Michael J. Aguirre v. UNITED STATES NUCLEAR REGULATORY COMMISSION ; DOES , 1 to 10, inclusive

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M ICHAEL J. AGUIRRE ,
Plaintiff-Appellant,
v.
UNITED STATES NUCLEAR
REGULATORY COMMISSION ; DOES , 1
to 10, inclusive,
Defendants-Appellees.
Nos. 20-55177
20-55179
D.C. Nos.
3:19-cv-00495-
BAS-BLM
3:19-cv-00587-
BAS-BLM
M ICHAEL J. AGUIRRE ,
Plaintiff-Appellant,
v.
UNITED STATES NUCLEAR
REGULATORY COMMISSION ,
Defendant-Appellee.
No. 20-55487
D.C. No.
3:19-cv-01102-
BAS-BLM
OPINION
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Argued and Submitted March 4, 2021
Pasadena, California

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2 AGUIRRE V . U.S. NUCLEAR REGULATORY COMM ’ N
Filed August 23, 2021
Before: Richard C. Tallman and Consuelo M. Callahan,
Circuit Judges, and Dana L. Christensen,* District Judge.
Opinion by Judge Callahan
SUMMARY**
Freedom of Information Act / Exhaustion
The panel affirmed the district court’s dismissal or
summary judgment against all of Michael Aguirre’s claims
in his Freedom of Information Act (“FOIA”) action seeking
to obtain from the U.S. Nuclear Regulatory Commission
(“NRC”) records relating to the San Onofre Nuclear
Generating Station.
The panel held that Aguirre failed to constructively or
actually exhaust his administrative remedies as to the four
FOIA requests at issue in these appeals, and he likewise
failed to establish the futility of seeing the NRC’s
administrative process through to its end. In an issue of first
impression in this circuit, the panel joined sister circuits, and
held that a requestor must exhaust his administrative
remedies under FOIA so long as an agency properly
* The Honorable Dana L. Christensen, United States District Judge
for the District of Montana, sitting by designation.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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AGUIRRE V . U.S. NUCLEAR REGULATORY COMM ’ N 3
responds before suit is filed. The panel held that Aguirre’s
remaining contentions lacked merit.
COUNSEL
Maria C. Severson (argued) and Michael J. Aguirre, Aguirre
& Severson LLP, San Diego, California, for Plaintiff-
Appellant.
Rebecca Church (argued), Assistant United States Attorney;
Katherine Lind Parker, Chief, Civil Division; Robert S.
Brewer, Jr., United States Attorney; United States
Attorney’s Office, San Diego, California; for Defendant-
Appellee United States Nuclear Regulatory Commission.
OPINION
CALLAHAN, Circuit Judge:
These Freedom of Information Act (FOIA) cases
concern Michael Aguirre’s repeated attempts to obtain from
the U.S. Nuclear Regulatory Commission (NRC) records
relating to the San Onofre Nuclear Generating Station. The
district court dismissed or entered summary judgment
against all of Aguirre’s claims for failing to exhaust
administrative remedies, and we affirm.
I.
Over the past few years Aguirre has filed at least fourteen
FOIA requests with the NRC, all relating to the San Onofre
Nuclear Generating Station and, more specifically, to an
August 2018 incident involving a misaligned spent-fuel

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canister. While being lowered into a storage vault, the
canister became stuck and, for about forty-five minutes,
hung suspended over an eighteen-foot drop. The incident
caused the NRC to temporarily halt the facility’s waste-
transfer operations, but to Aguirre’s dismay those operations
resumed, for a time, in 2019. These consolidated appeals
concern four of Aguirre’s requests for information.
A. Request Nos. 154 & 155
Aguirre submitted the first such request, Request 154, on
December 21, 2018. It asked the NRC for records relating
to the agency’s investigation into the misalignment incident.
It further requested records that “the NRC reviewed related
to dry cask storage operations.” The next day, Aguirre
submitted his second request, Request 155, seeking any
records showing that Southern California Edison, the
facility’s owner and the NRC’s licensee, reported the
defective spent-fuel canister. In both requests, Aguirre
expressed his willingness to pay up to $1,500 for the
agency’s efforts.
The NRC responded on January 30, 2019, apologizing
for the delay and stating that it would produce responsive
records by February 28. In its letter, the NRC also informed
Aguirre that it had categorized his request as “commercial,”
meaning that he would be charged for the agency’s search-
and-review time. A couple weeks later, the NRC followed
up that letter with another stating that, because the costs of
completing Request 155 exceeded $250, the agency would
not proceed without advance payment. The NRC added that
Aguirre’s failure to respond by February 20 would lead to
the closure of his request.
Aguirre replied on February 14 with what he
characterized as an “appeal and request to expedite” his

