Case: 19-1081   Document: 95     Page: 1    Filed: 08/06/2020




   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 El-
 len 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, ar-
 gued 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, Judi-
 cata, Mark A. Lemley, Ravel, Syntexys, UniCourt.

     BRUCE D. BROWN, The Reporters Committee for Free-
 dom of the Press, Arlington, VA, for amici curiae The Re-
 porters Committee for Freedom of the Press, American
 Society of Newspaper Editors, Associated Press Media Ed-
 itors, Association of Alternative News Media, First Amend-
 ment Coalition, First Look Media Works, Inc.,
 International Documentary Association, Investigative Re-
 porting Workshop, MPA, National Press Photographers
 Association, Online News Association, Radio Television
 Digital News Association, Reporters Without Borders, Se-
 attle Times Company, Society of Professional Journalists,
 Tully Center for Free Speech, Bay Area News Group,
 BuzzFeed, California News Publishers Association, Free-
 dom of the Press Foundation, The Media Institute, The Na-
 tional 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 Cen-
 ter, Washington, DC, for amicus curiae Joseph I. Lieber-
 man.

     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 “reasona-
 ble fees” for “access to information available through auto-
 matic 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 ex-
 cess. The government argues that the district court iden-
 tifies 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 proceed-
 ings.
                               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 ex-
     tent necessary, prescribe reasonable fees, pursuant
     to sections 1913, 1914, 1926, 1930, and 1932 of ti-
     tle 28, United States Code, for collection by the
     courts under those sections for access to infor-
     mation available through automatic data pro-
     cessing 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 Di-
     rector 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 main-
     tain and make available to the public.
        (b) The Judicial Conference and the Director
     shall transmit each schedule of fees prescribed un-
     der paragraph (a) to the Congress at least 30 days
     before the schedule becomes effective. All fees
     hereafter collected by the Judiciary under para-
     graph (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 Admin-
 istrative 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 fed-
 eral courts, made up of the Chief Justice and certain fed-
 eral 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 ac-
 cess 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 fed-
 eral court dockets and case records. See Judiciary Appro-
 priations 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). Sec-
 tion 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 rec-
 ords viewable from any web-connected computer.
     Since PACER’s inception, the Judicial Conference has
 charged fees for its use because Congress has never appro-
 priated funds to cover the cost of PACER operations.
 J.A. 2589, 2632. Although the federal judiciary is an inde-
 pendent branch of government, it depends largely on ap-
 propriations 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 Judi-
 cial Conference are available online at https://www.
 uscourts.gov/about-federal-courts/reports-proceedings-ju-
 dicial-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 secu-
 rity, and juror payments, among other things. But the ju-
 diciary 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 con-
 nection, 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—sub-
 ject to certain exemptions, waivers, and caps. The applica-
 ble fees are listed in a periodically updated Electronic
 Public Access (EPA) Fee Schedule (available at
 https://www.uscourts.gov/services-forms/fees/electronic-
 public-access-fee-schedule) in accordance with § 1913 Note,
 paragraph (a). 4 During the period relevant to this litiga-
 tion, the Judicial Conference used these PACER fees to




