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Electronic Privacy Information Center v. United States Department of Homeland Security

September 12, 2011


The opinion of the court was delivered by: Ricardo M. Urbina United States District Court Judge

Re Document Nos.: 26, 30, 34




This matter is before the court on the plaintiff's motion for relief upon reconsideration and on its motion for attorney's fees and costs. The plaintiff commenced this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking to compel the defendant, the Department of Homeland Security ("DHS"), to release withheld documents pertaining to the whole-body imaging technology that is used to screen air travelers.

On January 12, 2011, the court granted DHS's motion for summary judgment and denied the plaintiff's cross-motion for summary judgment on the grounds that FOIA exemption "2-high" appropriately protected the withheld body scanner images from disclosure. Shortly thereafter, in Milner v. Department of the Navy, 131 S. Ct. 1259 (2011), the Supreme Court eradicated the 2-high exemption. The plaintiff now moves for relief upon reconsideration as a result of this change in law. The plaintiff further moves for attorney's fees and costs.

Because the plaintiff filed its motion for reconsideration after the prescribed time to file a notice of appeal had expired and because it had not already filed an appeal, the court denies the plaintiff's motion as untimely. Additionally, because the court determines that the plaintiff's lawsuit catalyzed DHS's disclosure of documents, the court grants in part the plaintiff's motion for attorney's fees. The court denies the motion for attorney's fees in part, however, because the plaintiff has requested certain inappropriate fees and fee enhancements.


A. Factual History

The Transportation Security Administration ("TSA"), a component of DHS, uses "body scanners," machines that produce three-dimensional images of individuals, to screen airline passengers prior to boarding airline flights. Compl. ¶ 6. The plaintiff submitted two separate FOIA requests to DHS in April 2009 and July 2009, seeking information regarding TSA's use of body scanning technology or "whole body imaging." Def.'s Statement of Material Facts Not in Dispute ("Def.'s Statement") ¶¶ 1-2. Among other things, the plaintiff sought "[a]ll unfiltered or unobscured images captured using body scanner technology." Id. ¶ 2.

Although DHS produced 1,766 pages of responsive documents, it also withheld in full 2,000 images produced by the body scanners and 376 pages of TSA training materials. Def.'s Statement ¶ 5. According to the TSA, the 2,000 images contain "various threat objects dispersed over the bodies," Def.'s Mot., Declaration of Mark Roberts, Acting Manager of the Sensitive Security Information Branch of the TSA, ("Roberts Decl.") ¶ 20, and were "created for the purpose of testing the degree to which vendors' [body scanners] conform to the detention standards issued by TSA in its procurement specifications," id. ¶ 16. TSA previously released a "limited number of images to the public" but has determined that "any further release of images would constitute a threat [to] transportation security." Id. ¶ 17. With respect to the 376 pages of TSA's security training materials that were withheld, the defendant describes the materials as instructor guides and training manuals that "were created to train TSA employees" who operate the body scanners. Id. ¶¶ 21-22.

B. Procedural History

In November 2009, the plaintiff commenced this action, alleging that DHS had failed to respond to its first FOIA request in a timely fashion. See Compl. ¶¶ 24, 28-30. Because DHS did not file a timely answer, the plaintiff filed an affidavit for entry of default judgment on January 8, 2010. See Pl.'s Aff. for Default J. DHS subsequently entered a notice of appearance and filed a motion for extension of time in which to file an answer. See generally Def.'s Notice of Appearance (Jan. 12, 2010); Def.'s Mot. for Extension of Time to File Answer (Jan. 12, 2010). Good cause for an extension having been shown, the court granted DHS's request for extension of time in which to file an answer and the clerk did not enter default. See Minute Order (Aug. 10, 2010).

On January 13, 2010, the plaintiff commenced a second action, again alleging that DHS had failed to respond to its second FOIA request in a timely fashion. Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., Civ. No. 10-63, Compl. ¶¶ 23-24, 28-31. The court consolidated the two actions. Minute Order (Mar. 17, 2010).

DHS then moved for summary judgment, invoking FOIA exemptions 2-high and 3 with regard to the withheld training materials and images. Def.'s Mot. for Summ. J at 10.The plaintiff filed a cross-motion for summary judgment, challenging DHS's refusal to disclose the 2,000 images and 376 pages of training materials. See generally Pl.'s Cross-Mot.

