UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FLORENT BAYALA, :

:

Plaintiff, : Civil Action No.: 14-00007 (RC)

:

v. : Re Document Nos.: 14, 18

:

UNITED STATES DEPARTMENT OF :

HOMELAND SECURITY, :

:

Defendant. :

MEMORANDUM & ORDER

GRANTING DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY 

JUDGMENT; AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, Florent Bayala 

(“Bayala”) requested various materials from the U.S. Department of Homeland Security 

(“DHS”). After DHS disclosed certain documents but withheld others, Bayala filed the instant 

action to compel DHS to explain its reasons, such that he could file a “meaningful” 

administrative appeal. Before this Court are DHS’s motion to dismiss or, in the alternative, for 

summary judgment (ECF No. 14) and Bayala’s motion for summary judgment (ECF No. 18). 

Having reviewed the parties’ submissions, this Court grants DHS’s motion and denies Bayala’s 

motion, and dismisses the complaint for failure to exhaust administrative remedies.

II. BACKGROUND

Bayala is a citizen of Burkina Faso seeking asylum in the United States. See Compl. ¶ 1, 

ECF No. 1.

1

 In November 2013, Bayala submitted a FOIA request seeking an asylum officer’s 

 1 Because this Court resolves this case under Federal Rule of Civil Procedure 12(b)(6), the factual overview herein 

draws from the compliant and exhibits attached to the complaint. See Brass v. Am. Film Technologies, Inc., 987 
notes, the officer’s Assessment to Refer memorandum, and other previously undisclosed 

materials. See Compl. ¶¶ 24–25; FOIA Request, Compl. Ex. 1, ECF No. 1-1.

2

 The following 

month, a DHS representative sent Bayala responsive information on a compact disc, along with a 

cover letter. Compl. ¶ 27. The letter stated that DHS had decided to withhold certain responsive 

materials in part or in full, and to submit others to the Department of State and U.S. Immigration 

and Customs Enforcement (“ICE”) for further consideration. See Letter from Jill A. Eggleston, 

Director, FOIA Operations, U.S. Citizenship and Immigration Services, to David L. Cleveland, 

Counsel for Florent Bayala (Dec. 17, 2013), Compl. Ex. 2, ECF No. 1-2 (“DHS Letter”). The 

asylum officer’s notes and Assessment to Refer were withheld in full, and the letter explained 

that such documents “contain no reasonably segregable portion(s) of non-exempt information.” 

Id. Moreover, the letter listed and described four statutory exemptions that it claimed were 

“applicable” to the withheld information.

3

 Lastly, the cover letter advised Bayala of his right to 

an administrative appeal. Id. 

Bayala then filed the instant action without pursuing an administrative appeal.

4

 Bayala’s 

complaint claims that DHS’s “vague and cryptic” cover letter rendered an administrative appeal 

“illusory and a waste of time,” such that DHS is “thwarting” Bayala’s right to appeal. Compl. 

¶ 3. The complaint’s first cause of action alleges that DHS’s letter provided inadequate 

“reasons” for the withholding determinations, in violation of 5 U.S.C. § 552(a)(6)(A)(i). Compl. 

 

F.2d 142, 150 (2d Cir. 1993) (limiting bases of Rule 12(b)(6) determinations to complaint’s allegations and exhibits 

attached to or incorporated into complaint, among other materials). 2 See Abtew v. U.S. Dep’t of Homeland Sec., No. 13-cv-1566, 2014 WL 2620982, at *1–2 (D.D.C. June 13, 2014) 

(providing overview of asylum application process and function of Assessment to Refer).

3 The letter cited 5 U.S.C. § 552(b)(5), (b)(6), (b)(7)(C), (b)(7)(E), which cover, respectively, inter-agency or intraagency memoranda or letters; private information in personnel, medical, and similar files; private personal 

information in law enforcement records; and records or information that would disclose law enforcement techniques 

and procedures. See DHS Letter. The letter also stated that withheld information “may” or “could consist of” 

various materials typically covered by each exemption. Id. 4 See Compl. ¶ 38a (“DHS has not enabled plaintiff to make a meaningful administrative appeal.”), ¶ 43 (“[P]laintiff 

is unable to make a meaningful appeal.”); id. at 13 (requesting various relief “so that plaintiff may make a 

meaningful administrative appeal”).
¶ 33. The complaint’s second cause of action alleges that DHS failed to explain why requested 

information was not “reasonably segregable” under 5 U.S.C. § 552(b). Compl. ¶ 40. 

