By Amanda Bronstad, ALM
Paying too much for PACER? You could get an email notice later this spring to join a class action that seeks refunds for several hundred thousand people who allege the electronic court service has charged excessive fees.
A federal judge for the District of Columbia granted class certification this week in the case, which alleges that the Public Access to Court Electronic Records system, managed by the Administrative Office of the U.S. Courts, overcharges for online access to court dockets and documents, often using the revenue to pay for other expenses such as audio systems and flat screens for jurors. The case, brought by appellate attorney Deepak Gupta on behalf of three Washington nonprofit organizations, alleges that the U.S. government has violated the E-Government Act of 2002, which allowed the federal judiciary to charge fees for PACER “only to the extent necessary.” PACER charges 10 cents per page for court records, with a maximum of $3 per record. There is no charge for judicial opinions.
U.S. District Judge Ellen Huvelle in the District of Columbia on Tuesday granted certification of a class comprised of anyone who paid PACER fees during the six years before April 21, 2016. She rejected the Department of Justice’s contention that the plaintiffs weren’t adequate class representatives because they could apply for fee waivers.
“Defendant greatly exaggerates the relevance of named plaintiffs’ nonprofit status,” she wrote. “Named plaintiffs are not exempt from PACER fees and thus share with the other class members an interest in reducing the fees.”
In her order, Huvelle specifically made sure to clarify that the class would include attorneys who bring class actions, except for those handling the case. But she also excluded all federal government entities from the class.
The ruling is a blow to the Justice Department, which has been fighting a series of cases over PACER fees. On June 15, the DOJ got a case dismissed that alleged a faulty pricing formula causes PACER to overcharge its users. But on Sept. 26, a U.S. Court of Federal Claims judge refused to dismiss a proposed class action brought by the same plaintiff. That case is now in preliminary settlement talks. The DOJ also got hit with a new proposed class action on Nov. 22 in the Southern District of Florida claiming that PACER users are being improperly charged for judicial opinions.
The nonprofits’ case was brought under the Little Tucker Act, which waives sovereign immunity “to recover an illegal exaction by government officials when the exaction is based on an asserted statutory power.” Huvelle refused to dismiss the case on procedural grounds last month.
She ordered the plaintiffs to provide a proposed class notice within 30 days. The notice would be sent to class members 90 days following her approval, during which both sides would move forward on discovery in preparation for summary judgment motions on the merits of the case.
The nonprofit plaintiffs are the National Veterans Legal Services Program, the National Consumer Law Center and the Alliance for Justice. Gupta, founding principal of Washington’s Gupta Wessler PLLC, is joined in the case by William Narwold, who manages the appellate group at Motley Rice, and the Institute for Public Representation, a public-interest firm at Georgetown University Law Center.
A spokeswoman for the Justice Department said it would decline to comment on the pending litigation.
Contact Amanda Bronstad at abronstad@alm.com.
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