                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
NEWPORT AERONAUTICAL SALES,    )
                               )
          Plaintiff,           )
                               )
     v.                        )    Civil Action No. 04-1283 (GK)
                               )
DEPARTMENT OF THE AIR FORCE, )
                               )
          Defendant.           )
______________________________)

                            MEMORANDUM OPINION

     Plaintiff in this Freedom of Information Act case is Newport

Aeronautical Sales (“NAS”), a commercial data library that provides

qualified   military   contractors,      including      small    businesses,

technical data received from U.S. military agencies on an overnight

basis for the purposes of facilitating contract bids. The present

matter is before the Court on the Defendant Department of the Air

Force’s Motion to Dismiss or, In the Alternative, for Summary

Judgment (“Air Force Motion”) [Dkt. No. 54] pursuant to Fed. R.

Civ. P. 12(b)(1), 12(b)(6), and 56. In its Opposition [Dkt. No.

61], Plaintiff NAS cross-motioned for summary judgment pursuant to

Rule 56.

     Upon consideration of the Motion, Opposition, Reply, and the

entire   record   herein,   and   for   the   reasons   set     forth   below,

Defendant’s Motion is granted, and Plaintiff’s Motion is denied.

I.   BACKGROUND

     For the last thirty years, NAS has submitted routine requests

for technical data to the Air Force’s Oklahoma City Air Logistics
Center (OC-ALC) in order to service its clients. These requests

typically were submitted under Department of Defense Directive

(“DoDD” or “Directive”) 5230.25, which limits access to “critical”

technical data with military or space application to “qualified

U.S.   contractors,”      and   restricts        the    contractors’         ability    to

further disseminate information once access is gained. In 2003,

after the Air Force began to routinely delay or deny NAS’s DoDD

5230.25 requests, NAS made a general request for 155 Technical

Orders (“TOs”) under the Freedom of Information Act. The Air Force

formally denied NAS’s FOIA request in October of 2004, after

commencement of this suit.

       A. The Statutory and Regulatory Framework

       Before    discussing     the    procedural        history        of   NAS’s   FOIA

requests   in     more    detail,     an    overview         of   the   statutory      and

regulatory framework is in order. The Freedom of Information Act,

5 U.S.C. § 522, generally requires federal agencies to release

records to the public. Section (b)(3), however, excludes matters

that are “specifically exempted from disclosure by statute.” 5

U.S.C. § 522(b)(3) (2008). The statute relied on by the Air Force

in this case is 10 U.S.C. § 130, “Authority to Withhold From Public

Disclosure      Certain   Technical        Data.”      The    statute    exempts     from

disclosure “any technical data with military or space application

. . . if such data may not be exported lawfully outside the United

States without an approval, authorization, or license under the


                                           -2-
Export Administration Act of 1979 (50 App. U.S.C. 2401–2420) or the

Arms Export Control Act (22 U.S.C. 2751 et seq.).” The statute

further   provides   for   the   promulgation   of   regulations   by   the

Department of Defense addressing the release of such technical data

to qualified United States contractors. 10 U.S.C. § 130(b) (2008).

     The Department of Defense implemented § 130 through DoDD

5230.25, “Withholding of Unclassified Technical Data from Public

Disclosure.” 32 C.F.R. § 250 (2008). Paragraph 2.1 clarifies the

Directive’s narrow scope:

     [10 U.S.C. § 130] applies to all unclassified technical
     data with military or space application in the possession
     of, or under the control of, a DoD Component that may not
     be exported lawfully without an approval, authorization
     or license under E.O. 12470 . . . or the Arms Export
     Control Act . . . . However, the application of this
     Directive is limited only to such technical data that
     disclose critical technology with military or space
     application. The release of other technical data shall be
     accomplished in accordance with DoD Instruction 5200.21
     . . . and DoD 5400.7-R . . . .

32 C.F.R. § 250(2.1) (emphasis added). DoD Instruction 5200.21 is

a general instruction governing dissemination of DoD Technical

Information, and DoD 5400.7-R is the regulation governing the

Department’s FOIA Program. Id. Neither regulation includes the

limitations on access to, or dissemination of, technical data

included in Directive 5230.25.