     3   “Users with dial-in telephone modems . . . could re-
 ceive 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-filing-
 continue-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 inter-
 changeably.
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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 de-
       tail, 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 at-
       torneys and self-represented parties to file and up-
       date 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 bank-
       ruptcy 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 electroni-
       cally notifies local police when new court documents
       are filed in cases of federal offenders under super-
       vised release.
    5. Web-Based Juror Services. The federal juror
       management system, “E-Juror,” provides prospec-
       tive 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 up-
        grade of courtroom technology, including equipment
        used for electronically presenting evidence to court-
        room audiences as well as digital audio recording
        equipment.
                               II
     In April 2016, plaintiffs—three national nonprofit or-
 ganizations 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 un-
 der 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 mo-
 tion 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 judi-
 ciary “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 Judg-
 ment Opinion) (quoting plaintiffs’ motion). The govern-
 ment, 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 devel-
 opment of PACER and CM/ECF, the court determined that
 § 1913 Note limited “the use of PACER fees to expenses in-
 curred in providing services, such as CM/ECF and EBN,
 that are part of providing the public with access to elec-
 tronic information maintained and stored by the federal
 courts on its CM/ECF docketing system.” Id. at 149. Ac-
 cordingly, 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 Noti-
 fication, Web-Based Juror Services, and most of the ex-
 penditures for Courtroom Technology. Id. at 145–46,
 149–50.
     The district court denied plaintiffs’ motion for sum-
 mary judgment as to liability—while finding the govern-
 ment liable for the above four expenditures—and granted-
 in-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 ap-
 peal under 28 U.S.C. § 1292(b) and stayed further proceed-
 ings. 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 par-
 ties 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 ac-
 tion with a monetary remedy. We disagree.
      “Whether a district court has subject matter jurisdic-
 tion 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 it-
 self 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 argu-
 ment 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 dam-
 ages 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 dur-
 ing 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 On-
 tario 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 ex-
 action 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 non-
 contract 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 Fed-
 eral 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 im-
 properly 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 jurisdic-
 tion. Ontario Power, 369 F.3d at 1301; see Eastport S.S.,
 372 F.3d at 1007. For example, suits against the govern-
 ment for disability retired pay and wrongful dismissal ac-
 tions 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 com-
 prises claims for the return of money collected in the “ab-
 sence of statutory authorization” while the money-
 mandating class comprises claims for money “founded on
 statutory authority.” Aerolineas Argentinas v. United
 States, 77 F.3d 1564, 1579 (Fed. Cir. 1996) (Nies, J., con-
 curring). Both require a statute or other federal source be-
 yond 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 ap-
 ply the statute in the first instance to award damages. See
 Ontario Power, 369 F.3d at 1301 (distinguishing illegal ex-
 action claims from money-mandating claims, and specify-
 ing 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 govern-
 ment 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 ex-
 action class of Little Tucker Act claims, the government re-
 lies 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 no-
 where explicitly requires payment of damages by the gov-
 ernment 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 over-
 charging 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 au-
 thorizes the government to collect a fee for certain pur-
 poses, and it is alleged that the government collected fees
 in excess of the statutory authorization, the “necessary im-
 plication” is that the fees can be recovered through an ille-
 gal 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 remitted 9—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 stat-
 ute 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 gov-
 ernment’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 con-
 fer 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 deter-
 mine whether the language at issue has a plain and unam-
 biguous 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 tex-
 tual arguments presented to the district court. Plaintiffs
 argue that the plain language of § 1913 Note unambigu-
 ously prohibits setting PACER fees above the amount nec-
 essary to recover the costs of providing access to records via
 PACER. Drawing from various portions of the text, plain-
 tiffs 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 set-
 ting PACER fees high enough to cover the costs of operat-
 ing 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 cover-
 able by PACER fees to only the above three programs—be-
 cause 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 ex-
 penses incurred in services providing public access to fed-
 eral court electronic docketing information.
      Plaintiffs overread the statutory text while the govern-
 ment underreads it. Plaintiffs arrive at their textual inter-
 pretation 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 pro-
 cessing equipment” was defined as “any equipment or in-
 terconnected system or subsystems of equipment that is
 used in the automatic acquisition, storage, manipulation,
 management, movement, control, display, switching inter-
 change, 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 gov-
 ernment have treated the phrase, as we do, to mean elec-
 tronic access to information, and plaintiffs do not contest
 this definition.
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 NVLSP v. UNITED STATES                                      17



