UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HECTOR ORLANSKY, ) ) Plaintiff, ) ) v. ) Civ. Action No. 15-0649 (ABJ) ) ) DEPARTMENT OF JUSTICE et al., ) ) Defendants. ) ________________________________________ )

MEMORANDUM OPINION

Plaintiff Hector Orlansky, a federal prisoner, filed this lawsuit to expedite the processing

of his Freedom of Information Act (“FOIA”) request to the Executive Office for United States

Attorneys (“EOUSA”), seeking records maintained by the United States Attorney’s Office in the

Southern District of Florida (“USAO/SDFL”). Having now processed the request, defendants

move to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure or for

summary judgment under Rule 56, ECF No. 11. Upon consideration of the parties’ submissions

and the entire record, the Court will grant defendants’ motion and enter judgment accordingly.

BACKGROUND

In a FOIA request dated January 14, 2014, plaintiff sought:

1) Any and all such records pertaining to the recusal of U.S. Attorney Wilfredo Ferrer from litigation, in the Southern District of Florida, in general or specific cases; 2) Any and all such records pertaining to the appointment of Benjamin Greenberg, as U.S. Attorney; 3) Any and all such records pertaining to the appointment of Benjamin Greenberg, pursuant to

between January 1, 2010 and the current date [January 14, 2014], to include orders of the

1 Attorney General; 4) Any such information relating to items 1-3 as it relates to individual Hector Orlansky.

Compl., Ex. A; Decl. of Maritza Cuadros ¶ 7, ECF No. 11-2. After the filing of this action in

April 2015, EOUSA informed plaintiff by letter dated July 7, 2015, that it was withholding all 220

responsive pages under FOIA exemptions 5, 6 and 7(C), see

(b). Decl. of Princina

Stone, Attach. A, ECF No. 11-1. In response to plaintiff’s opposition to the instant motion,

EOUSA expanded its initial search to include its Office of General Counsel (“OGC”); it located

“a copy of the complete file on this recusal action . . ., consisting of 39 pages,” and “verified” that

all but five pages were among the previously reviewed 220 pages. Suppl. Stone Decl. ¶¶ 7-8,

ECF No. 18-2. The additional five pages were withheld as well under exemptions 5, 6 and 7(C).

. EOUSA also located “two memoranda embedded within [ ] emails between the

Assistant United States Attorneys discussing U.S. Attorney Ferrer’s recusal.” It referred those

documents to DOJ’s Office of Information Policy (“OIP”), as the office “responsible for

processing requests for records from six senior leadership offices,” including the Office of the

Deputy Attorney General (“ODAG”).

.

By letter dated November 5, 2015, OIP released the referred records to plaintiff in their

entirety as documents constituting the agency’s final decision about the recusal. Decl. of Vanessa

R. Brinkmann, Ex. A, ECF No. 18-1. See Brinkmann Decl. ¶ 6 (describing the released

documents as notification to “the U.S. Attorney’s Office of ODAG’s approval of U.S. Attorney

Ferrer’s recusal and authorization of First Assistant U.S. Attorney Greenberg to act in Mr. Ferrer’s

place in U.S. v. Orlansky, as well as in any related matters”).

2 LEGAL STANDARDS

A. Motions to Dismiss

In evaluating a motion to dismiss, the court must “treat the complaint’s factual allegations

as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts

alleged.’ ” Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000), quoting

Schuler v. United States,

(D.C. Cir. 1979) (citations omitted). Nevertheless, the

court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts

alleged in the complaint, nor must the court accept plaintiff's legal conclusions. Browning v.

Clinton,

(D.C. Cir. 2002); see Warren v. District of Columbia,

, 39-

40 (D.C. Cir. 2004) (differentiating unacceptable conclusions of law from acceptable conclusions

of fact).

B. Motions for Summary Judgment

“FOIA cases are typically and appropriately decided on motions for summary judgment.”

Moore v. Bush,

(D.D.C. 2009). The district court reviews the agency's

action de novo and “the burden is on the agency to sustain its action.”

(a)(4)(B);

accord Military Audit Project v. Casey,

(D.C. Cir. 1981). To prevail in a FOIA

action, an agency must demonstrate that each document that falls within the class requested either

has been produced . . . or is wholly exempt from the [FOIA’s] inspection requirements.’ ”

Students Against Genocide v. U.S. Dep't of State,

(D.C. Cir. 2001), quoting

Goland v. CIA,

(D.C. Cir. 1978). In other words, the agency must show that

“materials that are withheld . . . . fall within a FOIA statutory exemption.” Leadership Conf. on

Civil Rights v. Gonzales,

(D.D.C. 2005). Since FOIA mandates a

3 “strong presumption in favor of disclosure,” U.S. Dep’t of State v. Ray,

(1991),

an agency’s invocation of exemptions is to be “narrowly construed.” Dep’t of Air Force v. Rose,

(1976). The agency seeking to withhold a document bears the burden of

showing that it falls within the cited exemption. Natural Res. Def. Counsel, Inc. v. Nuclear

Regulatory Comm'n,

(D.C. Cir. 2000). The Court of Appeals has

“emphasized,” however, “that an agency's task is not herculean. The justification for invoking a

FOIA exemption is sufficient if it appears logical or plausible.” Murphy v. Exec. Off. for U.S.

Attorneys,

(D.C. Cir. 2015) (citation and internal quotation marks omitted).

On summary judgment, the Court generally “must view the evidence in the light most

favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making

credibility determinations or weighing the evidence.” Montgomery v. Chao,

(D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc.,

(1986). But

where, in a FOIA case, a plaintiff has not provided evidence that an agency acted in bad faith, “a

court may award summary judgment solely on the basis of information provided by the agency in

declarations,” Moore,

, provided the declarations are not “conclusory[,] . . .

vague or sweeping.” King v. United States Dep't of Justice,

(D.C. Cir. 1987)

(internal citation and quotation marks omitted).

