1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HECTOR ORLANSKY , ) ) Plaintiff, ) ) v. ) Civ. Action No. 1 5
- 0649 (ABJ) ) ) DEPARTMENT OF JUSTICE et al . , ) ) Defendant s . )

_________________________________ _______ )

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, d efendant s

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

sum mary judgment under Rule 56 , ECF No. 11

. Upon consideration of the parties’ submissions and the entire rec ord, 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 the2 Attorney General; 4) Any such information re lating to items 1

- 3 as it relates to individual Hector Orlansky. Compl ., Ex . A; Decl. of Maritza Cuadros ¶ 7 , ECF No. 11

- 2

. After th e 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

. I n response to plaintiff’s opposition to the instant motion, EOUSA expanded its initial search to include its Of fice 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 add itional 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 referr ed 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 constitut ing the agency’s final decision about the recusal. Decl. of Vanessa R. Brinkmann, Ex. A, ECF No. 18

- 1. See Brinkmann Decl. ¶ 6 ( descr ibing t h e 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 an y related matters” ).3 LEGAL STANDARD S 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 conclusio ns. 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 e xempt 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 Con f. on Civil Rights v. Gonzales , 404 F. Supp. 2d 246, 252 (D.D.C. 2005). Since FOIA mandates a4 “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). T he agency seeking to withhold a document bears the burden of showing that it falls within the cited exe mption. 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 suffici ent 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 favora ble 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 Plaint iff invokes both FOIA and the Administrative Procedure Act (APA)

. S ee Compl. ¶
1 . Since t he complaint is predicated on the alleged unlawful withholding of agency records, the “comprehensiveness of FOIA” forecloses any purported APA claim. Johnson v. Exec

. Off

. for5 U.S. Attorneys , 310 F.3d 771, 777 (D.C. Cir. 2002) ; s ee 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 , s ee Defs.’ Supp’g Mem. at 7

- 8 , is granted

. II. Defendants’ Motion for Summary Judgment EOUSA w ithheld records completely under FOIA e xemption 5 , and it redacted third

- party identifying information contained in those records under e xemptions 6 and 7(C). See Stone Decl. ¶¶ 9

- 26 & Att ach. 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 Sta te , 565 F.3d 857, 862

- 63 (D.C. Cir. 2009)

. FOIA e xemption 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 e xemption 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 e xemption 5 “to encompass the protections traditionally afforded certain documents pursuant to e videntiary 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 He alth & Human Servs ., 889 F.2d 1118, 1121 (D.C. Cir. 1989) (internal quotation marks omitted).6 EOUSA contends that the withheld records are protected under exemption 5 as attorney work product and deliberative process material. Attorney work product enc ompasses 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 Hickm an 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. T he “unde rlying 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 age ncy [,]” 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 “ i f a document is fully protected as work product, [ ] segregability is not required.” Judicial Watch,
Inc. , 432 F .3d at 371. Nevertheless, t he 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 t he [USAO/SDFL] decided how to interpret and implement the [final] recusal7 decision” that was ultimately released to plaintiff

. Stone Supp l . Decl. ¶ 28. See Soghoian v. U.S. Dep't of Justice , 885 F. Supp. 2d 62, 74 (D.D.C. 2012) (discussing delib erative p rocess privilege).
P laintiff 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 in formation 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 impro perly withheld,” 5 U.S.C. § 552 (a)(4)(B) . C onsequently, 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 p laintiff has acquiesced in defendants’ valid justifications for withholding the responsive records under exemption 5 , the agency’s motion for summary judgment is granted.

CONCLUSION8 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