943 F.3d 959
D.C. Cir.2019Background
- Kay Khine (with Catholic Charities) submitted a FOIA request to DHS for her I-94, asylum officer’s notes, the asylum officer’s assessment, and her full asylum file.
- DHS sent an initial determination identifying 871 responsive pages: disclosing most pages, withholding 8–9 non‑segregable pages, referring 3 pages to ICE, and listing Privacy Act and FOIA exemptions applied.
- The determination defined the exemptions and informed Khine of her right to administratively appeal within 90 days.
- Two weeks after a corrected page count, Khine and Catholic Charities sued in district court without filing an administrative appeal; the complaint alleged the initial determination was inadequate and also asserted a class-style policy-or-practice claim.
- The district court dismissed for failure to exhaust administrative remedies; the D.C. Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Khine had to exhaust DHS administrative appeals after receiving the initial determination | The initial determination was inadequate (did not provide ‘the’ reasons) so no appeal duty was triggered | DHS’s initial determination met requirements (gathered/reviewed docs, identified exemptions, informed of appeal rights) so exhaustion required | DHS’s determination was adequate; exhaustion required and Khine failed to appeal |
| Standing to bring a policy-or-practice challenge to DHS’s FOIA practices | Khine sought reformation of DHS’s misleading initial responses and thus could challenge agency practice | Only repeat requesters (or parties who will suffer continuing injury) have standing for policy-or-practice claims; Khine is not a repeat requester; Catholic Charities was not a requester here | Khine lacks standing for a policy-or-practice claim; no basis to avoid exhaustion |
| Adequacy of DHS’s explanation (need for document-by-document Vaughn/segregability detail) | DHS failed to explain why documents couldn’t be segregated and didn’t identify which withheld pages contain the assessment | FOIA and precedent do not require a Vaughn index at the agency stage; listing and defining exemptions and notifying appeal rights suffices to constitute a determination | DHS’s explanation (exemptions + definitions + appeal notice) was sufficient; no agency-stage Vaughn required; Khine forfeited any underdeveloped challenge about withheld‑page descriptions |
| Whether equitable excuse of exhaustion is warranted | Immediate judicial review is needed because the initial responses are misleading and inadequate | Agency interests in administrative correction and record-building outweigh plaintiff’s interest in immediate review | Excusal denied; district court was correct to require exhaustion |
Key Cases Cited
- CREW v. FEC, 711 F.3d 180 (D.C. Cir.) (framework for what constitutes an agency "determination" that triggers FOIA administrative appeal)
- Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57 (D.C. Cir.) (exhaustion gives agency chance to exercise discretion and develop record)
- Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir.) (disclosure of requested records typically moots FOIA claims)
- Newport Aeronautical Sales v. Dep’t of the Air Force, 684 F.3d 160 (D.C. Cir.) (policy-or-practice standing requires a likelihood of future injury/repeat requester)
- NRDC v. NRC, 216 F.3d 1180 (D.C. Cir.) (Vaughn index is a judicial litigation tool, not an agency‑stage requirement)
- Wilbur v. CIA, 355 F.3d 675 (D.C. Cir.) (failure to exhaust precludes judicial review though not jurisdictional)
- Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309 (D.C. Cir.) (if agency responds before suit, exhaustion still applies)