Those who litigate in federal court have likely come across the PACER system, and know intimately that its use isn’t free. Pacer fees are ostensibly used to maintain the system as PACER does not receive any federal funding – i.e. it essentially has to fund itself through its fee system.
What is PACER
PACER stands for Public Access to Court Electronic Records – an online database of over a billion court documents from over 200 federal courts. There are at least one million users of the system for a variety of reasons, ranging from practicing attorneys to journalists seeking the latest updates in high-profile cases. PACER users also know it isn’t free. Each page of search results costs the user $0.10, plus $.10 per page of each case, with a cap of $3 per document. It has been noted that these fees seem facially unfair because viewers don’t get to preview how long the document is before they open it.
What has started to become more evident, however, is that these funds are not always being used as intended. And in the works since 2016, a class-action lawsuit poses the ultimate question: “Are PACER fees even legal?”. In 2016, The Washington Post reported that PACER’s fees amounted to $146.4 million, but annual expenses to maintain the system did not exceed $24 million. Some estimates say the actual cost for PACER to retrieve documents, including storage fees, is $0.0000006 per page.
Paying for Public Documents?
Depending on the field you work in, the thought of paying for access to documents may seem either run-of-the-mill or patently unjust. Most likely, your perspective has to do with how much money your clients have to pay for fees. For individual clients, like personal injury victims, lawyers have to add the PACER fees into their final bill, which can be fairly arduous for non-corporate clients. One lawyer reported, “Most of my personal injury and accident clients have very little money, so they really shouldn’t have to pay any costs to access publicly available documents that are necessary for them to have access to the justice system…” Generally, paying to use docketing systems or court registers is unheard of, especially paying for the search before you know the results. This is especially true if the fees exceed the cost of maintaining the system, which is exactly what the class action lawsuit alleges.
Background of the Lawsuit
Filed in 2016, the class action alleges that the federal government is misappropriating funds from the court access programs and uses the fees as a “slush fund.” The parties to the class action are “all individuals or entities that have paid PACER fees between April 21, 2010 and April 21, 2016, excluding class counsel in this case and federal government entities.” Essentially, these are begrudged PACER users seeking a refund for what they believe amounts to exorbitant fees, which are not being used as Congress intended. The question boils down to whether PACER should be limited to recouping only the – seemingly low – cost of providing online filings to the public, or whether it may charge the current fees and use the proceeds to fund other court programs.
The class action’s website states:
Nonprofit groups have sued the United States government alleging that the United States government has unlawfully charged users of the Public Access to Court Electronic Records (“PACER”) system more than necessary to cover the costs of providing public access to federal court records.
At first, the Plaintiffs were denied summary judgment, while the government’s motion for summary judgment was denied in part and granted in part. The court determined that the following categories of expenditures were allowed to be covered by PACER fees:
- PACER itself
- The Case Management/Electronic Case Files (CM/ECF) portion of the system
- Electronic bankruptcy noticing
- Certain court staffing and training programs, and
- Certain telecommunications equipment and services
The following could not be paid for with PACER fees:
- Most courtroom technology
- Victim notification under the Violent Crime Control Act
- Web-based juror services
- A study conducting the feasibility of allowing Mississippi to share the CM/ECF system.
Both parties appealed. The Federal Circuit has so far affirmed the district court’s August 2020 decision and remanded for further proceedings. The Plaintiffs argue that these excessive fees are an “illegal exaction” and the federal government must return the excess of the fees as a refund to the users. In other words, does the statute in question – here, a statutory note to 28 U.S.C. § 1913 regarding court costs and fees – entitle Plaintiffs to a sum of money from the federal government? This is pretty creative lawyering, considering illegal exactions are usually either tax refunds or some sort of “money-mandating” claim, like a suit against the government for back pay or disability retired pay.
The appellate court seemed convinced. It noted, “in this case…the illegal exaction claim possesses all the basic elements for Little Tucker Act jurisdiction: a non-tort claim against the United States pursuant to a federal source of law whose violation entitles the plaintiff to money from the government.”
The court reads concludes that the district court got it right: PACER fees should be limited to the “amount needed to cover expenses incurred in services providing public access to federal court electronic docketing information.” This doesn’t just mean the PACER system, but it extends to other services involved with online access, the exact object of which is still pretty open-ended. Either way, the court ultimately concluded that this statute is fee-authorizing, and the government exacted more than was authorized, the remedy for overcharging is a refund.
As a practical result, the government may owe millions in excessive fines to PACER users. The case was remanded for further proceedings, which may help determine exactly how much is owed in PACER fee refunds.
Is This a Win for Access to Court Documents?
PACER is an oddly controversial topic. Gupta, the attorney representing the plaintiffs was “thrilled that the Federal Circuit recognized that the federal judiciary’s PACER system has been charging people more than the law allows for access to court records.” The paywall limited access to the courts for ordinary people and journalists, he said.
Some lawmakers even believe it should be entirely free. Rep. Doug Collins, for example, presented the Electronic Court Records Reform Act, which would “guarantee free public access to federal court records through the Public Access to Court Electronic Records (PACER) system, which currently charges the public a fee to access documents.” Though this would remove PACER’s only source of funding, it is certainly not inconceivable that Congress appropriate taxpayer dollars to a free, open service where anyone could access otherwise public documents. Such appropriations could also stand to improve its functionality – Rep. Collins has also pushed for PACER to develop a general search function (believe it or not, it does not already have one).
An Antiquated System
The missing search functionality is more than just a minor inconvenience. As one managing attorney put it, “there are no keyword, subject matter, judge-by-judge or decision searches.” In practice, this means you need to know the exact document you are looking for before you even search, which does not make PACER particularly helpful for research purposes. Then, once the user has run the search, you may be unexpectedly redirected to a court’s website or other page containing PACER data. The differences in naming conventions, organization style, and local rules among each court cause serious data consistency problems within PACER. The log-in and credential process is cumbersome – and, of course, necessary for charging fees. To say PACER is unpopular is an understatement – one year, a public domain advocate even tried to coordinate a National Day of PACER Protest.
Access to public federal court documents has a way to go, and the success of the class action is one small step in holding the judiciary accountable for overcharging users of the system. But a search function would be nice too.