United States Court of Appeals, District of Columbia Circuit
November 8, 2019
from the United States District Court for the District of
Columbia (No. 1:17-cv-01924)
Cleveland argued the cause and filed the briefs for
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.
Before: Srinivasan, Millett, and Pillard, Circuit Judges.
PILLARD CIRCUIT JUDGE
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.
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).
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
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).
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.
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 ...