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No. 12-IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: APPLICATION FOR EXEMPTION FROM ELECTRONIC PUBLIC
ACCESS FEES BY JENNIFER GOLLAN AND SHANE SHIFFLETT
JENNIFER GOLLAN and SHANE SHIFFLETT,
Applicants - Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BRIEF FOR THE ADMINISTRATIVE OFFICE OF
UNITED STATES COURTS AS AMICUS CURIAE
ROBERT K. LOESCHE
General Counsel
SIGMUND ADAMS
Attorney
Administrative Office of
United States Courts
Washington, D.C.
STUART F. DELERY
Principal Deputy Assistant
Attorney General
MELINDA L. HAAG
United States Attorney
MATTHEW M. COLLETTE
H. THOMAS BYRON III
(202) 616-Attorneys, Appellate Staff
Civil Division, Room U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530Page 2 Case: 12-
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TABLE OF CONTENTS
INTEREST OF THE AMICUS CURIAE ...............................................................JURISDICTIONAL STATEMENT.........................................................................STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ...........................STATEMENT OF THE CASE ................................................................................STATEMENT OF FACTS .......................................................................................SUMMARY OF ARGUMENT ...............................................................................ARGUMENT ..........................................................................................................I.
This Court Lacks Appellate Jurisdiction ...........................................
II.
The All Writs Act Does Not Provide Jurisdiction............................
III.
The District Court’s Denial Of An Exemption Is
Consistent With The Judicial Conference Policy .............................
CONCLUSION ......................................................................................................CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM
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TABLE OF AUTHORITIES
Cases:
Aref v. United States, 452 F.3d 202 (2d Cir. 2006) ......................................... 19-In re Baker, 693 F.2d 925 (9th Cir. 1982) ....................................................... 14, Bense v. Starling, 719 F.2d 241 (7th Cir. 1983) ....................................................Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004) ..................................................Clinton v. Goldsmith, 526 U.S. 529 (1999) ............................................................Ellis v. Dyson, 421 U.S. 426 (1975)........................................................................Jackson v. Vasquez, 1 F.3d 885 (9th Cir. 1993) .....................................................Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994)......................................Landano v. Rufferty, 859 F.2d 301 (3d Cir. 1988) ................................................Liverpool S.S. Co. v. Commissioners of Emigration, 113 U.S. 33 (1885) ..............Roche v. Evaporated Milk Ass’n, 319 U.S. 21 (1943) ............................................Taiwan v. U.S. Dist. Court, 128 F.3d 712 (9th Cir. 1997) ............................. 18-United States v. Deluca, 912 F.2d 183 (7th Cir. 1990) ........................................United States v. French, 556 F.3d 1091 (10th Cir. 2009) ....................................United States v. Bloomer, 150 F.3d 146 (2d Cir. 1998) ........................................Valley Forge Christian College v. Americans United for Separation of
Church & State, 454 U.S. 464 (1982) ...............................................................
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Zied-Campbell v. Richman, 317 Fed. Appx. 247 (3d Cir.), cert.
denied, 130 S. Ct. 290 (2009) ..........................................................................Statutes:
28 U.S.C. § 604 ..........................................................................................................28 U.S.C. § 1291 ..................................................................................... 3, 10, 11, 28 U.S.C. § 1295 .......................................................................................................28 U.S.C. § 1331 ........................................................................................................28 U.S.C. § 1914 ........................................................................................................All Writs Act:
28 U.S.C. § 1651(a) ................................................................................... 10, Fiscal Year 1992 Appropriations Act for the Judiciary, Pub. L. No.
102-140, § 303, reprinted at 28 U.S.C. § 1913, Note .................... 2, 16, 25-
Rules:
Fed. R. Civ. P. 3 .............................................................................................. 12-Other:
Administrative Office of United States Courts, Electronic Public
Access Program Summary (Dec. 2012)............................................. 6, 21,
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IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 12-In re: APPLICATION FOR EXEMPTION FROM ELECTRONIC PUBLIC
ACCESS FEES BY JENNIFER GOLLAN AND SHANE SHIFFLETT
JENNIFER GOLLAN and SHANE SHIFFLETT,
Applicants - Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BRIEF FOR THE ADMINISTRATIVE OFFICE OF
UNITED STATES COURTS AS AMICUS CURIAE
INTEREST OF AMICUS CURIAE
The Administrative Office of United States Courts (AO) submits this
brief as amicus curiae in response to the Court’s invitation. The AO is the
central support entity for the Judicial Branch. It provides a wide range of
administrative, legal, financial, management, program, and information
technology services to the federal courts. The AO also provides support
and staff counsel to the Judicial Conference of the United States and itsPage 6 Case: 12-
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committees, and implements and executes Judicial Conference policies, as
well as applicable federal statutes and regulations. The Judicial Conference
of the United States supervises the Director of the AO in the performance
of his duties as the administrative officer of the courts of the United States
under 28 U.S.C. § 604. In addition, the Judicial Conference acts pursuant to
statutory authority in a variety of specific areas dealing with the
administration of the courts, and promulgates administrative policies such
as the one at issue here.
This proceeding concerns the interpretation, application, and
reviewability of the Electronic Public Access Fee Schedule, a list of fees
payable by users of the federal judiciary’s electronic case record system.
The Judicial Conference adopted that fee schedule pursuant to authority
granted by Congress in the Fiscal Year 1992 Appropriations Act for the
Judiciary, directing the Judicial Conference to “prescribe reasonable fees,
* * * for collection by the courts * * * for access to information available
through automatic data processing equipment.”
§ 303), reprinted at 28 U.S.C. § 1913, Note.
Pub. L. No. 102-140,
The fee schedule andPage 7 Case: 12-
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accompanying policy notes were adopted by the Judicial Conference after
consideration by the Committee on Court Administration and Case
Management (CACM), supported by the AO.
JURISDICTIONAL STATEMENT
Jennifer Gollan and Shane Shifflett applied to the district court,
seeking an exemption from otherwise applicable fees for electronic access
to court records through PACER (Public Access to Court Electronic
Records). Their exemption application did not identify any statute that
confers judicial jurisdiction on federal courts for the resolution of disputes
concerning such fees; their opening brief in this Court (at 1) asserts that the
district court had jurisdiction pursuant to 28 U.S.C. § 1331. The district
court denied the exemption on May 16, 2012. Gollan and Shifflett filed a
notice of appeal on June 12, 2012. Their opening brief invokes this Court’s
jurisdiction under 28 U.S.C. § 1295. See Gollan Br. 1.1 As discussed below,
The cited statute specifies the jurisdiction of the United States Court
of Appeals for the Federal Circuit. Gollan and Shifflett may have intended
to cite to 28 U.S.C. § 1291, which provides for appellate jurisdiction over
final decisions of district courts. See Gollan Br. 1 (characterizing denial of
Continued on next page.
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this Court lacks jurisdiction over this appeal, and also would lack
jurisdiction if the notice of appeal were treated as a petition for a writ of
mandamus.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1.
Whether this Court has jurisdiction over an appeal from an
order denying an application for exemption from PACER fees.
2.
Whether the notice of appeal should be treated as a petition for
a writ of mandamus.
3.
Whether the fee-exemption application was properly denied
under the applicable Judicial Conference policy.
STATEMENT OF THE CASE
Gollan and Shifflett seek appellate review of a decision by Chief
Judge James Ware, denying their application for an exemption from the
fees applicable to users of the PACER system. Judge Ware’s ex parte
decision was not issued in conjunction with any docketed case before the
fee exemption application as “a final decision as to the rights of ApplicantsAppellants Jennifer Gollan and Shane Shifflett”).
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district court, and no adverse party has been named in this Court or the
district court.
STATEMENT OF FACTS
1.
PACER is an internet-based service that provides users with
access to dockets, reports, and filings in trial and appellate cases in federal
courts throughout the United States. It is linked with, and integral to, the
courts’ electronic case management and filing system.
Dockets and
documents filed in all cases since the onset of electronic filing are available
for public access through the PACER system.
The Judicial Conference establishes fees for PACER access pursuant
to statutory authority. There is no fee for registration to use the system.
The fee schedule charges ten cents per page viewed, with a per-document
maximum of 30 pages (unformatted web data is charged at a per-page
equivalent).
Users may save or print any documents retrieved from the
system without incurring any additional PACER fees.
The fee schedule in place at the time of Judge Ware’s denial of the
exemption application here, which was effective April 1, 2012, is appended
to this brief (Add. A1-A2). The Judicial Conference subsequently adopted
Continued on next page.
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Most PACER users pay nothing for access to the system of judicial
records: Court opinions are available free of charge. There is no charge for
litigants (through their counsel or pro se) to receive a copy of any
document filed and served in cases to which they are a party. And the vast
majority of PACER users – those generating a relatively small volume of
usage per month – are not charged at all.
Moreover, every federal
courthouse has public terminals available for users to search and view
information without charge. And the policy includes a mechanism for
courts to grant exemptions from the fee requirement, based on
demonstrated need, for certain users, as discussed below. See Electronic
Public Access Program Summary 8-10 (Dec. 2012) (Add. A10-A12).4 The
Judicial Conference plans to revisit the PACER fee policy later this year,
and expects to clarify the exemption requirements.
a revised schedule, effective October 1, 2012, which raised fees for name
searches and returned checks, but otherwise left the fee schedule and
policy notes unchanged.
3 Users with $15 or less in monthly charges owe nothing.
4 The Program Summary, a report published by the AO, available at
http://www.pacer.gov/psc/qresources.html, is appended to this brief.
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Jennifer Gollan and Shane Shifflett are reporters employed by
the Center for Investigative Reporting (“CIR”), a media organization with
nonprofit status under section 501(c)(3) of the Internal Revenue Code.
Gollan and Shifflett submitted a petition for exemption from the fee
schedule for access to electronic judicial records of cases on PACER. Their
application stated that they sought the exemption in order to conduct
research “analyzing the effectiveness of the court’s conflict-checking
software and hardware used by the California federal courts to help federal
judges identify situations requiring their recusal.” ER 17; see also ER 47.
They proposed to “cross reference court records available through PACER
against separate data sets, such as judges’ statements of economic interest”;
they would “harvest[] dockets from PACER and analyz[e] their
grammatical patterns” in order to “classify documents and search them for
context.” Ibid.
Gollan and Shifflett anticipated that the cost of PACER fees would be
“many thousands of dollars,” although the application did not elaborate on
that estimate or explain the basis for calculating the total amount of fees
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They asserted, again without
explanation, that the expense of PACER fees “is prohibitive,” and
explained only that CIR’s “funding is both limited and wholly dependent
on foundation grants and donations.” Ibid. The application concluded
that, without an exemption from fees, CIR would “not be able to access the
federal court records necessary to complete this study.” Ibid.
3.
The district court initially granted the application on the basis
of Gollan and Shifflett’s representation that their employer (initially, CIR’s
predecessor, The Bay Citizen) was a 501(c)(3) organization. Several weeks
later, however, the court suspended its order, invited Gollan and Shifflett
to file a renewed fee-exemption application, and set a show-cause hearing
to address whether they were entitled to a fee exemption.
Chief Judge Ware denied the application, concluding that “the Court
does not find good cause to grant Gollan and Shifflett an exemption from
payment of electronic public access fees.” ER 12. The order relied on the
statement in the Judicial Conference Policy Notes to 28 U.S.C. § 1914,
which the judge interpreted to “expressly state that courts should not grant
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such exemptions to ‘members of the media.’”
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Ibid.; see also ER 12-
(relying on the “Judicial Conference policy precluding the granting of such
exemptions to members of the media” as a basis for finding “that it would
be inappropriate to grant Gollan and Shifflett an exemption”). The order
noted that Gollan and Shifflett had argued that the Judicial Conference
Policy Notes should be read not to apply to members of the media who are
part of section 501(c)(3) non-profit organizations, but the judge concluded
that there was no authority in support of that argument and declined to
adopt it. ER 13.
Gollan and Shifflett filed a notice of appeal, seeking review of the
denial of their fee-exemption application. After their opening brief was
filed, this Court issued an order inviting the Department of Justice to
appear on behalf of the Administrative Office of United States Courts or
the Judicial Conference as amicus curiae or as an intervenor in the appeal.
SUMMARY OF ARGUMENT
This Court lacks jurisdiction to review the fee-exemption denial,
which was an administrative – not a judicial – order by Judge Ware. An
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application for exemption from PACER fees is not an adversarial case or
controversy within the Article III jurisdiction of the federal courts. And the
resulting determination was thus not a final decision within the scope of U.S.C. § 1291.
Nor can this case be considered under this Court’s mandamus
jurisdiction. Because a court’s authority to issue writs of mandamus is
limited to proceedings in aid of its jurisdiction, as specified in the All Writs
Act, 28 U.S.C. § 1651(a), treating the notice of appeal here as a petition for a
writ of mandamus would not create jurisdiction where there is no
independent basis for jurisdiction.
Even if there were appellate jurisdiction here, this Court would be
bound to reject the arguments made by Golan and Shifflett. Judge Ware’s
denial of the fee-exemption application was proper under the Judicial
Conference policy on PACER fees. That policy identifies groups that may
be unable to pay the fees – such as legal aid and non-profit organizations –
but it does not confer categorical exemptions for those groups. Likewise,
the policy identifies large-volume users – such as attorneys and media
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organizations – who presumptively can and should pay for access to case
data, although the policy does not categorically prohibit an exemption for
such users.
The policy requires every applicant to demonstrate that payment of
the fees would pose an unreasonable burden. Gollan and Shifflett failed to
do so here, and that failure warranted the denial of their application.
ARGUMENT
I.
THIS COURT LACKS APPELLATE JURISDICTION.
A.
“Federal courts are courts of limited jurisdiction. They possess
only that power authorized by Constitution and statute, which is not to be
expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co., 511 U.S.
375, 377 (1994). This is not a case or controversy within the constitutional
grant of Article III power, and the order issued by Judge Ware was not a
judicial “decision” within the meaning of 28 U.S.C. § 1291. Although the
application was denied by a district judge, that determination was made in
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determination was not an exercise of judicial power, there is no appellate
jurisdiction to review the denial.
The Supreme Court has consistently held that the judicial power of
federal courts is limited to cases or controversies, and has focused on the
adversarial nature of disputes properly within the judiciary’s constitutional
power. “The constitutional power of federal courts cannot be defined, and
indeed has no substance, without reference to the necessity ‘to adjudge the
legal rights of litigants in actual controversies.’”
