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The Judiciary Branch of the Federal government will pay $125 million dollars to stop a class action lawsuit filed against it by several nonprofit groups representing users of the Public Access to Electronic Court Records system (PACER), alleging users were charged unnecessary fees to access the public system. The settlement agreement was confirmed by the Plaintiffs on Tuesday, in D.C. federal court.

To gain the court’s formal approval of the agreement, the class members advised the court that the deal would give users "100 cents on the dollar" and would pay users at least $350 in PACER fees that were paid from April 2010 to May 2018. Users that paid more than $350 will receive a pro-rated share of the remaining funds.

Not only has the Judiciary Branch agreed to the monetary relief, but it has also agreed to do away with PACER fees for 75% of its users moving forward. This case has also garnered the attention of Congress to take action in eliminating the fees altogether, plaintiffs said on Tuesday in their effort to have the agreement confirmed by the court.

This settlement agreement comes after a year of litigation and contentious disputes fought in district and appellate courts. Both courts have found the arguments on each side, to have been excessive.

In 2016, three nonprofit groups, the National Consumer Law Center and Alliance for Justice, Alliance for Justice, and the National Veterans Legal Services Program, filed a class action lawsuit in D.C. federal court, alleging PACER was charging excessive fees for the public’s use of the PACER database, and that under the E-Government Act of 2002, these charges exceeded the amount permitted by law.

This case is filed as National Veterans Legal Services Program et al. v. the U.S., case number 1:16-CV-00745, lodged in the U.S. District Court for the District of Columbia.

The class members are represented by attorneys Jonathan E. Taylor and Deepak Gupta of Gupta Wessler PLLC, William H. Narwold, Charlotte E. Loper, and Meghan S.B. Oliver of Motley Rice LLC.

The government is represented by attorneys Jeremy S. Simon, Robert Aaron Caplen, and William Mark Nebeker of the U.S. Attorney's Office for the District of Columbia and Brian J. Field of Schaerr Jaffe LLP.

The lawsuit alleged that the U.S. government’s actions were tantamount to a violation of law in its demand for these excessive fees. The complaint argued that the fees collected went beyond what was needed to cover the cost to maintain the PACER database and platform and to provide the public with access to records.

The complaint also argued that under the Little Tucker Act, all PACER users should receive a refund for any excessive PACER fees charged to the public. The court eventually granted class certification to all entities and individuals who paid PACER fees from 2010 to 2016, a class that could include hundreds of thousands of users.

In their response, the government claimed they were permitted to charge fees to the extent needed for any project related to providing the public access to documents and information electronically.

However, in 2018 U.S. District Judge Ellen S. Huvelle, made a finding on the issue of liability. Judge Huvelle found that the arguments from both sides were unpersuasive, and ruled that the E-Government Act put limits on the implementation of PACER fees, but found that the limits of the Act did not surpass the level that was suggested by the plaintiffs in their complaint.

Although Judge Huvelle found that the law permitted the judiciary the authority to utilize PACER fees for costs related to the maintenance and the Case Management/Electronic Case Files and Electronic Bankruptcy Noticing systems. Conversely, the Judge found that the government overreached in its fee-setting structure and said that the fees in dispute (approximately $200 million) were applied to projects that did not enhance public access to court records.

The ruling was appealed. In its findings, the U.S. Court of Appeals for the Federal Circuit court concurred with District Court Judge Huvelle, stating in its ruling that the district court’s order "got it just right." The appellate court remanded the case back to the district court for further proceedings. On remand, U.S. District Judge Paul Friedman was assigned to the case.

In August 2020, the federal circuit court said in its ruling "We do not accept either party's reading” “Instead, we agree with the district court's interpretation that [the law] limits PACER fees to the amount needed to cover expenses incurred in services providing public access to federal court electronic docketing information."

According to court records, attorneys for both sides participated in mediation in 2021, but it was not until June 2021, that it was reported they were discussing a possible settlement agreement. In November 2021, the parties publicly announced that they had come to an agreement “in principle” but did not disclose any specific details.

This case has captured the attention and support of media outlets, and Congress, including retired Sen. Joseph Lieberman, who while serving in Congress, sponsored the E-Government Act, and in 2017 filed an amici brief in support of PACER users.

Making court record systems such as PACER free for the public to access, is not a new idea, and has been part of congressional discussions for many years, but has now gained bipartisan support.

In 2021 the Senate Judiciary Committee voted to move forward on a bipartisan version of the "free PACER bill" that would eliminate PACER fees. This bill was co-sponsored by Sen. Chuck Grassley, a top Republican on the judiciary committee.

Although it appears that the government has ended the suit by agreeing to pay PACER users $125 million dollars in monetary relief, the court must still take the agreement under submission and it must still be signed by the Judge before it can become an order of the court, but for now, it appears that this case has settled.