Case Detail

FOIA Project Annotation: Judge Ricardo Urbina has ruled that 2,000 whole-body scanning images used by the Transportation Security Administration as part of training materials for operators of the new scanning machines used to screen air travelers are protected under the risk of circumvention prong of Exemption 2 (internal practices and procedures). Urbina first pointed out that "the images at issue can be exempt under 2-high if they are so closely related to TSA's rule or practice that their disclosure could reveal the rule or practice itself." He indicated that "according to [TSA], the purpose underlying the creation of these images was to allow TSA to test the degree to which the body scanners it owned and operated conform to TSA's 'detection standards.' Revealing these images, [the agency states], would provide 'insight into difficulties that may exist in identifying specific types of prohibited items, their sizes and shapes and inconsistencies, methods or locations of obscuring or camouflaging threat objects and the degree to which TSA settings and calibrations of screening equipment are distinct from the standards used by other organizations.'" He observed that "because the disclosure of these images would reveal TSA's detection standards, the court concludes that they relate to the rules and practices of TSA." Urbina noted that "TSA has 'determined that any further release of images would constitute a threat to transportation security because it would enable terrorists, by comparing and contrasting more images to determine' TSA's capabilities and limitations. Although the plaintiff may disagree with TSA's assessment, it provides no basis for the court to question TSA's reasonable conclusion that the disclosure of the images at issue may provide terrorist and others with increased abilities to circumvention detection by TSA and carry threatening contraband onboard an airplane, undoubtedly violating countless penal statutes and regulations."
Issues: Exemption 2

FOIA Project Annotation: Judge Ricardo Urbina has ruled that EPIC failed to ask for reconsideration of the court's ruling in favor of the Department of Homeland Security on the application of Exemption 2 (internal practices and procedures) within the 60 days provided to file an appeal. On January 12, Urbina ruled that the circumvention prong of Exemption 2 protected 2,000 body scanner images and 376 pages of training materials. But on March 7, the Supreme Court's decision in Milner v. Dept of Navy, invalidated the use of the circumvention prong. On March 24, EPIC asked for reconsideration, arguing that a change in the applicable case law required Urbina to revisit his decision. Homeland Security argued that EPIC had missed the 60-day deadline for filing an appeal. EPIC claimed that since an award of attorney's fees was still pending in the case, their motion for reconsideration should be considered an interlocutory appeal, rather than an appeal of a final judgment. Urbina rejected that claim, noting that "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." Instead, Urbina treated EPIC's motion as being made under Rule 60(b)(1) of the Federal Rules of Civil Procedure, which required filing an appeal within 60 days and did not contain a general exception for a change in the case law. Under this standard, Urbina pointed out that EPIC had filed 71 days after his decision. He observed that "the plaintiff, despite knowing that Milner had been granted certiorari by the Supreme Court, did not file its motion for relief upon reconsideration until ten days after the appeal period closed. Additionally, the plaintiff, for some unarticulated reason, chose not to file a timely appeal even as a decision in Milner was on the horizon. Such an appeal would have been a proper mechanism by which the plaintiff could have raised its challenge based on a change in controlling law." Even though Urbina rejected EPIC's motion for reconsideration, he ruled in favor of the organization on the matter of attorney's fees. Noting that no records had been disclosed when EPIC filed suit, he explained that "although DHS has subsequently shown that a portion of the records in its possession were properly withheld from the plaintiff pursuant to then-valid FOIA exemption categories, it has not made a similar showing for the approximately 1,766 pages of non-exempt documents ultimately produced to the plaintiff during this litigation." He added that "given DHS's long record of non-compliance to the plaintiff's FOIA requests, followed by DHS's disclosure of a substantial quantity of non-exempt records in response to this suit, the court concludes that plaintiff obtained relief with regard to the non-exempt records by catalyzing a voluntary change in DHS's conduct." Urbina then found a public interest in disclosure and noted that DHS had not offered a reasonable explanation of why it took so long to disclose the documents. In awarding EPIC $21,000, Urbina found some of the hours claimed were excessive. However, he specifically noted that EPIC was entitled to fees for hours spent reviewing documents in preparation to litigation. Although DHS argued that such a review would not be recoverable at the administrative stage, Urbina pointed out that "it does not follow that reviewing documents during the course of active litigation is necessarily part of such an administrative process. Indeed, it would seem critical to the prosecution of a FOIA lawsuit for a plaintiff to review an agency's disclosure for sufficiency and proper withholding during the course of its FOIA litigation."
