Fisher v. United States

In the United States Court of Federal Claims

No. 15-1575

(Filed: December 7, 2022)

**************************************

BRYNDON FISHER, *

*

Plaintiff, *

* Class Certification; RCFC 23(a);

v. * RCFC 23(b); Class Action;

* Predominance; Superiority.

THE UNITED STATES, *

*

Defendant. *

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Amber L. Schubert, Schubert, Jonckheer & Kolbe, LLP, San Francisco, CA, counsel for Plaintiff.

Meen G. Oh, U.S. Department of Justice, Civil Division, Washington, DC, counsel for

Defendant.

OPINION AND ORDER

DIETZ, Judge.

Plaintiff, Bryndon Fisher, brings a putative class action against the United States alleging

claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and

illegal exaction. Mr. Fisher claims that the government overcharged users of the Public Access to

Court Electronic Records (“PACER”) system for accessing federal court dockets online because

of a systemic flaw in PACER’s billing code. Before the Court is Mr. Fisher’s motion for class

certification under Rule 23 of the Rules of the United States Court of Federal Claims (“RCFC”).

Because the Court finds that Mr. Fisher has failed to satisfy the predominance and superiority

requirements of RCFC 23(b), his motion for class certification is DENIED.

I. BACKGROUND

PACER is an online portal that provides public access to court filings and case activity

“at more than 200 federal courts.” About Us, https://pacer.uscourts.gov/about-us (last visited

Dec. 7, 2022). “[PACER] is funded entirely through user fees set by the Judicial Conference of

the United States . . . [and] . . . published in the Electronic Public Access Fee Schedule.” Id. The

PACER search engine retrieves information such as the parties to a case, the parties’ counsel,

terminated parties, notices of electronic filing, and more, and provides this information in the

form of a customized docket report. Def.’s Resp. to Pl.’s Mot. for Class Certification [ECF 107]

at 6. 1 The information retrieved for each user is determined by their selection of up to 12 unique

1

All page numbers in the parties’ briefings refer to the page number generated by the CM/ECF system.

search variations. Id. PACER provides that users are charged for these docket reports based upon

the amount of “bytes extracted” when running a particular search. Frequently Asked Questions,

https://pacer.uscourts.gov/help/faqs/can-users-determine-how-large-document-it-accessed-pacer-

and-being-charged (last visited Dec. 6, 2022).

Mr. Fisher opened a PACER account in late 2013. Pl.’s App. to Mot. for Class

Certification [ECF 94-2] at 189. Over the following year, Mr. Fisher requested access to 164

court dockets. Id. at 329. He contends that, due to a systemic flaw in the PACER billing code, he

was overcharged for his access to these docket reports by approximately thirty dollars. Id. at 340.

Mr. Fisher asserts that the PACER billing system is inconsistent with the terms of the PACER

User Manual because, in its calculation of bytes extracted, it charges users for the number of

bytes extracted immediately after a user runs a search, rather than the number of bytes contained

in the final data set provided to users after PACER has truncated specific portions of the data. Id.

at 341.

On December 4, 2020, Mr. Fisher filed the motion presently before the Court. Pl.’s Mot.

for Class Certification [ECF 94]. Mr. Fisher seeks class certification for his claims on behalf of

“[a]ll PACER users who, from December 28, 2009 through class certification, accessed a U.S.

District Court, Bankruptcy Court, or the U.S. Court of Federal Claims and were charged for at

least one docket report.” Id. at 1. Mr. Fisher’s motion is fully briefed, and the Court heard oral

argument on November 2, 2022. See Order [ECF 129].

II. LEGAL STANDARD

Class actions are “an exception to the usual rule that litigation is conducted by and on

behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348,

(2011) (quotations omitted). “[T]he efficiency and economy of litigation . . . is a principal

purpose of [class action] procedure.” Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 553 (1974);

see also Bright v. United States, 603 F.3d 1273, 1288 (Fed. Cir. 2010) (applying this standard).

RCFC 23 governs class action suits brought in the United States Court of Federal Claims. RCFC

23 provides as follows:

(a) Prerequisites. One or more members of a class may sue as representative

parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the

interests of the class.

