                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

FLORENT BAYALA,                                  :
                                                 :
       Plaintiff,                                :       Civil Action No.:      14-0007 (RC)
                                                 :
       v.                                        :       Re Document Nos.:      28, 36, 38, 42
                                                 :
UNITED STATES DEPARTMENT OF                      :
HOMELAND SECURITY,                               :
                                                 :
       Defendant.                                :

                                 MEMORANDUM OPINION

              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

                                      I. INTRODUCTION

       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.
                                      II. BACKGROUND

       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 office1 and to the State Department2 for response.



       1
          U.S. Immigration and Customs Enforcement later provided a declaration indicating that
it had released the 3 pages referred to it in part—subject to withholdings under FOIA Exemptions
6, 7(C), and 7(E) and Privacy Act Exemption (k)(2). Pavlik-Keenan Decl. ¶ 8, ECF No. 14-2, Ex.
D. Although Mr. Bayala challenges DHS’s initial response letter, including the portion
describing this referral, Pl.’s 2d MSJ at 24–35, ECF No. 28, the materials themselves and their
handling by U.S. Immigration and Customs Enforcement do not appear to be at issue in this case.
       2
          The State Department later provided a declaration indicating that, of the fourteen pages
referred to it, it had released two documents in part and withheld two documents in their entirety
under FOIA Exemption 3. Hackett Decl. ¶¶ 4–5, ECF No. 14-2, Ex. C. Although Mr. Bayala
challenges DHS’s initial response letter, including the portion describing this referral, Pl.’s 2d


                                                 2
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.




MSJ at 24–25, the materials themselves and their handling by the State Department do not
appear to be at issue in this case.


                                                 3
       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


       3
         According to Mr. Bayala, and undisputed by DHS, these additional releases did not
include any records relevant to the request for material used by the asylum officer but not
provided by Mr. Bayala. Pl.’s 2d MSJ at 8.


                                                  4
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


       4
        The D.C. Circuit apparently concluded that Mr. Bayala still sought the Assessment to
Refer based on a colloquy with Mr. Bayala’s counsel at oral argument. Bayala II, 827 F.3d at 35.
       5
        Mr. Bayala also filed a Motion to Strike the document docketed at ECF No. 37, which
Mr. Bayala filed in error. See generally Pl.’s Mot. Strike, ECF No. 38. Because DHS did not
oppose this motion, the motion to strike will be granted.


                                                 5
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

relief not available under FOIA. Additionally, Mr. Bayala lacks standing to pursue his request

for injunctive relief.8


        6
         DHS’s motion to dismiss (ECF No. 36) referred entirely to the documents filed at ECF
No. 35. For clarity, this opinion cites to ECF No. 35.
        7
          A court has the discretion to grant leave to file an additional brief, known as a surreply.
See Akers v. Beal Bank, 760 F. Supp. 2d 1, 2 (D.D.C. 2011). A surreply may be appropriate, inter
alia, when the “proposed surreply would be helpful to the resolution of the pending motion” and
the other party would not be “unduly prejudiced.” Glass v. Lahood, 786 F. Supp. 2d 189, 231
(D.D.C. 2011), aff’d, No. 11-5144, 2011 WL 6759550 (D.C. Cir. Dec. 8, 2011). DHS does not
argue that it would be prejudiced by permitting Mr. Bayala to file a surreply. See generally
Def.’s Mem. Opp’n Pl.’s Mot. Leave to File Suppl. Mem., ECF No. 43.
        The Court has considered Mr. Bayala’s proposed surreply in its analysis. The surreply
includes three general types of material. First, argument that duplicates the content of Mr.
Bayala’s prior briefing. Second, argument and factual material applicable to a challenge of
DHS’s overall FOIA policies—which this Court does not reach, as discussed infra in Part III.B.
Third, argument regarding the segregability of portions of the Assessment to Refer. As discussed
infra at Part III.C, the Court does not address segregability at this juncture.
        8
          Mr. Bayala further argues that courts should prevent agencies from “belatedly
assert[ing] new [FOIA] exemptions” to the district court, “absent any showing of good cause.”
Pl.’s 2d MSJ at 21–23, ECF No. 28. Mr. Bayala provides no authority for this proposition, and
indeed acknowledges the weight of authority permitting an agency to supplement its
administrative arguments in district court. Pl.’s 2d MSJ at 21 (citing Gula v. Meese, 699 F. Supp.
956, 959 n.2 (D.D.C. 1988)); see also Bayala II, 827 F.3d 31, 34 (D.C. Cir. 2016) (“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 . . .’” (quoting Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 779


