Cost of Accessing PACER

National Veterans Legal Services Program (NVLSP) v. US (Fed. Cir. 2020)

Today, the Federal Circuit heard oral argument in this case involving the $0.10 per page fee for downloading documents from PACER. The basic argument here is that “PACER fees must be limited to PACER costs.”

This case challenges the legality of user fees charged by the federal judiciary for access to records via its Public Access to Court Electronic Records system, or PACER. It is undisputed that these fees far exceed the costs of providing such records—costs that have decreased exponentially even as fees have risen. The district court held that PACER fees have been unlawfully set above the amount authorized by Congress and found the government liable for the excess. This appeal concerns whether the unlawful excess identified by the district court was too little (the plaintiffs’ view), too much (the government’s view), or just right.

Opening brief. [PACER Case Opening Brief]. In 2002, modified the law with regard to the cost of providing electronic docketing information by indicating that the Judicial Conference my “prescribe reasonable fees” to access information, but may do so “only to the extent necessary.”

The appeal here is interlocutory based upon the certified question of whether the statute authorizes the US Courts “to charge more in PACER fees than is necessary to recoup the total marginal cost of providing access to records through PACER?”  In its briefing, the U.S. Government also argues that the case as a whole lacks jurisdiction under the Little Tucker Act.  A large number of amicus briefs were also filed supporting the petition and arguing that this is a very important issue involving transparency and access to the court system.

• Retired Judges (including Judge Posner): Fees reduce judicial transparency and legitimaxy
• ACLU: Access protected by 1st Amendment
• Casetext, etc.: Fees curtail legal research
• Sen. Lieberman: (Sponsor of 2002 law discussed above) Fees may not be above costs of providing access.