                      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

Copies to: Attorneys of record via ECF




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