The public's right to know what's happening in the courts, and the courts need for money to modernize the system and keep it running, are going to be an important ongoing public argument for years to come, SBM Blog suspects. That's what makes this case, In Re: Application For Exemption From Electronic Public Access Fees By Jennifer Gollan And Shane Shifflett, so interesting. The fees for users of the federal Public Access to Court Electronic Records (PACER) system are set by the Judicial Conference of the United States. Gollan and Shifflett, two journalists employed by a not-for-profit organization conducting a research project, applied for a waiver as authorized by the rules. The district court denied the waiver, and in June a 9th Circuit Court of Appeals panel dismissed the appeal for lack of jurisdiction. One of the panel members, concurring, wrote:
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?
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.” 15A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3903 (2d. ed. 1992). The authors of a leading treatise on federal procedure argue that perhaps “control may be exercised by the Judicial Council of the Circuit.” Wright & Miller, supra, at § 3903. Comprised of district and circuit judges, but not vested with “traditional judicial powers,” the Circuit Council has been described as a “‘board of directors’ for the circuit.” Chandler v. Judicial Council of the Tenth Circuit of the United States, 398 U.S. 74, 86 n.7 (1970); see also 28 U.S.C. § 332. Outside of the realm of judicial-misconduct allegations, the Judicial Councils typically “avoid involvement with any matter specific to the decision of an individual case.” Wright & Miller, supra, at § 3939. Under extraordinary circumstances not present here, i.e. a district court interpreting the fee schedule in bad-faith, the Administrative Office thought it was conceivable that those circuit bodies might appropriately deal with a PACER fee dispute. Cf. J. Clifford Wallace, Report of the Committee on Reorganization of the Circuit Conference and Conference Committees, 68 F.R.D. 469, 474 (1975) (explaining that each “circuit council has supervisory powers which are not clearly defined but do exist”). However, for more quotidian PACER applications the judicial councils would not be the place to turn.
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”).