAN and SHANE SHIFFLETT
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STATEMENT OF RELATED APPEALS
Pursuant to Ninth Circuit Rule 28-2.6, Appellants-Applicants, Jennifer
Gollan and Shane Shifflett, state that they are not aware of any related appeals
pending in this Court.
RESPECTFULLY SUBMITTED this 22nd day of October, 2012.
LAW OFFICES OF JUDY ALEXANDER
JUDY ALEXANDER
DAVIS WRIGHT TREMAINE LLP
THOMAS R. BURKE
ROCHELLE L. WILCOX
By /s/ Thomas R. Burke
Thomas R. Burke
Attorneys for Applicants-Appellants
JENNIFER GOLLAN and SHANE SHIFFLETT
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No. 12-UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: APPLICATION FOR EXEMPTION FROM ELECTRONIC PUBLIC
ACCESS FEES BY JENNIFER GOLLAN AND SHANE SHIFFLETT,
JENNIFER GOLLAN; SHANE SHIFFLETT,
Applicants-Appellants.
On Appeal from the United States District Court
for the Northern District of California
D.C. No. 3:12-mc-80113-JW
(Honorable James Ware)
__________________________________________________
APPLICANTS-APPELLANTS JENNIFER GOLLAN AND
SHANE SHIFFLETT’S EXCERPTS OF RECORD
__________________________________________________
THOMAS R. BURKE (SB# 141930)
thomasburke@dwt.com
ROCHELLE L. WILCOX (SB# 197790)
rochellewilcox@dwt.com
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite San Francisco, California Telephone: (415) 276-Facsimile: (415) 276-
JUDY ALEXANDER (SB# 116515)
jalexander@judyalexander.com
2302 Bobcat Trail
Soquel, CA Telephone: (831) 462-
Attorneys for Applicants-Appellants
JENNIFER GOLLAN and SHANE SHIFFLETT
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INDEX
TAB
1.
2.
3.
4.
5.
6.
7.
8.
9.
DESCRIPTION
(CITATION)
DOCKET/
RT CITE
Applicants Jennifer Gollan
and Shane Shifflett’s Notice
of Appeal to the United States
Court of Appeals For The
Ninth Circuit
Order Denying Application
For Exemption From
Electronic Public Access Fees
Renewed Application For
Exemption From Pacer Fees
Order Revoking Exemption
From Electronic Public
Access Fees
Transcript of Proceedings
Notice of Hearing Regarding
Revocation of Exemption
From Electronic Public
Access Fees
Order Granting Exemption
From Electronic Public
Access Fees
Application for Exemption
From Pacer Fees
CIVIL DOCKET FOR CASE
#: 3:12-MC-80113-JW

F: 06/12/
001-
F: 05/16/
011-
F: 05/08/
015-
N/A
D: 04/30/
023-
N/A
N/A
D: 04/30/D: 04/10/
026-037-
N/A
D: 03/21/
040-
N/A
D: 03/19/
046-
N/A
N/A
050-
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RESPECTFULLY SUBMITTED this 22nd day of October, 2012.
LAW OFFICES OF JUDY ALEXANDER
JUDY ALEXANDER
DAVIS WRIGHT TREMAINE LLP
THOMAS R. BURKE
ROCHELLE L. WILCOX
By /s/ Thomas R. Burke
Thomas R. Burke
Attorneys for Applicants-Appellants
JENNIFER GOLLAN and SHANE SHIFFLETT
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007
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012
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