1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA
10 MICHAEL J. AGUIRRE, Case No. 19-cv-587-BAS-BLM 11 Plaintiff, ORDER GRANTING 12 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 v. [ECF No. 12] U.S. NUCLEAR REGULATORY 14 COMMISSION,
15 Defendant. 16 17 Plaintiff Michael Aguirre filed a complaint against Defendant United States 18 Nuclear Regulatory Commission (“NRC”). In sum, in March 2019, Plaintiff 19 requested documents from NRC pursuant to the Freedom of Information Act 20 (“FOIA”), 5 U.S.C. § 552. Plaintiff seeks a declaratory judgment that the NRC’s 21 failure to respond to his requests was unlawful, an order compelling the NRC to 22 release the documents, and attorney’s fees. (“Compl.,” ECF No. 1.) 23 I. FACTUAL BACKGROUND 24 Plaintiff alleges safety violations are occurring on a nuclear site in San Diego, 25 California that the NRC is charged with overseeing. (Compl. ¶ 4.) One of these 26 violations allegedly occurred on August 3, 2018, where “the utility’s staff misaligned 27 a canister storing approximately 100,000 pounds of nuclear waste.” (Id. ¶ 5.) On 1 2019 for anyone interested in the August 3 incident. (Id. ¶ 10.) On March 19, 2019, 2 Plaintiff submitted a FOIA request. He requested: 3 all records of communications from November 29, 2018 to present between any agent, officer or employee of Southern California Edison 4 and any agent, officer or employee of the NRC regarding the subject 5 matter of the March 25, 2019 meeting: the NRC's “enforcement decisions regarding the Special Inspections conducted by the NRC to 6 evaluate an August 3, 2018 incident involving a loaded spent fuel 7 storage canister that was misaligned and became stuck on a metal flange while being lowered into a storage vault.” 8 9 (Exhibit 1 to Declaration of Tina Ennis, ECF No. 12-2.) He requested the documents 10 be produced by March 23, 2019 (four days later). (Id.) 11 On March 21, 2019, Stephanie Blaney, a FOIA officer, responded to Plaintiff. 12 She informed him that to expedite a request, the requester must show a 13 “compelling need” based on meeting either of two criteria: when failure to obtain the records quickly “could reasonably be expected to pose an 14 imminent threat to the life or physical safety of an individual;” or, if the 15 requester is a person “primarily engaged in disseminating information,” by demonstrating that an “urgency to inform the public about the actual 16 or alleged Federal Government activity” exists. 17 18 (Id. at 11.) Ms. Blaney concluded that Plaintiff’s justification for expedited 19 documents did not meet this standard, and in any event, there were three other 20 pending expedited requests in the queue that would be addressed before Plaintiff’s 21 request. (Id.) Therefore, the NRC would not be producing the documents by 22 Plaintiff’s deadline (which was two days later). Plaintiff responded, objecting to the 23 denial to expedite. (Id. at 10.) The parties continued to email back and forth, but 24 ultimately, the conclusion remained the same: Plaintiff would not receive expedited 25 documents. (Id. at 8, 9.) 26 While this conversation was ongoing, on March 21, 2019, Ms. Blaney sent 27 Plaintiff a letter, assigning his FOIA request the tracking number NRC-2019-000239. 1 request was May 2, 2019. (Id.) The letter reiterated that Plaintiff had not established 2 a “compelling need” for acceleration of the documents. (Id.) 3 On March 28, 2019, after the meeting regarding the misalignment incident had 4 occurred, Tina Ennis emailed Plaintiff and asked whether he was still interested in 5 receiving the records even though the meeting had occurred. (Exhibit 4 to 6 Declaration of Tina Ennis.) The letter indicated that Plaintiff’s request had been 7 classified as “non-excepted” and he was responsible for the search and duplication 8 costs of $72.63. (Id.) Because Plaintiff had previously agreed to pay up to $1,500, 9 no payment was due at the time and he would be billed when the request was 10 complete. (Id.) 11 Plaintiff’s law partner Marie Severson responded at approximately 10:00 a.m. 12 on March 28, requesting the FOIA records by noon that day. (Exhibit 5 to Declaration 13 of Tina Ennis, at 21–22.) Ms. Ennis responded to Ms. Severson and informed her 14 that the responsive records “were not originated by the NRC” and therefore, the NRC 15 had to refer the records to the licensee for a disclosure determination. “Under NRC 16 regulations and policies, the licensee is allowed 30 days for review and response.” 