Nat'l Veterans Legal Servs. Program v. United States

NATIONAL VETERANS LEGAL SERVICES PROGRAM, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

Civil Action No. 16-0745 (PLF)

United States District Court, District of Columbia

November 16, 2021

MEMORANDUM OPINION AND ORDER

PAUL L. FRIEDMAN, United States District Judge.

The Court has before it a pro se Motion for Intervention and for Leave to File Complaint in Intervention, Motion to Modify Class Certification Order, and for Sanctions (“Pines Mot.”) [Dkt. No. 116], filed by putative plaintiff-intervenor Michael T. Pines. Plaintiffs National Veterans Legal Services Program, et al., and defendant the United States oppose the motion. See Plaintiffs' Response to Michael Pines's Motion for Intervention, to Modify the Class Definition, and for Sanctions (“Pl. Opp.”) [Dkt. No. 122] Defendant's Response to Michael Pines's Motion for Intervention, to Modify the Class Certification Order, and for Sanctions (“Def. Opp.”) [Dkt. No. 124]. Upon careful consideration of the parties' papers, the relevant rules, and the applicable case law, the Court will deny Mr. Pines's motion in all respects.

Mr Pines has also submitted via email to the Clerk's Office several additional requests for relief, which he suggests are related to this case. Because the Court concludes that Mr Pines is not entitled to intervene, it will deny as moot his other requests, with the exception of his application to proceed without prepaying fees or costs, which the Court will grant.

I. BACKGROUND

This case is proceeding as a class action on behalf of “[a]ll individuals and entities who have paid fees for the use of PACER between April 21, 2010, and April 21, 2016, excluding class counsel in this case and federal government entities.” Nat'l Veterans Legal Servs. Program v. United States (“NVLSP Class Cert. Op.”), 235 F.Supp.3d 32, 39 (D.D.C. 2017). The United States confirms that Mr. Pines paid PACER fees during the class period and therefore is a member of the class. Defendant's Supplemental Brief in Response to Court Order Dated October 12, 2021 (“Def. Suppl.”) [Dkt. No. 126] at 1. Plaintiffs represent that “[c]lass notice was successfully sent to the email address associated with Michael Pines's PACER account on May 19, 2017, ” and that Mr. Pines did not opt out by the deadline provided in that notice. Plaintiffs' Supplemental Brief in Response to This Court's Order (“Pl. Suppl.”) [Dkt. No. 127] at 1-2.

Mr. Pines asserts that he learned of the class action sometime in August of 2020. Pines Mot. at 10, 12. He seeks to intervene because, he says, he “was precluded from negotiations so any settlement based on previous discussions would be improper as not negotiated fairly, ” Id. at 10, and “the class action attorneys will not even allow him to participate in discussions outside of court or cooperate in other ways, ” Id. at 12. He expresses concern that if the Court approves a class settlement, he may face “questions regarding res judicata and the scope of the class release” if he “raises similar claims - or claims based on similar facts - in a subsequent case.” Id. at 9. Mr. Pines asserts that he is entitled to intervene as of right pursuant to Rule 24(a) of the Federal Rules of Civil Procedure, and in the alternative, that the Court should authorize permissive intervention pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. Id. at 11-12.

Mr. Pines also seeks to modify the class certification order, arguing that a class action is not “superior to other types of actions” in this case, Pines Mot. at 5, because “[t]he obvious way to calculate damages in light of court rulings to date, ” Id. at 3, “would not result in the class members receiving appropriate compensation, ” Id. at 4. He further argues that “potential plaintiffs may have all kinds of claims against the government related to the operation of Pacer, and ... there is not even a way to calculate the type of damages the class action seeks.” Id. at 10. Finally, Mr. Pines asks the Court to award $25, 000 in sanctions “against both plaintiff and defense counsel, ” because he was not “given the opportunity to participate when he demanded it in August 2020, ” and as a result, “he will have to spend large amounts of time” getting up to speed on the case. Id. at 13.

II. DISCUSSION

A. Intervention of Right

Rule 24(a)(2) of the Federal Rules of Civil Procedure grants a right of intervention to a party who, upon timely motion, “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” FED. R. CIV. P. 24(a)(2). Courts consider four factors in deciding whether a party has a right to intervene: (1) the timeliness of the motion; (2) whether the party claims an interest relating to the subject of the action; (3) whether disposition of the action without the party may impair or impede the applicant's ability to protect that interest; and (4) whether the party's interest is adequately represented by the existing parties. Fund for Animals, Inc, v. Norton, 322 F.3d 728, 731-32 (D.C. Cir. 2003).

