Second, defendants' argue that they are entitled to summary judgment on grounds that Sherwood has failed to exhaust its administrative remedies. Summary judgment can only be entered if everything in the record demonstrates that no genuine issue of material fact exists. Defendants argue that Sherwood did not make a timely appeal of the agency decision on his FOIA request. In a letter dated January 9, 1989, Calhoun responded to Sherwood's FOIA request. The letter stated that the documents requested would be released to Sherwood, but that certain personal information had been deleted from these documents, and that Sherwood would be charged additional fees of $ 4,866.75, bringing the total fees to $ 7,146.91. The letter further advised Sherwood of its right to appeal the agency determination within sixty days after the date of the letter to the Judge Advocate General.
Sherwood states that this Navy fee assessment decision on its FOIA request was appealed in a letter dated February 21, 1989, addressed to the Navy Judge Advocate General. Sherwood has filed an affidavit of Theodore A. Coulter, Vice President of Sherwood Van Lines, stating that he sent the February 21, 1989 appeal letter to Navy JAG. In the letter, Sherwood states that the first batch of documents received from the Navy were "duplicative, non-responsive to the request and an unnecessary waste of production." Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss, Att. B.
According to Sherwood, it received from the Navy about 150 of the documents it requested and about 3,800 documents which it did not request. The letter further states: "We therefore appeal the decision to bill Sherwood Van Lines an additional $ 4,866.75 in billing as defined by Rear Admiral Calhoun. Further, we request a refund of the $ 2,280.16 paid to date by this company." Id. Sherwood contends that no action has been taken by the Navy with respect to this letter.
Defendants urge the Court to disregard Sherwood's February 21, 1989 FOIA appeal on grounds that neither the Navy or the addressee of the appeal letter have any record of receiving such an appeal. In support, the Navy has submitted affidavits signed by Nancy Chekonik, the Navy employee responsible for logging FOIA appeals, and Captain R.C. Barber, the alleged recipient of the letter. Each states that they never received the February 21, 1989 appeal letter. Chekonik Decl. (attached to Defendants' Reply to Opposition to Motion to Dismiss), at para. 3-5; Barber Decl. (attached to Defendants' Reply to Opposition to Motion to Dismiss), para. 3-5. The Navy further argues that Sherwood's claim that it filed a timely appeal is late, uncorroborated, and is not contained in Sherwood's complaint or any of its previous correspondence with Navy officials.
This Court finds that summary judgment on grounds that Sherwood failed to exhaust its administrative remedies is not warranted. The February 21, 1989 letter appears to be a timely administrative appeal of the January 9, 1989 Navy FOIA determination since it falls within the sixty day appeal period. The parties, however, dispute whether in fact the letter was ever sent. Sherwood states that the letter was sent and the Navy states that is was never received. Since whether or not the letter was sent will affect the outcome of this case, this factual dispute is indeed material and summary judgment would not be appropriate.
Defendants further argue that the Court should not consider the letter because Sherwood has not previously indicated it filed an appeal letter dated February 21, 1989. The Court must reject defendants' argument because in considering a motion for summary judgment it is not the court's function to try facts or weigh evidence but only to determine whether a genuine factual dispute exists. Mardirosian v. American Institute of Architects, 474 F. Supp. 628, 639 n. 20 (D.D.C. 1979). Accordingly, defendants' motion for summary judgment on grounds that Sherwood failed to exhaust its administrative remedies must be denied.
Accordingly, it is hereby
ORDERED that defendants' motion to dismiss and/or for summary judgment is granted in part and denied in part; and it is further
ORDERED that this action is dismissed with prejudice as to defendants McKinnon, Calhoun, and Boydston for failure to state a claim upon which relief could be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Date: March 13, 1990