Pistorino v. HHS, No. 24-03112, 2024 WL 4181975 (N.D. Cal. Sept. 3, 2024) (Tse, Mag. J.)

Pistorino v. HHS, No. 24-03112, 2024 WL 4181975 (N.D. Cal. Sept. 3, 2024) (Tse, Mag. J.)

Re:  Request for certain contracts and coverage codes

Disposition:  Granting defendant’s motion to dismiss plaintiff’s complaint without leave to amend

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that “[plaintiff] hasn’t administratively exhausted his FOIA claim.”  “The agency told him it couldn’t locate records responsive to his FOIA request.”  “[Plaintiff] then filed this civil action.”  “Before coming to court, he was required to file ‘an appeal within the agency.’”  Responding to plaintiff’s objection that “[b]ecause the agency’s response was untimely, . . . he wasn’t required to file an administrative appeal before coming to court,” the court holds that “[s]ince the agency responded before [plaintiff] filed a civil action, he was required to file an administrative appeal before coming to court.”  “The agency’s ‘initial tardiness’ didn’t ‘free[ ] [plaintiff] from having to further engage with the agency before filing suit.’”