United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION TO
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE
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. 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
FACTUAL AND PROCEDURAL BACKGROUND
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.
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) 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.
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).
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
Plaintiffs assert that the initial response violates 5 U.S.C.
§ 552(a)(6)(A)(i) in several ways,  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; 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.
before the Court are DHS's ripe motion to dismiss and
Plaintiffs' ripe motion to file an additional brief,
known as a sur-reply. 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.
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.
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
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").
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