                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 IN RE: APPLICATION FOR EXEMPTION                No. 12-16373
 FROM ELECTRONIC PUBLIC ACCESS
 FEES BY JENNIFER GOLLAN AND                       D.C. No.
 SHANE SHIFFLETT,                               3:12-mc-80113-
                                                      JW

 JENNIFER GOLLAN; SHANE
 SHIFFLETT,                                        OPINION
             Applicants-Appellants.


        Appeal from the United States District Court
          for the Northern District of California
          James Ware, District Judge, Presiding

                    Argued and Submitted
          June 10, 2013—San Francisco, California

                     Filed August 29, 2013

Before: Diarmuid F. O’Scannlain and Andrew D. Hurwitz,
 Circuit Judges, and Lawrence L. Piersol, Senior District
                        Judge.*

              Opinion by Judge O’Scannlain;
             Concurrence by Judge O’Scannlain

  *
    The Honorable Lawrence L. Piersol, Senior United States District
Judge for the District of South Dakota, sitting by designation.
2            IN RE: APPLICATION FOR EXEMPTION

                           SUMMARY**


                      Appellate Jurisdiction

    The panel dismissed for lack of jurisdiction an appeal
from the district court’s order denying an ex parte application
for an exemption from the fees associated with electronic
access to court records.

    As authorized by Congress, the fee protocol for users of
the Public Access to Court Electronic Records system was set
by the Judicial Conference of the United States, in
cooperation with the Administrative Office of the Courts. The
PACER fee waiver was sought by two journalists who were
employed by a not-for-profit organization and wished to
conduct a research project.

    The panel held that it did not have jurisdiction under
28 U.S.C. § 1291 to review the district court’s order because
the order was an administrative order outside the scope of the
court’s litigative function, rather than a “decision” of the
district court. Distinguishing an unpublished decision of the
Third Circuit and United States v. Poland (In re Derickson),
640 F.2d 946 (9th Cir. 1981) (per curiam), the panel held that
the order was administrative because it arose from a non-
adversarial proceeding, and the application for a fee
exemption was wholly unconnected to pending litigation.

    Concurring specially, Judge O’Scannlain wrote that,
assuming ordinary PACER-fee determinations are not

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            IN RE: APPLICATION FOR EXEMPTION                 3

reviewable by the judiciary’s administrative apparatus,
including the Judicial Conference and the Judicial Council of
the Circuit, it will be up to Congress to decide whether to
fashion an appellate-review mechanism, or whether to leave
the fee determinations within the exclusive purview of district
courts.


                         COUNSEL

Rochelle L. Wilcox, Davis Wright Tremaine LLP, San
Francisco, CA, argued the cause and filed the briefs for the
applicants-appellants. With her on the briefs was Thomas R.
Burke, Davis Wright Tremaine LLP, San Francisco, CA.

H. Thomas Byron III, United States Department of Justice,
Civil Appellate Division, Washington, DC, argued the cause
and filed the brief for the Administrative Office of the United
States Courts as amicus curiae. With him on the brief were
Stuart F. Delery, Principal Deputy Assistant Attorney
General, United States Department of Justice, Washington,
DC, Melinda L. Haag, United States Attorney for the
Northern District of California, Matthew M. Collette,
Attorney, United States Department of Justice, Civil
Appellate Division, Washington, DC, Robert K. Loesche,
General Counsel, Administrative Office of United States
Courts, Washington, DC, and Sigmund Adams, Attorney,
Administrative Office of United States Courts, Washington,
DC.
4            IN RE: APPLICATION FOR EXEMPTION

                             OPINION

O’SCANNLAIN, Circuit Judge:

    We must consider our power to review a district court’s
administrative order denying an exemption from the fees
associated with electronic access to court records.

                                   I

                                  A

    With the Public Access to Court Electronic Records
(“PACER”) system users can view and print case filings,
judicial opinions, and other docket information from the
federal trial, bankruptcy, and appellate courts. Congress has
authorized the Judicial Conference of the United States1 to
raise funds to support PACER by setting appropriate user
fees. In order to ensure the fees do not impair public access
to the courts, Congress directed the Judicial Conference to
“provide for exempting persons or classes of persons” for
whom fees would be an unreasonable burden. Departments
of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, Pub. L. No. 102-140, Title III
§ 303, 105 Stat. 782 (1992).

