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Documents Legal, Laws, and Regs

No Appeal on PACER Fee Exemption Decision

Courthouse News Service posted a story about journalists losing a court case on PACER fees. The journalists were from a non-profit organization, which can usually apply for a PACER fee exemption. However, they’re also journalists, and a new policy note attached to the 2013 fee schedule change warned against fee exemptions for journalists.

The note states:

Courts may exempt certain persons or classes of persons from payment of the user access fee. Examples of individuals and groups that a court may consider exempting include: indigents, bankruptcy case trustees, pro bono attorneys, pro bono alternative dispute resolution neutrals, Section 501(c)(3) not-for-profit organizations, and individual researchers associated with educational institutions. Courts should not, however, exempt individuals or groups that have the ability to pay the statutorily established access fee. Examples of individuals and groups that a court should not exempt include: local, state or federal government agencies, members of the media, privately paid attorneys or others who have the ability to pay the fee. [emph. added]

Unfortunately, the note is making a rather dated assumption that all journalists work for the Washington Post, when in actuality, many journalists work for small nonprofits who don’t have a great deal of cash on hand.

Problems with fee exemption language aside, what stood out in this case was the court’s aside on the fact that there really is no way for an individual or organization to appeal a PACER fee decision. As Judge O’Scannlain noted at the beginning of his opinion:

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

Yes, indeed: who do we go to when appealing a PACER fee exemption decision? Considering how expensive PACER is, and how the costs can quickly escalate because of arbitrary charging for almost all activity, entities can find it extremely expensive to access court documents via the application. Yet many of the entities serve the needs of the community when accessing the documents, and do so without generating a profit. So, where do these entities go when a fee exemption decision doesn’t go their way?

Evidently, as things now stand, nowhere. At the end of O’Scannlain’s opinion, he wrote:

PACER fee determinations are just one of the “increasing numbers of administrative responsibilities” being assigned to district courts “that are not subject to review by appeal.”….

Because (as the opinion discusses) there is “no right of formal appeal” to contest the amount of a Criminal Justice Act fee award, Congress decided to create an administrative “review process separate from the traditional right of appeal.” In re Smith, 586 F.3d 1169, 1173 (9th Cir. 2009) (explaining that “excess fees must be approved both by the presiding judge and the chief circuit judge or his delegate”).

Assuming ordinary PACER-fee determinations are not reviewable by the judiciary’s administrative apparatus, it will be up to Congress to decide whether to fashion an appellate review mechanism, or whether to leave them within the exclusive purview of district courts.

Categories
Documents Legal, Laws, and Regs

Another excellent court resource: Justia

I was reminded of another valuable resource for accessing court documents: Justia. I’ve used the site many a time, and it’s helped me discover cases related to one entity or another more than once.

You can search for a court case for free at Justia, and once you’ve found the case, you can then directly access the PACER court documents from the returned result. Using Justia you can save on the dime-a-page query forms that PACER provides.

As an example, when I searched on “Front Range Equine Rescue” and New Mexico, I found the listing for the court case I’m currently following related to horse meat plants and USDA inspections that has been on fire with activity today. Yes, I still need to use PACER to access the docket and court cases, but I’ve saved from a dime to a dollar just finding the case.

Hey, every penny counts.

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Documents Legal, Laws, and Regs

Front Range Equine Rescue vs. USDA on allowing horse slaughter: Update

This court case has been on fire today. Several new filings, all related to the recent motion by the plaintiffs to re-word the TRO (Temporary Restraining Order) and bond amount. The judge gave the defendant USDA and interveners until noon today to respond.

I’m re-doing the docket sheet for the case, and will post it and links to all downloaded court documents later. I’m also writing a follow up article on the case at Burningbird web site. For now, though: links to today’s filings.

Motion against filed by Responsible Transportation

Motion against filed by International Equine Business Association and a pack of other people and groups.

Declaration by Ricardo De Los Santos

Motion against by the USDA

Motion against filed by Valley Meat Company et al

Memo in support by the State of New Mexico

There are associated attachments, too, but this should be enough to keep folks busy.

Categories
Legal, Laws, and Regs

Dry wit among the legalese

I have mentioned, at least once or twice, that legal documents aren’t as dry and obtuse as many people think they are. Indeed, some court decisions display a dry wit that can put any nonfiction best seller to shame.

