Aguirre v. U.S. Nuclear Regulatory Comm'n, No. 19-495, 2020 WL 818878 (S.D. Cal. Feb. 19, 2020) (Bashant, J.)

Aguirre v. U.S. Nuclear Regulatory Comm'n, No. 19-495, 2020 WL 818878 (S.D. Cal. Feb. 19, 2020) (Bashant, J.)

Re:  Request for certain records concerning site that stores nuclear waste in San Diego, California

Disposition:  Granting defendant's motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  "[T]he Court . . . find[s] that the NRC's untimely response does not mean Plaintiff is excused from the exhaustion requirement."  The court notes that while defendant was late to respond to plaintiff's requests, "Plaintiff did not file suit until . . . after [defendant] emailed him [its response]."  The court notes that "'once the agency responds to the FOIA request, the requester must exhaust his administrative remedies before seeking judicial review.'"  The court also "declines to waive the administrative exhaustion requirement" and notes that "Plaintiff cites no cases where a court waived administrative exhaustion in a FOIA case."  The court also notes that "Plaintiff focuses on the merits of his FOIA requests in arguing that the NRC is a bad actor in this whole matter."  "This is irrelevant."  "The allegations of what the NRC is doing wrong (i.e. why Plaintiff requested documents through FOIA in the first place), is separate and apart from any evidence that Plaintiff should be permitted to evade administrative exhaustion."
  
  Regarding whether plaintiff actually exhausted his administrative remedies, as to plaintiff's first request, the court finds that "it is undisputed that Plaintiff did not pay the advance fee."  "He did not inform the NRC that he believed he was not required to pay that fee, nor did he request a fee waiver."  "Because he has not paid the required fee, he has not exhausted his administrative remedies."  As to plaintiff's second request, the court finds that "NRC requested clarification, and Plaintiff did not respond, thus failing to perfect his request."