In re: Application for Exemption from Electronic Public Access Fees, No. 12-16373 (9th Cir. 2013)
Annotate this CaseApplicants sought a four-month exemption from the per page Public Access to Court Electronic Records (PACER) system fee. At issue was whether the court had jurisdiction to review the district court's administrative order denying the exemption. The court held that 28 U.S.C. 1291 necessarily refers to final decisions of a judicial character, not to administrative actions outside the scope of the litigative function. Because the order denying applicants a PACER fee exemption came before the court strictly in an administrative context, the court could not review under section 1291. Accordingly, the court dismissed the appeal for lack of appellate jurisdiction.
Court Description: Appellate Jurisdiction. The panel dismissed for lack of jurisdiction an appeal from the district court’s order denying an ex parte application for an exemption from the fees associated with electronic access to court records. As authorized by Congress, the fee protocol for users of the Public Access to Court Electronic Records system was set by the Judicial Conference of the United States, in cooperation with the Administrative Office of the Courts. The PACER fee waiver was sought by two journalists who were employed by a not-for-profit organization and wished to conduct a research project. The panel held that it did not have jurisdiction under 28 U.S.C. § 1291 to review the district court’s order because the order was an administrative order outside the scope of the court’s litigative function, rather than a “decision” of the district court. Distinguishing an unpublished decision of the Third Circuit and United States v. Poland (In re Derickson), 640 F.2d 946 (9th Cir. 1981) (per curiam), the panel held that the order was administrative because it arose from a non- adversarial proceeding, and the application for a fee exemption was wholly unconnected to pending litigation. Concurring specially, Judge O’Scannlain wrote that, assuming ordinary PACER-fee determinations are not reviewable by the judiciary’s administrative apparatus, including the Judicial Conference and the Judicial Council of the Circuit, it will be up to Congress to decide whether to fashion an appellate-review mechanism, or whether to leave the fee determinations within the exclusive purview of district courts.
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