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Khine v. United States Department of Homeland Security

United States Court of Appeals, District of Columbia Circuit

December 6, 2019

Kay Khine and Catholic Charities, Appellants
United States Department of Homeland Security, Appellee

          Argued November 8, 2019

          Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-01924)

          David Cleveland argued the cause and filed the briefs for plaintiffs-appellants.

          Matthew J. Glover, Counsel to the Assistant Attorney General, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence and Peter C. Pfaffenroth, Assistant U.S. Attorneys.

          Before: Srinivasan, Millett, and Pillard, Circuit Judges.



         Pillard, Circuit Judge: Kay Khine is an asylum seeker from Myanmar. With assistance from Catholic Charities of Washington, Khine filed a Freedom of Information Act (FOIA) request with the Department of Homeland Security (DHS) seeking documents relating to her asylum application. DHS responded with an initial determination stating the number of responsive pages, the number of pages that DHS was disclosing in full and in part, the number of pages that DHS was withholding or referring to another agency for further processing, and a list and definitions of the various exemptions that DHS asserted applied to the withheld pages. Rather than appealing that initial determination within the agency, Khine and Catholic Charities immediately filed suit in district court, claiming that the agency's initial determination was part of an agency pattern of deficient FOIA initial responses, and inadequate even to trigger her obligation to exhaust her administrative remedies. The district court granted DHS' motion to dismiss on the ground that Khine had failed to exhaust her administrative remedies before seeking judicial review. We agree and affirm the district court's judgment.


         In February 2017, Khine, with Catholic Charities' help, sought under FOIA (1) a copy of her I-94 (her Arrival/Departure Record); (2) a copy of her asylum officer's notes; (3) a copy of her asylum officer's assessment; and (4) a copy of her entire file. The agency acknowledged receipt of the FOIA request eleven days later, stating that the request had been placed in DHS' "complex track" and would be handled according to its default "first-in, first-out" processing system. Eggleston Decl. ¶¶ 8-9 (J.A. 41-42).

         In July 2017, DHS sent Khine an initial determination. The determination explained that DHS had identified 871 responsive pages, and that it was disclosing 849 pages in full and 11 pages in part, withholding 8 non-segregable pages in full, and referring 3 pages of "potentially responsive documents that may have originated from U.S. Immigration and Customs Enforcement" to that agency's FOIA office for review and disclosure as appropriate. DHS Initial Determination at 1 (J.A. 22). In addition, the agency explained that it had reviewed the withheld documents and determined to "release all information except those portions that are exempt pursuant to 5 U.S.C. § 552a(d)(5), (j)(2) and (k)(2) of the [Privacy Act] and 5 U.S.C. § 552(b)(5), (b)(7)(C) and (b)(7)(E) of the FOIA." Id. The initial determination proceeded to define those exemptions. Id. at 1-2 (J.A. 22-23). Finally, the determination notified Khine of her administrative appeal rights, stating: "You have the right to file an administrative appeal within 90 days of the date of this letter. By filing an appeal, you preserve your rights under FOIA and give the agency a chance to review and reconsider your request and the agency's decision." Id. at 2 (J.A. 23). The letter explained how to file an administrative appeal or to seek informal resolution of the dispute via the relevant DHS component's FOIA Public Liaison. Id. The letter did not identify which documents the agency was withholding, but the accompanying disclosed documents did not include the asylum officer's assessment.

         In September 2017, DHS identified a discrepancy in its page count and sent Khine a second, essentially identical determination letter stating that nine (rather than eight) pages had been withheld in full. See Eggleston Decl. ¶¶ 14-15 (J.A. 43-45). Two weeks after receiving the second initial determination, without filing an administrative appeal, Khine and Catholic Charities filed a complaint in district court. The complaint included nine "causes of action." The first eight causes of action asserted in various ways that Khine had a right to receive enough information about the agency's bases for withholding documents to make a meaningful administrative appeal. Compl. ¶¶ 11-61 (J.A. 7-13). For example, the complaint claimed that Khine had a "right to be told whether the agency has the [assessment]" (first cause of action) (J.A. 7), a "right to be told the real reason why the assessment was withheld" (second cause of action) (J.A. 8), and a "right to be told why nothing can be segregated out of an assessment" and disclosed (third cause of action) (J.A. 10). By contrast, the ninth cause of action purported to assert "Catholic Charities' rights under the FOIA" (J.A. 13), alleging that DHS had a "policy or practice" of providing inadequate initial determinations to asylum seekers, Compl. ¶¶ 74-78 (J.A. 15-16). The complaint then sought to represent a class of all asylum seekers who had received inadequate initial determinations from DHS since September 2011. Id. ¶¶ 79-88 (J.A. 16-18).

         DHS moved to dismiss the complaint for failure to exhaust administrative remedies because Khine had not appealed within the agency. The district court granted DHS' motion. Khine v. DHS, 334 F.Supp.3d 324, 329 (D.D.C. 2018). We review de novo the district court's dismissal for failure to state a claim, CREW v. DOJ, 922 F.3d 480, 486 (D.C. Cir. 2019), and affirm.


         Under FOIA, an agency generally must notify a requester of its "determination and the reasons therefor" within 20 business days of receiving the request. 5 U.S.C. § 552(a)(6)(A)(i). FOIA also requires the agency, by the same deadline, to notify the requester of her right "to seek assistance from the FOIA Public Liaison of the agency," and, in the case of an adverse determination, "to appeal to the head of the agency" and "to seek dispute resolution services from the FOIA Public Liaison of the agency." Id. If the agency meets the 20-day deadline, or if its failure to meet the deadline is the result of "unusual" circumstances warranting an extension, then the "requester is required to administratively appeal that 'determination' before bringing suit." CREW v. FEC, 711 F.3d 180, 182 (D.C. Cir. 2013); see also 5 U.S.C. § 552(a)(6)(B)-(C). "Exhaustion of administrative remedies is generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990). Failure to exhaust is not ...

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