    In cooperation with the Administrative Office of the
Courts, the Judicial Conference has devised a fee protocol for
PACER. Anyone may use the terminals in the nation’s
federal courthouses to view court documents at no charge.
However, non-litigants who want access to documents

  1
    This is the body of circuit and district judges chaired by the Chief
Justice of the United States. See 28 U.S.C. § 331.
            IN RE: APPLICATION FOR EXEMPTION                 5

remotely, using the Internet, are subject to a fee of ten cents
per page. But in accord with Congress’s directive about
exemptions, the 2012 PACER fee schedule called on district
courts to consider exempting, “indigents, bankruptcy case
trustees, individual researchers associated with education
institutions, courts, section 501(c)(3) not-for-profit
organizations, court appointed pro bono attorneys, and pro
bono ADR neutrals from payment of these fees.” Electronic
Public Access Fee Schedule of April 1, 2012. The Judicial
Conference also annotates the fee schedule with policy notes
designed to help courts apply its terms. According to its 2012
policy notes, “[c]ourts should not exempt local, state or
federal government agencies, members of the media,
attorneys or others not members of one of the groups listed”
in the fee schedule.

                              B

    Jennifer Gollan and Shane Shifflett are journalists with
the Center for Investigative Reporting (“CIR”), a section
501(c)(3) not-for-profit organization that reports on
“contemporary social, political, and economic issues” across
traditional and new media. In March 2012, Gollan and
Shifflett applied in the district court for a four-month
exemption from the per page PACER fee. At the time, they
were employees of The Bay Citizen—another 501(c)(3)
organization involved in journalism. Gollan and Shifflett
wanted to comb court filings in order to analyze “the
effectiveness of the court’s conflict-checking software and
hardware to help federal judges identify situations requiring
their recusal.” They planned to publish their findings on The
Bay Citizen’s website.
6           IN RE: APPLICATION FOR EXEMPTION

    After analyzing the terms of the April 1, 2012 Judicial
Conference Fee Schedule, the district judge issued an order
granting the exemption. He did so because he credited that
their statistical project would be prohibitively expensive for
Gollan and Shifflett’s not-for-profit employer—at a cost of
“many thousands of dollars.” About a week later, the judge
ordered them to show cause why their exemption from
PACER fees “should not be revoked on the ground that they
are members of the media.”

    At an April 30 hearing, Gollan and Shifflett informed the
court that The Bay Citizen had merged into the CIR. The
judge explained that although the fee schedule gave him the
discretion to exempt 501(c)(3) groups, he interpreted the
accompanying policy notes as directing him not to exempt
members of the media. Thus, even presuming their research
project would impose the same financial hardship on the CIR
as The Bay Citizen, CIR’s status as “501(c)(3) Media” meant
that it likely was not qualified for the exemption. Rather than
definitively ruling at the hearing, however, the judge invited
Gollan and Shifflett to submit a renewed application. In it,
they argued that when (1) parsed carefully, and (2) read in
tandem with the exemption language, the policy notes did
allow exemptions for media members who worked for a
501(c)(3) organization. The judge denied the new application
in a May 16, 2012 order, stating that he would not adopt
Gollan and Shifflett’s interpretation in the absence of
authority supporting it. They filed a timely notice of appeal
seeking review of the denial of their application for
exemption.

    Because Gollan and Shifflett are challenging an order
arising out of an ex parte application, we asked the
Administrative Office to appear as amicus to address (1)
              IN RE: APPLICATION FOR EXEMPTION                           7

whether we have appellate jurisdiction, and (2) “whether the
Judicial Conference Policy does in fact prohibit exemptions
for media even when they are employed by a non-profit
organization.”2

                                    II

    The Administrative Office argues we lack jurisdiction
because the denial of the PACER fee waiver is not an
appealable order. The question of appellate jurisdiction
“must always be resolved before the merits of an appeal are
examined or addressed.” Williamson v. UNUM Life Ins. Co.
of Am., 160 F.3d 1247, 1250 (9th Cir. 1998); see also
Terenkian v. Republic of Iraq, 694 F.3d 1122, 1130–31 (9th
Cir. 2012) (analyzing appellate jurisdiction before
determining whether the district court had subject matter
jurisdiction).

