PACER Class Action Lawsuit Says Fees for Judicial Opinions Are Improper

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A class action lawsuit has been filed on behalf of users of the Public Access to Court Electronic Records (PACER) system who were allegedly forced to pay improper fees to access judicial opinions.

PACER is an electronic system used by federal courts to provide the public with access to court records, including information from U.S. district courts, courts of appeals and bankruptcy courts.

According to the PACER class action lawsuit, this service is made available by the Federal Judiciary to provide electronic public access to court information at a reasonable cost.

Plaintiff Theodore D’Apuzzo claims PACER improperly charges users to access judicial records, which allegedly contradicts the plain language of PACER’s Electronic Public Access Fee Schedule. He points to the following statement: “No fee is charged for access to judicial opinions,” arguing that it clearly means that users are intended to have free access to judicial opinions.

According to the PACER class action lawsuit, the policy requiring free judicial opinions has been in place since at least 2005. It reportedly stems from a clause in the E-Government Act of 2002 that requires all federal courts to provide “[a]ccess to the substance of all written opinions issued by the court.”

“Despite the plain language of the Fee Schedule, and the E-Government Act’s directive, many documents constituting judicial opinions are not available for free in PACER,” the PACER fee class action lawsuit states. “Instead, PACER users are forced to pay, just as with every other type of document available on PACER.”

D’Apuzzo says that it is up to each individual judge or the judge’s staff to designate a document as “judicial opinion” in PACER. He claims that U.S. courts have applied the language inconsistently and therefore many court documents are not flagged as “judicial opinions” even if they meet the definition set forth by the Judicial Conference of the United States.

“The result is that numerous documents that constitute a judicial opinion under the Judicial Conference’s definition, or any other objective standard – including, ironically, many whose title actually contain the word ‘opinion’, or which are described as ‘opinions’ in the documents themselves, or which are explicitly referred to as an ‘opinion’ on PACER’s docket sheet for the particular case – are not flagged as ‘judicial opinions’ for purposes of PACER billing, thus forcing users to pay for them,” the lawsuit states.

According to the PACER fees class action lawsuit, charging PACER users to access judicial opinions constitutes a breach of contract, breach of the implied covenant of good faith and fair dealing, and illegal exaction.

By filing the PACER billing class action lawsuit, D’Apuzzo seeks to represent a Class of all PACER users who, in the last six years, paid to access a document constituting a judicial opinion in PACER.

The plaintiff seeks compensatory damages, pre- and post-judgment interest, attorneys’ fees and costs, and any other relief deemed appropriate by the court.

D’Apuzzo is represented by Nicole W. Giuliano of Giuliano Law PA and Morgan Weinstein of Van Ness Law Firm PLC.

The PACER Judicial Opinion Fee Class Action Lawsuit is Theodore D’Apuzzo PA v. The United States of America, Case No. 0:16-cv-62769, in the U.S. District Court for the Southern District of Florida, Broward Division.

UPDATE: On Feb. 20, 2019, the federal government and a Florida lawyer involved in a class action lawsuit recently argued over fees associated with certain PACER documents.