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Orlansky v. Department of Justice

United States District Court, District of Columbia

March 9, 2016



AMY BERMAN JACKSON United States District Judge

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.


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 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”).


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 “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 ...

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