PACER Challenge Gathers Momentum: Claim of Excessive Fees May Be Adjudicated After Years of Complaints
dcogcadmin | January 23, 2017
UPDATE 6-30-18: Discussion at the latest status conference July 18, 2018, showed the case will likely pause for some months while the government appeals a court ruling last March in favor of some of the plaintiffs’ claims that PACER fees exceeded what the law allows—far beyond the cost of running the courts’ electronic record system. The appeal will be approved by District Court Judge Ellen Huvelle as necessary to the progress of the case and the parties will submit briefs and argue their positions before the U.S. Court of Appeals for the Federal Circuit. That court will review the judge’s rulings about the meaning of the federal law that allows the fees. The law, found at 28 U.S.C. § 1913 note, says federal court managers, called the Judicial Conference, “may, only to the extent necessary, prescribe reasonable fees … for collection by the courts … for access to information available through automatic data processing equipment.” Millions of dollars of the fees collected have been used to pay for a wide variety of court enhancements. Whether those are lawful depends on what Congress meant. Appeals in the middle of a case are unusual but are allowed where, as here, the government disagrees with the trial court judge’s interpretation of the law.
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.