Take a recent decision by the DC Appeals court in the case Conservation Force, Inc. et al v. Sally Jewel et al. A group of people, wanting to enable rich sportsmen to bring home their trophy kills of the straight-horned markhor, sued the Fish and Wildlife Service (FWS) because it did not respond in a timely manner to a petition to reclassify the endangered markhor as threatened (allowing said rich sportsmen to bring home their trophies, among other things). The court dismissed the claim because it was time-barred. The petitioners promptly filed an appeal.

The DC Appeals court dismissed the complaint because it’s no longer moot—while the case was ongoing, FWS did reclassify the markhor as threatened rather than endangered, so the original claims of injury are no longer relevant.

This case is just one of many challenging endangered status for any number of animals, in this country and out, and as such is of concern to those of us who see such actions as part of an overall campaign to weaken the Endangered Species Act. But it is the wording of the decision that really makes it stand out.

I don’t want to give away the fun bits. Download the decision by Chief Judge Garland, and read at least the first page of the decision (page 2 in the document). Pay particular attention to the first footnote.

And if you’re concerned about the Endangered Species Act, take the time to read the rest of the document.

(h/t to David Ingram)

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Documents Legal, Laws, and Regs

Update on the PACER story

Thanks to tweets from John Hawkinson (@johnhawkinson), I’m now aware that there is a way to access detailed daily transactions.

There is a link to a form that provides this, though the link is not available (as far I can see) from the primary Manage My Pacer page at PACER. The link is available at some district courts ECF systems, via the Utilities submenu. Only some of the courts, though. For instance, it’s available from the Massachusetts district court.

Utilities page at Massachusetts district court

But it’s not available from the Idaho district court’s ECF page.

Utilities page at Idaho district court

Regardless, it works for all courts…once you can find the link. And now we have the link. Hurrah!

John also mentioned about the various forms of querying for the docket. The one I use looks like the following:

https://ecf.idd.uscourts.gov/cgi-bin/iqquerymenu.pl?22237

This is for the court case related to Sackett vs. EPA, one of the court cases I follow. I use this to access documents directly, or print out History, which is the docket sheet.

Query page using first method

There is another method of querying that does give you more finite control of accessing the docket sheet. The query for this looks like the following:

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?156742&98

This is one of the peripheral cases I’m following for my Ringling Brothers book. This query page does provide more finite control over the history page (docket sheet) that’s returned. It is an effective way of only accessing recent docket entries.

Query page using second method

But you’re still going to get charged, even if there’s been no update and no docket entries are returned.

Even no results costs you a dime

PACER should not be charging for queries, it should be charging for document access. And again, consistency would go a long way towards transparency.

John also mentioned that, though the courts follow the same laws, they do have different local rules. So, the Massachusetts district court has one set of local rules, the DC district court has another.

However, the authorization for PACER is federally mandated, and the system is definitely centralized. At least at some point. If it weren’t, when I query for pages in the Idaho court, I wouldn’t be able to access this transaction using the utilities in the Massachusetts court…but I can. Immediately, in fact.

The local rules don’t, and should not, impact on how PACER works. They may impact on what’s filed, fees, when something is filed, what a judge does, how big a document a document can be, how many separate files are uploaded, but it shouldn’t impact on the underlying PACER system. They may impact on each court’s CM/ECF (Case Management/Electronic Case File) system, but that’s not PACER.

Keep the two separate in your mind, because they’re not the same thing. They may run off the same data but they are not the same thing.

By not being consistent, some user accessing the Sackett court case is unaware of the link that allows them to check their daily transactions. However, a person accessing one of the Ringling Brothers court cases can easily access this link from the Utilities menu from the case query page. And no one has access to it from their main Manage My Pacer account page.

That’s just plain cracked.

It gets worse when you access the RSS feeds. Some contain one form of query page for accessing the document associated with the new docket entry; others return a different query page. Sure, this works, if you only access documents for one court. You would never see the inconsistencies. But this is the internet … people using PACER are frequently interested in court cases from multiple courts.

Do I need to repeat my statement about this being just plain cracked?

Lastly, John mentioned the fact that our federal courts are being strangled by the sequester.

I am more than sympathetic to the courts when it comes to the fact that they don’t have sufficient funding. I’m appalled we would strangle an important component of our government over childish bickering on budgets. Our Congress should be deeply ashamed.

However, the absurdities due to sequester are not PACER’s responsibility. And PACER can’t be used to fix a broken Congress.