Valley Forge Christian
College v. Americans United for Separation of Church & State, 454 U.S. 464, (1982) (quoting Liverpool S.S. Co. v. Commissioners of Emigration, 113 U.S. 33,
39 (1885)). “[I]t is elemental that there must be parties before there is a case
or controversy.” Ellis v. Dyson, 421 U.S. 426, 434 (1975).
Here, there are no parties, there is no dispute or lawsuit, and there is
therefore no case or controversy. Gollan and Shifflett did not invoke the
judicial power of the district court by initiating litigation.
They filed
neither a complaint nor any other petition seeking relief from the court in a
judicial capacity. See Fed. R. Civ. P. 3 (“A civil action is commenced by
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filing a complaint with the court.”). And they never identified any entity
as a defendant or respondent that violated a putative right that they sought
to vindicate in district court. Indeed, there would be no adverse party to
appeal from an order granting an exemption. The application seeking a
waiver of fee-payment requirements came before Judge Ware in his
administrative capacity, and his denial of that application was not a court
order subject to appellate review.
B.
This Court and other circuits have held that appeals may not be
taken from administrative decisions, and the reasoning of those cases
applies to the administrative decision in this case as well.
Thus, the
Seventh Circuit has held that no appeal is available from a denial of an
attorney’s motion seeking leave to appear pro hac vice without local
counsel. Bense v. Starling, 719 F.2d 241 (7th Cir. 1983). Where no complaint
had been filed, and there was no dispute between adversary parties, the
court of appeals held there was no case or controversy within the judicial
power of the courts, and therefore no basis for an appeal. The attorney’s
motion “was not an adversary matter,” the court explained: “No notice was
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given to anyone. There was no hearing. There was not, and could not be,
any opposition to the motion because there were no ‘parties’ before the
Court.” Id. at 244.
Similarly, this Court and others have recognized that there is no
appellate jurisdiction to review a decision by a district judge denying
payment of additional fees to counsel under the Criminal Justice Act (CJA).
Because such a decision is an example of “administrative actions of the
district judge that are essentially outside the scope of the litigative
function,” this Court held that it is not a “final decision[] of a judicial
character,” and thus is not appealable under § 1291. In re Baker, 693 F.2d
925, 926-927 (9th Cir. 1982) (“We agree that the district court’s order is
“final” with regard to Baker's fees, but we cannot regard it as a “decision”
of the district court within the meaning of 28 U.S.C. § 1291.”). The Court
emphasized the “nonadversarial procedures established by the CJA” in
concluding that “the district judge’s certification of attorneys’ fees is an
administrative act, and is consequently not one of the “final decisions”
rendered appealable by 28 U.S.C. § 1291.” Id. at 927 (citations omitted).
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Other circuits agree. See, e.g., United States v. French, 556 F.3d 1091, (10th Cir. 2009) (citing cases).
In addition, multiple circuits have held that there is no appellate
jurisdiction over a decision by a district judge denying retroactive
appointment of counsel under the CJA. The Seventh Circuit has held that
the CJA authorizes such appointments based on “non-adversarial
procedures” which render the decision “an administrative act and * * *
consequently not one of the final decisions rendered appealable by Section
1291.” United States v. Deluca, 912 F.2d 183, 183-184 (7th Cir. 1990) (citing
Landano v. Rufferty, 859 F.2d 301, 302 (3d Cir. 1988) (per curiam)). Likewise,
the Second Circuit has held that it lacks jurisdiction over an appeal from an
order denying retroactive appointment of counsel and payment of expert
fees under the CJA. United States v. Bloomer, 150 F.3d 146, 148 (2d Cir. 1998)
(“fee
determinations
concerning
services
already
administrative, rather than judicial, determinations”).
rendered
are
Because such
requests “are ex parte and nonadversarial,” such “purely administrative
decisions of the district court are not appealable final orders.” Ibid.
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Courts have also recognized that legislative intent concerning the
availability of appellate review can inform the jurisdictional determination.
Here, there is no indication that Congress intended to provide appellate
review of an order granting or denying a PACER fee-exemption
application. The statute requiring the Judicial Conference to adopt a fee
schedule provides that the fee provisions “shall provide for exempting
persons or classes of persons from the fees, in order to avoid unreasonable
burdens and to promote public access to such information.” Pub. L. No.
102-140, § 303(a), reprinted at 28 U.S.C. § 1913, Note. But it does not
specify that disputes over such exemptions should be resolved judicially
rather than administratively, nor does it suggest that any order denying an
exemption should be reviewable on appeal.
The similar absence of any
indication in the CJA authorizing appellate review has led courts to dismiss
putative appeals of administrative decisions under that statute. See, e.g.,
Baker, 694 F.2d at 926 (“Except for the limited administrative review of the
district court’s certification by the chief judge of the circuit, the CJA makes
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no provision for appeal of an order for payment of attorneys’ fees, and its
legislative history provides no suggestion that one was intended.”).
C.
We are not aware of any case directly on point that addresses
whether a denial of an application for exemption from PACER fees, apart
from a litigant’s effort to obtain access to court records for the purpose of
pending litigation, is reviewable on appeal. The Third Circuit has held that
the denial of a plaintiff’s motion for waiver of PACER fees was appealable
as a collateral order, but the court did not address whether such a waiver
was a judicial or administrative matter. See Zied-Campbell v. Richman, Fed. Appx. 247 (3d Cir.), cert. denied, 130 S. Ct. 290 (2009).
In that case,
however, the plaintiff sought the exemption in the context of ongoing
litigation to which she was a party, and she specifically sought access to
documents in her own case. Thus, the court in Zied-Campbell was acting in
a judicial capacity, and its decision does not contradict the line of authority
making clear that an administrative, non-judicial decision is not appealable
under § 1291. Notably, Gollan and Shifflett do not seek access to PACER in
order to preserve their ability to pursue their own pending litigation
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against other parties. This Court therefore need not decide whether a
denial of a fee-exemption application in those circumstances would be a
judicial or administrative decision.
II.
THE ALL WRITS ACT DOES NOT PROVIDE JURISDICTION.
Gollan and Shifflett cannot overcome the lack of appellate
jurisdiction by seeking a writ of mandamus.
Such a writ would be
available, if at all, under the All Writs Act, which provides: “The Supreme
Court and all courts established by Act of Congress may issue all writs
necessary or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law.” 28 U.S.C. § 1651(a) (emphasis added).
The All Writs Act, which codifies the common-law authority to issue writs
of mandamus, does not itself create appellate jurisdiction: “the express
terms of the Act confine the power of the [court of appeals] to issuing
process ‘in aid of’ its existing statutory jurisdiction; the Act does not
enlarge that jurisdiction.” Clinton v. Goldsmith, 526 U.S. 529, 534-535 (1999).
This Court has similarly recognized that limitation. See Taiwan v. U.S. Dist.
Court, 128 F.3d 712, 717 (9th Cir. 1997) (“we cannot issue a writ under the
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Act ‘unless it is designed to preserve jurisdiction that the court has
acquired from some other independent source in law’”) (quoting Jackson v.
Vasquez, 1 F.3d 885, 889 (9th Cir. 1993)).
Thus, “[t]he traditional use of the writ in aid of appellate jurisdiction
both at common law and in the federal courts has been to confine [the court
against which mandamus is sought] to a lawful exercise of its prescribed
jurisdiction.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004) (quoting
Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943). Mandamus is not
available to seek review of a non-judicial action that would not be
reviewable by appeal. Because a district judge granting or denying an
application for waiver of PACER fees is acting in an administrative
capacity, not a judicial one, there is no exercise of jurisdiction by a district
court that would be a proper subject of mandamus.
The case law supports this interpretation. For example, the Second
Circuit has held that it lacked jurisdiction to hear a mandamus petition that
sought relief against the United States, rather than review of a district court
action.
Aref v. United States, 452 F.3d 202, 205-206 (2d Cir. 2006)
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(“Accordingly, this Court may not issue writs except those which aid our
jurisdiction – which is appellate in nature.”). Such an effort to compel the
Executive’s conduct by a writ of mandamus failed in part because the
courts lacked any basis for appellate jurisdiction over non-judicial actions.
The same rationale precludes mandamus here.
III.
THE DISTRICT COURT’S DENIAL OF AN EXEMPTION IS CONSISTENT
WITH THE JUDICIAL CONFERENCE POLICY.
Although this Court lacks jurisdiction over this putative appeal, and
there is no basis for mandamus, we nevertheless address the merits of
Gollan’s and Shifflett’s arguments.
The policies underlying the fee
schedule and the Judicial Conference guidance concerning fee-exemption
applications demonstrate that denial of the application here was proper.
Moreover, the fee-exemption policy will be reviewed by the Judicial
Conference in coming months. That review is likely to result in a revision
of the Policy Notes accompanying the fee schedule in order to clarify the
purpose and intent of the policy. Such a revision should help to eliminate
confusion about the availability of exemptions.
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Congress has not appropriated funds for the operation of
PACER or the judiciary’s other electronic access programs. Instead, those
programs are intended to be self-sustaining and supported by user fees.
See Electronic Public Access Program Summary 1 (Dec. 2012) (Add. A3).
The Judicial Conference policy governing fee exemptions is an integral part
of the self-funding system of electronic public access to court records that
includes the PACER system, the electronic filing system, and court
websites. The vast majority of individuals and entities who use those
systems pay nothing for access to judicial records: Counsel for litigants are
not charged for electronic filing or service of documents in active cases.
Court websites, which frequently include opinions, rules, and other
information, are available to the public without charge. Documents are
available for viewing free of charge at public terminals located in each
courthouse. And PACER fees are waived for any user who accumulates no
more than $15 in fees per quarter; approximately 65-75% of all PACER
users pay nothing because of that limitation. See Program Summary (Add. A11).
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As a consequence of the waiver policy for users under the monthly
threshold, the judiciary’s system of public access is funded primarily by
larger-volume users. Ibid. In order for PACER to be self-sustaining, and to
generate sufficient funds to support the judiciary’s other electronic public
access programs, exemptions must be strictly limited, and should not
excuse payment from high-volume users who have not demonstrated that
they cannot afford to pay for the services they use.
Gollan and Shifflett argue (Br. 17 n.5) that PACER fees generate more
funds than is required to operate the PACER system. But those fees are
also used – as directed by Congress – to provide all electronic access to
court records, including through the electronic filing system, court web
sites, and RSS feeds. Those funds also support free public dissemination of
other information from the courts, such as victim notification, on-line juror
services, and courtroom technology programs. See Program Summary (Add. A3). Thus, as Congress contemplated, PACER fees must generate a
sufficient revenue stream to cover additional programs beyond just the
PACER system itself.
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Nor does a stringent application of the waiver requirement unduly
burden researchers. Before the advent of the PACER system, there was no
central nationwide repository for federal court records.
The Judiciary
created such a system without the use of taxpayer funds, and can
reasonably require payment from those who seek to use the system in
order to ensure it remains viable.
B.
The fee schedule provides that “courts may, upon a showing of
cause, exempt indigents, bankruptcy case trustees, individual researchers
associated with educational institutions, courts, section 501(c)(3) not-forprofit organizations, court appointed pro bono attorneys, and pro bono
ADR neutrals from payment of these fees.” Electronic Public Access Fee
Schedule, sec. I (4/1/12) (Add. A1). Before granting an exemption, the court
“must find that parties from the classes of persons or entities listed above
seeking exemption have demonstrated that an exemption is necessary in
order to avoid unreasonable burdens and to promote public access to
information.” Ibid. A policy note explains that “[c]ourts should not exempt
local, state or federal government agencies, members of the media,
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attorneys or others not members of one of the groups listed above,” and
emphasizes that “[e]xemptions should be granted as the exception, not the
rule.” Id., Judicial Conference Policy Notes (Add. A2).
Thus, a court considering a fee-exemption application should first
consider whether the applicant is able to pay the fees or whether payment
would create “unreasonable burdens,” in the language of the policy and
the underlying statute.
The list of groups potentially eligible for fee
waivers – including indigents, bankruptcy case trustees, not-for-profit
organizations, and others – does not establish a categorical entitlement to
exemption, but is only intended to represent examples of the kinds of
applicants likely able to meet such a standard. In any specific application,
however, a member of such a group must make an individualized showing
of need and hardship.
Conversely, the policy note identifies groups that generally represent
larger-volume users who likely can afford to pay the fees, such as
government agencies, media representatives, and attorneys. Like the list of
those potentially eligible, the notes identifying those generally ill-suited to
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an exemption is neither exclusive nor categorical. Just as the fee schedule
does not require exemptions to be granted for those in the first list, it does
not prohibit such exemptions for those on the second.
C.
Gollan and Shifflett argue that the district judge improperly
denied their application solely on the basis that they are members of the
media, and they contend that they should be entitled to an exemption on
the ground that they are employed by a not-for-profit media organization.
Those arguments misread both the order denying the application and the
judicial policy establishing the narrow grounds on which a district judge
may grant such exemptions in the exercise of his or her discretion. They
also overlook the fundamental threshold requirement for any exemption:
the showing that fee payment would pose an unreasonable burden.
A fee-exemption application must demonstrate that an exemption is
necessary to avoid an unreasonable burden that would result from being
required to pay the fees. See Electronic Public Access Fee Schedule, sec. I
(requiring “a showing of cause”) (Add. A1); Pub. L. No. 102-140, § (directing Judicial Conference to establish a fee schedule that “shall
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provide for exempting persons or classes of persons from the fees, in order
to avoid unreasonable burdens and to promote public access to such
information”). Gollan and Shifflett’s application failed to satisfy, or even to
address, that threshold requirement. In the absence of a demonstrated
need, supported by analysis of both the anticipated costs and the resources
available to the applicant, there is no basis for granting an exemption.
Here, Gollan and Shifflett failed to supply any detailed information
addressing either the amount of fees they expected their investigation to
incur or their ability to pay those fees. On the basis of that failure, denial of
the application was appropriate, even if the district court did not articulate
that basis for the denial.
D.
To be sure, the Judicial Conference policy is not as clear as it
could be, and the ambiguity of the policy may have contributed to the
misunderstandings reflected in the arguments Gollan and Shifflett make in
their opening brief.