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AGUIRRE V . U.S. NUCLEAR REGULATORY COMM ’ N 5
requests. He protested the NRC’s “dilatory response and
dilatory timeline” and demanded that the agency assure him
within ten days that it would accelerate its production of
responsive records. If it did not, he stated, he would sue.
Aguirre’s letter made no mention of the agency’s
requirement that he pay in advance for Request 155. The
NRC acknowledged but did not otherwise respond to
Aguirre’s letter.
Later in February the NRC asked Aguirre to clarify the
scope of Request 154. By “dry cask storage operations,” the
agency inquired, did he narrowly mean the handling of the
canisters or all activity involving them, including design
controls and training? The agency said that Aguirre’s
answer would help determine the associated processing fees.
On February 22, after Aguirre failed to provide payment for
Request 155 and clarify Request 154, the agency
consolidated the requests for fee purposes and
administratively closed them both.
As threatened, Aguirre sued, asking the court to order the
production of the sought-after records. The NRC moved for
dismissal based on Aguirre’s alleged failure to exhaust his
administrative remedies. Because the agency attached
evidentiary exhibits to its motion, the district court treated it
as one for summary judgment, see Fed. R. Civ. P. 12(d),
which the court granted. Aguirre appealed.
B. Request No. 239
Several days after filing his first suit, on March 19, 2019,
Aguirre submitted the third request at issue in this appeal,
Request 239. It sought materials regarding a public meeting
the NRC was holding later in the month. Aguirre told the
agency to produce the records within four days, lest he “be
forced to seek immediate judicial relief.” The NRC

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responded that it could not comply with such a short deadline
because its regulations gave the licensee, as the entity from
which some records originated, thirty days to object to the
disclosure of confidential information. The NRC further
asserted that, to expedite his request, Aguirre needed to show
a “compelling need” for the information, and in the agency’s
view Request 239 presented no such circumstances. The
NRC added that it could process the request in the ordinary
course.
After the NRC’s meeting took place, the agency asked
Aguirre if he still wanted the documents. He said that he did
but demanded them by noon of that day. The agency
rejected this request as unworkable due to its licensee-review
requirements. Dissatisfied, Aguirre filed suit on March 29.
The NRC nonetheless continued processing Request 239 and
in April provided Aguirre with an interim production of
certain relevant records while it waited on the licensee.
Although the agency estimated that it would complete its
response to Request 239 in May, it wound up taking another
few months.
The NRC meanwhile moved to dismiss Aguirre’s second
suit, alleging that he had failed to exhaust his administrative
remedies. Again converting the NRC’s motion to one for
summary judgment, the district court granted it, holding that
Aguirre had indeed failed to exhaust by suing the agency
before its statutory time to respond had expired. Aguirre
appealed.
C. Request No. 304
Aguirre submitted the fourth disputed request, Request
304, on May 28, 2019. It sought records exchanged between
the NRC and its licensee “as a result of” other FOIA requests
related to the misalignment incident. The NRC responded a

