Courtney Minick

The Judicial Council announced last week that they plan to expand a pilot program to push federal court opinions to FDSys. In theory, that means that all federal court opinions could be published and freely available in the FDSys database soon.

FDSys is the digital repository for federal publications. It is operated by the Government Printing Office. Last year, the Judicial Council announced that it would begin integrating some opinions from PACER into FDSys. It began with opinions from 28 courts (three circuit courts of appeal). In December, I checked up on that and saw that FDSys had slip opinions in it and that they were actually being indexed by Google. I noted that they were a little behind, and they were slip opinions, not the officially published opinion, but hey – better than nothing.

In the latest announcement, the Judicial Council tells us that  “the functionality to transfer opinions to FDsys is included in the latest release of CM/ECF which is now available to all courts. Twenty-nine courts participated in the original pilot, and now, all courts may opt to participate in the program.” If I am reading this correctly, federal courts may now opt in to have their opinions transferred to FDSys. It’s not automatic or mandatory.

CALI has developed a prototype for uploading, storing, and sharing official court opinions called CourtCloud. Elmer Masters, the Director of Internet Development there, calls it a “Dropbox for courts.” The purpose of CourtCloud is to help courts self-publish their opinions.

I’ll break it down for non-technical people (such as myself):

The court clerk or judge has a CourtCloud folder on their computer desktop. When the opinions are written and ready to go, the clerk will drag it into the folder. From there, it is uploaded to the secure Court Cloud server. There, an algorithm converts it to pdf, html, and xml formats and places them into the same folder. The clerk can retrieve them in the chosen format and publish them to the court website. A copy will also automatically go to the Free Law Reporter, CALI’s court opinion database.

Access to opinions and codes is of particular interest to the bloggers at Justia. We complain mightily about private citation formats, paywalls to codes and caselaw online, privatization of court services and filings, and the government’s overall failure to provide us with official, free access to the public record. Last week’s news about the reauthorization of the FISA Amendments Act, however, highlights an altogether different problem of access to the law: secret, sealed court opinions from the nation’s Foreign Intelligence Surveillance Act Court. This body of law is not available for free or for purchase. It is sealed and hidden from the American people.

There is plenty of news coverage about the Act, and plenty of opinions online about the threat it poses to the freedom and privacy of Americans and non-Americans here and abroad. I’d like to highlight the problem of access to the output of the FISA Courts, and why we are still in the dark about their decisions – decisions that are legally binding precedent but that we know nothing about.

The Ninth Circuit Court of Appeals recently announced that it will move to “in-house publishing” of its opinions. According to the press release, “Court staff now manage the process of converting opinions from the original word processing documents into Adobe PDF files, which are then uploaded onto the website, where they can be viewed and/or downloaded by the public.” This task was previously managed by West Publishing, and bringing it in house is expected to save the court $350,000 in the first year.

Hooray? Sort of. I’m glad the Ninth Circuit will be saving itself over a quarter of a million dollars, but that’s basically the only public benefit here. In fact, the headline on the press release is a bit misleading, because the court is not officially publishing their own opinions – West is still doing that. The documents they post are only slip opinions. They are official and can be cited only for a short time before they are published by the official publisher (The Federal Reporter, owned by Thompson West). In order to effect real savings and provide true open access for the public, the Ninth Circuit needs to take this further and actually publish their own opinions.

Right now, when the Ninth Circuit judges issue an opinion and release it on the Web, it is immediately available to read and cite as a slip. After that, however, they send the opinions to Westlaw, who copy-edits each opinion and adds a citation in order to resell it in this final “official” version (in the Federal Reporter). I talked with David Madden in the Public Information Office at the Court, and he confirmed that this process will not change; West’s Federal Reporter will continue to publish the official opinions.

It appears that court opinions in FDSys are being indexed by the search engines now. If you’ll recall, the GPO announced last year that it was importing opinions from some federal courts into its centralized database (FDSys). In theory, this means that users would be able to search across a large collection of government documents that will now include published court opinions.

FDSys now contains opinions from 28 federal courts, including 3 Circuit Courts of Appeal (the 2nd, 8th, and 10th). I am happy to see that these are now indexed by Google, so the opinions will appear among search results when individuals search the web. It’s one step closer to aggregating this information in one central location.

Of course, FDSys is still very limited. It’s only pulling opinions from a few courts, and it doesn’t seem to be up to date. I searched for a case from October (Windsor v. United States), and could not find anything. The GPO announced last year that its funding was cut, so this program may be stalled.

California Watch, part of the Center for Investigative Reporting, has a post this week about the relative costs and revenue of PACER. We’ve talked about the problems with PACER fees and the impediments to access before, and it is certainly a familiar topic to those of us in the free law community, but it hasn’t gotten much attention outside of that.

