Wright v. Fbi

• Court: District Court, District of Columbia
• Decided: February 24, 2009
• Docket: Civil Action No. 2002-0915
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) ROBERT G. WRIGHT, JR., ) ) Plaintiff, ) ) v. ) Civil Action No. 02-915 (GK) ) FEDERAL BUREAU OF ) INVESTIGATION, ) ) Defendant. ) ______________________________) ) JOHN VINCENT, ) ) Plaintiff, ) ) v. ) Civil Action No. 03-226 (GK) ) FEDERAL BUREAU OF ) INVESTIGATION, ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Plaintiffs are Robert G. Wright, Jr., a FBI Special Agent

based in Chicago, and John Vincent, a retired FBI Special Agent.

Plaintiffs were both members of the FBI’s Counter-Terrorism Task

Force. Plaintiffs were denied permission, pursuant to the FBI’s

prepublication review policy, to publish certain writings critical

of the FBI’s counter-terrorism efforts. They bring these separate

lawsuits against Defendant, Federal Bureau of Investigation (“FBI”). Vincent has also named the Department of Justice as a

Defendant.

On July 31, 2006, this Court denied Plaintiffs’ Motions for

Summary Judgment, granted Defendants’ Motions for Summary Judgment

with respect to Plaintiffs’ claims under 28 C.F.R. § 17.18 (Count

II) and the Administrative Procedure Act, 5 U.S.C. § 706(2)(A),

(B), and (D) (Count III), and denied Defendants’ Motions with

respect to Plaintiffs’ First Amendment claims (Count I) (“Opinion”)

[Dkt. Nos. 69, 70].1

This matter is now before the Court on Plaintiffs’ Motions for

Reconsideration (“Mot.”) of the award of summary judgment with

respect to Section 706(2)(B) of the APA. Upon consideration of the

Motions, Oppositions, and Replies, the entire record herein, and

for the reasons stated below, Plaintiffs’ Motions for

Reconsideration are granted.

Motions for reconsideration are “disfavored and relief from

judgment is granted only when the moving party establishes

extraordinary circumstances.” Andreen v. Lanier, 582 F. Supp. 2d

48, 49-50 (D.D.C. 2008) (quoting Niedermeier v. Office of Baucus,

153 F. Supp. 2d 23, 28 (D.D.C. 2001)). A motion for

reconsideration is granted only when “there is an intervening

change of controlling law, the availability of new evidence, or the

1 For the sake of simplicity, Docket Numbers refer only to Wright, 02-915.

2 need to correct clear error or manifest injustice.” Anyanwutaku v.

Moore, 151 F.3d 1053, 1057 (D.C. Cir. 1998) (quoting Firestone v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)).

Here, Plaintiffs argue that the Court committed clear error by

dismissing all three APA claims in their entirety. Count III

alleged violations of three separate sections of the APA: Sections

706(2)(A), (B), and (D). Under Section 706(2)(A), a court may “set

aside agency action” that is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” In contrast,

section 706(2)(B) allows a court to “set aside agency action” that

is “contrary to constitutional right, power, privilege, or

immunity.”2

Plaintiffs allege that granting Defendants’ Motions for

Summary Judgment with respect to Section 706(2)(B) was “premature

while the First Amendment claims are pending.” Mot. at 1.

Therefore, Plaintiffs contend, the Court’s statement that

“Defendants’ Motions are granted with respect to Plaintiffs’ claims

under . . . the APA” sweeps too broadly.

In response, Defendants argue that none of the three elements

upon which a motion for reconsideration may be granted -- a change

of law, new evidence, or a need to correct clear error or manifest

injustice -- are present here. Defendants also argue that

Plaintiffs should have made the differences between subsections (A)

2 Plaintiffs have made no claim regarding Section 706(2)(D).

3 and (B) of the APA more apparent in their briefs. Finally,

Defendants argue that the Motion is unnecessary because Plaintiffs

will not suffer any “material injustice” since the Opinion does not

prohibit Plaintiffs from pursuing their constitutional claims.

When a court denies APA claims under the “arbitrary and

capricious” prong, it does not automatically deny APA claims based

on the “contrary to constitutional right” prong. See WWHT, Inc. v.

FCC, 656 F.2d 807, 815 n.15 (D.C. Cir. 1981) (“In no event would a

finding of nonreviewability on the ground that an action is

committed to agency discretion preclude judicial review when

constitutional violations have been alleged.”).

Nothing in the Opinion can be read to deny any of Plaintiffs’

claims that have a constitutional basis. The Opinion explicitly

denies Defendants’ Motion for Summary Judgment on Plaintiffs’

constitutional claims. See id. at 28 (“[T]he parties’ Motions for

Summary Judgment are denied with respect to Plaintiffs’ First

Amendment claims.”) (emphasis omitted). In addition, the section

of the Opinion that addresses the APA claims, Part C, never refers

to Section 706(2)(B). See Opinion, at 24-28. In describing and

rejecting Plaintiffs’ arguments, Part C refers only to the

“arbitrary and capricious” claims brought pursuant to Section

706(2)(A). See generally id. Because all of Plaintiffs’

constitutional claims should be preserved, including those based on

4 the APA, Plaintiffs should be entitled to pursue relief for the

portions of Count III based on Section 706(2)(B).

For the reasons noted above, it is hereby

ORDERED that Plaintiffs’ Motions for Reconsideration [Dkt. No.

71] are hereby granted and Count III is reinstated only as to

claims based on Section 706(2)(B) of the APA.

/s/ February 24, 2009 Gladys Kessler United States District Judge

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