Aguirre v. U.S. Nuclear Regulatory Comm'n

• Decision Date: 23 August 2021
• Docket Number: No. 20-55487,Nos. 20-55177,20-55179,s. 20-55177,20-55487
• Citation: 11 F.4th 719
• Parties: Michael J. AGUIRRE, Plaintiff-Appellant, v. UNITED STATES NUCLEAR REGULATORY COMMISSION ; Does, 1 to 10, inclusive, Defendants-Appellees. Michael J. Aguirre, Plaintiff-Appellant, v. United States Nuclear Regulatory Commission, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

11 F.4th 719

Michael J. AGUIRRE, Plaintiff-Appellant,

v.UNITED STATES NUCLEAR REGULATORY COMMISSION ; Does, 1 to 10, inclusive, Defendants-Appellees.

Michael J. Aguirre, Plaintiff-Appellant,

v.United States Nuclear Regulatory Commission, Defendant-Appellee.

Nos. 20-55177

20-55179

No. 20-55487

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2021 Pasadena, California

Filed August 23, 2021

Maria C. Severson (argued) and Michael J. Aguirre, Aguirre & Severson LLP, San Diego, California, for Plaintiff-Appellant.

Rebecca Church (argued), Assistant United States Attorney; Katherine Lind Parker, Chief, Civil Division; Robert S. Brewer, Jr., United States Attorney; United States Attorney's Office, San Diego, California; for Defendant-Appellee United States Nuclear Regulatory Commission.

Before: Richard C. Tallman and Consuelo M. Callahan, Circuit Judges, and Dana L. Christensen,^* District Judge.

CALLAHAN, Circuit Judge:

These Freedom of Information Act (FOIA) cases concern Michael Aguirre's repeated attempts to obtain from the U.S. Nuclear Regulatory Commission (NRC) records relating to the San Onofre Nuclear Generating Station. The district court dismissed or entered summary judgment against all of Aguirre's claims for failing to exhaust administrative remedies, and we affirm.

I.

Over the past few years Aguirre has filed at least fourteen FOIA requests with the NRC, all relating to the San Onofre Nuclear Generating Station and, more specifically, to an August 2018 incident involving a misaligned spent-fuel canister. While being lowered into a storage vault, the canister became stuck and, for about forty-five minutes, hung suspended over an eighteen-foot drop. The incident caused the NRC to temporarily halt the facility's waste-transfer operations, but to Aguirre's dismay those operations resumed, for a time, in 2019. These consolidated appeals concern four of Aguirre's requests for information.

A. Request Nos. 154 & 155

Aguirre submitted the first such request, Request 154, on December 21, 2018. It asked the NRC for records relating to the agency's investigation into the misalignment incident. It further requested records that "the NRC reviewed related to dry cask storage operations." The next day, Aguirre submitted his second request, Request 155, seeking any records showing that Southern California Edison, the facility's owner and the NRC's licensee, reported the defective spent-fuel canister. In both requests, Aguirre expressed his willingness to pay up to $1,500 for the agency's efforts.

The NRC responded on January 30, 2019, apologizing for the delay and stating that it would produce responsive records by February 28. In its letter, the NRC also informed Aguirre that it had categorized his request as "commercial," meaning that he would be charged for the agency's search-and-review time. A couple weeks later, the NRC followed up that letter with another stating that, because the costs of completing Request 155 exceeded $250, the agency would not proceed without advance payment. The NRC added that Aguirre's failure to respond by February 20 would lead to the closure of his request.

Aguirre replied on February 14 with what he characterized as an "appeal and request to expedite" his requests. He protested the NRC's "dilatory response and dilatory timeline" and demanded that the agency assure him within ten days that it would accelerate its production of responsive records. If it did not, he stated, he would sue. Aguirre's letter made no mention of the agency's requirement that he pay in advance for Request 155. The NRC acknowledged but did not otherwise respond to Aguirre's letter.

Later in February the NRC asked Aguirre to clarify the scope of Request 154. By "dry cask storage operations," the agency inquired, did he narrowly mean the handling of the canisters or all activity involving them, including design controls and training? The agency said that Aguirre's answer would help determine the associated processing fees. On February 22, after Aguirre failed to provide payment for Request 155 and clarify Request 154, the agency consolidated the requests for fee purposes and administratively closed them both.

As threatened, Aguirre sued, asking the court to order the production of the sought-after records. The NRC moved for dismissal based on Aguirre's alleged failure to exhaust his administrative remedies. Because the agency attached evidentiary exhibits to its motion, the district court treated it as one for summary judgment, see Fed. R. Civ. P. 12(d), which the court granted. Aguirre appealed.

