By Sam Reisman
Law360 (February 21, 2019, 7:20 PM EST) — A Florida attorney and the federal government on Wednesday clashed over fees for accessing certain documents through PACER, with the attorney arguing they amount to a breach of contract and the government saying while court opinions are usually free, it’s up to the judge to determine what constitutes an opinion.
In dueling briefs, Theodore D’Apuzzo, the Fort Lauderdale litigator who brought the action, and the government clashed over a central question of whether a contract or implied covenant was established between the government and users of the Public Access to Court Electronic Records, and what duties, if any, are owed to users with respect to access to opinions.
“Under the undisputed facts, a contract was formed between the government and plaintiff as to plaintiff’s PACER usage,” according to D’Apuzzo’s brief. “As such, the breach of implied covenant claim is on sound footing, and is in no way duplicative to or contrary to the express terms of the express or implied-in-fact contract.”
The government countered that no such valid contract exists between the government and people accessing court documents through PACER, and any supposed duties owed to PACER users under the alleged contract are without basis.
“While plaintiff alleges that the PACER registration process is an online agreement, it is not a valid contract because it is insufficiently definite,” the government argued.
Furthermore, while the E-Government Act of 2002 mandates that written opinions should be made available for free, the government argued that there is no clear uniform guidance as to what constitutes a written opinion and authoring judges have discretion determining what qualifies as an opinion.
Even if the court finds a valid contract exists between PACER and its users, the government argued, that does not mean the government would be required to undertake new duties, such as standardizing the process by which documents are labeled opinions.
“That opinions are provided without charge does not require the government to take unspecified ‘steps’ to ensure that ‘[Case Management/Electronic Case Files] websites’ use the ‘same methods’ for designating documents as opinions,” the government’s brief said.
D’Apuzzo initially filed his suit in November 2016, arguing individual judges and their staffs are responsible for designating documents as “judicial opinions,” resulting in inconsistencies and PACER users having to improperly pay for access.
He pointed to several documents that he said had wrongly racked up PACER charges, including a 29- page opinion granting a motion to dismiss from the bankruptcy court in the Eastern District of Michigan, a memorandum opinion and order from the District of Columbia, and opinions from the Southern District of Ohio and the Middle District of Florida. Each of the documents was referred to specifically as an “opinion” but was not made available for free, D’Apuzzo claims.
The parties filed cross-motions for summary judgment in December.
“We as the plaintiff feel good about our position and we can only hope the court will agree, as we believe the public does have a right to free access to federal court opinions and that this is an important right worthy [of] fighting for,” Douglas J. Giuliano, counsel for D’Apuzzo, wrote in an email on Thursday.
Counsel for the government did not immediately respond to a request for comment.
A separate class action lawsuit that could have profound implications for PACER fees in general is now before the United States Court of Appeals for the Federal Circuit.
In that action, originally filed in 2016, three nonprofit groups alleged that the judiciary overcharged PACER users and unlawfully used fees collected through the system for expenses other than maintaining the online documents portal.
A federal district judge partially agreed in March and found that some $198 million in PACER fees were misapplied to projects that did not enhance public access to court documents, in violation of the E-Government Act.
The nonprofit organizations have received the support of former U.S. Sen. Joseph Lieberman, who sponsored the E-Government Act, as well as seven retired federal judges and a host of media advocacy and legal organizations. In a Feb. 7 editorial titled “Public Records Belong to the Public,” The New York Times also championed their cause.
“The government’s practice of charging fees to access court documents that are greater than the costs of making those documents accessible is at odds with the text, history and purpose of the E-Government Act,” Lieberman wrote in an amicus brief.
D’Apuzzo is represented by Nicole W. Giuliano and Douglas J. Giuliano of Giuliano Law PA and John Anthony Van Ness and Morgan L. Weinstein of Van Ness Law Firm PLC.
The government is represented by Alicia H. Welch of the U.S. Department of Justice’s Civil Division. The case is Theodore D’Apuzzo PA et al. v. U.S., case number 0:16-cv-62769, in the U.S. District
Court for the Southern District of Florida.
–Additional reporting by Carolina Bolado, Dave Simpson, RJ Vogt and Emma Cueto. Editing by Michael Watanabe.