                                                  6
           A. Mr. Bayala May Not Seek a “Re-Write” of DHS’s Initial Response Letter

       Mr. Bayala requests that the Court order DHS to “re-write” its initial response letter more

fulsomely. Pl.’s 2d MSJ at 37–38; see also Compl. at 13. According to Mr. Bayala, this relief

will permit him to pursue a more meaningful administrative appeal of DHS’s withholdings.9 Pl.’s

2d MSJ at 27–31, 36–37; Pl.’s Reply at 8, 11, ECF No. 39. However, this relief is unavailable to

Mr. Bayala for several reasons. First, this Court is bound by the mandate of the D.C. Circuit.

Second, FOIA provides a remedy of de novo review of an agency’s releases at district court, not

a return to the agency’s initial response or administrative process.




(D.C. Cir. 1978)). Instead, Mr. Bayala argues from policy that, without such a restriction,
agencies will “continue to be quick and sloppy” and “only spend ten seconds on a FOIA request,
and send the requester a glib boilerplate letter.” Pl.’s 2d MSJ at 21–24.
        The Court declines Mr. Bayala’s invitation to alter the existing law in this area, especially
because “the [agency] cannot be faulted for failing to raise arguments during administrative
proceedings when the Plaintiff elected to bypass administrative proceedings altogether.”
Rosenberg v. U.S. Dep’t of Immigration & Customs Enf’t, 954 F. Supp. 2d 1, 11 (D.D.C. 2013).
This case—in which Mr. Bayala elected not to pursue an initial administrative appeal—would
make a poor test case for an agency’s ability to assert new exemptions at the district court level.
Furthermore, because “[a]gency affidavits are accorded a presumption of good faith,” SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), the Court does not credit Mr. Bayala’s
suggestion that agencies will intentionally sandbag requesters by delaying an explanation of their
reasons for withholdings.
       9
           Mr. Bayala challenges only the content of the initial response letter, not DHS’s updated
explanation. Mr. Bayala objects to the initial response letter because (1) it did not provide the
“reasons” for withholding portions of records as required by 5 U.S.C. § 552(a)(6)(A)(i); (2) it did
not sufficiently explain why no portions were segregable; and (3) it did not adequately describe
the documents it referred to other agencies. See generally Pl.’s 2d MSJ, ECF No. 25; see also
Pl.’s 2d MSJ at 24–34. Mr. Bayala argues that the initial response letter was both overinclusive,
in that it included exemptions the agency later abandoned; and underinclusive, in that it omitted
exemptions the agency later claimed. Pl.’s 2d MSJ at 13–14. Mr. Bayala extensively discusses
his interpretation of 5 U.S.C. § 552(a)(6)(A)(i), see, e.g., Pl.’s 2d MSJ at 5–7, 13–15; Pl.’s Reply
at 3–11, ECF No. 39, including by analogy to other areas of law, Pl.’s 2d MSJ at 16–21. Because
the Court concludes, infra, that it may not reach Mr. Bayala’s challenge to the initial response
letter, it does not canvass these arguments in depth.


                                                 7
              1. The Mandate Rule Bars Further Review of DHS’s Initial Response

        This Court lacks the power to grant Mr. Bayala a “re-write” because to do so would

exceed the scope of remand from the D.C. Circuit.

