Case: Electronic Privacy Information Center v. National Security Agency

1:10-cv-00196 | U.S. District Court for the District of Columbia

Filed Date: Feb. 4, 2010

Closed Date: May 20, 2015

Clearinghouse coding complete

Case Summary

In June 2009, the plaintiff, the Electronic Privacy Information Center, submitted a Freedom of Information Act request to defendant National Security Agency (NSA) for records related to National Security Presidential Directive 54 (NSPD 54) and to the Comprehensive National Cybersecurity Initiative (CNCI). The defendant released several redacted documents. However, it informed the plaintiff that it had no records responsive to the Cybersecurity Initiative, and records responsive to the NSPD 54 r…

In June 2009, the plaintiff, the Electronic Privacy Information Center, submitted a Freedom of Information Act request to defendant National Security Agency (NSA) for records related to National Security Presidential Directive 54 (NSPD 54) and to the Comprehensive National Cybersecurity Initiative (CNCI). The defendant released several redacted documents. However, it informed the plaintiff that it had no records responsive to the Cybersecurity Initiative, and records responsive to the NSPD 54 request were withheld under FOIA exemptions for inter-agency memoranda, classified information, and presidential communications privilege.

The plaintiff filed an administrative appeal, and brought suit in United States District Court for the District of Columbia in February 2009 against NSA and the National Security Council (NSC) under the Freedom of Information Act, 5 U.S.C. § 552, and the Administrative Procedure Act, 5 U.S.C. § 706, seeking production of the records and a Vaughn index of withheld records and applicable exemptions.

In July 2011, Judge Beryl A. Howell dismissed the NSC as a defendant because it was not an "agency" within the meaning of FOIA.

The parties cross-moved for summary judgment in late 2011. Nearly two years later, in October 2013, the Court (Chief Judge Beryl A. Howell) ruled that NSPD 54 was not an agency record at all because it originated with the President or the NSC, and contained clear limits on its use and further dissemination. Thus, NSPD 54 was "the type of document that is generally not ordered disclosed under the FOIA." However, the Court ruled that several portions of the plaintiff's FOIA request survived because the requested records originated within the Defendant. The Defendant was ordered to produce those responsive records or to submit a Vaughn index detailing the records and applicable exemptions. 2013 WL 5701645.

On December 17, 2013, plaintiff appealed the October 2013 order, seeking review of whether the district court erred in holding that a Presidential Directive in the possession of a federal agency is not an agency record subject to FOIA.

On June 5, 2014, defendant released an unclassified version of NSPD 54 to the plaintiff. On June 9, 2014, the parties jointly moved to dismiss plaintiff's appeal as moot, vacate the district court order holding that a Presidential Directive in the possession of a federal agency is not an agency record subject to FOIA, and remand to address any claim for fees. The Court (Judge Judith W. Rogers, Judge Brett M. Kavanaugh, and Senior Judge Douglas H. Ginsburg) granted the order and remanded the case on July 31, 2014. 2014 WL 12596363.

The plaintiff moved for attorney fees and costs on October 31, 2014. The plaintiff sought $68,354.01 in attorneys' fees and $730.28 in costs, including fees and costs incurred prior to the January Judgment. The defendant argued that since the plaintiff was not the prevailing party under FOIA, they were not entitled to attorney's fees. Alternatively, the defendant contended that the plaintiff could not seek any fees for the period prior to the January Judgment and sought modification of the fees after the January judgment.

The Court granted in part and denied in part plaintiff's motion on April 8, 2015. The Court held that the plaintiff was the prevailing party as the initial withholding of NSPD 54 was not correct as a matter of law because the Court's initial order regarding NSPD 54 was vacated. Since the defendant voluntarily released NSPD 54 to the plaintiff and requested the vacatur of the prior holding, the defendant had appeared to change its position regarding the requested information, thus, the plaintiff prevailed. The Court held the plaintiff was not able to recover fees and costs prior to January 27, 2014 as they were covered by the January Judgment. The Court also disallowed fees incurred by the plaintiff after October 1, 2014. The Court found that since the plaintiff offered two settlement agreements within 24 hours of the deadline for the parties to provide a status report to the Court and immediately withdrew them once the submission was filed, the plaintiff prolonged litigation. As such, the plaintiff was not allowed to recover fees following the withdrawal of their first settlement offer on October 1, 2014. Following these fee deductions, the defendant was ordered to pay $31,180 in attorneys' fees and costs. 87 F.Supp.3d 223.

On April 8, 2015, the plaintiff moved to alter judgment regarding the Court's April 2015 order. On May 20, 2015, the Court granted the motion so as to amend the word "judgment" to "settlement" at one point in their opinion and otherwise denied their motion. (See Docket).

The case is now closed.

