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)

Case 1:16-cv-00745-ESH Document 52-16 Filed 08/28/17 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES PROGRAM, et al.,
Plaintiffs,
v.
Case No. 16-745-ESH

UNITED STATES OF AMERICA,
Defendant.

PLAINTIFFS’ STATEMENT OF UNDISPUTED MATERIAL FACTS
As required by Local Rule 7(h)(1), the plaintiffs provide the following statement of
material facts as to which they contend there is no genuine issue1:
I.

Overview of PACER fees
1.

The Public Access to Court Electronic Records system, commonly known as

PACER, is a system that provides online access to federal judicial records and is managed by the
Administrative Office of the U.S. Courts (or AO). See ECF No. 27 (Answer) ¶ 7.
2.

The current fee “for electronic access to any case document, docket sheet, or case-

specific report via PACER [is] $0.10 per page, not to exceed the fee for thirty pages.” Electronic
Public Access Fee Schedule (Taylor Decl., Ex. A); see Answer ¶ 7.
3.

The current fee “[f]or electronic access to transcripts and non-case specific reports

via PACER (such as reports obtained from the PACER Case Locator or docket activity reports)
[is] $0.10 per page.” Taylor Decl., Ex. A; see Answer ¶ 7.
Much of what follows is based on documents produced by the government for purposes
of this litigation. These documents set forth the amount of money collected in PACER fees since
fiscal year 2010, which programs that money has been used to fund, and the government’s
description of the programs. Although the plaintiffs do not challenge the truthfulness of any of
this information in moving for summary judgment on the issue of liability, they reserve the right
to do so at a later stage. In addition, the words “judiciary” and “Administrative Office” or “AO”
are used interchangeably when referring to the Judicial Branch’s administrative action.
1

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4.

The current fee “[f]or electronic access to an audio file of a court hearing via

PACER [is] $2.40 per audio file.” Taylor Decl., Ex. A; see Answer ¶ 7.
5.

Anyone who accesses records through PACER will incur an obligation to pay fees

unless she obtains a fee waiver or incurs less than $15 in fees in a given quarter. Taylor Decl., Ex.
A.
II.

History of PACER fees
A.

The creation of PACER

8.

In 1990, Congress began requiring the judiciary to charge “reasonable fees . . . for

access to information available through automatic data processing equipment,” including records
available through what is now known as PACER. Judiciary Appropriations Act, 1991, Pub. L.
No. 101–515, § 404, 104 Stat. 2129, 2132–33. In doing so, Congress provided that “[a]ll fees
hereafter collected by the Judiciary . . . as a charge for services rendered shall be deposited as
offsetting collections . . . to reimburse expenses incurred in providing these services.” Id.
9.

Later in the decade, the judiciary started planning for a new e-filing system called

ECF. The staff of the AO produced a paper “to aid the deliberations of the Judicial Conference”
in this endeavor. Electronic Case Files in the Federal Courts: A Preliminary Examination of Goals, Issues and
the Road Ahead (Mar. 1997) (Taylor Decl., Ex. B). The paper discussed, among other things, how
the ECF system could be funded. Id. at 34–36. The AO staff wrote that “there is a long-standing
principle” that, when imposing user fees, “the government should seek, not to earn a profit, but
only to charge fees commensurate with the cost of providing a particular service.” Id. at 34. But,
two pages later, the staff contemplated that the ECF system could be funded with “revenues
generated from electronic public access fees”—that is, PACER fees. Id. at 36.
10.

The Judicial Conference set PACER fees at $.07 per page beginning in 1998. See

Chronology of the Fed. Judiciary’s Elec. Pub. Access (EPA) Program (Taylor Decl., Ex. C).
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B.

The E-Government Act of 2002

11.

Four years after that, Congress enacted the E-Government Act of 2002.

According to a report prepared by the Committee on Governmental Affairs, Congress found
that, under “existing law, users of PACER are charged fees that are higher than the marginal
cost of disseminating the information.” S. Rep. 107–174, 107th Cong., 2d Sess. 23 (2002) (Taylor
Decl., Ex. D, at 23). With the E-Government Act, “[t]he Committee intend[ed] to encourage the
Judicial Conference to move from a fee structure in which electronic docketing systems are
supported primarily by user fees to a fee structure in which this information is freely available to
the greatest extent possible.” Id.; see also ECF No. 1 (Compl.) ¶ 12; Answer ¶ 12.
12.

The E-Government Act amended the language authorizing the imposition of

fees—removing the mandatory “shall prescribe” language and replacing it with language
permitting the Judicial Conference to charge fees “only to the extent necessary.” Pub. L. No.
107–347, § 205(e), 116 Stat. 2899, 2915 (Dec. 17, 2002) (28 U.S.C. § 1913 note).
13.

The full text of 28 U.S.C. § 1913 note, as amended by the E-Government Act, is

as follows:
(a) The Judicial Conference may, only to the extent necessary, prescribe
reasonable fees, pursuant to sections 1913, 1914, 1926, 1930, and 1932 of title 28,
United States Code, for collection by the courts under those sections for access to
information available through automatic data processing equipment. These fees
may distinguish between classes of persons, and shall provide for exempting
persons or classes of persons from the fees, in order to avoid unreasonable burdens
and to promote public access to such information. The Director of the [AO],
under the direction of the Judicial Conference of the United States, shall prescribe
a schedule of reasonable fees for electronic access to information which the
Director is required to maintain and make available to the public.
(b) The Judicial Conference and the Director shall transmit each schedule of fees
prescribed under paragraph (a) to the Congress at least 30 days before the
schedule becomes effective. All fees hereafter collected by the Judiciary under
paragraph (a) as a charge for services rendered shall be deposited as offsetting
collections to the Judiciary Automation Fund pursuant to 28 U.S.C. 612(c)(1)(A)
to reimburse expenses incurred in providing these services.
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C.

The AO’s Response to the E-Government Act

14.

The Judicial Conference did not reduce or eliminate PACER fees following the

enactment of the E-Government Act. See Compl. ¶ 13; Answer ¶ 13.
15.

