Large Scale Shell Game Fraud by the United States Courts is Alleged Relative to the Implementation of PACER and CM/ECF

Dual Electronic Docketing Systems of the United States courts examined with focus on application at the Central District of California

By installing PACER AND CM/ECF, the US courts introduced a sea change in operations of the courts, with no legal foundation.” In a paper entitled “Notice of Electronic Filing,” Joseph Zernik writes, “The authority for implementation of CM/ECF is often cited as the Federal Rules of Civil Procedure, which allow Local Rules of Court. However, the implementation....was not via Local Rules of Court.” Zernik goes on to note that “the detailed rules of implementation of PACER and CM/ECF at the Central District of California, for example, were only provided in an ‘Unofficial Manual’...”

“This is the biggest shell-game fraud in the history of the legal process,” states Zernik.

In other words, alleges Zernik, there are now two separate systems in place – one for the public and one for the elite tier of lawyers and officers of the court. In so doing, the public right to inspect public documents was severely mitigated. Specific court records, which used to be standard part of the public docket, were subject to restrictions, and public access is now denied to such records. The courts created two docketing and access systems, separate and unequal, and asserted the right to segregate persons into one system or the other. The spokesperson for PACER stated that while there were indeed two systems in place, one was for public access and one was for filing.

Apart from the obvious issues raised by such two separate systems Zernik uncovered further cause for alarm. When the court systems became computerized, the common law practices also altered, subtly and nearly undetectably. The prior procedure, which required that an authorized Deputy Clerk of the court stamp each paper “Entered” and endorse it with his hand signature to attest to the entering of documents into a given case docket, was altered with no legal authority. In place of the stamp and hand signature of an authorized deputy clerk, we now have Notices of Electronic Filings (NEFs), bearing digital signatures. , The digital signature in the NEFs appear in the NEF records as computer-generated strings of letters, which do not necessarily affirm that a living, breathing person has even viewed or approved the documents to be filed or entered. These digital signatures can, in fact, be programmed into a system so that paperwork is filed and entered which has not even been assessed to be ready for filing and entering. Zernik has affirmed that attorneys are entering documents and the court computer system is automatically generating a Notice of Electronic Filing (NEF), in the apparent absence of clerk oversight prior to the entering of such records into the court dockets.

“The NEFs and its digital signatures are crucial in validity of the entire practice of PACER and CM/ECF” said Zernik, “They replaced the certification of entry of court records by the clerk”. The function of the clerk in such certification of entry was critical check and balance for the safeguard of integrity of the courts for many generations.

Zernik claims that the manner in which PACER and CM/ECF were implemented further eliminated another crucial safeguard of integrity of the courts and due process of the law – authentication of court records. The term refers to the general requirement that papers be noticed and served upon parties prior to entry into court dockets. “The NEFs and their digital signatures also replaced the authentication of records by parties and by the clerk of the court,” stated Zernik, “and yet, such fundamental change in the operations of the courts was implemented with no authority at all.”

Therefore, Zernik claims that in introducing PACER and CM/ECF at the federal courts, the courts have acted with no authority, have circumvented some of the basic and fundamental procedures, which have been established over centuries as critical safeguards for integrity of the courts, and initiated a stream of cases where individuals were subjected to alleged fraud by the courts.
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Table 1 Schematic overview and comparison of paper-based versus PACER & CM/ECF operational procedures relative to filing and entry of papers at the US courts.

A. Paper-Based Operations

Record Type Attestation By Clerk
1 Papers filed by attorneys · Stamp “ENTER” and wet hand-signature of an authorized deputy clerk, subject to review by such authorized deputy clerk. · Stamps and signatures were part of the public records.· Deputy Clerk was held accountable for such conduct.
2 Papers filed by pro se filers · Were subjected to the same procedures as papers filed by attorneys, #1, above.
3 Minutes, Orders, and Judgments filed by the court · Served on parties by authorized Deputy Clerk, who also completed Certificate of Mailing and Notice of Entry, bearing wet, hand signature.· Stamps and signatures were part of the public records.· Deputy Clerk was held accountable for such conduct.





B. Pacer And CM/ECF Based Operations

Record Type Attestation By Clerk
1 Papers filed by attorneys · Papers are filed and entered by authorized attorneys to the respective court directly into the docket. · An Notice of Electronic Filing (NEF) is automatically issued by computer of the courts, which is not associated with any particular individual authorized as Deputy Clerk of the court. · No prior review by an authorized Deputy Clerk is involved. · The NEFs are automatically emailed to authorized attorneys, but no to pro se filers. · The NEFs bear valid, RSA-encrypted digital signatures, however, such digital signatures are machine generated, and are not associated with any individual accountable for the conduct.· The NEFs and their digital signatures were eliminated from PACER and therefore, are now concealed and are not part of the public records.
2 Papers filed by pro se filers · Pro se filers are not allowed access to CM/ECF, and are required to continue to be filed on paper. · Upon filing, the papers are subjected to review by an authorized Deputy Clerk prior to entry into a docket. · Entry is affected by scanning by court staff of the paper records which were filed by pro se filers, and then execution of electronic filing of such scans by court staff. · The evidence showed that in contrast with records which were filed by attorneys, where in all cases inspected resulted in the automatic issuance of a valid NEF, in cases of papers filed by pro se filers, at times no NEF were issued, or invalid NEF were issued, bearing no digital signatures. In no case that was examined were NEFs served on pro se filers after electronic entry of the records of the pro se filer by the clerk.· The end result is that such minutes, orders, and judgments appeared in the PACER court’s docket, and pro se filers relied upon such PACER dockets and assumed that such papers were entered. However, the court and authorized attorneys had access to a different set of records in CM/ECF, which documented that in fact such papers were never subjected to valid entry.
3 Minutes, Orders, and Judgments filed by the court · May be filed by the court either through direct electronic filing in CM/ECF, or on paper, then subjected to scanning and electronic filing in CM/ECF by court staff. · The evidence showed that minutes, orders, and judgments, which were issued by the court, were at time subjected to defective entry. In such cases, the minutes, orders, and judgments appeared in the PACER dockets, and the public at large would assume that such minutes, orders, and judgments were valid, and required “full faith and credit”. I fact, no NEF, or an invalid NEF – bearing no digital signature was issued in such cases. The court and authorized attorneys were privy to records that documented the void nature of such court minutes, orders, and judgment. However, the evidence of the void nature of such papers was concealed from the public, and access was denied when requested.