Issues: Litigation - Jurisdiction - Failure to State a Claim

Date Filed	Doc #	Docket Text
2009-11-05	1	COMPLAINT against THE UNITED STATES DEPTMENT OF HOMELAND SECURITY ( Filing fee $ 350, receipt number 4616025213) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet)(dr) (Entered: 11/06/2009)
2009-11-05		SUMMONS (3) Issued as to THE UNITED STATES DEPTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (dr) (Entered: 11/06/2009)
2009-11-05	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER (dr) (Entered: 11/06/2009)
2010-01-06	3	NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 01/06/2010)
2010-01-08	4	AFFIDAVIT FOR DEFAULT by ELECTRONIC PRIVACY INFORMATION CENTER. (Verdi, John) (Entered: 01/08/2010)
2010-01-11		NOTICE OF ERROR re 4 Affidavit for Default; emailed to verdi@epic.org, cc'd 2 associated attorneys -- The PDF file you docketed contained errors: 1. Proof of service is required before default can be entered; please file proof of service. (znmw, ) (Entered: 01/11/2010)
2010-01-12	5	SUMMONS Returned Executed by ELECTRONIC PRIVACY INFORMATION CENTER. UNITED STATES DEPARTMENT OF HOMELAND SECURITY served on 11/12/2009, answer due 12/12/2009. (Attachments: # 1 Exhibit Exhibit 1)(Verdi, John) (Entered: 01/12/2010)
2010-01-12	6	SUMMONS Returned Executed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit Exhibit 1)(Verdi, John) (Entered: 01/12/2010)
2010-01-12	7	SUMMONS Returned Executed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit Exhibit 1)(Verdi, John) (Entered: 01/12/2010)
2010-01-12	8	NOTICE of Appearance by Jesse Z. Grauman on behalf of UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Grauman, Jesse) (Entered: 01/12/2010)
2010-01-12	9	MOTION for Extension of Time to File Answer re 1 Complaint and Notice in Opposition to Entry of Default by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Grauman, Jesse) (Entered: 01/12/2010)
2010-01-14	10	Memorandum in opposition to re 9 MOTION for Extension of Time to File Answer re 1 Complaint and Notice in Opposition to Entry of Default filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2)(Verdi, John) (Entered: 01/14/2010)
2010-01-15	11	REPLY to opposition to motion re 9 MOTION for Extension of Time to File Answer re 1 Complaint and Notice in Opposition to Entry of Default filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Grauman, Jesse) (Entered: 01/15/2010)
2010-01-15	12	ANSWER to 1 Complaint by UNITED STATES DEPARTMENT OF HOMELAND SECURITY.(Grauman, Jesse) (Entered: 01/15/2010)
2010-01-15	13	RESPONSE re 4 Affidavit for Default filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (See Docket Entry 11 to view document). (znmw, ) (Entered: 01/19/2010)
2010-01-21	14	STANDING ORDER Signed by Judge Ricardo M. Urbina on 1/21/2010. Read the Standing Order carefully, it will govern this case. Failure to follow the Standing Order will result in sanctions.(tg, ) (Entered: 01/21/2010)
2010-02-02		MINUTE ORDER. The parties shall file a joint status report on or before 02/16/2010 setting forth a proposed schedule to govern these proceedings. SO ORDERED. Signed by Judge Ricardo M. Urbina on 02/02/2010. (lcrmu1) (Entered: 02/02/2010)
2010-02-03		Set/Reset Deadlines/Hearings: Joint Status Report due on or before 2/16/2010. (tg, ) (Entered: 02/03/2010)
2010-02-16	15	STATUS REPORT and Proposed Schedule by ELECTRONIC PRIVACY INFORMATION CENTER, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Grauman, Jesse) (Entered: 02/16/2010)
