[blindLaw] Bipartisan bill to make PACER free & 508 accessible: Open Courts Act of 2020, HR 8235

Sai sai at fiatfiendum.org
Fri Oct 9 20:48:12 UTC 2020


Contrary to my last email, the judiciary does *not* approve. (Thanks
to an anonymous list member for the correction, and a copy of the 2nd
opposition letter below.)

My apologies for propagating misinformation. Should've known better
than to repeat Rep. Nadler's characterization without checking the
record myself.

So, the judiciary itself is the overt opposition. I hope it can be
overcome. (The rest of my last email is still true, AFAIK.)


The Judicial Conference filed two opposition letters:
1. a letter recycled from opposition to the Electronic Court Records
Reform Act of 2019 (ECRRA) H.R. 1164 / S. 1064

<https://docs.house.gov/meetings/JU/JU00/20200915/111016/HMKP-116-JU00-20200915-SD012.pdf>
(attached)

It's a totally inaccessible rasterized PDF. A bit on the nose for
irony, given that the bill would require PACER to be 508 accessible,
and their letters exclusively blame pro ses for filing stuff that's
inaccessible. I've attached a plain text file with the content.

2. a new letter re this bill (attached; can't find source online)

Notably, they objected to having been characterized as being in favor of it:

"Lastly, we must correct the record regarding the process by which
this bill was developed. Statements were made during the Committee’s
markup of the OCA on Tuesday, September 15, 2020, that “this bill has
been crafted to be responsive to the needs and concerns of the
Judicial Conference,” and “the language in H.R. 8235 was drafted to
reflect [the Judicial Conference’s] input.” The Judicial Conference
has consistently opposed previous iterations of this legislation that
also raised filing fees to compensate for the elimination of PACER
service fees and has repeatedly communicated those concerns to the
Committee. The Judiciary did not provide input on the current draft of
H.R. 8235, nor does OCA reflect the needs and concerns of the
Judiciary or resolve the Conference’s access to justice concerns
previously expressed and repeated herein."


For contrast, here's Nadler's own statement:
<https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=3346>

While at it, here's a retired judges' letter opposing the Judiciary's
opposition:
<https://fixthecourt.com/wp-content/uploads/2020/09/Open-Courts-Act-open-letter-9.22.20.pdf>
(attached)


Read for yourself. Most of it is basically the same between the two
versions. FWIW, here's my summary & commentary:

1. PACER costs ~$165 million/year. This would make that an unfunded mandate.
Also, there are 2.9 million PACER users, with 507 million "requests
for case information" in FY 2018.

2. 77% of active users don't get charged fees. The quarterly threshold
for automatic fee waiver was just bumped from $15 to $30.
* Sai:
a. People still have to submit payment info, register, etc. A paywall
isn't really "*Public Access* to Court Electronic Records", even if
most people don't end up being charged.
b. I've spent more than $30/quarter just getting dockets & documents
in my own cases — let alone if I want to do basic legal research.
c. Doing the *academic* research I want (which is, by necessity of
topic, extremely broad) would cost me millions for what should be
totally free — and prohibit me from sharing my work.
(The supposed 501(c)(3) exemption is hyper limited — it requires a
narrow, time-limited, jurisdiction-limited, pre-defined,
judge-approved research topic. On top of that, you ave to agree to not
re-share any documents obtained via PACER waiver. IMHO this is
blatantly unconstitutional — the documents are public records; this is
core 1st Am. speech; it's prior restraint; there's zero copyright;
etc. Anyone interested in litigating this restriction, please get in
touch.)

3. 87% of PACER revenue comes from <3% of active accounts, who are
mainly big for-profits.
* Sai: Great. So how about you only require money (or registration)
from them? It's not hard to write a EULA that requires big corps to
pay. Those users aren't going to just ignore such a requirement if
it's legal; it doesn't have to be enforced on the front end. Lots of
software uses the "free for everyone except the rich" honor system /
post-hoc-lawsuit pricing model.

