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Bayala v. United States Department of Homeland Security

United States District Court, District of Columbia

March 30, 2017

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant. Re Document No. 28, 36, 38, 42


          RUDOLPH CONTRERAS United States District Judge

         Denying Plaintiff's Motion for Summary Judgment; Granting in Part and Denying in Part Defendant's Motion to Dismiss; Granting Plaintiff's Motion to Strike; Granting Plaintiff's Motion for Leave to File Supplemental Memorandum


         Plaintiff, Mr. Florent Bayala, was unsatisfied with the Department of Homeland Security's (DHS) response to his FOIA request. After he brought suit against the agency in this Court, DHS supplemented its initial response by releasing additional documents and providing much more detailed explanations of its continued withholdings. Rather than contest DHS's updated rationale for its withholdings, Mr. Bayala seeks summary judgment compelling DHS to “re-write” its initial response letter and enjoining DHS from providing similar initial response letters to future requesters. DHS moves to dismiss these claims. This Court dismisses these claims for relief, but retains jurisdiction to determine the adequacy of DHS's search, the propriety of DHS's continued withholdings, and whether DHS has properly released all segregable material.


         This Court and the D.C. Circuit have previously described the facts of this case. See Bayala v. U.S. Dep't of Homeland Sec. (Bayala II), 827 F.3d 31 (D.C. Cir. 2016), rev'g Bayala v. U.S. Dep't of Homeland Sec. (Bayala I), 72 F.Supp.3d 260 (D.D.C. 2014). The Court recites only the facts relevant to the present motions, none of which are in dispute.

         A. The FOIA Request

         Plaintiff, Mr. Florent Bayala, applied for asylum in the United States. Compl. ¶ 1, ECF No. 1. As a part of the application process, an asylum hearing officer interviewed Mr. Bayala. Compl. ¶¶ 20-21. Mr. Bayala later submitted a FOIA request to DHS seeking various records related to the interview. In particular, he sought (1) “a copy of the notes written by the Asylum Officer, ” (2) “a copy of the Assessment to Refer of the Asylum Officer, ” and (3) “a copy of any material used by the Asylum Officer, but not given to him by [Mr. Bayala].” FOIA Request, ECF No. 1-1, Ex. 1.

         DHS initially responded to the request on December 17, 2013 by releasing 119 pages in full, releasing 10 pages in part, and withholding 11 pages in full. Letter from Jill A. Eggleston (Initial DHS Letter), ECF No. 1-2, Ex. 2. DHS also referred some documents to the U.S. Immigration and Customs Enforcement FOIA office[1] and to the State Department[2] for response.

         Initial DHS Letter. The Assessment to Refer was withheld in full. Eggleston Decl. ¶¶ 16-20, ECF No. 14-2, Ex. A. Mr. Bayala also contends-and DHS does not dispute-that DHS did not release any records responsive to the request for materials used by the asylum officer but not given to him by Mr. Bayala. See Pl.'s Statement Mat. Facts Not in Genuine Dispute ¶ 6, ECF No. 28-2 (“The [identified pages] did not include what Mr. Bayala did request.”); Pl.'s Mot. Summ. J. (Pl.'s 2d MSJ) at 8, ECF No. 28.

         The initial response letter referred to FOIA Exemptions 5, 6, 7(C), and 7(E) in generic terms, but did not explain why the exemptions were applied to the particular records at issue in Mr. Bayala's request or which exemptions had been applied to withhold which portions of the responsive records. See Initial DHS Letter. The letter also stated that DHS had “determined that [the withheld records] contain no reasonably segregable portion(s)” without further describing DHS's process for determining segregability. Initial DHS Letter.

         B. Procedural History

         Dissatisfied with this response, Mr. Bayala filed suit in this Court without first appealing DHS's decision administratively. Mr. Bayala's complaint focused on the alleged deficiencies of DHS's initial response and argued that the initial response letter was so vague and unhelpful that he was “unable to make a meaningful [administrative] appeal.” Compl. ¶ 36; see generally Compl. ¶¶ 34-38a. Mr. Bayala sought, inter alia, an order forcing DHS to “re-write” the letter to justify its withholdings in more detail and an injunction preventing DHS from “issuing such a letter in the future.” Compl. at 13.

