Citizens for Resp. & Ethics in Wash. v. U.S. DOGE Serv., No. 25-511, 2025 WL 752367 (D.D.C. Mar. 10, 2025) (Cooper, J.)

Citizens for Resp. & Ethics in Wash. v. U.S. DOGE Serv., No. 25-511, 2025 WL 752367 (D.D.C. Mar. 10, 2025) (Cooper, J.)

Re:  Requests for records concerning United States DOGE Service (“USDS”) role in Administration

Disposition:  Granting in part and denying in part plaintiff’s motion for preliminary injunction

• Litigation Considerations, Preliminary Injunctions:  The court relates that “[plaintiff’s] preliminary-injunction motion, which was filed just over two weeks ago, seeks an Order requiring OMB and USDS to fully process and produce, by today, March 10, 2025, all non-exempt records as to all three of its requests.”  “As noted, although OMB initially agreed to process the USDS Request, the government informed the Court at oral argument that neither OMB nor USDS intends to process the USDS Request on the ground that USDS is not an ‘agency’ under FOIA.”  “Given these late-breaking developments, the Court inquired at the hearing whether [plaintiff’s] requested relief encompasses a preliminary order directing USDS (or OMB) to process the USDS request on an expedited basis as OMB originally agreed – but perhaps not by a date certain tied to Congress’s ongoing appropriations debate.”  “[Plaintiff] indicated that such an order would be within scope of the relief it seeks.”  “The Court agrees.”  “Accordingly, the Court construes [plaintiff’s] request as seeking (1) processing and production by March 10, 2025, for all three requests; and (2) expedited processing of the USDS Request in the event the Court declines to order a date certain for completing that request.”
   
• Procedural Requirements, Entities Subject to the FOIA & Expedited Processing; Litigation Considerations, Preliminary Injunctions:  The court relates that “[t]he parties dispute whether USDS is an agency subject to FOIA.”  “Recall that USDS was ‘established in the Executive Office of the President.’”  “To conclude that ‘an EOP unit is subject to FOIA,’ there must be ‘a finding that the entity in question “wielded substantial authority independently of the President.”’”  “If instead the unit’s ‘sole function is to advise and assist the President,’ it is not an agency.”  “The Court concludes that, on this preliminary record, [plaintiff] will likely succeed in demonstrating that USDS wields the requisite substantial independent authority.”  “Three sources of information point in this direction.”  “First, the relevant executive orders appear to endow USDS with substantial authority independent of the President.”  “The initial executive order ‘establishes the Department of Government Efficiency to implement the President’s DOGE Agenda, by modernizing Federal technology and software to maximize governmental efficiency and productivity.’”  “That order appears to give USDS the authority to implement the DOGE Agenda, not just to advise the President in doing so.”  “Moreover, President Trump’s subsequent executive order directs that agencies ‘shall not fill any vacancies for career appointments that the DOGE Team Lead assesses should not be filled, unless the Agency Head determines the positions should be filled.’”  “This order grants the USDS Team Lead the power to keep vacant career positions open unless an agency overrides their decision.”  “And the order appears to contemplate that this authority will be exercised independent of the President.”
  
  “The Court will deny the motion for a preliminary injunction directing OMB and USDS to process the three requests at issue by March 10, 2025.” “However, finding that [plaintiff] has established a likelihood of success on the merits of its argument that USDS is subject to FOIA and that indefinite delay in the release of the requested USDS records would cause [plaintiff] and the public irreparable harm, the Court will grant [plaintiff’s] request for expedited processing of the USDS request, consistent with how OMB is presently treating the other two requests.”  “The government has already granted expedited processing of both of [plaintiff’s] requests directed to OMB.”  “Thus, as to those requests, [plaintiff] seeks only production by a date certain – March 10, 2025. [Plaintiff] seeks the same as to the USDS Request as well as expedited processing.”  “Unfortunately for [plaintiff], it satisfies none of the factors entitling it to preliminary relief ordering production of its OMB requests by today’s date.”
  
