NATIONAL VETERANS LEGAL SERVICES PROGRAM et al v. UNITED STATES OF AMERICA

Filing 52

MOTION for Summary Judgment as to Liability by ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW CENTER, NATIONAL VETERANS LEGAL SERVICES PROGRAM (Attachments: #1 Declaration Declaration of Jonathan Taylor, #2 Exhibit Exhibit A, #3 Exhibit Exhibit B, #4 Exhibit Exhibit C, #5 Exhibit Exhibit D, #6 Exhibit Exhibit E, #7 Exhibit Exhibit F, #8 Exhibit Exhibit G, #9 Exhibit Exhibit H, #10 Exhibit Exhibit I, #11 Exhibit Exhibit J, #12 Exhibit Exhibit K, #13 Exhibit Exhibit L, #14 Exhibit Exhibit M, #15 Declaration Declaration of Thomas Lee and Michael Lissner, #16 Statement of Facts Plaintiffs' Statement of Undisputed Material Facts)(Gupta, Deepak)

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EXHIBIT J

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Electronic Public Access Program Summary
December 2012
Program Overview
The Electronic Public Access program provides public access to court information
through electronic means in accordance with federal statutes, Judiciary policies, and user
needs. The Internet-based PACER (Public Access to Court Electronic Records) service
provides courts, litigants, and the public with access to dockets, case reports, and over
500 million documents filed in federal courts through the Case Management and
Electronic Case Files (CM/ECF) system. In other words, PACER is a portal to CM/ECF,
which in turn, is integral to public access.
A PACER account is obtained by registering with the PACER Service Center, the
Judiciary's centralized registration, user support and billing center. Registration
information can be submitted via fax or the Internet, and there is no registration fee. At
present, there are more than 1.4 million user accounts, with approximately 13,000 new
accounts added each month. In fiscal year 2012 alone, PACER processed over 500
million requests for information.
As mandated by Congress, the public access program is funded entirely through user fees
set by the Judicial Conference of the United States. The fees are published in the
Electronic Public Access Fee Schedule, available on www.uscourts.gov and
www.pacer.gov. Funds generated by PACER are used to pay the entire cost of the
Judiciary’s public access program, including telecommunications, replication, and
archiving expenses, the Case Management/Electronic Case Files system, electronic
bankruptcy noticing, Violent Crime Control Act Victim Notification, on-line juror
services, and courtroom technology.
Court Websites
Each federal court uses its website, funded by fee revenue, to provide the public with
access to information well beyond that which is required by the E-Government Act of
2002, such as court locations, contact information, local rules, standing or general orders,
docket information, written opinions, and documents filed electronically. The courts are
also using their websites to disclose information about judges’ attendance at privatelyfunded seminars, orders issued on judicial conduct and disability complaints, and digital
audio recordings of oral arguments heard by the court. Additionally, court websites
provide general information concerning court operations, filing instructions, courthouse
accessibility, interpreter services, job opportunities, jury information, and public
announcements. Court websites are used to interact directly with the public through
PACER, CM/ECF, on-line jury questionnaires, pro se filing tools, forms, and court
calendars.