It seems the California Watch found this information by doing some digging on PACER fees after it was denied a limited exemption based on its status as a nonprofit organization. Academics and nonprofits are typically awarded a waiver of fees “to promote public access to information.” CIR was originally granted an exemption, but then it was revoked, allegedly on the grounds that CIR is a media organization. According to the post, CIR is appealing the decision to the Ninth Circuit Court of Appeal.

This week’s cases are more like news of the weird than any special legal precedent.

Take Burke v. Air Serv. Int’l, Inc., which held that plaintiff was not entitled to rely on Westerns in the place of expert testimony. Yeah. In that case, the Plaintiff, a former British soldier, was severely wounded in an ambush in Afghanistan. He sued the transport company that furnished the helicopter he flew in on and the construction company that contracted with his employer for his security services, alleging that they had negligently failed to take appropriate security measures for his trip. The district court granted summary judgment for the Defendant as Plaintiff failed to proffer an expert to testify regarding the standard of care for such security precautions. Plaintiff appealed, maintaining that no expert was required because, inter alia, “every juror will have seen” such films as High Noon. Make a note, counsel: reliance on old Westerns rather than expert testimony to establish a standard of care may be fatal to a negligence claim.

Another opinion on in-air injury came out of the 7th Circuit this week. In LeGrande v. United States, plaintiff flight attendant sued for injuries she sustained during turbulence aboard an aircraft. Instead of going after the carrier (her employer), she used the Tort Claims Act to sue the US under the theory that FAA negligently had failed to warn the flight’s captain that turbulence had been forecast along the flight path. The district court granted summary judgement for the US (affirmed by 7th Cir.), but plaintiff was undeterred. She next argued that her injuries resulted from the negligence of a National Weather Service meteorologist. The court concluded that the FAA breached no duty owed to LeGrande and that LeGrande failed to give the NWS the notice that the FTCA requires. If at first you don’t succeed, try! try! again.

Some noteworthy cases this week, as reported by our Daily Summary Writers.

The 10th Circuit reversed a sentencing ruling for a defendant found to be practicing law without a license. In  US v. Kieffer, the Court found that “By all appearances, Defendant Howard Kieffer had a successful nationwide criminal law practice.” What he didn’t have was a license to go with that practice. He never attended law school, sat for a bar exam, or received a license to practice law. He was convicted of mail fraud, making false statements, wire fraud, and contempt of court. On appeal, the 10th Circuit remanded for resentencing, finding errors in the trial court’s sentencing calculations.

The 5th Circuit issued a ruling involving the First Amendment and journalistic access. In United States v. Aldawsari, a journalist appealed the district court’s gag order preventing a terrorism suspect and his legal team from speaking to the media. The journalist argued that the gag order violated his First and Fifth Amendment rights. The 5th Circuit concluded that the gag order affected appellant’s right to gather news and therefore, he had standing to challenge it. However, on the merits, appellant had not shown that the gag order violated the First Amendment since the gag order was not overly broad on its face. Additionally, the gag order did not violate the Fifth Amendment because the denial of his motion to intervene did not limit his right to earn a living through news gathering in violation of his due process rights.

The big case last week was Commonwealth v. U.S. Dep’t of Health & Human Servs. out of the 1st Circuit, which found Sec. 3 of the Defense of Marriage Act, 1 U.S.C. 7 (“DOMA”) unconstitutional. Section 3 denies federal economic and other benefits to same-sex couples lawfully married in Massachusetts and to surviving spouses from those couples, by defining “marriage” as “only a legal union between one man and one woman.” “Spouse” refers “only to a person of the opposite sex who is a husband or a wife.” The court applied “a closer than usual review” based on discrepant impact among married couples and on the importance of state interests in regulating marriage and tested the rationales for DOMA, considering Supreme Court precedent limiting which rationales can be counted and the force of certain rationales.

More coverage at the WSJ Law Blog.

We had some cases with interesting facts come up this week.

The United States Supreme Court issued a ruling on providing survivor benefits to children conceived by in vitro fertilization, with frozen sperm, after the father died. In Astrue v. Capato, Respondent mother of the twins applied for Social Security survivors benefits for the twins, relying on 42 U.S.C. 416(e) of the Social Security Act, which defined child to mean, inter alia, “the child or legally adopted child of an [insured] individual.” The Social Security Administration denied the application, reading the act to entitle biological children to benefits only if they were qualified to inherit as a decedent under state intestacy law. The USSC upheld this interpretation, ruling that it was more in tune with the purpose of the statute, to provide for children who were supported by the deceased wage earner.