PACER Class Action Advances

(CN) — A federal judge refused Monday to dismiss a class action accusing the U.S. government of systematically overcharging for access to court records through its system PACER, short for Public Access to Court Electronic Records.

Bryndon Fisher sued the United States for a putative class, claiming that "PACER overcharges users because of a faulty pricing formula," U.S. Court of Federal Claims Judge Thomas Wheeler wrote in his order refusing the government's motion to dismiss.

PACER charges users 10 cents a page for a docket report, up to a maximum of $3. The dockets are displayed in HTML format, so PACER uses a formula based on the number of bytes in a docket to calculate billable pages.

The program contains an error causing too many bytes to be counted, Fisher said in his December 2015 complaint against the Administrative Office of U.S. Courts and its director James C. Duff.

Fisher says he was overcharged for two years — paying $109.40 to the AO, though he should have been charged only $72.40 — an overcharge of 51 percent. He seeks class certification, refunds and an injunction against illegal exaction that violates the Fifth Amendment.

The government sought dismissal on June 15, saying Fisher should have submitted disputes directly to the PACER service center within 90 days of receiving the bill, as required in user contracts, so he failed to exhaust administrative remedies before suing.

Wheeler disagreed, saying it was "not even clear from the language in the PACER documents that parties must submit claims before filing suit."

After receiving briefs and hearing oral argument on Sept. 15, Wheeler found that Fisher met the burden of pleading subject matter jurisdiction over his contract claims.

Fisher properly sued for breach of contract because he alleges the government charged more than the agreed-upon price, forcing a contract modification on Fischer without his knowledge or consent.

The court has jurisdiction over Fisher's illegal exaction claims, Wheeler said, despite the government's contention to the contrary.

"Fisher has sufficiently alleged that the government illegally overcharged him contrary to PACER's governing statutes and policies, and his complaint states a claim for illegal exaction," the judge wrote.

He ordered the government to respond to Fisher's claims by Oct. 11.

Should Fisher prevail, though damages may be small for each attorney, they would add up. More than 2 million people use PACER.

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