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AGUIRRE V . U.S. NUCLEAR REGULATORY COMM ’ N 7
couple weeks later, producing certain documents and
withholding others. The next day, Aguirre sued the NRC a
third time, seeking to compel the disclosure of withheld
records. The agency successfully moved to dismiss that suit
for failure to exhaust, Aguirre appealed, and we consolidated
his three cases.
II.
We review de novo summary judgment and dismissal
orders. Folkens v. Wyland Worldwide, LLC, 882 F.3d 768,
773 (9th Cir. 2018); Gingery v. City of Glendale, 831 F.3d
1222, 1226 (9th Cir. 2016). We likewise review de novo
questions concerning FOIA’s construction. TPS, Inc. v. U.S.
Dep’t of Def., 330 F.3d 1191, 1194 (9th Cir. 2003).
III.
Enacted to “ensure an informed citizenry,” NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978), FOIA
requires federal agencies to disclose information to the
public upon request, 5 U.S.C. § 552(a)(3)(A). When an
agency receives such a request, it has twenty working days
to decide whether to comply and inform the requestor of its
decision. Id. § 552(a)(6)(A)(i). A requestor dissatisfied with
an agency’s response can challenge it in court but must first
exhaust available administrative remedies, including an
appeal within the agency. Id. § 552(a)(6)(A)(i)–(ii), (C)(i).
This serves to “protect[] administrative agency authority and
promot[e] judicial efficiency.” McCarthy v. Madigan,
503 U.S. 140, 145 (1992). It also allows agencies to correct
their mistakes and creates a useful record “should judicial
review become necessary.” Amerco v. NLRB, 458 F.3d 883,
888 (9th Cir. 2006). Exhaustion under FOIA is a prudential
rather than jurisdictional consideration, however, so courts
can waive the requirement when, for example, further

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administrative proceedings would prove futile. Yagman v.
Pompeo, 868 F.3d 1075, 1083–84 (9th Cir. 2017).
A. Request Nos. 154 & 155
We first address the applicability of FOIA’s
constructive-exhaustion provision, under which requestors
are deemed to have exhausted their remedies when an
agency misses a statutory deadline. 5 U.S.C.
§ 552(a)(6)(C)(i); see Hajro v. USCIS, 811 F.3d 1086, 1092
(9th Cir. 2016). The NRC received Aguirre’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 Aguirre’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.
Courts have, however, rejected this position where, as
here, an agency responds late but before the requestor sues.
When that occurs, exhaustion is still required. The D.C.
Circuit explained the rationale for this rule in Oglesby v. U.S.
Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990), the leading
decision on the point:
We believe that where a requester has chosen
to wait past the [twenty]-day period until the
agency has responded, Congress intended
that the administrative route be pursued to its
end. It did not mean for the court to take over
the agency’s decisionmaking role in
midstream or to interrupt the agency’s appeal
process when the agency has already invested
time, resources, and expertise into the effort
of responding.

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AGUIRRE V . U.S. NUCLEAR REGULATORY COMM ’ N 9
Id. at 64. As the Oglesby court explained, a contrary rule
would “allow[] requestors unhappy with the first level
response . . . to go to court months or even years after the
agency has responded.” Id. at 65. It would further deprive
agencies of the chance to ensure uniformity in their
treatment of FOIA requests. Id. Thus, under Oglesby, a
requestor in essence waives his right to immediately sue by
waiting to do so until after receiving a response from the
agency. At that point, he must exhaust.
While we have not addressed the issue, other courts have
followed the D.C. Circuit’s lead. The Third Circuit did so in
McDonnell v. United States, 4 F.3d 1227, 1240–41 (3d Cir.
1993), holding that “once the [agency] responded, [the
requestor] once again became obligated to pursue his
administrative remedies.” The Eleventh Circuit later
adopted this rule in Taylor v. Appleton, 30 F.3d 1365, 1369–
70 (11th Cir. 1994), as did the Fourth in Pollack v. DOJ,
49 F.3d 115, 118 & n.3 (4th Cir. 1995). Our district courts
have, in turn, relied on these cases in taking the same
approach. See, e.g., Or. Nat. Desert Ass’n v. Gutierrez,
409 F. Supp. 2d 1237, 1246 (D. Or. 2006); Johnson v.
Comm’r, 239 F. Supp. 2d 1125, 1136 (W.D. Wash. 2002).
We now join our sister circuits, holding that a requestor must
exhaust his administrative remedies under FOIA so long as
an agency properly responds before suit is filed.1
1 Aguirre does not dispute whether the NRC’s correspondence—its
earlier letters or its later one consolidating and closing the requests—
constituted valid “determinations” for purposes of re-triggering the
exhaustion requirement. See 5 U.S.C. § 552(a)(6)(A). This case
therefore presents no occasion to consider the issue. See Citizens for
Resp. and Ethics in Washington v. FEC, 711 F.3d 180, 185–86, 185 n.4
(D.C. Cir. 2013) (delineating the requirements for a proper response and
noting that the question had not previously arisen).

