Nonprofits, U.S. Reach Tentative Agreement in PACER Fee Suit

Three nonprofit groups reached a tentative agreement with the U.S. government to resolve a lawsuit over user fees for the federal electronic court records system known as PACER.

The parties notified the U.S. District Court for the District of Columbia this week that they agreed on proposed terms to resolve the suit, but did not disclose terms. The parties said they would need time for the Justice Department to approve the deal. They proposed a status report on Jan. 20, 2022.

The National Veterans Legal Services Program, National Consumer Law Center, and Alliance for Justice initially sued in 2016 alleging the judiciary used fees that were collected from PACER improperly. In 2020, the U.S. Court of Appeals for the Federal Circuit upheld a district ruling that found the judiciary had misused PACER fees, and remanded the case.

In Congress, a bipartisan bill reintroduced in both chambers, the Open Courts Act of 2021 (H.R. 5844; S. 2614), would make PACER free. That bill passed in the House last year, but the Senate took no action.

There are more than 3.4 million PACER accounts of which 20% are active in a given year, the judiciary said in a February funding request to Congress.

In 2020, the judiciary raised its user fee waiver for PACER from $15 to $30 per quarter, which meant no fee would be collected for access to court records until the user accrued more than $30 worth of charges. The judiciary said it expected revenue from PACER fees to be $142 million in both fiscal years 2021 and 2022.

Tyler Mills, a team leader in Bloomberg Law’s Litigation Content group, serves on an advisory panel that provides advice and feedback to the Administrative Office of the U.S. Courts on electronic public access services provided by the federal judiciary, including PACER. Bloomberg Law’s Litigation Content group is separate from the news division.

The case is Nat’l Veterans Legal Servs. Program v. United States, D.D.C., No. 1:16-cv-00745, joint status report 11/15/21.