Appellate Judges

The Most Dangerous Branch of Government Tells Congress To Chill on Providing Free Public Access to PACER

The Judiciary Bullies Congress: The legislation would create a substantial risk to litigants’ access to justice by raising filing fees.

Judiciary Urges Dialogue on Electronic Case Files Bills, Seeks Delay in Action

No, it’s another threat, just like Chief Justice John Roberts in his 2021 year end report.

JAN 13, 2022 | REPUBLISHED BY LIT: JAN 13, 2022

The Judiciary sent letters to Congress this week urging lawmakers to defer action on pending bills affecting the federal courts’ electronic records management system until a “meaningful two-way dialogue” between the two branches of government can take place to resolve important concerns.

The Judiciary noted that efforts are already well underway to modernize the Case Management and Electronic Case Files system (CM/ECF) and the portal used by the public to access court records in that system, known as PACER. Prescriptive language in the legislation could interfere with those efforts, and negatively impact litigants and the public.

“If legislation is to be considered, we renew our request for a meaningful two-way dialogue with the House Judiciary Committee to address substantial revisions to the bill before the Committee acts on the proposed legislation,” wrote Judge Roslynn R. Mauskopf, in her capacity as secretary of the Judicial Conference of the United States.

In a letter to Committee Chairman Hank Johnson (pdf), Mauskopf enumerated serious concerns with the legislation, pending in both the House and Senate.

The legislation would create a substantial risk to litigants’ access to justice by raising filing fees for people seeking redress in the courts.

It would also disrupt current revenue streams needed for modernization efforts that are already underway, and it contains prescriptive language that could hamper the flexibility needed for a large, advanced technology project.

“The judicial branch, the litigants desiring to have their cases heard in the federal courts, and the public seeking access to court case records, will bear the consequences if the legislation proves operationally or budgetarily infeasible,”

Mauskopf wrote.

“Therefore, we urge you to not take further action on the bill until we can work together on an equitable and viable alternative.”

Letters also were sent to House Majority Leader Steny Hoyer (pdf) and Senate Majority Leader Chuck Schumer (pdf). In the correspondence with the Senate, the Judiciary similarly suggested collaboration between the two co-equal branches of government.

“I respectfully request the Senate defer consideration of this bill until we have had further discussions with you on a legislative approach that will meet the needs of the federal Judiciary and the public and also address the concerns of Congress,” Mauskopf wrote to Schumer. “Ultimately, our goal is to deliver the best system possible for all stakeholders, both in the public and in the Judiciary.”

Accompanying the letters was earlier correspondence with Congress (pdf) over the past several months, and the Judiciary’s analysis of the bill (pdf) addressing its concerns in detail and proposing the resumption of discussions on the legislation.

Mauskopf’s letter to Johnson noted that substantial changes to a similar bill were negotiated between the two branches in 2020, but were left out of the current House bill.

And since that time, she said, the Judiciary has made strides in working with the General Services Administration on launching a modernization effort, while keeping Congress informed of its progress at every step along the way.

“Despite the actions we have taken during 2021 to be more open, transparent, and flexible regarding the modernization of CM/ECF and PACER, I am troubled that our efforts have not resulted in productive discussions regarding potential legislation,” wrote Mauskopf, who is also the Director of the Administrative Office of the U.S. Courts.

The letter to Johnson lists additional Judiciary concerns about the legislation:

It would eliminate fees for high-volume users of PACER, some of whom profit from reselling the data, and shift the financial burden to litigants in the form of higher filing costs. “We are not opposed to PACER fee elimination in principle, so long as alternative funding for PACER and CM/ECF is fair to litigants, effective, reliable, and administratively workable,” the letter said.

It sets a short, fixed timetable for modernization that is not feasible with existing or proposed resources.

Its requirement for direct involvement of the Executive Branch in day-to-day control over the construction, operation, maintenance, or protection of the Judiciary’s core case management system could harm the independence of the Judicial branch.

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The Most Dangerous Branch of Government Tells Congress To Chill on Providing Free Public Access to PACER
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