17 Thus, the NRC would not be able to provide the documents within the day. (Id.) Ms. 18 Ennis and Ms. Severson continued to email. (Id. at 21.) 19 Plaintiff filed suit on March 29, 2019. On April 17, 2019, Ms. Ennis emailed 20 Plaintiff to inform him that the records were sent to the licensee for review. (Exhibit 21 6 to Declaration of Tina Ennis.) Later that same day, Ms. Ennis emailed Plaintiff 22 again to inform him that some of the work on his request was complete and attached 23 the interim response. (Exhibit 7 to Declaration of Tina Ennis, at 22.) Ms. Ennis now 24 declares that the NRC has released some information to Plaintiff but has withheld 25 some information pursuant to FOIA’s exemptions. (Declaration of Tina Ennis ¶ 12; 26 see also ECF No. 21-1 (supplemental declaration).) 27 II. PROCEDURAL BACKGROUND 1 failed to exhaust administrative remedies for his FOIA request before filing a 2 complaint. (“Mot.,” ECF No. 12.) Although not clearly specified in the Motion, it 3 appeared that Defendant moves pursuant to Federal Rule of Civil Procedure 12(b)(6). 4 (See id. at 6 (“Defendant respectfully moves for dismissal of the complaint for failure 5 to state a claim, based on lack of exhaustion of administrative remedies.”).) 6 Defendant attached a declaration by Tina Ennis and various exhibits to its Motion. 7 (ECF No. 12-2.) Defendant did not explain why it believed the Court could consider 8 these exhibits at the motion to dismiss stage. Therefore, the Court converted 9 Defendant’s Motion to a motion for summary judgment. (ECF No. 20.) The Court 10 permitted both parties to submit any further material in support of the Motion or 11 Opposition and provided separate deadlines for each party. Defendant did not file 12 anything by its deadline, and Plaintiff submitted further points and authorities along 13 with a declaration by Plaintiff and new exhibits, (ECF Nos. 22, 22-1).1 14 The Court held oral argument on this Motion on February 18, 2020. For the 15 reasons discussed below, the Court GRANTS Defendant’s Motion for Summary 16 Judgment, (ECF No. 12). 17 III. LEGAL STANDARD 18 “A party may move for summary judgment, identifying each claim or defense 19 —or the part of each claim or defense—on which summary judgment is sought. The 20 court shall grant summary judgment if the movant shows that there is no genuine 21 1 This supplemental response filed by Plaintiff details issues that have arisen since the filing of the 22 complaint. These documents therefore are irrelevant to the issue before the Court: whether Plaintiff 23 exhausted his administrative remedies before filing the present complaint. Defendant moved ex parte for leave to file a supplemental reply to respond to Plaintiff’s supplemental response. (ECF 24 No. 23.) Because the Court finds Plaintiff’s supplemental response is largely irrelevant, it need not receive a response by the NRC. The Court therefore DENIES the NRC’s ex parte motion, 25 (ECF No. 23). Plaintiff also requests the Court take judicial notice of various documents. The documents 26 relate to the merits of Plaintiff’s FOIA requests. (ECF No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA
10 MICHAEL J. AGUIRRE, Case No. 19-cv-587-BAS-BLM 11 Plaintiff, ORDER GRANTING 12 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 v. [ECF No. 12] U.S. NUCLEAR REGULATORY 14 COMMISSION,
