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Case TitleAguirre v. United States Nuclear Regulatory Commission et al
DistrictSouthern District of California
CitySan Diego
Case Number3:2019cv01102
Date Filed2019-06-12
Date Closed2020-05-01
JudgeJudge Cynthia Bashant
PlaintiffMichael J. Aguirre
Case DescriptionMichael Aguirre submitted a FOIA request to the Nuclear Regulatory Commission for records concerning communications with Southern California Edison pertaining to the San Onofire nuclear waste site. The agency acknowledged receipt of the request and told Aguirre that it would need to send potentially proprietary information to SCE for its confidentiality claims. After the agency failed to respond further, Aguirre filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantUnited States Nuclear Regulatory Commission
DefendantDOES 1 to 10 inclusive
AppealNinth Circuit 20-55487
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [15]
FOIA Project Annotation: Attorney Michael Aguirre submitted a FOIA request to the NRC for records related t documents the agency referred to Southern California Edison, the operator of a nuclear facility near San Diego, about a safety violation at the facility. The agency told Aguirre that the records needed to be provided to SCE as part of the pre-notification disclosure process. Aguirre then filed suit. The agency argued that Aguirre failed to exhaust his administrative remedies because he did not file an administrative appeal. Aguirre argued that because the agency had engaged in "collusive behavior and evasive tactics," the court should not require exhaustion. District Court Judge Cynthia Bashant disagreed, noting that "this argument is illogical " how can Plaintiff contend that the NRC is evading his request when he barely gave it a chance to respond in the first place? The pointed of administrative exhaustion is to allow the NRC to review Plaintiff's case, respond to him, and form a record. If Plaintiff does not allow this to happen, he cannot seriously argue that the NRC is stonewalling him or not properly responding to his requests."
Issues: Litigation - Jurisdiction - Failure to Exhaust
Opinion/Order [21]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2019-06-121COMPLAINT against DOES 1 to 10, United States Nuclear Regulatory Commission ( Filing fee $ 400 receipt number 0974-12612751.), filed by Michael J. Aguirre. (Attachments: # 1 Civil Cover Sheet) The new case number is 3:19-cv-01102-W-MSB. Judge Thomas J. Whelan and Magistrate Judge Michael S. Berg are assigned to the case. (Severson, Maria)(als) (jao). (Entered: 06/13/2019)
2019-06-123Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (als) (Entered: 06/13/2019)
2019-06-132Amended Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (als) (jao). Modified on 6/13/2019 to include "amended" in docket text(als). (Entered: 06/13/2019)
2019-06-214NOTICE OF RELATED CASE(S) by Michael J. Aguirre of case(s) 19cv0495-BAS-BLM; 19cv0587-BAS-BLM . (Attachments: # 1 Proof of Service)(Severson, Maria). Modified on 6/24/2019 - Proposed Low Number Transfer Order not prepared. Proposed LNO previously prepared (jah). (Entered: 06/21/2019)
2019-06-215ORDER OF TRANSFER PURSUANT TO LOW NUMBER RULE. Case reassigned to Judge Cynthia Bashant and Magistrate Judge Barbara Lynn Major for all further proceedings. Judge Thomas J. Whelan, Magistrate Judge Michael S. Berg no longer assigned to case. Create association to 3:19-cv-00495-BAS-BLM. The new case number is 3:19-cv-1102-BAS-BLM. Signed by Judge Thomas J. Whelan on 6/19/2019. Signed by Judge Cynthia Bashant on 6/17/2019.(jrm) (jao). (Entered: 06/21/2019)
2019-08-216SUMMONS Returned Executed by Michael J. Aguirre. United States Nuclear Regulatory Commission served. (Severson, Maria). (jah). (Entered: 08/21/2019)
2019-08-267MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim by United States Nuclear Regulatory Commission. (Attachments: # 1 Declaration of Tina Ennis, # 2 Declaration of Katherine Parker)(Parker, Katherine)Attorney Katherine L. Parker added to party United States Nuclear Regulatory Commission (pty:dft). (jah). (Entered: 08/26/2019)
2019-09-238RESPONSE in Opposition re 7 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by Michael J. Aguirre. (Attachments: # 1 Request for Judicial Notice, # 2 Exhibit 1, # 3 Proof of Service)(Severson, Maria). (jah). (Entered: 09/23/2019)
