In re Exemption From Electronic Public Access Fees by Jennifer Gollan & Shane Shifflett

Opinion by Judge O’SCANNLAIN; Concurrence by Judge O’SCANNLAIN.

OPINION

We must consider our power to review a district court’s administrative order denying an exemption from the fees associated with electronic access to court records.

I

A

With the Public Access to Court Electronic Records (“PACER”) system users can view and print case filings, judicial opinions, and other docket information from the federal trial, bankruptcy, and appellate courts. Congress has authorized the Judicial Conference of the United States 1 to raise funds to support PACER by setting appropriate user fees. In order to ensure the fees do not impair public access to the courts, Congress directed the Judicial Conference to “provide for exempting persons or classes of persons” for whom fees would be an unreasonable burden. Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub.L. No. 102-140, Title III § 303, 105 Stat. 782 (1992).

In cooperation with the Administrative Office of the Courts, the Judicial Conference has devised a fee protocol for PACER. Anyone may use the terminals in the nation’s federal courthouses to view court documents at no charge.…

concurring specially:

I write individually to acknowledge “the elephant in the room”: to whom does one go for review when an application for an exemption from PACER fees has been denied?

We posed just this question to the Administrative Office at oral argument. Since the Judicial Conference is the body Congress tasked with writing the fee schedule, naturally, the Administrative Office suggested that comments about either the clarity or substantive coverage of the policy could be directed there. By statute, the Judicial Conference studies “the condition of business in the courts of the United States” and makes recommendations “to the various courts to promote uniformity of management procedures and the expeditious conduct of -court business.” 28 U.S.C. § 331 . Reviewing individual applications for exemption such as Gollan and Shifflett’s, however, would not be—as the Administrative Office recognized—consistent with this broad national mission.

PACER fee determinations are just one of the “increasing numbers of administrative responsibilities” being assigned to district courts “that are not subject to review *1042 by appeal.” 15A Charles Alan Wright & Arthur R. Miller, Federal…