Case: Electronic Privacy Information Center v. National Security Agency

ELECTRONIC PRIVACY INFORMATION CENTER v. NATIONAL SECURITY AGENCY

U.S. Court of Appeals for the District of Columbia Circuit

LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER identifying Corporate Parent NONE for ELECTRONIC PRIVACY INFORMATION CENTER. (rdj) (Entered: 02/05/2010)

SUMMONS (4) Issued as to NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL, U.S. Attorney and U.S. Attorney General (rdj)

COMPLAINT against NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL ( Filing fee $ 350, receipt number 4616027382) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 02/05/2010)

1 Civil Cover Sheet

View on PACER

STANDING ORDER Signed by Judge Ricardo M. Urbina on 3/25/2010. Read this Standing Order carefully, it will govern this case. Failure to follow the Standing Order will result in sanctions.(tg, ) (Entered: 03/25/2010)

ANSWER to 1 Complaint by NATIONAL SECURITY AGENCY.(Wilkenfeld, Joshua) (Entered: 03/25/2010)

MOTION to Dismiss Partial Motion to Dismiss by NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL (Attachments: # 1 Text of Proposed Order)(Wilkenfeld, Joshua) (Entered: 03/25/2010)

NOTICE of Appearance by Joshua Ilan Wilkenfeld on behalf of NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL (Wilkenfeld, Joshua) (Entered: 03/25/2010)

Memorandum in opposition to re 4 MOTION to Dismiss Partial Motion to Dismiss filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Verdi, John) (Entered: 04/08/2010)

REPLY to opposition to motion re 4 MOTION to Dismiss Partial Motion to Dismiss filed by NATIONAL SECURITY AGENCY, NATIONAL SECURITY COUNCIL. (Wilkenfeld, Joshua) (Entered: 04/15/2010)

Case reassigned to U.S. District Judge Beryl A. Howell. Judge Ricardo M. Urbina no longer assigned to the case. (gt, )

Set/Reset Deadlines: Joint Report due by 7/20/2011. (zalg, )

ORDER granting 4 Defendants' Partial Motion to Dismiss for the reasons set forth in the accompanying Memorandum Opinion. Signed by Judge Beryl A. Howell on 7/7/2011. (lcbah2) (Entered: 07/07/2011)

MEMORANDUM OPINION regarding 4 defendants' partial motion to dismiss. Signed by Judge Beryl A. Howell on 7/7/2011. (lcbah2) (Entered: 07/07/2011)

STATUS REPORT JOINT REPORT by ELECTRONIC PRIVACY INFORMATION CENTER, NATIONAL SECURITY AGENCY. (Wilkenfeld, Joshua) (Entered: 07/20/2011)

Set/Reset Deadlines: Supplemental production of responsive documents shall be filed by 8/30/11. Defendant's motion for summary judgment and supporting materials shall by filed by 10/11/11. Plaintiff's cross-motion for summary judgment and opposition to defendant's motion for summary judgment shall be filed by 11/11/11. Defendant's reply in further support of its motion and opposition to plaintiff's cross-motion shall be filed by 12/8/11. Plaintiff's reply in further support of its cross-motion shall be filed by 12/22/11. (zalg, )

MINUTE ORDER (paperless) adopting the following proposed SCHEDULING ORDER: The last day for supplemental production of responsive documents shall be August 30, 2011. Defendant's motion for summary judgment and supporting materials shall be filed by October 11, 2011. Plaintiff's cross-motion for summary judgment and opposition to defendant's motion for summary judgment shall be filed by November 11, 2011. Defendant's reply in further support of its motion and opposition to plaintiff's cross-motion shall be filed by December 8, 2011. Plaintiff's reply in further support of its cross-motion shall be filed by December 22, 2011. Signed by Judge Beryl A. Howell on 7/21/2011. (lcbah2)

MOTION for Summary Judgment by NATIONAL SECURITY AGENCY (Attachments: # 1 Memorandum in Support, # 2 Declaration Declaration of Diane M. Janosek, # 3 Tab A, # 4 Tab B, # 5 Tab C, # 6 Tab D, # 7 Tab E, # 8 Tab F, # 9 Tab G, # 10 Declaration Declaration of Mary Ronan, # 11 Statement of Facts, # 12 Text of Proposed Order)(Wilkenfeld, Joshua) (Entered: 10/11/2011)