     Our court’s authority, indeed, its very existence is
pursuant to legislation enacted by Congress. See U.S. Const.
art. III, § 1; Keene Corp. v. United States, 508 U.S. 200, 207
(1993) (“Congress has the constitutional authority to define
the jurisdiction of the lower federal courts, and, once the lines
are drawn, ‘limits upon federal jurisdiction . . . must be
neither disregarded nor evaded.’” (alteration in original)).
Thus, “in every case, jurisdiction must exist by way of some
affirmative source.” Williamson, 160 F.3d at 1250.




 2
    We also asked the Administrative Office whether we should construe
the notice of appeal as a request for a writ of mandamus. See 28 U.S.C.
§ 1651(a). However, Gollan and Shifflett have not asked us to exercise
jurisdiction on that basis. We thus express no view about that possibility.
8           IN RE: APPLICATION FOR EXEMPTION

                               A

   Like most parties who appear before us, Gollan and
Shifflett identify 28 U.S.C. § 1291 as the source of our
appellate authority. It provides that

        [t]he courts of appeals . . . shall have
        jurisdiction of appeals from all final decisions
        of the district courts of the United States, the
        United States District Court for the District of
        the Canal Zone, the District Court of Guam,
        and the District Court of the Virgin Islands,
        except where a direct review may be had in
        the Supreme Court.

    Gollan and Shifflett argue that when the judge denied
their PACER exemption he made a “decision,” that decision
was “final,” and thus it neatly fits within section 1291's terms.
Finality is not at issue here because the matter of Gollan and
Shifflett’s eligibility for a fee waiver was not “open,
unfinished, or inconclusive.” Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949).

    Instead, the dispute in this appeal is whether the order
insisting that Gollan and Shifflett pay PACER fees ranks “as
a ‘decision’ of the district court within the meaning of
28 U.S.C. § 1291.” United States v. Walton (In re Baker),
693 F.2d 925, 926 (9th Cir. 1982). “Decision” is a term that
could embrace countless acts by district courts. They make
decisions pertaining to “personnel, facilities, equipment,
supplies, budgeting, accounting, security, rulemaking and
public relations.” Rini v. Clerk, United States Bankr. Court
(In re Rini), 782 F.2d 603, 606 (6th Cir. 1986). They
“appoint clerks and bailiffs, order supplies, write and
            IN RE: APPLICATION FOR EXEMPTION                    9

promulgate rules, and so on.” Brooks v. Laws, 208 F.2d 18,
29 (D.C. Cir. 1953). Yet in order fairly to interpret section
1291, we must consider more than “the bare meaning of the
word” decision. Bailey v. United States, 516 U.S. 137, 145
(1995). We must also analyze “its placement and purpose in
the statutory scheme.” Id.; see also King v. St. Vincent’s
Hosp., 502 U.S. 215, 221 (1991) (“Words are not pebbles in
alien juxtaposition; [instead] they have only a communal
existence; and not only does the meaning of each
interpenetrate the other, but all in their aggregate take their
purport from the setting in which they are used. . . .”).

    There are two, interrelated, clues about 1291's meaning:
one constitutional and one rooted in the statute’s history. To
start, it stands to reason that Congress wanted the definition
of our jurisdiction to be construed in the context of the usual
work of courts, which is the adjudication of “cases” and
“controversies.” U.S. Const. art. III., § 2; cf. United States v.
Bailey, 444 U.S. 394, 415 n.11 (1980) (reasoning, in a similar
vein, that Congress “legislates against a background of
Anglo-Saxon common law”). These two constitutional
words—the Supreme Court has explained—“confine ‘the
business of federal courts to questions presented in an
adversary context and in a form historically viewed as
capable of resolution through the judicial process.’”
Massachusetts v. EPA, 549 U.S. 497, 516 (2007) (emphasis
added) (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)); see
also Bense v. Starling, 719 F.2d 241, 244 (7th Cir. 1983) (“It
is essential . . . to the existence of federal judicial power that
10            IN RE: APPLICATION FOR EXEMPTION

there be present before the court a proceeding and that such
proceeding be an adversary one.”).3

