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cover costs related to any electronic court access ser- Both sides had sought the appeal after Huvelle
vice or program,” Hughes wrote. granted the federal government’s summary judg-
The panel also rejected the government’s argument ment in part but denied a summary judgment
to throw the case out over a lack of jurisdiction under motion by the plaintiffs, which are three organiza-
the Little Tucker Act, finding that because the law at tions: the National Veterans Legal Services Program,
hand “is a fee-authorizing statute, and the govern- the National Consumer Law Center and the Alli-
ment is alleged to have illegally collected more than ance for Justice.
the authorized fee, the necessarily implied remedy At issue is how the federal judiciary spends reve-
for any violation through overcharging is that the nues from PACER fees, which are 10 cents per page
government must return the excess fees collected.” and totaled $920 million from 2010 to 2016, the pe-
The ruling comes in an interlocutory appeal of a riod of the certified class in the case. Plaintiffs, citing
2018 order on summary judgment by Huvelle, of the the E-Government Act of 2002, which was derived
District of Columbia, in a class action about the le- from a Lieberman-sponsored bill that sought to curb
gality of user fees that the Administrative Office of skyrocketing PACER fees, argued in a 2016 case that
U.S. Courts charges for access to court records via its revenues should only pay for costs associated with the
Public Access to Court Electronic electronic filing system. The fed-
Records system, or PACER. eral government argued that the
The appeal attracted amicus appropriations committee expand-
briefs from seven retired judges, ed its authority over PACER fees.
including U.S. Court of Appeals In her order, Huvelle found
for the Seventh Circuit Judge The U.S. Court of Appeals for neither side was entirely correct.
Richard Posner, as well as former the Federal Circuit affirmed She disagreed with plaintiffs that
U.S. Sen. Joe Lieberman, D-Con- Senior U.S. District Judge PACER revenues were limited, but

necticut, and others. Ellen Huvelle’s decision, struck down several expenditures
Deepak Gupta of Gupta Wessler that the government supported,
in Washington, D.C., argued the finding that the judge such as those for courtroom tech-
case for the plaintiffs. The Justice nology, web-based juror services
“got it just right.”

Department, was represented by and victim notification.
Alisa Klein at oral arguments. At Feb. 3 oral arguments, the
Gupta said in an email Thurs- Federal Circuit panel raised nu-
day that his team is “thrilled that merous hypotheticals about what
the Federal Circuit recognized PACER fees could pay for, with
that the federal judiciary’s PACER system has been Clevenger asking what would happen if they were
charging people more than the law allows for access used to pay for new curtains for the U.S. Supreme
to court records.” Court, redecorate all the federal judges’ offices or in-
“The judiciary’s antiquated paywall inhibits stall a gold-plated toilet.
ordinary people’s access to the courts, prevents The panel also pressed Gupta on the collection of
journalists from covering what the courts are up to, the PACER fees. They said that courts didn’t initially
and makes important academic research difficult or have the infrastructure in place to create and distrib-
impossible. The next step should be to make access ute electronic records, and that costs were involved
completely free,” he said. in setting up that system.
Gupta added that the ruling is “a testament to the ¦

integrity of our federal courts that it’s even possible Jacqueline Thomsen, based in Washington, is a re-
for private litigants to prevail in a case like this— porter covering D.C. federal courts and the legal
a class action in the federal courts, challenging the side of politics. Contact her at jathomsen@alm.
federal court system itself for overcharging people.” com and follow her on Twitter @jacq_thomsen.

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