On January 12, 2011, the court granted summary judgment to DHS after determining that FOIA exemption 2-high applied because the disclosure of the withheld 2,000 images and 376 pages of training materials "would 'significantly risk circumvention of federal regulations or statutes.'" Mem. Op. (Jan. 12, 2011) at 7 (quoting Elliott v. U.S. Dep't of Agriculture, 596 F.3d 842, 847 (D.C. Cir. 2000)). In light of the application of exemption 2, the court determined that it was unnecessary to reach the issue of whether exemption 3 would also appropriately protect the withheld records. Id. at 12.

On March 7, 2011, the Supreme Court, in Milner v. Department of the Navy, rejected FOIA exemption 2-high in its entirety as a basis of withholding records after concluding that it was created by the courts and not rooted in the FOIA statute. 131 S. Ct. 1259, 1270 (2011) ("[Exemption 2-high] in fact has no basis in text, context, or purpose of FOIA, and we accordingly reject it."). The Supreme Court held that FOIA exemption 2 properly protects only those "records relating to issues of employee relations and human resources," id. at 19, such as "use of parking facilities or regulations of lunch hours, statements of policy as to sick leave, and the like," id. at 2 (internal citation omitted). The Supreme Court further acknowledged that this reading of exemption 2 "upsets three decades of agency practice . . . and therefore may force considerable adjustments." Id. at 18.

On March 24, 2011, the plaintiff filed a motion for relief upon reconsideration of this court's January 12, 2011 ruling. Pl.'s Mot. for Recons. at 4. The plaintiff argues that because Milner constitutes an intervening change in the controlling law for its case, the court should reconsider its grant of summary judgment to DHS. Id. In response, DHS asserts that the plaintiff's motion is untimely and, in the alternative, that FOIA exemption 3 applies and properly protects the records it withheld.*fn1 Def.'s Mem. in Opp'n to Pl.'s Mot. for Recons. at 2 ("Def.'s Mem."). The plaintiff has also filed a motion for attorney's fees and costs, see generally Pl.'s Mot. for Atty's Fees, a motion which the defendant opposes, see generally Def.'s Opp'n to Pl.'s Mot. for Atty's Fees ("Def.'s Atty's Fees Opp'n"). With the plaintiff's motions now ripe for review, the court turns to the applicable legal standards and the parties' arguments.


A. The Court Denies as Untimely the Plaintiff's Motion For Relief Upon Reconsideration

1. The Plaintiff's Motion Is Not Properly Brought Under Rule 54(b)

a. Legal Standard for Rule 54(b)

A district court may revise its own interlocutory decisions "at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." FED. R. CIV. P. 54(b); see also Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000) (citing the Advisory Committee Notes to Federal Rule of Civil Procedure 60(b)). The standard for the court's review of an interlocutory decision differs from the standards applied in reviewing final judgments under Federal Rules of Civil Procedure 59(e) and 60(b). Compare Muwekma Tribe v. Babbitt, 133 F. Supp. 2d 42, 48 n.6 (D.D.C. 2001) (noting that "motions for [relief upon] reconsideration of interlocutory orders, in contrast to motions for [relief upon] reconsideration of final orders, are within the sound discretion of the trial court") and United Mine Workers v. Pittston Co., 793 F. Supp. 339, 345 (D.D.C. 1992) (discussing the standard applicable to motions to grant relief upon reconsideration of an interlocutory order) with LaRouche v. Dep't of Part.III.A., the court does not reach the question of whether FOIA exemption 3 otherwise applies.

Treasury, 112 F. Supp. 2d 48, 51-52 (D.D.C. 2000) (analyzing the defendant's motion for relief from judgment under Rule 60(b)) and Harvey v. District of Columbia, 949 F. Supp. 878, 879 (D.D.C. 1996) (ruling on the plaintiff's motion to alter or amend judgment pursuant to Rule 59(e)). A motion pursuant to Rule 59(e), to alter or amend a judgment after its entry, is not routinely granted. Harvey, 949 F. Supp. at 879. The primary reasons for altering or amending a judgment pursuant to Rule 59(e) or Rule 60(b) are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.

Id.; Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam); FED. R. CIV. P. 60(b); LaRouche, 112 F. Supp. 2d at 51-52.