    The amendment history of section 1291 further
illuminates its meaning. See Bailey, 516 U.S. at 507. Its
predecessor section provided that

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

             First. In the district courts, in all cases
         save where a direct review of the decision
         may be had in the Supreme Court under
         section 345 of this title.

            Second. In the United States District
         Courts for Hawaii and for Puerto Rico, in all
         cases.

             Third. In the District Court for the
         District of Alaska, or any division thereof, and
         in the District of the Virgin Islands, in all


 3
   The Supreme Court recently decided that there was “adequate Art. III
adverseness” even though one party “largely agree[d] with the opposing
party on the merits of the controversy.” United States v. Windsor,
133 S. Ct. 2675, 2686 (2013). While Windsor arguably refined the
definition of adverseness in circumstances said to be “unusual and
urgent,” presumably a more fulsome definition would apply in a typical
case. Id. at 2688. In any event, nothing in Windsor suggests that it is no
longer accurate to consider “judicial business” as litigation pursued by
counterparties. See id. at 2684 (“[W]hen this case was in the District
Court it presented a concrete disagreement between opposing parties, a
dispute suitable for judicial resolution.”).
            IN RE: APPLICATION FOR EXEMPTION                11

       cases; and in the United States District Court
       for the District of the Canal Zone in the cases
       and modes prescribed in sections 61 and 62,
       Title 7, Canal Zone Code (48 Stat. 1122).

          Fourth. In the Supreme Courts of the
       Territory of Hawaii and of Puerto Rico, in all
       cases, civil or criminal . . . .

           Fifth. In the United States Court of China,
       in all cases.

28 U.S.C. § 225(a) (1940) (emphasis added). In 1948,
Congress recast section 225(a) as what is now section 1291
during a re-codification of the country’s Judicial Code. That
project was undertaken because the array of legislative
enactments concerning courts had not been systematized
since 1911. See William W. Barron, The Judicial Code: 1948
Revision, 8 F.R.D. 439, 440–41 (1948) (cited in John R. Sand
& Gravel Co. v. United States, 552 U.S. 130, 136 (2008)).
Because the project’s goal was simply “to state in clear and
simpler terms the original meaning of the statute revised,”
Barron, supra at 446, we must not “presume that the 1948
revision worked a change in the underlying substantive law
unless an intent to make such a change is clearly expressed.”
John R. Sand & Gravel Co., 552 U.S. at 136 (internal
quotation marks omitted).

    With the enactment of section 1291, the references to
“cases” in each of section 225's original five paragraphs were
eliminated. Although the omission of this word, which
facially “seems to bear upon the courts of appeals’ power to
review administrative actions of district courts,” is not
specifically explained in the drafting history there is also no
12           IN RE: APPLICATION FOR EXEMPTION

language suggesting a substantive change was intended. In
re Rini, 782 F.2d at 606. Quite the opposite in fact. The
Reviser’s Notes make clear that the new section 1291 merely
“rephrase[d] and simplifie[d] paragraphs ‘First,’ ‘Second,’
and ‘Third’ [et cetera] of section 225(a)” that “referred to
each Territory and Possession separately.” H.R. Rep. No. 80-
308, A109 (1947). “Statements made by several of the
persons having importantly to do with the 1948 revision” as
well as the “reports of the Committee on the Judiciary of the
Senate, and of the House” explain that “every change made
in the text is explained in detail in the Reviser[’s] Notes.”
Fourco Glass Co. v. Tansmirra Prods. Corp., 353 U.S. 222,
226–27 (1957).4 It is therefore appropriate to interpret
section 1291 as though it still makes explicit reference to
“final decisions . . . in all cases.” 28 U.S.C. § 225 (1940)
(emphasis added); cf. Keene, 508 U.S. at 209 (declining “to
see significance in the deletion of [certain] language . . . in
the comprehensive revision of the Judicial Code completed in
1948” from the provision on the Court of Federal Claims’s
jurisdiction).

