Public Access to Court Electronic Register (PACER) is being sued for overcharging customers, and continues to fail to notify customers that it charges for documents that it knows are not viewable

In September of 2016, a federal judge allowed a class lawsuit to proceed against a federal court archiving system, Pacer.gov, for overcharging its customers.  The lawsuit was filed in January of 2016.

Pacer.gov is a federal archive of open filings with federal courts, and claims that its fees (10 cents per page) are justified because they defray the costs of maintaining the system.

Yet, the lawsuit alleges that Pacer charges much more than to pay for maintaining that system.

I am a longtime user of Pacer, and I have recently encountered yet another problem with the system - the problem that Pacer charges for services it does not deliver.

Here is what's happening.

When you find on Pacer.gov a case you want to view, you click on it, and there is a link to view, for example, the case's "docket report" - every filing made in a certain federal court case open to the public.

Within the docket report, documents to which public access is allowed are interlinked, so you can click on any link.

When you click on the link, and if it is not a court opinion (which is sometimes free and sometimes not free - in my experience) - you are asked whether you agree to be charged a certain amount for either an alternative of viewing or downloading the document, or for viewing only.

I have found no indication on Pacer why some documents are offered for viewing and downloading, and others are offered for viewing only.

Yet, when you choose the option of viewing, sometimes - lately, often, the document is not opening, and there is a notification on your screen from Pacer: "Can't open PDF".

The interesting part that the opening of one PDF document, and not being able to open another PDF document can be happening in the same Pacer session, working on the same computer, with the same browser, and even within the same case, while there are no Internet disruptions - which is obvious from the same computer, and other computers in the householders working at the same time perfectly well on the Internet, with other members of the family using the Internet at the very same time without any problems.

Yet, when you are billed at the end of 3 months (Pacer uses quarterly billing through a credit card), there are no breakdowns of what you were able to see, and what you were not able to see.

After Pacer refused to show me several documents, on several occasions, in politically sensitive cases I was researching, on November 30, 2016 I have sent a message to Pacer reporting the problem.

I received a nearly immediate reply:

When I indicated that I was using a PC, Windows 10, here is what Pacer representative answered:

So, Pacer DOES know that, with its documents are not viewable in the most popular web browser that is installed on all PC computers currently sold in the United States.

And, there is no notification about that for PACER customers, no breakdown of billing, and no indication that Pacer does not charge for items that the customers agreed to be charged for (in anticipation of viewing the documents), but were unable to view because such documents are allegedly not viewable in the browser - but the customers are not notified by Pacer ahead of time about it.

The PACER representative did not explain why, in the same Edge (Windows 10 browser), in the same court case, some PDF documents can be viewed, but others can't.

What is also unclear is - why, if PACER is aware of such a problem, it does not notify customers that it is preferrable to choose the option of downloading the documents instead of viewing - which would eliminate the problem with being unable to view PDF documents in certain browsers, and why PACER actually eliminated the downloading function for some documents, allowing only the "viewing" option - which does not work.

If a person wants to see a document for research, and time is of the essence - and the viewing cost is several dimes - the customer who was unable to open the PDF may repeat the attempt to view the file, likely incurring an additional charge.

I say likely because I, as a PACER customer, have never received a breakdown of charges, and I have just asked for such a breakdown.  I will also file a FOIA request for all my logins, "views" and "downloads", and will compare the breakdown of charges with logins to see whether PACER charged me for any failed "viewings" for the last 6 years - the statute of limitations for fraud.

Since, reportedly, over 2 million people are using PACER, the dimes for unviewable pages may have trickled for Pacer into hundreds of thousands, if not millions, of dollars of unlawfully obtained revenue.

And, another question, since the "can't open PDF" instances usually happened to me when I researched politically sensitive cases, I am starting to wonder whether PACER is carrying out a deliberate policy of blocking public access to certain sensitive public documents, by pretending that it is all "browser failure" - without putting notices or disclaimers for customers about it, and thus putting customers before such choices:

• to try and view the document again - risking to lose more money; or
• to give up viewing the document, or - the most unlikely of options;
• to try and mail PACER demanding to provide a paper copy of the document the customer paid for, or
• to bring a lawsuit for breach of contract, false advertisement, fraud and false business practices - which not many people will consider to do.

For example, today I was researching a case about apparently politically motivated criminal charges against attorney Marcus Mumford.

In the same browser, I was able to open:

• the docket report;
• the over 5 MB PDF image of handwritten charges against attorney Mumford, and
• attorney Mumford's emails to the court that the court claimed to be "ex parte communications", even though they were sent seeking public records before charges against attorney Mumford were filed.

