Login | September 25, 2020

Court rules PACER misspent fees

RICHARD WEINER
Technology for Lawyers

Published: August 28, 2020

PACER, the electronic access service of the federal court system, has any number of difficulties. But a recent court decision may have exposed just how far the service may have strayed from its mission to serve the people with federal docket information.
The decision, National Veterans Legal Services, et. al. v. The United States (United States Court of Appeals for the Federal Circuit, Cases 2019-1081, 2019-1083, decided August 6, 2020), held that PACER had misused government funds. It did not, however, reach the question of whether or not the services fees were excessive, leaving that decision up to Congress.
PACER stands for Public Access to Court Electronic Records. It is the service has an annual operating expense of $100 million and brings in about $140 million in user fees.
Users pay 10 cents per page, although there are various ways of limiting the expense of use. PACER’s website states that 70 percent of fees are waived if a user does not use the service above certain limits.
Nevertheless, of course, free indexed databases exist all over the place. PACER further has been criticized for an unfriendly user interface, particularly sine the entire theory of the service is delivering court documents to non-technical and non-legal people in addition to the legal staffs who do know how to interface with the technology.
So back to that $100 million. PACER user costs are supposed to be determined under US Code Title 28, Secs. 1913, 1914, 1926 and 1932. Congress does not fund this service; the courts are restricted to raising the money to run the service under these laws to the fees that are required to run it. Nothing more. But the courts had used the fees generated by PACER to fund a whole bunch of unrelated activity.
The lower court had ruled, and the appellate court confirmed, that the government had taken fees intended to cover the operating costs of the service and used those feed to cover other court expenses—in this case, to pay for studies in several states about court costs.
The plaintiffs and several amici filings had attempted to expand the decision beyond that particular point to attempt to get the government to waive all fees for PACER, but the court stopped short of making that decision.


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