Chief Justice John Roberts temporarily halted discovery Friday in a lawsuit seeking access to documents and information about the Department of Government Efficiency’s (DOGE) operations.
In a brief order, Roberts granted the government’s request for an administrative stay, which temporarily lifts a judge’s order allowing limited discovery into whether DOGE is an “agency.” If it is found to be an agency, that would make DOGE subject to Freedom of Information Act (FOIA) requests.
The request went to Roberts by default; he handles emergency appeals arising from the nation’s capital. The pause will last until the court decides whether to wipe two lower court rulings letting discovery move forward, which Roberts could himself decide or refer to the full court.
Solicitor General D. John Sauer had argued in the government’s emergency application that DOGE is not an agency. Instead, it’s a “presidential advisory body” housed within the Executive Office of the President, he said.
He suggested that U.S. District Judge Christopher Cooper, an appointee of former President Obama, ordered DOGE to submit to “sweeping, intrusive” discovery just to determine if it is, in fact, subject to FOIA, which lets the public request information from the government.
Cooper’s order allowed discovery about DOGE employees and all “recommendations” it has made to various agencies, in addition to other internal documents. He also ordered a deposition of acting DOGE Administrator Amy Gleason.
“That order turns FOIA on its head, effectively giving respondent a win on the merits of its FOIA suit under the guise of figuring out whether FOIA even applies,” Sauer said.
The government appealed to the Supreme Court after the U.S. Court of Appeals for the District of Columbia Circuit ruled last week that the discovery process could proceed.
The discovery request comes in a lawsuit brought by Citizens for Responsibility and Ethics in Washington (CREW), which claims the public has a right to know about DOGE’s “secretive operations.” It’s one of several lawsuits designed to test whether DOGE must respond to FOIA requests.
In response to the government’s request, CREW lawyer Nikhel Sus wrote in a brief to the court that Sauer’s emergency application made clear the administration is seeking from the justices a ruling on the merits as to whether DOGE is an agency.
“At issue here is a far narrower antecedent question: whether the court of appeals clearly and indisputably erred in refusing to disturb a district court order allowing limited discovery to ascertain DOGE’s agency status,” Sus wrote.
The face of DOGE for months was billionaire tech mogul Elon Musk, who was appointed as a special government employee when President Trump took office. However, he has since signaled he plans to step back.
Dozens of other lawsuits have been filed challenging DOGE’s access to agencies’ internal records and systems.
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