But, I was unable to open the court order appointing an out-of-the-area judge to preside over the case, which may contain information about reasons for recusals of other judges from this disgraceful case.

The same things were happening to me before in other politically motivated cases.

By the way, in 2014 I sued a federal judge, magistrate David E. Peebles, then of the U.S. District Court for the Northern District of New York (his term expired mid-May of 2016, he continued to pretend he is a judge without an order of reappointment, and my challenge to that remained unanswered) for directing his personnel to spy against me on the internet.

Since LinkedIn allowed me to see the electronic traces of Judge Peeble's "intern"'s visit to my page, I was able to save that evidence and file it with the court.

The case was dismissed by the Northern District of New York judge who was then promoted to chief judge, Judge Glen Suddaby, on the grounds of "judicial immunity" - even though the spying occurred outside of court cases.

Then, in June of 2016, an attorney who I never saw or talked to, made a claim in a court pleading that the suspension of my law license in November of 2015 (which was claimed to be for undisclosed "frivolous conduct"), was actually for suing "everybody who is anybody" in New York State and in the U.S. District Court for the Northern District of New York.

That interesting piece of knowledge the attorney came up with after an ex parte hearing, off the schedule, without notice to me, with "judge" David Peebles - the transcript of which was sealed, and I was blocked from seeing it.

Now, the federal court system, NDNY and the 2nd Circuit, is fighting my FOIA request seeking, very simply, the lists of state and federal judges, as well as their "advisor" attorneys that have been participating for more than 30 years in the so-called New York State-Federal Judicial Council.

The information is denied to me on the pretext that I am seeking information about the federal judiciary.

Such a claim, of course, means that, somehow, state judges who appear as DEFENDANTS in civil rights actions in federal courts, are not part of federal judiciary - as well as attorneys who appear in federal courts as private attorneys, but who are at the same time advising state and federal judges.

Since so many interesting things are happening to me lately:

• a suspension without a hearing for a motion to recuse a judge;
• an alleged suspension, also without a hearing, in federal court, where the entire file of the proceeding is sealed, including the order of suspension - which must be a public record;
• the spying against me of judicial personnel on the internet;
• the interesting revelations that I was actually suspended because of my own - and even my husband's - professional activities of civil rights attorneys;
• and, information as to whether any of those judges that I sued on behalf of myself of my clients ever participated in the "shadow government" and were "part of the federal judiciary", without anybody's knowledge, is somehow secret - 

I will not put it beyond the court system from giving some kind of secret orders to block my viewing of certain documents on Pacer.

Whether this appears to be far-fetched or not, as far as I am concerned, personally, the issue of lack of notice to people about "non-viewability" of Pacer document, while charging for viewing those documents, and while providing no alternative option of downloading the document and viewing it off-line on customers' computer, remains a concern for all PACER customers.

Since, for me, these occurrences are ongoing, happen while I was using different browsers, denying me access to some, but not other documents in the same court case, in the same browser and during the same viewing/downloading session - which makes absolutely no sense - and the same may be happening to all other 2 million Pacer customers, it is obviously another class action waiting to happen, and I am seriously considering to bring it.

Right now I have notified PACER that I am considering a legal action, and I will continue to report how the case will develop.

Attorney Bryndon Fisher's class action on behalf of 2 million of PACER customers also claims - and the court so far allowed the claim to proceed - that when customers choose between viewing or downloading a PDF or an HTML format (and PDF format is sometimes not "viewable", pushing customers into obtaining docket reports in HTML formats only - that is my addition, not part of the lawsuit), they are being overcharged:

PACER counts the bytes it is charging against customers as billable pages 5 TIMES "when the case caption is more than 850 characters long" - or, in other words, for cases with a large number of defendants, likely, for politically "sensitive" cases.

Thus, whether the "systemic error" is deliberate or not, PACER, in effect, punishes customers - without notifying them - for trying to view politically sensitive cases against the government with a large number of defendants, or to view dockets in the lawsuits, whether civil rights actions, or class actions, with a large number of plaintiffs.

For those interested in the Fisher v USA lawsuit, here are:

1. The complaint;
2. The U.S. Court of Federal Claims' opinion denying the U.S.A. its motion to dismiss and allowing the class action to proceed;
3. The U.S.A.'s answer to the complaint;
4. The latest "status report" of the case, dated January 3, 2017.

I will monitor and report on this case, and on my additional claims of fraud and breach of contract against PACER, for lack of notice of non-viewability and charging for non-viewable documents.

Stay tuned.