(b) Class Actions Maintainable. A class action may be maintained if RCFC

23(a) is satisfied and if:

(1) [not used];

(2) the United States has acted or refused to act on grounds generally

applicable to the class; and

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(3) the court finds that the questions of law or fact common to class

members predominate over any questions affecting only individual

members, and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy. The

matters pertinent to these findings include:

(A) the class members’ interests in individually controlling the

prosecution of separate actions;

(B) the extent and nature of any litigation concerning the

controversy already begun by class members;

(C) [not used]; and

(D) the likely difficulties in managing a class action.

RCFC 23(a)-(b). The requirements of RCFC 23(a) and RCFC 23(b) are in the conjunctive; thus,

a failure to satisfy any one of them is fatal to class certification. Horvath v. United States, 149

Fed. Cl. 735, 745 (2020). 2 The party seeking certification bears the burden of establishing that

the requirements of RCFC 23 have been met by a preponderance of the evidence. See Dukes, 564

U.S. at 350; see also Bell v. United States, 123 Fed. Cl. 390, 395 (2015). “Class certification is at

the discretion of the trial court.” Bell, 123 Fed. Cl. at 395 (collecting cases); see also Fink v.

Nat’l Sav. & Tr. Co., 772 F.2d 951, 960 (D.C. Cir. 1985). 3

III. DISCUSSION

Mr. Fisher’s case turns on whether RCFC 23(b)’s requirements of predominance and

superiority are met. The government does not dispute that the requirements of numerosity,

commonality, typicality, and adequacy under RCFC 23(a) are met in this case. [ECF 107] at 9.

Upon review, the Court finds that Mr. Fisher satisfies these requirements. The government

contends, however, that Mr. Fisher has not met the burden of establishing predominance and

superiority in this case. Id. As explained below, the Court finds that Mr. Fisher has not

demonstrated that the questions of law or fact common to the members of his proposed class

predominate over questions affecting only individual members because the individualized

questions of harm and damages overwhelm the common questions in this case. Further, the Court

also finds that Mr. Fisher has not established that a class action would be superior to other

available methods for adjudication because the likely difficulties in managing this case as a class

2

Courts vary in their approach to class certification under RCFC 23. Some courts analyze the requirements of 23(a)

and 23(b) concurrently, considering the predominance requirement as part of 23(a)’s commonality requirement. See,

e.g., Oztimurlenk, No. 19-1715C, 2022 WL 12240522 at *5 (defining the requirements of RCFC 23). Other courts

analyze the 23(a) and 23(b) requirements separately, as the Court does here. See, e.g., Fisher, 69 Fed. Cl. at 198-206

(applying RCFC 23). The Court has wide discretion in deciding whether the requirements of RCFC have been

satisfied, so long as it conducts a rigorous analysis of the RCFC 23 requirements. See Horvath, 149 Fed. Cl. at 743.

3

RCFC 23 “is modeled largely on the comparable [Federal Rule of Civil Procedure (“FRCP”) 23].” Rule

Committee Notes on RCFC 23, 2002 Rev. Although there are some notable differences between RCFC 23 and

FRCP 23—among these, RCFC 23’s contemplation of only opt-in classes and the Court of Federal Claim’s inability

to accommodate declaratory and injunctive relief—the Court will consider other federal courts’ application of FRCP

23 persuasive when that reasoning is unaffected by these differences. See Horvath, 149 Fed. Cl. at n.4 (2020).

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action due to the individualized questions of harm and damages far outweigh the other RCFC

23(b)(3) factors.

A. Rule 23(b)(3) Predominance of Common Issues of Fact or Law

Under RCFC 23(b)(3), a class action may be maintained only if the United States has

acted or refused to act on grounds generally applicable to the class, and the court finds that the

questions of law or fact common to the class members predominate over any questions affecting

only individual members. “The Rule 23(b)(3) predominance inquiry tests whether proposed

classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc.

v. Windsor, 521 U.S. 591, 623 (1997). “It is not sufficient that common questions merely exist,

as is true for purposes of Rule 23(a)(2).” Fisher v. United States, 69 Fed. Cl. 193, 201 (2006).