4. Filing fees shouldn't be "increased to generate revenue for
Judiciary operations", especially since some "may not be proportionate
users of PACER or may not even use PACER at all".
* Sai: I agree with the premise. The implication is false, however.
Most people who don't use PACER at all (or as much) are either IFP or
pro se. The current bill prohibits charging extra fees to either
group. Bill §§ 2(f)(2) & 3(e)(2), revised 28 USC 1913 note (a)(1)(B).

5. To pay for PACER by extra filing fees, fees would have to go up by
~$750 per case — to ~$1,100 district, $2,000 ch. 11 bankruptcy, $750
ch. 7 bankruptcy. This would be a deterrent to small litigants.
* Sai: See the next item. The conclusion does flow from the premise,
and would be bad — but that premise is self-inflicted. IMHO the
current filing fees (~$400 district, $500 appellate) are already way
off in *both* directions. For most people, it's already so high that
it's a major deterrent or total bar.  For big corps, it's literally a
rounding error — a couple hours' worth of attorney fees.

6. It'd be "unworkable" to charge based on cause of action, since you
can't tell how complex a given case will be, and filing fees are paid
upfront.
* Sai: This is disingenuous at best.
a. Good enough to be workable ≠ perfect. It's true that the cause of
action doesn't perfectly predict complexity, but a lot are pretty
strong indicators (e.g. broadly speaking, copyright & patent cases can
pay extra, civil rights cases can't).
b. They could assign & charge filing fees at the end of the case, like
is already done with e.g. assignment of costs for appeals, fee & cost
awards, etc. The only reason to make someone pay upfront is as a
bond/surety in case they can't (or won't) pay later. There are
separate provisions which already allow courts to require upfront
deposits like this, if justified.
As an aside, this part actually made me laugh; "Only after discovery
and a full understanding of the facts and legal theories can the
complexity of a case be assessed – not at the time of filing."
True as far as it goes, but coming from this source, rather
disingenuous. It's a bitter catch-22 with the legal standards for
getting an appointed lawyer. Somehow poor people end up getting
screwed under every scenario: whether it's complex or not, and whether
complexity is known upfront or only after a lot of development.

7. Centralizing CM/ECF, and making it text-searchable &
machine-readable, would be hard. Pro ses file non-accessible
documents. They're used to having it decentralized. It'd cost a lot
(more than they can even estimate), and it'd be totally impossible to
do within 2 years.
* Sai:
a. Yep, it'll cost; this should've been done right decades ago (when
the ADA & Rehab Act were passed). Saying you won't do anything now to
make it accessible just because some pro ses file on paper is
bullshit.
b. It's their own fault. AOUSC recently passed a rule *requiring*
attorneys to file electronically, while *prohibiting* pro ses from
doing so unless they first get permission. This means, e.g., that it's
totally prohibited for a pro se to file the case opening documents
electronically (because you can't request CM/ECF permission in a case
that doesn't exist yet). You also can't file electronically if the
court just refuses to rule on the motio, which is the actual policy of
some courts (e.g. W.D. Wash.) for anyone with a pending IFP motion.
When I made a proposal to change make pro se electronic filing
*permitted but not required*, they rejected it on the basis of totally
unsubstantiated (and IMHO unconstitutional) fearmongering. My argument
included issues of machine-readability, accessibility, etc. Here's the
full record of that if you're interested:
<https://drive.google.com/drive/folders/1-LjdWs74TReLkX4kwu6HE_c9B1woSABQ>
c. "Not possible"? As a software developer, I don't believe it. And
it's not going to get any more done while stalling.

8. Charging bankruptcy creditors for filing a proof of claim/interest
is unfair, because they're not opting in to litigation, just trying to
get paid back on debts.
* Sai: don't know enough about bankruptcy procedure (& actual
practice) to assess this.

