In re Exemption From Electronic Public Access Fees by Jennifer Gollan & Shane Shifflett, 728 F.3d 1033

Background

PACER charges remote users $0.10 per page; Judicial Conference authorized to set fees and to "provide for exempting persons or classes" who face unreasonable burden. 2012 fee schedule listed certain exemptible categories but included policy notes advising courts not to exempt government, media, or attorneys.
Journalists Jennifer Gollan and Shane Shifflett (initially at The Bay Citizen, later at Center for Investigative Reporting, a 501(c)(3)) applied ex parte in district court for a four-month PACER fee exemption to permit statistical research into judges’ conflict-checking systems.
District judge initially granted an exemption, then questioned whether the applicants were disqualified as "members of the media" under the policy notes; after a renewed application the judge denied the waiver, interpreting the policy notes to bar media exemptions.
Gollan and Shifflett appealed the denial to the Ninth Circuit; the Administrative Office of the U.S. Courts appeared as amicus to address appellate jurisdiction and the proper interpretation of the policy notes.
The Ninth Circuit considered whether the order denying the ex parte PACER-fee waiver was a reviewable "decision" under 28 U.S.C. § 1291 and whether it was judicial (appealable) or administrative (non-appealable).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the denial of the PACER-fee exemption is an appealable "decision" under 28 U.S.C. § 1291	The denial is a final district-court decision and thus appealable under § 1291	The order is administrative, non-adversarial, unconnected to litigation, and therefore not a § 1291 "decision"	Dismissed for lack of appellate jurisdiction: § 1291 covers final judicial decisions in cases/controversies, not administrative acts
Whether the order is judicial (litigative) or administrative	The order affects rights and interprets fee policy, so it is reviewable judicial action	It arose from an ex parte, non-adversarial application unconnected to any pending case, so it is administrative	Court held it was administrative (non-adversarial; not tied to litigation) and thus non-appealable under § 1291
Availability of First Amendment review of fee-schedule policy notes (media discrimination claim)	If policy notes categorically bar media from exemptions, that may be unconstitutional under the First Amendment	Policy interpretation and application by district courts are administrative; plaintiffs should bring a litigated challenge to obtain judicial review	The panel suggested such a constitutional challenge could be reviewable if brought in a civil action (adversarial), but did not reach the merits here
Whether In re Derickson or other precedents allow immediate appeal	In re Derickson permitted appeal of CJA-fee denial and thus analogously permits appeal here	Derickson was limited to CJA jurisdictional denials and situations tied to existing litigation; not analogous to ex parte, non-litigated PACER waiver denials	Distinguished Derickson: it involved a jurisdictional bar and a claim collateral to litigation; thus it does not authorize appeal here

Key Cases Cited

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) (finality standard for appealable orders)
Massachusetts v. EPA, 549 U.S. 497 (2007) (Article III adverseness requirement; courts adjudicate cases and controversies)
John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008) (consulting legislative history/Reviser's Notes in interpreting jurisdictional provisions)
Keene Corp. v. United States, 508 U.S. 200 (1993) (Congress defines lower federal court jurisdiction; caution in reading revisions as substantive changes)
In re Baker (United States v. Walton), 693 F.2d 925 (9th Cir. 1982) (distinguishing judicial decisions from administrative actions for § 1291 purposes)
In re Derickson (United States v. Poland), 640 F.2d 946 (9th Cir. 1981) (appealability of CJA-fee denial; limited to jurisdictional or collateral claims)
Bense v. Starling, 719 F.2d 241 (7th Cir. 1983) (no appeal where no pending case or adversarial parties; administrative action)