Accordingly, Bayala asks this Court to order DHS to “re-write” the cover letter. Id. at 13. The 

revised letter would describe the documents submitted to the Department of State and ICE and 

provide “the real reasons” why the asylum officer’s notes and Assessment to Refer were 

withheld and why information was not segregable, such that Bayala could “make a meaningful 

administrative appeal.” Id. Bayala further asks this Court to declare that the cover letter violates 

FOIA, to enjoin DHS from issuing similar letters in the future, and to award reasonable 

attorney’s fees and costs. Id.

After Bayala initiated this lawsuit, DHS voluntarily released the asylum officer’s notes 

along with other documents. See Def.’s Ex. B, ECF No. 14-2. As a result, Bayala now seeks 

DHS’s reasons for withholding in full “just one document”—the Assessment to Refer. Pl.’s 

Mem. Opp’n DHS’s Mot. Summ. J. 16, ECF No. 16.

5

 DHS has filed a motion to dismiss or, in 

the alternative, for summary judgment. ECF No. 14.6

 Bayala has moved for summary 

judgment. ECF No. 18. 

 5 See also Pl.’s Mem. Supp. Mot. Summ. J. 15, ECF No. 18 (“The Court should remand the case back to the DHS, 

for it to provide the real reasons why the assessment may be exempt and why nothing can be segregated.” (emphasis 

added)). In its papers filed with this Court, DHS has provided substantial reasoning supporting its withholding of 

the Assessment and its non-segregability determination. See, e.g., Def.’s Mem. Supp. Mot. Summ. J. 8–12, ECF 

No. 14 (withholding of assessment); Def.’s Reply Pl.’s Opp’n Def.’s Mot. Summ J. 8–9, ECF No. 17 (nonsegregability); Def.’s Opp’n Pl.’s Mot. Summ. J. 8–11, ECF No. 19 (withholding of assessment and nonsegregability). However, DHS’s court filings do not render this case moot because Bayala seeks the specific relief 

of an amended DHS response letter, along with an injunction barring DHS from issuing allegedly deficient letters in 

the future. See Newport Aeronautical Sales v. Dep’t of the Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012) 

(explaining that receipt of materials requested under FOIA “will not moot a claim that an agency policy or practice

will impair the party’s lawful access to information in the future” (citation omitted)). Moreover, because Bayala 

neither seeks disclosure of documents nor disputes the merits of DHS’s initial determination, DHS’s discussion of 

the various FOIA exemptions is irrelevant to this case. Pls.’ Mem. Opp’n DHS’s Mot. Summ. J. 2 (explaining that 

the applicability of specific exemptions “is not yet before the Court”); see also Compl. 13 (requested relief does not 

include disclosure of documents).

6 DHS’s motion is styled as a “motion for summary judgment.” However, in its motion, DHS alternatively contends 

that “Plaintiff’s Complaint Should Be Dismissed for Failure to Exhaust Administrative Remedies.” Def.’s Mem. 

Supp. Mot. Summ. J. 6.
III.ANALYSIS

As a general matter, plaintiffs challenging an agency’s response to a FOIA request must 

exhaust the administrative appeals process before seeking relief in court. See Oglesby v. U.S. 

Dep’t of the Army, 920 F.2d 57, 61–62 (D.C. Cir. 1990). Exhaustion enables an agency “to 

exercise its discretion and expertise . . . and to make a factual record to support its decision.” Id. 

at 61. Furthermore, with the benefit of an administrative appeal, agencies can “correct or rethink 

initial misjudgments or errors” and promote uniformity in its adjudications. Id. at 64–65. 

“[C]ourts in this Circuit analyze failure to exhaust administrative remedies motions 

under Rule 12(b)(6)” because exhaustion is an element of a plaintiff’s claim. Ayuda, Inc. v. Fed. 

Trade Comm’n, No. 13-cv-1266, 2014 WL 4829574, at *5 (D.D.C. Sept. 30, 2014) (citing 

Hidalgo v. Fed. Bureau of Investigation, 344 F.3d 1256, 1260 (D.C. Cir. 2003) (vacating grant of 

summary judgment and remanding with instructions to dismiss complaint under Rule 12(b)(6) 

for failure to exhaust administrative remedies)). “[A]s a jurisprudential doctrine, failure to 

exhaust precludes judicial review if ‘the purposes of exhaustion’ and the ‘particular 

administrative scheme’ support such a bar.” Hidalgo, 344 F.3d at 1258–59 (quoting Oglesby, 

920 F.2d at 61). The exhaustion requirement is triggered so long as the agency’s initial response 

satisfies basic requirements, such as containing a statement of the agency’s “determination and 

the reasons therefor.” 5 U.S.C. § 552(a)(6)(A)(i); Oglesby, 920 F.3d at 65.