The AO has previously identified the PACER fee
exemption policy as needing clarification, and the Judicial Conference has
thus already planned to reconsider the policy. That reconsideration is
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expected to take place this year; we will inform the Court when it is
complete. Even before then, however, Gollan and Shifflett may re-apply
for an exemption if they provide more detailed information that would
satisfy the fundamental requirement that an exemption is necessary to
avoid an unreasonable burden.
CONCLUSION
The appeal should be dismissed for lack of jurisdiction.
Respectfully submitted,
STUART F. DELERY
Principal Deputy Assistant
Attorney General
ROBERT K. LOESCHE
General Counsel
MELINDA L. HAAG
United States Attorney
SIGMUND ADAMS
Attorney
MATTHEW M. COLLETTE
Administrative Office of
United States Courts
Washington, D.C.
/s/ H. Thomas Byron III
H. THOMAS BYRON III
(202) 616-Attorneys, Appellate Staff
Civil Division, Room U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C.
JANUARY
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CERTIFICATE OF COMPLIANCE WITH
FEDERAL RULE OF APPELLATE PROCEDURE 32(A)
I hereby certify that this brief complies with the requirements of Fed.
R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point Palatino
Linotype, a proportionally spaced font.
I further certify that this brief complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 4,752 words,
excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii),
according to the count of Microsoft Word.
/s/ H. Thomas Byron III
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CERTIFICATE OF SERVICE
I hereby certify that on January 22, 2013, I electronically filed the
foregoing Brief For The Administrative Office Of United States Courts As
Amicus Curiae with the Clerk of the Court for the United States Court of
Appeals for the Ninth Circuit by using the appellate CM/ECF system.
The participants in the case are registered CM/ECF users and service
will be accomplished by the appellate CM/ECF system.
/s/ H. Thomas Byron III
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ADDENDUM
TABLE OF CONTENTS
Electronic Public Access Fee Schedule............................................................AAdministrative Office of United States Courts, Electronic Public
Access Program Summary (Dec. 2012) ......................................................A3Page 36 Case: 12-
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(Eff. 4/1/2012)
ELECTRONIC PUBLIC ACCESS FEE SCHEDULE
(Issued in accordance with 28 U.S.C. § 1913, 1914, 1926, 1930, 1932)
As directed by Congress, the Judicial Conference has determined that the following fees
are necessary to reimburse expenses incurred by the judiciary in providing electronic public access
to court records. These fees shall apply to the United States unless otherwise stated. No fees
under this schedule shall be charged to federal agencies or programs which are funded from
judiciary appropriations, including, but not limited to, agencies, organizations, and individuals
providing services authorized by the Criminal Justice Act, 18 U.S.C. § 3006A, and bankruptcy
administrator programs. Furthermore, the fee increase from eight cents per page to ten cents per
page has been suspended for local, state, and federal government entities until 4/1/2015.
I.
For electronic access to court data via a federal judiciary Internet site: ten cents per page,
with the total for any document, docket sheet, or case-specific report not to exceed the fee
for thirty pages– provided however that transcripts of federal court proceedings shall not
be subject to the thirty-page fee limit. For electronic access to an audio file of a court
hearing via a federal judiciary Internet site: $2.40 per audio file. Attorneys of record and
parties in a case (including pro se litigants) receive one free electronic copy of all
documents filed electronically, if receipt is required by law or directed by the filer. No fee
is owed under this provision until an account holder accrues charges of more than $15 in a
quarterly billing cycle. Consistent with Judicial Conference policy, courts may, upon a
showing of cause, exempt indigents, bankruptcy case trustees, individual researchers
associated with educational institutions, courts, section 501(c)(3) not-for-profit
organizations, court appointed pro bono attorneys, and pro bono ADR neutrals from
payment of these fees. Courts must find that parties from the classes of persons or entities
listed above seeking exemption have demonstrated that an exemption is necessary in order
to avoid unreasonable burdens and to promote public access to information. For individual
researchers, courts must also find that the defined research project is intended for academic
research, and not for commercial purposes or internet redistribution. Any user granted an
exemption agrees not to sell for profit the data obtained as a result. Any transfer of data
obtained as the result of a fee exemption is prohibited unless expressly authorized by the
court. Exemptions may be granted for a definite period of time and may be revoked at the
discretion of the court granting the exemption.
II.
For printing copies of any record or document accessed electronically at a public terminal
in the courthouse: ten cents per page. This fee shall apply to services rendered on behalf of
the United States if the record requested is remotely available through electronic access.
III.
For every search of court records conducted by the PACER Service Center, $26 per name
or item searched.
IV.
For the PACER Service Center to reproduce on paper any record pertaining to a PACER
account, if this information is remotely available through electronic access, 50 cents per
page.
V.
For a check paid to the PACER Service Center which is returned for lack of funds, $45.
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JUDICIAL CONFERENCE POLICY NOTES
Courts should not exempt local, state or federal government agencies, members of the
media, attorneys or others not members of one of the groups listed above. Exemptions should be
granted as the exception, not the rule. A court may not use this exemption language to exempt
all users. An exemption applies only to access related to the case or purpose for which it was
given. The prohibition on transfer of information received without fee is not intended to bar a
quote or reference to information received as a result of a fee exemption in a scholarly or other
similar work.
The electronic public access fee applies to electronic court data viewed remotely from the
public records of individual cases in the court, including filed documents and the docket sheet.
Audio files of court hearings do not include naturalization ceremonies or appellate oral
arguments. Electronic court data may be viewed free at public terminals at the courthouse and
courts may provide other local court information at no cost. Examples of information that can be
provided at no cost include: local rules, court forms, news items, court calendars, opinions, and
other information – such as court hours, court location, telephone listings – determined locally to
benefit the public and the court.
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Electronic Public Access Program Summary
December
Program Overview
The Electronic Public Access program provides public access to court information
through electronic means in accordance with federal statutes, Judiciary policies, and user
needs. The Internet-based PACER (Public Access to Court Electronic Records) service
provides courts, litigants, and the public with access to dockets, case reports, and over
500 million documents filed in federal courts through the Case Management and
Electronic Case Files (CM/ECF) system. In other words, PACER is a portal to CM/ECF,
which in turn, is integral to public access.
A PACER account is obtained by registering with the PACER Service Center, the
Judiciary's centralized registration, user support and billing center. Registration
information can be submitted via fax or the Internet, and there is no registration fee. At
present, there are more than 1.4 million user accounts, with approximately 13,000 new
accounts added each month. In fiscal year 2012 alone, PACER processed over million requests for information.
As mandated by Congress, the public access program is funded entirely through user fees
set by the Judicial Conference of the United States. The fees are published in the
Electronic Public Access Fee Schedule, available on www.uscourts.gov and
www.pacer.gov. Funds generated by PACER are used to pay the entire cost of the
Judiciary’s public access program, including telecommunications, replication, and
archiving expenses, the Case Management/Electronic Case Files system, electronic
bankruptcy noticing, Violent Crime Control Act Victim Notification, on-line juror
services, and courtroom technology.
Court Websites
Each federal court uses its website, funded by fee revenue, to provide the public with
access to information well beyond that which is required by the E-Government Act of
2002, such as court locations, contact information, local rules, standing or general orders,
docket information, written opinions, and documents filed electronically. The courts are
also using their websites to disclose information about judges’ attendance at privatelyfunded seminars, orders issued on judicial conduct and disability complaints, and digital
audio recordings of oral arguments heard by the court. Additionally, court websites
provide general information concerning court operations, filing instructions, courthouse
accessibility, interpreter services, job opportunities, jury information, and public
announcements. Court websites are used to interact directly with the public through
PACER, CM/ECF, on-line jury questionnaires, pro se filing tools, forms, and court
calendars.
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CM/ECF and the Next Generation
Implementation of the federal Judiciary's Case Management/Electronic Case Files system
(CM/ECF) began in 2001 in the bankruptcy courts after several years of pilot programs in
bankruptcy and district courts. CM/ECF not only replaced the courts' old electronic
docketing and case management systems, but it also enabled courts to maintain case file
documents in electronic format and to accept filings from court practitioners via the
Internet. The CM/ECF system is now in use in all of the federal appellate, district, and
bankruptcy courts, the Court of International Trade, and the Court of Federal Claims.
Nearly 43 million cases are on CM/ECF, and more than 600,000 attorneys and others
have filed documents over the Internet.
Attorneys are able to file documents directly with any federal court over the Internet.
There are no added fees for filing documents using CM/ECF. The CM/ECF system uses
standard office computer hardware, an Internet connection and a browser, and accepts
documents in portable document format (PDF). The system is easy to use – filers prepare
a document using conventional word processing software, then save it as a PDF file.
After logging onto the court's web site with a court-issued CM/ECF password, and
acknowledging that the filing complies with the redaction rules, the filer enters basic
information relating to the case and document being filed, attaches the document, and
submits it to the court. A notice verifying court receipt of the filing is generated
automatically and immediately. All electronically filing parties1 in the case automatically
receive immediate e-mail notification of the filing.
Work on the Next Generation of CM/ECF (Next Gen) is well underway. The project is
currently transitioning from its first phase – requirements definition – to its second phase
– design and development. As part of the requirements definition phase, the Judiciary
gathered extensive information from stakeholders both inside and outside the court
system. The NextGen project included an Additional Stakeholders Functional
Requirements Group (ASFRG) that focused on how the federal courts interact with others
in the legal system. The group’s 24 members included representatives from the Judiciary,
the Department of Justice, the American Bar Association, the Internal Revenue Service,
the Association of American Law Schools, and the National Association of Bankruptcy
Trustees.
The group reached out to more than 60 constituent groups in a variety of ways, such as
focus group meetings, interviews, conferences, surveys, and elicitation sessions at the
courts and the Administrative Office. In all, more than 7,000 individual stakeholders
provided input, most of which focused on the same core requirements sought in NextGen.
Those parties who are not electronic filers receive notification via U.S. mail.
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These core requirements include single sign-on, enhanced search capabilities, batch-filing
features, and customizable reports. Nearly 500 of the ASFRG’s requirements have been
adopted and incorporated into the functional requirements documents being used to
design NextGen. The final report of the ASFRG is available to the public on
www.uscourts.gov.
The first releases of the Next Generation of CM/ECF are expected in 2014 and 2015, and
the requirements prioritized for those releases are associated with time-saving and/or
cost-saving functionality. The Next Generation of CM/ECF will also enable additional
improvements to the PACER service, including an updated user interface.
Access to Court Records
Registered PACER account holders can use a court's website or the PACER Case Locator
to access court documents. The PACER Case Locator is a tool for locating court records
that reside in U.S. district, bankruptcy, and appellate court CM/ECF databases across the
country. Usage of the Case Locator continues to grow, with over 200,000 searches daily.
Links to all courts and the PACER case locator are located at www.pacer.gov. Each court
maintains its own CM/ECF database with case information. As a result, querying
information from each court is comparable; however, the format and content from each
court may differ slightly.
The Judiciary continues to seek to improve electronic public access to its records, and a
number of initiatives have been put into place to broaden public access, including:
Public Access Terminals – Every courthouse has public access terminals in the
clerk’s office to provide access to PACER2 and other services, such as credit
counseling.
Digital Audio – At its March 2010 meeting, the Judicial Conference endorsed a
proposal from the Committee on Court Administration and Case Management to
allow judges, who use digital audio recording as the official means of taking the
record, to provide, at their discretion, access to digital audio recordings of court
proceedings via PACER. The digital audio initiative, also known as CourtSpeak,
continues to be successful, both in terms of public and court interest. Presently,
nineteen bankruptcy courts and two district courts have implemented digital audio,
and an additional 23 bankruptcy courts, five district courts, and the Court of
Viewing court records at a public access terminal is free. Printing copies of documents
from a public access terminal is $0.10 per page.
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Federal Claims have begun implementation. The fee for an audio file is $2.40,
regardless of the length of the recording.
Training and Education Program – In September 2010, the Judicial Conference
approved a recommendation from the Committee on Court Administration and
Case Management to establish a program involving the Government Printing
Office (GPO), the American Association of Law Libraries (AALL), and the
Administrative Office, that would provide training and education to the public
about the PACER service, and would exempt from billing the first $50 of quarterly
usage by a library participating in the program. The GPO and the AALL worked
with the Administrative Office to develop three levels of training classes: training
for trainers, training for library staff, and training for the public. There are
currently 12 libraries participating in the program. In some instances, libraries are
providing on-the-spot individual training. All training classes include instructions
on How to Create a PACER Account and How to Monitor PACER Usage.
Although some patrons expressed disappointment that they were not being allowed
to use the library’s PACER account, but instead had to use their own accounts,
they did report being satisfied with the instructions provided. The AALL and the
GPO continue to publicize the program to their communities.
PACER Training Application – The training site dcecf.psc.uscourts.gov enables
the public to learn how to use PACER without registering or incurring any fees. In
March 2012, the Administrative Office also launched video tutorials to assist the
public in learning how to use PACER.
RSS – In addition to PACER access, which allows users to "pull" information from
the courts, approximately 50 district courts and 80 bankruptcy courts are using a
common, free internet tool, RSS, to "push" notification of docket activity to users
who subscribe to their RSS feeds, much like a Congressional committee might
notify its RSS subscribers of press releases, hearings, or markups.
Pro Se Bankruptcy Pathfinder – In August 2010, the CM/ECF Subcommittee of
the Committee on Court Administration and Case Management approved a
proposal to undertake a bankruptcy pro se pathfinder initiative, which is designed
to assist pro se litigants in preparing the filings required at case opening, to reduce
the time required to process pro se bankruptcy filings, to increase the quality of the
data collected, and to employ new development tools today, which are selected for
future federal Judiciary use. Three bankruptcy courts currently serve as beta
courts: Central District of California, District of New Jersey, and District of New
Mexico. It is anticipated that this software will be available for use by filers later
this year.
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Opinion Initiative with the Government Printing Office – In September 2012, the
Judicial Conference of the United States approved national implementation of the
program to provide access to court opinions via the Government Printing Office’s
Federal Digital System (FDSys) and agreed to encourage all courts, at the
discretion of the chief judge, to participate in the program. Twenty-nine pilot
courts are live, with over 600,000 individual court opinions available on FDSys.
This has proved to be extremely popular with the public. Federal court opinions
are one of the most utilized collections on FDsys, which includes the Federal
Register and Congressional bills and reports. Access to FDSys is available free of
charge via the Internet at www.gpo.gov. Registration is not required.