15 Defendant. 16 17 Plaintiff Michael Aguirre filed a complaint against Defendant United States 18 Nuclear Regulatory Commission (“NRC”). In sum, in March 2019, Plaintiff 19 requested documents from NRC pursuant to the Freedom of Information Act 20 (“FOIA”), 5 U.S.C. § 552. Plaintiff seeks a declaratory judgment that the NRC’s 21 failure to respond to his requests was unlawful, an order compelling the NRC to 22 release the documents, and attorney’s fees. (“Compl.,” ECF No. 1.) 23 I. FACTUAL BACKGROUND 24 Plaintiff alleges safety violations are occurring on a nuclear site in San Diego, 25 California that the NRC is charged with overseeing. (Compl. ¶ 4.) One of these 26 violations allegedly occurred on August 3, 2018, where “the utility’s staff misaligned 27 a canister storing approximately 100,000 pounds of nuclear waste.” (Id. ¶ 5.) On 1 2019 for anyone interested in the August 3 incident. (Id. ¶ 10.) On March 19, 2019, 2 Plaintiff submitted a FOIA request. He requested: 3 all records of communications from November 29, 2018 to present between any agent, officer or employee of Southern California Edison 4 and any agent, officer or employee of the NRC regarding the subject 5 matter of the March 25, 2019 meeting: the NRC's “enforcement decisions regarding the Special Inspections conducted by the NRC to 6 evaluate an August 3, 2018 incident involving a loaded spent fuel 7 storage canister that was misaligned and became stuck on a metal flange while being lowered into a storage vault.” 8 9 (Exhibit 1 to Declaration of Tina Ennis, ECF No. 12-2.) He requested the documents 10 be produced by March 23, 2019 (four days later). (Id.) 11 On March 21, 2019, Stephanie Blaney, a FOIA officer, responded to Plaintiff. 12 She informed him that to expedite a request, the requester must show a 13 “compelling need” based on meeting either of two criteria: when failure to obtain the records quickly “could reasonably be expected to pose an 14 imminent threat to the life or physical safety of an individual;” or, if the 15 requester is a person “primarily engaged in disseminating information,” by demonstrating that an “urgency to inform the public about the actual 16 or alleged Federal Government activity” exists. 17 18 (Id. at 11.) Ms. Blaney concluded that Plaintiff’s justification for expedited 19 documents did not meet this standard, and in any event, there were three other 20 pending expedited requests in the queue that would be addressed before Plaintiff’s 21 request. (Id.) Therefore, the NRC would not be producing the documents by 22 Plaintiff’s deadline (which was two days later). Plaintiff responded, objecting to the 23 denial to expedite. (Id. at 10.) The parties continued to email back and forth, but 24 ultimately, the conclusion remained the same: Plaintiff would not receive expedited 25 documents. (Id. at 8, 9.) 26 While this conversation was ongoing, on March 21, 2019, Ms. Blaney sent 27 Plaintiff a letter, assigning his FOIA request the tracking number NRC-2019-000239. 1 request was May 2, 2019. (Id.) The letter reiterated that Plaintiff had not established 2 a “compelling need” for acceleration of the documents. (Id.) 3 On March 28, 2019, after the meeting regarding the misalignment incident had 4 occurred, Tina Ennis emailed Plaintiff and asked whether he was still interested in 5 receiving the records even though the meeting had occurred. (Exhibit 4 to 6 Declaration of Tina Ennis.) The letter indicated that Plaintiff’s request had been 7 classified as “non-excepted” and he was responsible for the search and duplication 8 costs of $72.63. (Id.) Because Plaintiff had previously agreed to pay up to $1,500, 9 no payment was due at the time and he would be billed when the request was 10 complete. (Id.) 11 Plaintiff’s law partner Marie Severson responded at approximately 10:00 a.m. 12 on March 28, requesting the FOIA records by noon that day. (Exhibit 5 to Declaration 13 of Tina Ennis, at 21–22.) Ms. Ennis responded to Ms. Severson and informed her 14 that the responsive records “were not originated by the NRC” and therefore, the NRC 15 had to refer the records to the licensee for a disclosure determination. “Under NRC 16 regulations and policies, the licensee is allowed 30 days for review and response.” 