        “Under the mandate rule, ‘an inferior court has no power or authority to deviate from the

mandate issued by an appellate court.’” Indep. Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 588,

596–97 (D.C. Cir. 2001) (quoting Briggs v. Pa. R.R. Co., 334 U.S. 304, 306 (1948)). “The

mandate rule is a ‘more powerful version’ of the law-of-the-case doctrine, which prevents courts

from reconsidering issues that have already been decided in the same case.” Id. at 597 (citations

omitted). For example, in Role Models America, Inc., the D.C. Circuit remanded and instructed

the district court to consider whether plaintiffs could be screened as “other interested parties”

under a particular statute. Role Models Am., Inc.,v. Geren, 514 F.3d 1308, 1311 (D.C. Cir. 2008).

When the case reached the D.C. Circuit again, the D.C. Circuit held that it was improper for the

district court to rescreen the plaintiffs as “homeless providers” because the remand had provided

only for screening of the plaintiffs as “other interested parties.” Id.

        Because it is an “application of the ‘law of the case’ doctrine,” the mandate rule is

“limited to issues that were decided either explicitly or by necessary implication [by the Court of

Appeals]—‘[t]he mere fact that [an issue] could have been decided is not sufficient to foreclose

the issue on remand.’” U.S. ex rel. of Dep’t of Labor v. Ins. Co. of N. Am., 131 F.3d 1037, 1041

(D.C. Cir. 1997) (quoting Maggard v. O’Connell, 703 F.2d 1284, 1289 (D.C. Cir. 1983)). Courts

may refer to the appellate opinion to determine what issues the mandate encompassed. See id. at

1043 n.7 (“As we have previously noted, it is entirely appropriate—and, in most cases in this

circuit, necessary—to consult the opinion to interpret the mandate.” (citing City of Cleveland v.

Fed. Power Comm’n, 561 F.2d 344, 347 n.25 (D.C. Cir. 1977))).




                                                   8
       In this case, the D.C. Circuit’s opinion has foreclosed this Court from reviewing DHS’s

administrative process. The D.C. Circuit framed the question before this Court as follows: “once

the government abandoned its original FOIA decision, the dispute between the parties centered

on the correctness of [DHS’s] materially novel and different in-court disclosure decision.”

Bayala II, 827 F.3d at 35 (emphasis added). Moreover, the D.C. Circuit had before it Mr.

Bayala’s claims that DHS’s “‘vague and cryptic’ response to his FOIA request ‘thwart[ed]’ [his]

right to appeal” and Mr. Bayala’s request that the court “declare that [DHS’s] response violated

FOIA and order [DHS] to ‘rewrite’ its letter.” Id. at 33 (quoting Mr. Bayala’s briefing). Yet the

D.C. Circuit concluded that “[t]he 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.” Id. at 32.

       This Court cannot revisit the issues decided by the D.C. Circuit. The Court must thus

decline Mr. Bayala’s request for a “re-write,” which falls outside the controversy identified by

the D.C. Circuit.

                    2. Mr. Bayala’s Proposed Remedy Is Not Available Under FOIA

       Mr. Bayala is presently before this Court, and this Court stands ready to adjudicate de

novo his dispute with DHS over the propriety of its withholdings. Because this Court’s review is

de novo, the previous administrative process and DHS’s initial response letter are immaterial.

Thus, even if the Court were not constrained by the mandate rule, it would conclude that Mr.

Bayala is not entitled to additional review of DHS’s initial response. Other courts in this

jurisdiction have likewise concluded that FOIA requesters may not challenge prior

administrative errors after finding themselves in district court. See Budik v. Dep’t of Army, 742

F. Supp. 2d 20, 34 (D.D.C. 2010) (rejecting a FOIA requester’s argument that she was never




                                                 9
informed of her right to an administrative appeal because “[r]egardless of whatever

administrative rights Plaintiff may have had, she has not been denied a right to be heard before

the courts”); Beck v. U.S. Dep’t of Justice, No. 88-3433, 1991 WL 519827, at *4 n.3 (D.D.C.