DHS argues that Bayala’s complaint must be dismissed because he has failed to exhaust 

administrative remedies. Def.’s Mem. Supp. Mot. Summ. J. 6–7. Bayala does not contest the 

general rule that exhaustion is required.7

 Nor does he dispute the fact that he did not pursue an 

administrative appeal prior to commencing this action. See supra note 4. Rather, Bayala 

 7 See Pls.’ Mem. Opp’n DHS’s Mot. Summ. J. 6 (“[I]n a routine FOIA claim . . ., the requester should first exhaust 

all administrative remedies before seeking relief in a federal court.”).
contends that in this particular case, lack of exhaustion should not prevent him from obtaining 

judicial relief.

Bayala first submits that the “purposes of exhaustion” would not be served in this case, 

Hidalgo, 344 F.3d at 1259, because DHS’s imprecise initial response, if allowed to stand, would 

prevent Bayala from advancing “targeted and cogent arguments” and thereby preclude a 

“meaningful” administrative appeal, Pl.’s Mem. Supp. Mot. Summ. J. 4–5. This Court 

disagrees. Bayala cites cases faulting agencies for inadequate reasons for withholding 

information, but in all of those cases, the FOIA requesters had exhausted administrative 

remedies, thereby affording the agency the opportunity “to exercise its discretion and expertise,”

“to make a factual record,” and to “correct or rethink initial misjudgments or errors.” Oglesby, 

920 F.2d at 61, 64.

8

 Moreover, Bayala does not allege that DHS would “very likely” uphold its 

initial decision on appeal, such that requiring exhaustion would be “futil[e] and inefficien[t].” 

Ayuda, 2014 WL 4829574, at *7.9 At bottom, Bayala assumes that the “purposes of exhaustion” 

would be served only if he could make “targeted” arguments in an administrative appeal. He 

fails to cite any authority for this proposition or to explain why an appeal from DHS’s letter, as 

written, would necessarily preclude DHS from “exercis[ing] its discretion and expertise” or 

“mak[ing] a factual record to support its decision.” Oglesby, 920 F.2d at 61. In the end, Bayala 

contends that this Court’s “broad equitable powers” can excuse him from the exhaustion 

 8 Bayala relies on Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082, 1089 (D.C. 

Cir. 2014) (explaining that administrative remedies were exhausted); Mead Data Cent., Inc. v. U.S. Dep’t of the Air 

Force, 566 F.2d 242, 248 (D.C. Cir. 1977) (same); Abtew, 2014 WL 2620982, at *3 (same). Moreover, because 

district courts review the applicability of FOIA exemptions de novo, 5 U.S.C. § 552(a)(4)(B), the initial agency 

determination’s depth and thoroughness are of little ultimate relevance. 9 See also Wilber v. Cent. Intelligence Agency, 355 F.3d 675, 677 (D.C. Cir. 2004) (concluding that purposes of 

exhaustion did not support bar against judicial review where agency accepted and processed appeal, notwithstanding 

FOIA requester’s tardy filing of appeal); Hull v. I.R.S., U.S. Dep’t of the Treasury, 656 F.3d 1174, 1183 (10th Cir. 

2011) (concluding that purposes of exhaustion did not support bar against judicial review where FOIA requester 

completed administrative appeals process and allowed agency to develop record, but failed to perfect initial request 

by obtaining third-party consent for release of requested tax records). 
requirement, but he has not demonstrated how such an equitable remedy would further FOIA’s 

purposes. Pl.’s Mem. Supp. Mot. Summ. J. 6–7.

10

Bayala further contends that DHS failed to provide “the reasons” for its determination, in 

violation of 5 U.S.C. § 552(a)(6)(A)(i). Pl.’s Mem. Supp. Mot. Summ. J. 7.11 This Court 

concludes that the cover letter’s “reasons” were sufficient to require Bayala to file an 

administrative appeal. The letter explained that DHS decided to withhold certain documents in 

full because they “contain no reasonably segregable portion(s) of non-exempt information.” 

DHS Letter.12 DHS also enumerated FOIA exemptions that it concluded were “applicable” to 

withheld information—§ 552(b)(5), (b)(6), (b)(7)(C), and (b)(7)(E). Id. Lastly, DHS explained 

its reasons for referring certain documents to the Department of State and to ICE—to enable 

those agencies to provide a “direct response” to Bayala. Id.

