Challenge to PACER Fees Survives Motion To Dismiss

pacerlogo-originalA lawsuit claiming that the federal courts’ PACER system routinely overcharges for document downloads has survived the government’s motion to dismiss.

In a lawsuit in the U.S. Court of Federal Claims, Bryndon Fisher of Seattle claims that the formula used by PACER to calculate per-page download charges is faulty and that it resulted in PACER overcharging him $37 over two years. His putative class action alleges others were overcharged as well.

PACER uses the formula to calculate charges for HTML documents, such as docket reports, case reports and search results, as opposed to PDF documents. The formula calculates page length based on the number of bytes extracted, using the formula 4,320 bytes equals one billable page.

But Fisher claims that an investigation of these fees by computer scientists found that “systemic error” in PACER’s billing system causes PACER to count the bytes in the case caption five times if the caption is more than 850 characters long.

(A separate class action brought by the National Veterans Legal Services Program and others is challenging PACER fees as excessive in violation of the E-Government Act of 2002. The government has also filed a motion to dismiss in that case.)

The government filed a motion to dismiss Fisher’s case, asserting that the court lacked subject matter jurisdiction or, alternatively, that the complaint failed to state a claim upon which relief could be granted.

The government argued that a clause in the PACER user agreement that says users must submit billing complaints to the PACER Service Center creates a condition precedent that Fisher failed to follow.

But Judge Thomas C. Wheeler did not buy that argument, ruling that no condition in the user agreement prevents Fisher’s lawsuit.

The government also argued that Fisher had no grounds to bring an “illegal exaction” claim because his claim is based on the policies and procedures of the Administrative Office of the U.S. Courts.

Again, Judge Wheeler disagreed. “Fisher has sufficiently alleged that the Government illegally overcharged him contrary to PACER’s governing statutes and policies, and his complaint states a claim for illegal exaction.”

The full text of the ruling on the motion to dismiss is below.