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you’re not a lawyer or journalist, and have never used PACER, it is difficult to put into words what a ridiculous and outdated system it is.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.

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