“Do you have a lot of trouble answering questions in life or just when you come to the court?”

That was Federal Circuit Judge Raymond Clevenger to a DOJ lawyer when she wouldn't answer hypotheticals during oral argument on PACER fees. From Politico:

A lawsuit accusing the federal court system of treating nearly a billion dollars in online access fees like a slush fund got a favorable reception on Monday from an appeals court, where the main question that judges seemed interested in debating was how to calculate the extent to which the public was bilked.

A three-judge panel of the U.S. Court of Appeals for the Federal Circuit heard arguments on a class-action lawsuit filed in 2016 that picked up on federal judges’ claims that the user fees from the so-called PACER system were being used to broadly subsidize the courts’ information technology budget, rather than being used solely to cover costs related to making court records available online.

At issue is about $145 million in fees that users pay each year to search for and download federal court filings. The courts typically charge 10 cents a page for electronic copies of those filings. It’s a meager amount, but the bills can add up to hundreds or thousands of dollars a month for law firms, electronic publishers, news organizations and nonprofit groups that use the records for a wide variety of purposes.

Two of the judges, Raymond Clevenger and Todd Hughes, sounded inclined to allow the lawsuit to continue over the objections of the Justice Department, which argued for dismissal of the case.

A Justice Department attorney, Alisa Klein, told the judges that Congress’ directions about what costs could be recovered through user fees were too vague to be the basis for a suit. She also said the alleged overcharges were impossible to calculate because surpluses in the accounts were carried from year to year, with the courts requesting appropriations to make up for shortfalls.

“That’s unknowable,” she said.

Clevenger asked, incredulously, whether the Justice Department was contending that PACER users couldn’t get refunds even if the courts incurred “knowingly, blatantly illegal” expenses on the accounts, like new curtains for the Supreme Court or “gold-plated toilets” for judges. He also raised the possibility that, under the government’s broad interpretation of the law, courts could use the PACER funds to publicize the menu in the Supreme Court cafeteria.

Klein initially resisted those hypotheticals, prompting a barbed response from the judge: “Do you have a lot of trouble answering questions in life or just when you come to the court?”