 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 18, 2015              Decided June 28, 2016

                        No. 14-5279

                     FLORENT BAYALA,
                        APPELLANT

                             v.

   UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
            OFFICE OF THE GENERAL COUNSEL,
                        APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:14-cv-00007)


    David Cleveland argued the cause and filed the briefs for
appellant.

     Kenneth A. Adebonojo, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were Vincent H.
Cohen, Jr., Acting U.S. Attorney at the time the brief was
filed, and R. Craig Lawrence, Assistant U.S. Attorney.

    Before: GRIFFITH, SRINIVASAN, and MILLETT, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge MILLETT.
                              2
     MILLETT, Circuit Judge: Florent Bayala filed a Freedom
of Information Act (“FOIA”) lawsuit when the Department of
Homeland Security failed to disclose many of the immigration
documents he had requested and gave no particularized
explanation for its withholding decision. Shortly after Bayala
filed suit, however, the Department reversed course and
spontaneously released a number of previously withheld
documents, while offering a heavily revamped explanation for
its remaining withholdings. After it made that voluntary
release, the Department turned around and argued that
Bayala’s case should be dismissed because he failed to
exhaust the administrative appeal process for the
Department’s original and now-displaced withholding
decision. The district court agreed and dismissed the case.
That was incorrect. The only live FOIA decision now under
review is the one the Department chose to make for the first
time in litigation, and for which there was no administrative
avenue to exhaust. We accordingly reverse and remand this
case for further proceedings consistent with this opinion.

                              I

     Florent Bayala is a citizen of Burkina Faso. After
entering the United States in 2012, he applied for asylum and
was interviewed at the Arlington, Virginia Asylum Office.
During that interview, the asylum officer took five pages of
notes and then subsequently wrote a three-page
“Assessment.” In November 2013, Bayala filed a FOIA
request with the Department of Homeland Security asking for
copies of the asylum officer’s notes, the Assessment, and
“any material used by the officer, but not given to him.” J.A.
14.

    Approximately a month later, the Department responded
to Bayala’s FOIA request.     In a two-page letter, the
                              3
Department advised Bayala that it had identified 157 pages
that were responsive to his request. Of those, the Department
enclosed 119 pages in their entirety and ten pages in part.
J.A. 26. The Department also withheld eleven pages in full,
including the notes and the Assessment from Bayala’s asylum
interview. The Department broadly asserted that all of the
withheld documents “contain[ed] no reasonably segregable
portion(s) of non-exempt information.” Id. The Department
then provided a laundry list of “applicable” exemptions that it
believed justified its withholding, citing without further
elaboration 5 U.S.C. § 552(b)(5) (exempting inter-agency or
intra-agency memoranda or letters); id. § 552(b)(6)
(exempting individual information in personnel, medical, and
similar files if disclosure would constitute an unwarranted
invasion of personal privacy); id. § 552(b)(7)(C) (exempting
personal information in law enforcement records where
disclosure could constitute an unwarranted invasion of
personal privacy); and id. § 552(b)(7)(E) (exempting law
enforcement records involving techniques and procedures for
law enforcement investigations or prosecutions).          The
Department did not specify which exemptions applied to
which portions of which withheld pages or why.