9. Making PACER free would be a security risk, and it might cause a
lot of server load if people try to scrape it in bulk.
* Sai: As someone with both computer security & large-scale scraping
experience: bullshit.
a. Throttling does not require registration. Heavy users can still
register to get an API key for bulk access. This is how basically all
such services work.
b. Downloading all public records is a *good* thing. Don't act like
you have some kind of *right* to charge for access to it.
c. Third party access would result in the records being available
elsewhere, thereby making the load on PACER lighter in the long run
(after the initial scraping).
d. There's zero substantiation for (or detail of) supposed
"significant security concerns", and in my expert opinion, there in
fact are none. They might well create some vulnerability through sheer
incompetence, but that's not the fault of the spec.
Not saying it's trivial (it isn't), buit there's proof by
counterexample: archive.org serves way more data, with no registration
requirement (it's optional, and even that's just an email), to anyone
in the world who wants it, 100% free.

10. It would cause privacy issues by making GSA responsible for redactions.
* Sai: WTF? There's nothing in the bill that "transfers the
responsibility for the redaction of records from the parties to the AO
and the [GSA]" AFAICT. This is FRCvP 5.2 / FRCrP 49.1, and you have to
re-agree to redact literally every single time you sign in to CM/ECF —
it's an extra checkbox / popup.

11. They're already improving search functionality.
* Sai: True, but inapposite and woefully insufficient. PCL doesn't
even allow full field search. It's a far cry from full text search,
let alone the capability of e.g. Westlaw/Lexis.

12. They'd rather it be funded by appropriations, not filing fees.
* Sai: On this, I fully agree. But next best is to make rich &
burdensome litigants pay for it, which is what this bill says to do.


Note that they lost a class action lawsuit for misusing PACER funds
and overcharging, and just lost again on appeal. Here're the cites if
you want to read:

National Veterans Legal Services Program v. United States
No. 16-745, 291 F.Supp.3d 123 (D. D.C. 2018)
<https://scholar.google.com/scholar_case?case=1699373242599371679>
Nos. 2019-1081, 2019-1083 (Fed. Cir. Aug. 6, 2020)
<https://scholar.google.com/scholar_case?case=5517955123849863437>
"These interlocutory cross-appeals challenge the district court's
interpretation of a statutory note to 28 U.S.C. § 1913 permitting the
federal judiciary to charge "reasonable fees" for "access to
information available through automatic data processing equipment."
Plaintiffs contend that under this provision unlawfully excessive fees
have been charged for accessing federal court records through the
Public Access to Court Electronic Records (PACER) system and that the
district court identifies too little unlawful excess. The government
argues that the district court identifies too much (and also that the
district court lacked jurisdiction). We conclude that the district
court got it just right. We therefore affirm and remand for further
proceedings."


Sincerely,
Sai
President, Fiat Fiendum, Inc., a 501(c)(3)

PS Non-gendered pronouns please. I'm a US citizen.

