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Case Name Electronic Privacy Information Center v. National Security Agency NS-DC-0003
Docket / Court 10-0196 ( D.D.C. )
State/Territory District of Columbia
Case Type(s) National Security
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 ( ... read more >
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.

Elizabeth Homan - 11/11/2013
Cade Boland - 03/08/2018


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Issues and Causes of Action
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Issues
Content of Injunction
Recordkeeping
Defendant-type
Jurisdiction-wide
General
Confidentiality
Records Disclosure
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Freedom of Information Act (FOIA), 5 U.S.C. § 552
Defendant(s) National Security Agency
National Security Council
Plaintiff Description Plaintiff is the Electronic Privacy Information Center.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Filing Year 2010
Case Closing Year 2015
Case Ongoing No
Docket(s)
1:10-cv-00196-BAH (D.D.C.)
NS-DC-0003-9000.pdf | Detail
Date: 05/20/2015
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Injunctive Relief [ECF# 1]
NS-DC-0003-0001.pdf | Detail
Date: 02/04/2010
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 9] (795 F.Supp.2d 85) (D.D.C.)
NS-DC-0003-0002.pdf | WESTLAW| LEXIS | Detail
Date: 07/07/2011
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion (2013 WL 5701645) (D.D.C.)
NS-DC-0003-0003.pdf | WESTLAW | Detail
Date: 10/21/2013
Source: Westlaw
Order [ECF# 28] (D.D.C.)
NS-DC-0003-0004.pdf | Detail
Date: 11/21/2013
Source: PACER [Public Access to Court Electronic Records]
Notice of Appeal [ECF# 33]
NS-DC-0003-0006.pdf | Detail
Date: 12/18/2013
Source: PACER [Public Access to Court Electronic Records]
Joint Motion to Dismiss Plaintiff's Appeal as Moot, Vacate The District Court Decision in Part, and Remand to Address any Claim for Fees [Ct. of App. ECF# 1496765]
NS-DC-0003-0007.pdf | Detail
Date: 06/09/2014
Source: PACER [Public Access to Court Electronic Records]
Order
NS-DC-0003-0008.pdf | Detail
Date: 07/31/2014
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 51] (87 F.Supp.3d 223) (D.D.C.)
NS-DC-0003-0005.pdf | WESTLAW| LEXIS | Detail
Date: 04/08/2015
Source: PACER [Public Access to Court Electronic Records]
Judges Howell, Beryl Alaine (D.D.C.)
NS-DC-0003-0002 | NS-DC-0003-0003 | NS-DC-0003-0004 | NS-DC-0003-0005 | NS-DC-0003-9000
Plaintiff's Lawyers Kaprove, Marc (District of Columbia)
NS-DC-0003-0001
McCall, Ginger P. (District of Columbia)
NS-DC-0003-9000
Rotenberg, Marc (District of Columbia)
NS-DC-0003-0001 | NS-DC-0003-0006 | NS-DC-0003-9000
Stepanovich, Amie L. (District of Columbia)
NS-DC-0003-9000
Verdi, John Arthur (District of Columbia)
NS-DC-0003-0001 | NS-DC-0003-9000
Defendant's Lawyers Brinkmann, Beth S (District of Columbia)
NS-DC-0003-0007
Delery, Stuart F. (District of Columbia)
NS-DC-0003-0007
Dworkowitz, Gregory Peter (District of Columbia)
NS-DC-0003-9000
Littleton, Judson O. (District of Columbia)
NS-DC-0003-9000
Stern, Mark B. (District of Columbia)
NS-DC-0003-0007
Wilkenfeld, Joshua (District of Columbia)
NS-DC-0003-9000

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