from the refund-form-available-for-$0.10/page dept
A lawsuit against PACER for its long list of wrongs may finally pay off for the many, many people who’ve subjected themselves to its many indignities. The interface looks and runs like a personal Geocities page and those who manage to navigate it successfully are on the hook for pretty much every page it generates, including $0.10/page for search results that may not actually give users what they’re looking for.
Everything else is $0.10/page too, including filings, orders, and the dockets themselves. They’re capped at $3.00/each if they run past 30 pages, but for the most part, using PACER is like using a library’s copier. Infinite copies can be “run off” at PACER at almost no expense, but the system charges users as though they’re burning up toner and paper.
Back in 2016, the National Veterans Legal Services Program, along with the National Consumer Law Center and the Alliance for Justice, sued the court system over PACER’s fees. The plaintiffs argued PACER’s collection and use of fees broke the law governing PACER, which said only “reasonable” fees could be collected to offset the cost of upkeep. Instead, the US court system was using PACER as a piggy bank, spending money on flat screen TVs for jurors and other courtroom upkeep items, rather than dumping the money back into making PACER better, more accessible, and cheaper.
A year later, a federal judge said the case could move forward as a class action representing everyone who believed they’d been overcharged for access. A year later, it handed down a decision ruling that PACER was illegally using at least some of the collected fees. The case then took a trip to the Federal Circuit Court of Appeals with both adversarial parties challenging parts of the district court’s ruling.
The Appeals Court has come down on the side of PACER users. Here’s Josh Gerstein’s summary of the decision for Politico:
The U.S. Court of Appeals for the Federal Circuit upheld a district court judge’s ruling in 2018 that court officials inflated fees for the Public Access to Court Electronic Records or PACER system by including costs for flat-screen courtroom televisions, electronic alerts to victims and police, as well as computer systems to manage jurors.
The three-judge appeals court panel unanimously ruled that Congress gave the federal courts permission to charge for systems that improve public access to court files, but did not create a technology slush fund that could be used to subsidize almost any purchase of electronics by the federal judiciary.
This potentially means millions of dollars of refunds will be headed back to users once all the details are sorted out. The suit only covers fees collected from 2010 to 2016 (the initiation of the lawsuit) and the Appeals Court — while not thrilled a paywall continues to sit between citizens and access to court documents — will send this back to the lower court for a closer examination of PACER’s actual expenses.
The decision [PDF] says both parties are reading the law wrong, but the government is reading it wrongest. There is no obligation for PACER to charge fees. The flip side of that is there is also no obligation for the US court system to provide a free service either.
Whereas the judiciary previously was required to charge fees for electronic access to court information, after the 2002 amendment it could choose whether to do so. The language “only to the extent necessary” certainly suggests that Congress sought to encourage the judiciary to limit its imposition of such fees—since otherwise the amendment could have simply swapped “shall” for “may.” But, as we continue to stress, the text lacks a clear object or purpose of the supposed limitation (“only to the extent necessary” to what?) and we are unwilling to supply one of our own—or one of plaintiffs’—making. 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. 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 limitation on the fee-setting.
At this point, PACER can still charge users for access. Those fees may be reduced in the future, but for now nothing is changed. The money it collected in the past, however, may be headed back to PACER users. That’s good news. Hopefully this decision is another step down the road to the removal of the paywall standing between citizens and the court documents their tax dollars have already paid for.