The predominance requirement “is far more demanding” than RCFC 23(a)’s commonality

criterion. Amchem Prods., Inc. at 623-24. Unlike RCFC 23(a)(2)’s lesser requirement of a

common answer to a common question, “RCFC 23(b)(3) requires the [c]ourt to look across the

full set of material questions the proposed class action raises to determine whether the common

issues predominate.” Oztimurlenk v. United States, No. 19-1715C, 2022 WL 12240522 at *11

(Fed. Cl. Oct. 20, 2022). “Thus, pursuant to RCFC 23(b)(3), the Court must ‘find[] that the

questions of law or fact common to class members predominate over any questions affecting

individual members.’” Id. (emphasis in original).

In performing a predominance analysis, the Court must “give careful scrutiny to the

relation between common and individual questions in a case.” Tyson Foods Inc. v. Bouaphakeo,

577 U.S. 442, 453 (2016). “An individual question is one where members of a proposed class

will need to present evidence that varies from member to member, while a common question is

one where the same evidence will suffice for each member[.]” Id. (quotation marks omitted).

Common issues predominate only if the issues that can be resolved by generalized proof “are

more substantial than the issues subject only to individualized proof.” Scott v. Chipotle Mexican

Grill, Inc., 954 F.3d 502, 512 (2d Cir. 2020) (citing Moore v. PaineWebber, Inc., 306 F.3d 1247,

1252 (2d Cir. 2002)). “[C]ertification is inappropriate when ‘after adjudication of the classwide

issues, plaintiffs must still introduce a great deal of individualized proof or argue a number of

individualized legal points to establish most or all of the elements of their individualized

claims.’” Oztimurlenk, 2022 WL 12240522, at *12 (quoting Sellers v. Rushmore Loan Mgmt.

Servs., LLC, 941 F.3d 1031, 1040 (11th Cir. 2019)).

Mr. Fisher proposes a class of “[a]ll PACER users who, from December 28, 2009

through class certification, accessed a U.S. District Court, U.S. Bankruptcy Court, or the U.S.

Court of Federal Claims and were charged for at least one docket report.” Pl.’s Initial Br. in

Supp. of Mot. for Class Certification [ECF 94-1] at 1. The government argues that this class, as

defined, includes almost four million PACER users who accessed docket reports across 190

federal courts and who may, or may not, have been overcharged by the alleged systemic billing

flaw as a result of the specific search they ran. [ECF 104] at 13. The government maintains that

whether each class member was harmed by the alleged flaw turns on, among other things, an

analysis of each user’s selection of up to 12 distinct search criteria options, the level of access

granted to each user, each court’s customizations of the PACER system, and each user’s saved

default search criteria, if applicable. Id. at 8-10. As a result, the government asserts that Mr.

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Fisher has not satisfied the predominance requirement because the number of individual inquiries

necessary to resolve the questions of harm and damages overwhelm any common questions and

are not accounted for by Mr. Fisher’s proposed methodologies. See [ECF 107] at 10-11.

Mr. Fisher frames this issue as nothing more than a mere damages calculation, citing

numerous cases in support of his proposition that individual damages calculations alone will not

preclude class certification, and that the overall question of liability is more substantial than the

individualized calculation of damages. See [ECF 94-1] at 17. He asserts that liability is resolved

classwide by answering the “overarching question in this litigation—whether the Government

overcharged PACER users for accessing docket reports,” which he believes can be established

through generalized proof applicable to all class members. Id.

Mr. Fisher’s expert, Dr. George Edwards, advanced two methods for calculating the

alleged excess charges for docket reports. See [ECF 94-2] at 43-46. Method 1 is shown in the

table below.

