IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

 

JOHN VINCENT                                                       )          

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Plaintiff,                                    )

)          

v.                                                                                 )           Civil Action No.

)          

FEDERAL BUREAU OF INVESTIGATION )

)

and                                                                               )

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U.S. DEPARTMENT OF JUSTICE                            )

)

Defendants.                              )

__________________________________________)

 

 

COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF

 

 Plaintiff John Vincent submits this Complaint for Declaratory and Injunctive Relief.  As grounds therefore, Plaintiff alleges as follows:

                                                    JURISDICTION AND VENUE

1.         This court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, because Plaintiff’s claims arise under federal law and the U.S. Constitution. 

2.         Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) and (e). 

                                                                      PARTIES

3.         Plaintiff John Vincent is a U.S. Citizen and a resident of the State of Illinois.  He formerly was employed as a Special Agent of the Federal Bureau of Investigation (“FBI”).

4.         Defendant FBI is an agency of the U.S. Government.  The FBI’s headquarters is located at 935 Pennsylvania Avenue, N.W., Washington, DC  20535.


5.         Defendant U.S. Department of Justice (“DOJ”) also is an agency of the U.S. Government.  DOJ’s headquarters is located at 935 Pennsylvania Avenue, N.W., Washington, DC  20535.

STATEMENT OF FACTS

6.         At all relevant times, Plaintiff was assigned to the FBI’s Chicago Field Office, where he worked as a member of the counter-terrorism squad. 

7.         As a Special Agent, before Plaintiff publicly disclosed certain materials or information, he was required to submit the materials or information to the Office of Public and Congressional Affairs (“OPCA”) for prepublication review.  

8.         On or about March 31, 2002, Plaintiff sought prepublication review of certain written answers to questions posed to him by Ms. Judith Miller, a reporter for The New York Times.

9.         Although OPCA was required to respond to Plaintiff within thirty (30) days, it failed to do so.  See 28 U.S.C. § 17.18. 


10.       OPCA did not respond until May 10, 2002.  In its response, OPCA advised SA Vincent that his written answers contain “information regarding an open investigation, matters occurring before a federal grand jury and other material prohibited from disclosure, and that the information is so inextricably linked with protected information that we are unable to authorize public disclosure of the material in its entirety at this time.”  OPCA failed to specify any particular portion of the answers that were allegedly objectionable, in violation of the FBI’s own internal procedures.  See “Procedures for Review of Nonofficial Publications by Employees, Former Employees and Contractor Personnel” at para. 3(a)(3)(d) (“The panel will either authorize disclosure in full or provide written objections to specific portions or words (marked directly on the manuscript and noted by page and paragraph number) specifying why the FBI should withhold permission to disclose.”).

11.       On June 7, 2002, SA Vincent appealed OPCA’s May 10, 2002 ruling to Director Mueller pursuant to 28 C.F.R. § 17.144(s)(3) (which has been recodified at 28 C.F.R. § 17.18(j)(3)).

12.       Director Mueller denied SA Vincent’s appeal on July 24, 2002.

13.       On January 6, 2003, SA Vincent appealed Director Mueller’s July 24, 2002 ruling to the Deputy Attorney General pursuant to 28 C.F.R. § 17.18(i).

14.       On January 17, 2003, the Deputy Attorney General responded to SA Vincent’s appeal, claiming:

I have been advised that, while [your] material contains law enforcement sensitive information or information otherwise protected from disclosure at this time, former SA Vincent’s responses do not contain properly classifiable information.  Consequently, since classified information is not at issue, an appeal to the Deputy Attorney General’s Office does not lie in this case.

 

You may seek judicial review of the FBI’s decision to deny [you] authorization to publish or disclose the above-referenced information.  [You] remain obligated not to disclose or publish information determined by the Government to be protected until any civil action is resolved.

 

15.       The Deputy Attorney General’s refusal to consider SA Vincent’s appeal constitutes the denial of that appeal.

                                                                      COUNT I

                                                 (Violation of the First Amendment)

 

16.       Plaintiff hereby realleges Paragraphs 1 through 15 as if fully stated herein.

17.       Plaintiff enjoys the right of Freedom of Speech, as guaranteed by the First Amendment to the U.S. Constitution.


18.       Defendants, acting under color of federal authority, have and are continuing to deprive Plaintiff of his First Amendment rights by refusing to grant him permission to publish written answers to questions posed to him by Ms. Judith Miller of The New York Times and/or by failing to specify any particular portion of the answers that allegedly are objectionable so as allow Plaintiff to revise the answers to address Defendants’ alleged concerns.

WHEREFORE, Plaintiff respectfully requests that the Court:  (1) declare Defendants’ refusal to grant him permission to publish his answers as being unlawful; (2) enjoin Defendants from continuing to refuse to grant him permission to publish his answers; (3) award him reasonable attorney’s fees and costs; and (4) grant such other relief as the Court may deem just and proper.

                                                                     COUNT II

                                                 (Violation of the 28 C.F.R. § 17.18)

 

19.       Plaintiff hereby realleges Paragraphs 1 through 18 as if fully stated herein.

20.       Plaintiff is entitled to judicial review of Defendants’ denial to grant him prepublication review pursuant to 28 C.F.R. § 17.18(i). 

21.       Defendants acted contrary to law and contrary to their own procedures in refusing  to grant Plaintiff permission to publish written answers to questions posed to him by Ms. Judith Miller of The New York Times and/or failing to specify any particular portion of the answers that allegedly are objectionable so as allow Plaintiff to revise the answers to address Defendants’ alleged concerns.


WHEREFORE, Plaintiff respectfully requests that the Court:  (1) declare Defendants’ refusal to grant him permission to publish his answers as being unlawful; (2) enjoin Defendants from continuing to refuse to grant him permission to publish his answers; (3) award him reasonable attorney’s fees and costs; and (4) grant such other relief as the Court may deem just and proper.

                                                                    COUNT III

                                      (Violation of the Administrative Procedures Act)

22.       Plaintiff hereby realleges Paragraphs 1 through 21 as if fully stated herein.

23.       Defendants’ rulings of May 10, 2002 and January 17, 2003 constitute final agency decisions.

24.       Defendants acted arbitrarily, capriciously, and contrary to law and their own procedures in refusing  to grant Plaintiff permission to publish written answers to questions posed to him by Ms. Judith Miller of The New York Times and/or failing to specify any particular portion of the answers that allegedly are objectionable so as allow Plaintiff to revise the answers to address Defendants’ alleged concerns, in violation of 5 U.S.C. §§ 706(2)(A) (B) and (D).

WHEREFORE, Plaintiff respectfully requests that the Court:  (1) declare Defendants’ refusal to grant him permission to publish his answers as being unlawful; (2) enjoin Defendants from continuing to refuse to grant him permission to publish his answers; (3) award him reasonable attorney’s fees and costs; and (4) grant such other relief as the Court may deem just and proper.


Respectfully submitted,

 

JUDICIAL WATCH, INC.

 

 

 

___________________________

Larry Klayman

D.C. Bar No. 334581

Paul J. Orfanedes

D.C. Bar No. 429716

Suite 725

501 School Street, S.W.

Washington, DC 20024

(202) 646-5172

 

Attorneys for Plaintiff