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April 10, 2018

PACER fees may have been improperly spent, Court finds

In ruling on cross motions for summary judgment, U.S. District Judge Ellen Segal Huvelle for the District of Columbia on March 31, 2018 agreed that the Administrative Office of the United States Courts improperly used fees from the records service PACER to fund some expenditures in violation of the E-Government Act. Plaintiffs, three nonprofit groups represented by Motley Rice and co-counsel, have alleged that questionable spending practices between 2010 and 2016 contributed to rising PACER fees that they believe to be excessive.

“PACER fees have increased at least twice since 2002, but the costs of operating the service don’t appear to justify that level of increase,” said Motley Rice attorney for the plaintiffs’ Meghan Oliver. “By questioning the validity of a number of expenditures that we know were made using PACER fees, the Court’s ruling provides additional support for our belief that the fees are unjustifiably high.”

The E-Government Act was enacted in 2002 to help employ technological advances to improve public access to government records and information. The law allows for the collection of fees in order to fund the operational costs needed to provide and maintain the PACER service. However, plaintiffs have alleged that the government used PACER fees to fund services and purchases unrelated to PACER in violation of the law.

The law “is clear that, to be paid for with PACER fees, a ‘service’ must be one that provides the public with ‘access to information available through automatic data processing equipment,’” the Court opined. “An examination of this statutory provision’s history—dating from its enactment in 1990 and culminating in its amendment by the E-Government Act in 2002—resolves any ambiguity in its meaning and allows the Court to determine which expenditures between 2010 and 2016 were properly funded by PACER fees.”

While the Court disagreed with plaintiffs on which expenditures were potentially improper, it did agree that some expenses should not have been paid for using PACER fees, including funds for a State of Mississippi study, the Violent Crime Control Act victim notification system, online juror services, and certain expenses related to courtroom technology, including flat-screen monitors for jurors.

The plaintiffs in the case — nonprofits the National Veterans Legal Services Program, the National Consumer Law Center, and Alliance for Justice — filed litigation in 2016 and class certification was granted the following year for people and entities impacted between April 21, 2010 and April 21, 2016. Motley Rice and co-counsel Gupta Wessler PLLC represent the class, which consists of hundreds of thousands of members.

If you paid PACER fees during the class period and wish to submit an inquiry regarding the litigation, you may do so here.

Read the complaint.
Read the plaintiffs’ motion for summary judgment.
Read the Court’s opinion.