PACER Challenge Gathers Momentum: Claim of Excessive Fees May Be Adjudicated After Years of Complaints

LATEST UPDATE: The court April 17 approved materials to notify PACER users of the lawsuit. To be sent by email in the next 90 days, they include this text:

How do I find out more about this lawsuit? For a detailed notice and other documents about this lawsuit and your rights, go to www.PACERFeesClassAction.com, call 1-844-660-2215, write to PACER Fees Class Action Administrator, PO Box 43434, Providence, RI 02940-3434 or call Class Counsel at 1-866-274-6615.

UPDATE: Brushing aside the government's argument that the nonprofit organizations that brought the case are unrepresentative PACER users, the court decided January 24 that the case could go forward on behalf of a huge class--all those PACER users who paid fees between April 21, 2010, and April 21, 2016. The only exclusion is "federal government entities" in all branches. (So U.S. Department of Justice, probably one of the biggest users, won't be eligible for a windfall refund if the case succeeds.)

If the class eventually numbers as many as the two million previously estimated, it would be larger than those in several high profile cases -- for example, suits by 700,000 past smokers against tobacco companies, by 300,000 Native Americans against the Department of Interior, by one million women employees against Wal-Mart over pay disparity, or by 1.5 million angry individuals and entities defrauded by Enron.

Once the court approves the notice to class members, word must go out within 90 days (using PACER registrants' listed e-mail addresses). During the notice period (allowing people to drop out if they choose) the parties will look into the facts on the one claim at issue--whether the courts over those six years charged PACER fees that were in excess of the amount necessary to fund PACER services. The court's January 24 scheduling order contemplates a decision without a trial, meaning based on parties' briefs and any oral argument the court may allow.

A class action lawsuit in federal court in the District of Columbia could mean refunds for millions – anyone who paid fees to access federal court records using the Public Access to Court Electronic Records (PACER) system in the last six years.

Plaintiffs are three nonprofit organizations—National Veterans Legal Services Program, National Consumer Law Center and the Alliance for Justice--who used the system but say the ever-increasing fees are excessive, far beyond what the law allows.

Congress in the E-Government Act of 2002 authorized the Administrative Office of the U.S. Courts (AO) to establish PACER fees “as a charge for services rendered” but “only to the extent necessary” “to reimburse expenses incurred in providing the services.” 

The lawsuit, filed in April 2016 and pending before Judge Ellen Segal Huvelle, says the AO has raised PACER fees repeatedly beyond what’s needed to recover costs -- using the surplus for unrelated projects ranging from courtroom audio systems to flat screens for jurors.  Judicial branch officials have even acknowledged in testimony to Congress they were doing this, “thereby reducing our need for appropriated funds.”

Plaintiffs’ court filings do not cite current figures, but they say in 2012 costs of “public access services” were $12 million; since $41 million was collected in fees, the $29 million left over could be spent on courtroom technology. By 2014, the fee total swelled to $145 million.  Plaintiffs allege the class of PACER users charged fees in the six-year period of the suit will be about two million.

Fees are charged at a rate of ten cents for each page of a record resulting from a search (for a docket, pleading, exhibit, etc.), regardless of the number of pages viewed, printed or downloaded.  Opinions are free and several other policies reduce costs: fees for an individual record longer than 30 pages are capped at $3, and fees under $15 total in a quarter are waived. The database includes the full court record of tens of thousands of cases in hundreds of courts in the federal system--U.S. District Courts, Courts of Appeals and bankruptcy courts.

Other complaints in the years since the PACER system was established in 1998 have included limited usefulness due to poor software design (no topical searches, for example); plaintiffs in the current case mention (but are not litigating) mistreatment of users, including “discouraging fee waivers, even for pro se litigants, journalists, researchers, and nonprofits; prohibiting free transfer of information by those who obtain waivers; and hiring private collection lawyers to sue people who cannot afford to pay the fees.”

But fees have been the main complaint. Taking seriously another phrase in the Senate Report on the 2002 E-Government Act, that records be “freely available to the greatest extent possible,” advocates have tried ways to get around the system altogether.

For example, during a trial period in 2008 when PACER access was free at 17 federal libraries, Carl Malamud encouraged people to download case records and send them to him for public posting—a project that yielded 20 million pages, some from a young Aaron Swartz (who took his life five years later when indicted on 13 felonies for another project, downloading 4 million scholarly articles). Harlan Yu and colleagues developed a software plug-in they called RECAP (“PACER backwards”) that users can add to Chrome or Firefox browsers which allows saving retrieved PACER documents for free public access.

Now change may be coming, at least in the cost of access.  The court in December rejected the government’s request to throw the case out, and details of the potential class were the subject of a hearing last Wednesday (18) that drew only tepid government opposition.  If the court allows the class action to proceed, discovery will follow, a stage where the government must divulge facts about PACER user fees and costs in the last six years (the statute of limitations for filing claims of overcharging by the government).

If the court finds fees did exceed costs, in violation of congressional law and intent, the only step remaining will be reaching millions of users to work out their refund.

The case is National Veterans Legal Services Program, et al., v. United States. No. 16-cv-00745-ESH (D.D.C.). The complaint beginning the case is linked below.