PACER Users
PACER has a diverse user population, including: lawyers; pro se filers; government
agencies; trustees; bulk collectors; researchers; educational institutions; commercial
enterprises; financial institutions; the media; and the general public. The chart below is a
breakdown of the PACER user population. The majority of “other” users are background
investigators.
Educational/
Research
Institutions or
Students
3%
Media
2%
Service Providers
to Legal Sector
1%
Others
5%
Creditors
4%
Commercial
Businesses
10%
Pro Se Litigants
and Named Parties
12%
Legal Sector
63%
The largest user is the Department of Justice. Virtually all of the other high volume users
are major commercial enterprises or financial institutions that collect massive amounts of
data, typically for aggregation and resale.
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Electronic Public Access Service Assessment
A comprehensive assessment of PACER services was completed in May 2010. The
assessment provided insight into who uses PACER, areas that provide the highest level of
satisfaction for those users, and areas that could be improved. The initial assessment was
also used to inform the work of the Additional Stakeholders Functional Requirements
Group (ASFRG) as it began identifying requirements for the Next Generation of
CM/ECF. An on-line satisfaction survey was made available to all 325,000 active
PACER users in late 2009. User types giving the highest overall satisfaction scores to
PACER included creditors and service providers to the legal sector, followed by
commercial businesses. Users in the legal sector and litigants—the two largest groups of
PACER users—are also among the most satisfied. Users at educational and research
institutions gave the lowest overall satisfaction rating. These are small groups of
less-frequent users. The survey indicated that satisfaction rates climb steadily as
frequency of use increases.
In addition to assessing satisfaction with the on-line component of PACER, users were
asked to rate help-desk services provided by the PACER Service Center. Satisfaction was
very high; over 95 percent of respondents who contacted the center during the study
period indicated they are "satisfied" or "very satisfied" overall. However, about one-third
of PACER users were not aware that the PACER Service Center is available to provide
help with PACER. The assessment also revealed that 75 percent of users were satisfied
with the value for the money they paid for PACER access, 15 percent were neutral, and
10 percent were dissatisfied.
As a result of the assessment, a number of short- and mid-term activities were
implemented to improve user satisfaction with electronic public access services. These
included:
•
•
•
•
•
•
•
•
creating a new PACER Case Locator with expanded search capabilities to replace
the U.S. Party/Case Index;
redesigning the pacer.gov web page to include video tutorials;
embarking on a program to provide public access to judicial opinions via the
Government Printing Office’s Internet-based FDSys Application;
partnering with law libraries to provide training on the efficient and effective use
of PACER;
creating a free PACER training application, which is populated with actual court
cases and case reports from the New York Western District Court;
promoting the use of RSS feeds to “push” information to users;
creating a mobile PACER application;
redesigning the PACER bill and providing a tool to better manage billing for large
organizations; and
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providing access to some audio recordings of judicial proceedings through
PACER.
In April 2012, an initiative was undertaken to refresh the results from the initial
assessment. This initiative is on track to meet its scheduled completion date of March
2013.
Basis and History of Fees
In 1988, the Judiciary sought funding through the appropriations process to provide
electronic public access services. Rather than appropriate funds for this purpose,
Congress specifically directed the Judiciary to fund electronic public access services
through the collection of user fees. As a result, the electronic public access program
relies exclusively on fee revenue. The statutory language specifically requires that the
fees be used "to reimburse expenses incurred in providing these services."A study of policies and practices regarding use, release, and sale of data, recommended
that the level of fees for a service should sustain the cost of the service. In 1991, a fee of
$1.00 per minute for access to electronic information, via a dial-up bulletin board service,
was set for the district and bankruptcy courts. Four years later, the fee was reduced to
$0.75 per minute, and one year after that it was reduced to $0.60 per minute. The revenue
generated from these fees was used exclusively to fund the full range of Electronic Public
Access services, including PACER, the Appellate Bulletin Board system, the Voice Case
Information System. The Voice Case Information System provided case information free
of charge. Fee revenue also provided each court with hardware and software necessary to
support public access services. This included more than 700 regular telephone lines,
more than 200 toll-free telephone lines, and a personal computer for free public access at
the front counter of all clerks’ offices with 10 or more staff.
In 1997, the Judiciary addressed three issues pertaining to providing electronic public
access to court information via the Internet. These issues were: (1) the establishment of
an appropriate fee for Internet access to court electronic records; (2) the types of
information for which a fee should be assessed; and (3) the technical approach by which
PACER information should be provided over the Internet. An application of Internet
technologies to the Judiciary's public access program was viewed as a way to make court
and case information more widely available and to offer the opportunity to add additional
information (local rules, court forms, court calendars and hours of operation) and
services.
Judiciary Appropriations Act, 1991, Pub. L. No. 101-515,Title IV, § 404, 104 Stat. and Judiciary Appropriations Act, 1992, Pub. L. No. 102-140, Title III, § 303, 105 Stat. 782.
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The Judiciary's analysis focused on finding the fairest, most easily understood, and most
consistent method for charging. In 1998, the Judicial Conference adopted a per-page fee,
as it was determined to be the simplest and most effective method for charging for public
access via the Internet. The $0.07 per page electronic access fee4 was calculated to
produce comparable fees for large users in both the Internet and dial-up applications and
thus maintain the then current public access revenue level while introducing new
technologies to expand public accessibility to the PACER information. For infrequent
PACER users, costs were reduced considerably by using the Internet.
In 2003, in the Congressional conference report that accompanied the Judiciary's FY appropriations act, Congress expanded the permitted uses of EPA funds to include Case
Management/Electronic Case Files (CM/ECF) system costs. In order to provide
sufficient revenue to fully fund currently identified CM/ECF system costs, in September
2004, the Judicial Conference approved an increase in the electronic public access fee
from $0.07 to $0.08 per page, effective January 1, 2005.
Based on a recommendation from the Committee on Court Administration and Case
Management, in September 2011, the Judicial Conference approved an increase in the fee
from $0.08 to $0.10 per page, effective April 1, 2012, in order to give users adequate
notice. The Committee noted that the fee had not been increased since 2005 and that, for
the previous three fiscal years, the public access program’s obligations had exceeded its
revenue. The fee increase is being used to fund the Next Generation of CM/ECF and
PACER. The Committee also recommended that the waiver of fees of $10 or less in a
quarterly billing cycle be changed to $15 or less per quarter, so that approximately percent of users would still receive fee waivers. Finally, in recognition of the current
fiscal austerity for government agencies, the Committee recommended that the fee
increase be suspended for local, state, and federal government entities for a period of
three years. The Conference adopted all of the Committee’s recommendations.
The Judiciary takes its responsibility to set the EPA fee very seriously. Since well before
the E-Government Act, it has been the Judicial Conference's policy to set the electronic
The per-page charge applies to the number of pages that result from any search,
including a search that yields no matches (one page for no matches). In the current
PACER systems, billable pages are calculated in one of two ways: a formula is used to
determine the number of pages for an HTML formatted report. Any information
extracted from the CM/ECF database, such as the data used to create a docket sheet, is
billed using a formula based on the number of bytes extracted (4320 Bytes). For a PDF
document, the actual number of pages is counted to determine the number of billable
pages.
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public access fee to be commensurate with the costs of providing and enhancing services
related to public access. Before the one-cent-per-page increase in 2004, the Conference
had a history of lowering the fee, and Congressional appropriations to the Judiciary have
never provided funding for the public access program. In 2001, the Judicial Conference
established a fee of $0.10 per page to print copies of documents from public access
terminals in the clerks' office. That fee has never been raised. A fee is not charged to
view PACER documents from the public access terminals in federal courthouses. Finally,
the per page fee has been capped at the charge for 30 pages (or $3.00) for documents,
docket sheets, and case-specific reports.Free Information and Exemptions
There is a high cost to providing electronic public access, and as described above,
Congress decided in 1991 that the funds needed to improve electronic access to court
information were to be provided by the users of this information through reasonable fees
rather than by all tax payers through appropriated funds. It is also important to note,
however, that the public access program does provide a great deal of federal court
information to the American public for no charge. For example:
•
The Judiciary does not charge for access to judicial opinions;
•
Parties to a court case receive a copy of filings in the case at no charge;
•
The $0.10 per page fee is not charged for viewing case information or documents
on PACER at the public access terminals in the courthouses;
•
If an individual account does not reach $15 quarterly, no fee is charged at all; and
in a given fiscal year, approximately 65-to-75 percent of active users have fee
waivers for at least one quarter. Most of these users are litigants and their
attorneys who are involved in a specific case;
•
Consistent with Judicial Conference policy, courts may grant exemptions for
payment of electronic public access fees. Approximately 20 percent of all PACER
usage is performed by users who are exempt from any charge – including
indigents, case trustees, academic researchers, CJA attorneys, and pro bono
attorneys.
The 30 page fee cap does not apply to non case-specific reports such as docket
activity reports that include multiple cases and reports from the PACER Case Locator.
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The vast majority (95 percent) of PACER accounts incur less than $500 in fees – or no
fee at all – over the course of the year. This is a long-established pattern. Additionally,
the public access program also provides free access to court case information through
VCIS (Voice Case Information System), an automated voice response system that
provides a limited amount of bankruptcy case information directly from the court's
database in response to telephone inquiries.
Benefits of a Fee
In order to maintain the level of service presently provided through the public access
program, the Judiciary would need appropriated funds to replace the fee revenue, and in
this fiscal climate increased appropriations are not available. Fee revenue allows the
Judiciary to pursue new technologies for providing public access, develop prototype
programs to test the feasibility of new public access technologies, and develop
enhancements to existing systems. By authorizing the fee, Congress has provided the
Judiciary with revenue that is dedicated solely to promoting and enhancing public access.
These fees are only used for public access, and are not subject to being redirected for
other purposes. The fee, even a nominal fee, also provides a user with a tangible,
financial incentive to use the system judiciously and efficiently, and in the absence of a
fee the system can be abused.
Privacy
The Judiciary is committed to protecting private information in court filings from public
access. It has been over a decade since the Judicial Conference began consideration of –
and subsequently formulated – a privacy policy for electronic case files, and over four
years since the enactment of Federal Rules of Appellate, Bankruptcy, Civil, and Criminal
Procedure requiring that certain personal data identifiers not be included in court filings.
These policies and rules have been integral to the success of the Judiciary’s electronic
public access program. Adherence to these policies and rules by litigants and attorneys is
essential to ensure that personal identifier information is appropriately redacted from
court filings. The Judicial Conference examined how the privacy rules were working in
practice and found that overall the Judiciary’s implementation of the privacy rules has
been a tremendous success.
In 2001, the Judicial Conference adopted a policy on privacy and public access to
electronic case files that allowed Internet-based access to civil and bankruptcy case
filings; the policy required filers, however, to redact certain personal information (i.e.,
Social Security numbers, financial account numbers, names of minor children, and dates
of birth). Following a pilot program and a Federal Judicial Center study on criminal case
files, the Conference approved electronic access to criminal case files, with similar
redaction requirements. The redaction requirements of the Conference’s privacy policy
were largely incorporated into the Federal Rules, effective December 1, 2007.
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As noted above, a key tenet of these rules (as well as the precursor Conference policy) is
that the redaction of personal identifiers lies with the filing party. The Advisory
Committee Note accompanying Federal Rule of Civil Procedure 5.2 states: “The clerk is
not required to review documents filed with the court for compliance with this rule. The
responsibility to redact filings rests with counsel and the party or non-party making the
filing.” Nonetheless, the Judicial Conference and the Administrative Office are obviously
interested in ensuring that these privacy rules are adequate and appropriately followed.
To this end, two Judicial Conference Committees – the Court Administration and Case
Management Committee, and the Committee on Rules of Practice & Procedure – have
worked jointly with the Federal Judicial Center to monitor and study the operation of the
privacy rules and related policies and to address new issues that have arisen since their
implementation. In addition, the Administrative Office took a number of steps to ensure
that the privacy protections established in the federal rules can be more easily followed,
including the establishment of a task force that developed a notice for the current
CM/ECF system reminding litigants of their obligation under the law to redact personal
identifier information and to require filers to affirm that they must comply with the
redaction rules.
The Administrative Office continues to encourage courts to stress the rules’ redaction
requirements with those who file in the court. Options for informing the filers include
various, readily available communications vehicles, such as the court’s public website,
newsletters, listserves, and Continuing Legal Education programs. Further, Judicial
Conference Committees and the Administrative Office have asked individual courts to
share information on actions they have taken to ensure compliance with the privacy rules,
including promulgation of local rules or standing orders, modifications to local CM/ECF
applications, and outreach efforts to the public and bar informing them of the redaction
requirements. This type of information will assist the Administrative Office, as well as
the Conference Committees, to be better informed of the scope of any non-compliance.
Thus far, the Administrative Office has received an impressive response from the courts,
which are addressing the privacy rules in a variety of ways, ranging from conducting
education and awareness campaigns to issuing judicial orders to redact noncompliant
filings.
E-Government Act Compliance
It is important to emphasize the effort and seriousness with which the Judiciary has
implemented the E-Government Act's requirements. Section 205(d) of the Act directed
the Judicial Conference to "explore the feasibility of technology to post online dockets
with links allowing all filings, decisions and rulings in each case to be obtained from the
docket sheet of the case." The Judiciary has gone much further than "exploring" such a
system. It designed and has now implemented that system in all courts, providing more
than 1.4 million PACER users with access to over 500 million case file documents at a
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reasonable fee – and, frequently, free of any charge at all. The EPA program was
developed as an alternative to going to the courthouse during business hours and making
copies at the cost of $0.50 per page. This service saves litigants/lawyers and the public
time and money by allowing them to file from any computer and also to download and
review case information electronically, with all the attendant benefits.
Very few state courts have electronic access systems, and none provides as much
information as PACER. Many state courts charge several dollars for a single records
search. No other court system in the world provides as much information to as many
people in as efficient a manner. State court officials and court administrators from other
countries contact the federal Judiciary frequently about our electronic public access
model.