1 Memorandum in Support

View on RECAP

2 Declaration Declaration of Diane M. Janosek

View on RECAP

3 Tab A

View on PACER

4 Tab B

View on PACER

5 Tab C

View on PACER

6 Tab D

View on PACER

7 Tab E

View on PACER

8 Tab F

View on PACER

9 Tab G

View on PACER

10 Declaration Declaration of Mary Ronan

View on RECAP

11 Statement of Facts

View on RECAP

12 Text of Proposed Order

View on PACER

Memorandum in opposition to re 12 MOTION for Summary Judgment Combined Cross-Motion and Opposition filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Statement of Facts, # 2 Statement of Genuine Issues in Opposition to Defendant's Statement of Material Facts, # 3 Text of Proposed Order)(Verdi, John) (Entered: 11/11/2011)

1 Statement of Facts

View on RECAP

2 Statement of Genuine Issues in Opposition to Defendant's Statement of Mate

View on RECAP

3 Text of Proposed Order

View on PACER

Cross MOTION for Summary Judgment Combined Cross-Motion and Motion for Oral Hearing by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Statement of Genuine Issues in Opposition to Defendant's Statment of Material Facts, # 4 Text of Proposed Order)(Verdi, John). Added MOTION for Hearing on 11/14/2011 (jf, ). (Entered: 11/11/2011)

1 Memorandum in Support

View on RECAP

2 Statement of Facts

View on RECAP

3 Statement of Genuine Issues in Opposition to Defendant's Statment of Mater

View on RECAP

4 Text of Proposed Order

View on PACER

Memorandum in opposition to re 13 Cross MOTION for Summary Judgment Combined Cross-Motion and Opposition MOTION for Hearing Combined reply in support of NSA's motion for summary judgment and opposition to Plaintiff's cross-motion for summary judgment filed by NATIONAL SECURITY AGENCY. (Attachments: # 1 Statement of Genuine Issues in Opposition to Plaintiff's Statement of Material Facts)(Wilkenfeld, Joshua) (Entered: 12/08/2011)

1 Statement of Genuine Issues in Opposition to Plaintiff's Statement of Mate

View on PACER

REPLY to opposition to motion re 12 MOTION for Summary Judgment filed by NATIONAL SECURITY AGENCY. (Attachments: # 1 Statement of Genuine Issues in Opposition to Plaintiff's Statement of Material Facts)(Wilkenfeld, Joshua) (Entered: 12/08/2011)

1 Statement of Genuine Issues in Opposition to Plaintiff's Statement of Mate

View on RECAP

REPLY to opposition to motion re 13 Cross MOTION for Summary Judgment Combined Cross-Motion and Opposition MOTION for Hearing filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Verdi, John) (Entered: 12/22/2011)

NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney John Arthur Verdi terminated. (Verdi, John) (Entered: 03/28/2012)

NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 03/28/2012)

NOTICE OF SUBSTITUTION OF COUNSEL by Judson Owen Littleton on behalf of NATIONAL SECURITY AGENCY Substituting for attorney Joshua Wilkenfeld (Littleton, Judson) (Entered: 05/22/2012)

NOTICE of Appearance by Ginger P. McCall on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (McCall, Ginger) (Entered: 10/10/2012)

STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Rotenberg, Marc) (Entered: 12/22/2012)

NOTICE OF SUBSTITUTION OF COUNSEL by Gregory Peter Dworkowitz on behalf of NATIONAL SECURITY AGENCY Substituting for attorney Judson O. Littleton (Dworkowitz, Gregory) (Entered: 07/08/2013)

NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Ginger P. McCall terminated. (McCall, Ginger) (Entered: 08/02/2013)

Set/Reset Deadlines: Joint schedule for supplemental briefing due by 9/16/2013. (tg, )