On Fri, Oct 9, 2020 at 4:33 PM Sai <sai at fiatfiendum.org> wrote:
>
> Could y'all please help push this to pass before the session ends?
>
> It'd be a shame if it died as a casualty of all the post-RBG /
> upcoming-election / COVID-19 craziness.
>
> Convincing Congress, organizing awareness / action, etc. is very much
> not in my skill set — so if it's yours, please speak up & take the
> lead.
>
>
> # Hashtag
>
> #OpenCourts (based on the bill's apt name)
>
>
> # Why you should act on the #OpenCourts Act
>
> I know, it's not as momentous as the headline news these days. We've
> had a crazy year.
>
> However: it's important, well written, necessary for transparency,
> bipartisan, judiciary-approved, uncontroversial, years overdue, &
> publicly unopposed* — and will have very extensive beneficial knock-on
> effects**.
>
> It should be a high priority for everyone working on transparency or
> civil rights in US federal government, especially given the great
> benefit:effort ratio.
>
> It should (AFAICT) be very easy to pass. It just needs attention from Congress.
>
>
> * Possible opponents:
> 1. DOJ (their budget subsidizes it)
> 2. Westlaw, LexisNexis, etc (undercuts their core business of selling
> access to public judicial records).
>
> It seems plausible to me that they're quietly lobbying against it.
> I've not actually heard of any such opposition; please LMK if you
> have.
>
> ** Feel free to talk to me off-list if you'd like details. This ties
> in closely to long term research I'm currently doing on millions of
> court records. Literally dozens of important issues this'll shed light
> on, all are either first release or totally paywalled. Research
> partners wanted.
>
>
> # Timeline
>
> HR8235 was approved by the House Judiciary Committee on Sept. 15 — the
> day after it was introduced & referred.
>
> There's been no action since.
>
> <https://www.congress.gov/bill/116th-congress/house-bill/8235> doesn't
> even show an event for it coming out of committee (only markup),
> though that's what they voted unanimously. Approved motion to move to
> House floor w/ recommendation to pass is at
> <https://youtube.com/watch?t=30804&v=PjPVspAQzwM>, at the very end.
>
> I have no idea why. (If you're savvier than me & can interpret this,
> please LMK off-list.)
>
>
> # Twitter & relevant congress members
>
> My tweet is @ <https://twitter.com/saizai/status/1314568325066883072>
> if you'd like to copy or RT:
> > @RepHankJohnson @RepDougCollins @HouseJudiciary @RepJerryNadler @Jim_Jordan @SenSasse @SenBlumenthal @LindseyGrahamSC @SenFeinstein @SpeakerPelosi @SenateMajLdr Will you ensure the #OpenCourts Act (HR 8235) passes this year? It's bipartisan & long overdue. https://www.congress.gov/bill/116th-congress/house-bill/8235
>
>
> I chose that @ mention list based on relevance & seniority. But again,
> this isn't my skill area — so for your convenience, here are all the
> relevant Congress members, AFAICT. (This should be more or less
> ordered by seniority, except within the 2 members lists.)
>
>
> Full House & Senate leadership
> @SpeakerPelosi @ChuckGrassley @LeaderHoyer @SenateMajLdr @GOPLeader @SenSchumer
>
>
> House Judiciary Committee
> leadership
> @HouseJudiciary @RepJerryNadler @Jim_Jordan @RepMGS
>
> courts subcommittee leadership
> @RepHankJohnson @RepMarthaRoby @RepLouCorrea
>
> sponsors
> @RepHankJohnson @RepDougCollins
> * note duplicate: Johnson is both subcommittee chair & sponsor.
>
> courts subcommittee members
> @RepGregStanton @RepJeffries @RepTedLieu @RepTedDeutch @RepKarenBass
> @RepSwalwell @RepCohen @RepZoeLofgren @RepSteveChabot @RepEscobar
> @RepBenCline @GReschenthaler @RepAndyBiggs @RepMikeJohnson
> @RepSteveChabot @RepMattGaetz
> * note: mind that there are 2 "Rep. Johnson" on the subcommittee — Hank & Mike.
>
>
> Senate Judiciary Committee
> leadership
> @LindseyGrahamSC @SenFeinstein
>
> courts subcommittee leadership
> @SenSasse @SenBlumenthal
>
> courts subcommittee members
> @SenJohnKennedy @ChuckGrassley @SenJoniErnst @SenThomTillis @MikeCrapo
> @SenatorLeahy @SenAmyKlobuchar @SenWhitehouse @MazieHirono
> * note duplicate: Grassley is also senate president pro tem.
>
>
> Thanks!
>
> Sincerely,
> Sai
> President, Fiat Fiendum, Inc., a 501(c)(3)
>
> PS Non-gendered pronouns please. I'm a US citizen.
>
> Sent from my mobile phone; please excuse the concision and autocorrect errors.
>
> On Sun, Sep 20, 2020, 17:02 Sai <sai at fiatfiendum.org> wrote:
> >
> > I've read the text in full, and I think everyone should take action to support this.
> >
> > Anyone doing public interest related litigation, and literally all legal research related to US Federal cases, should be substantially benefitted.
> >
> > Full details below. In short, enacting the bill would mean that PACER (where all US federal court records are kept), within 2-3 years, has to
> > 1. add full text search (totally absent now except in third party products),
> > 2. be 508 compliant (major plus for blind people & computer based bulk data research),
> > 3. be centralized (right now it's run separately by each court), &
> > 4. be 100% free to everyone;
> >
> > 5. in the meantime, have a minimum billing threshold of $25k/quarter in the meantime;
