The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge,
This matter comes before the Court on the defendants' motion  to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and failure to state a claim pursuant to Rule 12(b)(6), the defendants' motion  to substitute the United States as the proper defendant, the plaintiff's motion  for entry of default against the defendant, and the plaintiff's motion for summary judgment in his amended complaint . Upon consideration of these motions, the oppositions thereto, the reply briefs, the applicable law, and the entire record herein, the Court concludes that the defendants' motion to dismiss will be GRANTED, the plaintiff's motion for entry of default against the defendants will be DENIED, plaintiff's motion for summary judgment will be DENIED, and the defendants' motion to substitute the United States as the proper defendant will be DENIED as moot.
On February 21, 2006, plaintiff Samuel L. Clemmons filed a complaint with this Court against the U.S. Department of Justice and the Drug Enforcement Administration ("DEA") as well as specific DEA agents stemming from his denial of employment with the DEA. Clemmons, proceeding pro se, alleges violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the Department of Justice and the DEA for withholding information on which the denial of his employment was based, violations of the Privacy Act 5 U.S.C. § 552a and tort injuries, such as slander and defamation, stemming from the use of alleged misinformation. (Pl.'s Am. Compl.,  8-15).
Plaintiff alleges that while he was in the process of applying to become a special agent with the DEA, he passed all of the required physical and mental tests prior to submitting to a background check by the DEA and Department of Justice to ensure that he was qualified for the position. (Pl.'s Compl.,  23-24). On November 27, 2001, Special Agent Eldred Earls of the DEA contacted plaintiff to inform him of two possible problems discovered during his background check which involved an outstanding bill on his credit report and a deceased convicted felon, named Richard D. Scott, who had been using plaintiff's name and identity for years. (Pl.'s Mot. for Entry of Default,  Ex. A, 9). Plaintiff informed Special Agent Earls that the bill reflected on his credit report had been resolved and Earls told plaintiff that the DEA was aware that plaintiff was, in fact, not Richard D. Scott. (Id.) In a letter dated April 4, 2002, Patricia Murphy, Chief of the Special Agent Recruitment Unit at the DEA, informed plaintiff that he was no longer in contention for employment as a special agent with the DEA because after a complete review of his file by three Senior Special Agents, it was determined that plaintiff "[did] not remain among the most competitive applicants." (Pl.'s Mot. for Entry of Default,  Ex. D). Plaintiff contacted Congressman Ronnie Shows in his home district in Mississippi to intervene on his behalf and Congressman Shows complied. (Pl.'s Mot. for Entry of Default,  Ex. A). Congressman Shows received a letter from C. J. Kasch, the Deputy Assistant Administrator in the Office of Personnel, dated July 24, 2002, explaining that plaintiff's file had been carefully reviewed and his veteran service had been given proper consideration but an adverse hiring decision had been made against plaintiff because he did not remain among the most competitive applicants for the highly coveted position of Special Agent. (Pl.'s Mot. for Entry of Default,  Ex. G).
On July 15, 2003, plaintiff wrote a letter to the DEA making a request under the Freedom of Information Act for information that surfaced during his background check regarding his employment history, financial responsibility and personal conduct. (Defs.' Mot. to Dismiss,  Ex. 1). On October 23, 2003, the Chief of the FOI/Records Management Section of the DEA requested that plaintiff fill out and return the required Privacy Act releases for disclosure of his personnel records which plaintiff did. (Defs.' Mot. to Dismiss,  Ex. 2 and 3). On December 17, 2003, the Chief of the FOI/Records Management Section of the DEA sent plaintiff another letter informing him that his request was being processed in the order that it was received. (Defs.' Mot. to Dismiss,  Ex. 4). On February 20, 2004, the DEA processed plaintiff's FOIA request, releasing eighty-eight pages to plaintiff and withholding four pages on the basis of FOIA exemptions (b)(2), (b)(6), and (b)(7)(C) and Privacy Act section (j)(2). (Defs.' Mot. to Dismiss,  Ex. 5). The letter further stated that eighty-four pages were being referred to other government agencies from which the information in those pages was furnished. (Id.) The letter also informed plaintiff of his right to appeal the FOIA denial of the four pages of his request within 60 days and furnished the appropriate address to send such an appeal. (Id.)
On June 10, 2004, plaintiff sent a letter to the Chief of the FOI/Records Management Section of the DEA, as well as an unspecified "Director of Drug Administration" at the DEA, requesting information on why he was not hired by the DEA and stating that he had not heard from the DEA. (Defs.' Mot. to Dismiss,  Ex. 6 and 7). On March 9, 2005, plaintiff sent a letter to the "Director of the Department of Justice" again stating his case that he was wrongfully denied employment as a special agent and requesting release of the documents on which his background check was based. (Defs.' Mot. to Dismiss,  Ex. 8). On July 8, 2005, plaintiff sent yet another letter to the Chief of the FOI/Records Management Section of the DEA requesting the release of the documents. (Defs.' Mot. to Dismiss,  Ex. 9).
On January 5, 2006, the Chief of the FOI/Records Management Section of the DEA responded to plaintiff's multiple requests informing him that his initial request had been processed and responded to on February 20, 2004, and after realizing that his psychological examination was not included in the original release of documents, included three additional pages relating to his psychological examination. (Defs.' Mot. to Dismiss,  Ex. 10). Enclosed with this letter were the two money orders for twenty-five dollars each sent by plaintiff because fees were not incurred with the process of plaintiff's documents. (Id.) Plaintiff was again informed in this letter of his right to appeal the FOIA decision to the Office of Information and Privacy.*fn1 (Id.) According to a sworn affidavit from the Chief of the Administrative Staff at the Office of Information and Privacy, plaintiff never filed an appeal with that office. (Defs.' Mot. to Dismiss,  Ex. 11). Defendants also submit with their motion an affidavit from the Associate Chief Counsel of the Department of Justice, Drug Enforcement Administration stating that plaintiff never filed an administrative claim for the tort violations associated with this action. (Defs.' Mot. to Dismiss,  Ex. 12).
On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), this Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (citing Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). This Court must especially read plaintiff's complaint liberally because he is proceeding pro se, and courts have generally held pro se complaints to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972); Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371, 374 (D.C. Cir. 2000). However, this Court need not accept asserted inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. See Kowal, 16 F.3d at 1276. Even when proceeding pro se, the plaintiff must still meet the notice requirements of Rule 8(a) of the Federal Rules of Civil Procedure and give the defendant "fair notice of the plaintiff's claim and the grounds upon which it rests." Ali v. District of Columbia, 278 F.3d 1, 8 (D.C. Cir. 2002) (citing Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983)). The Court will dismiss a claim pursuant to Rule 12(b)(6) only if the defendant can demonstrate "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46.
Pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject matter jurisdiction. See Hilska v. Jones, 297 F. Supp. 2d 82, 86 (D.D.C. 2003); McNutt v. General Motors Acceptance Corp. Of Indiana, 288 U.S. 178, 182 (1936). Unlike Rule 12(b)(6) motions, when a court is reviewing a complaint under factual attack for lack of jurisdiction, "no presumption of truthfulness applies to the factual allegations." Ohio Nat'l Life Insurance Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). To evaluate whether a court has subject matter ...