     The Department also referred fourteen pages “in their
entirety to the State Department for their direct response” to
Bayala. J.A. 26. The Department further noted that it had
located “a potentially responsive document(s) that may have
originated from U.S. Immigration and Customs
Enforcement,” and had “sent the document(s) and a copy of
[Bayala’s] FOIA request to the [Immigration and Customs
Enforcement] FOIA Office for consideration and direct
response” to Bayala. Id. Lastly, the letter advised Bayala
how      to    appeal   the    Department’s      determination
administratively.
                               4
     Bayala did not exhaust that avenue for administrative
appeal. Instead, he proceeded straight to district court with a
lawsuit alleging that the Department’s failure to explain its
reasons for non-disclosure left Bayala unable “to make a
meaningful administrative appeal,” and that the Department
had “not provide[d] any reasons or facts for its conclusion that
nothing is segregable.” J.A. 19, 21. The complaint further
explained that the Department’s “vague and cryptic” response
to his FOIA request “thwart[ed]” Bayala’s right to appeal by
making any appeal “illusory and a waste of time.” Id. at 7.
The complaint requested that the district court declare that the
Department’s response violated FOIA and order the
Department to “re-write” its letter (i) to “describe what
documents were sent to the State Department, and describe
what documents were sent to ICE,” (ii) to “give the real
reasons, and facts, why the notes are exempt, and why
nothing is segregable, so that plaintiff may make a meaningful
administrative appeal,” and (iii) to “give the real reasons, and
facts, why the Assessment is exempt, and why nothing is
segregable, so that plaintiff may make a meaningful
administrative appeal.” Id. at 21. Bayala also sought to
enjoin the Department “from issuing such a letter in the
future,” as well as an award of attorney’s fees. Id.

     Less than three months after Bayala filed suit and before
the Department had responded to the complaint, the
Department voluntarily released the asylum officer’s notes
and a number of other documents it had previously withheld.
The Department continued, however, to withhold the
Assessment, offering for the first time in its district court
papers a new and far more detailed, five-page explanation for
its withholding decision. The parties filed cross-motions for
summary judgment.
                              5
     The district court dismissed Bayala’s case for failure to
exhaust administrative remedies. In so ruling, the court
rejected Bayala’s argument that the Department’s scant and
unfocused response to his FOIA request precluded any
meaningful administrative appeal. The court reasoned that an
administrative appeal would have provided an opportunity for
the Department to provide the more detailed reasoning that
Bayala sought.

                              II

      The government argues that we lack jurisdiction because
the entire FOIA appeal is moot. Article III’s limitation of
federal-court jurisdiction to cases and controversies requires
that “an actual controversy * * * be extant at all stages of
review, not merely at the time the complaint is filed.”
Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528
(2013) (quotation marks omitted).         As such, “[i]f an
intervening circumstance deprives the plaintiff of a personal
stake in the outcome of the lawsuit, at any point during
litigation, the action can no longer proceed and must be
dismissed as moot.” Id. (quotation marks omitted) (citing
Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478
(1990)).

     In the FOIA context, that means that once all the
documents are released to the requesting party, there no
longer is any case or controversy. See Perry v. Block, 684
F.2d 121, 125 (D.C. Cir. 1982) (“[H]owever fitful or delayed
the release of information under the FOIA may be, once all
requested records are surrendered, federal courts have no
further statutory function to perform.”). But where the
government has released only a portion of the requested
documents, the case is moot only with regard to those
documents. See Williams & Connolly v. SEC, 662 F.3d 1240,
                                6
1244 (D.C. Cir. 2011). While the Department is correct then
that any dispute over the earlier withholding of the documents
that the Department has now turned over is moot, the entire
FOIA case is not moot because Bayala has not received all of
the documents that he requested. Bayala’s FOIA request
sought, among other things, “a copy of the Assessment to
Refer of the Asylum Officer.” J.A. 23. As of this date,
Bayala has not yet received that document and, accordingly,
there is still a live controversy over whether the Department
may lawfully withhold that document.

     Of course, in district court, the Department defended its
decision to omit the Assessment from its more recent tranche
of disclosures. The Department cited the exemption for
internal agency memoranda privileged by law from public
disclosure, 5 U.S.C. § 552(b)(5). It is well-settled that “[a]n
agency [may] prevail on an exemption that it has * * * raised
either at the agency level or in the district court, [although not
an exemption] that it has invoked for the first time in the
appellate court.” Jordan v. U.S. Department of Justice, 591
F.2d 753, 779 (D.C. Cir. 1978) (emphasis added). But the
propriety of that withholding determination has not yet been
adjudicated and is very much contested, so this FOIA case is
not moot.

