The Discovery Before the Definition

The Supreme Court on Tuesday 13 October granted review in U.S. DOGE Service v. U.S. District Court for the District of Columbia, No. 25-1103, the Court’s docket shows. The case is a Freedom of Information Act dispute that has not yet reached the question it is about. Before a court can order DOGE to hand over records, it has to decide whether DOGE is an “agency” that the statute reaches. The fight now is over how the court may find that out.

The petition was distributed for the justices’ 9 October conference and granted on 13 October. SCOTUSblog reported that the case joins the Court’s oral argument docket for the 2026–27 term. No argument date has been set.

The statute and the exemption

FOIA defines an agency to include any “establishment in the executive branch of the Government (including the Executive Office of the President),” as the Solicitor General’s petition quotes 5 U.S.C. 552(f). The Supreme Court held in Kissinger v. Reporters Committee for Freedom of the Press (1980) that the definition does not reach “units in the Executive Office whose sole function is to advise and assist the President.” Lower courts, including the D.C. Circuit in Meyer v. Bush, ask whether the unit has “substantial independent authority” beyond advising.

The government’s position is that the U.S. DOGE Service, which the petition says the President created by executive order on 20 January 2025 inside the Executive Office, only advises. The petition says the President’s orders alone define its job, and that the agency-level DOGE teams operate under each agency’s authority, not USDS’s. Citizens for Responsibility and Ethics in Washington, the respondent, says in its brief in opposition that the “DOGE Teams” the same order created, and USDS’s reach across government, point to real authority. The two sides do not disagree about the legal test. They disagree about who gets to look behind the executive orders to apply it.

How a records request became a discovery fight

CREW sent its request four days after USDS was created, by the petition’s account, and sued a few weeks later. Judge Christopher Cooper declined the preliminary injunction CREW sought, but held that USDS was likely an agency subject to FOIA and ordered it to process the request on an expedited basis, the petition says. The government then sought summary judgment on the agency question. CREW asked for expedited discovery, and on 15 April 2025 the district court granted most of it, including a deposition of USDS’s administrator, Amy Gleason.

The D.C. Circuit denied mandamus on 14 May 2025, calling the discovery “narrow” and “modest,” the petition says. On 6 June 2025 the Supreme Court vacated that denial over the objections of Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, SCOTUSblog reported. Its order, as quoted in the petition, said requests for the content of USDS recommendations were “not appropriately tailored,” that whether an entity is an agency “cannot turn on the entity’s ability to persuade,” and that “separation of powers concerns counsel judicial deference and restraint in the context of discovery regarding internal Executive Branch communications.” It told the D.C. Circuit to “narrow” the order.

On remand CREW withdrew its requests about USDS recommendations. In a 14 July 2025 order the D.C. Circuit held that excluding the withdrawn requests narrowed the discovery order as the Supreme Court had directed, and otherwise denied mandamus. It denied rehearing on 18 December 2025. The petition for certiorari was filed on 18 March 2026, according to the docket.

What is still in dispute

The petition lists what remains: the Gleason deposition on USDS’s “decision-making” and “reporting structure”; all “directives” from the Administrator to USDS employees; actions “directed” at federal agencies; “attempt[s]” or plans to access a classified databaseldquo;attempt[s]“attempt[s]” or plans to access a classified databaserdquo; or “attempt[s]” or plans to access a classified databaseldquo;plans“attempt[s]” or plans to access a classified databaserdquo; to access classified information; and employee names, duties, hiring and timekeeping information. The government argues this would hand CREW “much of the information that it sought in its actual FOIA requests” before any court has held that FOIA applies. Its two questions are whether the D.C. Circuit departed from the Court’s June order and from Cheney v. United States District Court (2004), and whether a court may order broad discovery against an advisory body in the Executive Office to decide FOIA coverage in the first place.

CREW answers that the D.C. Circuit followed the June order “to the letter” and that “this case looks nothing like Cheney.” It also argues that the case arrives as a mandamus petition, where the government must show a clear and indisputable right to relief, and that other litigation has already produced considerable discovery about USDS. The Solicitor General, D. John Sauer, wrote in the petition that the D.C. Circuit “has continued to approve intrusive discovery against a presidential advisory body” without adequate consideration for the separation of powers.

What the Court chose to take

The government’s petition asked for review “if not summary reversal.” The Court took the case for argument instead. That is a choice to resolve the question with full briefing and a written opinion; the order itself gives no reasons. Nor does the grant say which question the Court will answer first.

The practical stakes sit in two places. If the government prevails, a litigant seeking FOIA coverage of a presidential office will have to make its showing largely from public documents and the executive orders themselves. If CREW prevails, discovery into the practical workings of an Executive Office unit becomes available whenever its legal status is genuinely in doubt. Either way the records CREW first asked for in early 2025 are not yet in the case. The Court has agreed to decide how the argument over them may be conducted.