  “The Court concludes . . . that [plaintiff] has established neither a likelihood of success on the merits that the requested information will go stale after March 10 nor irreparable harm from failing to receive the documents until after the impending appropriations process has concluded.”  “[Plaintiff] argues that the requested records are necessary ‘to inform the debate about the federal government’s funding and operations’ that will take place after the current continuing resolution expires on March 14, 2025, because ‘USDS is at the heart of a larger debate about the Trump administration’s efforts to cut federal spending.’”  “The Court takes the general point that members of Congress, in exercising their responsibilities as appropriators, should know what USDS is up to.”  “And while the Court agrees that the requested records are important, it disagrees that they are so central to the impending appropriations process as to require their production by March 10, 2025.” “When pressed at oral argument, [plaintiff] indicated that legislators most pressingly want to know which programs or agencies have been prioritized for further cuts.”  “Such information, in [plaintiff’s] view, may lead a legislator who disapproves ‘not to vote for a’ continuing resolution to keep funding the government.”  “But the Court discerns no limiting principle preventing this argument from requiring the production of all documents relevant to the executive branch’s priorities ahead of every single congressional appropriations vote.”  “To be sure, the structure and influence of USDS appear to unprecedented, and those factors, along with USDS’s outsized influence on the federal government, support expedited processing of these requests, as OMB has already acknowledged.”  “Congress should certainly receive information about the structure of USDS in time to meaningfully respond to it, but [plaintiff] has provided little connective tissue between the requested records and the specific decision whether to continue funding the government after March 14.”  “Although some funding decisions may not be easily wound back, the appropriations process is much more fluid than one-off events that have very occasionally given rise to ‘date certain’ preliminary injunctions in FOIA cases – such as a decennial census . . . ; a congressional election . . . ; and a presidential impeachment proceeding . . . .”  “Moreover, Congress’s appropriations power is not the only tool available to it to exert control over USDS.”  “Although Congress as a whole has thus far shown no inclination to do so, it may pass other types of legislation, for instance, or hold hearings and issue subpoenas to learn more about the department’s structure and operations.” “Here, the balance of the equities and the public interest favor the government at least as to the request for production by March 10.”  “It would be practically impossible for the government to process the requests by the date of this opinion, especially given that there are 35 expedited requests at OMB in the queue ahead of [plaintiff’s].”  “And since the Court has already concluded that [plaintiff] is not entitled to production by the requested date certain, no interest outweighs the insurmountable hardship to Defendants and other requesters.”
  
  “Second, [Elon] Musk and the President’s public statements indicate that USDS is in fact exercising substantial independent authority.” “At its inception, President Trump trumpeted that USDS would have the power to ‘to dismantle Government Bureaucracy, slash excess regulations, cut wasteful expenditures, and restructure Federal Agencies.’”  “Musk, too, indicated that USDS would take aggressive action to pursue its agenda, explaining that USDS was focused on three areas of reform:  ‘regulatory rescissions, administrative reductions and cost savings.’”  “In the same article, Musk and [Vivek] Ramaswamy also suggested that USDS would have the power to identify regulations due for the chopping block.”  “More recently, Musk noted publicly that he plans to use USDS to reduce the federal budget by $2 trillion.”  “Presumably, such a staggering result would require more than mere advice.”  “Musk also took credit for the cuts at USAID, boasting:  ‘We spent the weekend feeding USAID into the wood chipper.’”  “And in recent weeks, President Trump has praised Musk and DOGE for their efforts, noting that Musk ‘found hundreds of billions of dollars worth of fake contracts’ and gave orders to ‘[c]ut 50%, 60%, 70%.’”  “The President also reportedly ‘ordered cabinet secretaries to cooperate with DOGE on staffing.’”  “These statements and reports suggest that the President and USDS leadership view the department as wielding decision-making authority to make cuts across the federal government.”
  
  “Third, USDS’s actions to date demonstrate its substantial authority over vast swathes of the federal government.”  “Musk’s just-noted statement attributing the decimation of USAID to USDS was contemporaneous with the placement of nearly all USAID employees on administrative leave.”  “The Court need not stretch to conclude that USDS likely drove the charge to shutter USAID, and conducting such mass firings evidently requires substantial authority.” “USDS also claimed to have eliminated 104 DEI-related contracts with the federal government, saving $1 billion, and saving another $900 million through the termination of 89 of the Department of Education’s contracts.”  “Canceling any government contract would seem to require substantial authority – and canceling them on this scale certainly does.”  “Again, USDS reportedly is leading the charge on these actions, not merely advising others to carry them out.”  “From these reports, the Court can conclude that USDS likely has at least some independent authority to identify and terminate federal employees, federal programs, and federal contracts.”  “Doing any of those three things would appear to require substantial independent authority; to do all three surely does.”  “USDS has also gained access to sensitive data and payment systems across federal agencies, and potentially to classified information, even over the objection of officials within those agencies.”  “And USDS appears likely to have been responsible for the Fork in the Road deferred resignation offer sent to all federal employees, which mirrors Musk’s prior actions at Twitter.”  “Musk also directed the sending of emails to federal employees requiring them to respond with weekly lists of five bullet points summarizing their accomplishments.” “USDS’s power to override agency officials, swiftly gain access to agency systems, and impose job requirements on federal employees all further suggest substantial independent authority.” “To determine whether an agency is subject to FOIA, courts also consider ‘whether it has a self-contained structure.’” “Per its establishing order, USDS has a defined staff:  the USDS Administrator, a temporary organization operating within USDS, and DOGE teams that are embedded outside USDS within each executive branch agency.” “USDS also retains the authority to consult with agency heads regarding the selection of the outside USDS teams, thereby exerting influence over employees across federal agencies.”  “From all this, the Court concludes that in practice, USDS is likely exercising substantial independent authority much greater than other EOP components held to be covered by FOIA.”   “Based on its actions so far, USDS appears to have the power not just to evaluate federal programs, but to drastically reshape and even eliminate them wholesale.”  “The Court recognizes that much, though by no means all, of the evidence supporting its preliminary conclusion that USDS is wielding substantial independent authority derives from media reports.”  “Yet, the Court finds it meaningful that in its briefing and at oral argument, USDS has not contested any of the factual allegations suggesting its substantial independent authority."
  