Jan. 31, 1991) (rejecting a FOIA requester’s contention that the agency’s refusal to process his

administrative appeal after a suit was pending in district court violated his due process rights

because the plaintiff could not “show that he has been deprived of a process or a forum in which

his case can be heard”), aff’d, No. 91-5292, 1992 WL 360498 (D.C. Cir. Nov. 19, 1992), and

aff’d, 997 F.2d 1489 (D.C. Cir. 1993). This Court is aware of no case in which a FOIA requester

has sought and received a “do-over” administrative proceeding in lieu of the de novo review

provided by FOIA.

       Similarly, it is well established in precedent and in FOIA’s text that if the agency

completely fails to respond to a FOIA request, the requester proceeds directly into district court.

Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003) (citing 5 U.S.C.

§ 552(a)(6)(c)). Identical reasons militate in favor of the same remedy (de novo review in district

court) when an agency imperfectly completes its administrative process. In fact, requesters—like

Mr. Bayala—may be benefitted by leapfrogging over an administrative appeal and proceeding

directly into district court. See Nat’l Sec. Counselors v. CIA, 898 F. Supp. 2d 233, 280–81

(D.D.C. 2012) (noting that “the refusal of the [agency] to provide administrative appeals in these

circumstances could be viewed as a boon to FOIA requesters because it expedites a requester’s

ability to seek judicial review”).

       This conclusion that, once de novo review is available, further review of prior

administrative proceedings is inappropriate is also supported by the remedies available to

employees seeking redress under Title VII. Such plaintiffs first proceed administratively before




                                                 10
the EEOC or MSPB, and may then seek de novo review in federal district court. 42 U.S.C.

§ 2000e-16; 5 U.S.C. § 7703. But, that de novo review is the exclusive remedy—such plaintiffs

may not also seek a “do-over” of the administrative proceeding or challenge the administrative

process. See Wright v. Dominguez, No. 04-5055, 2004 WL 1636961, at *1 (D.C. Cir. July 21,

2004) (holding that neither Title VII, nor the APA, nor the due process clause created a cause of

action against the EEOC for improperly handling an administrative claim because the plaintiff

had the right to a de novo review in district court); Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir.

1997) (rejecting a suit against the EEOC because “Congress intended the private right of action .

. . against [the] employer—to serve as the remedy for any improper handling of a discrimination

charge by the EEOC”); Coulibaly v. Kerry, No. 14-0189, 2016 WL 5674821, at *32 (D.D.C.

Sept. 30, 2016) (“Instead of a right to sue the processing agencies . . . Title VII and other

governing statutes provide an adequate remedy for [plaintiff’s] allegations of wrongdoing: de

novo review in federal court.”); Harrigan v. Yang, 168 F. Supp. 3d 25, 35–36 (D.D.C. 2016)

(“Because of the availability of [de novo review in district court], ‘parties suffer no harm if the

EEOC conducts an imperfect investigation or inquiry, and consequently have no need to sue the

agency for negligence or malfeasance in the processing of claims.’” (quoting Bagenstose v.

District of Columbia, 503 F. Supp. 2d 247, 256 (D.D.C. 2007))); Mackey v. Sullivan, No. 90-

0007, 1991 WL 128510, at *3 (D.D.C. Mar. 28, 1991) (“This remedy [of de novo review at

district court] explicitly provided by Congress strongly implies that Congress did not intend that

charging parties be able to force the EEOC, by means of suit or the threat thereof, to more fully

or speedily investigate or attempt to conciliate their charge.”); cf. Great Am. Fed. Sav. & Loan

Ass’n v. Novotny, 442 U.S. 366, 376 (1979) (“§ 717 of Title VII provides the exclusive remedy

for employment discrimination claims of those federal employees that it covers.”). These same




                                                 11
factors are present here—de novo review of DHS’s withholdings by this Court renders

unnecessary a re-examination of DHS’s initial response letter.