2010-02-24		MINUTE ORDER. Pursuant to the parties' joint status report and proposed schedule, the following schedule shall govern these proceedings: the defendant's production of documents shall be completed on or before March 2, 2010, March 15, 2010 and April 15, 2010; the defendant's motion for summary judgment shall be filed on or before May 27, 2010; the plaintiff's opposition to the defendant's motion for summary judgment and cross-motion for summary judgment shall be filed on or before June 28, 2010; the defendant's reply in support of the defendant's motion for summary judgment and opposition to the plaintiff's cross-motion for summary judgment shall be filed on or before July 12, 2010; and the plaintiff's reply in support of the plaintiff's cross-motion for summary judgment shall be filed on or before July 26, 2010. SO ORDERED. Signed by Judge Ricardo M. Urbina on 02/24/2010. (lcrmu1) (Entered: 02/24/2010)
2010-02-25		Set/Reset Deadlines: Defendant's Production of Documents due on or before 3/2/2010, 3/15/2010 and 4/15/2010. Defendant's Motion for Summary Judgment due on or before 5/27/2010. Plaintiff's Opposition to Motion for Summary Judgment and Cross-Motion due by 6/28/2010. Defendant's Reply to Opposition to Motion for Summary Judgment and Opposition to the Cross-Motion due on or before 7/12/2010. Plaintiff's Reply in Support of the Plaintiff's Cross-Motion due on or before 7/26/2010. (tg,) (Entered: 02/25/2010)
2010-03-11	16	Joint MOTION to Consolidate Cases by ELECTRONIC PRIVACY INFORMATION CENTER, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Grauman, Jesse) (Entered: 03/11/2010)
2010-03-11	17	NOTICE OF RELATED CASE by ELECTRONIC PRIVACY INFORMATION CENTER, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. Case related to Case No. 1:10cv63. (Attachments: # 1 Exhibit)(Grauman, Jesse) (Entered: 03/11/2010)
2010-03-17		MINUTE ORDER granting 16 the parties' joint motion to consolidate. It is hereby ORDERED that EPIC v. Dep't of Homeland Security, Civil Action No. 10-0063 (CKK) is consolidated with Civil Action No. 09-2084 (RMU); and it is FURTHER ORDERED that all submissions shall be filed in Civil Action No. 09-2084 (RMU); and it is ORDERED that this court's February 24, 2010 scheduling order in EPIC v. Dep't of Homeland Security, Civil Action No. 09-2084 (RMU), shall govern both consolidated actions. SO ORDERED. Signed by Judge Ricardo M. Urbina on 03/17/2010. (lcrmu1) (Entered: 03/17/2010)
2010-05-27	18	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Declaration Declaration of Kevin J. Janet and Exhibits, # 2 Declaration Declaration of Mark Roberts, # 3 Text of Proposed Order Proposed Order)(Grauman, Jesse) (Entered: 05/27/2010)
2010-06-28	19	Memorandum in opposition to re (18 in 1:09-cv-02084-RMU) MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order, # 2 Statement of Facts, # 3 Statement of Facts)Associated Cases: 1:09-cv-02084-RMU, 1:10-cv-00063-RMU(Verdi, John) (Entered: 06/28/2010)
2010-06-28	20	MOTION for Summary Judgment, MOTION for Hearing by ELECTRONIC PRIVACY INFORMATION CENTER. (See Docket Entry 19 to view document. Counsel is reminded to file the motion as a separate docket entry in future). (znmw, ) (Entered: 06/29/2010)
2010-07-12	21	REPLY to opposition to motion re 18 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Exhibit A)(Grauman, Jesse) (Entered: 07/12/2010)
