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Khine v. United States Department of Homeland Security

United States District Court, District of Columbia

September 24, 2018





         Pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, Catholic Charities requested various materials from United States Citizenship and Immigration Services ("USCIS") on behalf of Kay T. Khine ("Khine") (together with Catholic Charities, "Plaintiffs"). In response, USCIS disclosed certain documents, withheld others, and sent Plaintiffs a letter explaining its decision. Unsatisfied with that letter, and without administratively appealing it, Plaintiffs filed this action to compel the United States Department of Homeland Security ("DHS"), in which USCIS is housed, to explain the decision in a more fulsome and detailed manner, such that Plaintiffs can file a "meaningful" administrative appeal.[1] Before this Court are DHS's motion to dismiss and Plaintiffs' motion to file a sur-reply to DHS's motion. Having reviewed the parties' submissions, this Court grants both motions and dismisses the complaint for Plaintiffs' failure to exhaust administrative remedies.


         Khine is a native of Burma who sought asylum in the United States. Compl. ¶ 12, ECF No. 1. During her asylum process, a United States asylum officer generated an "Assessment of the case" (the "Assessment"). Id. This three-page document is allegedly in DHS's possession. Compl. ¶¶13, 18.

         In February 2017, Catholic Charities submitted a FOIA request on behalf of Khine seeking the Assessment, the asylum officer's notes regarding Khine, and other materials related to Rhine's asylum application. See Compl. ¶ 15; FOIA Request, Compl. Ex. 1, ECF No. 1-1. In July 2017, DHS produced 860 pages of material and a letter (the "initial response") (1) explaining DHS's response to Plaintiffs' request, including the statutory provisions under which DHS withheld certain documents in part or in full;[2] (2) stating that DHS had submitted certain responsive documents to U.S. Immigration and Customs Enforcement ("ICE") for further consideration; and (3) noting Plaintiffs' right to appeal DHS's initial decision. Compl. ¶¶ 17, 19; Letter from Jill A. Eggleston, Director, FOIA Operations, USCIS, to David L. Cleveland, Counsel for Kay T. Khine (July 12, 2017), Compl. Ex. 2, ECF No. 1-2 ("DHS Letter"). The asylum officer's Assessment was withheld in full as exempt from FOIA, and the initial response explained that withheld documents "contain no reasonably segregable portion(s) of non-exempt information." DHS Letter at 2; see also Compl. ¶¶ 40, 45.

         As noted in the initial response, an appeal would allow Plaintiffs to "preserve [their] rights under FOIA and give the agency a chance to review and reconsider [their] request and the agency's decision." DHS Letter at 2. Under DHS regulations, A requester may appeal adverse determinations denying his or her request or any part of the request to the appropriate Appeals Officer.

A requester may also appeal if he or she questions the adequacy of the component's search for responsive records, or believes the component either misinterpreted the request or did not address all aspects of the request (i.e., it issued an incomplete response), or if the requester believes there is a procedural deficiency (e.g., fees were improperly calculated). . . . The appeal should clearly identify the component determination (including the assigned request number if the requester knows it) that is being appealed and should contain the reasons the requester believes the determination was erroneous.

6 C.F.R. § 5.8(a)(1). The regulations further state that "[i]f a requester wishes to seek court review of a component's adverse determination on a matter appealable under paragraph (a)(1) of this section, the requester must generally first appeal it. . . ." Id. § 5.8(e). While the initial decision regarding Plaintiffs' FOIA request was made by USCIS's National Records Center, see DHS Letter, DHS's Office of the General Counsel would adjudicate the administrative appeal. Id. § 5.8(b).

         Despite the availability of an administrative appeal, Plaintiffs filed the instant action without further recourse to the agency. Compl. ¶¶ 22-23. They contend that an appeal "is futile and illusory" and "is almost certainly likely to result in nothing of value." Id.¶3. Their complaint contains three main components.

         First, Plaintiffs assert that the initial response violates 5 U.S.C. § 552(a)(6)(A)(i) in several ways, [3] including by failing to identify whether DHS has the Assessment, id. ¶ 17; relying on a "boilerplate" list of FOIA exemptions justifying DHS's withholdings, without explaining how the exemptions apply to particular documents, including the Assessment, id. ¶¶ 27, 52; failing to explain why non-exempt material cannot be segregated from exempt material, particularly within the Assessment, id. ¶ 40; failing to identify which specific documents were withheld in full, id. ¶ 45; failing to identify which documents were sent to ICE, id. ¶¶ 48-49; failing to explain that disclosing the Assessment would harm DHS, id. ¶ 55;[4] and providing insufficient information to allow a meaningful administrative appeal, id. ¶ 58. Second, Plaintiffs assert that DHS maintains a "policy or practice" of issuing boilerplate, computer-generated initial response letters that violate FOIA in the ways listed above. Id. ¶ 74-76. Third, Plaintiffs assert these claims on behalf of a class of plaintiffs consisting "of all persons who, since September 2011, have made, or will make during the pendency of this lawsuit, a FOIA request for the Assessment of their asylum officer, but were provided an initial response similar to plaintiff Khine." Id. ¶ 81. Plaintiffs ask this Court to order DHS to "re-write" the cover letter; to declare that the cover letter violates FOIA; to enjoin DHS from issuing similar letters in the future; to order DHS to "correctly instruct and train its FOIA processors"; and to award reasonable attorney's fees and costs. Id. at 14.