  “The Court next turns to whether [plaintiff] has established a likelihood of success on the merits on whether it is entitled to expedited processing of the USDS Request.”  “Here too, [plaintiff] comes out ahead.”  “[Plaintiff] sought expedited processing of the USDS request – which, recall, OMB initially granted – on the grounds of both urgency and widespread public interest.”  “The USDS Request easily qualifies for expedited treatment under either test.” “As to the first, [plaintiff] is primarily engaged in disseminating information to the public and ‘routinely disseminates information obtained through FOIA to the public,’ including on its website.”  “Next, in considering whether ‘urgency to inform the public concerning actual or alleged federal government activity’ exists,” the court finds that “USDS’s structure and operations doubtless ‘concern a matter of current exigency’ to the public.”  “As just explained, USDS has been the subject of numerous news articles cited in this opinion and in the parties’ briefing – at least fifty, by the Court’s count.” “This ‘widespread media attention’ suggests a matter of urgency.”  “Second, a delay would ‘compromise a significant recognized interest,’ as discussed further below.”  “If production of the USDS records is substantially delayed, the public and Congress will be ‘precluded . . . from obtaining in a timely fashion information vital to the current and ongoing debate surrounding the legality of’ a high-profile government action.”  “That conclusion is further bolstered by the Court’s irreparable harm analysis . . . .” “Third, there is no doubt that [plaintiff’s] request concerns federal government activity.”  “For essentially the same reasons, USDS’s activities qualify as ‘a matter of widespread and exceptional public interest.’”  “Again, the many news articles on the subject indicate that USDS’s operations represent ‘a matter of immediate concern to the American public, given extensive media interest[.]’”  “Moreover, reports that USDS personnel have gained access to sensitive data and payment systems, classified information without the appropriate clearances, and operate in secrecy using auto-deleting messaging apps like Signal, each call into question ‘the Government’s integrity, which need not suggest any dishonesty or intentional wrongdoing on Defendants’ part.’” “Accordingly, [plaintiff] is likely to succeed on the merits of its request for expedited processing of the USDS Request.”
  