To the contrary, in September 2004 the Judicial Conference increased fees to $.08

per page, effective on January 1, 2005. Memorandum from Leonidas Ralph Mecham, Director
of the Admin. Office, to Chief Judges & Clerks (Oct. 21, 2004) (Taylor Decl., Ex. E). In a letter
announcing the increase to the chief judges and clerks of each federal court, the AO’s Director
wrote: “The fee increase will enable the judiciary to continue to fully fund the Electronic Public
Access Program, in addition to CM/ECF implementation costs until the system is fully deployed
throughout the judiciary and its currently defined operations and maintenance costs thereafter.”
Id. The letter does not mention the E-Government Act. See Compl. ¶ 13; Answer ¶ 13.
16.

By the end of 2006, the Judiciary Information Technology Fund had accumulated

a surplus of $146.6 million—$32.2 million of which was from PACER fees. Admin. Office,
Judiciary Information Technology Annual Report for Fiscal Year 2006, at 8, (Taylor Decl., Ex.
F). According to the AO, these fees had “result[ed] from unanticipated revenue growth
associated with public requests for case information.” Id.
17.

Despite the surplus, the AO still did not reduce or eliminate PACER fees, but

instead began “examining expanded use of the fee revenue.” Id. It started using the excess
PACER revenue to fund “courtroom technology allotments for installation, cyclical replacement
of equipment, and infrastructure maintenance.” Letter from Sen. Lieberman, Chair, Sen.
Comm. on Homeland Security and Governmental Affairs, to Sens. Durbin and Collins, Sen.
Comm. on Appropriations (Mar. 25, 2010) (Taylor Decl., Ex. G); see Compl. ¶ 14; Answer ¶ 14.

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18.

Two years later, in 2008, the chair of the Judicial Conference’s Committee on the

Budget testified before the House of Representatives. She explained that the judiciary used
PACER fees not only to reimburse the cost of “run[ning] the PACER program,” but also “to
offset some costs in our information technology program that would otherwise have to be funded
with appropriated funds.” Hearings Before a Subcomm. of the Sen. Comm. on Appropriations
on H.R. 7323/S. 3260, 110th Cong. 51 (2008). Specifically, she testified, “[t]he Judiciary’s fiscal
year 2009 budget request assumes $68 million in PACER fees will be available to finance
information technology requirements in the courts’ Salaries and Expenses account, thereby
reducing our need for appropriated funds.” Id.; see Compl. ¶ 15; Answer ¶ 15.
19.

In early 2009, Senator Joe Lieberman (the E-Government Act’s sponsor) wrote a

letter to the Judicial Conference “to inquire if [it] is complying” with the statute. Letter from Sen.
Lieberman to Hon. Lee Rosenthal, Chair, Committee on Rules of Practice and Procedure,
Judicial Conf. of the U.S. (Feb. 27, 2009) (Taylor Decl., Ex. H). He noted that “[t]he goal of this
provision, as was clearly stated in the Committee report that accompanied the Senate version of
the E-Government Act, was to increase free public access to [judicial] records.” Id. He also noted
that “PACER [is] charging a higher rate” than it did when the law was passed, and that “the
funds generated by these fees are still well higher than the cost of dissemination.” Id. He asked
the Judicial Conference to explain “whether [it] is only charging ‘to the extent necessary’ for
records using the PACER system.” Id.; see Compl. ¶ 16; Answer ¶ 16.
20.

The AO’s Director replied with a letter acknowledging that the E-Government

Act “contemplates a fee structure in which electronic court information ‘is freely available to the
greatest extent possible,’” but taking the position that “the Judiciary [was] charging PACER fees
only to the extent necessary.” Letter from Hon. Lee Rosenthal and James C. Duff to Sen.
Lieberman (Mar. 26, 2009) (Taylor Decl., Ex. I). The sole support the letter offered for this view
5

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was a sentence in a conference report accompanying the 2004 appropriations bill, which said
only that the Appropriations Committee “expects the fee for the Electronic Public Access
program to provide for [ECF] system enhancements and operational costs.” Id. The letter did
not provide any support (even from a committee report) for using the fees to recover nonPACER-related expenses beyond ECF. See Compl. ¶ 17; Answer ¶ 17.
21.

The following year, in his annual letter to the Appropriations Committee, Senator

Lieberman expressed his “concerns” about the AO’s interpretation. Taylor Decl., Ex. G.
“[D]espite the technological innovations that should have led to reduced costs in the past eight
years,” he observed, the “cost for these documents has gone up” so that the AO can fund
“initiatives that are unrelated to providing public access via PACER.” Id. He reiterated his view
that this is “against the requirement of the E-Government Act,” which permits “a payment
system that is used only to recover the direct cost of distributing documents via PACER”—not
other technology-related projects that “should be funded through direct appropriations.” Id.; see
also Compl. ¶ 18; Answer ¶ 18.
22.

The AO did not lower PACER fees in response to Senator Lieberman’s concerns,

and instead increased them to $.10 per page beginning in 2012. It acknowledged that “[f]unds
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.” Admin.
Office, Electronic Public Access Program Summary 1 (2012), (Taylor Decl., Ex. J). But the AO
took the position that the fees comply with the E-Government Act because they “are only used
for public access, and are not subject to being redirected for other purposes.” Id. at 10; see Compl.
¶ 19; Answer ¶ 19.
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23.

In a subsequent congressional budget summary, however, the judiciary reported

that (of the money generated from “Electronic Public Access Receipts”) it spent just $12.1 million
on “public access services” in 2012, while spending more than $28.9 million on courtroom
technology. Part 2: FY 2014 Budget Justifications, Financial Services and General Government Appropriations
for 2014, Hearings Before a Subcommittee of the House Committee on Appropriations, 113th Cong. 538, App.
2.4 (2013) (Taylor Decl., Ex. K).
24.

