DOGE litigation
U.S. Doge Service v. United States District Court for the District of Columbia
Date: Oct. 13, 2026
Issue: Whether the D.C. Circuit erred in allowing discovery to determine whether the U.S. DOGE Service (DOGE) qualifies as an agency subject to the Freedom of Information Act (FOIA).
Case Summary: The U.S. Supreme Court agreed to review a D.C. Circuit ruling allowing discovery to determine whether the U.S. DOGE Service (DOGE) qualifies as an agency subject to the Freedom of Information Act (FOIA).
On Feb. 20, 2025, Citizens for Responsibility and Ethics in Washington (CREW) sued DOGE, its unidentified administrator, Elon Musk, the Office of Management and Budget (OMB), OMB Director Russell Vought, the National Archives and Records Administration (NARA), and Acting Archivist Marco Rubio (collectively, the government) in the U.S. District Court for the District of Columbia. CREW alleged the government violated FOIA and the Federal Records Act (FRA) by failing to release requested records about DOGE’s operations and preserve federal records. CREW argued that DOGE held broad authority over federal agencies and therefore qualified as an agency subject to FOIA.
On March 10, 2025, Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia partially granted CREW’s motion for a preliminary injunction. Judge Cooper ordered DOGE to expedite CREW’s FOIA request and directed DOGE and OMB to preserve relevant records, estimate the volume of responsive documents, and propose a production schedule. However, Judge Cooper denied CREW’s request to require DOGE and OMB to process all three FOIA requests that same day.
On March 14, 2025, the government moved for partial reconsideration, arguing DOGE served only an advisory role, did not qualify as an agency under FOIA, and that CREW had not shown irreparable harm. On March 19, 2025, the court denied reconsideration. That same day, DOGEmoved for summary judgment, arguing it was not an agency subject to FOIA. On March 27, 2025, CREW sought limited discovery to examine DOGE’s structure and authority. On April 15, 2025, Judge Cooper authorized limited discovery, including a deposition and document requests. The government then petitioned the D.C. Circuit for a writ of mandamus to block discovery, citing separation-of-powers concerns. On May 14, the D.C. Circuit denied the petition, finding that the government had not shown a clear right to relief and could raise privilege objections during discovery.
On May 21, 2025, the government filed an application with the U.S. Supreme Court to stay the district court’s discovery orders, arguing they were overly broad and violated separation-of-powers principles. The Supreme Court granted review, vacated the D.C. Circuit’s decision, and remanded the case with instructions to limit discovery into internal executive branch recommendations. The Court explained that an entity’s influence over other agencies does not determine its status under FOIA and stressed the need to protect confidential executive branch communications. On remand, CREW withdrew its requests concerning DOGE recommendations to federal agencies and whether those agencies followed them, but maintained requests involving DOGE’s structure, directives to cancel contracts and terminate employees, and independent authority. The D.C. Circuit granted the government’s mandamus petition as to the withdrawn requests but denied the remainder, finding that the narrower discovery scope met the Supreme Court’s instructions. The D.C. Circuit later denied en banc review, prompting the government to petition the U.S. Supreme Court for certiorari.
In its petition, the government made three main arguments. First, the government argued that the D.C. Circuit’s decision conflicted with the U.S. Supreme Court’s prior order and its decision in Cheney v. United States District Court. In Cheney, the Supreme Court held that courts must exercise restraint when ordering discovery involving presidential advisers to protect executive branch functions and confidential communications. The government argued that the D.C. Circuit violated these principles by allowing broad discovery into DOGE’s operations, personnel records, and a deposition of Acting Administrator Amy Gleason. Second, the government argued that the D.C. Circuit wrongly allowed intrusive discovery to determine whether DOGE qualifies as an agency under FOIA. The government maintained that DOGE only advises the President and that courts should assess its legal authority rather than its influence over federal agencies. Finally, the government urged the Supreme Court to review the decision, arguing that it failed to follow established precedent and could expose presidential advisers to similar discovery in future FOIA lawsuits.
In response, CREW urged the Supreme Court to deny review. It argued the D.C. Circuit followed the Supreme Court’s prior order and the principles established in Cheney by limiting discovery into DOGE’s internal recommendations. CREW maintained the remaining requests were narrow and necessary to determine whether DOGE exercised substantial independent authority. The requests focused on DOGE’s structure, directives to federal agencies, access to government systems, and testimony from Acting Administrator Amy Gleason, whose prior statements raised questions about DOGE’s operations. In addition, CREW argued that courts may allow limited discovery to determine whether FOIA applies to an entity. According to CREW, DOGE exercised authority beyond advising the President and that courts must examine its actual operations to assess its status under FOIA.
Bottom Line: The U.S. Supreme Court will review whether lower courts improperly allowed discovery into DOGE’s operations to determine whether it qualifies as an agency subject to FOIA.
