Kay Khine v. DHS

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2019 Decided December 6, 2019
No. 18-5302
KAY KHINE AND CATHOLIC CHARITIES,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
APPELLEE
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.
Opinion for the Court filed by Circuit Judge PILLARD.
2
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.
I.
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).
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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
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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.
II.
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
5
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 jurisdictional under FOIA, but
it “precludes judicial review if the purposes of exhaustion and
the particular administrative scheme support such a bar.”
Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (internal
quotation marks and citations omitted).
By regulation, DHS has created a scheme that governs
how it will process FOIA requests and disclose records. See 6
C.F.R. § 5.1 et seq. That scheme describes the administrative
appeals process for requesters dissatisfied with the agency’s
initial determination. See id. § 5.8. A requester “may appeal
adverse determinations denying his or her request or any part
of the request.” Id. § 5.8(a)(1). A requester may also appeal if
“he or she questions the adequacy of the component’s search
for responsive records,” or if “the requester believes there is a
procedural deficiency (e.g., fees were improperly calculated).”
Id. Finally, and as most relevant here, a requester “may also
appeal if he or she . . . believes the component either
misinterpreted the request or did not address all aspects of the
request (i.e., it issued an incomplete response).” Id.
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Crucially, under DHS’ rules, the “requester must generally
first appeal” regarding any of the above issues unless the
request is subject to expedited processing (not at issue here).
Id. § 5.8(e). The rules further provide that any appeal will be
heard by the “DHS Office of the General Counsel,” that the
“decision on the appeal will be made in writing,” and that, if it
affirms the initial determination, the appeals decision “will
contain a statement that identifies the reasons for the
affirmance, including any FOIA exemptions applied.” Id.
§ 5.8(b)(1), (c).
The parties here do not dispute that Khine filed no
administrative appeal before she sought judicial review. See
Khine Br. 7; DHS Br. 13. Khine offers three arguments why
her failure to exhaust does not bar her challenge to the agency’s
initial determination. We consider each argument in turn.
A.
First, Khine argues that she should not be required to
administratively appeal the agency’s initial determination
because, “had [she] filed an administrative appeal, and then a
complaint with the district court, she would have no standing
to challenge the initial response of DHS.” Khine Br. 12. Khine
appears to contend that, had she filed an administrative appeal,
that would have mooted any objection she had to the initial
determination. But there is nothing unusual about such a result.
Indeed, “however 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 with respect to the particular records that were
requested.” Payne Enters., Inc. v. United States, 837 F.2d 486,
490-91 (D.C. Cir. 1988) (internal quotation marks and citation
omitted); see also Bayala v. DHS, 827 F.3d 31, 34 (D.C. Cir.
2016) (“[O]nce all the documents are released to the requesting
7
party, there no longer is any case or controversy.”). A FOIA
requester’s primary—and typically only—interest is in
receiving the documents she requested. If the administrative
appeal gave her what she sought, and thereby foreclosed
judicial review, the administrative process would have been
working as it should. Khine’s desire to avoid mooting her
claim does not justify her failure to exhaust her administrative
remedies.
To avoid that result, Khine insists that her interest is no
longer focused on obtaining the withheld documents. She
explains that she “is not now seeking documents; she seeks a
reformation of the misleading and inaccurate initial response of
DHS.” Khine Br. 23; see also Oral Arg. Rec. at 1:42-1:46
(“We’re not seeking the documents right now. We’re
challenging the initial response.”). But a non-repeat FOIA
requester like Khine lacks standing to “seek[] a reformation,”
Khine Br. 23, of the way an agency handles its FOIA requests.
Such a claim is a challenge to an agency “policy or practice.”
See Payne Enters., 837 F.2d at 491. Policy-or-practice claims
are an exception to the ordinary rule that disclosure of the
requested information will moot a FOIA claim. In policy-or-
practice cases, “even though a party may have obtained relief
as to a specific request under the FOIA, this will not moot a
claim that an agency policy or practice will impair the party’s
lawful access to information in the future.” Id. The problem
for Khine is that only repeat requesters who “will suffer
continuing injury” have standing to bring such claims.
