Khine v. DHS, 943 F.3d 959 (D.C. Cir. 2019) (Pillard, J.)

Khine v. DHS, 943 F.3d 959 (D.C. Cir. 2019) (Pillard, J.)

Re:  Request for records concerning alien's asylum application

Disposition:  Affirming district court's grant of government's motion to dismiss

• Litigation Considerations:  Exhaustion of Administrative Remedies, Mootness and Other Grounds for Dismissal, Vaughn Index/Declaration & Procedural Requirements:  Responding to FOIA Requests, Administrative Appeals:  The Court of Appeals for the District of Columbia Circuit holds that "[the requester] has failed to exhaust her administrative remedies under FOIA."  The court relates that "[b]y regulation, DHS has created a scheme that governs how it will process FOIA requests and disclose records."  "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)."  "The parties here do not dispute that [the requester] filed no administrative appeal before she sought judicial review."  "[The requester] offers three arguments why her failure to exhaust does not bar her challenge to the agency's initial determination."
   
  Responding to the requester's argument, the Court of Appeals for the District of Columbia Circuit relates that "[the requester] appears to contend that, had she filed an administrative appeal, that would have mooted any objection she had to the initial determination."  However, the court finds that "[i]f the administrative appeal gave her what she sought, and thereby foreclosed judicial review, the administrative process would have been working as it should."  "[The requester's] desire to avoid mooting her claim does not justify her failure to exhaust her administrative remedies."  "To avoid that result, [the requester] 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.'"  "But a non-repeat FOIA requester like [the requester] lacks standing to 'seek[ ] a reformation,' . . . of the way an agency handles its FOIA requests."  Additionally, the court finds that "even though FOIA permits 'any person' to make a FOIA request . . . and [another entity which assisted the requester in filing the request] could have sought [the requester's] asylum file, [the court] take[s] [the requester's] counsel at his word and accept[s] that [the other entity] 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, [the other entity], too, lacks standing to pursue such a claim in this case."
   
  Responding to the requester's argument that "the agency's initial determination [was] inadequate [and] so not a legally operative 'determination,'" the Court of Appeals for the District of Columbia Circuit holds that "under the statute and our precedent interpreting it, DHS satisfied its obligation to 'determine and communicate . . . the reasons for withholding any documents.'"  "The initial determination here provided reasons by listing and defining the exemptions that the agency applied to the records responsive to [the requester's] request."  Additionally, "[the court] do[es] not require the agency at this stage, as [the requester] 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.'"
   
  Responding to the requester's final argument that "any obligation to file an administrative appeal should be excused," the Court of Appeals for the District of Columbia Circuit held that "[s]hort of a properly presented claim that the agency has a policy or practice of providing inadequate initial determinations, [it] cannot conclude that [the requester's] interest in immediate judicial review outweighs the agency's interest in managing and completing its administrative process."  The court finds that "[plaintiff'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.'"