      On the basis of its statutory and constitutional moorings,
we hold that section 1291 “necessarily refers to final
decisions of a judicial character, not to administrative actions
. . . outside the scope of the litigative function.” In re Baker,
693 F.2d at 927; see also Brooks, 208 F.2d at 29 (explaining
that “if every act performed by virtue of judicial power were
deemed a ‘decision’ [under section 1291], there would be no


 4
   The Supreme Court has regularly consulted the legislative history of
section 1291 and the Reviser’s Notes. See, e.g., John R. Sand & Gravel
Co., 552 U.S. at 136 (using both the House Report and Barron’s article);
Keene, 508 U.S. at 209 (relying on the fact that “the Reviser’s Note to
§ 1500 indicates nothing more than a change ‘in phraseology’”).
            IN RE: APPLICATION FOR EXEMPTION                  13

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

                               B

                               1

     Although distinguishing a “judicial decision” from an “an
administrative or ministerial order from which appeal is not
available” is not always simple, two characteristics of the
order denying Gollan and Shifflett’s fee waiver put it
squarely on the administrative side of the line. United States
v. Ray, 375 F.3d 980, 986 n.7 (9th Cir. 2004). First, it arises
from a non-adversarial proceeding. See Massachusetts,
549 U.S. at 516. There was no party to oppose their request
below, and we have no appellee before us. See In re Carlyle,
644 F.3d 694 (8th Cir. 2011) (Riley, J., in chambers)
(concluding that “the non-adversarial nature of the [Criminal
Justice Act] voucher process, which is wholly ex parte,
evidences an administrative act not a judicial decision.”).
Second, and what makes this appeal easy to resolve, is that
the application for exemption is wholly unconnected to
pending litigation. See In re Long, 475 F.3d 880 (7th Cir.
2007) (“The order excluding Long from the library is an
administrative rather than a judicial order. No proceeding has
been instituted against Long. . . . Such an action is not
judicial; rather it is the kind of action that the person against
whom it was taken might seek judicial redress for.”); Bense
v. Starling, 719 F.2d 241, 244 (7th Cir. 1983) (no appeal from
rejection of pro hac vice application because without the
filing of a complaint under Federal Rule of Civil Procedure
3 there was no “case” or true “‘parties’ before the Court”).
Gollan and Shifflett have not filed a civil action, nor do they
14            IN RE: APPLICATION FOR EXEMPTION

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

    One of Gollan and Shifflett’s contentions on appeal is that
if the fee schedule does require courts categorically to
exclude media members from fee waivers, it is an
unconstitutional discrimination against the press. See
Minneapolis Star & Tribune Co. v. Minn. Comm’r of
Revenue, 460 U.S. 575, 582–83 (1983) (explaining that the
First Amendment prohibits certain regulations that single out
the media for “differential treatment”). If they initiate a civil
action seeking to enjoin the fee schedule and policy notes
under the Constitution, then that may well lead to a decision
that we have the power to review. See, e.g., Russell v. Hug,
275 F.3d 812, 819–23 (9th Cir. 2002) (entertaining an appeal
from a judgment dismissing a complaint alleging a Criminal
Justice Act Plan for the Northern District of California
violated the Constitution, while declining to review the
substance of the plan because our power “to review final
judgments of the district courts, conferred by 28 U.S.C.
§ 1291, does not authorize us to engage in supervisory
oversight of administrative actions of the district courts”).5

 5
   The official position of the Administrative Office is that the April 2012
policy “notes identifying those generally ill-suited to an exemption [are]
neither exclusive nor categorical.” But, it acknowledges that the policy
was confusing and in need of revision. That clarification occurred in April
2013, while this appeal was pending. According to the Administrative
Office, Gollan and Shifflett should now be able to qualify for a PACER
exception under the 2013 fee schedule and policy notes provided they
document financial hardship. As explained to us by the Administrative
Office, a judge need not exempt a 501(c)(3) group under the new policy
notes, although he should consider doing so since most not-for-profits
have limited budgets. By the same token, a judge should approach an
application for exemption filed by “members of the media” with caution,
since media organizations typically will “have the ability to pay the fee.”
              IN RE: APPLICATION FOR EXEMPTION                          15

   However, because the order denying Gollan and Shifflett
a PACER fee exemption comes to us today strictly in an
administrative context we may not review it under section
1291.

