Legal Issues

by Mike Masnick


Filed Under:
courts, fees, overcharging, pacer



Lawsuit Against Courts Massively Overcharging For Documents Moves Forward

from the some-good-news dept

Back in April, we wrote about an interesting lawsuit filed over excessive fees for PACER, the federal court system's electronic records system. If you're not a lawyer or journalist, and have never used PACER, it is difficult to put into words what a ridiculous and outdated system it is. Not only does it look like it was designed and built in 1998, the court system leverages ridiculous fees for everything you do in it. It's officially 10 cents per page (with a limit of $3 max per document), but that's not just per page you download of court documents, but everything. Do a search? That'll be at least 10 cents and possibly more if the magic PACER system decides the results are long enough. Look at a docket of a court case? Better hope it's not one with hundreds of filings, because just opening the docket can cost you $3 -- and that's before downloading any documents. As we pointed out years ago, the fees charged for PACER appear to be illegal. The law, 28 USC 123, that allows the court system to charge for PACER limits the fees to being "reasonable" -- and that means, among other things, that the fees are only used for the upkeep of PACER, and not for other stuff.

But that's not true. PACER brings in a ton of money and most of it is used for other things within the court system (and very little of it seems to be earmarked for actually upgrading PACER). This is a huge problem if you believe in the rule of law, and the idea that people should be able to read the law. Because the law is much more than the official regulations -- it also includes case law. And PACER has made it so that the relevant caselaw can often be inaccessible and expensive. That's crazy.

So the lawsuit that was filed earlier this year was interesting -- and of course the federal government tried to get it tossed out. Thankfully, the judge in the case, Ellen Segal Huevelle, has rejected that request and allowed the case to move forward. The government objected on two grounds: first, that a similar, but slightly different case, had also been filed by someone else -- and (more importantly) that the lawsuit failed to state a claim, because they didn't first complain to the PACER operators. Judge Huevelle doesn't buy either argument. About the two separate cases, the judge notes that the two cases are about two different things. This case is about how PACER charges too much per page under the law. The other case -- Fisher v. the United States -- (which, yes, we also wrote about) is about how PACER overcharges people when they just look at a docket. That is, the claim is that because PACER just considers every 4,320 bytes to be "a page" it is overcharging people, since dockets that are many fewer pages are being charged at higher rates. As Huevelle notes, these are different issues:
According to the class action complaint in Fisher, “PACER claims to charge users $0.10 for each page in a docket report” and calculates pages by equating 4,320 extracted bytes to one page, thus “purporting to charge users $0.10 per 4,320 bytes. But the PACER system actually miscalculates the number of extracted bytes in a docket report, resulting in an overcharge to users.”... In other words, Fisher claims an error in the application of the PACER fee schedule to a particular type of request. In contrast, plaintiffs here challenge the legality of the fee schedule. These are separate issues, and a finding of liability in one case would have no impact on liability in the other case. Therefore, the Court will not dismiss the suit based on the first-to-file rule.
Personally, I think both cases have merit, but they are definitely on different issues.

As for the failure to state a claim, again, the court doesn't buy it. Here, the government argued that because when you sign up for a PACER account, you agree to all the fine print in the user agreement, and part of that says that if there are billing "errors" you "must alert the PACER Service Center." Thus, our government lawyers argue, it means that because the plaintiffs here didn't claim "errors" in their bill to the PACER Service Center, there is no legal argument here. This is a ridiculous argument. And the court recognizes that. First it notes that in the other case mentioned above (the Fisher case), the courts have already said that clause does not require you to go to PACER before suing, but more importantly, notes that this case isn't about billing errors at all. It's about whether or not the bills are legal at all:
This Court need not reach those legal issues because, unlike Fisher, plaintiffs here do not claim a billing error. Therefore, even if the notification requirement constituted a contractual condition, it would not apply to the plaintiffs’ challenges to the legality of the fee schedule. Likewise, even if users were required to exhaust their claims for billing errors, that requirement would not apply to the claim in this case. In sum, the PACER policy statement provides no basis for dismissing this suit.
At this point, there's still plenty to go on this case -- and this is just a procedural step along the way. But it's nice to see that the court recognizes the government's ridiculous arguments for what they are.

Reader Comments

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  • icon
    Ehud Gavron (profile), 8 Dec 2016 @ 5:40pm

    PACER (ECF) is great. Billing is not.

    The concept is awesome. The implementation has been ok except for when they wanted to delete decades of records https://www.techdirt.com/articles/20140821/07015128275/pacer-deleting-old-cases-time-to-fix-pacer.sh tml.

    However, none of that justifies their high fees, ridiculous charges (docket report costing dollars) all for what should be a reimbursement for legitimate fees... all of which have dropped over the years.

    Hopefully we will get progress. Public Access to Court Electronic Records should not be free (or close to) for all, not held back by Ridiculous Identify Poverty Overcharge Fine Folks.

    E

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 8 Dec 2016 @ 11:31pm

      Re: PACER (ECF) is great. Billing is not.

      I'd say the concept is awesome and the implementation has been dreadful. It needs a massive update.

      And I don't see why it shouldn't be free. I know Carl Malamud has suggested that if they just raise the filing costs a little bit for corporations, it could recover more money and allow PACER to be free.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Dec 2016 @ 10:42am

        Re: Re: PACER (ECF) is great. Billing is not.

