Constitutional & Complex Litigation

In a number of carefully selected matters, we work with clients and co-counsel to design and prosecute constitutional and regulatory challenges and other complex litigation from the ground up–with a special focus on class actions and litigation involving federal agencies. We also consult on litigation strategy and are occasionally retained to argue critical, high-stakes motions that present unsettled legal issues.

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Class Action Challenging Fees for Federal Court Records (PACER)

National Veterans Legal Services Program, et al. v. United States (U.S. District Court for the District of Columbia) – We represent a nationwide class, led by the the National Veterans Legal Services Program, in a lawsuit concerning PACER fees: the $.10-per-page charges that individuals must pay to access federal court records. This action challenged the legality of those fees for one reason: the fees far exceed the cost of providing the records. Although the judiciary is authorized by Congress to charge fees “only to the extent necessary” to recoup costs, PACER fees have generated huge revenues—with important implications for freedom of information and access to justice. In January 2017, the court granted our motion to certify a nationwide class of PACER users. In 2020, the Federal Circuit affirmed the district court’s decision concluding that the courts had charged fees in excess of statutory authority. Complaint | Class Certification Opinion | Motion to Dismiss Opinion  | Class Certification Motion | Government’s Opposition to Class Certification | Reply in Support of Class Certification | Government’s Motion to Dismiss | Opposition to Motion to Dismiss | Coverage at National Law Journal; ABA Journal; Wall Street Journal; Techdirt; Ars Technica; Courthouse News; Bloomberg BNA.

In October 2022, the firm announced a historic nationwide class-action settlement with the federal judiciary over PACER fees. After more than six years of hard-fought litigation, the plaintiffs have secured a historic settlement under which the government must create a common fund of $125 million and reimburse the vast majority of PACER users in full— 100 cents on the dollar—for past PACER charges. Read coverage of the settlement in the Washington Post, Politico, Reuters, The National Law Journal, and Bloomberg.

Recovering Illegal Tax-Preparer Fees from the IRS

Steele v. United States (U.S. District Court for the District of Columbia) – In 2010, the IRS introduced a novel regulatory scheme for those who prepare tax returns, and began charging preparers a $64.25 fee to obtain a preparer ID number. Although the D.C. Circuit held in 2014 that the IRS does not have the authority to regulate tax preparers, the IRS continues to charge these fees. In this case, we represent a nationwide class of tax-return preparers challenging the legality of these IRS fees. We represent the class along with co-counsel from Motley Rice. Amended Complaint | Class-Certification Motion | Class Certification Opinion | Motion for Reconsideration | Opinion Granting Motion for Reconsideration | Motion for Summary Judgment | Summary Judgment Opinion

Class Action on Behalf of Federal Bankruptcy Judges

Houser v. United States (U.S. Court of Federal Claims) – Our firm served as sole counsel to a certified class of federal judges–one of the few such cases in U.S. history. We were retained by the National Conference of Bankruptcy Judges to devise and prosecute litigation against the United States on behalf of all current federal bankruptcy judges, as well as former judges and their surviving spouses, estates, and beneficiaries.

We argued that because the United States violated the U.S. Constitution’s Judicial Compensation Clause by failing to pay district judges their full compensation, and because the government calculated bankruptcy judges’ salaries based on those unlawfully low salaries, the government failed to pay bankruptcy judges their lawful compensation. Deepak Gupta and Jon Taylor served as counsel for the plaintiffs.

We prevailed at summary judgment, obtained a final judgment entitling our clients to over $56 million in back pay, administered a class claims process in cooperation with the U.S. Department of Justice. Summary Judgment Brief | Complaint