Summary Authors

Elizabeth Homan (11/11/2013)

Cade Boland (3/8/2018)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4210846/parties/electronic-privacy-information-center-v-national-security-agency/


Judge(s)

Howell, Beryl Alaine (District of Columbia)

Attorney for Plaintiff

Kaprove, Marc (District of Columbia)

Attorney for Defendant

Brinkmann, Beth S (District of Columbia)

Delery, Stuart F. (District of Columbia)

Dworkowitz, Gregory Peter (District of Columbia)

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Documents in the Clearinghouse

Document

1:10-cv-00196

Docket [Pacer]

May 20, 2015

May 20, 2015

Docket
1

1:10-cv-00196

Complaint for Injunctive Relief

Feb. 4, 2010

Feb. 4, 2010

Complaint
9

1:10-cv-00196

Memorandum Opinion

ELECTRONIC PRIVACY INFORMATION CENTER v. NATIONAL SECURITY AGENCY

July 7, 2011

July 7, 2011

Order/Opinion
27

1:10-cv-00196

Memorandum Opinion

Oct. 21, 2013

Oct. 21, 2013

Order/Opinion
28

1:10-cv-00196

Order

Nov. 21, 2013

Nov. 21, 2013

Order/Opinion
33

1:10-cv-00196

Notice of Appeal

Dec. 18, 2013

Dec. 18, 2013

Pleading / Motion / Brief
1496765

13-05369

Joint Motion to Dismiss Plaintiff's Appeal as Moot, Vacate The District Court Decision in Part, and Remand to Address any Claim for Fees

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

June 9, 2014

June 9, 2014

Pleading / Motion / Brief
51

1:10-cv-00196

Memorandum Opinion

April 8, 2015

April 8, 2015

Order/Opinion

Docket

See docket on RECAP: https://www.courtlistener.com/docket/4210846/electronic-privacy-information-center-v-national-security-agency/

Last updated Jan. 31, 2024, 3:06 a.m.

ECF Number Description Date Link Date / Link
2

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)

Feb. 4, 2010

Feb. 4, 2010

PACER

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

Feb. 4, 2010

Feb. 4, 2010

PACER
1

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

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Feb. 4, 2010

Feb. 4, 2010

RECAP
6

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)

March 25, 2010

March 25, 2010

RECAP
5

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

March 25, 2010

March 25, 2010

PACER
4

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)

March 25, 2010

March 25, 2010

PACER
3

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

March 25, 2010

March 25, 2010

PACER
7

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)

April 8, 2010

April 8, 2010

PACER
8

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)

April 15, 2010

April 15, 2010

RECAP

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

Jan. 20, 2011

Jan. 20, 2011

PACER

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

July 7, 2011

July 7, 2011

PACER
10

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)

July 7, 2011

July 7, 2011

PACER
9

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

July 7, 2011

July 7, 2011

RECAP
11

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

July 20, 2011

July 20, 2011

PACER

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, )

July 21, 2011

July 21, 2011

PACER

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)

July 21, 2011

July 21, 2011

PACER
12

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

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2 Declaration Declaration of Diane M. Janosek

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3 Tab A

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4 Tab B

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5 Tab C

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6 Tab D

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7 Tab E

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8 Tab F

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9 Tab G

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10 Declaration Declaration of Mary Ronan

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11 Statement of Facts

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12 Text of Proposed Order

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Oct. 11, 2011

Oct. 11, 2011

RECAP
14

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

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

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3 Text of Proposed Order

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Nov. 11, 2011

Nov. 11, 2011

RECAP
13

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

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2 Statement of Facts

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

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4 Text of Proposed Order

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Nov. 11, 2011

Nov. 11, 2011

RECAP
16

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

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Dec. 8, 2011

Dec. 8, 2011

RECAP
15

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

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Dec. 8, 2011

Dec. 8, 2011

RECAP
17

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)

Dec. 22, 2011

Dec. 22, 2011

RECAP
19

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

March 28, 2012

March 28, 2012

RECAP
18

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

March 28, 2012

March 28, 2012

PACER
20

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)

May 22, 2012

May 22, 2012

RECAP
21

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

Oct. 10, 2012

Oct. 10, 2012

RECAP
22

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

Dec. 22, 2012

Dec. 22, 2012

RECAP
23

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)

July 8, 2013

July 8, 2013

RECAP
24

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

Aug. 2, 2013

Aug. 2, 2013

RECAP

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

Sept. 9, 2013

Sept. 9, 2013

PACER

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)

Sept. 9, 2013

Sept. 9, 2013

PACER
26

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

Sept. 16, 2013

Sept. 16, 2013

PACER
25

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

Sept. 16, 2013

Sept. 16, 2013

PACER
28

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)