Method 1

1. For each docket report in the list of PACER charges that was run in a quarter in which

the PACER user exceeded the threshold for having all charges waived 4:

a. Obtain a copy of the docket report, using the date and/or document number

intervals indicated in the listing of charges and all other report options set to

their default values. If no date or document number value was specified in the

“to” field, set the “to” field as the date the docket report was originally

retrieved.

b. Count the number of bytes in the text of the docket report starting from the

court name through the last docket entry. Do not include the PACER website

headers shown at the top of the page or the transaction receipt that is displayed

at the bottom of the page in the byte count.

c. Compute the expected cost of the docket report as the minimum of either 3

dollars or the quantity given by the quotient of the byte count divided by 4320

rounded up to the nearest integer and multiplied by 10 cents.

d. Subtract the expected cost of the docket report from the actual cost of that

docket report as recorded in the listing of charges to compute the excess charge

for the docket report.

2. Sum together the excess charges for all docket reports for a user to compute the total

estimated excess charges for the user.

3. Sum together the excess charges for all users to compute the total estimated excess

charges for all users during the relevant time period.

[ECF 94-2] at 43. Dr. Edwards states that this method would require “retrieving every docket

report contained in the listing of PACER charges” and thus “a programmatic means for

retrieving, storing, and processing docket reports in an automated fashion.” Id. at 44. He then

4

PACER waives fees for users who access $30 or less in charges per quarter. See Billing, available at

https://pacer.uscourts.gov/my-account-billing/billing/options-access-records-if-you-cannot-afford-pacer-fees (last

visited Dec. 5, 2022).

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states that “it would not be difficult for [him] or another qualified expert to create a computer

program to perform” this method. Id.

Method 2 is shown in the table below.

Method 2

1. Divide the set of all docket reports in the listing of PACER charges into distinct groups

based on docket report metadata that is contained in the associated record of the docket

report charge. For example, the docket reports could be divided into distinct groups

using any combination of time, date, case type, court, user, and/or number of pages.

2. For each group:

a. Select an appropriately sized, representative sample of docket reports from the

group.

b. Compute the excess charge for each docket report in the sample using Method

1.

c. Compute the equation for a trend line that to the greatest extent possible

describes the relationship between the excess charge for a docket report in the

group and any combination of docket report metadata that is contained in the

associated record of the docket report charge, such as the time, date, case type,

court, user, and/or number of pages.

3. Estimate the total excess charges for each docket report in the listing of PACER

charges using the equation determined for that docket report’s group.

4. Sum together the excess charges for all docket reports for a user to compute the total

estimated excess charges for the user.

5. Sum together the excess charges for all users to compute the total estimated excess

charges for all users during the relevant time period.

[ECF 94-2] at 45. Dr. Edwards opines that Method 2 would also “be technically feasible to

implement and perform” and that “it would not be difficult or time-consuming for [him] (or

another qualified expert) to construct [the multiple] computer programs” necessary for its

implementation. Id. at 45-46.

The government’s experts contend that both proposed methods are flawed because they

rely on using “default values” to recreate searches and propose no way to account for all the

variations between each user’s searches due to the many customizable options presented when

running a PACER search. See generally Def.’s App. to Def.’s Resp. [ECF 107-1]. Further, the

government’s experts conclude that Mr. Fisher fails to demonstrate the feasibility of

implementing his expert’s methodologies, making only speculative assurances of what the

methodologies could or would do. See id.

Mr. Fisher filed a reply, 5 wherein he argued that the government misunderstood how

Method 1 would work regarding the use of “default options.” Pl.’s Reply Br. in Supp. of Mot. for

5

The government contends that Mr. Fisher’s reply contains portions which exceed the permissible scope for expert

rebuttal, and on February 25, 2022, the parties filed supplemental briefing on this issue. See Def.’s Suppl. Br. [ECFs

123], Pl.’s Suppl. Br. [124]. The Court need not address whether the disputed portions exceed the permissible scope,

as it finds this inquiry immaterial to its conclusion denying class certification. First, Mr. Fisher maintains that, even

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Class Certification [ECF 111] at 9. Mr. Fisher cited Dr. Edwards’ deposition for the proposition

that the method “would use the options the user used when retrieving the docket report,” and not

default options. Id. Additionally, Mr. Fisher argued that implementation of the methodology is

feasible by introducing over 300 pages of brand-new computer coding. See generally Pl.’s App.

to Pl.’s Reply [ECF 111-1]. Further, Mr. Fisher filed a notice of supplemental authority, citing to

Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 (9th Cir.

