Legislative and Judicial Developments Affecting Public Access to Court Electronic Records (PACER)
Legal Sidebari
Legislative and Judicial Developments
Affecting Public Access to Court Electronic
Records (PACER)
Updated February 1, 2022
The Public Access to Court Electronic Records (PACER) system is the U.S. Court’s web-based
service that gives registered users electronic access to documents filed in the U.S. Courts via the
online Case Management/Electronic Case Files system, known as CM/ECF. The Administrative
Office of the United States Courts (the “AO”), the federal judicial entity responsible for maintaining
PACER, currently charges users ten cents per PACER search as well as 10 cents per page accessed
using the system (with a ceiling of $3 per document). The judiciary waives fees on accounts
incurring $30 or less in any given quarter. With most users not exceeding this $30 threshold, 25%
of PACER users reportedly pay fees in a given quarter. Individuals or groups may prospectively
petition for a fee exemption to conduct their PACER searches for specified research projects. This
Legal Sidebar discusses recent legislative proposals and litigation that may affect the cost of public
access to PACER.
Legislative Efforts to Increase Access to PACER
On December 9, 2021, the Senate Judiciary Committee favorably ordered reported the Open Courts Act
of 2021, S. 2614. At the markup session, the committee ordered to be reported, by voice vote, the bill with
an amendment in the nature of a substitute. It is one of two legislative proposals introduced this Congress
to eliminate the U.S. Courts’ current user fee structure for searching and accessing federal court filings on
PACER. While S. 2614, as amended in committee, would make PACER free for the general public, each
federal agency would be charged an annual fee equal to the total PACER fees paid by the agency in 2021
(adjusted for inflation).
In addition to removing PACER user fees for the general public, both the Senate Judiciary Committee and
House-introduced versions of the Open Courts Act of 2021 (S. 2614 and H.R. 5844) require the AO to
modernize PACER’s technical functionality, including the additions of full-text search capabilities and
“widely accepted common data elements.” Meanwhile, the AO has been independently weighing
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recommendations of 18F—the U.S. government technology and design consultant group—to improve
functionalities of the public-facing PACER and underlying CM/ECF systems.
A number of legislative proposals similar to the Open Courts Act of 2021 have been introduced in
previous congresses. At least four such bills were introduced in the 116th Congress—including the Open
Courts Act of 2020 (H.R. 8235), the Twenty-First Century Courts Act (H.R. 6017), and the Electronic
Court Records Reform Act of 2019 (H.R. 1164 and S. 2064). In the 116th Congress, the House passed
H.R. 8235; the Senate did not act on the bill. The Judicial Conference expressed some opposition to that
proposal due to financial and operational impact on the judiciary.
Class Action Litigation
The collection and spending of PACER user fees have been the focus of an ongoing—but currently
stayed—class action lawsuit filed in 2016 in the U.S. District Court for the District of Columbia. In the
case National Veterans Legal Services Program v. United States, three nonprofits filed a class action
lawsuit on behalf of PACER users, alleging the federal judiciary’s collection and use of the approximately
$920 million in PACER fees collected between 2010 and 2016 exceeded the authority granted by
Congress pursuant to 28 U.S.C. § 1913 note (enacted as section 404 of the Judiciary Appropriations Act,
1991 and amended by section 205(e) of the E-Government Act of 2002). Plaintiffs demanded a refund on
behalf of PACER users pursuant to the Little Tucker Act.
There is no mention of PACER by name in 28 U.S.C. § 1913 note, as the program was unnamed when the
statutory note at issue was added in 1990. Instead, the Act authorizes the Judicial Conference, “only to the
extent necessary,” to prescribe reasonable fees for the courts to collect for access to information available
through “automatic data processing equipment.” It further requires the Director of the AO to “prescribe a
schedule of reasonable fees for electronic access to information which the Director is required to maintain
and make available to the public.”
Following class certification and a failed motion to dismiss, the parties filed cross-motions for summary
judgment in 2017. The plaintiffs argued 28 U.S.C. § 1913 note limited the federal judiciary to collect only
those amounts “necessary to recoup the total marginal cost of operating PACER.” Conversely, the
judiciary argued it could collect and use PACER user fees for any project associated with providing
access to information through electronic means.
In a 2018 opinion, the district court rejected both arguments. Instead, the court, relying on the plain
language and legislative history of 28 U.S.C. § 1913 note, various congressional appropriations, and
committee reports, ruled that the judiciary may recoup expenses beyond the cost of operating PACER but
only so long as those costs are incurred to make court records electronically available to the public. The
court concluded that the judiciary properly used PACER user fees to cover costs associated with systems
other than PACER that enhance public access to court filings, such as CM/ECF and the Electronic
Bankruptcy Noticing system. However, the district court also found that the federal judiciary had
overstepped congressional authority in spending PACER fees on projects that did not enhance public
access to court records. The district court found that Congress had not approved the specific use of
PACER fees (totaling approximately $198 million between 2010 and 2016) for (1) courtroom technology
improvements ($185 million), (2) E-Juror software to allow jurors to access electronic copies of court
documents ($9.4 million), (3) a pilot program for using PACER software for state courts in Mississippi
($120,998), and (4) the Crime Victims Notification System ($3.7 million). The court found that these
expenditures all lacked an adequate nexus to supporting electronic access to court filings by the public.
In August 2020 on interlocutory appeal, the Federal Circuit affirmed, concluding “the district court got it
just right. . . . [Section] 1913 Note limits PACER fees to the amount needed to cover expenses incurred in
services providing public access to federal court electronic docketing information.” However, the circuit
court left it up to the discretion of the district court, on remand, to determine “whether all of the costs of
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maintaining CM/ECF . . . were incurred in providing public access to federal court electronic docketing
information.”
The litigation has been stayed throughout much of 2021 to allow for ongoing settlement negotiations. In
November 2021, the parties reported that they had “reached [a settlement] agreement in principle,” but
the terms of the settlement have not yet been released. The court has extended the stay of the litigation
through April 8, 2022, with the parties’ next status report due on April 1, 2022.
Author Information
Theresa A. Reiss
Law Librarian
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