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Court Denies EPIC's Rehearing Request, Awards Fees 30

Posted by Unknown Lamer
from the good-thing-I'm-on-the-no-fly-list dept.
OverTheGeicoE writes "The Electronic Privacy Information Center posted a news release about the DC Circuit Court awarding them attorneys fees yesterday. They are to receive $21,482 in attorneys fees for an open government lawsuit against DHS that ultimately released documents about DHS's airport body scanner program. EPIC used these released documents in EPIC v. DHS, another lawsuit that attempts to end the use of airport body scanners. At the end of an e-mailed version of this news release (EPIC Alert 18.18, not yet posted on the Web), EPIC states that 'EPIC requested an en banc review of the court's decision not to suspend, but, on September 12, 2011, the court declined the request.' Is this the end of EPIC v. DHS, or does this simply open the door for an appeal to the Supreme Court?" The complete ruling (PDF) is available.
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Court Denies EPIC's Rehearing Request, Awards Fees

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  • by nman64 (912054) * on Tuesday September 13, 2011 @03:19PM (#37390610) Homepage

    ...an EPIC WIN in the Supreme Court!

    • by Nadaka (224565)

      ...That is the second time I have seen that linked today, on another forum on a 9/11 remembrance thread...

      But I don't really see how it applies to this topic.

      • 10 years and 2 days ago, you walked through a metal detector, showed your boarding pass and got on the plane. Five years ago, you walked through a metal detector, electronics get checked for explosives, showed your boarding pass and ID and got on a plane.

        Today, you go through a metal detector, an X-Ray machine, take off your shoes, get hand checked so thoroughly that sexual abuse victims have panic attacks at the thought of going through security, show an ID, boarding pass, get checked against at least 3 g

        • by Nadaka (224565)

          That last line was added after that comment sat idle for 15 minutes, somewhat lost track of what I was posting.

  • by dkleinsc (563838) on Tuesday September 13, 2011 @03:41PM (#37390868) Homepage

    Nowadays, whenever somebody sues the government, particularly those agencies that deal with military or law enforcement, for breaking its own laws, the executive branch just says "National security requires we can't reveal the information that would allow us to defend this case" and the judiciary is happy to throw out the suit. This response seems to be true even if the information in question was previously on the front page of major newspaper, and the only reason the executive is claiming the "state secrets" privilege is because it's plainly guilty.

    It's not the fault of all federal judges, because all this kind of thing requires is 5 SCOTUS judges willing to go along with it.

    • by Anonymous Coward

      ...because all this kind of thing requires is 5 SCOTUS judges willing to go along with it.

      Which, oddly enough, we happen to have right now.

      • Maybe, but that has nothing to do with this case.

        SCOTUS has already decided [supremecourt.gov] that the reason for which the trial court upheld the denial of EPIC's FOIA request is no longer valid. Unfortunately, the ruling did not come in time to help EPIC, whose attorneys apparently knew about the case before the Supreme Court but did not appeal EPIC's case in the allowed time for appeal.

        See the linked decision.

    • by residieu (577863)
      They should word it "We can't defend this case without endangering National Security", which can be true even if they can't defend the case at all.
    • by ProfBooty (172603)

      "A nation of sheep will beget a government of wolvesâ

      Edward R. Murrow (1909-1965).

  • And I highly doubt the Supremes will rule differently, if they agree to hear it at all.

    • by v1 (525388)

      would be a nice opportunity to set a SCOTUS precedent though....

    • by sjames (1099)

      So you believe they'll second that emotion?

      • by SeaFox (739806)

        The idea these scanners may be put to pasture as the invasive, dangerous machines they are is what keeps me hangin' on.

  • by Saxophonist (937341) on Tuesday September 13, 2011 @03:55PM (#37391034)

    Read the opinion linked from the summary. The basis of the ruling denying the motion for reconsideration was that it was untimely and filed after the deadline for appeal. EPIC had options to delay the ruling in their case pending the outcome of Milner v. Department of the Navy in the Supreme Court, and apparently, the attorneys for EPIC knew about that case. So, the underlying reason that EPIC lost initially was overturned by the Supreme Court, but because EPIC did not appeal within sixty days, they have no further relief. The relevant appellate court would dismiss the appeal as untimely, so it would never get to a petition for certiorari.

    • Please excuse what may be a silly question (IANAL, nor do I play one on /.), but what would that mean for an appeal to a higher court (SCOTUS, I believe, but I could easily be mistaken)?
      • I'm not a lawyer either, but my understanding is that EPIC would have to appeal (to the relevant Court of Appeals -- I'm not sure what that is officially called for the D.C. Circuit) and lose before they could make a petition for certiorari, which is a petition to persuade the Supreme Court to hear their case. EPIC can't even appeal because they missed the deadline for doing so. That means they don't get to appeal to the Supreme Court either.

        • by compro01 (777531)

          to the relevant Court of Appeals -- I'm not sure what that is officially called for the D.C. Circuit

          It's the Court of Appeals for the District of Columbia Circuit

    • by OverTheGeicoE (1743174) on Tuesday September 13, 2011 @04:59PM (#37391714) Journal

      The opinion linked in the summary is not for the case seeking to suspend airport body scanners. The opinion linked here is for a case where EPIC tried to force DHS to release additional documents about body scanners. It does not address the suspension lawsuit at all. All we know about the suspension suit is that, according to information in an e-mail from EPIC, the request for a rehearing was denied.

  • DC Circuit Court Ha.

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