MINUTE ORDER (paperless) Pending before the Court are the 12 Defendant's Motion for Summary Judgment and the 13 Plaintiff's Cross-Motion for Summary Judgment, in which the parties dispute whether the "National Security Presidential Directive 54 ("NSPD 54") and related agency records," are exempt from disclosure under the Freedom of Information Act ("FOIA"). The parties assume in their briefing that the requested documents are "agency records" subject to FOIA disclosure, unless one of nine specific exemptions applies. See 5 U.S.C. ยง 552(b)(1)-(9); Pl's Mem. in Supp. of Cross-Mot. for Summ. J ("Pl's Mem.") at 2, ECF No. 13-1; Def's Mem. in Supp. of Mot. for Summ. J. ("Def's Mem.") at 3, ECF No. 12-1. In Judicial Watch v. United States Secret Service, Civil No. 11-5282, 2013 U.S. App. LEXIS 18119 (D.C. Cir. August 30, 2013), the United States Court of Appeals for the District of Columbia Circuit determined that certain White House Access Control System ("WHACS") records, which were "arguably created by White House staff... in the course of carrying out the constitutional, statutory, official, and ceremonial duties of the President," id. at 54-55 (internal quotations and citations omitted), were not "agency records" subject to the FOIA. In reaching this conclusion, the D.C. Circuit applied the modified control test set forth in United We Stand America, Inc. v. IRS, 359 F.3d 595 (2004), which had previously been applied only to Congressional records, 2013 U.S. App. LEXIS 18119 at 40-41 n. 21. A critical focus of the modified control test is whether "the non-covered entity here, the White House has manifested a clear intent to control the documents." Id. at 37. If the parties would like the opportunity to address the relevance, if any, of the D.C. Circuit's recent decision in Judicial Watch to the issues raised by the withholding of the requested documents in the instant case, the parties are directed to submit jointly, by September 16, 2013, a schedule for supplemental briefing. Signed by Judge Beryl A. Howell on 09/09/2013. (lcbah2)

STATUS REPORT JOINT STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 09/16/2013)

NOTICE of Appearance by Amie L. Stepanovich on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Stepanovich, Amie) (Entered: 09/16/2013)

ORDER GRANTING in part and DENYING in part the defendant's 12 Motion for Summary Judgment; GRANTING in part and DENYING in part the plaintiff's 13 Motion for Summary Judgment and DENYING the plaintiff's 13 Motion for Hearing as moot. The parties shall, by November 4, 2013, jointly file a proposed schedule to facilitate the timely production of records responsive to the second portion of the plaintiff's FOIA request and resolution of any disputes which may arise regarding their production. See Order for further details. Signed by Judge Beryl A. Howell on October 21, 2013. (lcbah1, ) (Entered: 10/21/2013)

MEMORANDUM AND OPINION regarding the defendant's 12 Motion for Summary Judgment and the plaintiff's 13 Cross-Motion for Summary Judgment. Signed by Judge Beryl A. Howell on October 21, 2013. (lcbah1) (Entered: 10/21/2013)

Set/Reset Deadlines: Response to Order of the Court due by 11/4/2013. (tg, )

MINUTE ORDER (paperless) entering the following SCHEDULING ORDER to control further proceedings in this matter. The defendant shall, by November 8, 2013, provide any remaining responsive records to the plaintiff or, in the alternative, submit a Vaughn index detailing the records or portions of records being withheld. The parties shall, by November 15, 2013, jointly file a proposed briefing schedule to resolve any outstanding disputes in this matter or advise the Court that this case should be closed. Signed by Judge Beryl A. Howell on November 4, 2013. (lcbah1)

STATUS REPORT JOINT STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 11/04/2013)

Set/Reset Deadlines: Defendant's Responsive records or in the alternative a Vaughn Index due by 11/8/2013. Joint Briefing Schedule due by 11/15/2013. (tg, )

MINUTE ORDER (paperless) CLOSING this matter. In light of the parties' 30 Joint Status Report, in which the parties state that there "are no further substantive issues to be resolved by this Court," the Clerk is directed to close this case. The Court retains jurisdiction of this matter for the purposes of determining appropriate allocation of fees and costs, if judicial intervention is warranted. The parties are ORDERED to jointly file, by December 16, 2013, a status report indicating whether briefing on fees and costs will be necessary and, if so, a proposed schedule for such briefing. Signed by Judge Beryl A. Howell on November 15, 2013. (lcbah1)

STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 11/15/2013)

Set/Reset Deadlines: Joint Status Report due by 12/16/2013. (tg, )

STATUS REPORT JOINT STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Stepanovich, Amie) (Entered: 12/16/2013)

