Aguirre v. U.S. Nuclear Regulatory Comm'n, No. 19-1102, 2020 WL 804292 (S.D. Cal. Feb. 18, 2020) (Bashant, J.)

Aguirre v. U.S. Nuclear Regulatory Comm'n, No. 19-1102, 2020 WL 804292 (S.D. Cal. Feb. 18, 2020) (Bashant, J.)

Re:  Request for records referred to or communications with private company resulting from FOIA requests concerning safety violations

Disposition:  Granting defendant's motion to dismiss

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "Plaintiff has failed to exhaust his administrative remedies before filing this suit."  The court relates that "NRC argues that Plaintiff did not exhaust his administrative remedies because he submitted his request on May 28, 2019, the agency responded on June 11, 2019, and Plaintiff filed his complaint the very next day without filing an administrative appeal."  The court relates that "Plaintiff does not seem to dispute that he did not file an administrative appeal, instead, he argues that the Court can exercise jurisdiction over this case even if he did not exhaust, and that exhaustion would be futile."  First, "[t]he Court finds no reason to waive the administrative exhaustion requirement."  Second, the court finds that "Plaintiff argues that the NRC continues to improperly withhold some documents, but this does not show that there is no point in the Court permitting the NRC to compile a detailed factual record."  "Nor can the Court find that it would have been futile for Plaintiff to appeal the NRC determination or at least wait for the NRC to produce documents before filing suit."