         III. ANALYSIS

         Now before the Court are DHS's ripe motion to dismiss and Plaintiffs' ripe motion to file an additional brief, known as a sur-reply.[5] The Court first addresses whether Plaintiffs have standing to assert the diverse array of claims in their complaint. The Court next addresses whether Plaintiffs have satisfied the jurisprudential requirements necessary to raise those claims in federal court. As explained below, while the Court concludes that Plaintiffs have standing to bring the action, it grants DHS's motion to dismiss because Plaintiffs failed to exhaust their administrative remedies. Additionally, the Court grants Plaintiffs' motion to file the sur-reply.[6]

         A. Standing

         The Court first evaluates whether Plaintiffs have standing to bring their policy-or-practice claim. While DHS moves to dismiss Plaintiffs' complaint on both jurisdictional grounds under Federal Rule 12(b)(1) and substantive grounds under Federal Rule 12(b)(6), DHS rests both of those arguments on Plaintiffs' failure to exhaust their administrative remedies, as discussed below. See Def s. Mem. P. & A. Supp. Def s. Mot. Dismiss ("Def Mem.") at 3 (stating that because "Plaintiffs failed to exhaust their administrative remedies," they "have failed to state a claim upon which relief may be granted" and "this Court lacks subject-matter jurisdiction"), ECF No. 11. However, regardless of whether DHS challenged Plaintiffs' standing, it is well-established "that jurisdictional issues may be raised by the court sua sponte" Am. Library Ass'n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005) (citing Lee's Summit, Mo. v. Surface Transp. Bd, 231 F.3d 39, 41 (D.C. Cir. 2000)). The Court therefore must determine whether Plaintiffs have standing to bring a policy-or-practice claim against DHS.

         "The irreducible constitutional minimum of standing contains three elements: (1) injury-in-fact, (2) causation, and (3) redressability," Nat'l Ass'n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2011) (internal quotation marks and citation omitted). To establish "injury in fact," a plaintiff must show that it has suffered "a harm . . . that is 'concrete' and 'actual or imminent, not conjectural or hypothetical.'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103 (1998) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). However, "[w]hen a plaintiff seeks injunctive or declaratory relief specifically for the purpose of challenging an alleged policy or practice of a government agency, it must [ ] demonstrate that it is 'realistically threatened by a repetition of [its] experience, '" Nat'l Sec. Counselors v. CIA, 898 F.Supp.2d 233, 260 (D.D.C. 2012) (quoting Haase v. Sessions, 835 F.2d 902, 910-11 (D.C. Cir. 1987)), which requires "plaintiffs [to] not only demonstrate [the] existence [of a policy] but also that they are likely to be subjected to the policy again." Haase, 835 F.2d at 911; see also Tipograph v. DOJ, 146 F.Supp.3d 169, 175 (D.D.C. 2015) ("If a plaintiff demonstrates that it will be subjected in the near future to the particular agency policy or practice that it challenges under FOIA, then the injury requirement of Article III standing is satisfied."). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Considering these principles, at this stage the Court concludes that Plaintiffs' allegations regarding Catholic Charities establish standing to bring their policy-or-practice claim.

         First, Plaintiffs have satisfied their burden to "demonstrate [the] existence" of the alleged policy-or-practice. Haase, 835 F.2d at 911. "[I]t is well established that '[a] plaintiff is only required to put forth a plausible, more than nebulous assertion of the existence of an ongoing pattern or practice [in order] to establish standing.'" Muckrock, LLC v. CIA, 300 F.Supp.3d 108, 130 (D.D.C. 2018) (quoting Nat'l Sec. Counselors, 898 F.Supp.2d at 260). Plausible allegations of an unwritten FOIA-related policy-or-practice are sufficient, for the D.C. Circuit has rejected any notion that a regulation or other formal agency policy statement is a prerequisite to a policy-or-practice claim. See Judicial Watch, Inc. v. DHS, 895 F.3d 770, 777-78 (D.C. Cir. 2018) ("In this circuit it is settled law that informal agency conduct. . . may serve as the basis for a policy or practice claim."); Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988) (holding that a FOIA requester was entitled to declaratory relief even though the challenged practice was "informal, rather than articulated in regulations or an official statement of policy").

         Plaintiffs allege that DHS has a policy of sending "computer-generated," "template" letters in response to FOIA requests from asylum applicants seeking disclosure of their assessments. Compl. ¶¶ 75-76. They further allege that DHS has sent over 100 such letters during the past six years. Id. ¶ 76. Plaintiffs argue that these template letters violate FOIA in a variety of ways. Id. The D.C. Circuit recently held that similar allegations of a "pattern" of informal agency conduct violating FOIA with respect to several identical document requests were sufficient to raise a policy-or-practice claim at the pleading stage. Judicial Watch, 895 F.3d at 780. Accordingly, the complaint sufficiently details "specific instances of conduct by [DHS] that [Plaintiffs] claim[] are manifestations of the alleged [policy-or-practice] at issue," Nat'l ...

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