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No. 12-16373
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: APPLICATION FOR EXEMPTION FROM ELECTRONIC PUBLIC
ACCESS FEES BY JENNIFER GOLLAN AND SHANE SHIFFLETT
JENNIFER GOLLAN and SHANE SHIFFLETT,
Applicants - Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BRIEF FOR THE ADMINISTRATIVE OFFICE OF
UNITED STATES COURTS AS AMICUS CURIAE
ROBERT K. LOESCHE
General Counsel
SIGMUND ADAMS
Attorney
Administrative Office of
United States Courts
Washington, D.C. 20544
STUART F. DELERY
Principal Deputy Assistant
Attorney General
MELINDA L. HAAG
United States Attorney
MATTHEW M. COLLETTE
H. THOMAS BYRON III
(202) 616-5367
Attorneys, Appellate Staff
Civil Division, Room 7260
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
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TABLE OF CONTENTS
INTEREST OF THE AMICUS CURIAE ...............................................................1
JURISDICTIONAL STATEMENT.........................................................................3
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ...........................4
STATEMENT OF THE CASE ................................................................................4
STATEMENT OF FACTS .......................................................................................5
SUMMARY OF ARGUMENT ...............................................................................9
ARGUMENT ..........................................................................................................11
I.
This Court Lacks Appellate Jurisdiction ...........................................11
II.
The All Writs Act Does Not Provide Jurisdiction............................18
III.
The District Court’s Denial Of An Exemption Is
Consistent With The Judicial Conference Policy .............................20
CONCLUSION ......................................................................................................27
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM
-i-
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TABLE OF AUTHORITIES
Cases:
Aref v. United States, 452 F.3d 202 (2d Cir. 2006) ......................................... 19-20
In re Baker, 693 F.2d 925 (9th Cir. 1982) ....................................................... 14, 16
Bense v. Starling, 719 F.2d 241 (7th Cir. 1983) ....................................................13
Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004) ..................................................19
Clinton v. Goldsmith, 526 U.S. 529 (1999) ............................................................18
Ellis v. Dyson, 421 U.S. 426 (1975)........................................................................12
Jackson v. Vasquez, 1 F.3d 885 (9th Cir. 1993) .....................................................19
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994)......................................11
Landano v. Rufferty, 859 F.2d 301 (3d Cir. 1988) ................................................15
Liverpool S.S. Co. v. Commissioners of Emigration, 113 U.S. 33 (1885) ..............12
Roche v. Evaporated Milk Ass’n, 319 U.S. 21 (1943) ............................................19
Taiwan v. U.S. Dist. Court, 128 F.3d 712 (9th Cir. 1997) ............................. 18-19
United States v. Deluca, 912 F.2d 183 (7th Cir. 1990) ........................................15
United States v. French, 556 F.3d 1091 (10th Cir. 2009) ....................................15
United States v. Bloomer, 150 F.3d 146 (2d Cir. 1998) ........................................15
Valley Forge Christian College v. Americans United for Separation of
Church & State, 454 U.S. 464 (1982) ...............................................................12
ii
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Zied-Campbell v. Richman, 317 Fed. Appx. 247 (3d Cir.), cert.
denied, 130 S. Ct. 290 (2009) ..........................................................................17
Statutes:
28 U.S.C. § 604 ..........................................................................................................2
28 U.S.C. § 1291 ..................................................................................... 3, 10, 11, 14
28 U.S.C. § 1295 .......................................................................................................3
28 U.S.C. § 1331 ........................................................................................................3
28 U.S.C. § 1914 ........................................................................................................8
All Writs Act:
28 U.S.C. § 1651(a) ................................................................................... 10, 18
Fiscal Year 1992 Appropriations Act for the Judiciary, Pub. L. No.
102-140, § 303, reprinted at 28 U.S.C. § 1913, Note .................... 2, 16, 25-26
Rules:
Fed. R. Civ. P. 3 .............................................................................................. 12-13
Other:
Administrative Office of United States Courts, Electronic Public
Access Program Summary (Dec. 2012)............................................. 6, 21, 22
iii
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IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 12-16373
In re: APPLICATION FOR EXEMPTION FROM ELECTRONIC PUBLIC
ACCESS FEES BY JENNIFER GOLLAN AND SHANE SHIFFLETT
JENNIFER GOLLAN and SHANE SHIFFLETT,
Applicants - Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BRIEF FOR THE ADMINISTRATIVE OFFICE OF
UNITED STATES COURTS AS AMICUS CURIAE
INTEREST OF AMICUS CURIAE
The Administrative Office of United States Courts (AO) submits this
brief as amicus curiae in response to the Court’s invitation. The AO is the
central support entity for the Judicial Branch. It provides a wide range of
administrative, legal, financial, management, program, and information
technology services to the federal courts. The AO also provides support
and staff counsel to the Judicial Conference of the United States and its
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committees, and implements and executes Judicial Conference policies, as
well as applicable federal statutes and regulations. The Judicial Conference
of the United States supervises the Director of the AO in the performance
of his duties as the administrative officer of the courts of the United States
under 28 U.S.C. § 604. In addition, the Judicial Conference acts pursuant to
statutory authority in a variety of specific areas dealing with the
administration of the courts, and promulgates administrative policies such
as the one at issue here.
This proceeding concerns the interpretation, application, and
reviewability of the Electronic Public Access Fee Schedule, a list of fees
payable by users of the federal judiciary’s electronic case record system.
The Judicial Conference adopted that fee schedule pursuant to authority
granted by Congress in the Fiscal Year 1992 Appropriations Act for the
Judiciary, directing the Judicial Conference to “prescribe reasonable fees,
* * * for collection by the courts * * * for access to information available
through automatic data processing equipment.”
§ 303), reprinted at 28 U.S.C. § 1913, Note.
2
Pub. L. No. 102-140,
The fee schedule and
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accompanying policy notes were adopted by the Judicial Conference after
consideration by the Committee on Court Administration and Case
Management (CACM), supported by the AO.
JURISDICTIONAL STATEMENT
Jennifer Gollan and Shane Shifflett applied to the district court,
seeking an exemption from otherwise applicable fees for electronic access
to court records through PACER (Public Access to Court Electronic
Records). Their exemption application did not identify any statute that
confers judicial jurisdiction on federal courts for the resolution of disputes
concerning such fees; their opening brief in this Court (at 1) asserts that the
district court had jurisdiction pursuant to 28 U.S.C. § 1331. The district
court denied the exemption on May 16, 2012. Gollan and Shifflett filed a
notice of appeal on June 12, 2012. Their opening brief invokes this Court’s
jurisdiction under 28 U.S.C. § 1295. See Gollan Br. 1.1 As discussed below,
The cited statute specifies the jurisdiction of the United States Court
of Appeals for the Federal Circuit. Gollan and Shifflett may have intended
to cite to 28 U.S.C. § 1291, which provides for appellate jurisdiction over
final decisions of district courts. See Gollan Br. 1 (characterizing denial of
1
Continued on next page.
3
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this Court lacks jurisdiction over this appeal, and also would lack
jurisdiction if the notice of appeal were treated as a petition for a writ of
mandamus.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1.
Whether this Court has jurisdiction over an appeal from an
order denying an application for exemption from PACER fees.
2.
Whether the notice of appeal should be treated as a petition for
a writ of mandamus.
3.
Whether the fee-exemption application was properly denied
under the applicable Judicial Conference policy.
STATEMENT OF THE CASE
Gollan and Shifflett seek appellate review of a decision by Chief
Judge James Ware, denying their application for an exemption from the
fees applicable to users of the PACER system. Judge Ware’s ex parte
decision was not issued in conjunction with any docketed case before the
fee exemption application as “a final decision as to the rights of ApplicantsAppellants Jennifer Gollan and Shane Shifflett”).
4
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district court, and no adverse party has been named in this Court or the
district court.
STATEMENT OF FACTS
1.
PACER is an internet-based service that provides users with
access to dockets, reports, and filings in trial and appellate cases in federal
courts throughout the United States. It is linked with, and integral to, the
courts’ electronic case management and filing system.
Dockets and
documents filed in all cases since the onset of electronic filing are available
for public access through the PACER system.
The Judicial Conference establishes fees for PACER access pursuant
to statutory authority. There is no fee for registration to use the system.
The fee schedule charges ten cents per page viewed, with a per-document
maximum of 30 pages (unformatted web data is charged at a per-page
equivalent). 2
Users may save or print any documents retrieved from the
system without incurring any additional PACER fees.
The fee schedule in place at the time of Judge Ware’s denial of the
exemption application here, which was effective April 1, 2012, is appended
to this brief (Add. A1-A2). The Judicial Conference subsequently adopted
2
Continued on next page.
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Most PACER users pay nothing for access to the system of judicial
records: Court opinions are available free of charge. There is no charge for
litigants (through their counsel or pro se) to receive a copy of any
document filed and served in cases to which they are a party. And the vast
majority of PACER users – those generating a relatively small volume of
usage per month – are not charged at all. 3
Moreover, every federal
courthouse has public terminals available for users to search and view
information without charge. And the policy includes a mechanism for
courts to grant exemptions from the fee requirement, based on
demonstrated need, for certain users, as discussed below. See Electronic
Public Access Program Summary 8-10 (Dec. 2012) (Add. A10-A12).4 The
Judicial Conference plans to revisit the PACER fee policy later this year,
and expects to clarify the exemption requirements.
a revised schedule, effective October 1, 2012, which raised fees for name
searches and returned checks, but otherwise left the fee schedule and
policy notes unchanged.
3 Users with $15 or less in monthly charges owe nothing.
4 The Program Summary, a report published by the AO, available at
http://www.pacer.gov/psc/qresources.html, is appended to this brief.
6
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Jennifer Gollan and Shane Shifflett are reporters employed by
the Center for Investigative Reporting (“CIR”), a media organization with
nonprofit status under section 501(c)(3) of the Internal Revenue Code.
Gollan and Shifflett submitted a petition for exemption from the fee
schedule for access to electronic judicial records of cases on PACER. Their
application stated that they sought the exemption in order to conduct
research “analyzing the effectiveness of the court’s conflict-checking
software and hardware used by the California federal courts to help federal
judges identify situations requiring their recusal.” ER 17; see also ER 47.
They proposed to “cross reference court records available through PACER
against separate data sets, such as judges’ statements of economic interest”;
they would “harvest[] dockets from PACER and analyz[e] their
grammatical patterns” in order to “classify documents and search them for
context.” Ibid.
Gollan and Shifflett anticipated that the cost of PACER fees would be
“many thousands of dollars,” although the application did not elaborate on
that estimate or explain the basis for calculating the total amount of fees
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They asserted, again without
explanation, that the expense of PACER fees “is prohibitive,” and
explained only that CIR’s “funding is both limited and wholly dependent
on foundation grants and donations.” Ibid. The application concluded
that, without an exemption from fees, CIR would “not be able to access the
federal court records necessary to complete this study.” Ibid.
3.
The district court initially granted the application on the basis
of Gollan and Shifflett’s representation that their employer (initially, CIR’s
predecessor, The Bay Citizen) was a 501(c)(3) organization. Several weeks
later, however, the court suspended its order, invited Gollan and Shifflett
to file a renewed fee-exemption application, and set a show-cause hearing
to address whether they were entitled to a fee exemption.
Chief Judge Ware denied the application, concluding that “the Court
does not find good cause to grant Gollan and Shifflett an exemption from
payment of electronic public access fees.” ER 12. The order relied on the
statement in the Judicial Conference Policy Notes to 28 U.S.C. § 1914,
which the judge interpreted to “expressly state that courts should not grant
8
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such exemptions to ‘members of the media.’”
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Ibid.; see also ER 12-13
(relying on the “Judicial Conference policy precluding the granting of such
exemptions to members of the media” as a basis for finding “that it would
be inappropriate to grant Gollan and Shifflett an exemption”). The order
noted that Gollan and Shifflett had argued that the Judicial Conference
Policy Notes should be read not to apply to members of the media who are
part of section 501(c)(3) non-profit organizations, but the judge concluded
that there was no authority in support of that argument and declined to
adopt it. ER 13.
Gollan and Shifflett filed a notice of appeal, seeking review of the
denial of their fee-exemption application. After their opening brief was
filed, this Court issued an order inviting the Department of Justice to
appear on behalf of the Administrative Office of United States Courts or
the Judicial Conference as amicus curiae or as an intervenor in the appeal.
SUMMARY OF ARGUMENT
This Court lacks jurisdiction to review the fee-exemption denial,
which was an administrative – not a judicial – order by Judge Ware. An
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application for exemption from PACER fees is not an adversarial case or
controversy within the Article III jurisdiction of the federal courts. And the
resulting determination was thus not a final decision within the scope of 28
U.S.C. § 1291.
Nor can this case be considered under this Court’s mandamus
jurisdiction. Because a court’s authority to issue writs of mandamus is
limited to proceedings in aid of its jurisdiction, as specified in the All Writs
Act, 28 U.S.C. § 1651(a), treating the notice of appeal here as a petition for a
writ of mandamus would not create jurisdiction where there is no
independent basis for jurisdiction.
Even if there were appellate jurisdiction here, this Court would be
bound to reject the arguments made by Golan and Shifflett. Judge Ware’s
denial of the fee-exemption application was proper under the Judicial
Conference policy on PACER fees. That policy identifies groups that may
be unable to pay the fees – such as legal aid and non-profit organizations –
but it does not confer categorical exemptions for those groups. Likewise,
the policy identifies large-volume users – such as attorneys and media
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organizations – who presumptively can and should pay for access to case
data, although the policy does not categorically prohibit an exemption for
such users.
The policy requires every applicant to demonstrate that payment of
the fees would pose an unreasonable burden. Gollan and Shifflett failed to
do so here, and that failure warranted the denial of their application.
ARGUMENT
I.
THIS COURT LACKS APPELLATE JURISDICTION.
A.
“Federal courts are courts of limited jurisdiction. They possess
only that power authorized by Constitution and statute, which is not to be
expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co., 511 U.S.
375, 377 (1994). This is not a case or controversy within the constitutional
grant of Article III power, and the order issued by Judge Ware was not a
judicial “decision” within the meaning of 28 U.S.C. § 1291. Although the
application was denied by a district judge, that determination was made in
an administrative, rather than a judicial capacity.
11
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determination was not an exercise of judicial power, there is no appellate
jurisdiction to review the denial.
The Supreme Court has consistently held that the judicial power of
federal courts is limited to cases or controversies, and has focused on the
adversarial nature of disputes properly within the judiciary’s constitutional
power. “The constitutional power of federal courts cannot be defined, and
indeed has no substance, without reference to the necessity ‘to adjudge the
legal rights of litigants in actual controversies.’”
