February 2017

By: Sheri L. Gordon

In April 2016, the National Veterans Legal Services Program, the National Consumer Law Center, and the Alliance For Justice initiated a class action against the U.S. government in the U.S. District Court for the District of Columbia challenging the legality of fees charged by the Administrative Office of the U.S. Courts (AO) for accessing court records and documents through its Public Access to Court Electronic Records system (PACER). National Veterans Legal Services Program v. U.S., Case No. 1:16-cv-00745-ESH (D. D.C.).

The plaintiffs allege that the fees are excessive compared with the actual costs to provide the records, and note that over a decade ago Congress recognized that PACER users were being charged fees far above the marginal costs to disseminate the information and took steps in 2002 to ensure that the court records would be “freely available to the greatest extent possible.” Complaint at 1 (quoting S. Rep. 107-174, 107th Cong., 2d Sess. 23 (2002)), leading to enactment of the E-Government Act of 2002 (28 U.S.C. § 1913). The Act authorizes fees, as a service charge, for PACER access “only to the extent necessary…. to reimburse expenses incurred in providing [the] services.” 28 U.S.C. § 1913, note.

The plaintiffs further allege that the AO has twice increased PACER fees since the E-Government Act became effective, prompting the Act’s sponsor to admonish the AO for continuing to charge fees much higher than the cost of dissemination, in violation of the Act’s requirement that the payment system be used “only to recover the direct cost of distributing documents via PACER.” Complaint at 2. The plaintiffs also claim that the AO has improperly applied excess PACER fees to unrelated projects such as equipment for use in proceedings before a jury (e.g., flat screens and audio systems). Id.

On behalf of “themselves and a nationwide class” of similarly situated PACER users, the plaintiffs are asking the D.C. Court to find that the PACER fee schedule violates the E-Government Act and award them full recovery of overcharges incurred within the six years preceding the date of the complaint. They sought class certification of “all individuals and entities who have paid fees for the use of PACER within the past six years, excluding class counsel and agencies of the federal government.” Complaint at 12. Plaintiffs also filed a motion for class certification.

On January 24, 2017, the D.C. court granted plaintiffs’ motion, and, under Fed. R. Civ. P. 23(b)(3), certified this class: “All individuals and entities who have paid fees for the use of PACER between April 21, 2010, and April 21, 2016, excluding class counsel in this case and federal government entities.” Op. at 8. The Court ordered the parties to submit a proposed, or separate if they cannot agree, form of notice to class members within 30 days of the certification order, and further ordered that e-mail notice be sent to the class within 90 days from the Court’s approval of a form of notice.