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Florida case against PACER fees set for May 2019 trial

August 7, 2018

A Florida attorney, tired of being charged by PACER for accessing court opinions, has been given a trial date and is asking the district court to reconsider the denial of his attempt to bring in more plaintiffs.

Theodore D’Apuzzo filed a complaint in the U.S. District Court for the Southern District of Florida, Broward Division, in November 2016. He asserted the government was violating the E-Government Act of 2002 by forcing the users of the Public Access to Court Electronic Records system (PACER) to pay to read a judicial opinion.

Judge Robert Scola denied D’Apuzzo’s motion to certify a class in April 2018. While the district court agreed the E-Government Act mandates public access to written opinions, it found the Act does not require free access, nor does it define what a written opinion is.

D’Apuzzo had proposed the class would consist of “all PACER uses who, between Nov. 22, 2010 and Nov. 22, 2016, paid to access a document constituting a judicial opinion.” The government countered that identifying members of this class was beyond the capability of its software.

Consequently, the district court held the class could not be determined because the definition of opinion was inherently subjective.

The case, Theodore D’Apuzzo v. United States of America, 16-cv-62769, was then stayed at the district level while the plaintiff appealed to the 11th Circuit Court of Appeals. However, the appellate court denied the petition to appeal.

On Aug. 1, the district court reopened the case and set the schedule for moving forward. A trial has been set to begin May 13, 2019, in Miami, Florida.    

Monday, D’Apuzzo asked the court to reconsider its denial of his motion to certify the class. He contended the government should not be able to avoid a class action by hiding behind its own admission that there is no definition for “judicial opinion.”

D’Apuzzo wrote, “…if the Official Guidance is so ‘subjective’ or otherwise deficient that identifying ‘opinions’ under it is ‘fundamentally’ not possible, as the Government argues, to prevent injustice the Court should have fashioned a modified definition for purposes of the class, instead of allowing the Government to use those supposed deficiencies – which amount to a breach of its contractual obligations – as a shield against a class.”

Another challenge to PACER fees is continuing in the U.S. District Court for the District of Columbia. The parties in National Veterans Legal Services Program et al. v. United States of America, 1:16-cv-00745, are fighting over the parameters of an interlocutory appeal of the district court’s order denying summary judgment.

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