failed to exhaust administrative remedies are appropriately reviewed under Rule 12(b)(6), not under Rule 12(b)(1). See Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C.Cir.2003); Jones v. U.S. Dep’t of Justice, 576 F.Supp.2d 64, 65-66 (D.D.C. 2008) ("When a FOIA defendant disputes that a FOIA plaintiff has fulfilled the exhaustion requirement, the matter is properly the subject of a motion brought under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.”). As such, there are no grounds for dismissal under Rule 12(b)(1). Furthermore, because "matters outside the pleading are presented to and not excluded by [this] court,” the DOT's motion shall be treated as one for summary judgment. See Holy Land Found, for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003) (<HOLDING>). 6 . Furthermore, to the extent that FOIA
holding that a rule 12b6 motion to dismiss should be treated as a motion for summary judgment when plaintiffs counsel relied upon facts outside the four corners of the complaint during oral argument of the motion recognizing that failing to convert a rule 12b6 motion to a motion for summary judgment will not constitute reversible error if the dismissal can be justified without considering the outside materials holding that a rule 12b6 motion is only converted to a motion for summary judgment when a court accepts and considers matters outside of the pleadings holding that where a court considering a rule 12b6 motion relies on matters outside the pleading the motion must be treated as a rule 56 motion for summary judgment holding that by considering matters outside of the pleadings the trial court converted a rule 12b6 motion to dismiss into a summary judgment motion