> >
> > and
> > 6. limits filing fees to be proportional to dollar amounts at issue, with total exemption for pro se & poor (IFP) litigants — and double billing DOJ to help fund it.
> >
> >
> > * I have one reservation: it totally exempts prisoners from benefiting. That's in line with the Prisoner Litigation Reform Act, which imposed a lot of restrictions on prisoner litigants. I don't think this is fair or just… but it's the status quo, not a worsening, and probably open to legal challenge on that basis anyway.
> >
> >
> > Feel free to forward this etc however you see fit. I'd appreciate a CC & an email with link to any resulting posts, action, etc.
> >
> >
> > # Details
> >
> >
> > Open Courts Act of 2020, HR 8235
> >
> > <https://www.congress.gov/bill/116th-congress/house-bill/8235>
> >
> > All most relevant sections are excerpted & summarized below (by me).
> >
> > Markup: <https://youtube.com/watch?t=30804&v=PjPVspAQzwM> — starts at 8:33:26 (near the very end); most of the video is totally unrelated
> >
> >
> > Cosponsors:
> >
> > Rep. Doug Collins [R-GA-9]
> > * (202) 225-1605
> > * House Judiciary Committee Democrat #5
> > ** Courts, IP, & Internet subcommittee #1 (chair)
> > Rep. Hank Johnson, Jr. [D-GA-4]
> > * (202) 225-9893
> > * Judiciary Republican #2
> > ** subcommittee #3
> >
> > Judiciary committee: (202) 225-3951
> > Courts subcommittee: (202) 225-5741
> >
> >
> > # Bill text excerpt & summary
> >
> > SEC. 2. MODERNIZATION OF ELECTRONIC COURT RECORDS SYSTEMS.
> >     (a) Consolidation.
> > … [AOUSC & GSA] shall establish, maintain, and operate … one system for all public court records.
> > …
> >             (3 & 4) [ Must include info from, and comply with, 2002 E-Government Act § 205 ]
> >
> > …
> >     (c) Data Standards.--
> >             …
> >             (2) Requirements.
> > …
> >                     (B) incorporate a widely accepted, nonproprietary, full text searchable, platform-independent computer-readable format;
> > …
> >     (e) [ deadline: 2 years after enactment, plus one year it GSA asks for an extension ]
> >
> >
> >     (f) Funds for Establishment, Operation, and Maintenance of Modernized Court Records System.--
> >             (1) Short term access fees to fund establishment of modernized court records system.--
> >                     (A) [ amend 28 USC 1913 note to say AOUSC can ONLY charge fees over $25,000 per quarter ]
> >                     (B) [ any exceeds can be used per 28 USC 612(a) ]
> >                     (C) [ effective immediately on enactment ]
> >
> >             (2) Filing fees to fund operation and maintenance of modernized court records system.
> >                     (A) [ re-amend the same USC note to delete the above, together with the entire previous paragraphs a & b, and say
> >
> > (a) AOUSC can charge fees, per 28 USC §§ 1913, 1914, 1926, 1930, & 1932, only as necessary to maintain the new PACER:
> > (1)(A) based on amount of use
> > (1)(B) based on amount of damages claim & case complexity
> > (1)(C) counterclaim fee allowed
> > (1)(D) not at all for pro se & IFP litigants
> > (2) proof of claim/interest for FRBP 3002 & 3003 based on amount involved
> >
> > (b) use limited to Judiciary Information Technology Fund, 28 USC 612(c)(1)(A), for new PACER's costs
> > (c) fee schedule must be reviewed every 3 years
> > (d) exceeds can still be used per 28 USC 612(a)
> > ]
> >
> >                     (B) [ effective at the same time as the new PACER above, ie 2 or 3 years after enactment ]
> >
> >
> > SEC. 3. PUBLIC ACCESS TO ELECTRONIC COURT RECORDS SYSTEM REQUIREMENT.
> >
> >     (a) [ everything on PACER is free, starting on the same 2/3 year start date ]
> >
> >     (b) [ AOUSC can add a 5 day max delay before public access, for some categories of records, subject to N&C and automatic 3 year expiration unless renewed per above, "based on a determination of a specific and substantial interest in restricting the public right of access to court records" ]
> >
> >     (e) Funding for Public Access to Modernized Electronic Court Records System.
> > [ amend same USC note to add that funds for the 100% free PACER access will come from:
> >             (1) billing DOJ equal to their PACER access fees, with inflation
> >             (2) if that's not enough, filling fees, under the same rules / limits as the post-launch version of fees above ]
> >
> >
> > SEC. 4. RULE OF CONSTRUCTION.
> >
> >     Nothing in this Act, or the amendments made by this Act, shall be construed to--
> >             (1) affect the filing fees or other filing procedures for prisoners; or
> >             (2) abrogate, limit, or modify the requirements [ in 28 USC 1915, the IFP statute ]
> >
> >
> > SEC. 5. DIGITAL ACCESSIBILITY STANDARDS.
> >
> > [ all of this must be Rehab Act § 508 accessible ]
> >
> > Sincerely,
> > Sai
> > President, Fiat Fiendum, Inc., a 501(c)(3)
> >
> > PS Non-gendered pronouns please. I'm a US citizen.
> >
> > Sent from my mobile phone; please excuse the concision and autocorrect errors.
-------------- next part --------------
JUDICIAL CONFERENCE OF THE UNITED STATES
JAMES C. DUFF, Secretary
December 2, 2019

