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Citizens for Responsibility and Ethics in Washington v. Duncan

August 10, 2009

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
ARNE DUNCAN, SECRETARY OF EDUCATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United Sates District Judge

MEMORANDUM OPINION

Citizens for Responsibility and Ethics in Washington ("CREW") brings this action against Arne Duncan, the Secretary of Education, in his official capacity, and the United States Department of Education (collectively, the "Department") under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. CREW alleges that the Department failed to disclose documents as required by the Federal Advisory Committee Act, 5 U.S.C. App. 2 § 1 et seq. ("FACA"). CREW also alleges that the Department failed to comply with the open meetings and disclosure provisions of FACA and failed to publish a FACA charter. CREW seeks the full production of their requested documents, and declaratory and injunctive relief holding that the Department violated FACA and enjoining it from future violations.

Before the Court is the Department's motion to dismiss for lack of subject matter jurisdiction on grounds of mootness [#15]. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the motion should be granted.

I. BACKGROUND

In 2002, Congress enacted the Reading First Initiative, which requires the Secretary of Education to create a panel to evaluate state Reading First grant proposals and make approval recommendations to the Secretary. 20 U.S.C. § 6363(c)(2)(C). Accordingly, the former Secretary of Education, Margaret Spellings, created a panel consisting of three people selected by Secretary Spellings herself, three selected by the National Institute for Literacy, three selected by the National Research Council of the National Academy of Sciences, and three selected by the National Institute of Child Health and Human Development as required by the Reading First statute. Spellings then created sub-panels to review the State applications and recommend either approval or disapproval to the Secretary. The Department chose the majority of panelists on these sub-panels, allegedly in violation of statutory requirements. The Department refers to these sub-panels as the "Old Panel." It is the "Old Panel" that CREW alleges violated FACA disclosure, open meeting and charter requirements.

In September 2006, the Department's Office of Inspector General issued a Final Inspection Report, which found that the Old Panel did not comply with the Elementary and Secondary Education Act of 1965. In response to this finding, CREW sent a letter to the Department requesting all documents related to the Old Panel's review of grant proposals, the Old Panel's charter, and detailed meeting minutes. CREW intended to analyze this information and share it with the public through various forms of media, including the CREW website. The Department did not initially respond to this request. Believing the non-disclosure to be a violation of FACA § 10(b) requirements, CREW instituted this suit in December 2006.

After this suit was filed, the Department searched "every file drawer in every file cabinet known to contain Reading First program files." (Fourth Butler Decl. ¶ 4.) This search yielded 62,000 pages of documents containing:

a. the preliminary and final versions of the Reading First applications that [State Educational Agencies] submitted to the Department;

b. the Reading First criteria for Review of State applications that the Department provided to peer reviewers;

c. the Technical Review Form Summary Sheets of individual panelists reviewing Reading First applications; and

d. the Panel Chair Summary Forms relative to all versions of the Reading First applications submitted by [State Educational Agencies].

(Second Butler Decl. ¶ 4.) By July 17, 2007, the Department copied these documents onto compact discs and sent the discs to CREW. According to the Department, this disclosure represented "all of the documents in the Department's possession that were made available to or prepared for or by the panels that reviewed the Reading First Applications." (Id. ¶ 5.)

After this suit was filed, Spellings also committed to "mov[e] swiftly to enact all of the Inspector General's recommendations," (Compl. Ex. E.), and on March 1, 2007, she announced the forthcoming establishment of a new panel ("New Panel"), which would replace the Old Panel. Spellings issued a charter for the New Panel and stated that the New Panel would take over the duties of the Old Panel. Pursuant to FACA, the Department then published in the Federal Register "the date and location of the first meeting of the New Panel, as well as a tentative agenda." (Def's. Mot. Dismiss at 8.) CREW does not dispute the Department's assertion that the New Panel's activities have thus far complied with FACA.

In August 2008, the Department's Office of Elementary and Secondary Education moved to a new office space. During this move, a banker's box thought to contain only personnel- related documents was delivered to the new office of Dr. Joseph Conaty.*fn1 After reviewing the box's contents, Dr. Conaty found 285 pages worth of Reading First documents. These documents were sent to CREW on September 15, 2008. In his fourth declaration, James Butler*fn2 declared that "[t]o the best of [his] knowledge, information, and belief, the Department possesses no additional ...


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