By contrast, relief upon reconsideration of an interlocutory decision pursuant to Rule 54(b) is available "as justice requires." Childers, 197 F.R.D. at 190. "As justice requires" indicates concrete considerations of whether the court "has patently misunderstood a party, has made a decision outside the adversarial issues presented to the [c]court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court." Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004) (internal citation omitted). These considerations leave a great deal of room for the court's discretion and, accordingly, the "as justice requires" standard amounts to determining "whether [relief upon] reconsideration is necessary under the relevant circumstances." Id. Nonetheless, the court's discretion under Rule 54(b) is limited by the law of the case doctrine and "subject to the caveat that, where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Singh, 383 F. Supp. 2d at 101 (internal citations omitted).

b. Rule 54(b) Does Not Apply Because the Court's January 12, 2011 Order Was a Final Judgment, Not an Interlocutory Decision

The plaintiff brings its motion under Rule 54(b), asserting that the Supreme Court's holding in Milner requires the court to reconsider its Order granting summary judgment to DHS. Pl.'s Mot. for Recons. at 4. The plaintiff argues that Rule 54(b) is an appropriate vehicle for requesting such reconsideration because, in light of the pending motion for statutory attorney's fees, the court's Order should not be considered a "final judgment," but rather an interlocutory decision. Pl.'s Mot. for Recons. at 4.

DHS contends that an outstanding motion for attorney's fees does not upset the finality or appealability of this court's Order, which DHS maintains was a final decision on the merits.

Def.'s Opp'n to Pl.'s Mot. for Recons. at 6. Thus, according to the defendant, the plaintiff's motion is inappropriately brought under Rule 54(b), which is reserved for the reconsideration of interlocutory and not final decisions. Id. at 7, 9.

If a court has resolved the merits of a case through a final order and only a statutory request for attorney's fees remains, the merits of the case are no longer pending for appeal purposes and the judgment is considered final and immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200 (1988) ("As a general matter . . . we think it indisputable that a claim for attorney's fees is not part of the merits of the action to which the fees pertain."); White v. N.H. Dep't of Emp't Sec., 455 U.S. 445, 452 n.14 (1982) ("[T]he collateral character of the fee issue establishes that the outstanding fee question does not bar recognition of a judgment finally disposing of the merits as 'final' and 'appealable.'"); Schultz v. Crowley, 802 F.2d 498, 502, 502 n.1 (D.C. Cir. 1986) ("[O]ne necessary consequence of characterizing requests for statutory attorney's fees as separate from and collateral to judgments on the merits is that the pendency of such requests can have no effect on the finality (and thus the appealability) of a judgment finally disposing of the merits of a case."). Stated otherwise, the court does not consider demands for payment of attorney's fees as impacting the finality of a court's decision. Moody Nat'l Bank of Galveston v. G.E. Life & Annuity Assurance Co., 383 F.3d 249, 250 (5th Cir. 2004) ("Motions addressing costs and attorney's fees . . . are generally made pursuant to Rule 54, are considered collateral to the judgment, and do not toll the time period for filing an appeal."). This rule applies equally to requests for attorney's fees made both before and after the court issues a judgment on the merits, and applies "with full force" to fee requests authorized by statutory provisions. Schultz, 802 F.2d at 502 n.1.

As noted, on January 12, 2011, the court issued an order in this case granting summary judgment to DHS and denying the plaintiff's cross-motion for summary judgment. See generally Order (Jan. 12, 2011). Upon entry of the court's Order, the only remaining issue for adjudication was the plaintiff's motion for attorney's fees and costs.*fn2 The court's January 12, 2011 Order therefore constitutes a final judgment for purposes of appeal. See White, 455 U.S. at 452 n.14. Because the court's January 12, 2011 Order constitutes a final judgment as opposed to an interlocutory order, the plaintiff's motion seeking relief upon reconsideration of that Order is not properly brought under Rule 54(b), which can only be used to seek reconsideration of interlocutory orders. See supra Part III.A.1.a. Accordingly, the court turns to consider the plaintiff's motion under Rule 60(b), the proper procedural vehicle to alter or amend a final judgment.

2. The Court Construes the Plaintiff's Motion for Relief Upon Reconsideration ...

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