Valley Forge Christian
College v. Americans United for Separation of Church & State, 454 U.S. 464, 471
(1982) (quoting Liverpool S.S. Co. v. Commissioners of Emigration, 113 U.S. 33,
39 (1885)). “[I]t is elemental that there must be parties before there is a case
or controversy.” Ellis v. Dyson, 421 U.S. 426, 434 (1975).
Here, there are no parties, there is no dispute or lawsuit, and there is
therefore no case or controversy. Gollan and Shifflett did not invoke the
judicial power of the district court by initiating litigation.
They filed
neither a complaint nor any other petition seeking relief from the court in a
judicial capacity. See Fed. R. Civ. P. 3 (“A civil action is commenced by
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filing a complaint with the court.”). And they never identified any entity
as a defendant or respondent that violated a putative right that they sought
to vindicate in district court. Indeed, there would be no adverse party to
appeal from an order granting an exemption. The application seeking a
waiver of fee-payment requirements came before Judge Ware in his
administrative capacity, and his denial of that application was not a court
order subject to appellate review.
B.
This Court and other circuits have held that appeals may not be
taken from administrative decisions, and the reasoning of those cases
applies to the administrative decision in this case as well.
Thus, the
Seventh Circuit has held that no appeal is available from a denial of an
attorney’s motion seeking leave to appear pro hac vice without local
counsel. Bense v. Starling, 719 F.2d 241 (7th Cir. 1983). Where no complaint
had been filed, and there was no dispute between adversary parties, the
court of appeals held there was no case or controversy within the judicial
power of the courts, and therefore no basis for an appeal. The attorney’s
motion “was not an adversary matter,” the court explained: “No notice was
13
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given to anyone. There was no hearing. There was not, and could not be,
any opposition to the motion because there were no ‘parties’ before the
Court.” Id. at 244.
Similarly, this Court and others have recognized that there is no
appellate jurisdiction to review a decision by a district judge denying
payment of additional fees to counsel under the Criminal Justice Act (CJA).
Because such a decision is an example of “administrative actions of the
district judge that are essentially outside the scope of the litigative
function,” this Court held that it is not a “final decision[] of a judicial
character,” and thus is not appealable under § 1291. In re Baker, 693 F.2d
925, 926-927 (9th Cir. 1982) (“We agree that the district court’s order is
“final” with regard to Baker's fees, but we cannot regard it as a “decision”
of the district court within the meaning of 28 U.S.C. § 1291.”). The Court
emphasized the “nonadversarial procedures established by the CJA” in
concluding that “the district judge’s certification of attorneys’ fees is an
administrative act, and is consequently not one of the “final decisions”
rendered appealable by 28 U.S.C. § 1291.” Id. at 927 (citations omitted).
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Other circuits agree. See, e.g., United States v. French, 556 F.3d 1091, 1093
(10th Cir. 2009) (citing cases).
In addition, multiple circuits have held that there is no appellate
jurisdiction over a decision by a district judge denying retroactive
appointment of counsel under the CJA. The Seventh Circuit has held that
the CJA authorizes such appointments based on “non-adversarial
procedures” which render the decision “an administrative act and * * *
consequently not one of the final decisions rendered appealable by Section
1291.” United States v. Deluca, 912 F.2d 183, 183-184 (7th Cir. 1990) (citing
Landano v. Rufferty, 859 F.2d 301, 302 (3d Cir. 1988) (per curiam)). Likewise,
the Second Circuit has held that it lacks jurisdiction over an appeal from an
order denying retroactive appointment of counsel and payment of expert
fees under the CJA. United States v. Bloomer, 150 F.3d 146, 148 (2d Cir. 1998)
(“fee
determinations
concerning
services
already
administrative, rather than judicial, determinations”).
rendered
are
Because such
requests “are ex parte and nonadversarial,” such “purely administrative
decisions of the district court are not appealable final orders.” Ibid.
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Courts have also recognized that legislative intent concerning the
availability of appellate review can inform the jurisdictional determination.
Here, there is no indication that Congress intended to provide appellate
review of an order granting or denying a PACER fee-exemption
application. The statute requiring the Judicial Conference to adopt a fee
schedule provides that the fee provisions “shall provide for exempting
persons or classes of persons from the fees, in order to avoid unreasonable
burdens and to promote public access to such information.” Pub. L. No.
102-140, § 303(a), reprinted at 28 U.S.C. § 1913, Note. But it does not
specify that disputes over such exemptions should be resolved judicially
rather than administratively, nor does it suggest that any order denying an
exemption should be reviewable on appeal.
The similar absence of any
indication in the CJA authorizing appellate review has led courts to dismiss
putative appeals of administrative decisions under that statute. See, e.g.,
Baker, 694 F.2d at 926 (“Except for the limited administrative review of the
district court’s certification by the chief judge of the circuit, the CJA makes
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no provision for appeal of an order for payment of attorneys’ fees, and its
legislative history provides no suggestion that one was intended.”).
C.
We are not aware of any case directly on point that addresses
whether a denial of an application for exemption from PACER fees, apart
from a litigant’s effort to obtain access to court records for the purpose of
pending litigation, is reviewable on appeal. The Third Circuit has held that
the denial of a plaintiff’s motion for waiver of PACER fees was appealable
as a collateral order, but the court did not address whether such a waiver
was a judicial or administrative matter. See Zied-Campbell v. Richman, 317
Fed. Appx. 247 (3d Cir.), cert. denied, 130 S. Ct. 290 (2009).
In that case,
however, the plaintiff sought the exemption in the context of ongoing
litigation to which she was a party, and she specifically sought access to
documents in her own case. Thus, the court in Zied-Campbell was acting in
a judicial capacity, and its decision does not contradict the line of authority
making clear that an administrative, non-judicial decision is not appealable
under § 1291. Notably, Gollan and Shifflett do not seek access to PACER in
order to preserve their ability to pursue their own pending litigation
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against other parties. This Court therefore need not decide whether a
denial of a fee-exemption application in those circumstances would be a
judicial or administrative decision.
II.
THE ALL WRITS ACT DOES NOT PROVIDE JURISDICTION.
Gollan and Shifflett cannot overcome the lack of appellate
jurisdiction by seeking a writ of mandamus.
Such a writ would be
available, if at all, under the All Writs Act, which provides: “The Supreme
Court and all courts established by Act of Congress may issue all writs
necessary or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law.” 28 U.S.C. § 1651(a) (emphasis added).
The All Writs Act, which codifies the common-law authority to issue writs
of mandamus, does not itself create appellate jurisdiction: “the express
terms of the Act confine the power of the [court of appeals] to issuing
process ‘in aid of’ its existing statutory jurisdiction; the Act does not
enlarge that jurisdiction.” Clinton v. Goldsmith, 526 U.S. 529, 534-535 (1999).
This Court has similarly recognized that limitation. See Taiwan v. U.S. Dist.
Court, 128 F.3d 712, 717 (9th Cir. 1997) (“we cannot issue a writ under the
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Act ‘unless it is designed to preserve jurisdiction that the court has
acquired from some other independent source in law’”) (quoting Jackson v.
Vasquez, 1 F.3d 885, 889 (9th Cir. 1993)).
Thus, “[t]he traditional use of the writ in aid of appellate jurisdiction
both at common law and in the federal courts has been to confine [the court
against which mandamus is sought] to a lawful exercise of its prescribed
jurisdiction.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004) (quoting
Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943). Mandamus is not
available to seek review of a non-judicial action that would not be
reviewable by appeal. Because a district judge granting or denying an
application for waiver of PACER fees is acting in an administrative
capacity, not a judicial one, there is no exercise of jurisdiction by a district
court that would be a proper subject of mandamus.
The case law supports this interpretation. For example, the Second
Circuit has held that it lacked jurisdiction to hear a mandamus petition that
sought relief against the United States, rather than review of a district court
action.
Aref v. United States, 452 F.3d 202, 205-206 (2d Cir. 2006)
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(“Accordingly, this Court may not issue writs except those which aid our
jurisdiction – which is appellate in nature.”). Such an effort to compel the
Executive’s conduct by a writ of mandamus failed in part because the
courts lacked any basis for appellate jurisdiction over non-judicial actions.
The same rationale precludes mandamus here.
III.
THE DISTRICT COURT’S DENIAL OF AN EXEMPTION IS CONSISTENT
WITH THE JUDICIAL CONFERENCE POLICY.
Although this Court lacks jurisdiction over this putative appeal, and
there is no basis for mandamus, we nevertheless address the merits of
Gollan’s and Shifflett’s arguments.
The policies underlying the fee
schedule and the Judicial Conference guidance concerning fee-exemption
applications demonstrate that denial of the application here was proper.
Moreover, the fee-exemption policy will be reviewed by the Judicial
Conference in coming months. That review is likely to result in a revision
of the Policy Notes accompanying the fee schedule in order to clarify the
purpose and intent of the policy. Such a revision should help to eliminate
confusion about the availability of exemptions.
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Congress has not appropriated funds for the operation of
PACER or the judiciary’s other electronic access programs. Instead, those
programs are intended to be self-sustaining and supported by user fees.
See Electronic Public Access Program Summary 1 (Dec. 2012) (Add. A3).
The Judicial Conference policy governing fee exemptions is an integral part
of the self-funding system of electronic public access to court records that
includes the PACER system, the electronic filing system, and court
websites. The vast majority of individuals and entities who use those
systems pay nothing for access to judicial records: Counsel for litigants are
not charged for electronic filing or service of documents in active cases.
Court websites, which frequently include opinions, rules, and other
information, are available to the public without charge. Documents are
available for viewing free of charge at public terminals located in each
courthouse. And PACER fees are waived for any user who accumulates no
more than $15 in fees per quarter; approximately 65-75% of all PACER
users pay nothing because of that limitation. See Program Summary 9
(Add. A11).
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As a consequence of the waiver policy for users under the monthly
threshold, the judiciary’s system of public access is funded primarily by
larger-volume users. Ibid. In order for PACER to be self-sustaining, and to
generate sufficient funds to support the judiciary’s other electronic public
access programs, exemptions must be strictly limited, and should not
excuse payment from high-volume users who have not demonstrated that
they cannot afford to pay for the services they use.
Gollan and Shifflett argue (Br. 17 n.5) that PACER fees generate more
funds than is required to operate the PACER system. But those fees are
also used – as directed by Congress – to provide all electronic access to
court records, including through the electronic filing system, court web
sites, and RSS feeds. Those funds also support free public dissemination of
other information from the courts, such as victim notification, on-line juror
services, and courtroom technology programs. See Program Summary 1
(Add. A3). Thus, as Congress contemplated, PACER fees must generate a
sufficient revenue stream to cover additional programs beyond just the
PACER system itself.
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Nor does a stringent application of the waiver requirement unduly
burden researchers. Before the advent of the PACER system, there was no
central nationwide repository for federal court records.
The Judiciary
created such a system without the use of taxpayer funds, and can
reasonably require payment from those who seek to use the system in
order to ensure it remains viable.
B.
The fee schedule provides that “courts may, upon a showing of
cause, exempt indigents, bankruptcy case trustees, individual researchers
associated with educational institutions, courts, section 501(c)(3) not-forprofit organizations, court appointed pro bono attorneys, and pro bono
ADR neutrals from payment of these fees.” Electronic Public Access Fee
Schedule, sec. I (4/1/12) (Add. A1). Before granting an exemption, the court
“must find that parties from the classes of persons or entities listed above
seeking exemption have demonstrated that an exemption is necessary in
order to avoid unreasonable burdens and to promote public access to
information.” Ibid. A policy note explains that “[c]ourts should not exempt
local, state or federal government agencies, members of the media,
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attorneys or others not members of one of the groups listed above,” and
emphasizes that “[e]xemptions should be granted as the exception, not the
rule.” Id., Judicial Conference Policy Notes (Add. A2).
Thus, a court considering a fee-exemption application should first
consider whether the applicant is able to pay the fees or whether payment
would create “unreasonable burdens,” in the language of the policy and
the underlying statute.
The list of groups potentially eligible for fee
waivers – including indigents, bankruptcy case trustees, not-for-profit
organizations, and others – does not establish a categorical entitlement to
exemption, but is only intended to represent examples of the kinds of
applicants likely able to meet such a standard. In any specific application,
however, a member of such a group must make an individualized showing
of need and hardship.
Conversely, the policy note identifies groups that generally represent
larger-volume users who likely can afford to pay the fees, such as
government agencies, media representatives, and attorneys. Like the list of
those potentially eligible, the notes identifying those generally ill-suited to
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an exemption is neither exclusive nor categorical. Just as the fee schedule
does not require exemptions to be granted for those in the first list, it does
not prohibit such exemptions for those on the second.
C.
Gollan and Shifflett argue that the district judge improperly
denied their application solely on the basis that they are members of the
media, and they contend that they should be entitled to an exemption on
the ground that they are employed by a not-for-profit media organization.
Those arguments misread both the order denying the application and the
judicial policy establishing the narrow grounds on which a district judge
may grant such exemptions in the exercise of his or her discretion. They
also overlook the fundamental threshold requirement for any exemption:
the showing that fee payment would pose an unreasonable burden.
A fee-exemption application must demonstrate that an exemption is
necessary to avoid an unreasonable burden that would result from being
required to pay the fees. See Electronic Public Access Fee Schedule, sec. I
(requiring “a showing of cause”) (Add. A1); Pub. L. No. 102-140, § 303
(directing Judicial Conference to establish a fee schedule that “shall
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provide for exempting persons or classes of persons from the fees, in order
to avoid unreasonable burdens and to promote public access to such
information”). Gollan and Shifflett’s application failed to satisfy, or even to
address, that threshold requirement. In the absence of a demonstrated
need, supported by analysis of both the anticipated costs and the resources
available to the applicant, there is no basis for granting an exemption.
Here, Gollan and Shifflett failed to supply any detailed information
addressing either the amount of fees they expected their investigation to
incur or their ability to pay those fees. On the basis of that failure, denial of
the application was appropriate, even if the district court did not articulate
that basis for the denial.
D.
To be sure, the Judicial Conference policy is not as clear as it
could be, and the ambiguity of the policy may have contributed to the
misunderstandings reflected in the arguments Gollan and Shifflett make in
their opening brief.
