Deepak Gupta. (Courtesy photo)

A three-judge panel at the U.S. Court of Appeals for the Federal Circuit on Monday wrestled with a class-action lawsuit over the use of PACER fees, posing a number of hypotheticals about when people should be charged for accessing digital information on the federal judiciary.

The case is up on an interlocutory appeal from a ruling by U.S. District Senior Judge Ellen Huvelle of the District of Columbia, who found in 2018 that the federal judiciary misused millions of dollars collected in PACER fees. But she also disagreed with the argument brought forward by the class action that PACER fees should only be dedicated to running the online service.

Justice Department attorney Alisa Klein argued to the panel that the matter doesn't belong in federal court, as oversight of the federal judiciary's budget is conducted by Congress. She argued that it should be resolved in appropriations or other legislation brought forward by lawmakers.

She said that attorneys "are not going to depose Chief Justice Roberts and the Judicial Conference" to learn more about specific expenditures paid for with PACER fees.

However, at least one judge questioned if that means there can be no oversight on how federal courts use the fees collected to view electronic court filings and other case information.

Senior Judge Raymond Clevenger posed a number of hypotheticals to Klein, asking what would happen if PACER fees were used to buy new curtains for the U.S. Supreme Court, redecorate all federal judges' offices or install a gold-plated toilet.

He at one point grew frustrated with Klein after she didn't directly answer a hypothetical about accessing the Supreme Court cafeteria's menu through PACER, in which the judge added in a quip about how "Justice Gorsuch doesn't like the pizza."

"Do you have a lot of trouble answering questions normally in life or just appearing before this court?" Clevenger asked.

Attorney Deepak Gupta, who is representing several nonprofit groups challenging the collection and use of PACER fees, asked the panel to simply make a ruling on the statute governing the use of PACER fees and then remand it back to the district court for further discovery.

The panel, which also included Judges Alan Lourie and Todd Hughes, pressed Gupta on the collection of the PACER fees. They said that courts didn't initially have the infrastructure in place to create and distribute electronic records, and that costs were involved in setting up that system.

Gupta said that was the case initially, but noted the class in this lawsuit only dates back to 2010 when the electronic filing system used by the federal judiciary was more widely adopted.

Even then, the judges said the system still has to be maintained and updated: Clevenger said the Federal Circuit's own system is continually shut down for updates.

They also questioned whether PACER was inextricably tied to the courts' internal electronic filing system, or CM/ECF. Gupta said that was an issue that could be determined through discovery at the district court level.

The class action was filed in 2016 by the National Veterans Legal Services Program, the National Consumer Law Center and Alliance for Justice. They allege that PACER users were overcharged in accessing court filings from 2010 through 2016.

Huvelle in her ruling last year ruled that PACER fees could not be used for items like courtroom technology or issuing juror notifications. The district judge also rejected the argument made by the nonprofits that PACER fees should only be dedicated to the marginal cost of running the electronic service.

Some media groups and court transparency advocates have seized onto the case to argue for more access to the federal judiciary, which is not subject to Freedom of Information Act requests and other means generally used to learn more about the internal workings of the federal government.