There is no constitutional or statutory right of free access to the nationwide PACER system, even from terminals in the courthouse, according to a terse opinion from a Sixth Circuit judge on a pro se appeal.
The opinion takes on significance given the push in some quarters for the PACER system to become free. Lopping off PACER fees would be a blow to federal courts, because fees from PACER along with bankruptcy filing fees pay the bulk of the budgets for the entire federal judiciary.
If no longer generating income by themselves, federal courts would become dependent on Congress for appropriations. If the legislature were unhappy with decisions from the courts, Congress could impinge on the independence of the judiciary by imposing fiscal restraints.
It is unfortunate when important questions are raised by pro se litigants, but that’s what happened.
An individual filed a lawsuit in federal court against dozens of federal officials. The plaintiff complained that she was denied access through PACER to federal court records throughout the country, even though she was using a terminal in the federal courthouse.
As told by Circuit Judge David W. McKeague, the plaintiff claimed that “the defendants have violated her federal common law right of access to judicial records, the Fourth Amendment, [and] various provisions of” of the U.S. Code.
The district court granted leave to proceed in forma pauperis but dismissed the complaint for failure to state a claim. The plaintiff appealed to the circuit, accompanied by a motion to proceed in forma pauperis on appeal.
Because an appeal “would be frivolous,” Judge McKeague denied the motion to waive the filing fee in an order on December 16.
Specifically, Judge McKeague ruled that the appeal would be dismissed for want of prosecution unless the appellant were to pay the $505 filing fee within 30 days. If the appellant pays the filing fee, the appeal would likely be futile because Judge McKeague has already said that the appeal is frivolous.
Judge McKeague gave few reasons for his ruling. With regard to nationwide access, he said:
To the extent that [the plaintiff-appellant] seeks access to any case document filed in any case nationwide and from a public terminal, the U.S. Courts’ website makes clear that case files accessed from public terminals are restricted to those “where the case was filed.”
Judge McKeague quoted the Supreme Court, which recognized the right to inspect and copy judicial records, but went on to say that “the right to inspect and copy judicial records is not absolute.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978).
Regarding constitutional rights, the appellant argued that her Fourth Amendment rights had been violated. Judge McKeague dismissed the argument, saying that the Fourth Amendment gave her “no expectation of privacy in the court’s terminals.” Finally, Judge McKeague found no violation of several federal statutes.
If Judge McKeague’s rulings are taken as proper interpretations of the Constitution and statutes, an act of Congress would seem necessary for PACER to become free of charge, unless the courts voluntarily give up their primary source of income.
There is no constitutional or statutory right of free access to the nationwide PACER system, even from terminals in the courthouse, according to a terse opinion from a Sixth Circuit judge on a pro se appeal.
The opinion takes on significance given the push in some quarters for the PACER system to become free. Lopping off PACER fees would be a blow to federal courts, because fees from PACER along with bankruptcy filing fees pay the bulk of the budgets for the entire federal judiciary.
If no longer generating income by themselves, federal courts would become dependent on Congress for appropriations. If the legislature were unhappy with decisions from the courts, Congress could impinge on the independence of the judiciary by imposing fiscal restraints.
It is unfortunate when important questions are raised by pro se litigants, but that’s what happened.