In a historic decision, a judge for the U.S. District Court for the District of Columbia approved a settlement agreement that resolves longstanding litigation over the fees charged by the Public Access to Court Electronic Records (PACER) system, marking a significant victory for public access to federal courts.
The settlement, signed by District Judge Paul L. Friedman on March 20, will see over $100 million in fees returned to users, the culmination of a legal battle that has scrutinized the federal judiciary’s use of the proceeds from PACER fees.
“For over fifteen years, PACER fees–the per-page fees that the federal judiciary charges the public for online access to court documents–have been a subject of controversy,” Judge Friedman wrote in the opening line of his opinion. “As a result of the litigation in this case, the United States will return over $100 million of these fees to users of PACER. Today, this litigation substantially comes to a close.”
History and Controversy
Initiated as an electronic access system to court documents in the late 1980s, PACER was designed to make legal records more accessible to the public, Judge Friedman wrote.“Before the late 1980s, federal courts operated on paper,” he wrote. “If members of the public wanted to view court dockets or filings, they had to travel to the courthouses where those records physically existed. Then, in 1988, the judiciary ‘authorized an experimental program of electronic access for the public to court information.’ ... This experiment gave rise to the Public Access to Court Electronic Records system, or ‘PACER.’ PACER allows the public to access court documents without the need to review physical records or travel to the courthouse to access them.”
PACER originally worked via a dial-up phone connection where users were charged by the minute, which evolved in 1998 into today’s users being charged per page.
Around the same time, the judiciary began to use PACER fees to pay for programs other than PACER, the judge said.
This per-page fee model evolved into a significant revenue stream for the judiciary, which has since faced criticism for what critics say impedes public access to legal information.
The litigation, led by the National Veterans Legal Services Program, National Consumer Law Center, and Alliance for Justice, challenged the legality of using PACER fees to fund projects beyond the scope of maintaining the electronic access system.
The plaintiffs, in their suit originally filed in 2016, argued that such use of the fees was contrary to the E-Government Act of 2002, which aimed to improve electronic access to court records by calling for “reasonable fees” only “to the extent necessary.”
“From the beginning of fiscal year 2010 to the end of fiscal year 2016, the judiciary collected more than $920 million in PACER fees; the total amount collected annually increased from about $102.5 million in 2010 to $146.4 million in 2016,” the judge noted in the opinion.
The settlement resolves a 2016 lawsuit filed by the nonprofits the National Veterans Legal Services Program, the National Consumer Law Center, and Alliance for Justice, alleging the judiciary overstepped its authority when collecting fees.
In 2018, a judge partly sided with the plaintiffs, holding that Congress had not authorized the judiciary to spend about $198 million in fees from PACER for courtroom technology improvements, web-based juror services, and a crime victims notification system.
Settlement Details
After extensive negotiations and a thorough review of the settlement’s terms, the court approved an agreement providing substantial relief to hundreds of thousands of PACER users.The settlement establishes a $125 million common fund, of which at least 80 percent, or $100 million, will be distributed to class members who paid PACER fees from April 21, 2010, to May 31, 2018, with the remaining $25 million covering attorneys’ fees and expenses.
This distribution aims to reimburse users for fees that were unlawfully allocated to unrelated court projects.
The settlement employs a tiered approach to reimburse PACER users, ensuring that those who paid less than $350 during the specified period are fully compensated.
Users who paid more than $350 may receive additional pro rata payments from the remaining fund.
Procedural Fairness and Legal Analysis
The court’s approval followed rigorous analysis of the settlement’s fairness, adequacy, and reasonableness, emphasizing the procedural and substantive protections afforded to class members, the judge said.The judge also commended the attorneys for the plaintiffs in his final opinion.
“Before reaching a settlement in this unique case, Class Counsel impressively litigated for nearly eight years,” the judge wrote. “They took the case from an untested idea, to a certified class action, to a win on partial summary judgment, to a successful appeal. They negotiated with the federal government to deliver to the class much of the recovery the class sought—although, as with any compromise, not all of it.”
While this litigation addressed prior concerns related to PACER fees and access to court information without any undue financial burden, other concerns about balancing revenue generation with open access to the public would need to be addressed through additional legislation or changes in policy by the judiciary.
The Epoch Times requested comment from all three of the main plaintiffs in the case, but they did not respond before press time.