2019-09-309REPLY to Response to Motion re 7 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by United States Nuclear Regulatory Commission. (Attachments: # 1 Declaration of Tina Ennis)(Parker, Katherine) (Entered: 09/30/2019)
2019-12-0510ORDER Setting Oral Argument re 7 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by United States Nuclear Regulatory Commission. Motion Hearing on 7 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim set for 2/18/2020 02:00 PM before Judge Cynthia Bashant. Before oral argument takes place, the parties are ordered to attend an Early Neutral Evaluation Conference with Magistrate Judge Major to determine whether the case may be resolved. The parties shall contact Magistrate Judge Major's Chambers as soon as possible to schedule the conference. Signed by Judge Cynthia Bashant on 12/5/2019. (jah) (Entered: 12/05/2019)
2019-12-1011NOTICE AND ORDER for Early Neutral Evaluation Conference. Early Neutral Evaluation set for 12/27/2019 01:30 PM before Magistrate Judge Barbara Lynn Major. Signed by Magistrate Judge Barbara Lynn Major on 12/10/2019. (jah) (Entered: 12/11/2019)
2019-12-3012Minute Entry for proceedings held before Magistrate Judge Barbara Lynn Major: Early Neutral Evaluation Conference held on 12/30/2019. Case did not settle. (Plaintiff Attorney Maria Severson). (Defendant Attorney Katherine Parker). (no document attached) (err) (Entered: 01/02/2020)
2020-02-1813NOTICE of Appearance and Association by Elijah Thomas Gaglio on behalf of Michael J. Aguirre (Attachments: # 1 Proof of Service)(Gaglio, Elijah)Attorney Elijah Thomas Gaglio added to party Michael J. Aguirre(pty:pla) (jmo). (Entered: 02/18/2020)
2020-02-1814Minute Entry for proceedings held before Judge Cynthia Bashant: Motion Hearing held on 2/18/2020 re 7 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by United States Nuclear Regulatory Commission. Court to issue order. (Court Reporter/ECR Dana Peabody). (Plaintiff Attorney Elijah Gaglio). (Defendant Attorney Katherine Parker and Rebecca Church). (no document attached) (sxm) (Entered: 02/18/2020)
2020-02-1815ORDER Granting 7 Motion to Dismiss. Any amended complaint must be filed within 21 days of the date of this order. Failure to file an amended complaint by this time will result in this case being dismissed. Signed by Judge Cynthia Bashant on 2/18/20. (dlg) (Entered: 02/18/2020)
2020-02-2416NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Summary Judgment Motions) held on 2/18/2020 before Judge Cynthia Bashant. Court Reporter/Transcriber: Dana Peabody. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E-File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/16/2020. Redacted Transcript Deadline set for 3/26/2020. Release of Transcript Restriction set for 5/26/2020. (Transcript filed in case numbers 3:19-cv-00495-BAS-BLM, 3:19-cv-00587-BAS-BLM, and 3:19-cv-01102-BAS-BLM.) (akr) (Entered: 02/24/2020)
2020-03-1017AMENDED COMPLAINT against DOES 1 to 10, United States Nuclear Regulatory Commission, filed by Michael J. Aguirre. (Attachments: # 1 Redlined Original Complaint, # 2 Proof of Service) (Severson, Maria) (jmo). (Entered: 03/10/2020)
2020-03-2318MOTION to Strike and Motion to Dismiss or for Summary Judgment by United States Nuclear Regulatory Commission. (Attachments: # 1 Declaration of Tina Ennis with Exhibits)(Parker, Katherine) (jmo). (Entered: 03/23/2020)
2020-04-2019RESPONSE in Opposition re 18 MOTION to Strike and Motion to Dismiss or for Summary Judgment filed by Michael J. Aguirre. (Attachments: # 1 Declaration of Elijah Gaglio, # 2 Request for Judicial Notice, # 3 Proof of Service)(Severson, Maria) (jmo). (Entered: 04/20/2020)
2020-04-2620REPLY to Response to Motion re 18 MOTION to Strike and Motion to Dismiss or for Summary Judgment filed by United States Nuclear Regulatory Commission. (Parker, Katherine) (jmo). (Entered: 04/26/2020)
2020-05-0121ORDER Granting Defendant's Motion to Dismiss First Amended Complaint with Prejudice (ECF No. 18 ). Signed by Judge Cynthia Bashant on 5/1/20. (jmo) (Entered: 05/01/2020)
2020-05-0122CLERK'S JUDGMENT. IT IS SO ORDERED AND ADJUDGED: the Court GRANTS U.S. Nuclear Regulatory Commission's Motion to Dismiss the First Amended Complaint (ECF No. 18 ) and DISMISSES WITH PREJUDICE the First Amended Complaint for failing to exhaust administrative remedies and, by extension, failing to comply with Court orders. The case is hereby closed. Signed by Judge Cynthia Bashant on 5/1/20.(jmo) (Entered: 05/01/2020)
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