Bipartisan measure in lower chamber same as bipartisan Senate bill introduced over the summer

Fix the Court is applauding Reps. Hank Johnson (D) and Darrell Issa (R) for introducing the Open Courts Act of 2021 last night to modernize the federal courts’ case management system and make access to filings free. The text is the same as the Open Courts Act, S. 2614, introduced by Sens. Ron Wyden (D) and Rob Portman (R) on Aug. 4.

“Though the judiciary has acknowledged of late that CM/ECF and PACER are a mess and has begun working on fixes, lawmakers in both parties still believe only a legislative solution will guarantee the type of cost-free, seamless access to court filings the American public deserves,” FTC’s Gabe Roth said. “It’s encouraging that those leading the work to improve court transparency in the House and Senate want to move forward in a coordinated way, as demonstrated by their agreement on bill text, and I look forward to committee markup, and possibly a floor vote, in the coming weeks.”

In September, Administrative Office of the U.S. Courts Director Roz Mauskopf told Reps. Johnson and Issa that although she didn’t see legislation to overhaul CM/ECF and PACER as “necessary,” she hoped that any bill they’d introduce be “limited” and would ensure “adequate, predictable, and stable financial resources” to fund the work.

The bill does adequately fund the transition away from the current system, but FTC would argue it’s not “limited,” as it would once and for all end the antiquated fee-for-access scheme that’s been an embarrassment for decades.

Both 2021 OCAs require that access to filings be free to all and the currently diffuse system of federal court records be consolidated into a single searchable system, all by no later than three years post-enactment. This is a quicker turnaround than the version of OCA that passed the House last December, which would have required free PACER and a modernized CM/ECF by Jan. 1, 2026.

The new filing and retrieval system envisioned in the OCA would have iterative software development and release practices, so new features would be rolled out every few weeks. In other words, “new PACER” wouldn’t replace “old PACER” so much as, over time, new features would be phased in to continually improve user experience. This strategy is exactly what the GSA’s technology consultant, 18F, has recommended to the judiciary.

Should the judiciary need funding beyond its current annual appropriation to make these improvements – estimated by leading technologists and the CBO to be a few million dollars per year – entities that currently spend $100,000 annually on PACER (“power users”) would pay certain usage fees to the judiciary. And if for whatever reason those fees don’t cover new costs (after all, the AO is being audited as we speak), the judiciary could raise filing fees, albeit only a small amount and only in rare instances, or request additional appropriations from Congress.

To fund the operation of the improved CM/ECF and PACER systems into the future, federal agencies would each year pay a fee to the judiciary equal to their 2018 PACER bill plus inflation.

The federal court case over whether PACER’s funding scheme as it currently exists is lawful (16-745, NVLSP v. U.S.) remains ongoing. Last summer, a federal appeals court found that the judiciary had improperly used PACER fees to buy flat-screen TVs for jurors, send bankruptcy notices and conduct a study for the state of Mississippi on its own court system. Currently, the parties in the case, now back in the D.C. District, are negotiating with a mediator, and a joint status report is expected on Nov. 15.