Aguirre v. United States Nuclear Regulatory Commission

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 MICHAEL J. AGUIRRE, Case No. 19-cv-1102-BAS-BLM 12 Plaintiff, ORDER GRANTING 13 DEFENDANT’S MOTION TO DISMISS 14 v. [ECF No. 7] U.S. NUCLEAR REGULATORY 15 COMMISSION, 16 Defendant. 17 18 Plaintiff Michael Aguirre filed a complaint against Defendant United States 19 Nuclear Regulatory Commission (“NRC”). In sum, in May 2019, Plaintiff requested 20 documents from NRC pursuant to the Freedom of Information Act (“FOIA”), 5 21 U.S.C. § 552. Plaintiff seeks a declaratory judgment that the NRC’s failure to 22 respond to his requests was unlawful, an order compelling the NRC to release the 23 documents, and attorney’s fees. (“Compl.,” ECF No. 1.) 24 I. FACTUAL ALLEGATIONS 25 Plaintiff alleges safety violations are occurring on a nuclear site in San Diego, 26 California that the NRC is charged with overseeing. (Compl. ¶ 4.) In May 2019, 27 Plaintiff sent the NRC a request to produce “any records or communications related 1 California Edison (SCE), as a result of FOIA requests related to the safety violations 2 occurring at San Onofre nuclear waste site in San Diego, CA.” (Id. ¶ 17.) The NRC 3 assigned the request the identification number NRC-2019-000304. (Id.) On June 11, 4 2019, the NRC told Plaintiff that, “[w]henever records received from a licensee are 5 determined to be responsive to a FOIA request, in accordance with the FOIA, 5 6 U.S.C. 552 and Executive Order 12,600, our office informs the licensee of the FOIA 7 request and solicits their views respecting their proprietary (or other) interests in the 8 records.” (Id. ¶ 19.) Because the NRC determined that records responsive to 9 Plaintiff’s requests were from a licensee, it referred the records to the licensee 10 Southern California Edison (“SCE”). The NRC stated that SCE was reviewing the 11 records, and “[t]he disposition of these records will be provided in our agency’s 12 response to the respective FOIA requests.” (Id.) “To the extent our office has 13 received SCE’s input as to the nature of their interests (if any) in the records, such 14 input will be considered, along with NRC staff’s disclosure recommendations, by the 15 FOIA Officer in making her disclosure determination on the SCE records.” (Id.) 16 Plaintiff challenges this action, arguing that the NRC should not have 17 “request[ed] permission” from SCE (the “nuclear waste owner”) before releasing the 18 documents. (Id. ¶ 20.) Plaintiff filed this suit in June 2019. Defendant moves to 19 dismiss the complaint for failure to state a claim (based on lack of exhaustion of 20 administrative remedies) and for lack of jurisdiction (based on mootness). (“Mot.,” 21 ECF No. 7.) Plaintiff opposes the Motion. (“Opp’n,” ECF No. 8.)1 22 The Court held oral argument on this Motion on February 18, 2020. For the 23 24 1 Defendant filed a declaration and exhibits as a part of its Motion to Dismiss. (ECF No. 7-2.) 25 Defendant does not provide a reason why the Court may consider such documents at the motion to dismiss stage. In any event, the Court did not consider the documents in evaluating Defendant’s 26 Motion. 27 Further, Plaintiff requests the Court take judicial notice of a news article. (ECF No. 8-1.) Plaintiff states the article should be noticed because “it is critical that the Court understand” the 1 reasons discussed below, the Court GRANTS Defendant’s Motion to Dismiss, (ECF 2 No. 7). 3 II. LEGAL STANDARD 4 A complaint must plead sufficient factual allegations to “state a claim to relief 5 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 6 quotation marks and citations omitted). “A claim has facial plausibility when the 7 plaintiff pleads factual content that allows the court to draw the reasonable inference 8 that the defendant is liable for the misconduct alleged.” Id. 9 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 10 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. 11 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court 12 must accept all factual allegations pleaded in the complaint as true and must construe 13 them and draw all reasonable inferences from them in favor of the nonmoving party. 14 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). To avoid a Rule 15 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, 16 it must plead “enough facts to state a claim to relief that is plausible on its face.” Bell 17 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A Rule 12(b)(6) dismissal may 18 be based on either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient 19 facts alleged under a cognizable legal theory.’” Johnson v. Riverside Healthcare 20 Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police 21 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). 22 III. ANALYSIS 23 “FOIA gives individuals a judicially-enforceable right of access to 24 government agency documents.” Lion Raisins v. Dep’t of Agric., 354 F.3d 1072, 25 1079 (9th Cir. 2004), overruled on other grounds by Animal Legal Def. Fund v. U.S. 26 Food & Drug Admin., 836 F.3d 987, 990 (9th Cir. 2016). FOIA provides, among 27 other things, that “each agency, upon any request for records which (i) reasonably 1 time, place, fees (if any), and procedures to be followed, shall make the records 2 promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). However, exhaustion 3 of administrative remedies is a prerequisite to filing a lawsuit under FOIA “so that 4 the agency has an opportunity to exercise its discretion and expertise on the matter 5 and to make a factual record to support its decision.” Oglesby v. U.S. Dep’t of Army, 6 920 F.2d 57, 61 (D.C. Cir. 1990). “If the records requester fails to exhaust 7 administrative remedies, the lawsuit may be dismissed for lack of subject matter 8 jurisdiction.” Parker v. U.S. Dep’t of Justice, No. CIV S-10-0065 KJM, 2012 WL 9 864784, at *10 (E.D. Cal. Mar. 13, 2012) (citing In re Steele, 799 F.2d 461, 466 (9th 10 Cir. 1986). 