17 Thus, the NRC would not be able to provide the documents within the day. (Id.) Ms. 18 Ennis and Ms. Severson continued to email. (Id. at 21.) 19 Plaintiff filed suit on March 29, 2019. On April 17, 2019, Ms. Ennis emailed 20 Plaintiff to inform him that the records were sent to the licensee for review. (Exhibit 21 6 to Declaration of Tina Ennis.) Later that same day, Ms. Ennis emailed Plaintiff 22 again to inform him that some of the work on his request was complete and attached 23 the interim response. (Exhibit 7 to Declaration of Tina Ennis, at 22.) Ms. Ennis now 24 declares that the NRC has released some information to Plaintiff but has withheld 25 some information pursuant to FOIA’s exemptions. (Declaration of Tina Ennis ¶ 12; 26 see also ECF No. 21-1 (supplemental declaration).) 27 II. PROCEDURAL BACKGROUND 1 failed to exhaust administrative remedies for his FOIA request before filing a 2 complaint. (“Mot.,” ECF No. 12.) Although not clearly specified in the Motion, it 3 appeared that Defendant moves pursuant to Federal Rule of Civil Procedure 12(b)(6). 4 (See id. at 6 (“Defendant respectfully moves for dismissal of the complaint for failure 5 to state a claim, based on lack of exhaustion of administrative remedies.”).) 6 Defendant attached a declaration by Tina Ennis and various exhibits to its Motion. 7 (ECF No. 12-2.) Defendant did not explain why it believed the Court could consider 8 these exhibits at the motion to dismiss stage. Therefore, the Court converted 9 Defendant’s Motion to a motion for summary judgment. (ECF No. 20.) The Court 10 permitted both parties to submit any further material in support of the Motion or 11 Opposition and provided separate deadlines for each party. Defendant did not file 12 anything by its deadline, and Plaintiff submitted further points and authorities along 13 with a declaration by Plaintiff and new exhibits, (ECF Nos. 22, 22-1).1 14 The Court held oral argument on this Motion on February 18, 2020. For the 15 reasons discussed below, the Court GRANTS Defendant’s Motion for Summary 16 Judgment, (ECF No. 12). 17 III. LEGAL STANDARD 18 “A party may move for summary judgment, identifying each claim or defense 19 —or the part of each claim or defense—on which summary judgment is sought. The 20 court shall grant summary judgment if the movant shows that there is no genuine 21 1 This supplemental response filed by Plaintiff details issues that have arisen since the filing of the 22 complaint. These documents therefore are irrelevant to the issue before the Court: whether Plaintiff 23 exhausted his administrative remedies before filing the present complaint. Defendant moved ex parte for leave to file a supplemental reply to respond to Plaintiff’s supplemental response. (ECF 24 No. 23.) Because the Court finds Plaintiff’s supplemental response is largely irrelevant, it need not receive a response by the NRC. The Court therefore DENIES the NRC’s ex parte motion, 25 (ECF No. 23). Plaintiff also requests the Court take judicial notice of various documents. The documents 26 relate to the merits of Plaintiff’s FOIA requests. (ECF No. 13-2.) Plaintiff states the documents 27 should be noticed because “it is critical that the Court understand the context [behind the requests] and explain why the NRC summarily dismissed” Plaintiff’s administrative appeal. (Id. at 1.) The 1 dispute as to any material fact and the movant is entitled to judgment as a matter of 2 law.” Fed. R. Civ. P. 56(a). 