In contending that DHS’s initial response must explain in greater detail the agency’s 

rationale for applying certain exemptions, Bayala fails to recognize that if the case were to return 

 10 Cf. Payne Enters., Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (holding that district court erred in 

declining to grant equitable relief to FOIA requester where Air Force officers refused to disclose information, 

notwithstanding Secretary of the Air Force’s previous findings that requested information was not covered by FOIA 

exemptions).

11 By this argument, Bayala apparently contends that he constructively exhausted administrative remedies. If DHS 

had failed to provide “reasons,” its initial response would not have complied with the time limit provision of § 

552(a)(6)(A)(i) and would have triggered constructive exhaustion, thereby allowing Bayala to ask a court to compel 

DHS to disclose the information sought. See 5 U.S.C. § 552(a)(6)(C) (“Any person making a request to any agency 

for records . . . shall be deemed to have exhausted his administrative remedies . . . if the agency fails to comply with 

the applicable time limit provisions of this paragraph.”); Oglesby, 920 F.2d at 71. But curiously, Bayala expressly 

does not request disclosure in this action. See supra note 5; Pl.’s Mem. Opp’n DHS’s Mot. Summ. J. 6 (“Mr. Bayala 

is not now seeking the release of documents: he is challenging the administrative appeal process employed by the 

DHS.”). In any event, as explained above, this Court rejects Bayala’s contention that DHS failed to proffer 

“reasons.” To be sure, DHS’s letter issued after the twenty day response period permitted by 5 U.S.C. § 

552(a)(6)(A)(i). See Pl.’s Statement of Facts ¶¶ 1–2, ECF No. 18-2. But this delay did not amount to constructive 

exhaustion because Bayala waited until after DHS’s late response to file his lawsuit. See Oglesby, 920 F.2d at 66–

67, 71.

12 Thus, DHS’s conclusion that no portions of the withheld documents were reasonably segregable is the reason for 

its determination. Bayala incorrectly construes § 552(a)(6)(A)(i) to require an agency to provide not only the 

“reasons” for its determination, but also the “reasons for its reasons.” Bayala expressly notes that he is not 

requesting a Vaughn index, correctly recognizing that such a detailed index is often not required to sustain an 

agency’s position on judicial review (let alone in initial agency responses). Pl.’s Mem. Opp’n DHS’s Mot. Summ. J. 

15–16 (reviewing cases applying Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)). To the extent Bayala contends 

that FOIA requires of an initial agency response something more than “reasons” but less than a Vaughn index, this 

Court discerns no such principle in the statute or case law. 
to the courts, DHS would not be bound by its initially cited exemptions at all. See Gula v. 

Meese, 699 F. Supp. 956, 959 n.2 (D.D.C. 1988) (“[T]he defendant in a FOIA case may assert 

new exemptions at the federal district court level . . . not previously asserted at the administrative 

level, even if the circumstances have not changed in the interim.” (citing Jordan v. U.S. Dep’t of 

Justice, 591 F.2d 753, 779 (D.C. Cir. 1978))). Put differently, the administrative process need 

not explore all issues or arguments. Nonetheless, Congress has required FOIA requesters to 

exhaust this process, so long as the agency’s initial response contains “reasons” and meets other 

basic requirements. 5 U.S.C. § 552(a)(6)(A)(i). If Bayala was unhappy with the reasons 

proffered by DHS, he could have registered this complaint in an administrative appeal rather 

than filing this action prematurely.

13

In sum, DHS has complied with its statutory obligations, and Bayala must do likewise by 

exhausting administrative remedies before seeking judicial review.

IV.CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss or, in the alternative, for 

summary judgment (ECF No. 14) is GRANTED, and Plaintiff’s motion for summary judgment 

(ECF No. 18) is DENIED. 

It is hereby ORDERED that Plaintiff’s complaint is dismissed without prejudice.

SO ORDERED.

Dated: November 4, 2014 RUDOLPH CONTRERAS

United States District Judge

 13 Bayala argues that DHS’s initial refusal to release the asylum officer’s notes was inconsistent with the agency’s 

own litigation position in Martins v. U.S. Citizenship and Immigration Services, 962 F. Supp. 2d 1106, 1122–23

(N.D. Cal. 2013) (explaining that agency mentioned the deliberative process privilege only once and “make[s] no 

attempt to argue for its application”); Pl.’s Mem. Opp’n DHS’s Mot. Summ. J. 6; Pl.’s Mem. Supp. Mot. Summ. J. 

13. This argument could have been deployed in an administrative appeal to persuade DHS to adopt uniform 

policies, Oglesby, 920 F.2d at 65, and aptly illustrates why Bayala’s contention that he was deprived of a 

“meaningful” appeal is meritless.