Aguirre v. United States Nuclear Regulatory Commission

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 MICHAEL J. AGUIRRE, Case No. 19-cv-01102-BAS-BLM 11 Plaintiff, ORDER GRANTING DEFENDANT’S 12 v. MOTION TO DISMISS FIRST AMENDED COMPLAINT 13 U.S. NUCLEAR REGULATORY WITH PREJUDICE COMMISSION, 14 [ECF No. 18] Defendant. 15 16 Before the Court is Defendant U.S. Nuclear Regulatory Commission’s (“NRC”) 17 Motion to Strike and Motion to Dismiss Plaintiff’s First Amended Complaint, or in the 18 alternative, Motion for Summary Judgment (“Motion”). (ECF No. 18.) For the reasons 19 explained below, the Court GRANTS NRC’s Motion and DISMISSES this action with 20 prejudice. 21 I. BACKGROUND 22 Plaintiff filed this action on June 12, 2019 under the Freedom of Information Act 23 (“FOIA”), seeking an order compelling production of records from NRC in response to 24 Plaintiff’s FOIA request about safety violations at the San Onofre Nuclear Waste Plant. 25 (Compl., ECF No. 1.) After oral argument, the Court dismissed the Complaint because 26 Plaintiff had failed to exhaust administrative remedies or show that waiver of exhaustion 27 was warranted. (Order Granting Mot. to Dismiss (“Order”) at 4–5, ECF No. 15.) The Court 28 1 granted Plaintiff leave to amend “to the extent he [could] show that he has sufficiently 2 exhausted his administrative remedies.” (Id. at 6.) 3 Plaintiff then filed a First Amended Complaint (“FAC”) on March 10, 2020. (ECF 4 No. 17.) The FAC seeks to compel disclosure of the original FOIA request that was the 5 subject of Plaintiff’s Complaint and three additional FOIA requests. (FAC ¶ 10.) NRC’s 6 FOIA officer confirms that Plaintiff has not administratively appealed the responses to any 7 FOIA requests that are the subject of his FAC. (Decl. of Tina Ennis in supp. of Def.’s Mot. 8 ¶ 9, ECF No. 18-1.) In response, Plaintiff once again does not dispute that he has not filed 9 any administrative appeals. Instead, Plaintiff alleges that his conversations with NRC’s 10 FOIA officers and legal counsel constitute administrative exhaustion (FAC ¶¶ 78–93), and, 11 in the alternative, rehashes much of the same waiver and futility arguments regarding 12 exhaustion that were stated in his original Complaint and rejected by the Court. (See id. ¶¶ 13 94–99 (alleging collusion, NRC’s failure to produce any responses, and its use of the 14 appeals system to “prolong the process and delay production” with no intention to grant the 15 requests).) 16 II. DISCUSSION 17 The Court addresses each of Plaintiff’s arguments in turn. First, as NRC notes, 18 Plaintiff’s meet-and-confer exchanges with legal counsel do not constitute exhaustion of 19 the administrative process. Second, the Court previously rejected Plaintiff’s remaining 20 arguments regarding NRC’s alleged collusion and nonresponsiveness as a basis for waiver. 21 (See Order at 4–5.) Lastly, Plaintiff’s conclusory allegation that the NRC’s appeals system 22 is not a meaningful administrative process but rather a delay tactic is unsupported by any 23 factual content and does not allow the Court to draw any reasonable inferences in Plaintiff’s 24 favor regarding the futility of that process. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 25 Thus, the Court concludes that Plaintiff has once again failed to satisfy the exhaustion 26 requirement. 27 The Court previously made clear that Plaintiff’s failure to administratively appeal 28 constituted a failure to exhaust administrative remedies in this case and was not subject to 1 ||} waiver. (Order at 4-5.) Since Plaintiff has still not administratively appealed his claims. 2 has still stated no sufficient basis for waiver, the Court once again finds dismissal □□□ 3 ||this action appropriate. See Teplitsky v. Dep’t of Justice, 127 F.3d 1106 (9th Cir. 1997, 4 ||(affirming district court’s dismissal for nonexhaustion where plaintiff “did no 5 administratively appeal the initial denial of his FOIA request’). 6 The Court also made clear that its decision to grant leave to amend was conditionec 7 Plaintiff's ability to demonstrate exhaustion. (Order at 6.) Therefore, because Plaintifi 8 || filed his FAC without exhausting administrative remedies, he failed to comply with Cour 9 ||orders. This forms an additional basis for dismissal. See Kishor v. Geaghty, 176 F. App’x 10 || 827 (9th Cir. 2006) (holding that district courts can dismiss actions when parties “failed tc 11 ||}comply with court orders and the rules of procedure requiring him to amend his complaint 12 include only those claims for which he had exhausted administrative remedies prior tc 13 || suit’) (citing Fed. R. Civ. P. 41(b)). 14 || 01. CONCLUSION AND ORDER 15 Accordingly, the Court GRANTS NRC’s Motion to Dismiss the FAC (ECF No. 18, 16 |}and DISMISSES WITH PREJUDICE the FAC for failing to exhaust administrative 17 remedies and, by extension, failing to comply with Court orders. The Clerk is instructed tc 18 || close the case. 19 IT IS SO ORDERED. 20 J 21 || DATED: May 1, 2020 [y A (Ayyh A □ 22 United States District Judge 23 24 25 26 27 28