Oct. 21, 2013

Oct. 21, 2013

RECAP
27

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)

Oct. 21, 2013

Oct. 21, 2013

RECAP

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

Oct. 22, 2013

Oct. 22, 2013

PACER

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)

Nov. 4, 2013

Nov. 4, 2013

PACER
29

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

Nov. 4, 2013

Nov. 4, 2013

RECAP

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, )

Nov. 5, 2013

Nov. 5, 2013

PACER

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)

Nov. 15, 2013

Nov. 15, 2013

PACER
30

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

Nov. 15, 2013

Nov. 15, 2013

RECAP

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

Nov. 19, 2013

Nov. 19, 2013

PACER
31

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

Dec. 16, 2013

Dec. 16, 2013

RECAP
32

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)

Dec. 17, 2013

Dec. 17, 2013

RECAP

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

Dec. 17, 2013

Dec. 17, 2013

PACER

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)

Dec. 17, 2013

Dec. 17, 2013

PACER
33

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)

Dec. 18, 2013

Dec. 18, 2013

RECAP
34

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

Dec. 20, 2013

Dec. 20, 2013

RECAP

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)

Dec. 23, 2013

Dec. 23, 2013

PACER

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

Dec. 24, 2013

Dec. 24, 2013

PACER
35

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

Feb. 3, 2014

Feb. 3, 2014

PACER
36

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

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2 Exhibit B: Proof of Service

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Feb. 10, 2014

Feb. 10, 2014

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37

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)

Feb. 11, 2014

Feb. 11, 2014

RECAP
38

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)

Aug. 12, 2014

Aug. 12, 2014

RECAP

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)

Sept. 2, 2014

Sept. 2, 2014

PACER
41

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

Sept. 2, 2014

Sept. 2, 2014

RECAP
40

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

Sept. 2, 2014

Sept. 2, 2014

PACER
39

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

Sept. 2, 2014

Sept. 2, 2014

PACER

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

Sept. 3, 2014

Sept. 3, 2014

PACER
42

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

Oct. 2, 2014

Oct. 2, 2014

RECAP

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)

Oct. 3, 2014

Oct. 3, 2014

PACER

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

Oct. 6, 2014

Oct. 6, 2014

PACER
43

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

Oct. 16, 2014

Oct. 16, 2014

RECAP

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, )

Oct. 17, 2014

Oct. 17, 2014

PACER

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)

Oct. 17, 2014

Oct. 17, 2014

PACER
44

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)

Oct. 31, 2014

Oct. 31, 2014

PACER
45

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.

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2 Exhibit B: EPIC Nov. 2013 Draft Bills

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3 Exhibit C: EPIC Sept. 2014 Draft Bills

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4 Text of Proposed Order

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Nov. 24, 2014

Nov. 24, 2014

RECAP
46

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

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2 Affidavit of Alan Butler

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3 Affidavit of Marc Rotenberg

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4 Affidavit of T. John Tran

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Dec. 8, 2014

Dec. 8, 2014

RECAP
48

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

Dec. 17, 2014

Dec. 17, 2014

RECAP

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)

Dec. 17, 2014

Dec. 17, 2014

PACER
47

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)

Dec. 17, 2014

Dec. 17, 2014

PACER
50

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

Dec. 18, 2014

Dec. 18, 2014

RECAP

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)

Dec. 18, 2014

Dec. 18, 2014

PACER
49

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

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2 Text of Proposed Order

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Dec. 18, 2014

Dec. 18, 2014

RECAP
52

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)

April 8, 2015

April 8, 2015

RECAP
51

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)

April 8, 2015

April 8, 2015

RECAP

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

April 9, 2015

April 9, 2015

PACER
53

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)

April 17, 2015

April 17, 2015

PACER

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)

April 28, 2015

April 28, 2015

PACER
54

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)

April 28, 2015

April 28, 2015

PACER
55

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)

May 1, 2015

May 1, 2015

PACER
56

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)

May 8, 2015

May 8, 2015

PACER

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)

May 20, 2015

May 20, 2015

PACER

Order on Motion to Alter Judgment

May 20, 2015

May 20, 2015

PACER

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Multi-LexSum (in sample)

Key Dates

Filing Date: Feb. 4, 2010

Closing Date: May 20, 2015

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Plaintiff is the Electronic Privacy Information Center.

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

National Security Agency, Federal

National Security Council, Federal

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action:

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

Freedom of Information Act (FOIA), 5 U.S.C. § 552

Available Documents:

Trial Court Docket

Complaint (any)

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Attorneys fees

Source of Relief:

Litigation

Amount Defendant Pays: 34,680

Content of Injunction:

Recordkeeping

Issues

General:

Confidentiality

Records Disclosure

Terrorism/Post 9-11 issues