The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiff, Newport Aeronautical Sales ("Newport"), brings this action against Defendant Department of the Air Force (the "Air Force") seeking production of agency records pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), and 10 U.S.C. § 130, as well as a declaratory judgment that an Air Force regulation, Air Force Instruction ("AFI") 61-204, is unlawful.
This matter is before the Court on Defendant's Partial Motion to Dismiss the non-FOIA counts pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (Counts II, III, IV, and V). [Dkt. No. 23]. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendant's Partial Motion to Dismiss is granted.
Newport is a commercial data library that provides technical data to qualified defense contractors on an overnight basis. Contractors use this information in turn to bid for Department of Defense contracts. Newport obtains the information from the Department of Defense through FOIA requests and requests under Department of Defense Directive No. 5230.25, 32 C.F.R. § 250.1 et seq.*fn2 Defense Directive 5230.25, issued pursuant to 10 U.S.C. § 130, establishes policy and procedures for both the dissemination and withholding of certain unclassified technical data with military application. The Air Force has also issued, pursuant to Defense Directive 5230.25, its own interpretive guidance, namely AFI 61-204,*fn3 for Air Force personnel in marking and disseminating technical data.
Newport alleges in its Amended Complaint that, beginning in July 2001, the Oklahoma City Air Logistics Center ("OC-ALC") and other Air Force components began to deny Newport's Defense Directive 5230.25 requests. Am. Compl. ¶ 26. OC-ALC rejected the requests because Newport did not provide a solicitation or contract number. Id. Newport alleges that it subsequently submitted a number of FOIA requests to OC-ALC, which later denied the vast majority of them after the original Complaint was filed in this case.
Newport filed its original Complaint on July 31, 2004. In January 2005, after the Air Force had filed its Answer, Newport moved for leave to file an Amended Complaint. [Dkt. No. 14]. The Air Force opposed the motion, arguing that amending the Complaint would be futile because the non-FOIA counts in the proposed Amended Complaint could not withstand a motion to dismiss due to Newport's lack of standing. [Dkt. No. 15]. Without addressing the merits of the Air Force's argument, the Court granted Newport's motion for leave to file the Amended Complaint on February 11, 2005. [Dkt. No. 18]. The Court stated that "Defendant will have the opportunity to fully litigate the defenses it attempted to raise in its Opposition to the pending Motion." Id. at 1 n.1.
The Amended Complaint contains five counts:
* Count I seeks the production of agency records under FOIA;
* Count II alleges that agency records were improperly withheld under 10 U.S.C. § 130 as implemented by Defense Directive 5230.25;
* Count III alleges that the Air Force improperly promulgated AFI 61-204 without notice and comment rulemaking and seeks a declaratory judgment that AFI 61-204 is contrary to law;
* Count IV alleges that the Air Force promulgated AFI 61-204 without preparing a Small Business Impact Statement as required by the Regulatory Flexibility Act, 5 U.S.C. §§ 603-604, and also seeks a ...