In Re: Application for Exemption from Electronic Public Access Fees by Jennifer Gollan and Shane Shifflett, Jennifer Gollan; Shane Shifflett, Applicants-Appellants.
Argued and Submitted June 10, 2013 —San Francisco, California
Appeal from the United States District Court for the Northern District of California James Ware, District Judge, Presiding D.C. No. 3:12-mc-80113-JW
Rochelle L. Wilcox, Davis Wright Tremaine LLP, San Francisco, CA, argued the cause and filed the briefs for the applicants-appellants. With her on the briefs was Thomas R. Burke, Davis Wright Tremaine LLP, San Francisco, CA.
H. Thomas Byron III, United States Department of Justice, Civil Appellate Division, Washington, DC, argued the cause and filed the brief for the Administrative Office of the United States Courts as amicus curiae. With him on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, United States Department of Justice, Washington, DC, Melinda L. Haag, United States Attorney for the Northern District of California, Matthew M. Collette, Attorney, United States Department of Justice, Civil Appellate Division, Washington, DC, Robert K. Loesche, General Counsel, Administrative Office of United States Courts, Washington, DC, and Sigmund Adams, Attorney, Administrative Office of United States Courts, Washington, DC.
Before: Diarmuid F. O'Scannlain and Andrew D. Hurwitz, Circuit Judges, and Lawrence L. Piersol, Senior District Judge. [*]
The panel dismissed for lack of jurisdiction an appeal from the district court's order denying an ex parte application for an exemption from the fees associated with electronic access to court records.
As authorized by Congress, the fee protocol for users of the Public Access to Court Electronic Records system was set by the Judicial Conference of the United States, in cooperation with the Administrative Office of the Courts. The PACER fee waiver was sought by two journalists who were employed by a not-for-profit organization and wished to conduct a research project.
The panel held that it did not have jurisdiction under 28 U.S.C. § 1291 to review the district court's order because the order was an administrative order outside the scope of the court's litigative function, rather than a "decision" of the district court. Distinguishing an unpublished decision of the Third Circuit and United States v. Poland (In re Derickson), 640 F.2d 946 (9th Cir. 1981) (per curiam), the panel held that the order was administrative because it arose from a non-adversarial proceeding, and the application for a fee exemption was wholly unconnected to pending litigation.
Concurring specially, Judge O'Scannlain wrote that, assuming ordinary PACER-fee determinations are not reviewable by the judiciary's administrative apparatus, including the Judicial Conference and the Judicial Council of the Circuit, it will be up to Congress to decide whether to fashion an appellate-review mechanism, or whether to leave the fee determinations within the exclusive purview of district courts.
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.
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 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. However, non-litigants who want access to documents remotely, using the Internet, are subject to a fee of ten cents per page. But in accord with Congress's directive about exemptions, the 2012 PACER fee schedule called on district courts to consider exempting, "indigents, bankruptcy case trustees, individual researchers associated with education institutions, courts, section 501(c)(3) not-for-profit organizations, court appointed pro bono attorneys, and pro bono ADR neutrals from payment of these fees." Electronic Public Access Fee Schedule of April 1, 2012. The Judicial Conference also annotates the fee schedule with policy notes designed to help courts apply its terms. ...