                                    -3-
       Once the controlling DoD office determines that a technical

data       request   contains   critical   technology,1     and    therefore   is

governed by Directive 5230.25, paragraph 5.4.3 directs that the

information be released to “qualified U.S. contractors,” unless:

       The technical data are being requested for a purpose
       other than to permit the requester to bid or perform on
       a contract with the Department of Defense or other U.S.
       Government Agency, in which case the controlling DoD
       office shall withhold such data if it has been determined
       by the DoD Component focal point . . . that the
       significance of such data for military purposes is such
       that release for purposes other than direct support of
       DoD-approved activities may jeopardize an important
       technological or military advantage of the United States.

 Id. Thus, for commercial data services such as NAS that request

 information for further dissemination, rather than to bid on or

 perform a contract with the Government, technical data may be



       1
       “Critical technology”          is     defined   in   DoDD    5230.25    as
technologies that consist of:

           Arrays of design and manufacturing know-how (including
           technical data);
           Keystone manufacturing, inspection, and test equipment;
           Keystone materials; and
           Goods    accompanied    by   sophisticated    operation,
           application, or maintenance know-how that would make a
           significant contribution to the military potential of any
           country or combination of countries and that may prove
           detrimental to the security of the United States (also
           referred to as militarily critical technology).

32 C.F.R. § 250.3(c) (2008). The Directive establishes that the
“controlling” DoD office for a given request determines, in that
office’s judgment, whether the data requested disclose critical
technology with military or space application. § 250.5(b)(2). In
making that determination, the DoD component is to use the
Militarily Critical Technologies List (MCTL) as “general guidance.”
Id.

                                       -4-
delayed or denied, despite the requester’s status as a qualified

U.S.       contractor,   if   DoD   determines   that   “release   .   .   .   may

jeopardize an important technological or military advantage of the

United States.” Id.

           Moreover,   once   received,   the   qualified   U.S.   contractor’s

ability to disseminate the information is limited to 1) foreign

recipients approved, authorized, or licensed pursuant to Executive

Order 12470; 2) another currently qualified U.S. contractor, “but

only within the scope of the certified legitimate business purpose

of such recipient”; and 3) the Departments of State and Commerce,

the Congress, or any Federal, State, or local governmental agency

for certain designated purposes.2 Id. at 5.8.

B. Procedural History

           In 2001, NAS made its first request, at the direction of Air

Force personnel, for the Technical Orders at issue in this dispute

through DoDD 5230.25. Am. Compl. ¶ 42. The Air Force denied NAS’s

request, citing the requirement in ¶ 5.4.3 of a solicitation or

contract number for information that “may jeopardize an important

technological or operational military advantage of the United

States.” Pl.’s Opp. at 4; Posey Decl. ¶ 10.




       2
      Regardless of whether the information is released under the
FOIA or under Directive 5230.25, it is subject to the limitations
on dissemination imposed by applicable export control laws and
regulations. See DoDD 5230.25 ¶ 3.2.3.

                                          -5-
         In 2003, NAS submitted three separate requests for the same

information under FOIA, which went unanswered for over one year.3

Pl.’s Opp. 4. In light of the Air Force’s delay—which well exceeded

the twenty-day statutory period provided for a response—NAS filed

suit in this Court on September 23, 2004. Posey Decl. ¶ 17. One

month after commencement of this action, the Air Force formally

denied NAS’s FOIA requests. Pl.’s Opp. Ex. 6. On November 20 and

December 4, 2007, however, the Air Force released to NAS all 155

documents it seeks in this lawsuit, subject to the limitations of

Directive 5230.25.4 Def.’s Mot. to Dismiss 1-2.

         In this Court’s Order dated July 11, 2007, Defendant’s Partial

Motion to Dismiss Plaintiff’s Complaint was granted, leaving only

Plaintiff’s FOIA claim. Mem. Op. to 7/11/2007 Order [Dkt. No. 37].