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CM/ECF and the Next Generation
Implementation of the federal Judiciary's Case Management/Electronic Case Files system
(CM/ECF) began in 2001 in the bankruptcy courts after several years of pilot programs in
bankruptcy and district courts. CM/ECF not only replaced the courts' old electronic
docketing and case management systems, but it also enabled courts to maintain case file
documents in electronic format and to accept filings from court practitioners via the
Internet. The CM/ECF system is now in use in all of the federal appellate, district, and
bankruptcy courts, the Court of International Trade, and the Court of Federal Claims.
Nearly 43 million cases are on CM/ECF, and more than 600,000 attorneys and others
have filed documents over the Internet.
Attorneys are able to file documents directly with any federal court over the Internet.
There are no added fees for filing documents using CM/ECF. The CM/ECF system uses
standard office computer hardware, an Internet connection and a browser, and accepts
documents in portable document format (PDF). The system is easy to use – filers prepare
a document using conventional word processing software, then save it as a PDF file.
After logging onto the court's web site with a court-issued CM/ECF password, and
acknowledging that the filing complies with the redaction rules, the filer enters basic
information relating to the case and document being filed, attaches the document, and
submits it to the court. A notice verifying court receipt of the filing is generated
automatically and immediately. All electronically filing parties1 in the case automatically
receive immediate e-mail notification of the filing.
Work on the Next Generation of CM/ECF (Next Gen) is well underway. The project is
currently transitioning from its first phase – requirements definition – to its second phase
– design and development. As part of the requirements definition phase, the Judiciary
gathered extensive information from stakeholders both inside and outside the court
system. The NextGen project included an Additional Stakeholders Functional
Requirements Group (ASFRG) that focused on how the federal courts interact with others
in the legal system. The group’s 24 members included representatives from the Judiciary,
the Department of Justice, the American Bar Association, the Internal Revenue Service,
the Association of American Law Schools, and the National Association of Bankruptcy
Trustees.
The group reached out to more than 60 constituent groups in a variety of ways, such as
focus group meetings, interviews, conferences, surveys, and elicitation sessions at the
courts and the Administrative Office. In all, more than 7,000 individual stakeholders
provided input, most of which focused on the same core requirements sought in NextGen.

1

Those parties who are not electronic filers receive notification via U.S. mail.
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These core requirements include single sign-on, enhanced search capabilities, batch-filing
features, and customizable reports. Nearly 500 of the ASFRG’s requirements have been
adopted and incorporated into the functional requirements documents being used to
design NextGen. The final report of the ASFRG is available to the public on
www.uscourts.gov.
The first releases of the Next Generation of CM/ECF are expected in 2014 and 2015, and
the requirements prioritized for those releases are associated with time-saving and/or
cost-saving functionality. The Next Generation of CM/ECF will also enable additional
improvements to the PACER service, including an updated user interface.
Access to Court Records
Registered PACER account holders can use a court's website or the PACER Case Locator
to access court documents. The PACER Case Locator is a tool for locating court records
that reside in U.S. district, bankruptcy, and appellate court CM/ECF databases across the
country. Usage of the Case Locator continues to grow, with over 200,000 searches daily.
Links to all courts and the PACER case locator are located at www.pacer.gov. Each court
maintains its own CM/ECF database with case information. As a result, querying
information from each court is comparable; however, the format and content from each
court may differ slightly.
The Judiciary continues to seek to improve electronic public access to its records, and a
number of initiatives have been put into place to broaden public access, including:
Public Access Terminals – Every courthouse has public access terminals in the
clerk’s office to provide access to PACER2 and other services, such as credit
counseling.
Digital Audio – At its March 2010 meeting, the Judicial Conference endorsed a
proposal from the Committee on Court Administration and Case Management to
allow judges, who use digital audio recording as the official means of taking the
record, to provide, at their discretion, access to digital audio recordings of court
proceedings via PACER. The digital audio initiative, also known as CourtSpeak,
continues to be successful, both in terms of public and court interest. Presently,
nineteen bankruptcy courts and two district courts have implemented digital audio,
and an additional 23 bankruptcy courts, five district courts, and the Court of