B. Request No. 239

Several days after filing his first suit, on March 19, 2019, Aguirre submitted the third request at issue in this appeal, Request 239. It sought materials regarding a public meeting the NRC was holding later in the month. Aguirre told the agency to produce the records within four days, lest he "be forced to seek immediate judicial relief." The NRC responded that it could not comply with such a short deadline because its regulations gave the licensee, as the entity from which some records originated, thirty days to object to the disclosure of confidential information. The NRC further asserted that, to expedite his request, Aguirre needed to show a "compelling need" for the information, and in the agency's view Request 239 presented no such circumstances. The NRC added that it could process the request in the ordinary course.

After the NRC's meeting took place, the agency asked Aguirre if he still wanted the documents. He said that he did but demanded them by noon of that day. The agency rejected this request as unworkable due to its licensee-review requirements. Dissatisfied, Aguirre filed suit on March 29. The NRC nonetheless continued processing Request 239 and in April provided Aguirre with an interim production of certain relevant records while it waited on the licensee. Although the agency estimated that it would complete its response to Request 239 in May, it wound up taking another few months.

The NRC meanwhile moved to dismiss Aguirre's second suit, alleging that he had failed to exhaust his administrative remedies. Again converting the NRC's motion to one for summary judgment, the district court granted it, holding that Aguirre had indeed failed to exhaust by suing the agency before its statutory time to respond had expired. Aguirre appealed.

C. Request No. 304

Aguirre submitted the fourth disputed request, Request 304, on May 28, 2019. It sought records exchanged between the NRC and its licensee "as a result of" other FOIA requests related to the misalignment incident. The NRC responded a couple weeks later, producing certain documents and withholding others. The next day, Aguirre sued the NRC a third time, seeking to compel the disclosure of withheld records. The agency successfully moved to dismiss that suit for failure to exhaust, Aguirre appealed, and we consolidated his three cases.

II.

We review de novo summary judgment and dismissal orders. Folkens v. Wyland Worldwide, LLC , 882 F.3d 768, 773 (9th Cir. 2018) ; Gingery v. City of Glendale , 831 F.3d 1222, 1226 (9th Cir. 2016). We likewise review de novo questions concerning FOIA's construction. TPS, Inc. v. U.S. Dep't of Def. , 330 F.3d 1191, 1194 (9th Cir. 2003).

III.

Enacted to "ensure an informed citizenry," NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978), FOIA requires federal agencies to disclose information to the public upon request, 5 U.S.C. § 552(a)(3)(A). When an agency receives such a request, it has twenty working days to decide whether to comply and inform the requestor of its decision. Id. § 552(a)(6)(A)(i). A requestor dissatisfied with an agency's response can challenge it in court but must first exhaust available administrative remedies, including an appeal within the agency. Id. § 552(a)(6)(A)(i)–(ii), (C)(i). This serves to "protect[ ] administrative agency authority and promot[e] judicial efficiency." McCarthy v. Madigan , 503 U.S. 140, 145, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). It also allows agencies to correct their mistakes and creates a useful record "should judicial review become necessary." Amerco v. NLRB , 458 F.3d 883, 888 (9th Cir. 2006). Exhaustion under FOIA is a prudential rather than jurisdictional consideration, however, so courts can waive the requirement when, for example, further administrative proceedings would prove futile. Yagman v. Pompeo , 868 F.3d 1075, 1083–84 (9th Cir. 2017).

A. Request Nos. 154 & 155

We first address the applicability of FOIA's constructive-exhaustion provision, under which requestors are deemed to have exhausted their remedies when an agency misses a statutory deadline. 5 U.S.C. § 552(a)(6)(C)(i) ; see Hajro v. USCIS , 811 F.3d 1086, 1092 (9th Cir. 2016). The NRC received Aguirre's requests on December 26, 2018, but did not respond to them until January 30, 2019—five days past FOIA's twenty-working-day window. Per Aguirre's understanding of constructive exhaustion, the NRC's initial tardiness freed him from having to further engage with the agency before filing suit, notwithstanding its belated efforts to address his requests.

Courts have, however, rejected this position where, as here, an agency responds late but before the requestor sues. When that occurs, exhaustion is still required. The D.C. Circuit explained the rationale for this rule in Oglesby v. U.S. Dep't of the Army , 920 F.2d 57 (D.C. Cir. 1990), the leading decision on the point:

We believe that where a requester has chosen to wait past the [twenty]-day period until the agency has responded, Congress intended that the administrative route be pursued to its end. It did not mean for the court to take over the agency's decisionmaking role in midstream or to interrupt the agency's appeal process when the agency has already invested time, resources, and expertise into the effort of responding.

Id. at 64. As the Oglesby court explained, a contrary rule would "allow[ ]...