3 IV. ANALYSIS 4 “FOIA gives individuals a judicially-enforceable right of access to 5 government agency documents.” Lion Raisins v. Dep’t of Agric., 354 F.3d 1072, 6 1079 (9th Cir. 2004), overruled on other grounds by Animal Legal Def. Fund v. U.S. 7 Food & Drug Admin., 836 F.3d 987, 990 (9th Cir. 2016). FOIA provides, among 8 other things, that “each agency, upon any request for records which (i) reasonably 9 describes such records and (ii) is made in accordance with published rules stating the 10 time, place, fees (if any), and procedures to be followed, shall make the records 11 promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Because FOIA cases 12 rarely involve material factual disputes, they “typically and appropriately are decided 13 on motions for summary judgment.” Defs. of Wildlife v. U.S. Border Patrol, 623 F. 14 Supp. 2d 83, 97 (D.D.C. 2009); see Shannahan v. I.R.S., 637 F. Supp. 2d 902, 912 15 (W.D. Wash. 2009).2 16 The NRC moves for summary judgment on the ground that Plaintiff has failed 17 to exhaust administrative remedies. 18 Under FOIA, when a member of the public makes a request for government 19 records, the agency must, “within 20 days (excepting Saturdays, Sundays, and legal 20 public holidays) after receipt of any such request[,]” determine whether to comply 21 with the request and “immediately notify” the requester of the decision. 5 U.S.C. 22 § 552(a)(6)(A)(i). Under what has been deemed the “constructive exhaustion” 23 provision, if an agency fails to respond to a request within the time limit, a requester 24 “shall be deemed to have exhausted his administrative remedies.” Id. 25 2 Normally, “the standard for summary judgment in a FOIA case requires a two-stage inquiry.” 26 L.A. Times Commc’ns, LLC v. Dep’t of Army, 442 F. Supp. 2d 880, 893 (C.D. Cal. 2006). The 27 court’s first step in this inquiry is to determine “whether the agency has met its burden of proving that it fully discharged its obligations under FOIA.” Id. Here, the agency’s argument is that it was 1 § 552(a)(6)(C)(i). 2 The NRC argues that Plaintiff improperly filed suit before this 20-day period 3 had expired and therefore the complaint must be dismissed. Indeed, Plaintiff did file 4 suit within this time frame—he submitted his request on March 19, 2019 and filed 5 suit on March 29, 2019. When a plaintiff prematurely files his complaint before the 6 FOIA claims accrue, he necessarily does not exhaust his administrative remedies 7 before filing his FOIA claims in court. Said v. Gonzales, No. C06-986MJP, 2007 8 WL 2789344, at *5 (W.D. Wash. Sept. 24, 2007). 9 Plaintiff does not appear to dispute that he filed his complaint prematurely. 10 Plaintiff undoubtedly knows that the NRC has 20 days to respond to a FOIA request, 11 and he knows that he filed his complaint before this time had expired. Plaintiff’s 12 arguments in response to the NRC’s Motion are: (1) the Court should waive the 13 requirement of exhaustion of administrative remedies and assume jurisdiction over 14 the case; and (2) any further request to exhaust administrative remedies would be 15 futile. (“Opp’n,” ECF No. 13.) 16 Plaintiff’s arguments are borderline ridiculous. Within two days of receiving 17 Plaintiff’s request, the NRC notified Plaintiff that producing documents in such a 18 short time frame was not possible, but that it would begin to work on the request. 19 The NRC did not, as Plaintiff argues, engage in “dilatory and stonewall tactics.” (Id. 20 at 13.) Plaintiff made an unreasonable request, and the NRC began to respond to it 21 in a reasonable manner. Allowing a party to file suit before the agency has been 22 allowed the statutory time limit to respond to the request completely ignores the 23 purpose of administrative exhaustion. The Court declines to waive or ignore the 24 requirement that Plaintiff exhaust his administrative remedies. 25 V. CONCLUSION 26 For the foregoing reasons, the Court GRANTS Defendant’s Motion for 27 Summary Judgment, (ECF No. 12). The Court also DENIES Defendant’s Ex Parte 1 ||to close the case. 2 IT IS SO ORDERED. 3 f 4 ||DATED: February 18, 2020 Uy ilAg (Lyohasrks 5 United Mtates District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28