2

Viewing court records at a public access terminal is free. Printing copies of documents
from a public access terminal is $0.10 per page.
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Federal Claims have begun implementation. The fee for an audio file is $2.40,
regardless of the length of the recording.
Training and Education Program – In September 2010, the Judicial Conference
approved a recommendation from the Committee on Court Administration and
Case Management to establish a program involving the Government Printing
Office (GPO), the American Association of Law Libraries (AALL), and the
Administrative Office, that would provide training and education to the public
about the PACER service, and would exempt from billing the first $50 of quarterly
usage by a library participating in the program. The GPO and the AALL worked
with the Administrative Office to develop three levels of training classes: training
for trainers, training for library staff, and training for the public. There are
currently 12 libraries participating in the program. In some instances, libraries are
providing on-the-spot individual training. All training classes include instructions
on How to Create a PACER Account and How to Monitor PACER Usage.
Although some patrons expressed disappointment that they were not being allowed
to use the library’s PACER account, but instead had to use their own accounts,
they did report being satisfied with the instructions provided. The AALL and the
GPO continue to publicize the program to their communities.
PACER Training Application – The training site dcecf.psc.uscourts.gov enables
the public to learn how to use PACER without registering or incurring any fees. In
March 2012, the Administrative Office also launched video tutorials to assist the
public in learning how to use PACER.
RSS – In addition to PACER access, which allows users to "pull" information from
the courts, approximately 50 district courts and 80 bankruptcy courts are using a
common, free internet tool, RSS, to "push" notification of docket activity to users
who subscribe to their RSS feeds, much like a Congressional committee might
notify its RSS subscribers of press releases, hearings, or markups.
Pro Se Bankruptcy Pathfinder – In August 2010, the CM/ECF Subcommittee of
the Committee on Court Administration and Case Management approved a
proposal to undertake a bankruptcy pro se pathfinder initiative, which is designed
to assist pro se litigants in preparing the filings required at case opening, to reduce
the time required to process pro se bankruptcy filings, to increase the quality of the
data collected, and to employ new development tools today, which are selected for
future federal Judiciary use. Three bankruptcy courts currently serve as beta
courts: Central District of California, District of New Jersey, and District of New
Mexico. It is anticipated that this software will be available for use by filers later
this year.
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Opinion Initiative with the Government Printing Office – In September 2012, the
Judicial Conference of the United States approved national implementation of the
program to provide access to court opinions via the Government Printing Office’s
Federal Digital System (FDSys) and agreed to encourage all courts, at the
discretion of the chief judge, to participate in the program. Twenty-nine pilot
courts are live, with over 600,000 individual court opinions available on FDSys.
This has proved to be extremely popular with the public. Federal court opinions
are one of the most utilized collections on FDsys, which includes the Federal
Register and Congressional bills and reports. Access to FDSys is available free of
charge via the Internet at www.gpo.gov. Registration is not required.
PACER Users
PACER has a diverse user population, including: lawyers; pro se filers; government
agencies; trustees; bulk collectors; researchers; educational institutions; commercial
enterprises; financial institutions; the media; and the general public. The chart below is a
breakdown of the PACER user population. The majority of “other” users are background
investigators.

Educational/
Research
Institutions or
Students
3%

Media
2%

Service Providers
to Legal Sector
1%
Others
5%

Creditors
4%
Commercial
Businesses
10%

Pro Se Litigants
and Named Parties
12%

Legal Sector
63%

The largest user is the Department of Justice. Virtually all of the other high volume users
are major commercial enterprises or financial institutions that collect massive amounts of
data, typically for aggregation and resale.
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Electronic Public Access Service Assessment
A comprehensive assessment of PACER services was completed in May 2010. The
assessment provided insight into who uses PACER, areas that provide the highest level of
satisfaction for those users, and areas that could be improved. The initial assessment was
also used to inform the work of the Additional Stakeholders Functional Requirements
Group (ASFRG) as it began identifying requirements for the Next Generation of
CM/ECF. An on-line satisfaction survey was made available to all 325,000 active
PACER users in late 2009. User types giving the highest overall satisfaction scores to
PACER included creditors and service providers to the legal sector, followed by
commercial businesses. Users in the legal sector and litigants—the two largest groups of
PACER users—are also among the most satisfied. Users at educational and research
institutions gave the lowest overall satisfaction rating. These are small groups of
less-frequent users. The survey indicated that satisfaction rates climb steadily as
frequency of use increases.
In addition to assessing satisfaction with the on-line component of PACER, users were
asked to rate help-desk services provided by the PACER Service Center. Satisfaction was
very high; over 95 percent of respondents who contacted the center during the study
period indicated they are "satisfied" or "very satisfied" overall. However, about one-third
of PACER users were not aware that the PACER Service Center is available to provide
help with PACER. The assessment also revealed that 75 percent of users were satisfied
with the value for the money they paid for PACER access, 15 percent were neutral, and
10 percent were dissatisfied.
As a result of the assessment, a number of short- and mid-term activities were
implemented to improve user satisfaction with electronic public access services. These
included:
•
•
•
•
•
•
•
•

