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Will the DC federal court grant class certification for an ongoing lawsuit against the government for “charging excessive fees to access court records through PACER”?

In April 2016, three nonprofits—the Alliance for Justice, the National Consumer Law Center, and the National Veterans Services Program—filed a class-action lawsuit against the government, alleging that the Administrative Office of the US Courts (AO) has been violating the E-Government Act of 2002 by charging excessive fees to access court records through PACER.

PACER (Public Access to Court Electronic Records) describes itself as “an electronic public access service that allows users to obtain case and docket information online from [federal courts]”. The AO charges a fee to download documents on PACER. When web access to PACER opened in 1998, the AO charged $0.07 per page.

Until 2002, a federal statute required the AO to charge a fee to access PACER: [italics added]

The Judicial Conference shall hereafter prescribe reasonable fees […] for collection by the courts […] for access to information available through automatic data processing equipment.

However, in 2002, the E-Government Act was signed into law and amended this statute to its current form by “striking ‘shall hereafter’ and inserting ‘may, only to the extent necessary,’”. Regardless, in 2005, the AO increased the fee from $0.07 to $0.08 per page, and in 2012, to $0.10 per page.

In their motion for class certification, the plaintiffs in this suit allege that “[these fees] far exceed the cost of providing the records, and thus violate the E-Government Act”, and state: [emphasis in original]

The E-Government Act’s sponsor says that the AO is violating the law. In early 2009, Senator Joe Lieberman (the E-Government Act’s sponsor) wrote the AO “to inquire if [it] is complying” with the law.

[…]

[In 2010], in his annual letter to the Appropriations Committee, Senator Lieberman expressed his “concerns” about the AO’s interpretation [of the E-Government Act]. “[D]espite the technological innovations that should have led to reduced costs in the past eight years,” he observed, the “cost for these documents has gone up.” It has done so because the AO uses the fees to fund “initiatives that are unrelated to providing public access via PACER.” He reiterated his view that this is “against the requirement of the E-Government Act,” which permits “a payment system that is used only to recover the direct cost of distributing documents via PACER.” Other technology-related projects, he stressed, “should be funded through direct appropriations.”

As of August 16, there are two pending motions in this suit:

  • The plaintiffs filed a motion for class certification to represent “[a]ll individuals and entities who have paid fees for the use of PACER within the past six years”, stating that on behalf of this class, they will seek “a full refund of excess fees charged within the [past six years], plus a declaration that the fees violate the E-Government Act”.
  • The government filed a motion to “dismiss this action for failure to state a claim within this Court’s jurisdiction and under the ‘first-to-file’ rule”, or for “summary judgment in its favor […] because there is no genuine issue as to any material fact and the Defendant is entitled to judgment as a matter of law”.

The parties have filed the following documents relating to these motions:

On August 16, the court granted a joint motion for a three-phased schedule of proceedings. Following this schedule, the suit is currently in phase I and will move on to phase II if “the Motion to Dismiss is denied, and the Court grants certification of a class, in whole or in part”.

We ask not about the final outcome of this suit, but merely about the outcomes of the pending motions. Will this suit continue to phase II of its schedule?

This question will resolve as positive if, by May 2017,

  • the court denies the government's motion to dismiss, and
  • the court grants certification of a class for the plaintiffs, in whole or in part.

For timely resolution, we will consider only the first rulings on these motions by the DC federal trial court (where the case is being held), and ignore any appeal. These rulings will be available on… PACER, of course.

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