The Supreme Court vacated a denial of mandamus and ordered a discovery order against an executive-branch entity narrowed. The dispute returned to the Court in 2026.
Most mandamus petitions against discovery orders are denied. U.S. DOGE Service v. Citizens for Responsibility and Ethics in Washington is an exception, and it shows how Cheney operates when a court orders discovery from inside the executive branch.
The underlying case
Citizens for Responsibility and Ethics in Washington (CREW) sued the U.S. DOGE Service under the Freedom of Information Act, arguing that it was an "agency" subject to FOIA. To resolve that threshold question, the district court ordered limited discovery into the entity's functions and authority. The government sought a writ of mandamus from the D.C. Circuit, which denied it in relevant part, and then applied to the Supreme Court for a stay.
The Supreme Court's order
On June 6, 2025, the Court granted the application, treated it as a petition for certiorari, granted the petition, vacated the D.C. Circuit's order denying mandamus, and remanded, citing In re United States, 583 U.S. 29 (2017) (per curiam). The order made three points. Portions of the discovery order requiring disclosure of the content of internal recommendations and whether they were followed were not appropriately tailored. Whether an entity is an agency for FOIA purposes cannot turn on its ability to persuade. And separation-of-powers concerns counsel deference and restraint in discovery about internal executive-branch communications, citing Cheney v. U.S. District Court, 542 U.S. 367, 385 (2004). The Court directed the court of appeals to narrow the order and stayed the district court's discovery orders in the meantime. Three Justices noted their dissent.
The second round
On remand, the D.C. Circuit issued a further order in No. 25-5130 on July 14, 2025, and denied rehearing on December 18, 2025. The government then filed a new petition, No. 25-1103, captioned against the U.S. District Court for the District of Columbia, as mandamus cases often are. The respondent's brief in opposition argues that the narrowed discovery order complies with Cheney. The docket shows the petition distributed for the Court's conference of September 28, 2026. At the time of this review, no disposition had been entered.
What the case teaches about mandamus
- Discovery against the executive is different. Cheney recognized that the usual rule, that discovery disputes are reviewed after final judgment, gives way when the executive's interest in the confidentiality of its communications is at stake. DOGE applies that reasoning to discovery aimed at a threshold jurisdictional question.
- Tailoring is the battleground. The Court did not hold that no discovery was permissible. It held that parts of the order went further than the question required.
- Procedure follows the stakes. Treating a stay application as a certiorari petition and disposing of it summarily is unusual, and it reflects how seriously the Court treated the separation-of-powers concern.
Earlier treatments of discovery mandamus are in Kerr v. United States District Court and Executive Privilege Disputes. The use of FOIA alongside delay litigation in the immigration context is covered in FOIA Mandamus.
Key points
- On June 6, 2025, the Supreme Court vacated the D.C. Circuit's denial of mandamus and ordered a FOIA-related discovery order narrowed.
- The order relied on Cheney's separation-of-powers reasoning for discovery into internal executive communications.
- Whether an entity is a FOIA "agency" cannot turn on its ability to persuade.
- A second petition, No. 25-1103, was distributed for the September 28, 2026 conference; no disposition had been entered at review.
- The case confirms that tailoring, not a blanket prohibition, is the usual question in executive-branch discovery.
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