United States District Court, District of Columbia
RUDOLPH CONTRERAS United States District Judge
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
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.
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.
The FOIA Request
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.
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 and to the State
Department for response.
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.
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.
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.
Mr. Bayala filed his complaint, DHS voluntarily released the
asylum officer's notes and several other documents that
were previously withheld. 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.
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 . . . .”).
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.
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. 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.”).
remand, Mr. Bayala has moved for summary judgment on
essentially the same claims for a “re-write” and
injunction that constituted his initial
complaint. 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. Mr. Bayala also
sought leave to file a supplemental memorandum, which this
Court grants. See generally Pl.'s Mot.
Leave File Suppl. Mem., ECF No. 42. All motions are now ripe
for decision by this Court.
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 ...