Judge Says Lawsuit Over PACER Fees Can Continue... As A Class Action

Last April, a few legal advocacy groups banded together to sue the US government over PACER fees. PACER is the court system's electronic access system whose fees are only supposed to help it break even on the "costs" of delivering courtroom documents in PDF form. Suffice to say, the fees exceed the costs and the money doesn't seem to be going towards making PACER a better system.

To sum up very briefly, PACER:

• works and looks like crap
  • 1998 crap, to be more specific
• fees are $0.10/page for nearly everything
  • including search results
• the search function works like crap
  • 1992 crap

Working (and looking) like outdated crap is one thing. Being charged by the federal government for pages your tax dollars helped create is another. PACER keeps working like crap and the US court system's administration keeps pretending the documents are stored in file cabinets and are being copied by hand for members of the public at a library-copy-machine rate of 10 cents a page.

In December, the presiding judge denied the government's attempt to dismiss the case. The government argued that members of the public agreed to whatever PACER felt like charging through some bureaucratic clickwrap.

The court disagreed with the government's assertions -- most likely because the government seemed confused about the lawsuit's purpose. The government argued that billing errors and overcharges weren't the government's fault -- and even if they were, users had agreed to pay first and ask questions later. The court pointed out this wasn't about billing errors, but whether the fees collected were lawful in the first place.

Now, the case has moved one step further -- again in favor of the public. As Politico's Josh Gerstein reports, the general public is being extended an invitation to participate in this bit of grievance redressing.

U.S. District Court Judge Ellen Huvelle said in an opinion she will allow anyone who paid so-called PACER (Public Access to Court Electronic Records) fees between April 2010 and April 2016 to be part of the class in the suit, which alleges that the government is violating a 2002 law that says fees for using the system should not exceed the costs to operate it.

In the opinion [PDF], the judge takes the government to task for its attempt to turn the proposed class action into something that only affects the original plaintiffs -- and then only affects these plaintiffs because they're supposedly so far removed from the normal PACER user.

According to defendant, named plaintiffs are not adequate representatives because “[t]heir interests in free PACER access for their favored subset of PACER users diverge from the interests of those PACER [users] seeking to minimize their costs of PACER use.”

This is the government hinting that the original plaintiffs perhaps use PACER too much, and as such, should definitely be giving Uncle Sam (US Courts division) a hand by shelling out 10 cents per page. The court points out that the plaintiffs have never alleged otherwise, but that their class action lawsuit would be beneficial to those who are both desiring access to public documents, but less likely to have as much disposable cash flow. These would be people the nonprofits are in the business of assisting. So, as Judge Huvelle points out, they're the perfect lead plaintiffs for the class action suit.

Named plaintiffs are not exempt from PACER fees and thus share with the other class members an interest in reducing the fees. The PACER fees that named plaintiffs have paid are low relative to their annual revenue and other costs of litigation. Because of their multimillion dollar annual budgets, named plaintiffs have averred that they cannot represent that they are unable to pay PACER fees, and as a result, they cannot qualify for exemptions. (Tr. 3-4.)

Thus, named plaintiffs must pay PACER fees and accordingly have an interest in reducing those fees. In fact, the nonprofit organizations who are named plaintiffs in this case make particularly good class representatives. They are interested in reducing PACER fees not only for themselves but also