NOTICE OF APPEAL TO DC CIRCUIT COURT as to 28 Order on Motion for Summary Judgment,, Order on Motion for Hearing,,,,,, 27 Memorandum & Opinion by ELECTRONIC PRIVACY INFORMATION CENTER. Filing fee $ 505, receipt number 0090-3568134. Fee Status: Fee Paid. Parties have been notified. (Rotenberg, Marc) (Entered: 12/17/2013)

Set/Reset Deadlines: Joint Status Report due by 12/20/2013. (tg, )

MINUTE ORDER (paperless) DIRECTING the parties, pursuant to their 31 Joint Status Report, jointly to file, by December 20, 2013, a status report advising the Court whether additional proceedings are necessary in this matter. Signed by Judge Beryl A. Howell on December 17, 2013. (lcbah1)

Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 32 Notice of Appeal to DC Circuit Court. (rdj) (Entered: 12/18/2013)

STATUS REPORT (Joint) by NATIONAL SECURITY AGENCY. (Dworkowitz, Gregory) (Entered: 12/20/2013)

MINUTE ORDER (paperless) DIRECTING the parties, upon consideration of their 34 Joint Status Report and the pendency of an appeal in this case, jointly to file, within 30 days of the disposition of the appeal, a status report advising the Court whether additional proceedings are necessary in this matter. Signed by Judge Beryl A. Howell on December 23, 2013. (lcbah1)

USCA Case Number 13-5369 for 32 Notice of Appeal to DC Circuit Court, filed by ELECTRONIC PRIVACY INFORMATION CENTER. (rdj)

NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Amie L. Stepanovich terminated. (Stepanovich, Amie) (Entered: 02/03/2014)

NOTICE of Acceptance with Offer of Judgment by NATIONAL SECURITY AGENCY (Attachments: # 1 Exhibit A: Offer of Judgment, # 2 Exhibit B: Proof of Service)(Dworkowitz, Gregory) (Entered: 02/10/2014)

1 Exhibit A: Offer of Judgment

View on RECAP

2 Exhibit B: Proof of Service

View on PACER

CLERK'S JUDGMENT ON OFFER AND ACCEPTANCE in favor of ELECTRONIC PRIVACY INFORMATION CENTER against UNITED STATES NATIONAL SECURITY AGENCY (tg, ) (Entered: 02/11/2014)

ORDER of USCA (certified copy) as to 32 Notice of Appeal to DC Circuit Court, filed by ELECTRONIC PRIVACY INFORMATION CENTER ; USCA Case Number 13-5369. ORDERED that the joint motion be granted.(kb, ) (Entered: 08/12/2014)

MINUTE ORDER (paperless) DIRECTING the parties, in light of their 41 Joint Status Report, to file jointly a status report with the Court by October 2, 2014, proposing a schedule to control further proceedings in this matter. Signed by Judge Beryl A. Howell on September 2, 2014. (lcbah1)

STATUS REPORT (Joint) by NATIONAL SECURITY AGENCY. (Dworkowitz, Gregory) (Entered: 09/02/2014)

NOTICE of Appearance by Alan Jay Butler on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Butler, Alan) (Entered: 09/02/2014)

NOTICE of Appearance by Ginger P. McCall on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (McCall, Ginger) (Entered: 09/02/2014)

Set/Reset Deadlines: Joint Status Report due by 10/2/2014. (tg, )

STATUS REPORT (Joint) by NATIONAL SECURITY AGENCY. (Dworkowitz, Gregory) (Entered: 10/02/2014)

MINUTE ORDER (paperless) DIRECTING the parties, in light of their 42 Joint Status Report, to file jointly a status report with the Court by October 16, 2014, proposing a schedule to control further proceedings in this matter. Signed by Judge Beryl A. Howell on October 3, 2014. (lcbah1)

Set/Reset Deadlines: Joint Status Report due by 10/16/2014 (tg, )

STATUS REPORT (Joint) by NATIONAL SECURITY AGENCY. (Dworkowitz, Gregory) (Entered: 10/16/2014)

Set/Reset Deadlines: Plaintiff's Motion for Attorney Fees due by 10/31/2014; Opposition due by 11/24/2014; Reply due by 12/8/2014. (tg, )

