Circuit Panel Rebuffs Judiciary on Excessive PACER Fees

WASHINGTON (CN) — The federal judiciary cannot fund its pick of courtroom technologies with the fees drawn in by a system that makes court records publicly available, an appellate panel ruled Thursday. 

PACER, short for Public Access to Court Electronic Records, was created over 30 years ago to just what its name suggests, charging 10 cents per page, or $3 per item, since its last fee hike in 2012.

But that price schedule has not been without controversy. In 2016, not long after the Ninth Circuit sunk a challenge by journalists seeking an exemption, a class led by the National Veterans Legal Services Program filed suit in Washington.

The groups accused the federal judiciary of charging PACER users more than what it costs to operate the system, violating the E-Government Act of 2002, and

“In 2014, for example, the judiciary collected more than $145 million in fees, much of which was earmarked for other purposes, such as courtroom technology, websites for jurors, and bankruptcy notification systems,” their complaint alleged.

U.S. District Judge Ellen Huvelle sided with the challengers in 2018 at summary judgment, ruling that the judiciary can use the funds to operate a system called CM/ECF, short for Case Management and Electronic Case Filing, but not for things such as courtroom TVs and software.

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

Gabe Roth, executive director of the transparency group Fix the Court, expressed a mixed reaction to the ruling.

“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 in a statement. 

A three-judge panel of the court had taken up the case on cross-appeals from the government, which wanted a reversal, and from the class representatives, which wanted more of the charges ruled unlawful.

Writing for the court Thursday, U.S. Circuit Judge Todd Hughes surmised that “plaintiffs overread the statutory text while the government underreads it.”

He said the class’s challenge was doomed by a provision of the E-Government Act on authorized fees that makes no mention of PACER specifically.

“If Congress had intended to limit fees only to the extent necessary to reimburse expenses incurred in providing access to PACER, it would have said so more clearly,” Hughes wrote (emphasis in original). “We can give full effect to the 2002 amendment by reading it as removing the electronic access fee obligation and encouraging the judiciary to rein in fees — without imparting any specific limitations on the fee-setting.”

Hughes was appointed to the court by President Obama and echoed the argument that excessive PACER fees could infringe the public’s rights to access court documents.

“We agree … that the First Amendment stakes here are high … but we do not foresee the district court’s middle-ground interpretation permitting EPA fees to be used for PACER, CM/ECF, and EBN as resulting in a level of user fees that will significantly impede public access to courts,” the 32-pag opinion states.

(EPA here is short for electronic public access, and EBN is short for electronic bankruptcy noticing.)

Remanding the case in part, Hughes directed the lower court to revisit the topic of CM/ECF cost.

“Based on the limited record before us in this interlocutory appeal, it is impossible for us to decide whether all the costs of maintaining CM/ECF could permissibly be covered by EPA fees — that is, whether those expenses were incurred in providing public access to federal court electronic docketing information,” said Hughes, an Obama appointee.

George H. W. Bush appointees U.S. Circuit Judges Alan Lourie and Raymond Clevenger III joined Hughes on the ruling. 

Gupta Wessler attorney Deepak Gupta, representing the class, did not immediately respond to email seeking comment. Justice Department attorney Alisa Klein also did not respond to a request for comment.

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