2010-07-12	22	Memorandum in opposition to re 20 MOTION for Summary Judgment MOTION for Hearing filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Exhibit A)(Grauman, Jesse) (Entered: 07/12/2010)
2010-07-26	23	REPLY to opposition to motion re 20 MOTION for Summary Judgment MOTION for Hearing filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Verdi, John) (Entered: 07/26/2010)
2010-08-10		MINUTE ORDER. Good cause having been shown, it is hereby ORDERED that the defendant's 9 motion for extension of time to answer or otherwise respond to the complaint is GRANTED. SO ORDERED. Signed by Judge Ricardo M. Urbina on 08/10/2010. (lcrmu1) (Entered: 08/10/2010)
2011-01-12	24	ORDER granting 18 the defendant's motion for summary judgment and denying the plaintiff's motion for summary judgment 20 . SO ORDERED. Signed by Judge Ricardo M. Urbina on 1/12/11.(lcrmu1) (Entered: 01/12/2011)
2011-01-12	25	MEMORANDUM OPINION granting 18 the defendant's motion for summary judgment and denying the plaintiff's motion for summary judgment 20 . SO ORDERED. Signed by Judge Ricardo M. Urbina on 1/12/11.(lcrmu1) (Entered: 01/12/2011)
2011-01-12		MINUTE ORDER. It is hereby ORDERED that the plaintiff's motion for attorney's fees, if any, shall be due by January 21, 2011; any opposition shall be due on January 28, 2011; and replies shall be due by February 4, 2011. SO ORDERED. Signed by Judge Ricardo M. Urbina on 1/12/11.(lcrmu1) (Entered: 01/12/2011)
2011-01-12		Set/Reset Deadlines: Plaintiff's motion for attorney's fees due by 1/21/2011. Opposition due by 1/28/2011. Reply to opposition due by 2/4/2011. (tg, ) (Entered: 01/12/2011)
2011-01-21	26	MOTION for Attorney Fees by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Exhibit Exhibit 1, # 5 Exhibit Exhibit 2, # 6 Exhibit Exhibit 3, # 7 Exhibit Exhibit 4, # 8 Exhibit Exhibit 5, # 9 Exhibit Exhibit 6, # 10 Exhibit Exhibit 7, # 11 Exhibit Exhibit 8, # 12 Exhibit Exhibit 9, # 13 Exhibit Filing Fee Receipt 1, # 14 Exhibit Filing Fee Receipt 2)Associated Cases: 1:09-cv-02084-RMU, 1:10-cv-00063-RMU(Verdi, John) (Entered: 01/21/2011)
2011-01-24	27	NOTICE of Proposed Order by ELECTRONIC PRIVACY INFORMATION CENTER re (14 in 1:10-cv-00063-RMU) MOTION for Attorney Fees Associated Cases: 1:09-cv-02084-RMU, 1:10-cv-00063-RMU(Verdi, John) (Entered: 01/24/2011)
2011-01-24	28	ERRATA by ELECTRONIC PRIVACY INFORMATION CENTER (14 in 1:10-cv-00063-RMU, 26 in 1:09-cv-02084-RMU) MOTION for Attorney Fees filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit Corrected Motion for Fees, # 2 Exhibit Proposed Order, # 3 Exhibit Exhibit 1, Corrected Bill, # 4 Exhibit Exhibit 2, # 5 Exhibit Exhibit 3, # 6 Exhibit Exhibit 4, # 7 Exhibit Exhibit 5, # 8 Exhibit Exhibit 6, # 9 Exhibit Exhibit 7, # 10 Exhibit Exhibit 8, # 11 Exhibit Exhibit 9, # 12 Exhibit Exhibit 10, # 13 Exhibit Exhibit 11, # 14 Affidavit Rotenberg Affidavit, Corrected, # 15 Affidavit Verdi Affadavit, Corrected, # 16 Affidavit McCall Affadavit, Corrected)Associated Cases: 1:09-cv-02084-RMU, 1:10-cv-00063-RMU(Verdi, John) (Entered: 01/24/2011)
