Federal judiciary wrongly used PACER fees for unrelated projects, Federal Circuit rules

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The federal judiciary wrongly used PACER fees for unrelated projects such as courtroom technology, the U.S. Court of Appeals for the Federal Circuit ruled Thursday.

Federal law limits PACER fees to the amount needed to cover the expenses of providing public access to federal court electronic docketing information, the appeals court said.

The court upheld an April 2018 ruling by U.S. District Judge Ellen Segal Huvelle of Washington, D.C. She ruled that the fees shouldn’t have been used to pay the judiciary’s expenditures for most courtroom technology, for a juror-information webpage, for information about federal offenders sent to local law enforcement, and for a study that provided software to the state of Mississippi for electronic case access.

But Huvelle said fees could be used for the Case Management and Electronic Case Filing (CM/ECF) System. A counterpart to PACER, the system allows lawyers and litigants to file documents electronically and clerk’s offices to maintain electronic case files and documents.

Huvelle “got it just right,” the Federal Circuit said.

PACER, the court’s federal electronic records system, is the acronym for Public Access to Court Electronic Records. Current PACER charges are 10 cents per page for downloads and printing, subject to certain exemptions and caps.

The plaintiffs are three nonprofits—the Alliance for Justice, the National Veterans Legal Services Program and the National Consumer Law Center—that sued in April 2016.

Huvelle took a middle ground in her decision. She disagreed with the plaintiffs’ contention that the E-Government Act of 2002 limits PACER fees to the marginal cost of running PACER. But she also rejected the government’s contention that PACER can be used to fund any payment related to disseminating information through electronic means.

The Federal Circuit agreed with Huvelle, saying the plaintiffs “overread the statutory text, while the government underreads it.”

The court remanded the case for the lower court to decide whether to allow additional argument and discovery on whether PACER fees should not fund some costs of the CM/ECF system.

Gabe Roth, executive director of the court transparency group Fix the Court, commented on the decision in a press release.

“The Federal Circuit’s decision is a step in the right direction, but it doesn’t change the facts: It’s a disgrace the judiciary charges people anything, let alone 10 cents per page, to view public documents that cost the third branch a fraction of a penny to upload and store,” Roth said. “If the transparency-allergic Supreme Court can maintain an online filing system that costs users nothing to access, the rest of the judiciary should be able to, as well.”

The press release noted that three bills pending in Congress would make PACER free.

The decision is National Veterans Legal Services Program v. United States.

Hat tip to the National Law Journal, which covered the decision.

See also:

ABAJournal.com: “Out of pace with reality? PACER’s flaws run counter to original purpose of increasing access to law”

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