In Re: Application for Exemption

Appellate courts lack the jurisdiction under 28 U.S.C. § 1291 to review decisions dealing with the collection of user fees for the Public Access to Court Electronic Records system because the decision is an administrative action that is issued outside of the litigative function and is not of a judicial character.

Jennifer Gollan and Shane Shifflett are journalists who work for a 501(c)(3) not-for-profit journalistic organization. In March of 2012, Gollan and Shifflett applied for an exemption from the fees normally required to access the Public Access to Court Electronic Records (“PACER”) system where the public can access case filings, judicial opinions, and other docket information from various federal courts. Certain classes of people are exempt from the fee if it would impose an “unreasonable burden.” The 2012 fee schedule from PACER instructed the courts that they should think about exempting various types of users of the PACER system, including 501(c)(3) organizations but not a “member of the media.” Gollan and Shifflett were eventually denied regardless of their argument that the policy notes of the fee schedule allows for exemptions of media members who work for 501(c)(3) organizations. Following the denial of their application, Gollan and Shifflett filed a timely appeal. The Ninth Circuit, after having asked the Administrative Office of the U.S. Courts to appear as amicus, ruled that it lacked jurisdiction to review because the denial of an exemption of the PACER user fee is not an appealable order under 28 U.S.C. § 1291. The panel reasoned, based on statutory and constitutional interpretations, that section 1921 grants jurisdiction for review on decisions that are of a judicial character and not administrative actions that are taken “outside the scope of the litigative function.” The panel held that Gollan and Shifflett’s application for exemption is clearly an administrative decision because it stemmed from a non-adversarial proceeding and the application was not connected to any pending litigation. DISMISSED.