 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” por-
 tion 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 auto-
 matic 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 para-
 graph (b) to answer that question: only to the extent neces-
 sary “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 alleg-
 edly restrictive prefatory text. Looking at paragraph (b) in
 full confirms the incorrectness of plaintiffs’ reading. The
 final sentence reads, as relevant: “All fees hereafter col-
 lected by the Judiciary under paragraph (a) as a charge for
 services rendered shall be deposited as offsetting collec-
 tions 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 ren-
 dered 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 amend-
 ment, the first sentence of paragraph (a) read: “The Judi-
 cial 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).           Sec-
 tion 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). Plain-
 tiffs 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 sub-
 stantial 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 permis-
 sive scheme. Whereas the judiciary previously was re-
 quired 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 neces-
 sary” certainly suggests that Congress sought to encourage
 the judiciary to limit its imposition of such fees—since oth-
 erwise 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 nec-
 essary 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 ju-
 diciary to rein in fees—without imparting any specific lim-
 itation 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 au-
 thorizes 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 limita-
 tions 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 infor-
 mation 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 elec-
 tronic 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 argu-
 ment that paragraph (b)’s directive to deposit the fees in
 the Judiciary Automation Fund (now the Judiciary Infor-
 mation Technology Fund), 28 U.S.C. § 612, dictates the
 broad use of those fees, we reject this argument for the rea-
 sons explained by the district court. See Summary Judg-
 ment 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 accompany-
 ing Senate Committee on Appropriations report stated that
 § 404 of the Act “authorizes the Judicial Conference to pre-
 scribe 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 ser-
 vice 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 capabil-
 ity 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 doc-
 uments. Peter W. Martin, Online Access to Court Rec-
 ords—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 fil-
 ing. 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 sup-
 plied 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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 NVLSP v. UNITED STATES                                   21



 EXAMINATION OF GOALS, ISSUES, AND THE ROAD AHEAD (dis-
 cussion draft) vii, 4 (1997). That year’s House and Senate
 appropriations committee reports lauded the judiciary’s ef-
 forts 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 infor-
 mation and services more accessible to the public through
 improvements to enhance the availability of electronic in-
 formation.”); S. REP. NO. 104-353, at 88 (1996) (“The Com-
 mittee supports efforts of the judiciary to make electronic
 information available to the public, and expects that avail-
 able balances from public access fees in the judiciary auto-
 mation fund will be used to enhance availability of public
 access.”). The House appropriations committee specifically
 suggested “enhancements such as electronic case docu-
 ments, 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 pro-
 cesses,” in part by requiring use of “Internet-based
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 22                                     NVLSP v. UNITED STATES




 information technology to enhance citizen access to Gov-
 ernment information and services.” 116 Stat. 2899 (title).
 Section 205 of the Act set several new requirements for fed-
 eral courts: to create and regularly maintain court websites
 providing (among other things) access to “docket infor-
 mation” for each case; and to “make any document that is
 filed electronically publicly available online,” subject to cer-
 tain 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 di-
 rected to the judiciary, entitled “Cost of Providing Elec-
 tronic 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 Com-
 mittee Report stated that by amending § 1913 Note, see
 § 205(e), the Committee “intend[ed] to encourage the Judi-
 cial Conference to move from a fee structure in which elec-
 tronic 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, un-
 der existing law, users were being “charged fees that are
 higher than the marginal cost of disseminating the infor-
 mation.” Id.
     Still, the next year’s congressional appropriations com-
 mittee 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 ex-
 pects 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 annu-
 ally submits its “Financial Plans” for each fiscal year. 13
 See, e.g., J.A. 3090–98 (Financial Plan excerpts); ECF
 No. 81.1 14 (2d Skidgel Decl.), Tabs 1–13 (budget request
 and Financial Plan excerpts). The House and Senate ap-
 propriations committees, or members of their staffs, typi-
 cally 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 dis-
 closed its plans to use EPA fees for each of the expenditure