       For these reasons, the remedy of de novo review provided for by FOIA and currently

available to Mr. Bayala renders immaterial the alleged imperfections of DHS’s initial response

and the administrative process.10

                  B. Mr. Bayala Lacks Standing to Seek Prospective Relief

       Next, the Court addresses Mr. Bayala’s claim for injunctive relief11 requiring DHS to

alter its overall FOIA response procedures. As a threshold matter, the Court considers if Mr.

Bayala has Article III standing to raise these challenges, and concludes that he does not.


       10
           The availability of de novo review in district court also strips Mr. Bayala of standing to
press his request that DHS “re-write” the initial letter and provide him an administrative appeal
because he lacks a “concrete and particularized” injury that is “actual or imminent, not
conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (internal
quotation marks and citation omitted). Mr. Bayala’s alleged inability to take a “meaningful”
administrative appeal is not a legally cognizable injury because Mr. Bayala is now able to assert
any challenges to DHS’s withholding before this Court. Given that this Court’s review of an
administrative appeal—had there been one—is de novo, Mr. Bayala is no worse off than he
would have been had he pursued an administrative appeal. Cf. Nat’l Sec. Counselors v. CIA, 898
F. Supp. 2d 233, 285 (D.D.C. 2012) (rejecting FOIA requesters’ argument that procedures
“rob[bed]” them of their “ability to intelligently appeal any decisions at the administrative level,”
in part because Congress provided requesters “the opportunity for de novo judicial review of all
withholding decisions—an ample and powerful procedural mechanism” instead); see also Order
at 3, Anguimate v. U.S. Dep’t of Homeland Sec., No. 12-0791 (D.D.C. Mar. 26, 2013) (holding
that FOIA requester did not have standing to challenge an allegedly deficient initial response
letter after the agency further justified its withholdings because the alleged injury was
“procedural,” but the requester had failed to show “not only that the defendant’s acts omitted
some procedural requirement, but also that it [was] substantially probable that the procedural
breach [would] cause [an] essential injury to the plaintiff’s own interest.” (quoting Florida
Audubon Soc’y v. Bentsen, 94 F.3d 658, 664–65 (D.C. Cir. 1996) (en banc))); Nat’l
Whistleblower Ctr. v. Dep’t of Health & Human Servs., 849 F. Supp. 2d 13, 42 (D.D.C. 2012)
(holding that FOIA requesters lacked the injury in fact requirement of standing to challenge the
agency’s dismissal of their administrative appeals when the agency no longer relied on its
initially asserted FOIA exemptions).
       11
           To the extent that Mr. Bayala’s filings could be construed to also seek declaratory
relief indicating that DHS’s policies are flawed, that relief fails for the same reasons as Mr.
Bayala’s request for injunctive relief.


                                                 12
        “Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and

‘Controversies.’ The doctrine of standing gives meaning to these constitutional limits by

‘identify[ing] those disputes which are appropriately resolved through the judicial process.’”

Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (first quoting U.S. Const., Art.

III, § 2, then quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Article III standing

requires a “concrete and particularized” injury that is “actual or imminent, not conjectural or

hypothetical.” Lujan, 504 U.S. at 560–61 (internal quotation marks and citation omitted).

Furthermore, it is the “general rule that a party ‘must assert his [or her] own legal rights and

interests, and cannot rest his [or her] claim to relief on the legal rights or interests of third

parties.’” Hinck v. United States, 550 U.S. 501, 510 n.3 (2007) (quoting Kowalski v. Tesmer, 543

U.S. 125, 129 (2004)). Here, Mr. Bayala identifies no injury—concrete or vague, imminent or

distant—that he will suffer if DHS is not enjoined. Mr. Bayala does not claim that he has any

pending FOIA requests other than the one at issue here, or that he has any plans to submit

additional requests in the future. The Court thus has no basis in the record to conclude that Mr.

