Following what can only be described as an extraordinarily speedy round of briefing, Judge Christopher Cooper has denied DOGE’s motion for reconsideration in CREW v. DOGE, No. 25-0511 (D.D.C.):
“Because the government’s arguments could all have been raised during the last round of briefing”—that is, during the court’s consideration of CREW’s request for preliminary injunctive relief to compel expedited processing—“none of them provides a basis for reconsideration.”
Although Judge Cooper denied the government’s motion for reconsideration, he nonetheless decided to extend the “deadlines set forth in its prior order”—specifically, to March 27th to provide an estimate of the number of responsive records at issue, and to April 3rd to propose a production schedule—”to ensure that USDS can provide meaningful responses to CREW’s inquiries.” This appears to have been done to facilitate DOGE’s imminently expected motion for summary judgment (or an appeal to the D.C. Circuit of the preliminary injunction, which so far has gone unnoticed). As the court explained, “it would be preferable . . . to review the question of whether USDS is subject to the FOIA on the merits based on a more complete record.” For this reason, the court has seemingly invited CREW to filed a motion under Federal Rule of Civil Procedure 56(d) to conduct limited discovery.
Notably, the court appeared unimpressed by the government’s creative arguments about the supposedly erroneous irreparable harm analysis underlying its preliminary injunction, and continued to insist on the necessity of “Congress and the public . . . hav[ing] a hope of receiving the requested information while it remains timely.” The court was moreover incredulous that DOGE Administrator Gleason’s declaration could not have previously been offered into evidence, thus rendering it an inapt basis for reconsideration of last week’s PI order. “[T]he declaration appears to be subject to factual disputes that may provide a basis for CREW to seek discovery,” surmised Judge Cooper. For example, the court doubted Ms. Gleason’s averment that “Elon Must does not work at USDS,” given public representations by President Trump and Musk himself to the contrary. Judge Cooper did not address two other—perhaps, central—arguments advanced by the government, namely, his alleged misapprehension of the structure of DOGE—and the distinction between USDS within the White House, on the one hand, and agency “DOGE Teams,” on the other—and his heavy (and now, continued) reliance on press reports rather than sworn evidence.
The full opinion, which also addresses other arguments advanced by DOGE, can be found here.
FOIA Advisor’s previous reports on this case are here, here, and here.