Since the 2012 fee increase, the AO has continued to collect large amounts in

PACER fees. In 2014, for example, the judiciary collected nearly $145 million in fees, much of
which was earmarked for other purposes such as courtroom technology, websites for jurors, and
bankruptcy notification systems. Admin. Office of the U.S. Courts, The Judiciary Fiscal Year 2016
Congressional Budget Summary, App. 2.3 & 2.4 (Feb. 2015) (ECF No. 31-1, at 647–48).
25.

When questioned during a House appropriations hearing that same year,

representatives from the judiciary acknowledged that “the Judiciary’s Electronic Public Access
Program encompasses more than just offering real-time access to electronic records.” Financial
Services and General Government Appropriations for 2015, Part 6: Hearings Before a Subcomm. of the House
Comm. on Appropriations, 113th Cong. 152 (2014); see Compl. ¶ 21; Answer ¶ 21.
26.

Judge William Smith (a member of the Judicial Conference’s Committee on

Information Technology) has said that PACER fees “also go to funding courtroom technology
improvements, and I think the amount of investment in courtroom technology in ‘09 was around
25 million dollars. . . . Every juror has their own flat- screen monitors. . . . [There have also been]
audio enhancements. . . . We spent a lot of money on audio so the people could hear what’s
going on. . . . This all ties together and it’s funded through these [PACER] fees.” Hon. William
Smith, Panel Discussion on Public Electronic Access to Federal Court Records at the William

7

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and Mary Law School Conference on Privacy and Public Access to Court Records (Mar. 4–5,
2010), https://goo.gl/5g3nzo; see Compl. ¶ 22; Answer ¶ 22.
III.

Use of PACER fees within the class period
A. Fiscal year 2010
28.

The judiciary collected $102,511,199 in PACER fees for fiscal year 2010 and

carried forward $34,381,874 from the previous year. Public Access and Records Management
Division, Summary of Resources (Taylor Decl., Ex. L).
29.

The cost of the Electronic Public Access Program for fiscal year 2010 was

$18,768,552. Id. According to the government, “[t]he EPA program provided electronic public
access to court information; developed and maintained electronic public access systems in the
judiciary; and, through the PACER [] Service Center, provided centralized billing. It also
included funding the technical elements to the PACER program, including, but not limited to,
the PACER Service Center [] technical costs, contracts, technical training, uscourts.gov website,
and program office technical costs.” Def.’s Resp. to Pls.’ First Set of Interrogs., at 2 (Taylor Decl.,
Ex. M).
30.

Beyond the cost of the EPA program, the AO used PACER fees to fund the

following programs in fiscal year 2010:
31.

Courtroom technology. The AO spent $24,731,665 from PACER fees on “the

maintenance, cyclical replacement, and upgrade of courtroom technology in the courts.” Taylor
Decl., Ex. L; Ex. M, at 5.
32.

At least some of the money spent to upgrade courtroom technology, such as

purchasing flat screens for jurors, is not part of the “marginal cost of disseminating” records
through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[] incurred in

8

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providing” access to such records for which it is “necessary” to charge a fee “for [the] services
rendered.” 28 U.S.C. § 1913 note.
33.

Violent Crime Control Act Notification. The AO spent $332,876 from

PACER fees on a “program [that] electronically notifies local law enforcement agencies of
changes to the case history of offenders under supervision.” Taylor Decl., Ex. L; Ex. M, at 5.
34.

Notifying law enforcement under the Violent Crime Control Act is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d
Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
35.

State of Mississippi. The AO spent $120,988 from PACER fees on a

“Mississippi state three year study on the feasibility of sharing the Judiciary’s CM/ECF filing
system at the state level.” Taylor Decl., Ex. L; Ex. M, at 5. The government says that “[t]his
provided software, and court documents to the State of Mississippi, which allowed the State of
Mississippi to provide the public with electronic access to its documents.” Id.
36.

Paying the State of Mississippi is not part of the “marginal cost of disseminating”

records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[]
incurred in providing” access to such records for which it is “necessary” to charge a fee “for [the]
services rendered.” 28 U.S.C. § 1913 note.
37.

Electronic Bankruptcy Noticing. The AO spent $9,662,400 from PACER

fees on a system that “produces and sends court documents (bankruptcy notices, including
notices of 341 meetings) electronically to creditors in bankruptcy cases.” Taylor Decl., Ex. L; Ex.
M, at 3. (A “341 meeting” is a meeting of creditors and equity security holders in a bankruptcy
under 11 U.S.C. § 341.)

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38.

Notifying bankruptcy creditors is not part of the “marginal cost of disseminating”

records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[]
incurred in providing” access to such records for which it is “necessary” to charge a fee “for [the]
services rendered.” 28 U.S.C. § 1913 note.
39.

CM/ECF. The AO spent $23,755,083 from PACER fees on CM/ECF (short for

Case Management/Electronic Case Files), the e-filing and case-management system that
“provides the ability to store case file documents in electronic format and to accept filings over
the internet.” Taylor Decl., Ex. L; Ex. M, at 3. There is no fee for filing a document using
CM/ECF. PACER, FAQs, https://www.pacer.gov/psc/efaq.html#CMECF.
40.

The CM/ECF costs for fiscal year 2010 consisted of the following: $3,695,078 for

“Development and Implementation” of the CM/ECF system; $15,536,212 for “Operations and
Maintenance” of the system; $3,211,403 to “assess[] the judiciary’s long term case management
and case filing requirements with a view to modernizing or replacing the CM/ECF systems”
(which the government calls “CM/ECF Futures”); $144,749 for “Appellate Operational Forum,”
which “is an annual conference at which judges, clerks of court, court staff, and AO staff
exchange ideas and information about operational practices and policies related to the Appellate
CM/ECF system”; $674,729 for “District Operational Forum,” which is a similar conference for
the “District CM/ECF system”; and $492,912 for “Bankruptcy Operational Forum,” a similar
conference for the “Bankruptcy CM/ECF system,” Taylor Decl., Ex. L; Ex. M, at 2–3.
41.

At least some of the money spent on CM/ECF is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.

10

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42.