Bayala will be injured if DHS continues its allegedly improper practices.

        Indeed, the thrust of Mr. Bayala’s briefing reveals his reliance on the impact of DHS’s

policies on other, potential future requesters not before this court. See, e.g., Pl.’s 2d MSJ at 4,

ECF No. 28 (“Mr. Bayala is concerned that an agency might respond by saying: ‘We withhold

everything because of exemptions 1–9.’ . . . The vast majority of FOIA requests never go to

district court. This Court should be aware of those requesters, as it considers this case.”); Pl.’s 2d

MSJ at 35–36 (describing seventeen letters from DHS to different FOIA requesters); Compl. ¶ 4

(“Plaintiff . . . wants to assist other asylum applicants see justice.” [sic]). Considering harm to




                                                   13
other, future, hypothetical FOIA requesters, however, is precisely what this Court cannot do.12

Where plaintiffs do not allege any possibility that their injury could recur—such as through

pending FOIA requests or concrete plans to file additional requests—they lack standing for

prospective relief regarding an agency’s FOIA practices. See, e.g., Citizens for Responsibility &

Ethics in Wash. v. U.S. Dep’t of Homeland Sec., 527 F. Supp. 2d 101, 106 (D.D.C. 2007) (a

group’s stated future plans to file additional FOIA requests were “too speculative and remote at

[that] point to give [the plaintiffs] standing to seek prospective relief”).

        Mr. Bayala therefore has not demonstrated that he has standing to seek an injunction

requiring DHS to alter its FOIA procedures.13 See Friends of the Earth, Inc. v. Laidlaw Envtl.


        12
          To the extent that Mr. Bayala intends his reference to DHS’s alleged “boilerplate”
responses to other FOIA requesters to cast doubt on the quality of DHS’s assertions here, this
argument is more appropriately directed toward the substantive review of DHS’s withholdings,
and not a request for prospective relief.
        13
           The Court notes that, although this claim for injunctive relief fails, mechanisms exist
through which an appropriate plaintiff could receive the type of relief sought by Mr. Bayala here.
An appropriate plaintiff must assert that it has a continuing interest in submitting future FOIA
requests and thus will be harmed if the agency continues to violate FOIA. See, e.g., Nat’l Sec.
Counselors v. CIA, 898 F. Supp. 2d 233, 262 (D.D.C. 2012) (a group with fifteen pending FOIA
requests had standing to pursue various challenges to the CIA’s FOIA procedures); Citizens for
Responsibility & Ethics in Wash. v. SEC, 858 F. Supp. 2d 51, 60 (D.D.C. 2012) (a group with
pending FOIA requests had standing to challenge agency’s record-keeping procedures).
Plaintiffs in these cases are often groups or companies in the business of frequently filing FOIA
requests. See generally, e.g., Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988)
(plaintiff-corporation frequently filed FOIA requests in order to obtain information about
government contracts and provide it to prospective contractors); Citizens for Responsibility &
Ethics in Wash., 858 F. Supp. 2d 51 (plaintiff organization was a non-profit that frequently filed
FOIA requests for research, litigation, and advocacy).
        Some courts within this jurisdiction have referred to such general procedural challenges
as “policy or practice” suits. Cf. Pl.’s 2d MSJ at 15 (“This policy and practice violates the
FOIA.”). For a plaintiff in such a policy or practice suit to establish standing, the plaintiff must
show that “(1) the agency in question has adopted, endorsed, or implemented a policy or practice
that constitutes an ongoing failure to abide by the terms of the FOIA; and (2) the plaintiff will
suffer continuing injury due to this practice.” Nat’l Sec. Counselors, 898 F. Supp. 2d at 252–53
(citing Payne Enters., 837 F.2d at 491 (quotation marks omitted) (emphasis added)). Cf. City of
Houston, Tex. v. Dep’t of Hous. & Urban Dev., 24 F.3d 1421, 1429 (D.C. Cir. 1994) (“[I]f a
plaintiff’s specific claim has been mooted, [the plaintiff] may nevertheless seek declaratory relief


