The government filed its reply in support of its motion for reconsideration in CREW v. DOGE shortly after the requester lodged its opposition earlier today. The court has not announced whether there will be a hearing, or if it will rule on the papers alone.
The DOGE reply is short, totaling only four pages. The government rejects CREW’s characterization of DOGE’s supposed “litigation strategy,” namely, as an effort to avoid the “agency” merits question because it expected CREW to lose on its irreparable harm theory. In so doing, the government tries to distinguish two types of requested relief: (1) expedited processing by a date certain, which it maintains was what CREW sought in its preliminary injunction motion, and (2) expedited processing in the abstract. “If there was no irreparable harm justifying a preliminary injunction by March 10 (which this Court correct found there was not), there was no basis for CREW’s motion. No plausible theory of party presentation or fair notice required USDS to address whether it is an agency[.]”
The government reiterates, too, that the district court improperly relied “significantly” on “media reports” and failed to “meaningfully address the multiple Executive Orders and presidential memorandum [sic] that delineate USDS’s limited and purely advisory responsibilities as a non-statutory entity[.]” One such example, DOGE maintains, was the court’s focus on the word “implement,” which it considers a “thin reed” to support Judge Cooper’s decision.
In closing, DOGE advised it will file a motion for summary judgment today, March 19th. Although there is, again, no timeline for the court to rule on reconsideration, the government will undoubtedly expect that request to be considered effectively on an emergency basis. DOGE’s proposed summary briefing schedule would end the day before Judge Cooper’s deadline for a production schedule proposal. If action isn’t taken in the government’s favor before that deadline, an appeal to the D.C. Circuit seems quite likely.