     The government nevertheless argues that the case is moot
because, in Bayala’s opposition to summary judgment, Bayala
said that he is “not now seeking the release of documents: he
is challenging the administrative appeal process employed by
the [Department].” J.A. 135 (emphasis added). That
overreads Bayala’s submission. His use of “now” indicates
that Bayala still wants disclosure of the Assessment. Indeed,
Bayala confirmed at oral argument that he still “very much
contest[s] that the Assessment is not exempt.” Oral Arg. Tr.
4; see also id. at 11 (Q: “[T]hey’re still withholding the
                              7
Assessment and you want that?” A: “Indeed.”); J.A. 7
(Complaint ¶ 4) (“Plaintiff is desirous of obtaining the
documents * * *.”); id. at 20 (Complaint ¶ 42) (“There must
be some parts of the Assessment which are segregable.”); id.
at 21 (seeking in prayer for relief a declaration that the
Department’s decision “violates the FOIA”). In short,
because “all requested records are [not] surrendered,” Perry,
684 F.2d at 125, and Bayala still contests that withholding,
this appeal is not moot.

     While the FOIA case itself is not moot, the dispute over
administrative exhaustion is. To be sure, FOIA “specifically
provides for an administrative appeal process following an
agency’s denial of a FOIA request.” Oglesby v. U.S.
Department of Army, 920 F.2d 57, 61 (D.C. Cir. 1990); see 5
U.S.C. § 552(a)(6). That requirement, however, is not
jurisdictional. See Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C.
Cir. 2003) (“[T]he exhaustion requirement is not jurisdictional
because the FOIA does not unequivocally make it so.”);
Department of Justice, Guide to the Freedom of Information
Act 96 (2016 ed.) (“[F]ailure to file an administrative appeal
is not an absolute bar to judicial review.”). Exhaustion,
instead, can be a substantive ground for rejecting a FOIA
claim in litigation.

     The Department’s argument that exhaustion of its
original administrative decision was required, however,
became moot once it 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, the content and
specificity of which went far beyond the original, perfunctory
                                 8
administrative decision. 1 That new FOIA determination
rendered the propriety of the original agency decision—and
any administrative challenges to it—an entirely academic
question.     The lawfulness of the initial administrative
disclosure and explanation for withholding, in other words,
were no longer live controversies. Nor were Bayala’s
arguments about the legal necessity of exhausting what he
deemed to be a grossly insufficient agency response.
Accordingly, the district court erred in dismissing the case for
failing to exhaust.

     Instead, once the government abandoned its original
FOIA decision, the dispute between the parties centered on
the correctness of the Department’s materially novel and
different in-court disclosure decision. There is no required
administrative exhaustion process for that in-court litigation
decision.     Tellingly, FOIA’s text provides only for
administratively exhausting an “adverse determination” made
1
  It bears noting that the Department did not move at the immediate
outset of this case, before its voluntary disclosure, to dismiss for
failure to exhaust under Federal Rule of Civil Procedure 12(b)(6).
That is the typical course of action because exhaustion is generally
considered to be an element of a FOIA claim. See, e.g., Hidalgo,
344 F.3d at 1260 (vacating the summary judgment order of the
district court and remanding the case with instructions to dismiss
the complaint under Federal Rule of Civil Procedure 12(b)(6) for
failure to exhaust). Rather, the Department here chose to make a
new FOIA determination and then push for summary judgment on
the merits of that new withholding decision—arguing under Federal
Rule of Civil Procedure 56 that it was “entitled to judgment as a
matter of law” in the case because it “(1) conducted a reasonable
search; (2) produced all documents responsive to [Bayala’s] request
and subject to FOIA; and (3) properly withheld information
pursuant to valid invocation of FOIA statutory exemptions.” J.A.
33.
                              9
by the agency within its statutorily required administrative
process. See 5 U.S.C. § 552(a)(6)(A)(i) & (ii). The
government, for its part, cites no authority—and we can
conceive of none—for compelling a FOIA claimant to
administratively exhaust a decision that the agency no longer
stands by and that has been overtaken by new and different
in-court disclosures and explanations. Nor can Bayala 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.

                            ***

     For those reasons, the question of administrative
exhaustion is moot. We accordingly reverse and remand to
the district court for further proceedings consistent with this
decision.

                                                   So ordered.