                                                  14
Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) (“A plaintiff must demonstrate standing separately

for each form of relief sought.” (citing Los Angeles v. Lyons, 461 U.S. 95, 109 (1983))). Because

Mr. Bayala lacks standing to pursue his claim for prospective relief,14 this Court lacks the

jurisdiction to consider it.

                           C. The Court Declines to Dismiss This Case

        Although DHS moves to dismiss this case, the Court declines to do so and instead seeks

to reach the issue contemplated by the D.C. Circuit—“the correctness of [DHS’s] materially

novel and different in-court disclosure decision.” Bayala II, 827 F.3d at 35. Determining if

DHS’s position is correct will touch upon at least three issues—the adequacy of DHS’s search,

the propriety of DHS’s withholdings, and whether DHS has properly released all segregable

material.15


forbidding an agency from imposing a disputed policy in the future, so long as the plaintiff has
standing to bring such a forward-looking challenge . . . .” (emphasis added)).
        14
           The Court is also barred from granting Mr. Bayala the prospective relief he seeks
because granting such an injunction would not redress any of Mr. Bayala’s injuries.
Redressability is another requirement of Article III standing. See Simon v. E. Ky. Welfare Rights
Org., 426 U.S. 26, 38 (1976) (“In sum, when a plaintiff's standing is brought into issue the
relevant inquiry is whether, assuming justiciability of the claim, the plaintiff has shown an injury
to himself that is likely to be redressed by a favorable decision.”); see also Florida Audubon Soc.
v. Bentsen, 94 F.3d at 663–64 (D.C. Cir. 1996) (“[The] [re]dressability requirement for federal
standing examines whether the relief sought, assuming that the court chooses to grant it, will
likely alleviate the particularized injury alleged by the plaintiff . . . .”). Here, as discussed supra,
Mr. Bayala has no particularized injury, and because he has not asserted that he intends to submit
any future FOIA requests, certainly not one that would be redressed by injunctive relief.
        15
          DHS argues that Mr. Bayala has conceded several of these issues. Def.’s Reply at 4,
ECF No. 41. However, there are several reasons the Court cannot yet decide if DHS is entitled to
summary judgment. First, DHS has not styled its present motion as a motion for summary
judgment. Setting aside that cosmetic issue, to prevail on a motion for summary judgment, “the
defending agency must prove that each document that falls within the class requested either has
been produced, is unidentifiable or is wholly exempt from the Act’s inspection requirements.”
Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks
omitted) (quoting Nat’l Cable Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)).
DHS’s current briefing does not even argue that it has performed an adequate search or
appropriately withheld portions of records, and it has thus failed to show “that there is no


                                                  15
       Of these, Mr. Bayala’s briefing address only whether DHS has released all segregable

material.16 Pl.’s 2d MSJ at 31–36. The Court notes that three other judges of this circuit have

expressed concern that Assessments to Refer may contain segregable portions. See Pl.’s 2d MSJ

at 9–10 (citing Gatore v. U.S. Dep’t of Homeland Sec., 177 F. Supp. 3d 46 (D.D.C. 2016), Gosen

v. U.S. Citizenship & Immigration Servs., 118 F. Supp. 3d 232 (D.D.C. 2015), and Abtew v. U.S.

Dep’t of Homeland Sec., 47 F. Supp. 3d 98 (D.D.C. 2014), aff’d, 808 F.3d 895 (D.C. Cir. 2015)).