The AO has previously identified the PACER fee
exemption policy as needing clarification, and the Judicial Conference has
thus already planned to reconsider the policy. That reconsideration is
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expected to take place this year; we will inform the Court when it is
complete. Even before then, however, Gollan and Shifflett may re-apply
for an exemption if they provide more detailed information that would
satisfy the fundamental requirement that an exemption is necessary to
avoid an unreasonable burden.
CONCLUSION
The appeal should be dismissed for lack of jurisdiction.
Respectfully submitted,
STUART F. DELERY
Principal Deputy Assistant
Attorney General
ROBERT K. LOESCHE
General Counsel
MELINDA L. HAAG
United States Attorney
SIGMUND ADAMS
Attorney
MATTHEW M. COLLETTE
Administrative Office of
United States Courts
Washington, D.C. 20544
/s/ H. Thomas Byron III
H. THOMAS BYRON III
(202) 616-5367
Attorneys, Appellate Staff
Civil Division, Room 7260
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
JANUARY 2013
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CERTIFICATE OF COMPLIANCE WITH
FEDERAL RULE OF APPELLATE PROCEDURE 32(A)
I hereby certify that this brief complies with the requirements of Fed.
R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point Palatino
Linotype, a proportionally spaced font.
I further certify that this brief complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 4,752 words,
excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii),
according to the count of Microsoft Word.
/s/ H. Thomas Byron III
H. THOMAS BYRON III
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CERTIFICATE OF SERVICE
I hereby certify that on January 22, 2013, I electronically filed the
foregoing Brief For The Administrative Office Of United States Courts As
Amicus Curiae with the Clerk of the Court for the United States Court of
Appeals for the Ninth Circuit by using the appellate CM/ECF system.
The participants in the case are registered CM/ECF users and service
will be accomplished by the appellate CM/ECF system.
/s/ H. Thomas Byron III
H. THOMAS BYRON III
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ADDENDUM
TABLE OF CONTENTS
Electronic Public Access Fee Schedule............................................................A1
Administrative Office of United States Courts, Electronic Public
Access Program Summary (Dec. 2012) ......................................................A3
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(Eff. 4/1/2012)
ELECTRONIC PUBLIC ACCESS FEE SCHEDULE
(Issued in accordance with 28 U.S.C. § 1913, 1914, 1926, 1930, 1932)
As directed by Congress, the Judicial Conference has determined that the following fees
are necessary to reimburse expenses incurred by the judiciary in providing electronic public access
to court records. These fees shall apply to the United States unless otherwise stated. No fees
under this schedule shall be charged to federal agencies or programs which are funded from
judiciary appropriations, including, but not limited to, agencies, organizations, and individuals
providing services authorized by the Criminal Justice Act, 18 U.S.C. § 3006A, and bankruptcy
administrator programs. Furthermore, the fee increase from eight cents per page to ten cents per
page has been suspended for local, state, and federal government entities until 4/1/2015.
I.
For electronic access to court data via a federal judiciary Internet site: ten cents per page,
with the total for any document, docket sheet, or case-specific report not to exceed the fee
for thirty pages– provided however that transcripts of federal court proceedings shall not
be subject to the thirty-page fee limit. For electronic access to an audio file of a court
hearing via a federal judiciary Internet site: $2.40 per audio file. Attorneys of record and
parties in a case (including pro se litigants) receive one free electronic copy of all
documents filed electronically, if receipt is required by law or directed by the filer. No fee
is owed under this provision until an account holder accrues charges of more than $15 in a
quarterly billing cycle. Consistent with Judicial Conference policy, courts may, upon a
showing of cause, exempt indigents, bankruptcy case trustees, individual researchers
associated with educational institutions, courts, section 501(c)(3) not-for-profit
organizations, court appointed pro bono attorneys, and pro bono ADR neutrals from
payment of these fees. Courts must find that parties from the classes of persons or entities
listed above seeking exemption have demonstrated that an exemption is necessary in order
to avoid unreasonable burdens and to promote public access to information. For individual
researchers, courts must also find that the defined research project is intended for academic
research, and not for commercial purposes or internet redistribution. Any user granted an
exemption agrees not to sell for profit the data obtained as a result. Any transfer of data
obtained as the result of a fee exemption is prohibited unless expressly authorized by the
court. Exemptions may be granted for a definite period of time and may be revoked at the
discretion of the court granting the exemption.
II.
For printing copies of any record or document accessed electronically at a public terminal
in the courthouse: ten cents per page. This fee shall apply to services rendered on behalf of
the United States if the record requested is remotely available through electronic access.
III.
For every search of court records conducted by the PACER Service Center, $26 per name
or item searched.
IV.
For the PACER Service Center to reproduce on paper any record pertaining to a PACER
account, if this information is remotely available through electronic access, 50 cents per
page.
V.
For a check paid to the PACER Service Center which is returned for lack of funds, $45.
A1
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JUDICIAL CONFERENCE POLICY NOTES
Courts should not exempt local, state or federal government agencies, members of the
media, attorneys or others not members of one of the groups listed above. Exemptions should be
granted as the exception, not the rule. A court may not use this exemption language to exempt
all users. An exemption applies only to access related to the case or purpose for which it was
given. The prohibition on transfer of information received without fee is not intended to bar a
quote or reference to information received as a result of a fee exemption in a scholarly or other
similar work.
The electronic public access fee applies to electronic court data viewed remotely from the
public records of individual cases in the court, including filed documents and the docket sheet.
Audio files of court hearings do not include naturalization ceremonies or appellate oral
arguments. Electronic court data may be viewed free at public terminals at the courthouse and
courts may provide other local court information at no cost. Examples of information that can be
provided at no cost include: local rules, court forms, news items, court calendars, opinions, and
other information – such as court hours, court location, telephone listings – determined locally to
benefit the public and the court.
2
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Electronic Public Access Program Summary
December 2012
Program Overview
The Electronic Public Access program provides public access to court information
through electronic means in accordance with federal statutes, Judiciary policies, and user
needs. The Internet-based PACER (Public Access to Court Electronic Records) service
provides courts, litigants, and the public with access to dockets, case reports, and over
500 million documents filed in federal courts through the Case Management and
Electronic Case Files (CM/ECF) system. In other words, PACER is a portal to CM/ECF,
which in turn, is integral to public access.
A PACER account is obtained by registering with the PACER Service Center, the
Judiciary's centralized registration, user support and billing center. Registration
information can be submitted via fax or the Internet, and there is no registration fee. At
present, there are more than 1.4 million user accounts, with approximately 13,000 new
accounts added each month. In fiscal year 2012 alone, PACER processed over 500
million requests for information.
As mandated by Congress, the public access program is funded entirely through user fees
set by the Judicial Conference of the United States. The fees are published in the
Electronic Public Access Fee Schedule, available on www.uscourts.gov and
www.pacer.gov. Funds generated by PACER are used to pay the entire cost of the
Judiciary’s public access program, including telecommunications, replication, and
archiving expenses, the Case Management/Electronic Case Files system, electronic
bankruptcy noticing, Violent Crime Control Act Victim Notification, on-line juror
services, and courtroom technology.
Court Websites
Each federal court uses its website, funded by fee revenue, to provide the public with
access to information well beyond that which is required by the E-Government Act of
2002, such as court locations, contact information, local rules, standing or general orders,
docket information, written opinions, and documents filed electronically. The courts are
also using their websites to disclose information about judges’ attendance at privatelyfunded seminars, orders issued on judicial conduct and disability complaints, and digital
audio recordings of oral arguments heard by the court. Additionally, court websites
provide general information concerning court operations, filing instructions, courthouse
accessibility, interpreter services, job opportunities, jury information, and public
announcements. Court websites are used to interact directly with the public through
PACER, CM/ECF, on-line jury questionnaires, pro se filing tools, forms, and court
calendars.
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CM/ECF and the Next Generation
Implementation of the federal Judiciary's Case Management/Electronic Case Files system
(CM/ECF) began in 2001 in the bankruptcy courts after several years of pilot programs in
bankruptcy and district courts. CM/ECF not only replaced the courts' old electronic
docketing and case management systems, but it also enabled courts to maintain case file
documents in electronic format and to accept filings from court practitioners via the
Internet. The CM/ECF system is now in use in all of the federal appellate, district, and
bankruptcy courts, the Court of International Trade, and the Court of Federal Claims.
Nearly 43 million cases are on CM/ECF, and more than 600,000 attorneys and others
have filed documents over the Internet.
Attorneys are able to file documents directly with any federal court over the Internet.
There are no added fees for filing documents using CM/ECF. The CM/ECF system uses
standard office computer hardware, an Internet connection and a browser, and accepts
documents in portable document format (PDF). The system is easy to use – filers prepare
a document using conventional word processing software, then save it as a PDF file.
After logging onto the court's web site with a court-issued CM/ECF password, and
acknowledging that the filing complies with the redaction rules, the filer enters basic
information relating to the case and document being filed, attaches the document, and
submits it to the court. A notice verifying court receipt of the filing is generated
automatically and immediately. All electronically filing parties1 in the case automatically
receive immediate e-mail notification of the filing.
Work on the Next Generation of CM/ECF (Next Gen) is well underway. The project is
currently transitioning from its first phase – requirements definition – to its second phase
– design and development. As part of the requirements definition phase, the Judiciary
gathered extensive information from stakeholders both inside and outside the court
system. The NextGen project included an Additional Stakeholders Functional
Requirements Group (ASFRG) that focused on how the federal courts interact with others
in the legal system. The group’s 24 members included representatives from the Judiciary,
the Department of Justice, the American Bar Association, the Internal Revenue Service,
the Association of American Law Schools, and the National Association of Bankruptcy
Trustees.
The group reached out to more than 60 constituent groups in a variety of ways, such as
focus group meetings, interviews, conferences, surveys, and elicitation sessions at the
courts and the Administrative Office. In all, more than 7,000 individual stakeholders
provided input, most of which focused on the same core requirements sought in NextGen.
1
Those parties who are not electronic filers receive notification via U.S. mail.
-2-
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These core requirements include single sign-on, enhanced search capabilities, batch-filing
features, and customizable reports. Nearly 500 of the ASFRG’s requirements have been
adopted and incorporated into the functional requirements documents being used to
design NextGen. The final report of the ASFRG is available to the public on
www.uscourts.gov.
The first releases of the Next Generation of CM/ECF are expected in 2014 and 2015, and
the requirements prioritized for those releases are associated with time-saving and/or
cost-saving functionality. The Next Generation of CM/ECF will also enable additional
improvements to the PACER service, including an updated user interface.
Access to Court Records
Registered PACER account holders can use a court's website or the PACER Case Locator
to access court documents. The PACER Case Locator is a tool for locating court records
that reside in U.S. district, bankruptcy, and appellate court CM/ECF databases across the
country. Usage of the Case Locator continues to grow, with over 200,000 searches daily.
Links to all courts and the PACER case locator are located at www.pacer.gov. Each court
maintains its own CM/ECF database with case information. As a result, querying
information from each court is comparable; however, the format and content from each
court may differ slightly.
The Judiciary continues to seek to improve electronic public access to its records, and a
number of initiatives have been put into place to broaden public access, including:
Public Access Terminals – Every courthouse has public access terminals in the
clerk’s office to provide access to PACER2 and other services, such as credit
counseling.
Digital Audio – At its March 2010 meeting, the Judicial Conference endorsed a
proposal from the Committee on Court Administration and Case Management to
allow judges, who use digital audio recording as the official means of taking the
record, to provide, at their discretion, access to digital audio recordings of court
proceedings via PACER. The digital audio initiative, also known as CourtSpeak,
continues to be successful, both in terms of public and court interest. Presently,
nineteen bankruptcy courts and two district courts have implemented digital audio,
and an additional 23 bankruptcy courts, five district courts, and the Court of
2
Viewing court records at a public access terminal is free. Printing copies of documents
from a public access terminal is $0.10 per page.
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Federal Claims have begun implementation. The fee for an audio file is $2.40,
regardless of the length of the recording.
Training and Education Program – In September 2010, the Judicial Conference
approved a recommendation from the Committee on Court Administration and
Case Management to establish a program involving the Government Printing
Office (GPO), the American Association of Law Libraries (AALL), and the
Administrative Office, that would provide training and education to the public
about the PACER service, and would exempt from billing the first $50 of quarterly
usage by a library participating in the program. The GPO and the AALL worked
with the Administrative Office to develop three levels of training classes: training
for trainers, training for library staff, and training for the public. There are
currently 12 libraries participating in the program. In some instances, libraries are
providing on-the-spot individual training. All training classes include instructions
on How to Create a PACER Account and How to Monitor PACER Usage.
Although some patrons expressed disappointment that they were not being allowed
to use the library’s PACER account, but instead had to use their own accounts,
they did report being satisfied with the instructions provided. The AALL and the
GPO continue to publicize the program to their communities.
PACER Training Application – The training site dcecf.psc.uscourts.gov enables
the public to learn how to use PACER without registering or incurring any fees. In
March 2012, the Administrative Office also launched video tutorials to assist the
public in learning how to use PACER.
RSS – In addition to PACER access, which allows users to "pull" information from
the courts, approximately 50 district courts and 80 bankruptcy courts are using a
common, free internet tool, RSS, to "push" notification of docket activity to users
who subscribe to their RSS feeds, much like a Congressional committee might
notify its RSS subscribers of press releases, hearings, or markups.
Pro Se Bankruptcy Pathfinder – In August 2010, the CM/ECF Subcommittee of
the Committee on Court Administration and Case Management approved a
proposal to undertake a bankruptcy pro se pathfinder initiative, which is designed
to assist pro se litigants in preparing the filings required at case opening, to reduce
the time required to process pro se bankruptcy filings, to increase the quality of the
data collected, and to employ new development tools today, which are selected for
future federal Judiciary use. Three bankruptcy courts currently serve as beta
courts: Central District of California, District of New Jersey, and District of New
Mexico. It is anticipated that this software will be available for use by filers later
this year.
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Opinion Initiative with the Government Printing Office – In September 2012, the
Judicial Conference of the United States approved national implementation of the
program to provide access to court opinions via the Government Printing Office’s
Federal Digital System (FDSys) and agreed to encourage all courts, at the
discretion of the chief judge, to participate in the program. Twenty-nine pilot
courts are live, with over 600,000 individual court opinions available on FDSys.
