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Federal Circuit Rules Portion of PACER Fees Improper

In a decision released on Aug. 6, 2020 , the United States Court of Appeals for the Federal Circuit held that a portion of user fees charged to PACER users is unauthorized by statute and therefore is improper.  Nat. Vets. Leg. Servs. Prog. v. United States, Slip Op. at p. 29-30 (Fed. Cir. Aug. 6, 2020).

The Court also held that the portion of user fees charged to PACER users “to cover expenses incurred in services providing public access to federal court electronic docketing information” is permitted by statute.  Id.  The Court declined to address in detail arguments of amici advocating the complete elimination of fees for electronic access to court records: “As to those amici urging the elimination of all fees for accessing electronically available court records, we agree with the government that those calls are better directed to Congress.”  Id.  at n. 16, p. 29.

Although this opinion does not directly address the actions of other government bodies in charging fees for access to legal materials, the opinion as a whole suggests that charging for such access may be constitutionally permissible, provided that the level of fees does not significantly impede public access to such materials.  See, id. at p. 29.

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