Electronic Privacy Information Center v. United States Department of Homeland Security
811 F. Supp. 2d 216
D.D.C.2011Background
- EPIC filed FOIA requests to DHS in 2009 seeking body scanner images and related materials.
- DHS produced 1,766 pages but withheld about 2,000 images and 376 training materials.
- The court granted DHS summary judgment on January 12, 2011, relying on FOIA exemption 2-high.
- Milner v. Department of the Navy, decided March 7, 2011, later rejected 2-high; law changed after judgment.
- Plaintiff moved for relief on reconsideration and for attorney's fees; motion deemed untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper vehicle for reconsideration | Rule 54(b) applies to interlocutory orders; Milner requires reconsideration. | Order was a final judgment; Rule 54(b) not appropriate. | Rule 60(b) governs reconsideration of final judgments; 54(b) not applicable. |
| timeliness of Rule 60(b)(1) relief based on intervening law | Motion timely within one year of final judgment due to change in controlling law. | Changed law after appeal period; not timely unless appeal was or is pending. | Untimely under Rule 60(b)(1); no appeal pending and Milner changed law after close of appeal window. |
| Rule 60(b)(6) applicability | If 60(b)(1) not available, 60(b)(6) should apply for extraordinary circumstances. | Milner change is not an extraordinary circumstance; 60(b)(6) inapplicable. | 60(b)(6) does not apply; motion appropriately analyzed under 60(b)(1) and denied as untimely. |
| Attorney's fees under FOIA | Plaintiff substantially prevailed; catalyst theory supports fees; public benefit shown. | Disagrees on entitlement; disputes hours, rates, and enhancements. | Plaintiff entitled to fees; awarded $21,482 after reductions; no enhancement for expertise or admin filings. |
Key Cases Cited
- Milner v. Department of the Navy, 131 S. Ct. 1259 (U.S. 2011) (overruled 2-high exemption; change in controlling law)
- Budinich v. Becton Dickinson & Co., 486 U.S. 196 (U.S. 1988) (final judgment; attorney's fees generally collateral)
- White v. N.H. Dept. of Emp't Sec., 455 U.S. 445 (U.S. 1982) (fee decisions as collateral to merits)
- Shultz v. Crowley, 802 F.2d 498 (D.C. Cir. 1986) (final judgments and appeal timing; fee considerations)
- Parks v. U.S. Life & Credit Corp., 677 F.2d 838 (11th Cir. 1982) (changes in controlling law and timely appeal; 60(b) reconsideration limits)
- Delta Foods Ltd. v. Republic of Ghana, 265 F.3d 1068 (D.C. Cir. 2001) (change in governing law; timely filing considerations)
- Davy v. Central Intelligence Agency, 550 F.3d 1155 (D.C. Cir. 2008) (reasonable basis in law for withholding; fee decisions)
- Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476 (D.C. Cir. 1984) (fees for related or preparatory work; windfall concerns)
- Church of Scientology of Cal. v. Harris, 653 F.2d 584 (D.C. Cir. 1981) (catalyst theory and related fee considerations)
- Cobell v. Norton, 334 F.3d 1120 (D.C. Cir. 2004) (Rule 54(b) and interlude considerations (illustrative))