Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—SCOTUS tells D.C. Circuit to take ‘appropriate action to narrow’ discovery order in lawsuit against U.S. DOGE, (Jun 9, 2025)

By Brandi O. Brown, J.D.

Disclosures sought were not “appropriately tailored,” and there were “separation of powers concerns.”

At the end of last week, in the latest entry to a lawsuit stemming from the federal government’s refusal to comply with FOIA requests and records preservation demands made by the Citizens for Responsibility and Ethics in Washington (CREW), the U.S. Supreme Court, in a 6-3 decision, vacated an order denying a writ of mandamus, which was issued by the D.C. Circuit, that would have allowed discovery to proceed at the district court level.

Previously, on May 23, 2025, in a one sentence order signed by Chief Justice Roberts, the Court had ordered that the two orders made by the district court below, on April 15, 2025, and May 20, 2025, were to be stayed “pending further order of the undersigned or of the Court.”

Underlying lawsuit. In February, CREW filed suit against U.S. DOGE (USDS) and related federal officials accusing USDS of lack of transparency and seeking injunctive and declaratory relief that would require the defendants to comply with FOIA requests and Federal Records Act preservation requirements. They seek disclosure of records that reflect USDS’s organizational role, authorities, and operational reach.

First discovery order. In the first of the two challenged district court orders, issued on April 15, 2025, that court, in response to a motion for expedited discovery made by CREW, had granted in part and denied in part the motion, with the court limiting CREW’s requests “to some extent” but ordering that the defendants serve responses and objections to CREW’s discovery requests within seven days of the order, produce all responsible documents within 14 days, and complete depositions within 10 days from the deadline for producing documents.

On May 14, 2025, a D.C. Circuit panel had dissolved an administrative stay it entered on April 18, 2025, and denied the federal government’s petition for a writ of mandamus in a dispute over discovery, allowing discovery, as ordered by the district court, to proceed.

Second order. Then, in the second of the two district court orders, issued on May 20, 2025, that court again ordered discovery to proceed, consistent with the timelines included in its April 15 order. In its order, the district court prudently noted that “Should Defendants seek and obtain any stay from the Supreme Court,” it was ordered that they should “comply with the discovery schedule set forth above upon denial or dissolution of any stay issued by the Supreme Court without further order of this Court.”

SCOTUS disposition and explanation. As noted above, last Friday, June 6, 2025, the Supreme Court, based on the application for a stay that was presented to the Chief Justice and referred by him to the Court, which acquiesced to the applicants’ suggestion that the Court treat as an application as a petition for a writ of certiorari, issued a summary disposition vacating the D.C. Circuit’s order denying a writ of mandamus, which would have allowed discovery to proceed, and remanding the case to that court for further consideration in light of the Supreme Court’s order.

Not appropriately tailored. The Court explained that the portions of the April 15 discovery order requiring the government “to disclose the content of intra–Executive Branch USDS recommendations and whether those recommendations were followed” were not “appropriately tailored.” Specifically, the Court explained: “Any inquiry into whether an entity is an agency for the purposes of the Freedom of Information Act cannot turn on the entity’s ability to persuade.”

Judicial deference and restraint. Moreover, the Court cited “separation of powers concerns” that “counsel judicial deference and restraint in the context of discovery regarding internal Executive Branch communications.” On remand, the Court explained, the D.C. Circuit “should take appropriate action to narrow the April 15 discovery order consistent with this order.”

The Court thus determined that the April 15 and May 20 orders were “stayed pending remanded consideration at the Court of Appeals, and disposition of the petition for a writ of certiorari, if such writ is timely sought.”

“Should the petition for a writ of certiorari be denied,” the Court added, “this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.”

Justices Sotomayor, Kagan, and Jackson would have denied the application.

The district court case is No. 1:25-cv-00511-CRC. The D.C. Circuit court case is No. 25-5130. The U.S. Supreme Court Docket is No. 24A1122.

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