This has proved to be extremely popular with the public. Federal court opinions
are one of the most utilized collections on FDsys, which includes the Federal
Register and Congressional bills and reports. Access to FDSys is available free of
charge via the Internet at www.gpo.gov. Registration is not required.
PACER Users
PACER has a diverse user population, including: lawyers; pro se filers; government
agencies; trustees; bulk collectors; researchers; educational institutions; commercial
enterprises; financial institutions; the media; and the general public. The chart below is a
breakdown of the PACER user population. The majority of “other” users are background
investigators.
Educational/
Research
Institutions or
Students
3%
Media
2%
Service Providers
to Legal Sector
1%
Others
5%
Creditors
4%
Commercial
Businesses
10%
Pro Se Litigants
and Named Parties
12%
Legal Sector
63%
The largest user is the Department of Justice. Virtually all of the other high volume users
are major commercial enterprises or financial institutions that collect massive amounts of
data, typically for aggregation and resale.
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Electronic Public Access Service Assessment
A comprehensive assessment of PACER services was completed in May 2010. The
assessment provided insight into who uses PACER, areas that provide the highest level of
satisfaction for those users, and areas that could be improved. The initial assessment was
also used to inform the work of the Additional Stakeholders Functional Requirements
Group (ASFRG) as it began identifying requirements for the Next Generation of
CM/ECF. An on-line satisfaction survey was made available to all 325,000 active
PACER users in late 2009. User types giving the highest overall satisfaction scores to
PACER included creditors and service providers to the legal sector, followed by
commercial businesses. Users in the legal sector and litigants—the two largest groups of
PACER users—are also among the most satisfied. Users at educational and research
institutions gave the lowest overall satisfaction rating. These are small groups of
less-frequent users. The survey indicated that satisfaction rates climb steadily as
frequency of use increases.
In addition to assessing satisfaction with the on-line component of PACER, users were
asked to rate help-desk services provided by the PACER Service Center. Satisfaction was
very high; over 95 percent of respondents who contacted the center during the study
period indicated they are "satisfied" or "very satisfied" overall. However, about one-third
of PACER users were not aware that the PACER Service Center is available to provide
help with PACER. The assessment also revealed that 75 percent of users were satisfied
with the value for the money they paid for PACER access, 15 percent were neutral, and
10 percent were dissatisfied.
As a result of the assessment, a number of short- and mid-term activities were
implemented to improve user satisfaction with electronic public access services. These
included:
•
•
•
•
•
•
•
•
creating a new PACER Case Locator with expanded search capabilities to replace
the U.S. Party/Case Index;
redesigning the pacer.gov web page to include video tutorials;
embarking on a program to provide public access to judicial opinions via the
Government Printing Office’s Internet-based FDSys Application;
partnering with law libraries to provide training on the efficient and effective use
of PACER;
creating a free PACER training application, which is populated with actual court
cases and case reports from the New York Western District Court;
promoting the use of RSS feeds to “push” information to users;
creating a mobile PACER application;
redesigning the PACER bill and providing a tool to better manage billing for large
organizations; and
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providing access to some audio recordings of judicial proceedings through
PACER.
In April 2012, an initiative was undertaken to refresh the results from the initial
assessment. This initiative is on track to meet its scheduled completion date of March
2013.
Basis and History of Fees
In 1988, the Judiciary sought funding through the appropriations process to provide
electronic public access services. Rather than appropriate funds for this purpose,
Congress specifically directed the Judiciary to fund electronic public access services
through the collection of user fees. As a result, the electronic public access program
relies exclusively on fee revenue. The statutory language specifically requires that the
fees be used "to reimburse expenses incurred in providing these services."3
A study of policies and practices regarding use, release, and sale of data, recommended
that the level of fees for a service should sustain the cost of the service. In 1991, a fee of
$1.00 per minute for access to electronic information, via a dial-up bulletin board service,
was set for the district and bankruptcy courts. Four years later, the fee was reduced to
$0.75 per minute, and one year after that it was reduced to $0.60 per minute. The revenue
generated from these fees was used exclusively to fund the full range of Electronic Public
Access services, including PACER, the Appellate Bulletin Board system, the Voice Case
Information System. The Voice Case Information System provided case information free
of charge. Fee revenue also provided each court with hardware and software necessary to
support public access services. This included more than 700 regular telephone lines,
more than 200 toll-free telephone lines, and a personal computer for free public access at
the front counter of all clerks’ offices with 10 or more staff.
In 1997, the Judiciary addressed three issues pertaining to providing electronic public
access to court information via the Internet. These issues were: (1) the establishment of
an appropriate fee for Internet access to court electronic records; (2) the types of
information for which a fee should be assessed; and (3) the technical approach by which
PACER information should be provided over the Internet. An application of Internet
technologies to the Judiciary's public access program was viewed as a way to make court
and case information more widely available and to offer the opportunity to add additional
information (local rules, court forms, court calendars and hours of operation) and
services.
3
Judiciary Appropriations Act, 1991, Pub. L. No. 101-515,Title IV, § 404, 104 Stat. 2102
and Judiciary Appropriations Act, 1992, Pub. L. No. 102-140, Title III, § 303, 105 Stat. 782.
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The Judiciary's analysis focused on finding the fairest, most easily understood, and most
consistent method for charging. In 1998, the Judicial Conference adopted a per-page fee,
as it was determined to be the simplest and most effective method for charging for public
access via the Internet. The $0.07 per page electronic access fee4 was calculated to
produce comparable fees for large users in both the Internet and dial-up applications and
thus maintain the then current public access revenue level while introducing new
technologies to expand public accessibility to the PACER information. For infrequent
PACER users, costs were reduced considerably by using the Internet.
In 2003, in the Congressional conference report that accompanied the Judiciary's FY 2004
appropriations act, Congress expanded the permitted uses of EPA funds to include Case
Management/Electronic Case Files (CM/ECF) system costs. In order to provide
sufficient revenue to fully fund currently identified CM/ECF system costs, in September
2004, the Judicial Conference approved an increase in the electronic public access fee
from $0.07 to $0.08 per page, effective January 1, 2005.
Based on a recommendation from the Committee on Court Administration and Case
Management, in September 2011, the Judicial Conference approved an increase in the fee
from $0.08 to $0.10 per page, effective April 1, 2012, in order to give users adequate
notice. The Committee noted that the fee had not been increased since 2005 and that, for
the previous three fiscal years, the public access program’s obligations had exceeded its
revenue. The fee increase is being used to fund the Next Generation of CM/ECF and
PACER. The Committee also recommended that the waiver of fees of $10 or less in a
quarterly billing cycle be changed to $15 or less per quarter, so that approximately 75
percent of users would still receive fee waivers. Finally, in recognition of the current
fiscal austerity for government agencies, the Committee recommended that the fee
increase be suspended for local, state, and federal government entities for a period of
three years. The Conference adopted all of the Committee’s recommendations.
The Judiciary takes its responsibility to set the EPA fee very seriously. Since well before
the E-Government Act, it has been the Judicial Conference's policy to set the electronic
4
The per-page charge applies to the number of pages that result from any search,
including a search that yields no matches (one page for no matches). In the current
PACER systems, billable pages are calculated in one of two ways: a formula is used to
determine the number of pages for an HTML formatted report. Any information
extracted from the CM/ECF database, such as the data used to create a docket sheet, is
billed using a formula based on the number of bytes extracted (4320 Bytes). For a PDF
document, the actual number of pages is counted to determine the number of billable
pages.
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public access fee to be commensurate with the costs of providing and enhancing services
related to public access. Before the one-cent-per-page increase in 2004, the Conference
had a history of lowering the fee, and Congressional appropriations to the Judiciary have
never provided funding for the public access program. In 2001, the Judicial Conference
established a fee of $0.10 per page to print copies of documents from public access
terminals in the clerks' office. That fee has never been raised. A fee is not charged to
view PACER documents from the public access terminals in federal courthouses. Finally,
the per page fee has been capped at the charge for 30 pages (or $3.00) for documents,
docket sheets, and case-specific reports.5
Free Information and Exemptions
There is a high cost to providing electronic public access, and as described above,
Congress decided in 1991 that the funds needed to improve electronic access to court
information were to be provided by the users of this information through reasonable fees
rather than by all tax payers through appropriated funds. It is also important to note,
however, that the public access program does provide a great deal of federal court
information to the American public for no charge. For example:
•
The Judiciary does not charge for access to judicial opinions;
•
Parties to a court case receive a copy of filings in the case at no charge;
•
The $0.10 per page fee is not charged for viewing case information or documents
on PACER at the public access terminals in the courthouses;
•
If an individual account does not reach $15 quarterly, no fee is charged at all; and
in a given fiscal year, approximately 65-to-75 percent of active users have fee
waivers for at least one quarter. Most of these users are litigants and their
attorneys who are involved in a specific case;
•
Consistent with Judicial Conference policy, courts may grant exemptions for
payment of electronic public access fees. Approximately 20 percent of all PACER
usage is performed by users who are exempt from any charge – including
indigents, case trustees, academic researchers, CJA attorneys, and pro bono
attorneys.
5
The 30 page fee cap does not apply to non case-specific reports such as docket
activity reports that include multiple cases and reports from the PACER Case Locator.
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The vast majority (95 percent) of PACER accounts incur less than $500 in fees – or no
fee at all – over the course of the year. This is a long-established pattern. Additionally,
the public access program also provides free access to court case information through
VCIS (Voice Case Information System), an automated voice response system that
provides a limited amount of bankruptcy case information directly from the court's
database in response to telephone inquiries.
Benefits of a Fee
In order to maintain the level of service presently provided through the public access
program, the Judiciary would need appropriated funds to replace the fee revenue, and in
this fiscal climate increased appropriations are not available. Fee revenue allows the
Judiciary to pursue new technologies for providing public access, develop prototype
programs to test the feasibility of new public access technologies, and develop
enhancements to existing systems. By authorizing the fee, Congress has provided the
Judiciary with revenue that is dedicated solely to promoting and enhancing public access.
These fees are only used for public access, and are not subject to being redirected for
other purposes. The fee, even a nominal fee, also provides a user with a tangible,
financial incentive to use the system judiciously and efficiently, and in the absence of a
fee the system can be abused.
Privacy
The Judiciary is committed to protecting private information in court filings from public
access. It has been over a decade since the Judicial Conference began consideration of –
and subsequently formulated – a privacy policy for electronic case files, and over four
years since the enactment of Federal Rules of Appellate, Bankruptcy, Civil, and Criminal
Procedure requiring that certain personal data identifiers not be included in court filings.
These policies and rules have been integral to the success of the Judiciary’s electronic
public access program. Adherence to these policies and rules by litigants and attorneys is
essential to ensure that personal identifier information is appropriately redacted from
court filings. The Judicial Conference examined how the privacy rules were working in
practice and found that overall the Judiciary’s implementation of the privacy rules has
been a tremendous success.
In 2001, the Judicial Conference adopted a policy on privacy and public access to
electronic case files that allowed Internet-based access to civil and bankruptcy case
filings; the policy required filers, however, to redact certain personal information (i.e.,
Social Security numbers, financial account numbers, names of minor children, and dates
of birth). Following a pilot program and a Federal Judicial Center study on criminal case
files, the Conference approved electronic access to criminal case files, with similar
redaction requirements. The redaction requirements of the Conference’s privacy policy
were largely incorporated into the Federal Rules, effective December 1, 2007.
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As noted above, a key tenet of these rules (as well as the precursor Conference policy) is
that the redaction of personal identifiers lies with the filing party. The Advisory
Committee Note accompanying Federal Rule of Civil Procedure 5.2 states: “The clerk is
not required to review documents filed with the court for compliance with this rule. The
responsibility to redact filings rests with counsel and the party or non-party making the
filing.” Nonetheless, the Judicial Conference and the Administrative Office are obviously
interested in ensuring that these privacy rules are adequate and appropriately followed.
To this end, two Judicial Conference Committees – the Court Administration and Case
Management Committee, and the Committee on Rules of Practice & Procedure – have
worked jointly with the Federal Judicial Center to monitor and study the operation of the
privacy rules and related policies and to address new issues that have arisen since their
implementation. In addition, the Administrative Office took a number of steps to ensure
that the privacy protections established in the federal rules can be more easily followed,
including the establishment of a task force that developed a notice for the current
CM/ECF system reminding litigants of their obligation under the law to redact personal
identifier information and to require filers to affirm that they must comply with the
redaction rules.
The Administrative Office continues to encourage courts to stress the rules’ redaction
requirements with those who file in the court. Options for informing the filers include
various, readily available communications vehicles, such as the court’s public website,
newsletters, listserves, and Continuing Legal Education programs. Further, Judicial
Conference Committees and the Administrative Office have asked individual courts to
share information on actions they have taken to ensure compliance with the privacy rules,
including promulgation of local rules or standing orders, modifications to local CM/ECF
applications, and outreach efforts to the public and bar informing them of the redaction
requirements. This type of information will assist the Administrative Office, as well as
the Conference Committees, to be better informed of the scope of any non-compliance.
Thus far, the Administrative Office has received an impressive response from the courts,
which are addressing the privacy rules in a variety of ways, ranging from conducting
education and awareness campaigns to issuing judicial orders to redact noncompliant
filings.
E-Government Act Compliance
It is important to emphasize the effort and seriousness with which the Judiciary has
implemented the E-Government Act's requirements. Section 205(d) of the Act directed
the Judicial Conference to "explore the feasibility of technology to post online dockets
with links allowing all filings, decisions and rulings in each case to be obtained from the
docket sheet of the case." The Judiciary has gone much further than "exploring" such a
system. It designed and has now implemented that system in all courts, providing more
than 1.4 million PACER users with access to over 500 million case file documents at a
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reasonable fee – and, frequently, free of any charge at all. The EPA program was
developed as an alternative to going to the courthouse during business hours and making
copies at the cost of $0.50 per page. This service saves litigants/lawyers and the public
time and money by allowing them to file from any computer and also to download and
review case information electronically, with all the attendant benefits.
Very few state courts have electronic access systems, and none provides as much
information as PACER. Many state courts charge several dollars for a single records
search. No other court system in the world provides as much information to as many
people in as efficient a manner. State court officials and court administrators from other
countries contact the federal Judiciary frequently about our electronic public access
model.
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