Morrison & Foerster LLP - Federal Circuitry

Last week was Court week, and some of the Rule 36s in argued cases have already come down. Below we give our usual week’s statistics and case of the week—our highly subjective selection based on whatever case piqued our interest.

Precedential opinions: 6

Non-precedential opinions: 17 (21 with Rule 36)

Rule 36: 4

Longest pending case from argument: Illumina, Inc. v. Ariosa Diagnostics, Inc., No. 19-1419 (Aug. 3, 2020) (207 days) (decision was modified and reissued following a petition for rehearing filed by Defendants-Appellees)

Shortest pending case from argument (non-Rule 36): Godo Kaisha IP Bridge 1 v. TCL Communication Technology, No. 19-2215 (Aug. 4, 2020) (29 days)

Case of the week: NVLSP v. United States, No. 19-1081 (Aug. 6, 2020)

Panel: Judges Lourie, Clevenger, and Hughes, with Judge Hughes authoring the opinion

Read this case if: You think that PACER fees are too high.

This week we take a break from patent cases to focus on a case that affects all lawyers in federal courts of appeals and district courts throughout the country. If you’re like me, you wonder why it costs $0.10 a page every time you want to download a document from PACER or need to enter a username and password to access public documents. And you’re slightly annoyed when you realize that, when clicking on a CM/ECF email link, you’ve already used your “free look.” Now, of course, for many of us practicing before the Federal Circuit, a $0.10 per page fee is no big deal. But for the public at large, non-profits, pro se litigants, and many others, PACER fees are a big deal. The fees can really add up. And while last week’s decision won’t eliminate the fees altogether (as the panel said, “those calls are better directed to Congress” (n.16)), it should lessen the sting.

Here’s the background. Rather than just gripe about the fees, a group of non-profit organizations challenged them in a class action. PACER fees are established and administered by the Administrative Office of the United States Courts and the Judicial Conference. At issue is what fees the judiciary can charge under the statutory note to 28 U.S.C. § 1913, which provides: “The Judicial Conference may, only to the extent necessary, prescribe reasonable fees … for collection by the courts … for access to information available through automatic data processing equipment.”

Now, notwithstanding the fees, it’s important to remember that PACER is a really good thing. As the Court noted, “PACER revolutionized public access to federal courts by making dockets and electronic case records viewable from any web-connected computer.” Before its advent, the public had to travel to the courthouse and request access to documents. Of course, we know nothing is free. And Congress never appropriated funds to cover PACER’s operations, so the judiciary always has charged fees to cover those costs.

But in addition to covering PACER’s costs, the judiciary uses PACER fees to help fund several other programs: (1) the CM/ECF system we lawyers use to electronically file documents, (2) the Electronic Bankruptcy Noticing (EBN) that sends notices to parties in bankruptcy cases, (3) a State of Mississippi Study to study the feasibility of sharing the CM/ECF system with Mississippi state courts, (4) the Violent Crime Control Act (VCCA) Notification System, which notifies local law enforcement of activities in certain cases, (5) web-based juror services, which provides prospective jurors electronic copies of court documents related to their jury service, and (6) courtroom technology—such as funds to cover the cost of maintaining and upgrading courtroom audio/video systems. On summary judgment, the district court held that PACER fees could be used to cover CM/ECF and EBN, but that most of the other costs could not be covered. The district court certified its order for interlocutory appeal, which the Federal Circuit accepted.

On appeal, the Court first dispatched a jurisdictional argument that the Little Tucker Act didn’t apply because the statutory note to 28 U.S.C. § 1913 provides no cause of action with a monetary remedy. The Court explained that when the government “has the citizen’s money in its pocket,” the Tucker Act permits suit “to recover the money exacted.” Turning to the merits, the Court rejected both the plaintiffs’ and the government’s arguments and agreed with the district court. In addition to the statutory text, the Court relied on a lengthy discussion of the legislative history behind PACER fees. From that, it rejected the plaintiffs’ argument as being too narrow—that the fees could only cover the ongoing operations of PACER, which would be a mere pittance. And it rejected the government’s argument as being too broad, as allowing that the PACER fees could cover any electronic access to information. The Court stated that “Section 1913 Note limits the use of PACER fees to expenses incurred in providing (1) electronic access for members of the public (2) to information stored on a federal court docketing system.” And if the text and history were not enough, the Court found further support under principles of constitutional avoidance. It noted that First Amendment access to court considerations bolstered its interpretation and that the government’s construction could raise constitutional concerns.

Of course, none of this means your next PACER download will be free (or even less than $0.10 per page). The government can still seek review (en banc or cert) and further proceedings will still be required in the district court.

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