(Photo: Diego M. Radzinschi/ALM)

Charging user fees for court records harms the credibility of the federal judiciary, according to seven retired federal judges including former U.S. Court of Appeals for the Seventh Circuit Judge Richard Posner in an amicus brief filed in a class action over PACER fees.

The brief was one of five filed on Wednesday before the U.S. Court of Appeals for the Federal Circuit, which is hearing an appeal of a 2018 court ruling about the legality of user fees that the Administrative Office of U.S. Courts charges for access to court records via its Public Access to Court Electronic Records system, or PACER. Other briefs came from former U.S. Sen. Joe Lieberman, several “next-generation legal research platforms and databases,” the Reporters Committee for Freedom of the Press and 27 media organizations, the American Civil Liberties Union, the Cato Institute and others, all in support of the plaintiffs, who were represented by Deepak Gupta of Gupta Wessler in Washington, D.C.

The federal judges, who also included former Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York and former Judge W. Royal Furgeson of the U.S. District Court for the  Western District of Texas, took no position in the case. But they insisted that, as a policy, PACER should not be charging fees at all.

“Opening up judicial records by removing the PACER paywall would be consistent with the best traditions of judicial transparency,” wrote their counsel, Sean Marotta, a partner at Hogan Lovells in Washington, D.C., in the brief. “And with greater judicial transparency comes more legitimacy in the public's eyes.”

Marotta declined to comment, as did Department of Justice spokeswoman Kelly Laco.

Gupta, who filed his opening brief before the Federal Circuit on Jan. 16, did not respond to a request for comment.

Both sides asked the Federal Circuit to take up an interlocutory appeal of Senior Judge Ellen Huvelle's order, which granted the federal government's summary judgment in part but denied a summary judgment motion by the plaintiffs, which are three organizations: the National Veterans Legal Services Program, the National Consumer Law Center and the Alliance for Justice.

At issue is how the federal judiciary can spend revenues from PACER fees, which are 10 cents per page and totaled $920 million from 2010 to 2016—the period of the certified class in the case.

Plaintiffs, who brought the class action three years ago, have argued that the revenues should be limited to costs associated with PACER. They have insisted that the E-Government Act of 2002, sponsored by Lieberman, sought to impose such limits after the federal judiciary began boosting PACER fees. Lieberman's amendment added statutory language that permitted such fees “only to the extent necessary.”

The Constitutional Accountability Center in Washington, D.C., wrote the brief for Lieberman, who represented Connecticut in the Senate from 1989 to 2013, in support of the plaintiffs.

“The government's policy of charging fees that are greater than necessary to cover the costs of providing access to those documents plainly violates the law that Congress passed,” Brianne Gorod, the center's chief counsel, wrote in an email.

The federal government has argued that the appropriations committee expanded its authority over PACER fees.

But in her March 31 order last year, Huvelle, of the District of Columbia, found neither side was entirely correct. She disagreed that PACER revenues were as limited as plaintiffs contended but struck down several expenditures that the government had defended, such as those for courtroom technology, web-based juror services and victim notification.

In his appeal, Gupta said that's the only part the judge got right.

“This appeal concerns whether the unlawful excess identified by the district court was too little (the plaintiffs view), too much (the government's view), or just right,” he wrote.

The federal judges behind the brief have some experience on the topic.

Furgeson was chairman of the Judicial Resources Committee of the Judicial Conference of the United States, and Scheindlin was on the Administrative Office of U.S. Court's Task Force on Electronic Public Access from 2009 to 2012. The brief specifically identifies the harm that PACER fees have on pro se litigants—an area of interest for Posner, who founded the Posner Center of Justice for Pro Se's after retiring from the bench in 2017.

“Free access to PACER can help these petitioners—and their friends and family who are often helping from the outside—to prepare a meaningful case,” Marotta wrote. “And it can help court efficiency: they could hone their case and forego frivolous claims.”

The judges also noted that there was no technical barrier to providing free access to court records, citing the U.S. Supreme Court's electronic filing system and recent changes in the 2019 budget that comply with the court's order. They suggested that “artificial scarcity,” rather than necessity, might be the real motive behind charging for court records.

“When the government enjoys an information monopoly over the public, it has a perverse incentive to seek rents that exceed actual cost,” Marotta wrote. “The Judiciary appears to have fallen prey to this incentive.”