creating a new PACER Case Locator with expanded search capabilities to replace
the U.S. Party/Case Index;
redesigning the pacer.gov web page to include video tutorials;
embarking on a program to provide public access to judicial opinions via the
Government Printing Office’s Internet-based FDSys Application;
partnering with law libraries to provide training on the efficient and effective use
of PACER;
creating a free PACER training application, which is populated with actual court
cases and case reports from the New York Western District Court;
promoting the use of RSS feeds to “push” information to users;
creating a mobile PACER application;
redesigning the PACER bill and providing a tool to better manage billing for large
organizations; and
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•

providing access to some audio recordings of judicial proceedings through
PACER.

In April 2012, an initiative was undertaken to refresh the results from the initial
assessment. This initiative is on track to meet its scheduled completion date of March
2013.
Basis and History of Fees
In 1988, the Judiciary sought funding through the appropriations process to provide
electronic public access services. Rather than appropriate funds for this purpose,
Congress specifically directed the Judiciary to fund electronic public access services
through the collection of user fees. As a result, the electronic public access program
relies exclusively on fee revenue. The statutory language specifically requires that the
fees be used "to reimburse expenses incurred in providing these services."3
A study of policies and practices regarding use, release, and sale of data, recommended
that the level of fees for a service should sustain the cost of the service. In 1991, a fee of
$1.00 per minute for access to electronic information, via a dial-up bulletin board service,
was set for the district and bankruptcy courts. Four years later, the fee was reduced to
$0.75 per minute, and one year after that it was reduced to $0.60 per minute. The revenue
generated from these fees was used exclusively to fund the full range of Electronic Public
Access services, including PACER, the Appellate Bulletin Board system, the Voice Case
Information System. The Voice Case Information System provided case information free
of charge. Fee revenue also provided each court with hardware and software necessary to
support public access services. This included more than 700 regular telephone lines,
more than 200 toll-free telephone lines, and a personal computer for free public access at
the front counter of all clerks’ offices with 10 or more staff.
In 1997, the Judiciary addressed three issues pertaining to providing electronic public
access to court information via the Internet. These issues were: (1) the establishment of
an appropriate fee for Internet access to court electronic records; (2) the types of
information for which a fee should be assessed; and (3) the technical approach by which
PACER information should be provided over the Internet. An application of Internet
technologies to the Judiciary's public access program was viewed as a way to make court
and case information more widely available and to offer the opportunity to add additional
information (local rules, court forms, court calendars and hours of operation) and
services.

3

Judiciary Appropriations Act, 1991, Pub. L. No. 101-515,Title IV, § 404, 104 Stat. 2102
and Judiciary Appropriations Act, 1992, Pub. L. No. 102-140, Title III, § 303, 105 Stat. 782.
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The Judiciary's analysis focused on finding the fairest, most easily understood, and most
consistent method for charging. In 1998, the Judicial Conference adopted a per-page fee,
as it was determined to be the simplest and most effective method for charging for public
access via the Internet. The $0.07 per page electronic access fee4 was calculated to
produce comparable fees for large users in both the Internet and dial-up applications and
thus maintain the then current public access revenue level while introducing new
technologies to expand public accessibility to the PACER information. For infrequent
PACER users, costs were reduced considerably by using the Internet.
In 2003, in the Congressional conference report that accompanied the Judiciary's FY 2004
appropriations act, Congress expanded the permitted uses of EPA funds to include Case
Management/Electronic Case Files (CM/ECF) system costs. In order to provide
sufficient revenue to fully fund currently identified CM/ECF system costs, in September
2004, the Judicial Conference approved an increase in the electronic public access fee
from $0.07 to $0.08 per page, effective January 1, 2005.
Based on a recommendation from the Committee on Court Administration and Case
Management, in September 2011, the Judicial Conference approved an increase in the fee
from $0.08 to $0.10 per page, effective April 1, 2012, in order to give users adequate
notice. The Committee noted that the fee had not been increased since 2005 and that, for
the previous three fiscal years, the public access program’s obligations had exceeded its
revenue. The fee increase is being used to fund the Next Generation of CM/ECF and
PACER. The Committee also recommended that the waiver of fees of $10 or less in a
quarterly billing cycle be changed to $15 or less per quarter, so that approximately 75
percent of users would still receive fee waivers. Finally, in recognition of the current
fiscal austerity for government agencies, the Committee recommended that the fee
increase be suspended for local, state, and federal government entities for a period of
three years. The Conference adopted all of the Committee’s recommendations.
The Judiciary takes its responsibility to set the EPA fee very seriously. Since well before
the E-Government Act, it has been the Judicial Conference's policy to set the electronic

