The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
DENYING THE JULY 23,2007MOTION TO DISMISS; DENYING THE PLAINTIFF'S MOTION TO FILE A SUR-REPLY; GRANTING THE OCTOBER 16,2007MOTION TO DISMISS
This matter comes before the court on a superceding motion to dismiss. The plaintiff, Citizens for Responsibility and Ethics in Washington ("CREW"), bring suit under the Federal Records Act ("FRA"), 44 U.S.C. §§ 2901 et seq., §§ 3101 et seq., §§ 3301 et seq., to challenge an alleged policy of the defendant, the U.S. Department of Education ("Education"), authorizing agency employees to use personal e-mail accounts to transact official business. Education moved for dismissal, arguing that CREW lacks standing to sue under the FRA because the challenged e-mail policy did not cause CREW's injury, viz., the denial of a Freedom of Information Act ("FOIA") request that Education attributes to CREW's broad search request and ineligibility for a public-interest fee waiver. CREW then filed an amended complaint containing three new claims and three new defendants. Claims 1 and 2 allege that Education and Secretary Margaret Spellings violated the FRA by failing to preserve records. Claim 3 alleges that Dr. Allen Weinstein, Archivist of the United States, and Secretary Spellings violated the FRA by failing to initiate enforcement actions against Education for its record-keeping practices. And Claims 4 and 5 allege, respectively, that Education violated FOIA by failing to produce records responsive to the plaintiff's March 28, 2007 FOIA request and by denying the plaintiff's request for a fee waiver. The defendants responded with another motion to dismiss, reiterating the original challenge to Claims 1 and 2, while also contesting Claims 3 and 4.
Because CREW's injury cannot be traced to Education's e-mail policy, the claims branching from that grievance (Claims 1 through 3) must be dismissed. Likewise, the court must dismiss Count 4, as Education is under no obligation to fulfill the CREW's FOIA request while a decision regarding its denial of a fee waiver remains pending. The court, therefore, denies the first motion to dismiss as superceded and grants the second in full.
CREW is a non-profit corporation that "uses a combination of research, litigation, and advocacy" to "protect the right of citizens to be informed about the activities of government." Am. Compl. ¶ 7. On March 28, 2007, it sent a FOIA request to Education seeking four types of documents:
(1) "All communications from any Department office . . . to, from, or referencing any member of the White House staff . . . that mention or relate to Reading First, 'Science Based Reading Research'/'SBRR,' DIBELS, or any other issue related to reading instruction or education";
(2) "All Department contacts or communications . . . with education publishers, their executives, employees, consultants, or contractors";
(3) "All Department contacts or communications that mention or relate to contacts with educational publishers, their executives, or employees"; and
(4) "[A]ll documents previously disclosed under FOIA to Andrew Brownstein, Travis Hicks and/or the Title I Monitor."
Am. Compl., Ex. A (emphasis omitted). CREW also requested a waiver of processing fees. Am. Compl. ¶ 5. On April 16, 2007, Education responded with a letter that enclosed a CD fulfilling CREW's request with respect to request 4 but indicated that requests 1 though 3 did "not reasonably describe the records sought" and, therefore, could not be processed without clarification. Id., Ex. B. Specifically, Education advised CREW that its requests did not specify the names of Education, White House, or publishing ...