        I'd say the concept is awesome

        "Concept" meaning what? The idea of a site through which people can learn about case law? That should be considered standard and expected, not awesome.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Dec 2016 @ 6:50pm

    The costs are fixed

    The fees are not related to the cost of acting as the system or the cost of upgrading it. The "error" in the calculating system is weighted to benefit the PACER fee recipients only. It is a feature, not a bug. If I were given the project, I would reduce the fees to actual costs and donate any remainder to the local defense funds. The whole thing would then run a million times better and would cost most people, less than a dollar for hundreds of Megs of downloads. Almost as if a server room, built from scratch with some good software to handle the user access to the databases, would be priority one for the PACER people. I know of multiple companies in the DC area that could do a better job at a fraction of the cost.

    reply to this | link to this | view in chronology ]

  • identicon
    Christenson, 8 Dec 2016 @ 7:03pm

    PACER charging at all is wrong....should be covered by filing fees

    As it stands, it costs $350 to file a case in federal court. Why doesn't that cover the costs of publicizing the papers filed?

    reply to this | link to this | view in chronology ]

    • icon
      Justin Johnson (JJJJust) (profile), 8 Dec 2016 @ 11:06pm

      Re: PACER charging at all is wrong....should be covered by filing fees

      That $350 doesn't go very far...

      Unlike many state-level courts, Federal courts don't charge motion fees. Cases can last for years with tens or hundreds of motions and hearings and docket entries and all the court might get is that $350.

      reply to this | link to this | view in chronology ]

      • icon
        ltlw0lf (profile), 9 Dec 2016 @ 9:42am

        Re: Re: PACER charging at all is wrong....should be covered by filing fees

        Unlike many state-level courts, Federal courts don't charge motion fees. Cases can last for years with tens or hundreds of motions and hearings and docket entries and all the court might get is that $350.

        I know this is government, and I've worked with government long enough to know that government is fundamentally broken. But I always wonder why there isn't someone smart looking at this and saying "we aren't getting enough money, lets raise the rates and offer rate plans for folks who can't afford a lump sum payment" instead of "lets create a brand new and highly illegal tax which we can use to offset our costs."

        Than I remember, I know this is government, and I've worked with government long enough to know that anyone smart enough to fix this problem has long ago decided not to work with government.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Dec 2016 @ 9:48am

        Re: Re: PACER charging at all is wrong....should be covered by filing fees

        Unlike many state-level courts, Federal courts don't charge motion fees. Cases can last for years with tens or hundreds of motions and hearings and docket entries and all the court might get is that $350.

        If people can flood the court with unlimited documents for a fixed cost, maybe that should be fixed. But it doesn't cost anything to host legal papers: RECAP/archive.org are doing it for free. And scanning documents shouldn't be considered an optional service these days. (Are judges working with electronic records?)

        reply to this | link to this | view in chronology ]

  • icon
    art guerrilla (profile), 8 Dec 2016 @ 7:34pm

    at christenson

    because you are still thinking of your gummint as a mostly earnest system weally, weally twying weally hard to serve the greatest good for the greatest number; when the barely disguised reality is that it is a con game to take the all the goods from the greatest number of sheeples...
    it makes no sense to think this is a sincerely intended means of governing successfully...
    when you look at it as an institution hijacked to serve the interests of the 1%, *then* it 'makes (perverted) sense'...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Dec 2016 @ 8:21am

      Re: at christenson

      This sort of cynicism won't change anything. Only staying vigilant and attempting to hold the government to higher standards will.

      reply to this | link to this | view in chronology ]

  • identicon
    Anon, 8 Dec 2016 @ 9:09pm

    Old news!!?

    This reminds me of the lawsuit about 1980 about the fees charged to register CB radios. Initially as the CB craze built up, the FCC was charging about $600 for a license. They were eventually sued and had to drop the fee to something reasonable.

    The principle is simple. Only congress can implement taxes. fees are meant to cover the cost of whatever the fee is for. So whether adding a CB license to a database, or finding and presenting on a screen a page or several of data, it's the same. The government agency can only charge what's appropriate for implementing that service - i.e. electrical bill, IT support, servers, etc. If those devices are used equally (or more than that) by the government itself, the court system, then the fee charged to external customers should reflect the proportion of the system load that they represent. Maybe a case can be made for the share of the data entry costs that they represent, and even a reasonable amount in a fund to replace the servers in due time... but not to fund all sorts of other departmental activities.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    John Mayor, 8 Dec 2016 @ 11:09pm

    PACER IS NOT A REINDEER

    First of all, a Forensic Investigation of the entire PACER system should be pursued!... and backed by any number of Civil Rights advocacies! And further, given the very clear direct and indirect Civil Rights breaches inhere within the operation of this system, a Constitutional challenge should be mounted that would vett the Constitutionality of its operation, and costing!
    .
    Please!... no emails!

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 9 Dec 2016 @ 10:18am

    The Law

    As I said earlier - the constitution only allows congress to implement taxes. A fee is to pay for the cost of providing a service. A fee that consistently creates significant excess revenue not required for the service, and thus spent on other things, is a tax. It is illegal. Hence, the lawsuit.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Dec 2016 @ 8:53am

    "a huge problem if you believe in the rule of law"

    Which the courts apparently do not.

    reply to this | link to this | view in chronology ]


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