The per-page charge applies to the number of pages that result from any search,
including a search that yields no matches (one page for no matches). In the current
PACER systems, billable pages are calculated in one of two ways: a formula is used to
determine the number of pages for an HTML formatted report. Any information
extracted from the CM/ECF database, such as the data used to create a docket sheet, is
billed using a formula based on the number of bytes extracted (4320 Bytes). For a PDF
document, the actual number of pages is counted to determine the number of billable
pages.
4

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public access fee to be commensurate with the costs of providing and enhancing services
related to public access. Before the one-cent-per-page increase in 2004, the Conference
had a history of lowering the fee, and Congressional appropriations to the Judiciary have
never provided funding for the public access program. In 2001, the Judicial Conference
established a fee of $0.10 per page to print copies of documents from public access
terminals in the clerks' office. That fee has never been raised. A fee is not charged to
view PACER documents from the public access terminals in federal courthouses. Finally,
the per page fee has been capped at the charge for 30 pages (or $3.00) for documents,
docket sheets, and case-specific reports.5
Free Information and Exemptions
There is a high cost to providing electronic public access, and as described above,
Congress decided in 1991 that the funds needed to improve electronic access to court
information were to be provided by the users of this information through reasonable fees
rather than by all tax payers through appropriated funds. It is also important to note,
however, that the public access program does provide a great deal of federal court
information to the American public for no charge. For example:
•

The Judiciary does not charge for access to judicial opinions;

•

Parties to a court case receive a copy of filings in the case at no charge;

•

The $0.10 per page fee is not charged for viewing case information or documents
on PACER at the public access terminals in the courthouses;

•

If an individual account does not reach $15 quarterly, no fee is charged at all; and
in a given fiscal year, approximately 65-to-75 percent of active users have fee
waivers for at least one quarter. Most of these users are litigants and their
attorneys who are involved in a specific case;

•

Consistent with Judicial Conference policy, courts may grant exemptions for
payment of electronic public access fees. Approximately 20 percent of all PACER
usage is performed by users who are exempt from any charge – including
indigents, case trustees, academic researchers, CJA attorneys, and pro bono
attorneys.

The 30 page fee cap does not apply to non case-specific reports such as docket
activity reports that include multiple cases and reports from the PACER Case Locator.
5