     13  Annual appropriations legislation generally re-
 quires 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 (Sen-
 ate 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 en-
 tirely 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 Ser-
 vices, 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, Sena-
 tor 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-Gov-
 ernment Act’s amendment as injecting a PACER-only lim-
 itation 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 Govern-
 mental Affairs Committee’s mention of PACER as one trou-
 bling 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 ac-
 cess 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 con-
 nected that PACER fees may permissibly be used to sup-
 port 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 post-
 amendment congressional budgetary actions and commu-
 nications as demonstrating the propriety—and indeed ne-
 cessity—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 rat-
 ification of the judiciary’s present EPA financing arrange-
 ment. Government’s Opening Br. 28–29. The government
 apparently interprets “only to the extent necessary” as
 meaning to the extent Congress does not appropriate tax-
 payer dollars to cover EPA programs. See Government’s
 Reply Br. 16–17. We disagree. Although in certain circum-
 stances subsequent appropriations acts may impliedly re-
 peal 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 Con-
 gress’s failure to appropriate funds for EPA programs im-
 parts any new meaning onto the text of § 1913 Note.
     The government’s corollary argument based on the ap-
 propriations committees’ annual letters and emails approv-
 ing 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 Sum-
 mary Judgment Opinion, 291 F. Supp. 3d at 144–45;
 ECF 81.1, Tabs 14–27. And these appropriations commit-
 tee responses cannot be taken as expressing the will of Con-
 gress as a whole. We will not so lightly abdicate to
 Congress, or its substituent bodies, the exclusively judicial
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 NVLSP v. UNITED STATES                                     27



 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 back-
 ground confirm the district court’s understanding of § 1913
 Note as limiting EPA fees to providing public access to fed-
 eral electronic docketing information—and properly cover-
 ing costs associated only with operating PACER, CM/ECF,
 and EBN.
     First, the overwhelming thrust of the above-cited con-
 ference and committee reports is that EPA fees were in-
 tended 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 “reason-
 able 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 bank-
 ruptcy 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 sec-
 tion amending § 1913 Note refers to “[p]roviding [e]lec-
 tronic [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 ex-
 pand 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 (describ-
 ing 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 ac-
 cess to case information” S. REP. NO. 101-515, at 86 (em-
 phasis added); and supporting efforts to “improve and
 expand information available in electronic form to the pub-
 lic” 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 infor-
 mation 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 pro-
 mote 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 un-
 constitutionally delegated its taxation authority by impos-
 ing 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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 NVLSP v. UNITED STATES                                     29



      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 rec-
 ords, it will diminish the public’s ability “to participate in
 and serve as a check upon the judicial process—an essen-
 tial 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 rejec-
 tion 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 signifi-
 cantly impede public access to courts. 16 As for the nondele-
 gation 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 Judg-
 ment 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 ser-
 vices 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 di-
 rected 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-Ju-
 ror Services, and most Courtroom Technology expenses.
     The Mississippi Study unquestionably pertained to in-
 creasing public access to state court documents, not to fed-
 eral 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 doc-
 uments” (emphasis added)). Although the Study was un-
 dertaken 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 shar-
 ing CM/ECF technology at the state level), the Study was
 not an effort to increase access to federal court case infor-
 mation.
      Funding the VCCA Notification system through EPA
 fees was impermissible for a different reason: it only pro-
 vides 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 pub-
 lic 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 presenta-
 tions 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, how-
 ever, 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 equip-
 ment” used to create digital audio recordings of court pro-
 ceedings 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 expendi-
 tures. Based on the limited record before us in this inter-
 locutory appeal, it is impossible for us to decide whether all
 the costs of maintaining CM/ECF could permissibly be cov-
 ered by EPA fees—that is, whether those expenses were
 incurred in providing public access to federal court elec-
 tronic docketing information. At oral argument, plaintiffs
 suggested that we leave it open to the district court on re-
 mand 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/de-
 fault.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 examina-
 tion” 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 dis-
 trict court’s discretion whether to permit additional argu-
 ment 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 re-
 manded to the district court for further proceedings con-
 sistent with this opinion.
                AFFIRMED AND REMANDED
      No costs.
