Free PACER Would Cost $2B And Other Completely Made Up Garbage The Federal Judiciary Is Peddling

The judiciary is freaking out and trying to snuff out this threat to its stash.

Desperation is setting in over at the federal judiciary as leaked documents show the Administrative Office is trying to convince federal judges to make outrageously false claims to lawmakers in a last-ditch effort to save their PACER cash cow.

Over the last two years, folks have started to wake up to the fact that the PACER system that has nickel and — quite literally — dimed us all for decades is massive ripoff. A class action on behalf of pro se and non-profit litigants consistently disadvantaged by the high sticker price filing system prompted Judge Raymond C. Clevenger III to bark at the government attorney defending the 10 cent charge, “Do you have a lot of trouble answering questions generally in life or just when you come in front of the Court?” Congress even woke up from years of rubber stamping judiciary budgets to ask about PACER fees, prompting Judge Audrey Fleissig to make the implausible claim that the Web 1.0 system costs $100M/year to operate.

As everyone started digging into the PACER boondoggle it looked as though the judiciary used the revenue as a slush fund for projects beyond its authority to charge the fee to maintain the filing system. The Federal Circuit agreed with the plaintiffs but passed the issue to the legislature for a solution.

And, miraculously, Congress has one! The Open Courts Act is a bipartisan proposal to make PACER free so the public can access the documents its court system generates every day.

So, obviously, the judiciary is freaking out and trying to snuff out this threat to its stash.

The Administrative Office has sent out “talking points” to judges — obtained by Fix the Court — to get them to act as foot soldiers in the bid to save the system. I wonder if they sent this to Judge Clevenger, because he might have some choice words right about now.

Thank you for your interest and support of the federal judiciary. I am bringing to your attention our concerns that the [House/Senate] may give floor consideration to H.R. 8235, the Open Courts Act (“OCA”) during the lame duck session. The Judiciary adamantly opposes this bill.

• This bill would force the Judiciary to create a completely unnecessary new electronic filing and public access document system, estimated to cost at least $2 billion.

• To pay for it, litigants in civil and bankruptcy cases will have to pay double, triple, or even more in additional fees — just to file their cases in court.

• These new costs would break the financial backs of many litigants, essentially closing the courthouse doors and denying them access to justice.

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There are a lot of frightening claims in there, but all of them flow from the claim that it would cost $2 billion to make a free, working database. A letter sent to the Judicial Conference chairs from leading technologists spills truth juice all over that wacky claim:

We are confident that under no circumstance would building and implementing the new system described in the OCA cost $2 billion or even several hundred million dollars. We estimate the cost to be in the $10–$20 million range over 36 months to build and then $3–$5 million annually to continue to develop and maintain.

Yes, a database hosting static PDFs does not cost $2 billion. Indeed, the entire Internet wouldn’t be feasible if costs ran that high. Wikipedia does its magic holding out a hat for $1 donations but a workable PACER would cost as much as a couple F-35s? Please.

To be charitable, as the experts envision a few million in annual maintenance, the system actually would cost $2 billion over a long enough timeframe. But that time frame is 400 years.

Asking federal judges to lobby Congress to save a judiciary slush fund is ethically dubious. As Fix the Court notes:

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Judiciary policy states that judges should only lobby on issues they are “uniquely qualified to address” (p. 155) that would not compromise their impartiality (cf., Canons 3 and 4A[2]). But judges are not experts on modernizing government IT systems, and they are hardly impartial about preserving what’s widely considered to be the judiciary’s own slush fund, as PACER brings in more than $140 million annually.

On the other hand, there are now a bunch of federal judges who aren’t uniquely qualified to address much of anything and they’re out here explaining science to virologists and religion to the Pope so maybe this is all par for the course.

Earlier: PACER Is Getting Dragged And I’m Here For It
‘Do You Have A Lot Of Trouble Answering Questions Generally In Life Or Just When You Come In Front Of The Court?’
Appeals Court Confirms What You Already Knew: PACER Is A Rip-Off
Why The Federal Circuit’s PACER Ruling Is A Mixed Bag


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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