                                     2

    We recognize that one of our sister circuits allowed an
appeal from the denial of PACER fees. See Zied-Campbell
v. Richman, 317 F. App’x 247 (3d. Cir. 2009) (unpublished
per curiam). That appeal, however, was taken by a civil
plaintiff who had named the Secretary of the Pennsylvania
Department of Welfare as a defendant in a lawsuit. See id. at
248. As opposed to Gollan and Shifflett who seek to conduct
research unconnected to a case, Zied-Campbell wanted to use
PACER as a substitute for Westlaw (a commercial legal
research application) so she could retrieve legal authorities
relevant to her pending litigation. Id. at 249.

    Pointing to an authority from our circuit, Gollan and
Shifflett also claim that they may appeal on the basis of
United States v. Poland (In re Derickson), 640 F.2d 946 (9th
Cir. 1981) (per curiam). The appellant was an attorney
appointed under the Criminal Justice Act (“CJA”) “to
represent defendant Michael Kent Poland, who was charged
with murder and bank robbery.” Id. at 947. The attorney had
represented Poland at a four-week jury trial, and fifteen


Electronic Public Access Fee Schedule of April 1, 2013 (reprinted at
28 U.S.C. § 1914 (West. 2013)).

    The Administrative Office has no objection to Gollan and Shifflett’s
reapplying in the district courts now that the fee schedule and policy notes
have been revised.
16          IN RE: APPLICATION FOR EXEMPTION

months after his client’s conviction sought payment for
services rendered. Id. Because it came after a forty-five-day
period for submitting a CJA voucher, the judge concluded
that he was “compelled not to recommend any payment on
the application submitted[,] on the sole ground that (the
court) lack(ed) jurisdiction.” Id. at 949. We held that the
attorney could appeal such denial, because it fell “within that
‘small class (of claims) which finally determine claims of
right (too important to be denied review, and) separable from,
and collateral to, rights asserted in the (underlying) action.”
Id. at 948 (quoting Cohen, 337 U.S. at 546). The fact that
there is no underlying action here makes In re Derickson
distinguishable for the same reason as Zied-Campbell.

    There are two other critical reasons why In re Derickson
is not the ticket to appellate jurisdiction that Gollan and
Shifflett hope to obtain. First, as later cases have noted, In re
Derickson was unique in that the lawyer sought to appeal
from a “district court’s decision that it lacked jurisdiction
under the CJA to award fees at all.” United States v. Ray,
375 F.3d 980, 986 n.7 (9th Cir. 2004) (emphasis added); see
also United States v. French, 556 F.3d 1091, 1094–95 (10th
Cir. 2009) (identifying the jurisdictional limit as Derickson’s
key feature). By contrast, the judge did not articulate any
jurisdictional limit on his power to entertain an application
for exemption such as Gollan and Shifflett’s; rather he simply
interpreted the fee schedule in a fashion that would have
excluded them. Second, Derickson does not analyze the
principle at the heart of today’s appeal—the notion that
section 1291 only embraces decisions of a judicial, as
              IN RE: APPLICATION FOR EXEMPTION                            17

opposed to administrative, character. See In re Derickson,
640 F.2d at 947–48.6

                                     III

    For the foregoing reasons, Gollan and Shifflett’s appeal
is DISMISSED for lack of appellate jurisdiction.7



O’SCANNLAIN, Circuit Judge, concurring specially:

    I write individually to acknowledge “the elephant in the
room”: to whom does one go for review when an application
for an exemption from PACER fees has been denied?


