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Khan v. DHS, No. 22-2480, 2023 WL 6215359 (D.D.C. Sept. 25, 2023) (Kelly, J.)


Khan v. DHS, No. 22-2480, 2023 WL 6215359 (D.D.C. Sept. 25, 2023) (Kelly, J.)

Re:  Requests concerning detainment of plaintiff and plaintiff’s brother at airport

Disposition:  Granting in part and denying in part defendants’ motion to dismiss in part and strike remainder of complaint

  • Litigation Considerations, Standing:  The court relates that “Defendants first argue that [plaintiff] should be dismissed because the complaint alleges that [plaintiff’s law firm] submitted all the challenged FOIA requests.”  “Thus, they argue, [plaintiff] lacks standing.”  “But [the court holds that] if an attorney makes a FOIA request for a client, the client has standing to challenge the government’s response if the attorney ‘clearly indicate[d] that it is being made on behalf of the [client].’”  “Although Plaintiffs allege that [plaintiff’s law firm] ‘is the requestor on all FOIA requests,’ they also allege that, ‘[o]n behalf of [plaintiff], [plaintiff’s law firm] has submitted FOIA requests . . . .”  “And the materials attached to the complaint confirm that [plaintiff’s law firm] – through [plaintiff’s] brother – submitted the challenged FOIA requests on [plaintiff’s] behalf.”  “Thus, [plaintiff] has standing to challenge them.”
  • Litigation Considerations, Pleadings:  First, the court relates that “Defendants next argue that Plaintiffs cannot properly bring FOIA claims against agency officials.”  The court finds that “FOIA only authorizes suits against an ‘agency,’ so ‘no cause of action exists that would entitle [Plaintiffs] to relief from [individual officials] under . . . FOIA.’”  “Therefore, the Court will dismiss these defendants.”

    Next, the court relates that “Defendants argue that Counts II and VI must be dismissed.”  “Count II, titled ‘Injunctive Relief,’ seeks to ‘expedite’ a ‘FOIA request.’”  “Relatedly, Count VI alleges that unspecified defendants ‘wrongfully denied Plaintiff’s request for expedited processing of Plaintiff’s FOIA request.’”  “Count II’s ‘cause of action’ for ‘injunctive relief’ is a nonstarter because ‘injunctive relief is a type of remedy, not a freestanding cause of action.’”  “That is so whether or not Plaintiff could bring a claim for failure to expedite a FOIA request or obtain injunctive relief for that or any other claim.”  “Because there is no such thing as a standalone injunctive-relief cause of action, the Court will dismiss Count II.”  “Count VI also fails to state a claim for a dizzying number of reasons.”  Primarily, “the complaint contains no allegation that Plaintiffs ever requested that any defendant expedite one of their FOIA requests under 5 U.S.C. 552(a)(6)(E).”
  • Procedural Requirements, Proper FOIA Requests:  The court finds that “[two of plaintiffs’ requests do not] seek[] the production of documents.”  “Rather, each purport to appeal CBP’s responses to other FOIA requests.”  “Because neither requests – or reasonably describes – any records subject to FOIA, they are not proper FOIA requests, and any claims based on them must be dismissed.”
  • Litigation Considerations, Pattern-or-Practice Claims:  The court relates that “Defendants next challenge Count X, Plaintiffs’ pattern-and-practice claim against the defendant agencies because, they argue, Plaintiffs ‘have failed to plausibly allege any “pattern” or “practice” of untimely adjudication’ of FOIA requests.”  “Plaintiffs’ allegations in their pattern-and-practice claim in Count X fail to plausibly state such a claim.”  “As is true for all of Plaintiffs’ claims, Count X identifies no specific requests that any specific defendants have failed to adjudicate, instead alleging generally that Defendants have failed to adjudicate ‘Plaintiff’s FOIA requests.’”  “As a result, Plaintiffs offer no factual allegations that support the existence of any pattern or practice as to any particular defendant.”
  • Litigation Considerations, Pleadings & In Camera Inspection:  The court relates that “[t]he last claim Defendants seek to dismiss is the request for an appointment of a special master and for in camera review of relevant documents in Count XI.”  “The Court will dismiss Count XI because FOIA provides no cause of action for that request.”  “To be sure, should the need arise in resolving a motion for summary judgment, the Court may appoint a special master under Federal Rule of Civil Procedure 53 or conduct in camera review under FOIA.”  “That the Court may elect to do so, however, does not give rise to an independent cause of action that Plaintiffs may allege in their complaint.”
Court Decision Topic(s)
District Court opinions
Litigation Considerations, In Camera Inspection
Litigation Considerations, Pattern-or-Practice Claims
Litigation Considerations, Pleadings
Litigation Considerations, Standing
Procedural Requirements, Proper FOIA Requests
Updated November 3, 2023