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The vast majority (95 percent) of PACER accounts incur less than $500 in fees – or no
fee at all – over the course of the year. This is a long-established pattern. Additionally,
the public access program also provides free access to court case information through
VCIS (Voice Case Information System), an automated voice response system that
provides a limited amount of bankruptcy case information directly from the court's
database in response to telephone inquiries.
Benefits of a Fee
In order to maintain the level of service presently provided through the public access
program, the Judiciary would need appropriated funds to replace the fee revenue, and in
this fiscal climate increased appropriations are not available. Fee revenue allows the
Judiciary to pursue new technologies for providing public access, develop prototype
programs to test the feasibility of new public access technologies, and develop
enhancements to existing systems. By authorizing the fee, Congress has provided the
Judiciary with revenue that is dedicated solely to promoting and enhancing public access.
These fees are only used for public access, and are not subject to being redirected for
other purposes. The fee, even a nominal fee, also provides a user with a tangible,
financial incentive to use the system judiciously and efficiently, and in the absence of a
fee the system can be abused.
Privacy
The Judiciary is committed to protecting private information in court filings from public
access. It has been over a decade since the Judicial Conference began consideration of –
and subsequently formulated – a privacy policy for electronic case files, and over four
years since the enactment of Federal Rules of Appellate, Bankruptcy, Civil, and Criminal
Procedure requiring that certain personal data identifiers not be included in court filings.
These policies and rules have been integral to the success of the Judiciary’s electronic
public access program. Adherence to these policies and rules by litigants and attorneys is
essential to ensure that personal identifier information is appropriately redacted from
court filings. The Judicial Conference examined how the privacy rules were working in
practice and found that overall the Judiciary’s implementation of the privacy rules has
been a tremendous success.
In 2001, the Judicial Conference adopted a policy on privacy and public access to
electronic case files that allowed Internet-based access to civil and bankruptcy case
filings; the policy required filers, however, to redact certain personal information (i.e.,
Social Security numbers, financial account numbers, names of minor children, and dates
of birth). Following a pilot program and a Federal Judicial Center study on criminal case
files, the Conference approved electronic access to criminal case files, with similar
redaction requirements. The redaction requirements of the Conference’s privacy policy
were largely incorporated into the Federal Rules, effective December 1, 2007.
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As noted above, a key tenet of these rules (as well as the precursor Conference policy) is
that the redaction of personal identifiers lies with the filing party. The Advisory
Committee Note accompanying Federal Rule of Civil Procedure 5.2 states: “The clerk is
not required to review documents filed with the court for compliance with this rule. The
responsibility to redact filings rests with counsel and the party or non-party making the
filing.” Nonetheless, the Judicial Conference and the Administrative Office are obviously
interested in ensuring that these privacy rules are adequate and appropriately followed.
To this end, two Judicial Conference Committees – the Court Administration and Case
Management Committee, and the Committee on Rules of Practice & Procedure – have
worked jointly with the Federal Judicial Center to monitor and study the operation of the
privacy rules and related policies and to address new issues that have arisen since their
implementation. In addition, the Administrative Office took a number of steps to ensure
that the privacy protections established in the federal rules can be more easily followed,
including the establishment of a task force that developed a notice for the current
CM/ECF system reminding litigants of their obligation under the law to redact personal
identifier information and to require filers to affirm that they must comply with the
redaction rules.
The Administrative Office continues to encourage courts to stress the rules’ redaction
requirements with those who file in the court. Options for informing the filers include
various, readily available communications vehicles, such as the court’s public website,
newsletters, listserves, and Continuing Legal Education programs. Further, Judicial
Conference Committees and the Administrative Office have asked individual courts to
share information on actions they have taken to ensure compliance with the privacy rules,
including promulgation of local rules or standing orders, modifications to local CM/ECF
applications, and outreach efforts to the public and bar informing them of the redaction
requirements. This type of information will assist the Administrative Office, as well as
the Conference Committees, to be better informed of the scope of any non-compliance.
Thus far, the Administrative Office has received an impressive response from the courts,
which are addressing the privacy rules in a variety of ways, ranging from conducting
education and awareness campaigns to issuing judicial orders to redact noncompliant
filings.
E-Government Act Compliance
It is important to emphasize the effort and seriousness with which the Judiciary has
implemented the E-Government Act's requirements. Section 205(d) of the Act directed
the Judicial Conference to "explore the feasibility of technology to post online dockets
with links allowing all filings, decisions and rulings in each case to be obtained from the
docket sheet of the case." The Judiciary has gone much further than "exploring" such a
system. It designed and has now implemented that system in all courts, providing more
than 1.4 million PACER users with access to over 500 million case file documents at a
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reasonable fee – and, frequently, free of any charge at all. The EPA program was
developed as an alternative to going to the courthouse during business hours and making
copies at the cost of $0.50 per page. This service saves litigants/lawyers and the public
time and money by allowing them to file from any computer and also to download and
review case information electronically, with all the attendant benefits.
Very few state courts have electronic access systems, and none provides as much
information as PACER. Many state courts charge several dollars for a single records
search. No other court system in the world provides as much information to as many
people in as efficient a manner. State court officials and court administrators from other
countries contact the federal Judiciary frequently about our electronic public access
model.

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