  “Although the Court has concluded that [plaintiff] is entitled to expedited processing of the USDS Request, it cannot stop there.” “Because [plaintiff] seeks preliminary relief, the Court must also consider whether delay in processing its request on an expedited basis would cause irreparable harm.”  “[Plaintiff] has made that showing.”  “If the Court does not grant preliminary relief to [plaintiff], records responsive to the USDS request will not be released anytime soon, if ever.”  “As the government stated at oral argument, USDS is not currently processing [plaintiff’s] request because it does not believe itself to be an agency.”  “The time it would take to litigate that question on the merits and thereafter begin processing would likely result in a substantial delay of years, for all practical purposes imposing an indefinite delay.”  “By that time, the Court suspects that the information may indeed be ‘stale,’ or at least, significantly less useful than it once was.”  “Accordingly, ‘the potential for irreparable harm under these circumstances exists because ongoing public and congressional debates about issues of vital national importance cannot be restarted or wound back.’” “Many of the facts establishing [plaintiff’s] entitlement to expedited processing, as just discussed, likewise indicate that an indefinite delay would result in irreparable harm.”  “The USDS records sought are ‘directly tied to [ ] current, ongoing’ actions by USDS, which ‘are of the highest national concern.’” “Congressional leaders have repeatedly expressed interest in similar questions, sending letters to the White House Chief of Staff ‘seeking information about Mr. Musk’s role, USDS staff, what agencies USDS has accessed, and whether USDS has terminated or directed the termination of government employees[.]’”  “To be sure, the Court previously concluded that more information on USDS was not crucial to the specific upcoming appropriations process following the expiration of the continuing resolution on March 14.”  “But that is so because, although irreparable harm will not result if the requested records are not immediately released, there is a point in the not-too-distant future when continued delay will indeed impose such harm.”  “The electorate also requires the expeditious production and publication of this information.”  “Voters may seek to influence congressional representatives to take action responsive to USDS at any point along the road.”  “And ‘[t]he dissemination of information’ sought by [plaintiff] would contribute ‘to an informed electorate capable of developing knowledgeable opinions and sharing those knowledgeable opinions with their elected leaders.’” “But the information will only be useful to the electorate so long as USDS remains a topic of current national importance.”  “Information released years down the road would come too late.”  “At that point, further details about USDS’s operations and communications with federal agencies likely would be only ‘of historical value.’”  “‘Moreover, absent an expedited response to Plaintiff’s FOIA request, it is not clear to the Court that the public’ or Congress ‘would otherwise have access to this relevant information.’”  “Congressional subpoenas for Musk to testify about USDS’s work have already been blocked, and the Court sees no reason to think they will ever succeed.”  “To be sure, this indicates that not all Members of Congress, nor even a majority, desire access to the requested documents.” “But that does not change [plaintiff’s] and the public’s important interest in obtaining these records and discussing them with the Members that do.”  “A few final points bear mentioning.”  “To begin, USDS’s actions to date have proceeded remarkably swiftly.” “In the less than two months since President Trump’s inauguration, USDS has reportedly caused 3% of the federal civilian workforce to resign, shuttered an entire agency, cut billions of dollars from the federal budget, canceled hundreds of government contracts, terminated thousands of federal employees, and obtained access to vast troves of sensitive personal and financial data.”  “USDS appears able to do this in part because of its access to many agency’s IT systems, which help the department carry out its objectives at warp speed.”  “But the rapid pace of USDS’s actions, in turn, requires the quick release of information about its structure and activities.”  “That is especially so given the secrecy with which USDS has operated.”  “Moreover, the authority exercised by USDS across the federal government and the dramatic cuts it has apparently made with no congressional input appear to be unprecedented.”  “All these factors together bolster the Court’s conclusion that a years-long delay in processing the USDS Request would cause irreparable harm.”
  
  “The last two preliminary-injunction factors also weigh in [plaintiff’s] favor.”  “These considerations need not detain the Court for long.”  “Not only would the public benefit from participation in the ‘ongoing debate’ discussed above, but an agency’s compliance with a mandatory statutory regime is presumably always in the public interest.”  “And given that USDS is apparently not processing any other requests, the Court doubts it would impose much of a burden on the department to expediently process [plaintiff’s] request.”  “[Plaintiff] is therefore entitled to a preliminary injunction directing the expedited processing of the USDS Request.”  “The Court will not order USDS to process the request by March 10, however, for the same reasons it declined to order production by the same date certain for the OMB Requests.”
   
• Litigation Considerations, Relief:  The court relates that “[f]inally, [plaintiff] seeks a records preservation order pending litigation.”  “According to [plaintiff], such an order is necessary because – despite Mr. Musk’s insistence that all USDS’s actions are ‘maximally transparent’ and that he doesn’t ‘know of a case where an organization has been more transparent than the Doge organization,’ . . . – USDS personnel ‘are not operating transparently and may well be ignoring their preservation obligations under the FRA.’” “[Plaintiff] points first to USDS’s use of non-governmental systems to conduct official business.”  “For instance, USDS employees acknowledged using Signal, an encrypted messaging app with an auto-delete function, during the presidential transition period and into the new administration, as recently as February 27.”  “Musk has also used the social media platform X to solicit job applications for USDS and to poll the public about courses of action that USDS is considering.” “[Plaintiff] also notes reports that USDS employees have refused to identify themselves when requested to do so by career officials, further suggesting that the agency is operating with unusual secrecy.”  “Indeed, Musk tweeted that a poster who published the names of USDS employees ‘committed a crime.’”  “USDS also allegedly installed an ‘illegally connected server’ at the U.S. Office of Personnel Management’s headquarters to store personally identifiable information about executive branch employees.”  “And although [plaintiff] requested ‘assurances of FRA compliance’ from USDS, Defendants apparently did not respond.”  “At oral argument, counsel for the government likewise was unable to provide such assurances to the Court.”  “This evidence gives rise to the possibility that representatives of the Defendant entities may not fully appreciate their obligations to preserve federal records.”  “This is especially true for USDS, many of whose staffers are reported to have joined the federal government only recently and, to put it charitably, may not be steeped in its document retention policies.”  “That being said, the Court need not make a finding of bad faith in order to enter a document preservation order.”  “Accordingly, the Court will enter a preservation order as to all documents responsive to [plaintiff’s] three FOIA requests pursuant to its inherent authority.”