Florida Attorney, Gov’t Argue Over PACER Fees Class Action Lawsuit

The federal government and a Florida lawyer involved in a class action lawsuit recently argued over fees associated with certain PACER documents.

Both parties argued their points, aiming to determine whether or not a contract or implied covenant exists between the federal government and users of the Public Access to Court Electronic Records (PACER).

If such a relationship exists, the parties also argued on the duties which may be owed to PACER users under the contract.

Plaintiff Theodore D’Apuzzo, a Florida attorney who brought the case against the federal government, claims that users are protected by a contract. D’Apuzzo states that this keeps his claims for breach of implied covenant alive.

“Under the undisputed facts, a contract was formed between the government and plaintiff as to plaintiff’s PACER usage,” D’Apuzzo’s February brief stated. “As such, the breach of implied covenant claim is on sound footing, and is in no way duplicative to or contrary to the express terms of the express or implied­-in-­fact contract.”

On the other side of the argument, the federal government claims that there is not a valid contract – arguing that any online agreement is not valid because it would be “insufficiently definite.”

The government also rejected arguments that the E-Government Act of 2002 protects PACER users in this situation. According to the brief, the act requires written opinions to be available for free but doesn’t specify exactly what qualifies as an opinion.

Finally, the government claims that it is not beholden to PACER users and is not required to take on new duties under a contract. This reportedly includes any standardization to the opinion labeling process.

“That opinions are provided without charge does not require the government to take unspecified ‘steps’ to ensure that ‘[Case Management/Electronic Case Files] websites’ use the ‘same methods’ for designating documents as opinions,” the government argued.

The PACER opinion class action lawsuit was filed against the federal government in November 2016. D’Apuzzo claimed that users of PACER are wrongfully charged when accessing certain judicial records.

According to the PACER class action, charging consumers for court opinions is a direct violation of the PACER Electronic Public Access Fee Schedule.

The fee schedule reportedly states: “No fee is charged for access to judicial opinions.” D’Apuzzo argues that this clearly entitles consumers to free judicial opinions and that the government should not be allowed to charge for these services based on the agreement. He also claims that users are protected under the aforementioned E-Government Act.

“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,” D’Apuzzo claims in his PACER fee class action lawsuit. “Instead, PACER users are forced to pay, just as with every other type of document available on PACER.”

D’Apuzzo is represented by Nicole W. Giuliano and Douglas J. Giuliano of Giuliano Law PA, and John Anthony Van Ness and Morgan L. Weinstein of Van Ness Law Firm PLC.

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