BREAKING: DC Circuit holds that DOGE must turn over records to CREW.

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Source: Chris Geidner

Chris Geidner
‪@chrisgeidner.bsky.social‬

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BREAKING: DC Circuit holds that DOGE must turn over records to CREW.

The court rejected DOJ's request for an order stopping a district court's order that DOGE turn over records under FOIA. (Panel: Henderson (GHWB), Wilkins (Obama), Childs (Biden).) storage.courtlistener.com/recap/gov.us...

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 2024
1:25-Cv-00511-CRC
Filed On: May 14, 2025
In re: U.S. DOGE Service, et al.,
Petitioners
BEFORE: Henderson, Wilkins, and Childs, Circuit Judges
ORDER
Upon consideration of the petition for a writ of mandamus, the opposition thereto, and the reply; and the motion for stay, the opposition thereto, and the reply, it is
ORDERED, on the court's own motion, that the administrative stay entered on
April 18, 2025, be dissolved. For the reasons stated in the memorandum accompanying this order, it is
FURTHER ORDERED that the petition be denied. It is
FURTHER ORDERED that the stay motion be dismissed as moot.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published.
Per Curiam
ALT

On the merits, the government has also not shown that it has no other adequate means of relief. The government rests most of its argument on Cheney's holding that line-by-line assertions of executive privilege were not an adequate alternative means of relief in that case. But Cheney is distinguishable in numerous respects. Even in the circumstances of Cheney, the Supreme Court declined to issue a writ because it was "not a case where, after having considered the issues, [this court] abused its discretion by failing to" do so. 542 U.S. at 391. More importantly, unlike in Cheney, where the Vice President himself was subject to a wide-ranging third-party subpoena and the asserted intrusion implicated the mental processes of the President's advisers, see id. at 381-82, the discovery here is modest in scope and does not target the President or any close adviser personally. The government retains every conventional tool to raise privilege objections on the limited question-by-question basis foreseen here on a narrow and discrete ground. Although the government protests that any such assertion of privilege would be burdensome, the only identified burdens are limited both by time and reach, covering as they do records within USDS's control generated since January 20. It does not provide any specific details as to why accessing its own records or submitting to two depositions would pose an unbearable burden. That is a far cry from the sweeping discovery at issue in Cheney. See id. at 387 {describing the discovery requests as asking "for everything under the sky"}. Moreover, unlike Cheney, the information sought here
ALT

does not provide CREW "all the disclosure to which [it] would be entitled" if it prevails on the merits. Id. at 388.
Nor has the government asserted a clear and indisputable right. Petitioner can carry that burden if the challenged order constitutes a "clear abuse of discretion." Id. at 380 (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953)). Petitioner must "point to 'cases in which a federal court has held that' relief is warranted 'in a matter involving like issues and comparable circumstances.'" In re Al Baluchi, 952 F.3d 363, 369 (D.C. Cir. 2020) (quoting Doe v. Exxon Mobil Corp., 473 F.3d 345, 355 (D.C. Cir. 2007)). "Accordingly, we will deny mandamus even if a petitioner's argument, though "pack[ing] substantial force,' is not clearly mandated by statutory authority or case law." Id. (quoting In re Khadr, 823 F.3d 92, 99-100 (D.C. Cir. 2016)). Open legal questions do not present a clear and indisputable right to mandamus relief. See In re Al-Nashiri, 791 F.3d 71, 85-86 (D.C. Cir. 2015). We have previously endorsed limited discovery to determine agency status under FOIA. See Armstrong, 90 F.3d at 560-61; CREW, 566 F.3d at 224-
26. And that limited discovery can be used to follow up on factual questions put at issue by the government's declarations. See In re Cheney, 544 F.3d 311, 312 (D.C. Cir. 2008) (under the Presidential Records Act). Even the government concedes, as it must, that such discovery is sometimes appropriate. Pet. 22-23.
In light of the government's failure to make a persuasive showing on either of the first two elements of the analysis, there is also no reason, in considering the totality of the circumstances, to issue the writ. See Cheney, 542 U.S. at 381.
Accordingly, the petition for a writ of mandamus is denied.
ALT
May 14, 2025 at 2:11 PM



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https://storage.courtlistener.com/recap/gov.uscourts.cadc.41966/gov.uscourts.cadc.41966.01208739194.0.pdf