TO:
Honorable Nita Lowey, Chairwoman
Committee on Appropriations
United States House of Representatives
Washington, DC 20515

Honorable Kay Granger
Ranking Member
Committee on Appropriations
United States House of Representatives
Washington, DC 20515

Honorable Mike Quigley
Chairman
Subcommittee on Financial Services and General Government
Committee on Appropriations
United States House of Representatives
Washington, DC 20515

Honorable Tom Graves
Ranking Member
Subcommittee on Financial Services and General Government
Committee on Appropriations
United States House of Representatives
Washington, DC 20515


Dear Chairwoman Lowey, Chairman Quigley, and Representatives Granger and Graves:

I write as Secretary of the Judicial Conference of the United States to express our opposition to H.R. 1164 and S. 2064, the “Electronic Court Records Reform Act of 2019,” (ECRRA). After studying the bills, the Judicial Conference opposes H.R. 1164 and S. 2064 for the reasons discussed below. Judicial Conference opposition to this legislation has also been communicated to the House and Senate Judiciary Committees.

# The Judicial Conference Opposes ECRRA Legislation

The Judicial Conference opposes ECRRA (H.R. 1164 and 8. 2064) and any other similar legislation that would eliminate the Judiciary’s statutory authorization to charge user fees for access to the Public Access to Court Electronic Records (PACER) service without providing a workable alternative funding mechanism te finance the programs funded by current PACER fees and for any related new requirements in the legislation. To do otherwise would impose a crippling unfunded mandate on the Judiciary of approximately $165 million.

