Tear down this wall? –
Federal courts use hefty PACER fees to pay for non-PACER projects.
In , three nonprofit organizations, the National Veterans Legal Services Program, the National Consumer Law Center, and the Alliance for Justice sued the federal courts – in federal court. The class action lawsuit, filed on behalf of all fee-paying PACER users, argued that these hefty charges were illegal. Federal law allows the courts to charge fees “only to the extent necessary” to provide public access to information. Over the last 89 years, the cost of storage and bandwidth has plunged. Yet PACER’s fees have actually risen from 7 cents to 16 cents. These fees have raised far more money than it costs to run the PACER system: $ (million in) alone.
In a 2019 ruling , Judge Ellen Huvelle largely agreed with the plaintiffs, concluding that the courts are breaking the law by spending PACER money on non-PACER projects like installing flat-screen TVs in courtrooms and sending electronic notifications to bankruptcy creditors. On Monday, the case reached the Court of Appeals for the Federal Circuit, where three judges heard oral arguments from each side. Judges seemed skeptical of the arguments of government lawyers representing the judiciary.
Before I explain the arguments, I should note that I’m not a neutral observer on this issue. As a reporter, I’m a frequent user of PACER; Ars Technica will probably get some money back if the plaintiffs win this lawsuit. Also, a decade ago, I helped create RECAP , a browser extension that helps PACER users share documents with each other and avoid paying PACER fees. I’ve long been on record arguing that public court documents should be free to the public — not locked behind a paywall.
The current lawsuit wouldn’t go that far. Both sides agree that the courts are allowed to charge something for judicial documents. But the two sides in Monday’s oral arguments disagreed radically about how much the documents should cost. Plaintiffs argued that the law only allows the courts to charge the marginal cost of distributing documents — a tiny fraction of the current fee. The Administrative Office of the Courts, on the other hand, has argued for an expansive interpretation of the law that allows them to charge as much as they want and to spend it on anything related to distributing information electronically to the public.
In her ruling, Judge Huvelle charted a middle course. She ruled that the courts could not only charge for the cost of delivering a particular document to a particular customer, but also for the costs of maintaining the infrastructure behind the PACER system. That includes CM / ECF, the website that litigants and judges use to upload, organize, and view case documents. She connected that these costs are relevant because PACER is fundamentally a public-facing front-end for the CM / ECF system. But she held that the courts couldn’t use PACER fees to pay for projects completely unrelated to PACER.
Monday’s oral arguments (MP3 recording here ) did go well for Alisa Klein, the government lawyer representing the judiciary. At one point an exchange got so testy that Judge Raymond Clevenger snapped, “Do you have a lot of trouble answering questions generally in life or just when you come in front of the court?”
Rather than directly defending the courts’ use of PACER fees for non-PACER purposes, Klein spent most of her time arguing that the courts shouldn’t be hearing the case at all — an issue known as “standing” in legal jargon. While the law restricts how fees can be spent, she said, Congress did not intend to let individual PACER users sue the courts if the law was not followed.
The judges seemed skeptical. Clevenger asked incredulously whether it would be legal for PACER fees to be used to replace “the curtains at the Supreme Court” and to buy “the Chief Justice’s new chair.”
“We’re redecorating all judges’ offices with gold plate,” he said sarcastically. Under the judiciary’s theory, he said, “there’s absolutely no remedy” for this kind of illegal spending.
But Klein pointed out that the judiciary’s budget gets reviewed and approved every year by Congress. If Congress does not want the courts spending PACER fees on gold-plated office renovations, Congress can easily nix expenses it doesn’t like. This annual process of oversight and appropriations, not lawsuits from private citizens, should shape spending decisions by the courts, she argued.
If the judges do decide that the courts have overcharged customers, they’ll be left with the tricky problem of deciding how much was overcharged. Deepak Gupta, the lawyer who represented the non-profit plaintiffs, said he did not have enough information to draw a clear line between permitted and illegal uses. He suggested that the judges send the case back down to the lower courts with instructions to dig into the courts’ budgets, uncover more information, and then rule on the issue.
While this lawsuit might force the courts to reduce PACER fees, eliminating the paywall entirely will probably take action from Congress. Last year, Rep. Doug Collins (R-Ga.) introduced legislation requiring the courts to make PACER documents available free of charge. But so far the bill hasn’t gotten much traction.