2022), and arguing that the methods presented could “winnow out any uninjured class members

at the damages phase of the litigation.” [ECF 125] at 2.

The Court is not convinced that Mr. Fisher’s proposed methodologies are capable of

establishing classwide harm and damages. Even if Mr. Fisher’s overarching question of whether

the government overcharged PACER users for accessing docket reports was answered in the

affirmative, Mr. Fisher’s proposed methodologies still fall far short of demonstrating that they

are capable of determining classwide harm or damages, leaving a significant number of

individualized questions to be resolved. See In re Rail Freight Fuel Surcharge Antitrust Litig.-

MDL No. 1869, 725 F.3d 244, 253 (“When a case turns on individualized proof of injury,

separate trials are in order.”); see also Amgen Inc., v. Connecticut Ret. Plans & Tr. Funds, 568

U.S. 455, 467-68 (2013) (noting that the requirement of predominance is not satisfied if

“individual questions . . . overwhelm questions common to the class.”); see also Comcast Corp.

v. Behrend, 569 U.S. 27, 34 (2013) (holding that predominance was not met where model failed

to establish that damages were capable of measurement on a classwide basis). In his opening

report, Dr. Edwards makes bare, speculative assurances of what his proposed methods could do,

but fails to demonstrate the feasibility of such methods or to account for the individualized

differences presented by the customizable options of the PACER search engine. See [ECF 94-2]

at 43, 45-46. In his reply, he introduces completely new coding and methodology, untested by

the government’s experts, to support his conclusion that uninjured class members can be easily

“winnowed out” and that his proposed methodologies are capable of demonstrating classwide

harm and damages. See generally [ECF 111-1]. This reply once again fails to account for the

individualized differences presented by the customizable options of the PACER search engine,

summarily responding to the government by stating without explanation that “[sealed dockets]

can be easily excluded,” [ECF 111] at 25, and that “charges for [dockets with partial or

indeterminable date or document intervals] may be estimated using the available records with

complete intervals,” [ECF 111-1] at 24. In what appears to be Mr. Fisher’s only attempt at

directly addressing concerns about PACER’s customizable options, he proffers that “Method 1

can simply assume the value that results in the lowest estimated excess charge, which ensures the

estimate is a lower-bound than the actual excess charge.” Id. at 27. It is precisely this highly

subjective and speculative methodology that “falls far short of establishing that damages are

capable of measurement on a classwide basis.” Comcast Corp., 569 U.S. at 34.

if the disputed portions were stricken, the requirements for class certification are met. [ECF 123] at 6. Second, the

Court concludes that, even if the disputed portions were considered, Mr. Fisher still fails to demonstrate that his

proposed methods are capable of determining classwide harm and damages because individual questions still

predominate over common ones.

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The Ninth Circuit’s decision in Olean Wholesale demonstrates the inadequacy of Mr.

Fisher’s proposed methodologies. 6 See 31 F.4th 651. In that case, a group of direct and indirect

tuna purchasers sought to certify a putative class action against tuna suppliers alleging a price-

fixing antitrust conspiracy. Id. The main issue on appeal was whether plaintiff’s statistical

regression model, along with other expert evidence, was capable of showing that the alleged

price-fixing conspiracy caused class-wide antitrust impact—an express element of an antitrust

claim, thereby satisfying the predominance requirement of FRCP 23(b). Id. at 661.

To demonstrate class-wide impact, plaintiff’s expert, Dr. Russell Mangum, first

performed a pricing correlation test, which demonstrated that the prices of the tuna suppliers’

products moved up or down together regardless of product or customer type. Olean, 31 F.4th at

671. To further explore the antitrust impact and account for other variables that could affect

prices, Dr. Mangum constructed a statistical model using a multiple regression analysis. Id. This

model controlled for the effect of numerous variables identified by Dr. Mangum and showed that

purchasers paid 10.28 percent more for tuna during the conspiracy period, further confirming Dr.