Telecommunications. The AO spent $13,847,748 from PACER fees on what

it calls “DCN and Security Services.” Taylor Decl., Ex. L. DCN stands for “Data
Communications Network”—“a virtual private network that allows access only to those resources
that are considered part of the uscourts.gov domain.” Taylor Decl., Ex. M, at 33. “This DCN
cost [was] split between appropriated funds and Electronic Public Access (EPA) funds,” and
covered the “costs associated with network circuits, routers, switches, security, optimization, and
management devices along with maintenance management and certain security services to
support the portion of the Judiciary’s WAN network usage associated with CM/ECF.” Id. at 4.
The government also spent $10,337,076 on PACER-Net, the network that “allows courts to post
court information on the internet in a secure manner” and hosts both “[t]he public side of
CM/ECF as well as court websites.” Taylor Decl., Ex. L; Ex. M, at 2–3.
43.

At least some of the money spent on telecommunications is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d
Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
44.

Court Allotments. Finally, the AO spent $9,428,820 from PACER fees on

payments to the federal courts, which consisted of the following:
•

$7,605,585 for “CM/ECF Court Allotments,” which the governments says were
“funds provided as the CM/ECF contribution/portion of the IT Infrastructure
Formula, and funds for attorney training on CM/ECF”;

•

$1,291,335 for “Court Allotments” to fund “public terminals, internet web servers,
telephone lines, paper and toner at public printers, digital audio, McVCIS” (short for
“Multi-court Voice Case Information System,” which “provides bankruptcy case
information” to “the public over the phone”), and “grants for the courts”;
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•

$303,527 for “Courts/AO Exchange Program,” which “fund[ed] participants in the
IT area, related to the Next Gen program” (“the next iteration of CM/ECF”); and

•

$228,373 for “Court Staffing Additives,” which covered the costs of staffing people
who “worked on projects like the development of [McVCIS].”

Taylor Decl., Ex. L; Ex. M, at 4, 30.
45.

At least some of the money given to courts is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
B. Fiscal year 2011
46.

The judiciary collected $113,770,265 in PACER fees for fiscal year 2011 and

carried forward $26,051,473 from the previous year. Taylor Decl., Ex. L.
47.

The cost of the Electronic Public Access Program for fiscal year 2011 was

$3,363,770. Id.
48.

Beyond the cost of the EPA program, the judiciary spent $10,339,444 from

PACER fees on what it calls “EPA Technology Infrastructure & applications,” id., which is the
“[d]evelopment and implementation costs for CM/ECF,” and $4,318,690 on what it calls “EPA
Replication,” which “cover[ed] expenses for CM/ECF servers and replication and archive
services.” Taylor Decl., Ex. L; Ex. M, at 5–6.
49.

The AO also used PACER fees to fund the following programs in fiscal year 2011:

50.

Courtroom technology. The AO spent $21,542,457 from PACER fees on “the

maintenance, cyclical replacement, and upgrade of courtroom technology in the courts.” Taylor
Decl., Ex. L; Ex. M, at 8.

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51.

At least some of the money spent to upgrade courtroom technology is not part of

the “marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong.,
2d Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
52.

Violent Crime Control Act Notification. The AO spent $508,903 from

PACER fees on a “program [that] electronically notifies local law enforcement agencies of
changes to the case history of offenders under supervision.” Taylor Decl., Ex. L; Ex. M, at 8.
53.

Notifying law enforcement under the Violent Crime Control Act is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d
Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
54.

Electronic Bankruptcy Noticing. The AO spent $11,904,000 from PACER

fees to “produce[] and send[] court documents (bankruptcy notices, including notices of 341
meetings) electronically to creditors in bankruptcy cases.” Taylor Decl., Ex. L; Ex. M, at 7.
55.

Notifying bankruptcy creditors is not part of the “marginal cost of disseminating”

records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[]
incurred in providing” access to such records for which it is “necessary” to charge a fee “for [the]
services rendered.” 28 U.S.C. § 1913 note.
56.

CM/ECF. The AO spent $22,540,928 from PACER fees on CM/ECF. Taylor

Decl., Ex. L. These costs consisted of the following: $5,400,000 for “Development and
Implementation”; $11,154,753 for “Operations and Maintenance”; $4,582,423 for “CM/ECF
Futures”; $176,198 for “Appellate Operational Forum”; $705,054 for “District Operational
Forum”; and $522,500 for “Bankruptcy Operational Forum.” Id.; see Taylor Decl., Ex. M, at 6.

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57.

At least some of the money spent on CM/ECF is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
58.

Telecommunications. The AO spent $23,528,273 from PACER fees on

telecommunications costs. Taylor Decl., Ex. L. These costs consisted of the following: $9,806,949
for “DCN and Security Services,” which covered the “[c]osts associated with the FTS 2001 and
Networx contracts with the PACER-Net”; $4,147,390 for “PACER-Net & DCN,” which was
“split between appropriated funds and Electronic Public Access (EPA) funds,” and which covered
the “costs associated with network circuits, routers, switches, security, optimization, and
management devices along with maintenance management and certain security services to
support the portion of the Judiciary’s WAN network usage associated with CM/ECF”;
$9,221,324 for PACER-Net; and $352,610 for “Security Services,” which covered the “costs for
security services associated with the PACER-Net.” Taylor Decl., Ex. L; Ex. M, at 7.
59.

At least some of the money spent on telecommunications is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d
Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
60.

Court allotments. Finally, the AO spent $10,618,805 from PACER fees on

payments to the courts. Taylor Decl., Ex. L. These costs consisted of: $7,977,635 for “CM/ECF
Court Allotments”; $769,125 for “Courts/AO Exchange Program”; $1,403,091 for “Court
Allotments”; and $468,954 for “Court Staffing Additives.” Taylor Decl., Ex. L; Ex. M, at 7–8.
61.

At least some of the money given to courts is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
14

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“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
C. Fiscal year 2012
62.

The judiciary collected $124,021,883 in PACER fees for fiscal year 2012 and

carried forward $31,320,278 from the previous year. Taylor Decl., Ex. L.
63.