When a class member moves to intervene in a class action, the issue is “correctly framed ... as whether the would-be intervenors [a]re adequately represented.” Twelve John Does V. District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997); see also In re Cinty. Bank of N. Va., 418 F.3d 277, 314 (3d Cir. 2005) (“In the class action context, the second and third prongs of the Rule 24(a)(2) inquiry [concerning interest in the litigation and impairment of that interest] are satisfied by the very nature of Rule 23 representative litigation.”). To prevail, therefore, Mr. Pines must show that “the named plaintiffs cannot [adequately] represent his interests, ” Bames v. District of Columbia, 274 F.R.D. 314, 319 (D.D.C. 2011), either because they “have antagonistic or conflicting interests with the unnamed members of the class” or because they do not “appear able to vigorously prosecute the interests of the class through qualified counsel, ” Twelve John Does v. District of Columbia, 117 F.3d at 575.

Mr. Pines has not made such a showing. “When the Court certified the class in this case [], it necessarily found that ‘the representative parties will fairly and adequately protect the interests of the class.'” Bames v. District of Columbia, 274 F.R.D. at 316 (quoting FED. R. CIV. P. 23(a)(4)). Judge Huvelle, who presided over this case prior to her retirement, concluded that “the nonprofit organizations who are named plaintiffs in this case make particularly good class representatives, ” because “[t]hey are interested in reducing PACER fees not only for themselves but also for their constituents .... [they] exist to advocate for consumers, veterans, and other public-interest causes .... [and] organizational representatives with experience can provide more vigilant and consistent representation than individual representatives.” NVLSP Class Cert. Op., 235 F.Supp.3d at 42 (quotation marks omitted).

These characteristics remain salient to representing the interests of the class today. The class representatives have vigorously and effectively advocated on behalf of the class during the course of this litigation. They obtained a finding of liability against the United States in this Court, which the Federal Circuit affirmed on appeal. See Nat'l Veterans Legal Servs. Program v. United States, 291 F.Supp.3d 123, 140 (D.D.C. 2018) (“[T]he Court. . . finds the defendant liable for certain costs that post-date the passage of the E-Govemment Act.”); Nat'l Veterans Legal Servs. Program v. United States, 968 F.3d 1340, 1357 (Fed. Cir. 2020) (“[W]e agree with the district court's determination that the government is liable for the amount of [PACER] fees used to cover [certain categories of] expenses.”). The parties now are engaged in settlement discussions and recently represented that they “have reached an agreement in principle on proposed terms to resolve the matter, subject to Defendant obtaining approval of the proposed terms of settlement from the United States Department of Justice.” Nov. 15, 2021 Joint Status Report [Dkt. No. 129] at 1. Nothing in Mr. Pines's submissions indicates that the named plaintiffs are in any way failing to fulfill their role on behalf of the class.

Mr Pines's motion focuses instead on his desire to provide input on settlement negotiations and case strategy. Mr. Pines asserts that he “has been trying to work with counsel” and has “tried to discuss [a] settlement, ” but that “the class action attorneys will not even allow him to participate in discussions outside of court or cooperate in other ways.” Pines Mot. at 12; see also Declaration of Michael T. Pines in Support of Motions to Modify Class Certification and to Intervene and for Sanctions (“Pines Deel.”) [Dkt. No. 116-1] ¶ 96 (“Had I been permitted to be involved in settlement discussions, I had some ideas that might have been helpful.”). As a class member, Mr. Pines is entitled to receive certain information about the class action, including information about opting out of the class and about any settlement or compromise. See FED. R. CIV. P. 23(C)(2), (e)(1). Mr. Pines “will have the right to object to any settlement [that] the parties may reach.” Pl. Opp. at 3; see also FED. R. CIV. P. 23(e)(5). He is not, however, entitled to “work with counsel, ” Pines Mot. at 12, or “be involved in settlement discussions, ” Pines Deci. ¶ 96. The fact that Mr. Pines may disagree with class counsel's approach does not mean that class representation is inadequate, because a class action by its nature entails delegating...