Federal Circuit affirms PACER fee decision

After a two-and-a-half year wait, the Federal Circuit Court of Appeals has affirmed the decision of Judge Ellen Segal Huvelle in National Veterans Legal Services et al. v. United States. The plaintiffs in that case argued that the Judicial Conference of the United States and the Administrative Office of the U.S. Courts exceeded their statutory authorization by using PACER fees to fund internal court projects that were unrelated to the administration of the PACER system itself. (PACER is part of the federal courts’ electronic filing system, which allows the public to access most documents that are filed for a 10 cent/page fee.) The government argued that funding the additional projects did not exceed the court’s authority.

In March 2018, on cross-motions for summary judgment, Judge Huvelle split the difference, concluding as a matter of statutory interpretation that the courts had properly used PACER fees to fund certain projects–including the development of the electronci filing system itself–but had overstepped its bounds in using funds to provide electronic notice to jurors, assist with state court records in Mississippi, and other tangential projects. (I previosuly explored Judge Huvelle’s opinion, and the policies underlying the larger question of PACER fees, here.)

The Federal Circuit concluded that Judge Huvelle’s opinion “got it just right.” But it also added its own gloss on the relationship between the courts and the other branches of government, as seen through the lens of PACER revenue.

While much of the Federal Circuit’s opinion was a straightforward recitation of the underlying facts and the parties’ arguments, it included two particularly interesting discussions from the perspective of court interdependence. First, the Federal Circuit rejected the argument that because the Administrative Office had notified Congress about its use of PACER funds for the tangential projects as they were happening, and because the relevant appropriations committees had not formally objected, Congress should be seen to have tacitly approved the spending. The panel explained:

[T]hese appropriations committee responses cannot be taken as expressing the will of Congress as a whole. We will not so lightly abdicate to Congress, or its constituent bodies, the exclusively judicial power “to say what the law is.”

What a neat piece of legal jiujitsu. The Federal Circuit held its own administrative bodies legally accountable for statutory overreach, but in doing so reaffirmed its own constitutional supremacy in the field of legal interpretation. Indeed, had the court accepted the argument that Congressional inaction was itself a form of authorization, it would have weakened its own case for judicial review in a variety of other cases. (Congressional inaction can, of course, be deemed legally binding where the statute explicitly so authorizes, as in the case of federal rulemaking.)

The second interesting piece of the opinion was the court’s express acknowledgement that a constitutional right to access the courts was very much in play. Noting the plaintiffs’ claim that “excessive PACER fees may infringe the First Amendment right of access to courts,” the panel responded:

We agree with plaintiffs and amici that the First Amendment stakes here are high. If large swaths of the public cannot afford the fees required to access court records, it will diminish the public’s ability “to participate and serve as a check upon the judicial process–an essential component in our structure of self-government.'”… But we do not foresee the district court’s middle-ground interpretation permitting fees to be used for PACER [and closely related projects] as resulting in a level of user fees that will significantly impeded public access to courts.

In other words, that ten-cent per page charge isn’t going away any time soon. But it does show a frankness about balancing public access and court administrative costs, which may ease the way for the courts to seek additional funding from Congress for maintaining the PACER system long-term.

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