Further, the Judicial Conference opposes legislation, including provisions in the Senate ECRRA bill (S. 2064), that would authorize the Judiciary to increase filing fees to compensate for the elimination of PACER user fees, or require the Judiciary to structure such filing fees commensurate with the burden imposed on the court by the party (with a lesser fee charged to individual filers).

I assure you that the Federal Judiciary shares Congress’s commitment to openness and accessibility to the courts and ensuring that the work of the courts is as transparent as possible. And, while H.R. 1164 and S. 2064 have the ostensible purpose of seeking to make the Judiciary’s PACER service “free to the public,” the proposed legislation could impose substantial new costs on taxpayers or litigants and establish technical requirements that are unlikely to be achievable.

# User-Based PACER Fees Have Worked Well

In 1991, Congress authorized the Judicial Conference to prescribe reasonable fees for access to court electronic records, The small percentage of PACER users that pay any fee are charged commensurate with the amount of data they access via PACER from the Judiciary’s case management and electronic case files (CM/ECF) database. This user-based funding arrangement has worked well and has provided an unprecedented level of access to the federal courts, while providing a source of revenue to allow the Judiciary to maintain PACER, as well as to develop and introduce new technologies to expand public access. There are approximately 2.9 million registered PACER users and in FY 2018 alone, PACER processed more than 507 million requests for case information.

Most users already have free access to PACER through fee waivers and exemptions, The Judicial Conference has authorized exemptions for many classes of users, including indigents, bankruptcy case trustees, pro bono attorneys, and Section 501(c)(3) not-for-profit organizations. In addition, the Judicial Conference recently approved an increase to the quarterly waiver from $15.00 to $30.00, effective January 1, 2020, which will result in no fees being charged to approximately 77 percent of active users. Of the remaining users who do incur fees, most are “power users,” generally large commercial entities, many of whom recoup their PACER costs by repackaging and selling PACER information for a profit. Their utilization of PACER far exceeds that of the typical user. _Approximately 87 percent of total PACER revenue comes from less than 3 percent of the active accounts._

The Judiciary’s FY 2020 interim financial plan includes approximately $165 million in projected Electronic Public Access (EPA) requirements. PACER revenue is used to pay for a variety of expenses related to maintaining electronic public access, including the PACER service, the PACER Service Center, and the development, operations, and maintenance of the Judiciary’s CM/ECF system. We recognize that some have questioned whether PACER fees should be spent on certain programs to enhance electronic public access to court information. While these matters are still in litigation [1], it is not disputed that the vast majority of PACER revenues are spent exclusively on PACER and CM/ECF expenses, and any serious disruption to PACER funding will affect those critical systems the most.

[1] In National Veterans Legal Services Program et al, v. U.S., the U.S. District Court for the District of Columbia upheld the Judiciary’s use of PACER revenue to pay for the vast majority of expenditures in the Judiciary’s Electronic Public Access program but ruled that web-based juror services, crime victims notification, and some courtroom technology activities are impermissible expenditures. Although the Judiciary has appealed the District Court’s ruling, as an interim measure the three programs are being funded with appropriated funds pending the outcome of the appeal in the Federal Circuit.

Eliminating all PACER fees without providing a workable alternative funding mechanism would leave the Judiciary no way to pay for these critical, ongoing activities. Asa result, either public access programs would have to be scaled back due to insufficient resources, or the Judiciary would have to absorb the costs of its EPA program within the remainder of its budget, which would come largely at the expense of Judiciary staff, including court employees and probation and pretrial services officers.

# S. 2064’s Proposed Changes to the PACER Fee Structure Would Be Unfair to Litigants

S. 2064, which authorizes the Judiciary to impose higher filing fees to cover the cost of maintaining the PACER service, raises additional concerns. The Judicial Conference has long held the position that filing fees should not be increased to generate revenue for Judiciary operations. Funding PACER through filing fee increases would drastically shift the cost burden to litigants, who may not be proportionate users of PACER or may not even use PACER at all, many of whom may already struggle with court costs.

