Labor & Employment Law Daily Wrap Up, HOUSE NEWS—Democrats ask for assurance that DOJ will represent GAO in FOIA fight, (Apr 22, 2025)

By Suzanne Cosgrove

The America First Legal Foundation (AFL) lawsuit also asks the court to declare that the GAO is an executive branch agency, and that it is subject to the FOIA.

Reps. Gerald Connolly (D-Va.), Joe Morelle (D-N.Y.), and Jamie Raskin (D-Md.), members of the Committees on Oversight and Government Reform, House Administration, and Judiciary, respectively, sent a letter dated April 18 to Attorney General Pam Bondi requesting confirmation that the Department of Justice (DOJ) will represent the Government Accountability Office (GAO), in a lawsuit filed by America First Legal Foundation (America First Legal Foundation v. U.S. Government Accountability Office, No 1:25-cv-00662-SLS, (D.D.C. March 6, 2025)).

According to court documents, the AFL’s suit sets the stage for a legal fight over which branch of government is the source of the GAO’s authority.

The filing by the conservative legal group contends that GAO is part of the executive branch, rather than a legislative branch agency, and must respond to AFL’s Freedom of information Act (FOIA) requests.

Precedents cited. However, Under well-settled law, GAO is “an independent agency within the Legislative Branch…[and] the Comptroller General, who leads the GAO, is ‘an Officer of the Legislative Branch,’” the Democratic legislators wrote. The courts have repeatedly affirmed DOJ’s authority and responsibility to represent GAO in court, they said.

Further, the Trump administration acknowledged GAO’s status as a legislative branch agency in a 2019 Office of Management and Budget (OMB) memorandum, the legislators said. It reads, in relevant part: “OMB respects GAO’s opinions as those of an agency of a co-equal branch of government. However, under the constitutional doctrine of separation of powers, a legal opinion by a Legislative Branch agency cannot bind the Executive Branch.”

In addition, the legislators cited examples of case law that they said clearly indicates the DOJ represents the GAO and other non-executive branch agencies in litigation: Int'l Fed'n of Prof'l & Technical Engineers v. United States, 934 F.Supp.2d 816 (D.Md.2013) (DOJ representing GAO in suit by union); Coll. Sports Council v. Gov't Accountability Office, 421 F.Supp.2d 59, 61 (D.D.C.2006).

The lawmakers called on DOJ to commit to “full, vigorous representation of GAO for the duration of the case” no later than April 23, 2025.

What is sought. Court documents show that on March 23, 2023, AFL submitted a FOIA request to GAO seeking several records related to an October 7, 2020, report, “Unaccompanied Children: Actions Needed to Improve Grant Application Reviews and Oversight of Care Facilities.”

On March 24, 2023, AFL received an email from GAO acknowledging receipt of the request and assigning it the case number. On May 15, 2024, GAO denied AFL’s FOIA request, stating that “[a]s an agency responsible to the Congress, GAO is not subject to the Freedom of Information Act.”

In the March 6, 2025, filing, AFL charged the defendant (GAO) violated the FOIA by failing, within the prescribed time limit, to reasonably search for records responsive to AFL’s FOIA requests, and asked the court to both declare that GAO is an executive branch agency subject to the FOIA, and to require the GAO to conduct FOIA-compliant searches immediately.

Congressmen’s retort. “It is our expectation that DOJ will fulfil its statutory responsibilities and zealously defend GAO against this seemingly meritless action,” the congressmen stated, and will represent GAO for the duration of the lawsuit in accordance with applicable laws, regulations, ethical guidelines and rules of professional conduct.

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