Among the dismissed counts was Count II, which alleged that agency

records      were   improperly   withheld   under   10   U.S.C.   §   130   as

implemented by Defense Directive 5230.25, and Count V, which sought

a declaratory judgment that AFI 61-204 is inconsistent with the

FOIA and 10 U.S.C. § 130 as implemented by Defense Directive


     3
      The request later designated number 03-360 was made on July
29, 2003, 03-365 on August 26, 2003, and 04-009 on September 4,
2003. Pl.’s 9/29/2009 Mem. 1 [Dkt. No. 72].
     4
      The parties dispute whether these releases were made pursuant
to the 2007 Scientific and Technical Information (STINFO) Pilot
Program Agreement that the parties entered into as a part of
settlement negotiations. See Def.’s Mot. to Dismiss n. 3; Pl.’s
Opp. Ex. 7. The terms of that Agreement, however, have no bearing
on this Court’s analysis of whether Plaintiff has properly asserted
a claim under the Freedom of Information Act.

                                     -6-
5230.25. These counts were dismissed after this Court concluded

that 10 U.S.C. § 130 did not create a private right of action, and

therefore the Court lacked subject matter jurisdiction over the

agency’s       action. Id.

          In this action, NAS challenges the Air Force’s denial of its

2003 FOIA request for 155 TOs.5 As this Court concludes that the

TOs are exempted from FOIA by 10 U.S.C. §130, Plaintiff’s argument

that the Air Force has misapplied DoDD 5230.25 is duplicative of

the arguments made in opposition to the Government’s Partial Motion

to Dismiss. Those arguments have already been rejected.

II.       STANDARD OF REVIEW

          Defendant seeks to dismiss NAS’s FOIA claim under Rules

12(b)(1) and 12(b)(6). Under Rule 12(b)(1), the plaintiff bears the

burden of proving by a preponderance of the evidence that the Court

has subject matter jurisdiction to hear its case. See Jones v.

Exec. Office of President, 167 F.Supp.2d 10, 13 (D.D.C. 2001). In

reviewing       a   motion   to   dismiss    for   lack   of   subject   matter

jurisdiction, the Court must accept as true all of the factual

allegations set forth in the Complaint; however, such allegations

“will bear closer scrutiny in resolving a 12(b)(1) motion than in

resolving a 12(b)(6) motion for failure to state a claim.”               Wilbur


      5
     Plaintiff seeks a release of the data under FOIA, a
declaration that the Air Force’s continued refusal to disclose
technical data is contrary to FOIA and 10 U.S.C. § 1030, and
attorney’s fees pursuant to 5 U.S.C. § 552(a)(4)(E). Am. Compl. ¶
57.

                                       -7-
v.   CIA,   273   F.Supp.2d    119,     122   (D.D.C.   2003)(citations   and

quotations omitted). The Court may consider matters outside the

pleadings. See Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192,

197 (D.C. Cir. 1992).       The Court may also rest its decision on the

Court's own resolution of disputed facts. Id.

      To    survive   a   motion   to   dismiss   under   Rule   12(b)(6),   a

plaintiff need only plead “enough facts to state a claim to relief

that is plausible on its face” and to “nudge[ ] [his or her] claims

across the line from conceivable to plausible.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “[O]nce a claim has been stated

adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint.” Id. at 563.

      Under the Twombly standard, a “court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiff's success . . . must assume all the allegations in the

complaint are true (even if doubtful in fact) . . . [and] must give

the plaintiff the benefit of all reasonable inferences derived from

the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame

Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotation

marks and citations omitted).

III. ANALYSIS

      The Air Force argues for dismissal of NAS’s FOIA claim on the

ground that the requested material is not subject to general

release under FOIA, but is instead subject to exemption under 10


                                        -8-
U.S.C. § 130.6 When faced with an Exemption 3 defense to a FOIA

claim, district courts engage in the two-pronged inquiry identified

in Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979),

cert. denied, 444 U.S. 1075 (1980). First, the Court must determine

whether the statute qualifies as an Exemption 3 statute. Second,

the Court must determine “whether the information sought after

falls within the boundaries of the non-disclosure statute.” Id.