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Applying that rule here, we next consider whether
Aguirre actually, as opposed to constructively, exhausted his
remedies. With respect to Request 154, summary judgment
was appropriate because Aguirre 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—Aguirre balked,
remaining silent until after the agency consolidated and
closed Requests 154 and 155. At that point Aguirre 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.” Oglesby, 920 F.2d at 64. Under
these circumstances, and in keeping with the aims of
exhaustion, we agree with the district court that Aguirre’s
recalcitrance deprived the NRC of “a fair and full
opportunity to adjudicate [his] claims.” Woodford v. Ngo,
548 U.S. 81, 90 (2006); see also Wright v. DOJ, 379 F. Supp.
3d 1067, 1077 (S.D. Cal. 2019) (“Given the opportunities
given to [the requestor] to clarify his broad request and his
failure to do so, [the agency] did not have an obligation to
respond . . . .”).
Summary judgment was also appropriate as to Request
155. FOIA requires that requests be made “in accordance
with published rules” setting forth applicable processing
fees. 5 U.S.C. § 552(a)(3)(A). The statute also allows
agencies to require prepayment of fees exceeding $250. Id.
§ 552(a)(4)(A)(v). Consistent with that authority, the
NRC’s FOIA regulations provide that “[i]f the fee is
determined to be in excess of $250, the NRC will require an
advance payment.” 10 C.F.R. § 9.40(d) (emphasis added).
And when a requestor fails to pay required fees, he fails to

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AGUIRRE V . U.S. NUCLEAR REGULATORY COMM ’ N 11
exhaust. See, e.g., Oglesby, 920 F.2d at 66 (“Exhaustion
does not occur until the required fees are paid or an appeal is
taken from the refusal to waive fees.”); Pollack, 49 F.3d at
119–20 (characterizing the payment of fees as a “statutory
obligation”).
Here, the NRC acknowledged Aguirre’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. Aguirre 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, see 10 C.F.R. § 9.40(c); or seek a fee waiver,
see id. §§ 9.40(g), .41, .43. Given his failure to pursue these
options, the agency properly closed his request.
Disagreeing, Aguirre seizes upon language in the NRC’s
rules suggesting that the agency can process requests when
a requestor agrees to pay the estimated fees. See 10 C.F.R.
§ 9.40(e). In Aguirre’s view, because he initially confirmed
his willingness to pay for Requests 154 and 155, he satisfied
the regulatory requirements and thus exhausted his remedies.
The problem, however, is that Aguirre never raised this
argument before the agency. Had he done so, he could have
learned, before going to court, that the regulation does not
support his position. To the contrary, it provides that
“[u]nless a requester has agreed to pay the estimated fees or,
as provided for in paragraph (d) of this section, the
requester has paid an estimated fee in excess of $250, the
NRC may not begin to process the request.” Id. (emphasis
added). As noted, paragraph (d) requires advance payment
for requests exceeding $250 in fees. Id. § 9.40(d). So a
requestor’s commitment to pay will often suffice, but when

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estimated fees exceed $250, the NRC cannot start processing
until paid. The agency’s approach here comported with
these rules.2
B. Request No. 239
Aguirre also failed to exhaust his remedies as to Request
239. 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 Aguirre 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. See In re Steele, 799 F.2d 461, 466 (9th Cir.
1986) (requiring requestors to “comply fully with agency
procedures”); see also Weisberg v. DOJ, 745 F.2d 1476,
1497 (D.C. Cir. 1984) (holding that the requestor
pretermitted the administrative process by filing suit before
the agency had time to respond).
Aguirre protests that exhaustion is not required when
seeking review of an agency’s refusal to expedite a request.
Whether or not that is true,3 the argument is misplaced here.
Neither Aguirre’s complaint nor his briefing before the
district court challenged the denial of his expedition request.
See Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d
2 Although FOIA seemingly bars tardy agencies from charging
certain fees in the first place, see 5 U.S.C. § 552(a)(4)(A)(viii)(I),
Aguirre failed to raise this issue below and in his opening brief on appeal.
Furthermore, and in any event, Aguirre never raised or exhausted this
issue with the NRC.
3 Some courts have indeed exempted expedited-processing claims
from FOIA’s exhaustion requirement. See, e.g., ACLU v. DOJ, 321 F.
Supp. 2d 24, 28–29 (D.D.C. 2004).