ANALYSIS

I. Defendants’ Motion to Dismiss

Plaintiff invokes both FOIA and the Administrative Procedure Act (APA). See Compl. ¶

1. Since the complaint is predicated on the alleged unlawful withholding of agency records, the

“comprehensiveness of FOIA” forecloses any purported APA claim. Johnson v. Exec. Off. for

4 U.S. Attorneys,

(D.C. Cir. 2002); see accord Isiwele v. United States Dep't of

Health & Human Servs.,

(D.D.C. 2015). Hence, defendants’ motion to

dismiss the APA claim, see Defs.’ Supp’g Mem. at 7-8, is granted.

II. Defendants’ Motion for Summary Judgment

EOUSA withheld records completely under FOIA exemption 5, and it redacted third-party

identifying information contained in those records under exemptions 6 and 7(C). See Stone Decl.

¶¶ 9-26 & Attach. B (Vaughn Index); Suppl. Stone Decl., Attach. A (Suppl. Vaughn Index).

When an agency relies on multiple exemptions, “courts may uphold agency action under one

exemption without considering the applicability of the other.” Larson v. Dep't of State,

(D.C. Cir. 2009).

FOIA exemption 5 bars disclosure of “inter-agency or intra-agency memorandums or

letters which would not be available by law to a party other than an agency in litigation with the

agency.”

(b)(5). A document may be properly withheld under exemption 5 only

if it satisfies “two conditions: its source must be a [g]overnment agency, and it must fall within the

ambit of a privilege against discovery under judicial standards that would govern litigation against

the agency that holds it.” U.S. Dep't of Interior v. Klamath Water Users Protective Ass'n,

(2001). The Court of Appeals has interpreted exemption 5 “to encompass the protections

traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery

context, including materials which would be protected under the attorney-client privilege, the

attorney work-product privilege, or the executive deliberative process privilege.” Formaldehyde

Inst. v. Dep't of Health & Human Servs.,

(D.C. Cir. 1989) (internal quotation

marks omitted).

5 EOUSA contends that the withheld records are protected under exemption 5 as attorney

work product and deliberative process material. Attorney work product encompasses material “

‘prepared in anticipation of litigation or for trial by or for another party or by or for that other

party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer,

or agent).’ ” Judicial Watch, Inc. v. Dep't of Justice,

(D.C. Cir. 2005), quoting

Fed. R. Civ. P. 26(b)(3). “[T]he Supreme Court has made clear [that] the [work product] doctrine

should be interpreted broadly and held largely inviolate[.]”

quoting Hickman v. Taylor,

(1947).

The withheld records are described as “privileged email communications among

government attorneys” about U.S. Attorney Ferrer’s “possible recusal from certain civil or

criminal matters.” Vaughn Index. The “underlying discussions were related to ongoing or

contemplated litigation or negotiations involving the USAO/SDFL[.]”

According to

EOUSA’s declarant, “[t]he government attorneys involved in [the] email discussions were acting

as legal advisors to the agency[,]” and “in each instance, litigation was either ongoing or

contemplated.” Stone Decl. ¶ 17. The Court finds the emails to be attorney work product and,

thus, protected from disclosure under exemption 5. This essentially ends the matter because “if a

document is fully protected as work product, [ ] segregability is not required.” Judicial Watch,

Inc.,

. Nevertheless, the Court finds that defendants properly asserted the

deliberative process privilege as well since the withheld emails reflect the agency’s “back and forth

discussions,” pondering potential “outcomes of U.S. Attorney Ferrer’s recusal from certain matters

that took place 1) in advance of the final recusal decision, and 2) [ ] after the final ODAG

memoranda . . . as the [USAO/SDFL] decided how to interpret and implement the [final] recusal

6 decision” that was ultimately released to plaintiff. Stone Suppl. Decl. ¶ 28. See Soghoian v. U.S.

Dep't of Justice,

(D.D.C. 2012) (discussing deliberative process privilege).

Plaintiff counters that he “is very much aware [of] and understands perfectly well” the

claimed exemptions, and that he “is not interested in absolutely one Iota of confidential agency

interoffice memo or emails” and the third-party information defendants have withheld. Pl.’s

Opp’n at 2-3, ECF No. 13. Rather, plaintiff demands “to know WHY U.S. Attorney Wilfredo

Ferrer recused himself and what were the conflict of interest he had in Defendant Criminal case

and Civil matters.” Id. at 3 (capitalization in original). But FOIA authorizes access to existing

agency records notwithstanding the requester’s need or purpose, see Chiquita Brands Int'l Inc. v.

S.E.C.,

(D.C. Cir. 2015); Abdeljabbar v. Bureau of Alcohol, Tobacco &

Firearms,

(D.D.C. 2014), and it confers limited jurisdiction on the

court “to enjoin the agency from withholding agency records and to order the production of any

agency records improperly withheld,”

(a)(4)(B). Consequently, the Court cannot

compel defendants “to answer questions . . . or to create documents or opinions in response to

[plaintiff’s] request for information.” Hudgins v. IRS,

(D.D.C. 1985), aff'd,

(D.C. Cir. 1987). Since plaintiff has acquiesced in defendants’ valid justifications

for withholding the responsive records under exemption 5, the agency’s motion for summary

judgment is granted.

CONCLUSION

7 For the foregoing reasons, the Court concludes that defendants have satisfied their

disclosure obligations under FOIA and are entitled to judgment as a matter of law. A separate

order accompanies this Memorandum Opinion.

_______________________ AMY BERMAN JACKSON United States District Judge DATE: March 9, 2016

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