         Thus, the Air Force must establish that “the statute claimed

is one of exemption as contemplated by Exemption 3 and that the

withheld material falls within the statute.” Larson v. Department

of State, 565 F.3d 857, 864 (D.C. Cir. 2009) (citation omitted). As

both parties have acknowledged in their filings, 10 U.S.C. § 130 is

an established Exemption 3 statute. Colonial Trading Corp. v. Dep’t

of the Navy, 735 F.Supp. 429, 431 (D.D.C. 1990); Pl.’s Opp. 19. The

parties disagree, however, on whether the Technical Orders fall

within the statute’s boundaries.

         The first point of disagreement is whether the information has

been publicly released. See Pl.’s Opp. 18. If so, exemption under

10 U.S.C. § 130 would be precluded. NAS claims that the Air Force

previously released “substantially identical” information, because

it had received prior versions of the same technical manuals. Id.;

Pl.’s Reply 12. In response, the Air Force stresses the requirement


     6
       Because this Court concludes that Plaintiff has failed to
state a claim under FOIA, it is not necessary to reach Defendant’s
arguments on mootness and standing.

                                   -9-
that the publicly released data be the “exact same” as the data

requested in order to conclude that a document is not subject to

withholding      under     §    130.    Def.’s      Reply      19   (citing     Air   Force

Instruction 61-204, Ex. 3). The Air Force is correct that updated

versions    of   the     same    manuals       or    orders     constitute       different

information, even if “substantially identical,” and as such are

subject to withholding under 10 U.S.C. § 130.

     The     second       point        of     disagreement          is    the     agency’s

interpretation       and       application          of   Directive        5230.25,     the

implementing     regulation       that       narrows     the    statutory       exemption.

Specifically, NAS contends that the information is not critical

technology nor information the release of which may jeopardize an

important     U.S.     technological          or     operational         advantage,    and

therefore should be governed by DoD Instruction 5200.21 and DoD

5400.7-R. Compl. ¶ 31, 35.                  The Air Force asserts that the 155

Technical Orders contain information “relate[d] to aircraft or

aircraft components that fall within Category VIII of the United

States Munitions List . . . [that] has also not been released

pursuant to a general, unrestricted license and is not covered by

any exemption in the export control regulations.” Def.’s Mot. to

Dismiss 7.

     Plaintiff’s FOIA claim does not give this Court jurisdiction

over Department of Defense action that is governed, not by FOIA,

but rather by DoD regulations promulgated pursuant to 10 U.S.C. §


                                            -10-
130. As noted above, jurisdiction under FOIA extends only to the

question of whether § 130 qualifies as an Exemption 3 statute, and

whether    the   Technical   Orders    fall        within    the    exemption’s

boundaries.

     The analysis in Assoc. of Retired Railroad Workers v. United

States Railroad Retirement Bd., 830 F.2d 331 (D.C. Cir. 1987) is

instructive. In that case, the Railroad Retirement Board denied a

FOIA request pursuant to Section 12(d) of the Railroad Unemployment

Insurance Act (RUIA), 45 U.S.C. § 351 et seq, which read:

     Information obtained by the Board in connection with the
     administration of this chapter shall not be revealed or
     open to inspection nor be published in any manner
     revealing an employer’s identity: Provided, however, That
     . . . (ii) the Board may disclose such information in
     cases in which the Board finds that such disclosure is
     clearly in furtherance of the interest of the employee or
     his estate; . . . .

     The   Court   of   Appeals   reviewed    de    novo    and    affirmed   the

District Court’s finding that RUIA constituted an Exemption 3

statute under FOIA, and that the information would reveal an

employer’s identity. The Court declined, however, to review the

agency’s determination that disclosure was unwarranted under (ii).

As the Court explained, the required scope of judicial review under

FOIA is narrowed in cases where “the congressional intent to

withhold is made manifest in the withholding statute itself.” Id.

at 336. In these cases, “the purpose of Exemption 3—to assure that

Congress, not the agency, makes the basic nondisclosure decision—is

met once [the exemption] is found to apply.” Id.