The cost of the Electronic Public Access Program for fiscal year 2012 was

$3,547,279. Id.
64.

Beyond the cost of the EPA program, the judiciary also used PACER fees to fund

$5,389,870 in “[d]evelopment and implementation costs for CM/ECF” (under the category of
“EPA Technology Infrastructure & applications”); and $3,151,927 in “expenses for CM/ECF
servers and replication and archive services” (under the category of “EPA Replication”). Taylor
Decl., Ex. L; Ex. M, at 9.
65.

The AO also used PACER fees to fund the following programs in fiscal year 2012:

66.

Courtroom Technology. The AO spent $28,926,236 from PACER fees on

courtroom technology. Taylor Decl., Ex. L; see Taylor Decl., Ex. M, at 11–12.
67.

At least some of the money spent to upgrade courtroom technology is not part of

the “marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong.,
2d Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
68.

Violent Crime Control Act Notification. The AO spent $1,030,922 from

PACER fees on a “program that electronically notifies local law enforcement agencies of changes
to the case history of offenders under supervision”—$480,666 in development costs and
$550,256 in operation and maintenance costs. Taylor Decl., Ex. L; Ex. M, at 11.

15

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69.

Notifying law enforcement under the Violent Crime Control Act is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d
Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
70.

Web-based Juror Services. The AO spent $744,801 from PACER fees to

cover “[c]osts associated with E-Juror software maintenance, escrow services, and scanner
support. E-Juror provides prospective jurors with electronic copies of courts documents regarding
jury service. Taylor Decl., Ex. L; Ex. M, at 11.
71.

Providing services to jurors is not part of the “marginal cost of disseminating”

records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[]
incurred in providing” access to such records for which it is “necessary” to charge a fee “for [the]
services rendered.” 28 U.S.C. § 1913 note.
72.

Electronic Bankruptcy Noticing. The AO spent $13,789,000 from PACER

fees to “produce[] and send[] court documents (bankruptcy notices, including notices of 341
meetings) electronically to creditors in bankruptcy cases.” Taylor Decl., Ex. L; Ex. M, at 10.
73.

Notifying bankruptcy creditors is not part of the “marginal cost of disseminating”

records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[]
incurred in providing” access to such records for which it is “necessary” to charge a fee “for [the]
services rendered.” 28 U.S.C. § 1913 note.
74.

CM/ECF. The AO spent $26,398,495 from PACER fees on CM/ECF. Taylor

Decl., Ex. L. These costs consisted of: $8,006,727 for “Operations and Maintenance”; $164,255
for “Appellate Operational Forum”; $817,706 for “District Operational Forum”; and $531,162
for “Bankruptcy Operational Forum.” Id. The costs also consisted of: $5,491,798 for “testing
CM/ECF”; $6,095,624 to “fund[] positions that perform duties in relation to the CM/ECF
16

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system” (which the government labels “CM/ECF Positions”); and $5,291,223 to “assess[] the
judiciary’s long term case management and case filing requirements with a view to modernizing
or replacing the CM/ECF systems” (which the government labels “CM/ECF Next Gen.”).
Taylor Decl., Ex. L; Ex. M, at 9.
75.

At least some of the money spent on CM/ECF is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
76.

Communications Infrastructure, Services and Security. The AO spent

$26,580,994 from PACER fees on these costs, which consisted of $22,128,423 for “PACER Net
DCN” and $4,452,575 for “security services associated with PACER and CM/ECF.” Taylor
Decl., Ex. L; Ex. M, at 10.
77.

At least some of the money spent on telecommunications is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d
Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
78.

Court Allotments. Finally, the AO spent $10,617,242 from PACER fees on

payments to the courts. Taylor Decl., Ex. L. These costs consisted of: $8,063,870 for “CM/ECF
Court Allotments”; $890,405 for “Courts/AO Exchange Program”; and $1,662,967 for “Court
Staffing Additives/Allotments.” Taylor Decl., Ex. L; Ex. M, at 10–11.
79.

At least some of the money given to courts is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
17

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D. Fiscal year 2013
80.

The judiciary collected $147,469,581 in PACER fees for fiscal year 2013 and

carried forward $36,049,102 from the previous year. Taylor Decl., Ex. L.
81.

The cost of the Electronic Public Access Program for fiscal year 2013 was

$4,652,972. Id.
82.

Beyond the cost of the EPA program, the AO also spent $5,139,937 from PACER

fees on “[d]evelopment and implementation costs for CM/ECF” (under the category of “EPA
Technology Infrastructure & Applications”), and $10,462,534 from PACER fees on “expenses
for CM/ECF servers and replication and archive services” (under the category of “EPA
Replication”). Taylor Decl., Ex. L; Ex. M, at 12.
83.

The AO also used PACER fees to fund the following programs in fiscal year 2013.

84.

Courtroom Technology. The AO spent $31,520,316 from PACER fees on

courtroom technology. Taylor Decl., Ex. L; see Taylor Decl., Ex. M, at 15.
85.

At least some of the money spent to upgrade courtroom technology is not part of

the “marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong.,
2d Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
86.

Violent Crime Control Act Notification. The AO spent $681,672 from

PACER fees on a “program that electronically notifies local law enforcement agencies of changes
to the case history of offenders under supervision”—$254,548 in development costs and
$427,124 in operation and maintenance costs. Taylor Decl., Ex. L; Ex. M, at 14.
87.

Notifying law enforcement under the Violent Crime Control Act is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d

18

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Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
88.

Web-based Juror Services. The AO spent $2,646,708 from PACER fees on

“E-Juror maintenance and operation.” Taylor Decl., Ex. L; Ex. M, at 14.
89.

Providing services to jurors is not part of the “marginal cost of disseminating”

records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[]
incurred in providing” access to such records for which it is “necessary” to charge a fee “for [the]
services rendered.” 28 U.S.C. § 1913 note.
90.