Mangum’s theory that the tuna suppliers’ collusion had a classwide effect. Id. Dr. Mangum then

performed several “robustness checks” to confirm the reliability of his regression model,

changing it to evaluate the overcharge specific to each defendant, product with different

characteristics, and customer type. Id. at 672. The Ninth Circuit concluded:

Finally, Dr. Mangum used the output of the pooled regression

model to predict the but-for prices (i.e., what the price of tuna

during the conspiracy period would have been without the

overcharge caused by the conspiracy), and compared these

predicted but-for prices to the actual prices paid by the [] class.

This comparison showed that 94.5 percent of the purchasers had at

least one purchase above the predicted but-for price, which again

provided further evidence that the conspiracy had a common

impact on all or nearly all the members of the [] class. Dr.

Mangum therefore concluded that his aggregated regression model

provided econometric evidence that the conspiracy resulted in

higher prices paid by all or nearly all [class members]. According

to Dr. Mangum, the results were strong evidence of common,

class-wide antitrust impact.

Id. The methodologies advanced by Mr. Fisher’s expert in this case are clearly less robust than

those applied by Dr. Mangum in Olean Wholesale. Whereas Dr. Mangum constructed, applied,

6

Mr. Fisher cites this case in support of his argument that RCFC 23 does not preclude certification of a

class that potentially includes more than a de minimis number of uninjured class members. See [ECF 125]. The

Court does not opine on whether a specified percentage of uninjured plaintiffs is fatal to class certification. See

Olean, 31 F.4th at 691-92 (Lee, J., dissenting) (noting the circuit split created by the majority’s rejection of a de

minimis rule). However, the Court concludes that predominance is not satisfied where individualized questions of

harm or damages overwhelm the common questions, thus precluding class certification. “Rule 23(b)(3)[] [] requires

[] that the district court determine after rigorous analysis whether the common question predominates over any

individual questions, including individualized questions about injury or entitlement to damages.” Olean, 31 F.4th at

669 (citing Fed. R. Civ. P. 23(b)(3)).

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and rigorously tested his proposed methodology prior to class certification, Mr. Fisher’s expert

did not so much as attempt to implement his methodologies until prompted by the government’s

experts to do so. The newly constructed and untested methodologies presented by Mr. Fisher are

insufficient to demonstrate that they are capable of determining classwide harm or damages.

The United States District Court for the Southern District of Florida’s analysis in a

factually analogous case, Theodore D’Apuzzo, P.A. v. United States, is also informative. 2018

WL 2688760 (S.D. Fla. Apr. 13, 2018). In D’Apuzzo, a representative sought to certify a putative

class action of similarly defined PACER users for the same underlying claims asserted by Mr.

Fisher—breach of contract, breach of the implied covenant of good faith and fair dealing, and

illegal exaction. Id. at 1. The class was defined as “all PACER users who, between November

22, 2010 and November 22, 2016, paid to access a document constituting a judicial opinion.” Id.

at 2. The court found that, where “the official guidance with the respect to the definition of

‘written opinion’ [was] inherently subjective,” the claims were not subject to determination with

generalized proof. Id. at 3. Further, the court found that, because determining the proper

definition of written opinion was central to the “[p]laintiff’s causes of action[] and would require

individualized proof,” the case could not be maintained as a class action. Id. The District Court

concluded its predominance inquiry by stating that “individualized issues would also

predominate over common issues in the determination of damages,” as “review of each PACER

user’s account would be required to determine which potential class members in fact improperly

paid for an opinion on PACER.” Id.

The court’s reasoning in D’Apuzzo can be squarely applied here, where the search criteria

used by each class member in Mr. Fisher’s proposed class is also “inherently subjective” and

damages are central to proving the underlying causes of action. 7 Additionally, under Mr. Fisher’s

proposed methodologies, a review of each PACER user’s account would be required to

determine who was overcharged, and by how much, resulting in highly individualized questions

of harm and damages that predominate over common questions. As such, the Court finds that

RCFC 23’s predominance requirement is not satisfied.

