Judge Considers Legality of PACER Fees
U.S. District Judge Ellen Huvelle will decide whether PACER is charging inordinately high fees and putting the revenue toward unauthorized uses.
March 23, 2018 at 06:20 PM
4 minute read
A federal district court heard arguments Friday on whether the federal courts are inappropriately overcharging for public access to court documents to fund certain projects.
U.S. District Judge Ellen Huvelle is considering a class-action lawsuit, filed by the National Veterans Legal Services Program, the National Consumer Law Center and Alliance for Justice, that alleges the Administrative Office of the U.S. Courts overcharges for online access to dockets and documents via the Public Access to Court Electronic Records system. The judge appeared skeptical of both parties in Friday's hearing, which centered on whether the courts can fund only PACER, or broader public access programs, with the fees.
Huvelle certified the class, which includes anyone who paid PACER fees between 2010 and 2016. PACER currently charges 10 cents per page, with a maximum of $3 for “any case document, docket sheet, or case-specific report.”
The plaintiffs argue those prices far exceed the marginal cost for the PACER program, and are illegally used to pay for the Case Management/Electronic Case Files system (CM/ECF), which litigants use to file documents. The fees are also used for other programs, such as victim notifications under the Violent Crime Control Act and e-juror services.
The 2002 E-Government Act authorizes courts to only charge PACER fees that reimburse the cost of providing the service, the plaintiffs allege. The government says the courts can spend PACER fee revenue on public access services as it deems necessary.
In the roughly three-hour long hearing Friday, Huvelle questioned whether costs associated with the CM/ECF system are, in reality, costs associated with PACER. Gupta Wessler's Jonathan Taylor, a lawyer for the plaintiffs, said that the CM/ECF system is used for filing documents, whereas PACER is separate, and makes the documents available for the public.
However, the judge said it appeared PACER was simply a portal, and that those who pay only for PACER are actually paying for access to the documents filed and maintained via CM/ECF.
“The PACER people, if there was no ECF, they wouldn't get much,” the judge said.
Huvelle also questioned the government's assertion that certain programs count as public access programs, such as jury notifications or the victim notifications.
Brian Field, a lawyer for the government, said those programs are often operated through mechanisms in the CM/ECF system, and are also sent to members of the public. He said the law does not require that the programs benefit the entire public, but rather members of the public.
“I don't understand how far you allow the definition of public program to be stretched,” Huvelle said.
Field also said the judiciary submitted its 2007 financial plan to both the House and Senate Appropriations committees, which said there would be an “expanded use” of the PACER fees. Some members of the committees then sent letters to the AO saying they had no objection to the plans as a whole, but did not specifically mention the expanded use of the fees.
While Field said that was evidence of Congress' approval of how the fees were being used, Huvelle was skeptical. She asked if there was any case that showed she could use the lawmakers' letters that way in making a decision. Field said he did not have an example, and she said that if he found one, he could let her know within 24 hours.
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