Newport Aeronautical Sales v. Dep’t of the Air Force, 684 F.3d
160, 164 (D.C. Cir. 2012); see also CREW v. DOJ, 846 F.3d
1235, 1242 (D.C. Cir. 2017). Khine lacks standing to press a
policy-or-practice claim because, as she herself explains, she
“will not make future requests” and “she is not a business that
will file requests in the future.” Khine Br. 15, 18. Since Khine
is not likely to be subject again to the agency practice she seeks
8
to challenge, she does not have standing to seek a
“reformation” of DHS’ initial determinations, and she cannot
rely on that interest to justify her failure to exhaust.
Khine fears that this result renders the agency’s initial
determinations “immune from judicial scrutiny.” Id. at 16. But
there is a party who might have brought a policy-or-practice
claim: Catholic Charities. As noted, the ninth cause of action
in the complaint gestured toward such a claim, and the district
court concluded that “Catholic Charities is likely to be
subjected to the [alleged] policy again.” Khine, 334 F. Supp.
3d at 332 (internal quotation marks and citation omitted). But,
on appeal, counsel for Khine and Catholic Charities repeatedly
stated that Catholic Charities was not itself a requester of the
information at issue and that Khine was the sole FOIA
requester in this case. See Oral Arg. Rec. at 4:04-4:11 (Court:
“[W]ho is the FOIA requester in this case?” Counsel: “Kay
Khine is the requester.”); id. at 5:43-5:46 (“Kay Khine is
making the request. She’s the named plaintiff.”); id. at 7:07-
7:14 (Court: “Catholic Charities has not made its own FOIA
request for these documents?” Counsel: “No, it hasn’t.”).
For this reason, even though FOIA permits “any person” to
make a FOIA request, 5 U.S.C. § 552(a)(3)(A), and Catholic
Charities could have sought Khine’s asylum file, we take
counsel at his word and accept that Catholic Charities is not a
requester here. Because only an entity that has filed a FOIA
request (and will do so again in the future) may bring a policy-
or-practice claim, Catholic Charities, too, lacks standing to
pursue such a claim in this case.
B.
Next, Khine argues that she had “no duty” to file an
administrative appeal at all because the agency has not yet
“made a ‘determination’ as required by § 552.” Khine Br. 37.
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As noted, FOIA requires the agency to provide the requester
with a “determination and the reasons therefor” within 20
business days of receiving the request. 5 U.S.C.
§ 552(a)(6)(A)(i). DHS did not make the disputed
determination within twenty business days. But if the “agency
responds to the request after the twenty-day statutory window,
but before the requester files suit,” as occurred here, then “the
administrative exhaustion requirement still applies.” Judicial
Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003).
Nonetheless, Khine argues that the agency “did not trigger the
need to file an administrative appeal because DHS did not
provide ‘the’ reasons for its determination,” Khine Br. 37, and
did not “provide ‘the’ reasons why nothing could be segregated
out of the assessment,” id. at 46. In other words, she views the
agency’s initial determination as inadequate so not a legally
operative “determination.”
We evaluate this argument under the framework of
constructive exhaustion. FOIA provides that a requester may
be treated as if she exhausted the administrative appeals
process where the agency did not provide a timely
determination: “Any person making a request to any agency
for records . . . shall be deemed to have exhausted his
administrative remedies with respect to such request if the
agency fails to comply with the applicable time limit provisions
of this paragraph.” 5 U.S.C. § 552(a)(6)(C)(i). We recently
explained that, “in order to make a ‘determination’ and thereby
trigger the administrative exhaustion requirement, the agency
must at least: (i) gather and review the documents; (ii)
determine and communicate the scope of the documents it
intends to produce and withhold, and the reasons for
withholding any documents; and (iii) inform the requester that
it can appeal whatever portion of the ‘determination’ is
adverse.” CREW, 711 F.3d at 188; see also Oglesby, 920 F.2d
at 65. The first and third requirements are satisfied because the
10
agency gathered and reviewed—and in fact produced—more
than 800 pages of responsive documents, and it notified Khine
of her administrative appeal rights and the process and timeline
for appealing. DHS Initial Determination at 1-2 (J.A. 22-23).
