The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
In this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff challenges the Executive Office for United States Attorneys' ("EOUSA") response to his request for records pertaining to two assistant United States attorneys ("AUSA"). Presently before the Court is defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(7) or for summary judgment pursuant to Fed. R. Civ. P. 56. Upon consideration of the parties' submissions and the entire record, the Court will deny defendant's motion in its entirety.
By letter dated April 26, 2006, plaintiff requested the letters of appointment and oaths of office for AUSA Latour Lafferty and AUSA Kathy J.M. Peluso, both of whom were based in the United States Attorney's Office for the Middle District of Florida. Def.'s Ex. 2, Declaration of John F. Boseker ("Boseker Decl.") ¶¶ 6-7 & Ex. A. EOUSA assigned file number 06-3440 to the Peluso request and file number 06-3441 to the Lafferty request. See Boseker Decl. at 2-3.
By letter of November 15, 2006, EOUSA informed plaintiff with regard to Peluso that "[a]ll records you seek are being made available to you," and further informed plaintiff of his right to appeal the final action to the Office of Information and Privacy ("OIP") within 60 days. Id., Ex. C. The release consisted of two whole pages. Boseker Decl. ¶ 9. In a separate letter dated November 15, 2006, EOUSA informed plaintiff that it had located no responsive records about Lafferty, that Lafferty was no longer employed with the Middle District of Florida, that plaintiff may be able to obtain any responsive records by contacting the National Personnel Records Center ("NPRC") in St. Louis, Missouri, and that plaintiff had 60 days to administratively appeal the final action. Id., Ex. E. OIP has no record of receipt of an administrative appeal from plaintiff prior to this lawsuit. Id. ¶¶ 10, 13; Def.'s Ex. 3, Declaration of Chiquita J. Hairston ("Hairston Decl.") ¶¶ 6-8.
Plaintiff alleges that on February 2, 2007, he delivered to prison officials at the Federal Correctional Institution in Loretto, Pennsylvania, for mailing his administrative appeal addressed to OIP. Pl.'s Declaration in Opposition to Defendant's Motion for Summary Judgment [Dkt. 11-3] ¶ 16 & Ex. E. Having received no response from OIP, plaintiff initiated this civil action on March 27, 2007. Id. ¶¶ 18-19.
Defendant's Motion to Dismiss
Defendant seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction based on plaintiff's alleged failure to exhaust administrative remedies. Def.'s Mem. of P. & A. at 14. It is established that the FOIA's exhaustion requirement is not jurisdictional, but "as a jurisprudential doctrine, failure to exhaust precludes judicial review" if a merits determination would undermine the purpose of permitting an agency to review its determinations in the first instance. Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003). Because the dismissal of a FOIA claim based on the failure to exhaust administrative remedies is properly decided under Rule 12(b)(6), Hidalgo, 344 F.3d at 1260, the Court is satisfied that it has subject matter jurisdiction to entertain the complaint. Defendant's Rule 12(b)(1) motion to dismiss therefore is denied.
Defendant also invokes as a basis for dismissal Fed. R. Civ. P. 12(b)(7) for plaintiff's failure to join the NPRC as a party-defendant, but it has not articulated a basis for joinder under Fed. R. Civ. P. 19. In any event, plaintiff has made clear in his opposition that NPRC "is not a necessary party or have [sic] any interest in this matter," Pl.'s Mem. of P. & A. [Dkt. No. 11] at 8, and that he "has  no intention in joining the NPRC as a party in this litigation." Id. at 17. Defendant's motion to dismiss pursuant to Rule 12(b)(7) therefore is denied.
Defendant's Motion for Summary Judgment
Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 7(h). As a general rule, "[i]n deciding whether there is a genuine issue of fact before it, the court must assume the truth of all statements proffered by the party opposing summary judgment." Greene v. Dalton, 164 F.3d 671, 674 (D.C. Cir. 1999). "If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available." Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994) (citing Alveska Pipeline Serv. Co. v. United States Envtl. Protection Agency, 856 F.2d 309, 314 (D.C. Cir. 1988)).
Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court may award summary judgment in a FOIA case solely on the information provided in affidavits or declarations when they describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 ...