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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 28 USC § 515 between 

January 1, 2010 and the current date [January 14, 2014], to include orders of the 
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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 5 U.S.C. § 552(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). 

Id. ¶¶ 9-10. 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”). Id. ¶¶ 12-13. 

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”).
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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., 216 F.3d 1111, 1113 (D.C. Cir. 2000), quoting 

Schuler v. United States, 617 F.2d 605, 608 (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, 292 F.3d 235, 242 (D.C. Cir. 2002); see Warren v. District of Columbia, 353 F.3d 36, 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, 601 F. Supp. 2d 6, 12 (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.” 5 U.S.C. § 552(a)(4)(B); 

accord Military Audit Project v. Casey, 656 F.2d 724, 738 (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, 257 F.3d 828, 833 (D.C. Cir. 2001), quoting 

Goland v. CIA, 607 F.2d 339, 352 (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, 404 F. Supp. 2d 246, 252 (D.D.C. 2005). Since FOIA mandates a 
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“strong presumption in favor of disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991), 

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

425 U.S. 352, 361 (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, 216 F.3d 1180, 1190 (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, 789 F.3d 204, 209 (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, 546 F.3d 703, 706 

(D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (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, 601 F. Supp. 2d at 12, provided the declarations are not “conclusory[,] . . . 

vague or sweeping.” King v. United States Dep't of Justice, 830 F.2d 210, 219 (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 
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U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002); see accord Isiwele v. United States Dep't of 

Health & Human Servs., 85 F. Supp. 3d 337, 352 (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, 565 F.3d 

857, 862-63 (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.” 5 U.S.C. § 552(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, 532 

U.S. 1, 8 (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., 889 F.2d 1118, 1121 (D.C. Cir. 1989) (internal quotation 

marks omitted). 
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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, 432 F.3d 366, 369 (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[.]” Id., quoting Hickman v. Taylor, 329 

U.S. 495, 510-11 (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[.]” Id. 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., 432 F.3d at 371. 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 
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decision” that was ultimately released to plaintiff. Stone Suppl. Decl. ¶ 28. See Soghoian v. U.S. 

Dep't of Justice, 885 F. Supp. 2d 62, 74 (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., 805 F.3d 289, 300 (D.C. Cir. 2015); Abdeljabbar v. Bureau of Alcohol, Tobacco & 

Firearms, 74 F. Supp. 3d 158, 176-77 (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,” 5 U.S.C. § 552(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, 620 F. Supp. 19, 21 (D.D.C. 1985), aff'd, 

808 F.2d 137 (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
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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