Electronic Bankruptcy Noticing. The AO spent $12,845,156 from PACER

fees to “produce[] and send[] court documents (bankruptcy notices, including notices of 341
meetings) electronically to creditors in bankruptcy cases.” Taylor Decl., Ex. L; Ex. M, at 13.
91.

Notifying bankruptcy creditors is not part of the “marginal cost of disseminating”

records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[]
incurred in providing” access to such records for which it is “necessary” to charge a fee “for [the]
services rendered.” 28 U.S.C. § 1913 note.
92.

CM/ECF. The AO spent $32,125,478 from PACER fees on CM/ECF. Taylor

Decl., Ex. L. These costs consisted of: $4,492,800 for testing the system; $7,272,337 for
“CM/ECF Positions,” $6,091,633 for “Operations and Maintenance,” $13,416,708 for
“CM/ECF Next Gen.,” $800,000 for the “District Court Forum,” and $52,000 for the
“Bank[ruptcy] Court” forum. Taylor Decl., Ex. L; Ex. M, at 12–13.
93.

At least some of the money spent on CM/ECF is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
19

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94.

Communications Infrastructure, Services and Security. The AO spent

$27,500,711 from PACER fees on these costs, which consisted of $23,205,057 for “PACER Net
DCN” and $4,295,654 for “security services associated with PACER and CM/ECF.” Taylor
Decl., Ex. L; Ex. M, at 13.
95.

At least some of the money spent on telecommunications is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d
Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
96.

Court Allotments. Finally, the AO spent $15,754,031 from PACER fees on

payments to the courts. Taylor Decl., Ex. L. These costs consisted of: $12,912,897 for
“CM/ECF Court Allotments”; $578,941 for “Courts/AO Exchange Program”; and $2,262,193
for “Court Staffing Additives/Allotments.” Taylor Decl., Ex. L; Ex. M, at 14.
97.

At least some of the money given to courts is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
E. Fiscal year 2014
98.

The judiciary collected $144,612,517 in PACER fees for fiscal year 2014 and

carried forward $39,094,63 from the previous year. Taylor Decl., Ex. L.
99.

The cost of the Electronic Public Access Program for fiscal year 2014 was

$4,262,398, plus $667,341 in “[c]osts associated with managing the non-technical portion of the
PACER Service Center i.e., rent, billing process costs, office equipment and supplies.” Taylor
Decl., Ex. L; Ex. M, at 15.

20

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100.

Beyond the cost of the EPA program, the AO also spent $6,202,122 from PACER

fees on “[d]evelopment and implementation costs for CM/ECF” (under the category of “EPA
Technology Infrastructure & Applications”), and $4,367,846 on “expenses for CM/ECF servers”
and “support for CM/ECF Infrastructure” (under the category of “EPA Replication”). Id.
101.

The AO also used PACER fees to fund the following programs in fiscal year 2014:

102.

Courtroom Technology. The AO spent $26,064,339 from PACER fees on

courtroom technology. Taylor Decl., Ex. L; see Taylor Decl., Ex. M, at 18.
103.

At least some of the money spent to upgrade courtroom technology is not part of

the “marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong.,
2d Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
104.

Violent Crime Control Act Notification. The AO spent $474,673 from

PACER fees on a “program that electronically notifies local law enforcement agencies of changes
to the case history of offenders under supervision.” Taylor Decl., Ex. L; Ex. M, at 18.
105.

Notifying law enforcement under the Violent Crime Control Act is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d
Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
106.

Web-based Juror Services. The AO spent $2,450,096 from PACER fees on

“E-Juror maintenance and operation.” Taylor Decl., Ex. L; Ex. M, at 18.
107.

Providing services to jurors is not part of the “marginal cost of disseminating”

records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[]
incurred in providing” access to such records for which it is “necessary” to charge a fee “for [the]
services rendered.” 28 U.S.C. § 1913 note.
21

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108.

Electronic Bankruptcy Noticing. The AO spent $10,005,284 from PACER

fees to “produce[] and send[] court documents (bankruptcy notices, including notices of 341
meetings) electronically to creditors in bankruptcy cases.” Taylor Decl., Ex. L; Ex. M, at 17.
109.

Notifying bankruptcy creditors is not part of the “marginal cost of disseminating”

records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[]
incurred in providing” access to such records for which it is “necessary” to charge a fee “for [the]
services rendered.” 28 U.S.C. § 1913 note.
110.

CM/ECF. The AO spent $39,246,201 from PACER fees on CM/ECF. Taylor

Decl., Ex. L. These costs consisted of $8,210,918 for “CM/ECF Positions” and $7,925,183 for
“CM/ECF Next Gen.” Taylor Decl., Ex. L; Ex. M, at 16. The costs also included: $12,938,052
in “costs associated with SDSO support services for [CM/ECF], CM/ECF NextGen
Development and Legacy [CM/ECF] systems,” including “function and technical support desk
services, release, distribution, installation support services, communications services, and written
technical documentation material”; $6,640,397 in “expenses for CM/ECF servers” and “support
for CM/ECF Infrastructure”; $3,328,417 for “tasks related to the operation and maintenance of
the [Enterprise Data Warehouse] and other integration services, enhancement and/or migration
services that are required to support technology advancement or changing business needs,”
which were designed to support CM/ECF by providing “on-line analytics, reports, dashboards,
as well as seamless integration with other judiciary systems through web services and other
application programming interfaces”; and $75,000 for the “CSO Combined Forum,” which “is a
conference at which judges, clerks of court, court staff, and AO staff exchange ideas and
information about operations practices and policies related to the CM/ECF system.” Id.
111.

At least some of the money spent on CM/ECF is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
22

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“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
112.

Communications Infrastructure, Services and Security. The AO spent

$38,310,479 from PACER fees on these costs, which consisted of $33,022,253 for “PACER Net
DCN” and $5,288,226 for “security services associated with PACER and CM/ECF.” Taylor
Decl., Ex. L; Ex. M, at 17.
113.

At least some of the money spent on telecommunications is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d
Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
114.