                                   -11-
         Although the Court of Appeals emphasized that its holding was

limited to RUIA, id. at 336-37, the rationale underlying the

Court’s decision is applicable to this case. Congress broadly

exempted technical data with military or space application from

FOIA in § 130(a), and in § 130(b) directed the Secretary of Defense

to establish a separate regulatory framework to govern the data’s

disclosure      “for   use   in   performing   United   States   Government

contracts.” 10 U.S.C. § 130(a), (b) (2008). To the extent that

Plaintiff challenges the Air Force’s interpretation of Directive

5230.25, it is asking for relief not provided for in 5 U.S.C. §

552(4)(b).7 See also Davis v. United States Dept. of Justice, 968

F.2d 1276, 1280-81 (D.C. Cir. 1992) (noting that, absent a showing

of public availability, items that fall within the ambit of a

nondisclosure statute are categorically exempt); Fitzgibbon v.

Central Intelligence Agency, 911 F.2d 755, 761-63 (D.C. 1990).

         Because § 130(a) is, as noted above, a recognized Exemption 3

statute, the Air Force need only show that the information in

question falls within its boundaries. The Air Force has submitted

a Vaughn Index that briefly describes the equipment addressed in


     7
       Section 4(b) of FOIA reads:    “On complaint, the district
court . . . has jurisdiction to enjoin the agency from withholding
agency records and to order the production of any agency records
improperly withheld from the complainant . . . [and] shall
determine the matter de novo, and may examine the contents of such
agency records in camera to determine whether such records or any
part thereof shall be withheld under any of the exemptions set
forth in subsection (b) of this section . . . .” 5 U.S.C. §
552(4)(B) (2008).

                                     -12-
each Technical Order. Def.’s Mot. to Dismiss, Ex. A. Further, the

Air Force has stated that each Technical Order requested contains

“technical data with military or space application” that “relate to

aircraft or aircraft components that fall within Category VIII of

the United States Munitions List; and contains information that has

not been released pursuant to a general, unrestricted license, and

is not covered by any exemption in the export control regulations.”

Over Decl. ¶¶ 2-7; Def.’s Stmt. of Material Facts as to Which There

Is No Genuine Issue [Dkt. No. 54].

     The United States Munitions List, codified at 22 C.F.R. § 121,

compiles a list of defense articles and defense services pursuant

to the Arms Export Control Act (22 U.S.C. 2778 and 2794(7)). 22

C.F.R. § 121.1(a) (2008). The Arms Export Control Act provides that

the President “is authorized to designate those items which shall

be considered as defense articles and defense services for the

purposes of this section and to promulgate regulations for the

import and export of such articles and services. The items so

designated shall constitute the United States Munitions List.” 22

U.S.C. § 2778(a)(1). Thus, describing an item as falling within

Category VIII of the United States Munitions List is tantamount to

a showing that the item “may not be exported lawfully outside the

United States without an approval, authorization, or license under

the . . . Arms Export Control Act.” 10 U.S.C. § 130(a). See also

Def.’s Vaughn Index, Mot. to Dismiss Ex. A.



                               -13-
      Based on this analysis, the Court concludes that Defendant Air

Force’s showing is sufficient to establish that the information

requested   is   exempt   from   FOIA    under     10   U.S.C.   §    130.   Thus,

Plaintiff’s challenge to the Department’s application of Directive

5230.25 does not constitute a claim under 5 U.S.C. § 552. To put it

simply, Congress has exempted from FOIA coverage the 155 Technical

Orders   that    NAS   seeks,    and    therefore       FOIA   does   not    grant

jurisdiction over Plaintiff’s claim.

IV.   CONCLUSION

      For the reasons set forth above, Defendant’s Motion to Dismiss

under Rule 12(b)(1) is granted.          This is a final appealable Order

subject to Federal Rule of Appellate Procedure 4. See Fed. R. App.

P. 4. An Order will accompany this Memorandum Opinion.




                                               /s/
October 7, 2009                               Gladys Kessler
                                              United States District Judge


Copies to: attorneys on record via ECF




                                       -14-