MINUTE ORDER (paperless) ISSUING the following SCHEDULING ORDER, in light of the parties' 43 Joint Status Report: the plaintiff shall, by October 31, 2014, file any motion for attorneys' fees; the defendant shall, by November 24, 2014, file any opposition; the plaintiff shall, by December 8, 2014, file any reply. Signed by Judge Beryl A. Howell on October 17, 2014. (lcbah1)

MOTION for Attorney Fees and Costs by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Text of Proposed Order)(Butler, Alan) (Entered: 10/31/2014)

Memorandum in opposition to re 44 MOTION for Attorney Fees and Costs filed by NATIONAL SECURITY AGENCY. (Attachments: # 1 Exhibit A: Parties' D.C. Circuit Joint Mot., # 2 Exhibit B: EPIC Nov. 2013 Draft Bills, # 3 Exhibit C: EPIC Sept. 2014 Draft Bills, # 4 Text of Proposed Order)(Dworkowitz, Gregory) (Entered: 11/24/2014)

1 Exhibit A: Parties' D.C. Circuit Joint Mot.

View on PACER

2 Exhibit B: EPIC Nov. 2013 Draft Bills

View on PACER

3 Exhibit C: EPIC Sept. 2014 Draft Bills

View on PACER

4 Text of Proposed Order

View on PACER

REPLY to opposition to motion re 44 MOTION for Attorney Fees and Costs filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Declaration of Alan Butler, # 2 Affidavit of Alan Butler, # 3 Affidavit of Marc Rotenberg, # 4 Affidavit of T. John Tran)(Butler, Alan) (Entered: 12/08/2014)

1 Declaration of Alan Butler

View on RECAP

2 Affidavit of Alan Butler

View on RECAP

3 Affidavit of Marc Rotenberg

View on PACER

4 Affidavit of T. John Tran

View on PACER

SURREPLY to re 44 MOTION for Attorney Fees and Costs filed by NATIONAL SECURITY AGENCY. (rdj) (Entered: 12/17/2014)

MINUTE ORDER (paperless) GRANTING the defendant's 47 Motion for Leave to File Surreply. The defendant's Surreply, filed at Docket Number 47-1, is deemed filed as of this date. Signed by Judge Beryl A. Howell on December 17, 2014. (lcbah1)

MOTION for Leave to File Surreply by NATIONAL SECURITY AGENCY (Attachments: # 1 Exhibit A: Proposed Surreply, # 2 Text of Proposed Order)(Dworkowitz, Gregory) (Entered: 12/17/2014)

Sur-SURREPLY to re 44 MOTION for Attorney Fees and Costs filed by ELECTRONIC PRIVACY INFORMATION CENTER. (rdj) (Entered: 12/18/2014)

MINUTE ORDER (paperless) GRANTING, over the objection of the defendant, the plaintiff's 49 Motion for Leave to File a Sur-Surreply. The plaintiff's sur-surreply, filed at Docket No. 49-1, is deemed filed as of this date. Signed by Judge Beryl A. Howell on December 18, 2014. (lcbah1)

MOTION for Leave to File a Sur-Surreply by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Exhibit 1: Proposed Sur-Surreply, # 2 Text of Proposed Order)(Butler, Alan) (Entered: 12/18/2014)

1 Exhibit 1: Proposed Sur-Surreply

View on PACER

2 Text of Proposed Order

View on PACER

ORDER GRANTING in part and DENYING in part the plaintiff's 44 Motion for Attorneys' Fees and Costs. The defendant shall, by May 11, 2015, pay the plaintiff $31,180.00 for its reasonable attorneys' fees and costs incurred as a result of this litigation. See Order for further details. Signed by Judge Beryl A. Howell on April 8, 2015. (lcbah1) (Entered: 04/08/2015)

MEMORANDUM OPINION regarding the plaintiff's 44 Motion for Attorneys' Fees and Costs. Signed by Judge Beryl A. Howell on April 8, 2015. (lcbah1) (Per Order of the Court entered on 5/20/2015, Document 51 was modified on 5/21/2015 to correct a word.) (tg, ). (Entered: 04/08/2015)

Set/Reset Deadlines: Defendant's payment of $31,180.00 to the Plaintiff due by 5/11/2015. (tg, )

MOTION to Alter Judgment as to 51 Memorandum & Opinion, 52 Order on Motion for Attorney Fees, by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Rotenberg, Marc) (Entered: 04/17/2015)