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536, 546 n.15 (9th Cir. 1991) (“It is well established that an
appellate court will not reverse a district court on the basis
of a theory that was not raised below.”). Indeed, nowhere
did Aguirre invoke the FOIA provision allowing courts to
review such claims. See 5 U.S.C. § 552(a)(6)(E)(iii). And
instead of arguing that exhaustion was excused due to the
assertion of an expedited-processing claim, he contended
only that further dealings with the agency would have
proved futile. The district court rightly rejected this
argument. The NRC engaged with Aguirre throughout the
process, provided him with an interim production while it
waited on its licensee, and eventually completed its
response. These actions refute Aguirre’s conclusory
contention that the agency harbored a predetermined intent
to deny him relevant records.4
C. Request No. 304
For similar reasons, we affirm the dismissal of Aguirre’s
suit concerning Request 304. The NRC completed
processing that request on June 11, 2019, and Aguirre 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
4 At any rate, insofar as Aguirre did challenge the NRC’s refusal to
expedite Request 239, that claim likely became moot once the agency
issued its final response. See 5 U.S.C. § 552(a)(6)(E)(iv) (divesting
courts of jurisdiction “to review an agency denial of expedited
processing . . . after the agency has provided a complete response to the
request”); see also Al-Fayed v. CIA, 254 F.3d 300, 302 & n.1 (D.C. Cir.
2001).

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14 AGUIRRE V . U.S. NUCLEAR REGULATORY COMM ’ N
response, this lawsuit, too, was premature.5 See Oglesby,
920 F.2d at 69.
D. Other Issues
Aguirre’s remaining contentions lack merit. He faults
the NRC for not preparing a Vaughn index—a government
affidavit “identifying the documents withheld, the FOIA
exemptions claimed, and a particularized explanation of why
each document falls within the claimed exemption.” Lahr v.
NTSB, 569 F.3d 964, 989 (9th Cir. 2009) (discussing Vaughn
v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)). Vaughn indices
are not required in every case, however. Their function is to
help courts review whether agencies properly withheld
records. See Lewis v. IRS, 823 F.2d 375, 380 (9th Cir. 1987).
Here, given Aguirre’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 Aguirre’s
request for one was properly denied.
Aguirre also disputes the district court’s refusal to
judicially notice transcripts of NRC meetings that, in his
view, evince “questionable conduct” between the agency
and its regulated licensee. He states that this information
contextualizes his need for the NRC’s records and
establishes the futility of exhaustion. But Aguirre does not
develop this argument, and the court did not abuse its
discretion in finding the proffered documents irrelevant to
the purely procedural issues before it.
5 Aguirre amended his complaint concerning Request 304 to allege
facts concerning three separate FOIA requests. While he argues that
these requests establish his attempts to obtain records without judicial
intervention, they say nothing of whether he exhausted his remedies as
to Request 304, specifically.

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AGUIRRE V . U.S. NUCLEAR REGULATORY COMM ’ N 15
Finally, Aguirre’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,
see Hajro, 811 F.3d at 1103, Aguirre 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. Cf. id.
(describing the hallmarks of pattern-or-practice claims). In
the same vein, he discusses the NRC’s purported pattern or
practice only in arguing that exhaustion here would have
been futile, rather than as showing that he will face restricted
access to information in the future. Cf. id.
IV.
In conclusion, Aguirre failed to constructively or
actually exhaust his administrative remedies as to the four
FOIA requests at issue in these appeals, and he likewise
failed to establish the futility of seeing the NRC’s
administrative process through to its end. We therefore
affirm.
AFFIRMED.

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