Court Allotments. Finally, the AO spent $10,754,305 from PACER fees on

payments to the courts. Taylor Decl., Ex. L. These costs consisted of: $7,698,248 for “CM/ECF
Court Allotments”; $367,441 for “Courts/AO Exchange Program”; and $2,688,616 for “Court
Staffing Additives/Allotments.” Taylor Decl., Ex. L; Ex. M, at 17.
115.

At least some of the money given to courts is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
F. Fiscal year 2015
116.

The judiciary collected $144,911,779 in PACER fees for fiscal year 2015 and

carried forward $41,876,991 from the previous year. Taylor Decl., Ex. L.
117.

The cost of the Electronic Public Access Program for fiscal year 2015 was

$2,575,977, plus $642,160 in “[c]osts associated with managing the non-technical portion of the

23

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PACER Service Center i.e., rent, billing process costs, office equipment and supplies.” Taylor
Decl., Ex. L; Ex. M, at 18.
118.

Beyond the cost of the EPA program, the judiciary also used PACER fees to fund

the following: $3,345,593 in “[d]evelopment and implementation costs for CM/ECF” (under the
category of “EPA Technology Infrastructure & Applications”); $13,567,318 in “expenses for
CM/ECF servers” and “support for CM/ECF Infrastructure” (under the category of “EPA
Replication”); and $1,295,509 in “costs associated with the support of the uscourts.gov website.”
Taylor Decl., Ex. L; Ex. M, at 18–19.
119.

The AO also used PACER fees to fund the following programs in fiscal year 2015:

120.

Courtroom Technology. The AO spent $27,383,325 from PACER fees on

courtroom technology. Taylor Decl., Ex. L; see Taylor Decl., Ex. M, at 22.
121.

At least some of the money spent to upgrade courtroom technology is not part of

the “marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong.,
2d Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
122.

Violent Crime Control Act Notification. The AO spent $508,433 from

PACER fees on a “program that electronically notifies local law enforcement agencies of changes
to the case history of offenders under supervision.” Taylor Decl., Ex. L; Ex. M, at 21.
123.

Notifying law enforcement under the Violent Crime Control Act is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d
Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
124.

Web-based Juror Services. The AO spent $1,646,738 from PACER fees on

“E-Juror maintenance and operation.” Taylor Decl., Ex. L; Ex. M, at 21.
24

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125.

Providing services to jurors is not part of the “marginal cost of disseminating”

records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[]
incurred in providing” access to such records for which it is “necessary” to charge a fee “for [the]
services rendered.” 28 U.S.C. § 1913 note.
126.

Electronic Bankruptcy Noticing. The AO spent $8,090,628 from PACER

fees to “produce[] and send[] court documents (bankruptcy notices, including notices of 341
meetings) electronically to creditors in bankruptcy cases.” Taylor Decl., Ex. L; Ex. M, at 20–21.
127.

Notifying bankruptcy creditors is not part of the “marginal cost of disseminating”

records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[]
incurred in providing” access to such records for which it is “necessary” to charge a fee “for [the]
services rendered.” 28 U.S.C. § 1913 note.
128.

CM/ECF. The AO spent $34,193,855 from PACER fees on CM/ECF. Taylor

Decl., Ex. L. These costs consisted of $6,622,167 for “CM/ECF Positions” and $10,169,819 for
“CM/ECF Next Gen.” Taylor Decl., Ex. L; Ex. M, at 19. The costs also consisted of:
$1,727,563 for “providing curriculum design and training for legal CM/ECF and NextGen,”
which “include[d] the scheduling of classes to meet court staff turnover (operational and
technical staff) and to provide training on new features provided by NextGen”; $2,730,585 for
“JENIE Branch and Information Services Branch support of CM/ECF and CM/ECF NextGen
development on the JENIE platforms,” including “[e]ngineering efforts for NextGen utilizing the
JENIE environment”; $3,336,570 in “costs associated with SDSO support services for
[CM/ECF], CM/ECF NextGen Development and Legacy [CM/ECF] systems”; $4,574,158 for
testing the system; $3,244,352 for “tasks related to the operation and maintenance of the
[Enterprise Data Warehouse] and other integration services, enhancement and/or migration
services that are required to support technology advancement or changing business needs”;
25

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$1,680,128 for the “CSO Combined Forum”; and $108,513 for a “CM/ECF NextGen project
working group.” Id. at 19–20.
129.

At least some of the money spent on CM/ECF is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
130.

Communications Infrastructure, Services and Security. The AO spent

$43,414,189 from PACER fees on these costs, which consisted of $36,035,687 for “PACER Net
DCN” and $7,378,502 for “security services associated with PACER and CM/ECF.” Taylor
Decl., Ex. L; Ex. M, at 21.
131.

At least some of the money spent on telecommunications is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d
Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
132.

Court Allotments. Finally, the AO spent $11,059,019 from PACER fees on

payments to the courts. Taylor Decl., Ex. L. These costs consisted of: $7,964,723 for “CM/ECF
Court Allotments”; $1,343,993 for “Courts/AO Exchange Program”; and $1,064,956 for “Court
Staffing Additives/Allotments.” Taylor Decl., Ex. L; Ex. M, at 21.
133.

At least some of the money given to courts is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.

26

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G. Fiscal year 2016
134.

The judiciary collected $146,421,679 in PACER fees for fiscal year 2016 and

carried forward $40,254,853 from the previous year. Taylor Decl., Ex. L.
135.

The cost of the Electronic Public Access Program for fiscal year 2016 was

$748,495, plus $2,443,614 in “[c]osts associated with managing the non-technical portion of the
PACER Service Center i.e., rent, billing process costs, office equipment and supplies.” Taylor
Decl., Ex. L; Ex. M, at 22–23.
136.