The increase in filing fees that would be necessary to cover the cost of maintaining PACER would be substantial. A preliminary cost estimate shows that filing fees would have to be increased by approximately $750 per case to produce revenue equal to the Judiciary’s average annual collections under the current fee structure. This would be a dramatic increase for litigants. It could mean that the current district court civil filing fee of $350 would increase to $1,100. Filing fees in reorganization bankruptcy cases (i.c., cases filed under Chapter 11, which are already over $1,000), could increase to nearly $2,000. The Judicial Conference opposes this approach because such an added financial burden could deter litigants from pursuing their claims in federal court.

Further, it is unclear whether the filing fee scheme proposed in S. 2064 is intended to _replace_ the statutory filing fees set by Congress and miscellaneous fees set by the Judicial Conference, or is intended _to authorize new or increased fees_ that will be used for PACER. This distinction has significant implications for the Judiciary. If _all_ filing fee revenue — statutory and miscellaneous — is now directed to be deposited into the Judiciary Information Technology Fund to maintain PACER, it would divert millions of dollars in annual filing fee revenue the Judiciary currently uses to support court operations generally, and necessitate the Judiciary to seek additional appropriations.

# Structured Filing Fees Would Be Problematic

The Judicial Conference also opposes provisions in S. 2064 requiring the Judiciary to structure filing fees commensurate with the burden imposed on the court by the party (with a lesser fee charged to individual filers) as such a variable fee structure would be administratively unworkable. Filing fees are paid at the outset of litigation, at which point it is unclear how much of a burden will be imposed on the court by a party. Irrespective of the cause of action, some cases are relatively straightforward or may be quickly resolved by the parties, requiring minimal filings and court involvement, while other seemingly simple cases turn out to be complicated and time-consuming to resolve. Trying to determine the burden on the court by the type of case filed, or some other standardized method, would be speculative, burdensome to court staff, and would likely prove to be inaccurate. ‘

# Policy and Technological Concerns

The Judicial Conference has serious reservations regarding proposed requirements in H.R. 1164 and S. 2064 for a new consolidated case management system and other technical specifications. Both bills would require the Judiciary to consolidate its CM/ECF system from the current decentralized system where appellate, district, and bankruptcy courts receive and maintain case filings on individual databases, to a national system that receives/maintains ali files centrally. Both bills would also require all documents made available to the public to be text-searchable and machine-readable, which could prove infeasible because of the wide variety of document types litigants, particularly pro se litigants, may file in cases. Provisions in the bills would also give state courts the option to participate in the Federal Judiciary’s newly designed CM/ECE system, raising additional concerns about how such a consolidated system could accommodate potentially differing technical requirements from at least 50 other entities.

# Resource Concerns

Overhauling CM/ECF would likely take an enormous amount of time and money. It is very difficult to project how much it would cost to replace the Judiciary’s current system as directed by the bill, but one thing is certain: doing so within two years is not possible. Examples from the Federal Bureau of Investigation and the State of California to overhaul case management systems are indicative of years of effort and hundreds of millions of dollars spent.

Notably, neither bill provides a funding mechanism for most of the technical changes and upgrades discussed above. The filing fee structure established in S. 2064 makes those fees available only for the maintenance of the PACER service, to the exclusion of the development and maintenance of the new, consolidated case management system, capacity upgrades necessary for the system to withstand unlimited free use, and CM/ECF alterations to enable text searching and machine readability. As noted earlier in this letter, the absence of a dedicated funding source for these activities ensures that either the Judiciary will be unable to fund them in full or will be forced to divert necessary resources from its appropriations that were intended for the operations of the courts and probation and pretrial services offices.

# Conclusion

Based on the concerns discussed above, Judicial Conference opposes the proposed legislation and urges Congress not to proceed with consideration of H.R. 1164 or 8. 2064, the “Electronic Court Records Reform Act of 2019” or similar legislation.

Sincerely,
[signature]
James C. Duff
Secretary
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