United States: Adequacy Is Adequate: DC District Court Certifies Pacer Fee Class

Last Updated: February 28 2017
Article by David E. Cannella and Gary M. Pappas

The United States District Court for the District of Columbia certified a class of all individuals and entities who paid fees to obtain court records though the Public Access to Court Electronic Records (PACER) system. The proposed class representatives, three nonprofit legal advocacy organizations, overcame the government's primary challenge to class certification, which was that they were not adequate class representatives.

The National Veterans Legal Services Program, the National Consumer Law Center and the Alliance for Justice, all nonprofit entities that paid fees to obtain court records from PACER, filed suit to recover the allegedly excessive fees charged by the government for PACER access. Plaintiffs claim that the PACER fee schedule violated the E-Government Act of 2002, 28 U.S.C. § 1913 and seek reimbursement of the excess fee pursuant to the Little Tucker Act, 28 U.S.C. § 1346, on behalf of all individuals and entities, excluding class counsel and federal governmental agencies, who paid PACER fees from April 2010 through April 2016. Plaintiffs assert that the PACER fees result in a profit that violates the E-Government Act, inhibits "public understanding of the courts" and thwarts "equal access to justice." For example, although the 2012 cost to the judiciary for providing technology and access to PACER was approximately $41 million, the judiciary collected more than $145 million in PACER fees that year. Plaintiffs seek a refund of the excess fee for themselves and the class members.

The government's primary challenge to class certification was that the named plaintiffs were not adequate representatives of the class because they, as nonprofits, were eligible to apply for a PACER fee exemption and other class members were not. The government argued that plaintiffs' interest in free PACER access diverged from the interests of those class members who were not exempt and could only seek to minimize the cost of PACER access. Plaintiffs countered that they were ineligible for the PACER fee exemption because each organization has annual revenue in excess of at least $3 million and thus they could not represent to a court that they were unable to pay the fees.

The court began its analysis by reciting the two criteria for determining the adequacy of representation: (1) the named representatives must not have antagonistic or conflicting interest with the unnamed members of the class; and (2) the representatives must appear able to vigorously prosecute the interest of the class through qualified counsel. The court first reasoned that the government had greatly exaggerated the relevance of named plaintiffs' nonprofit status. The court explained that the granting of PACER fee exemptions is the exception, not the rule, and while certain district courts are more likely than others to grant exemptions, a court can only grant exemptions for access to its own district's records. Moreover, the court found that none of the named plaintiffs were actually exempt from PACER fees because of their respective multimillion dollar annual budgets and annual revenues.

The court then explained how these named plaintiffs actually made particularly good class representatives. The court reasoned that as nonprofits, plaintiffs existed to advocate for their constituents, including consumers and veterans who may be eligible for exemptions if they are indigent, and other public-interest organizations that may face the same barriers as plaintiffs in obtaining free exemptions. Thus, plaintiffs shared a common interest with absent class members in both reducing the PACER fees and gaining access to exemptions.

Accordingly, the court found that the named plaintiffs satisfied the adequacy requirements and could represent the class. The court proceeded to evaluate plaintiffs' motion for certification under Rule 23(b)(1) and (3) and certified the class under 23(b)(3).

National Veterans Legal Services Program v. United States of America, (D. D.C. Jan. 24, 2017) Case No. 16-745

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