  6
    Gollan and Shifflett expansively read In re Derickson. In their view,
it paves the way for appellate jurisdiction over all challenges to “a district
court’s construction or interpretation of a rule or law committed to the
district court to administer.” We decline to draw a broadly applicable
maxim from the case considering that its legal analysis strictly explored
what “finality” means under 1291. In re Derickson, 640 F.2d at 947–48.
The following year, when we decided that the amount of a CJA voucher
was a non-appealable determination, we looked (as we have in this appeal)
to the contours of the term “decision.” See In re Baker, 693 F.2d at
926–27 (“Our jurisdiction to entertain the present appeal must therefore
arise, if at all, from 28 U.S.C. § 1291, which grants us jurisdiction over
appeals ‘from all final decisions of the district courts.’ Baker contends that
the district court’s certification is ‘final’ within the meaning of Cohen v.
Beneficial Industrial Loan Corporation, 337 U.S. 541, 546 (1949). We
agree that the district court’s order is ‘final’ with regard to Baker’s fees,
but we cannot regard it as a ‘decision’ of the district court within the
meaning of 28 U.S.C. § 1291.”).
  7
    Gollan and Shifflet’s July 10, 2013 Motion to Supplement the Record
is GRANTED.
18           IN RE: APPLICATION FOR EXEMPTION

    We posed just this question to the Administrative Office
at oral argument. Since the Judicial Conference is the body
Congress tasked with writing the fee schedule, naturally, the
Administrative Office suggested that comments about either
the clarity or substantive coverage of the policy could be
directed there. By statute, the Judicial Conference studies
“the condition of business in the courts of the United States”
and makes recommendations “to the various courts to
promote uniformity of management procedures and the
expeditious conduct of court business.” 28 U.S.C. § 331.
Reviewing individual applications for exemption such as
Gollan and Shifflett’s, however, would not be—as the
Administrative Office recognized—consistent with this broad
national mission.

    PACER fee determinations are just one of the “increasing
numbers of administrative responsibilities” being assigned to
district courts “that are not subject to review by appeal.” 15A
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 3903 (2d. ed. 1992). The authors of a
leading treatise on federal procedure argue that perhaps
“control may be exercised by the Judicial Council of the
Circuit.” Wright & Miller, supra, at § 3903. Comprised of
district and circuit judges, but not vested with “traditional
judicial powers,” the Circuit Council has been described as a
“‘board of directors’ for the circuit.” Chandler v. Judicial
Council of the Tenth Circuit of the United States, 398 U.S.
74, 86 n.7 (1970); see also 28 U.S.C. § 332. Outside of the
realm of judicial-misconduct allegations,1 the Judicial


  1
     For a synopsis of that aspect of the Judicial Councils’ work, see
J. Clifford Wallace, Resolving Judicial Corruption While Preserving
Judicial Independence: Comparative Perspectives, 28 Cal. W. Int’l
L.J.341, 348–51 (1998).
            IN RE: APPLICATION FOR EXEMPTION                19

Councils typically “avoid involvement with any matter
specific to the decision of an individual case.” Wright &
Miller, supra, at § 3939. Under extraordinary circumstances
not present here, i.e. a district court interpreting the fee
schedule in bad-faith, the Administrative Office thought it
was conceivable that those circuit bodies might appropriately
deal with a PACER fee dispute. Cf. J. Clifford Wallace,
Report of the Committee on Reorganization of the Circuit
Conference and Conference Committees, 68 F.R.D. 469, 474
(1975) (explaining that each “circuit council has supervisory
powers which are not clearly defined but do exist”).
However, for more quotidian PACER applications the
judicial councils would not be the place to turn.

    Because (as the opinion discusses) there is “no right of
formal appeal” to contest the amount of a Criminal Justice
Act fee award, Congress decided to create an administrative
“review process separate from the traditional right of appeal.”
In re Smith, 586 F.3d 1169, 1173 (9th Cir. 2009) (explaining
that “excess fees must be approved both by the presiding
judge and the chief circuit judge or his delegate”).

    Assuming ordinary PACER-fee determinations are not
reviewable by the judiciary’s administrative apparatus, it will
be up to Congress to decide whether to fashion an appellate-
review mechanism, or whether to leave them within the
exclusive purview of district courts.
