Today, Citizens for Responsibility & Ethics in Washington (“CREW”) filed its opposition to the government’s motion for reconsideration in a case where Judge Christopher Cooper has concluded that President Trump’s DOGE is likely an “agency,” as defined by the Freedom of Information Act (“FOIA”).
CREW’s argues, principally, that DOGE fails to identify any “intervening change of controlling law, new evidence, or need to correct a manifest injustice,” such as would justify reconsideration. Instead, “[i]t simply wants a do-over” to provide evidence and argument that should have already been raised during briefing CREW’s request for preliminary injunctive relief—that is, expedited processing of its FOIA request. On CREW’s view, the district court’s consideration of DOGE’s supposed agency status was entirely correct, procedurally speaking, and any attempt to relitigate the “agency” question now has been waived. As CREW’s attorneys put it: “DOGE’s problem is not that it was not aware of or failed to appreciate that FOIA’s applicability to it was in dispute; its problem is that it recognized and raised the issue but chose not to make an essential argument.”
As for the proffered declaration of DOGE Administrator Amy Gleason, CREW insists this new factual evidence is similarly improper ground for reconsideration, and hardly establishes “extraordinary circumstances” that would warrant disturbing the district court’s PI order: “Nothing in Ms. Gleason’s declaration is new in any sense,” notwithstanding questions about her availability to have offered such averments during the previous round of briefing, and instead the declaration “raises more questions than it answers.”
CREW also argues that the government’s attempt to seek a stay pending potential appeal is unwarranted and “falls woefully short of its burden.”
Finally, CREW asks the court, if it decides to grant reconsideration, to order expedited discovery into DOGE’s structure, authority, and operations, so as to avoid a new judgment based solely on “Defendants’ one-sided evidentiary presentation.” Limited discovery into the functions of EOP components is not unprecedented and has indeed been ordered in the past in other cases involving entities such as the Office of Administration, the Office of Homeland Security, and the National Security Council. It seems that CREW anticipates any successful motion for reconsideration to be followed by summary judgment briefing on DOGE’s disputed “agency” status.
The government, for its part, could file a reply brief—although it is possible the court will act on the motion without waiting for such a filing. If the motion for reconsideration is ultimately denied, it is possible—and perhaps even very likely—that DOGE will notice an appeal to the D.C. Circuit. As always, FOIA Advisor will continue to monitor and report on this important and interesting case.