B. Rule 23(b) Superiority of Class Action

The second prong of RCFC 23(b)(3) provides that a class action is properly maintained

only after the court finds “that a class action is superior to other available methods for fairly and

efficiently adjudicating the controversy.” RCFC 23(b)(3). “The superiority requirement is met

where ‘a class action would achieve economies of time, effort, and expense, and promote

uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or

bringing about other undesirable results.’” Fisher, 69 Fed. Cl. at 205 (citing Barnes, 68 Fed. Cl.

at 499). “When reviewing motions to certify a class, this court has previously utilized a cost-

benefit analysis, weighing foreseeable manageability or fairness problems against ‘the benefits to

the system and the individual members likely to be derived from maintaining such an action.’”

7

Establishing that damages are capable of measurement on a classwide basis is even more necessary here, where

damages are an express element of Mr. Fisher’s underlying claims for breach of contract and illegal exaction. See

Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011) (“Considering whether ‘questions of law or

fact common to class members predominate’ begins, of course, with the elements of the underlying cause of

action.”).

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Curry v. United States, 81 Fed. Cl. 328, 337 (quoting Barnes, 68 Fed. Cl. at 499). RCFC 23(b)(3)

provides a list of non-exhaustive factors to be considered in determining whether the superiority

requirement has been met, including: “the class members’ interests in individually controlling

the prosecution of separate actions;” “the extent and nature of any litigation concerning the

controversy already begun by class members;” and “the likely difficulties in managing a class

action.”

The Court finds that this final factor—the likely difficulties in managing a class action—

far outweighs the other factors provided by RCFC 23(b)(3), and thus precludes a finding of

superiority in this case. “A class action must represent the best ‘available method[] for the fair

and efficient adjudication of the controversy.” Fisher, 69 Fed. Cl. at 205 (quoting FRCP

23(b)(3)). “It is pursuant to this requirement that the court should address the difficulties likely to

be encountered in the management of a class action.” Id. at 205-06 (citing Johnston v. HBO Film

Mgmt., 265 F.3d 178, 194 (3rd Cir. 2001). Manageability “encompasses the whole range of

practical problems that may render the class action format inappropriate for a particular suit.”

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164 (1974).

As discussed above, Mr. Fisher’s proposed class and methodologies require highly

individualized determinations of both harm and damages. The need to make these determinations

severely hinders the manageability of this case as a class action. If the Court were to certify the

proposed class as to all issues in this litigation, it would nevertheless encounter significant

difficulties trying to determine individual class members’ entitlement to refunds due to the

customizable search options provided by PACER and the limited search records that it maintains.

For this reason, a class action would fail to achieve economies of time, effort, and expense.

Mr. Fisher argues that the proposed class is manageable because the government “has

within its possession the information needed to identify and notify each class member.” [ECF

94-1] at 20. In support of his argument, he cites to National Veterans Legal Services Program v.

United States, 235 F. Supp. 3d 32, 36 (D.D.C. 2017), where the D.C. District Court approved of

a plan that used email to provide notice to a class of PACER users. Id. However, that case is

easily distinguished from the case at hand, as it involved a challenge to the PACER fee schedule

under which every PACER user in the proposed class was harmed. See id. Here, Mr. Fisher’s

proposed class contains PACER users who may, or may not, have been harmed by the alleged

billing flaw. Thus, an email notice to all PACER users in Mr. Fisher’s proposed class would not

assist in the manageability of this case as a class action, as it did in Nat’l Veterans. Ultimately,

“[t]he [] question under Rule 23(b)(3) is whether “a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.” RCFC 23(b)(3). Mr. Fisher has

not established how a class action would provide any discernible advantages over individual

lawsuits in light of the highly individualized questions of harm and damages presented by this

case. 8

8

Mr. Fisher asserts that class members in this action would receive small recoveries if they prevailed, which would

not incentivize members to bring individual actions. [ECF 94-1] at 19. While the Court agrees that this factor favors

class certification, it is far outweighed by the likely difficulties to be encountered in the management of this case as

a class action.

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III. CONCLUSION

Mr. Fisher has failed to satisfy the predominance and superiority requirements under

RCFC 23(b)(3). Accordingly, plaintiff’s motion for class certification is DENIED. The parties

shall file a joint status report on or before December 23, 2022, with proposed further

proceedings.

IT IS SO ORDERED.

s/ Thompson M. Dietz

THOMPSON M. DIETZ, Judge

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