Beyond the cost of the EPA program, the judiciary also used PACER fees to fund

the following: $6,282,055 in “[d]evelopment and implementation costs for CM/ECF”;
$10,364,682 in “expenses for CM/ECF servers” and “support for CM/ECF Infrastructure”;
$2,046,473 to fund “positions that perform duties in relation to the CM/ECF system”; $678,400
in “[c]osts associated with an Agile team, staffed by contractors, with the purpose of re-designing
and implementing an entirely new centralized product for access to all CM/ECF case data”;
$1,241,031 in “costs associated with the support of the uscourts.gov website”; and $67,605 in
“Information Technology support for PACER Development Branch and PACER Services
Branch Staff.” Id.
137.

The AO also used PACER fees to fund the following programs in fiscal year 2016:

138.

Courtroom Technology. The AO spent $24,823,532 from PACER fees on

courtroom technology. Taylor Decl., Ex. L; see Taylor Decl., Ex. M, at 26.
139.

At least some of the money spent to upgrade courtroom technology is not part of

the “marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong.,
2d Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.

27

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140.

Violent Crime Control Act Notification. The AO spent $113,500 from

PACER fees on a “program that electronically notifies local law enforcement agencies of changes
to the case history of offenders under supervision.” Taylor Decl., Ex. L; Ex. M, at 26.
141.

Notifying law enforcement under the Violent Crime Control Act is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d
Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
142.

Web-based Juror Services. The AO spent $1,955,285 from PACER fees on

“E-Juror maintenance and operation.” Taylor Decl., Ex. L; Ex. M, at 26.
143.

Providing services to jurors is not part of the “marginal cost of disseminating”

records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[]
incurred in providing” access to such records for which it is “necessary” to charge a fee “for [the]
services rendered.” 28 U.S.C. § 1913 note.
144.

Electronic Bankruptcy Noticing. The AO spent $7,069,408 from PACER

fees to “produce[] and send[] court documents (bankruptcy notices, including notices of 341
meetings) electronically to creditors in bankruptcy cases.” Taylor Decl., Ex. L; Ex. M, at 25.
145.

Notifying bankruptcy creditors is not part of the “marginal cost of disseminating”

records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an “expense[]
incurred in providing” access to such records for which it is “necessary” to charge a fee “for [the]
services rendered.” 28 U.S.C. § 1913 note.
146.

CM/ECF. The AO spent $39,745,955 from PACER fees on CM/ECF. Taylor

Decl., Ex. L. These costs consisted of $6,290,854 for “CM/ECF Positions” and $11,415,754 for
“CM/ECF Next Gen.” Taylor Decl., Ex. L; Ex. M, at 23. The costs also include: $1,786,404 for
“providing curriculum design and training for legal CM/ECF and NextGen”; $3,785,177 for
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“JENIE Branch and Information Services Branch support of CM/ECF and CM/ECF NextGen
development on the JENIE platforms”; $2,422,404 in “costs associated with SDSO support
services for [CM/ECF], CM/ECF NextGen Development and Legacy [CM/ECF] systems”;
$6,182,547 for testing the system; $3,645,631 for “tasks related to the operation and maintenance
of the [Enterprise Data Warehouse] and other integration services, enhancement and/or
migration services that are required to support technology advancement or changing business
needs”; $1,680,128 for the “CSO Combined Forum,” which “is a conference at which judges,
clerks of court, court staff, and AO staff exchange ideas and information about operations
practices and policies related to the CM/ECF system”; $134,093 for a “CM/ECF NextGen
project working group”; $635,520 for “CM/ECF Implementation,” which funds “new
contractors” and covers travel funds for “660 trips per year to support 60 courts implementing
NextGen CM/ECF”; and $1,649,068 to fund a “CM/ECF Technical Assessment” to review
and analyze the “performance of the Next GEN CM/ECF system.” Taylor Decl., Ex. L; Ex. M,
at 23–25.
147.

At least some of the money spent on CM/ECF is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
148.

Communications Infrastructure, Services and Security. The AO spent

$45,922,076 from PACER fees on these costs, which consisted of $36,577,995 for “PACER Net
DCN” and $9,344,081 for “security services associated with PACER and CM/ECF.” Taylor
Decl., Ex. L; Ex. M, at 25.
149.

At least some of the money spent on telecommunications is not part of the

“marginal cost of disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d
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Sess. 23—i.e., an “expense[] incurred in providing” access to such records for which it is
“necessary” to charge a fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
150.

Court Allotments. Finally, the AO spent $7,312,023 from PACER fees on

payments to the courts. Taylor Decl., Ex. L. These costs consisted of: $6,588,999 for “CM/ECF
Court Allotments”; $1,069,823 for “Courts/AO Exchange Program”; and –$346,799 for “Court
Staffing Additives/Allotments.” Taylor Decl., Ex. L; Ex. M, at 26.
151.

At least some of the money given to courts is not part of the “marginal cost of

disseminating” records through PACER, S. Rep. 107–174, 107th Cong., 2d Sess. 23—i.e., an
“expense[] incurred in providing” access to such records for which it is “necessary” to charge a
fee “for [the] services rendered.” 28 U.S.C. § 1913 note.
IV.

The decrease in the cost of data storage
152.

Researcher Matthew Komorowski and data-storage firm BackBlaze have

published storage-cost-time series that when combined cover the period dating from the PACER
system’s 1998 debut to the present. During this time their data shows the cost of a gigabyte of
storage falling from $65.37 to $0.028, a reduction of over 99.9%. During this same time period
PACER’s per-page fees increased 43%, from $0.07 to $0.10. Lee & Lissner Decl. ¶ 16.

Respectfully submitted,
/s/ Deepak Gupta
DEEPAK GUPTA
JONATHAN E. TAYLOR
GUPTA WESSLER PLLC
1900 L Street NW, Suite 312
Washington, DC 20036
Phone: [phone]
[e-mail]
WILLIAM H. NARWOLD
MEGHAN S.B. OLIVER
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ELIZABETH SMITH
MOTLEY RICE LLC
401 9th St. NW, Suite 1001
Washington, DC 20004
Phone: [phone]
[e-mail]
August 28, 2017

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on August 28, 2017, I filed the foregoing statement through this
Court’s CM/ECF system, and that all parties required to be served have been thereby served.
/s/ Deepak Gupta
Deepak Gupta

32