MINUTE ORDER (paperless) GRANTING the defendant's 54 Unopposed Motion for Extension of Deadline by Which it Must Make Payment to Plaintiff. The defendant shall pay the plaintiff any outstanding attorneys' fees within thirty days of the expiration of the period contemplated in Federal Rule of Appellate Procedure 4 for the defendant to notice an appeal or a cross-appeal. Signed by Judge Beryl A. Howell on April 28, 2015. (lcbah1)

Unopposed MOTION for Extension of Time to Make Payment to Plaintiff by NATIONAL SECURITY AGENCY (Attachments: # 1 Text of Proposed Order)(Dworkowitz, Gregory) (Entered: 04/28/2015)

Memorandum in opposition to re 53 MOTION to Alter Judgment as to 51 Memorandum & Opinion, 52 Order on Motion for Attorney Fees, filed by NATIONAL SECURITY AGENCY. (Attachments: # 1 Text of Proposed Order)(Dworkowitz, Gregory) (Entered: 05/01/2015)

REPLY to opposition to motion re 53 MOTION to Alter Judgment as to 51 Memorandum & Opinion, 52 Order on Motion for Attorney Fees, filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Rotenberg, Marc) (Entered: 05/08/2015)

MINUTE ORDER (paperless) DENYING in part and GRANTING in part the plaintiff's 53 Motion to Alter or Amend the Court's Memorandum Opinion and Order of April 8, 2015. The 53 Motion is GRANTED insofar as the Court's use of the word "judgment" in referencing the plaintiff's settlement offers on page 18 of this Court's 51 Memorandum Opinion is AMENDED to read "Disturbingly, both offers of settlement from the plaintiff were extended within 24 hours of a deadline for a submission to the Court regarding the status of settlement discussions." The 53 Motion is DENIED in all other respects.A motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e) "is an extraordinary remedy which should be used sparingly." Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 17 (D.C. Cir. 2015) (internal quotation marks omitted). Such motions "may not be used to... raise arguments or present evidence that could have been raised prior to the entry of judgment." GSS Grp. Ltd. v. Nat'l Port Auth., 680 F.3d 805, 812 (D.C. Cir. 2012) (internal quotation marks omitted; alteration in original). The plaintiff's 53 Motion provides more factual context for the plaintiff's rejection (by counteroffer) of the defendant's offers of judgment, and the plaintiff's subsequent extension of "exploding" settlement offers that would expire fewer than 24 hours later. See generally 53 Motion. The defendant clearly raised the issue of the plaintiff's negotiating strategy in its opposition, see 45 Def.'s Opp'n Pl.'s Mot. Attys.' Fees at 5, 24-25, but the plaintiff, in its reply, failed to counter the factual assertions as outlined by the defendant. Instead of disputing or correcting any such facts, the plaintiff made the strategic decision to challenge the defendant's introduction of this information as violative of Federal Rule of Evidence 408, see 46 Pl.'s Reply Def.'s Opp'n Pl.'s Mot. Attys.' Fees (Pl.'s Reply) at 20-22 and 20 n.6, an argument this Court rejected, EPIC v. NSA, No. 10-196, 2015 WL 1570060, at *9 n.7 (D.D.C. Apr. 8, 2105). A Rule 59(e) motion "is not an opportunity for another bite at the apple." SmartGene, Inc. v. Adv. Bio. Labs., SA, 915 F. Supp. 2d 69, 78 (D.D.C. 2013) (internal quotation marks omitted). The plaintiff made a strategic choice not to challenge the factual underpinnings of the defendant's argument in favor of an attack on the admissibility of those facts in the first instance. 46 Pl.'s Reply at 20-22 and 20 n.6. The plaintiff's strategy did not succeed, but that is not a sufficient reason to reconsider the Court's decision, since the plaintiff had ample opportunity in its reply brief to raise the fact-based arguments it raises now. See Wannall v. Honeywell, Inc., 775 F.3d 425, 430 (D.C. Cir. 2014) (affirming denial of motion for reconsideration based on plaintiff's failed strategic choice). Consequently, with the exception of the amendment on page 18 of the 51 Memorandum Opinion to clarify the Court's reference to the plaintiff's offers of settlement, the plaintiff's 53 Motion is DENIED. Signed by Judge Beryl A. Howell on May 20, 2015. (lcbah1)

Order on Motion to Alter Judgment