Aguirre v. U.S. Nuclear Regul. Comm'n, Nos. 20-55177, 20-55179, 20-55487, 2021 WL 3716793 (9th Cir. Aug. 23, 2021) (Callahan, J.)

Aguire v. U.S. Nuclear Regul. Comm'n, Nos. 20-55177, 20-55179, 20-55487, 2021 WL 3716793 (9th Cir. Aug. 23, 2021) (Callahan, J.)

Re:  Request for incident at nuclear generating station involving defective spent-fuel canister

Disposition:  Affirming district court's grant of government's motion to dismiss one FOIA request; affirming district court's grant of government's motion for summary judgment as to three other FOIA requests
 

• Litigation Considerations, Exhaustion of Administrative Remedies:  "[The Court of Appeals for the Ninth Circuit] first address[es] the applicability of FOIA's constructive-exhaustion provision."  The court holds that, "[w]hile [it has] not addressed the issue," "[it] now join[s] [its] sister circuits, holding that a requestor must exhaust his administrative remedies under FOIA so long as an agency properly responds before suit is filed."  Here, the court relates that "[t]he NRC received [the requester'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 [the requester'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."  The court rejects that position.
  
  Turning to actual exhaustion, regarding one request, the court relates that "[the requester] refused to clarify what he meant by dry cask storage 'operations.'"  "Trying to assess an appropriate processing fee, the agency supplied him with two possible readings of the term, asking which he intended."  "Rather than answer this simple question – even to say that, in his view, no clarification was needed – [the requester] balked, remaining silent until after the agency consolidated and closed [this request]."  "At that point [the requester] still could have reached out to the agency or otherwise challenged the closure of his requests."  "He instead sued, 'cut[ting] off the agency's power to correct or rethink initial misjudgments or errors.'"  "Under these circumstances, and in keeping with the aims of exhaustion, [the court] agree[s] with the district court that [the requester's] recalcitrance deprived the NRC of 'a fair and full opportunity to adjudicate [his] claims.'"  Regarding another request, the court relates that "NRC acknowledged [the requester's] willingness to pay up to $1,500 but informed him that, because processing costs totaled $563.60, he would have to pay in advance."  "The agency added that failing to do so would lead to the closure of his case."  "[The requester] responded with a letter attacking the agency's delayed response and production timeline, but nowhere did he dispute the agency's fee determination."  "Nor did he ever pay the $563.60; narrow his request to avoid the $250 threshold . . . ; or seek a fee waiver . . . ."  "Given his failure to pursue these options, the agency properly closed his request."  Regarding a third request, the court finds that "[the requester] also failed to exhaust his remedies . . . ."  "As explained, FOIA gives agencies twenty working days to respond to requests and requires parties to administratively appeal agency determinations before turning to the courts."  "Yet [the requester] waited just ten days before suing the NRC and never internally appealed the adequacy of the agency's eventual production."  "His lawsuit was thus premature."  Regarding a fourth request, "[the court] affirm[s] the dismissal of [the requester's] suit . . . ."  "The NRC completed processing that request on June 11, 2019, and [the requester] sued the agency the very next day, challenging its production as incomplete."  "But seeing as he proceeded straight to court without having administratively appealed the agency's response, this lawsuit, too, was premature."
   
• Litigation Considerations, Vaughn Index/Declaration:  Regarding the requester's arguments concerning the need for a Vaughn Index, the Court of Appeals for the Ninth Circuit holds that "given [the requester's] failure to exhaust, the district court had no need to reach that question."  "Accordingly, a Vaughn index would not have served any purpose, and [the requester's] request for one was properly denied."
   
• Litigation Considerations, Pattern-or-Practice Claims:  "Finally, [the Court of Appeals for the Ninth Circuit holds that the requester's] claims are not saved by his vague assertion that the NRC has a 'pattern or practice' of improperly delaying its production of responsive records."  "Although pattern-or-practice claims are viable under FOIA, and can survive even an agency's production of documents, . . . [the requester] does not adequately allege such a claim."  "His complaints seek orders requiring the NRC to disclose records responsive to his specific requests, rather than injunctive relief against the agency's handling of FOIA requests more generally."