2011-01-28	29	Memorandum in opposition to re 26 MOTION for Attorney Fees and Costs filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Exhibit A: Email by Jesse Grauman, # 2 Exhibit Exhibit B: Email by John Verdi, # 3 Exhibit Exhibit C: Notice of Acceptance of Offer of Judgment, EPIC v. DOJ, # 4 Exhibit Exhibit D: Privacy Impact Assessment, January 2008, # 5 Exhibit Exhibit E: Federal Register Excerpt, # 6 Exhibit Exhibit F: EPIC FOIA Request, # 7 Exhibit Exhibit G: Privacy Impact Assessment, October 2008, # 8 Exhibit Exhibit H: Pennsylvania Bar Records, # 9 Exhibit Exhibit I: Complaint, EPIC v FTC, # 10 Exhibit Exhibit J: Complaint, EPIC v. DOJ)(Grauman, Jesse) (Entered: 01/28/2011)
2011-02-04	30	MOTION for Leave to File Amended Motion for Fees by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Text of Proposed Order, # 2 Amended Motion for Fees, # 3 Text of Proposed Order, # 4 Exhibit Exhibit 1, # 5 Exhibit Exhibit 2, # 6 Exhibit Exhibit 3, # 7 Exhibit Exhibit 4, # 8 Exhibit Exhibit 5, # 9 Exhibit Exhibit 6, # 10 Exhibit Exhibit 7, # 11 Exhibit Exhibit 8, # 12 Exhibit Exhibit 9, # 13 Exhibit Exhibit 10, # 14 Exhibit Exhibit 11, # 15 Affidavit Rotenberg Aff, # 16 Affidavit Verdi Aff, # 17 Affidavit McCall Aff)(Verdi, John) (Entered: 02/04/2011)
2011-02-04	31	REPLY to opposition to motion re 26 MOTION for Attorney Fees filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Verdi, John) (Entered: 02/04/2011)
2011-02-11	32	Memorandum in opposition to re 30 MOTION for Leave to File Amended Motion for Fees and Costs filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit Exhibit A)(Grauman, Jesse) (Entered: 02/11/2011)
2011-02-18	33	REPLY to opposition to motion re 30 MOTION for Leave to File Amended Motion for Fees filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Verdi, John) (Entered: 02/18/2011)
2011-03-24	34	MOTION for Reconsideration re 25 Memorandum & Opinion by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Text of Proposed Order)(Verdi, John) (Entered: 03/24/2011)
2011-03-30	35	Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiff's Motion for Reconsideration by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:09-cv-02084-RMU, 1:10-cv-00063-RMU(Wells, Carlotta) (Entered: 03/30/2011)
2011-04-18	36	Memorandum in opposition to re 34 MOTION for Reconsideration re 25 Memorandum & Opinion filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Grauman, Jesse) (Entered: 04/18/2011)
2011-04-25	37	REPLY to opposition to motion re (34 in 1:09-cv-02084-RMU) MOTION for Reconsideration re (25) Memorandum & Opinion filed by ELECTRONIC PRIVACY INFORMATION CENTER. Associated Cases: 1:09-cv-02084-RMU, 1:10-cv-00063-RMU(Verdi, John) (Entered: 04/25/2011)
2011-09-12	38	ORDER denying as moot 30 the plaintiff's motion for leave to file; denying 34 the plaintiff's motion for relief upon reconsideration; granting in part and denying in part 26 the plaintiff's motion for attorney's fees and costs. Signed by Judge Ricardo M. Urbina on 9/12/11.(lcrmu1) (Entered: 09/12/2011)
2011-09-12	39	MEMORANDUM OPINION denying as moot 30 the plaintiff's motion for leave to file; denying 34 the plaintiff's motion for relief upon reconsideration; granting in part and denying in part 26 the plaintiff's motion for attorney's fees and costs. Signed by Judge Ricardo M. Urbina on 9/12/11. (lcrmu1) (Entered: 09/12/2011)
2011-09-12		MINUTE ORDER granting 35 the defendant's motion for extension of time to file a response/reply to the plaintiff's motion for relief upon reconsideration. Signed by Judge Ricardo M. Urbina on 9/12/11, nunc pro tunc 3/30/11.(lcrmu1) (Entered: 09/12/2011)
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