       However, the briefing before the court does not discuss the adequacy of DHS’s search or

the withholdings claimed by DHS.17 It would therefore be premature for this Court to determine

whether the Assessment to Refer contained segregable portions before determining if DHS was

correct to withhold any portions of the document. The Court will thus postpone a determination

on segregability. Instead, the Court will review the Assessment to Refer in camera, and



genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law,” Fed. R. Civ. P. 56(a).
        The Court further notes that, under the D.C. Circuit’s recent jurisprudence, it may not
grant a motion for summary judgment for the reason that it was conceded. See Winston &
Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (“Under the Federal Rules of Civil
Procedure, a motion for summary judgment cannot be ‘conceded’ for want of opposition. ‘The
burden is always on the movant to demonstrate why summary judgment is warranted. The
nonmoving party’s failure to oppose summary judgment does not shift that burden.’ The District
Court ‘must always determine for itself whether the record and any undisputed material facts
justify granting summary judgment.’” (quoting Grimes v. District of Columbia, 794 F.3d 83, 97
(D.C. Cir. 2015) (Griffith, J., concurring) and citing Fed. R. Civ. P. 56(e)(3))).
       16
          To the extent that Mr. Bayala’s arguments about segregability focus on the initial
response letter, his claims are not justiciable. See supra Part III.A. However, given that DHS
continues to assert that the Assessment to Refer contains no segregable portions, Eggleston Decl.
¶ 20, ECF No. 14-2, Ex. A, Mr. Bayala’s arguments may be interpreted as a challenge to DHS’s
most recent position and the Court views them in that light.
       17
           In fact, Mr. Bayala’s most recent briefing expressly avoids asking for the release of the
Assessment to Refer. See Pl.’s 2d MSJ at 3 (“Mr. Bayala seeks a court order for the DHS to re-
issue its initial response in compliances [sic] with the statutory mandates.”); Pl.’s 2d MSJ at 12
(“The Court should order the agency to re-write its December 2013 letter. The agency should
advise Mr. Bayala of his right to an administrative appeal. Perhaps he will appeal; perhaps the
administrative appeal will be fruitless; perhaps he will file another complaint. Or, perhaps not.”).


                                                 16
simultaneously entertain supplemental briefing from the parties with regards to the adequacy of

DHS’s search, the propriety of its withholdings, and whether it has properly released all segregable

material.18 The parties are directed to focus their attention solely on the de novo review of the

record created before this Court—available in the record as exhibits to DHS’s prior motion for

summary judgment, see generally Def.’s Mot. Summ. J., ECF No. 14 & exhibits—and abandon

any further argument directed at the administrative record or the initial response letter.


                                       IV. CONCLUSION

       For the foregoing reasons, Plaintiff’s Motion for Summary Judgment (ECF No. 28) is

DENIED, Defendant’s Motion to Dismiss (ECF No. 36) is GRANTED IN PART and

DENIED IN PART, Plaintiff’s Motion to Strike (ECF No. 38) is GRANTED, and Plaintiff’s

Motion to File Supplemental Memorandum (ECF No. 42) is GRANTED. An order consistent

with this Memorandum Opinion is separately and contemporaneously issued.


Dated: March 30, 2017                                               RUDOLPH CONTRERAS
                                                                    United States District Judge




       18
          To the extent that it seeks a determination on whether DHS has properly released all
segregable material, DHS’s motion to dismiss is denied. It does not appear to this Court that
DHS seeks summary judgment on the adequacy of DHS’s search or the propriety of DHS’s
withholdings. See Def.’s 2d MTD at 16, ECF No. 35 (“Plaintiff’s ‘re-write’ claim should be
dismissed and summary judgment on the segregability issue should be denied.”). To the extent
that DHS seeks the dismissal of the entire case, it is denied because DHS has not yet shown that
“that each document that falls within the class requested either has been produced, is
unidentifiable or is wholly exempt from the Act’s inspection requirements.” Weisberg v. U.S.
Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting
Nat’l Cable Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)).


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