         After Mr. Bayala filed his complaint, DHS voluntarily released the asylum officer's notes and several other documents that were previously withheld.[3] Letter from Kenneth Adebonojo, (Mar. 24, 2014), ECF No. 14-2, Ex. B. DHS explained that it continued to withhold the Assessment to Refer in full under the deliberative process privilege, and that no portion of the Assessment to Refer was segregable. Eggleston Decl. ¶¶ 16-20, ECF No. 14-2, Ex. A. DHS also provided expanded explanations for the FOIA exemptions it claimed to justify withholding portions of other records. Eggleston Decl. ¶¶ 21-26.

         Mr. Bayala's response did not engage with DHS's new, more detailed explanations for its withholdings and explicitly refrained from seeking the release of the Assessment to Refer. See, e.g., Pl.'s Mem. P. & A. Opp'n Def.'s Mot. Summ. J. (Pl.'s 1st Opp'n) at 6, ECF No. 16 (“Mr. Bayala is not now seeking the release of documents: he is challenging the administrative appeal process employed by the DHS. He complains that the DHS has not given him enough information for him to make a real administrative appeal.”); Pl.'s 1st Opp'n at 24 (“The Court should remand the case back to DHS, for it to conduct a real administrative appeal.”). But see Compl. ¶ 4 (“Plaintiff is desirous of obtaining the documents . . . .”).

         This Court granted DHS's motion to dismiss on the grounds that Mr. Bayala had not exhausted his administrative remedies before proceeding to court. See generally, Bayala I, 72 F.Supp.3d 260. On appeal, the D.C. Circuit reversed because Mr. Bayala had only failed to exhaust DHS's “original and now-displaced withholding decision.” Bayala II, 827 F.3d at 32. The D.C. Circuit concluded that “once [DHS] chose to abandon its previous determination, make a sua sponte disclosure of documents, and craft a new, five-page-long explanation for this different withholding decision in the district court, . . . [t]hat new FOIA determination rendered the propriety of the original agency decision-and any administrative challenges to it-an entirely academic question.” Id. at 35.

         Instead, the D.C. Circuit reframed the issue as whether DHS's new position was correct and whether Mr. Bayala is entitled to the Assessment to Refer.[4] Id. at 34-35. The D.C. Circuit also explicitly clarified that Mr. Bayala need not administratively exhaust DHS's most recent position on its withholdings. Id. at 35-36 (holding that “FOIA's text provides only for administratively exhausting an ‘adverse determination' made by the agency within its statutorily required administrative process” and therefore Bayala cannot be “compelled to administratively exhaust this new agency decision because that decision was the byproduct of litigation, not of the pre-litigation administrative decision-making process to which FOIA's exhaustion requirement textually applies”). Rather, the D.C. Circuit apparently contemplated that Mr. Bayala would- free of the administrative exhaustion requirement-press his request for the Assessment to Refer or other withheld documents before this Court on remand. Bayala II, 827 F.3d at 34-35 (“[T]he propriety of [DHS's] withholding determination has not yet been adjudicated and is very much contested, so this FOIA case is not moot. . . . [T]he dispute between the parties center[s] on the correctness of [DHS's] materially novel and different in-court disclosure decision.”).

         On remand, Mr. Bayala has moved for summary judgment on essentially the same claims for a “re-write” and injunction that constituted his initial complaint.[5] See generally Pl.'s 2d MSJ, ECF No. 28. DHS has moved to dismiss. See generally Def.'s Mot. Dismiss & Opp'n Pl.'s 2d Mot. Summ. J. (Def.'s 2d MTD), ECF No. 35.[6] Mr. Bayala also sought leave to file a supplemental memorandum, which this Court grants.[7] See generally Pl.'s Mot. Leave File Suppl. Mem., ECF No. 42. All motions are now ripe for decision by this Court.

         III. ANALYSIS

         Rather than engage with DHS's most recent explanations for its withholdings, Mr. Bayala rehashes his complaint and again seeks (1) that DHS “re-write” its initial letter (ostensibly so Mr. Bayala can pursue an administrative appeal), and (2) injunctive relief reforming DHS's FOIA policies. Mr. Bayala's request for a “re-write” is barred by the mandate rule and seeks a form of ...

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