Khine’s argument that the agency failed to provide the
“reasons” for its withholding and segregation decisions goes to
whether the second CREW requirement is met. We conclude
that, under the statute and our precedent interpreting it, DHS
satisfied its obligation to “determine and communicate . . . the
reasons for withholding any documents.” CREW, 711 F.3d at
188. We explained in CREW that the “statutory requirement
that the agency provide ‘the reasons’ for its ‘determination’
strongly suggests that the reasons are particularized to the
‘determination’—most obviously, the specific exemptions that
may apply to certain withheld records.” Id. at 186 (emphasis
added); see also id. at 187 n.5. The initial determination here
provided reasons by listing and defining the exemptions that
the agency applied to the records responsive to Khine’s request.
DHS Initial Determination at 1-2 (J.A. 22-23).
As for Khine’s claim that the initial determination “did not
provide ‘the’ reasons why nothing could be segregated out of
the assessment,” Khine Br. 46, we do not require the agency at
this stage, as Khine appears to suggest, to provide a document-
by-document Vaughn index, which this court has recognized is
a “judicial rule” that “governs litigation in court and not
proceedings before the agency.” NRDC v. NRC, 216 F.3d
1180, 1190 (D.C. Cir. 2000). CREW itself recognized as much,
reiterating that an “agency is not required to produce a Vaughn
index.” 711 F.3d at 187 n.5. The level of detail that DHS
provided is sufficient to explain the reasons for its withholding
and segregation decisions, and amounted to a “determination”
that triggered the FOIA administrative appeals process. Cf. 6
C.F.R. § 5.8(a)(1).
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Finally, to the extent Khine’s challenge goes beyond the
adequacy of the agency’s “reasons” for withholding and
segregating responsive information to assail its lack of
descriptions of the documents withheld, we consider that
challenge forfeited. It is true that, in its initial determination,
DHS provided only the number of pages it was withholding,
rather than, say, a description or list of the withheld documents.
But, on appeal, Khine has not challenged that aspect of the
initial determination. Instead, Khine argues only that the
“initial response of DHS did not trigger the need to file an
administrative appeal because the DHS did not provide ‘the’
reasons for its determination.” Khine Br. 11; see also id. at 37.
Khine challenges the initial determination’s failure to give the
reasons for the withholdings, id. at 40-46, and its failure to
explain why additional segregation was not possible, id. at 46-
48. None of those arguments questions whether the agency’s
description of the documents withheld—rather than the
exemptions asserted—was adequate to constitute a
“determination” that triggered the exhaustion requirement. At
best, Khine mentions in passing in the Introduction to her brief
that the agency’s determination “does not state what those 8
[withheld] pages are, nor does it state whether the ‘assessment’
is included in those pages.” Khine Br. 1; see also id. at 47
(noting, in the context of segregability, that “Ms. Khine does
not know what the ‘8 pages’ are”). But the argument is not
developed in the body of the brief, and “[i]t is not enough
merely to mention a possible argument in the most skeletal
way.” N.Y. Rehab. Care Mgmt., LLC v. NLRB, 506 F.3d 1070,
1076 (D.C. Cir. 2007). Therefore, we “decline to entertain this
contention.” Id.
C.
Khine’s final argument is that any obligation to file an
administrative appeal should be excused. Khine Br. 23-37.
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The district court has discretion to overlook a failure to exhaust
if “the litigant’s interests in immediate judicial review
outweigh the government’s interests in the efficiency or
administrative autonomy that the exhaustion doctrine is
designed to further.” Avocados Plus Inc. v. Veneman, 370 F.3d
1243, 1247 (D.C. Cir. 2004) (internal quotation marks and
citation omitted). Excusing Khine’s failure to exhaust would
be inappropriate here. Khine’s case focuses on the inadequacy
of DHS’ initial FOIA determination, but a shortfall of that type
is paradigmatic of the type of problem that an administrative
appeal is particularly suited to resolve. Administrative appeal
provides the agency a further chance to “exercise its discretion
and expertise on the matter and to make a factual record to
support its decision.” Oglesby, 920 F.2d at 61. As we
explained, “[a]llowing a FOIA requester to proceed
immediately to court to challenge an agency’s initial response
would cut off the agency’s power to correct or rethink initial
misjudgments or errors.” Id. at 64. Short of a properly
presented claim that the agency has a policy or practice of
providing inadequate initial determinations, we cannot
conclude that Khine’s interest in immediate judicial review
outweighs the agency’s interest in managing and completing
its administrative process.
* * *
For the foregoing reasons, we hold that Khine has failed to
exhaust her administrative remedies under FOIA and affirm the
district court’s judgment.
So ordered.