11 The NRC moves for dismissal on the grounds that Plaintiff has failed to 12 exhaust administrative remedies before filing suit. The NRC argues that Plaintiff did 13 not exhaust his administrative remedies because he submitted his request on May 28, 14 2019, the agency responded on June 11, 2019, and Plaintiff filed his complaint the 15 very next day without filing an administrative appeal. (Mot. at 4.) “[A] requester 16 under FOIA must file an administrative appeal within the time limit specified in an 17 agency’s FOIA regulations or face dismissal of any lawsuit complaining about the 18 agency’s response.” ExxonMobil Corp. v Dept. of Commerce, 828 F. Supp. 2d 97, 19 104 (D.D.C. 2011) (citing Oglesby, 920 F.2d at 65 n.9). Plaintiff does not seem to 20 dispute that he did not file an administrative appeal, instead, he argues that the Court 21 can exercise jurisdiction over this case even if he did not exhaust, and that exhaustion 22 would be futile. (Opp’n at 13–15.) 23 A. Court Waiver of Exhaustion 24 Exhaustion under FOIA is a jurisprudential consideration, rather than a 25 jurisdictional one. Yagman v. Pompeo, 868 F.3d 1075, 1083 (9th Cir. 2017). Plaintiff 26 requests that the Court waive the exhaustion requirement. (Opp’n at 13.) Generally, 27 courts may waive exhaustion in cases where “where a claimant’s interest in having a 1 is inappropriate.” Mathews v. Eldridge, 424 U.S. 319, 330 (1976). Plaintiff cites no 2 cases where a court waived administrative exhaustion in a FOIA case. 3 The purpose of the exhaustion doctrine is to allow “the opportunity for the 4 agency to exercise its discretion and expertise and the opportunity to make a record 5 for the district court to review.” In re Steele, 799 F.2d at 466. Waiving exhaustion 6 deprives the agency of this opportunity. See Facebook Inc. & Subsidiaries v. I.R.S., 7 No. 16-cv-5884-LB, 2017 WL 2630086, at *7 (N.D. Cal. June 19, 2017). When 8 possible, agencies should be given a chance to fully analyze FOIA requests without 9 court involvement. 10 Plaintiff argues that the NRC has engaged in “collusive behavior and evasive 11 tactics” and therefore the Court should not require him to exhaust. (Opp’n at 15.) 12 This argument is illogical—how can Plaintiff contend that the NRC is evading his 13 request when he barely gave it a chance to respond to him in the first place? The 14 point of administrative exhaustion is to allow the NRC to review Plaintiff’s case, 15 respond to him, and form a record. If Plaintiff does not allow this to happen, he 16 cannot seriously argue that the NRC is stonewalling him or not properly responding 17 to his requests. The Court finds no reason to waive the administrative exhaustion 18 requirement. 19 B. Futility of Exhaustion 20 Plaintiff next argues that exhaustion of remedies would be futile. (Opp’n at 21 15.) A claimant can show futility of administrative review if he shows that 22 “[r]equiring him to exhaust administrative remedies would not serve the policies 23 underlying exhaustion.” Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987). 24 Specifically, courts are empowered to find futility where the claimant demonstrates 25 that there is “nothing to be gained from permitting the compilation of a detailed 26 factual record, or from agency expertise.’” Id. (quoting Bowen v. City of New York, 27 476 U.S. 467, 485 (1986)). “[T]he futility exception to the exhaustion requirement 1 ||record.” Joint Bd. of Control of Flathead, Mission & Jocko Irrigation Dists. v. United 2 || States, 862 F.2d 195, 200 (9th Cir. 1988). 3 Plaintiff argues exhaustion would be futile because the “NRC’s actions 4 |/illustrate collusion with the nuclear waste owner” in allowing the owner “to decide 5 ||which records should be disclosed to the public.” (Opp’n at 16-17.) However, 6 || Plaintiff does not dispute that the NRC has released some documents 1n response to 7 ||his request. (Ud. at 17.) Plaintiff argues that the NRC continues to improperly 8 || withhold some documents, but this does not show that there is no point in the Court 9 || permitting the NRC to compile a detailed factual record. Nor can the Court find that 10 |/it would have been futile for Plaintiff to appeal the NRC determination or at least 11 ||}wait for the NRC to produce documents before filing suit. Plaintiff has not 12 |/established futility. 13 ||IV. CONCLUSION 14 Plaintiff has failed to exhaust his administrative remedies before filing this 15 ||/suit.2 Therefore, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s 16 ||case. The Court grants Plaintiff leave to amend to the extent he can show that he has 17 sufficiently exhausted his administrative remedies. Any amended complaint must be 18 ||filed within 21 days of the date of this order. Failure to file an amended complaint 19 || by this time will result in this case being dismissed. 20 IT IS SO ORDERED. 21 , 22 || DATED: February 18, 2020 ( ytd A (Bashar. □ 23 United Mtates District Judge 24 25 26 27 28 ||? Because the Court makes this finding, it need not address Defendant’s argument that Plaintiff’s case is moot because the NRC already produced responses.