United States Court of Appeals
                            FOR THE DISTRICT OF COLUMBIA CIRCUIT
                                     ____________
No. 25-5130                                                September Term, 2024
                                                                       1:25-cv-00511-CRC
                                                       Filed On: May 14, 2025
In re: U.S. DOGE Service, et al.,

             Petitioners


      BEFORE:       Henderson, Wilkins, and Childs, Circuit Judges

ORDER

      Upon consideration of the petition for a writ of mandamus, the opposition thereto,
and the reply; and the motion for stay, the opposition thereto, and the reply, it is

       ORDERED, on the court’s own motion, that the administrative stay entered on
April 18, 2025, be dissolved. For the reasons stated in the memorandum
accompanying this order, it is

      FURTHER ORDERED that the petition be denied. It is

      FURTHER ORDERED that the stay motion be dismissed as moot.

      Pursuant to D.C. Circuit Rule 36, this disposition will not be published.


                                       Per Curiam


                                                         FOR THE COURT:
                                                         Clifton B. Cislak, Clerk

                                                 BY:     /s/
                                                         Selena R. Gancasz
                                                         Deputy Clerk
                                       MEMORANDUM
        The government petitions for a writ of mandamus to halt the district court’s order for
limited discovery into whether the United States DOGE Service (USDS) constitutes an “agency”
within the meaning of the Freedom of Information Act (FOIA). The Citizens for Responsibility
and Ethics in Washington (CREW) initiated the underlying litigation seeking disclosure of records
reflecting USDS’s organizational role, authorities, and operational reach. The government
contends that the district court’s order permitting narrow discovery impermissibly intrudes upon
the President’s constitutional prerogatives.
         Mandamus is an extraordinary remedy, appropriate only when the petitioner can show that
(1) it has no other adequate means to attain the relief it desires, (2) its right to the writ is clear and
indisputable, and (3) issuance of the writ is appropriate under the circumstances. See Cheney v.
U.S. Dist. Ct., 

 (2004) (citations omitted). In the FOIA context, whether an
entity is an “agency” turns on a functional analysis: whether it “exercises substantial independent
authority” or instead exists solely “to advise and assist the President.” CREW v. Office of Admin.,

 (D.C. Cir. 2009) (quoting Armstrong v. Exec. Off. of the President, 

 (D.C. Cir. 1996)); Soucie v. David, 

 (D.C. Cir. 1971). That inquiry,
by its nature, depends on the practical realities of the entity’s role, not merely on its formal
placement or authority within the Executive Office of the President.
        As an initial matter, the government forfeited its primary objection to the district court’s
order under Cheney by failing to raise that argument below. At no point during the summary
judgment briefing, or in opposing CREW’s discovery motion, did the government argue that the
requested discovery posed a separation-of-powers issue or risked intruding into the core functions
of the presidency. The government never discussed Cheney in its motion for summary judgment
and, in its opposition to the discovery order, it merely cited Cheney for the proposition that courts
should accord respect to the “office of the Chief Executive” and that any discovery “should be
fashioned to be as unobtrusive as possible.” Gov’t Opp’n to Mot. for Discovery at 8 (D.D.C. Apr.
8, 2025), ECF No. 34. It did not request protective narrowing of discovery on constitutional
grounds. Its opposition to discovery rested instead on assertions of burden and relevance.
        On the merits, the government has also not shown that it has no other adequate means of
relief. The government rests most of its argument on Cheney’s holding that line-by-line assertions
of executive privilege were not an adequate alternative means of relief in that case. But Cheney is
distinguishable in numerous respects. Even in the circumstances of Cheney, the Supreme Court
declined to issue a writ because it was “not a case where, after having considered the issues, [this
court] abused its discretion by failing to” do so. 

. More importantly, unlike in
Cheney, where the Vice President himself was subject to a wide-ranging third-party subpoena and
the asserted intrusion implicated the mental processes of the President’s advisers, see 

 at 381-
82, the discovery here is modest in scope and does not target the President or any close adviser
personally. The government retains every conventional tool to raise privilege objections on the
limited question-by-question basis foreseen here on a narrow and discrete ground. Although the
government protests that any such assertion of privilege would be burdensome, the only identified
burdens are limited both by time and reach, covering as they do records within USDS’s control
generated since January 20. It does not provide any specific details as to why accessing its own
records or submitting to two depositions would pose an unbearable burden. That is a far cry from
the sweeping discovery at issue in Cheney. See 

 (describing the discovery requests as
asking “for everything under the sky”). Moreover, unlike Cheney, the information sought here


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does not provide CREW “all the disclosure to which [it] would be entitled” if it prevails on the
merits. 

.
         Nor has the government asserted a clear and indisputable right. Petitioner can carry that
burden if the challenged order constitutes a “clear abuse of discretion.” 

 at 380 (quoting Bankers
Life & Cas. Co. v. Holland, 

 (1953)). Petitioner must “point to ‘cases in which
a federal court has held that’ relief is warranted ‘in a matter involving like issues and comparable
circumstances.’” In re Al Baluchi, 

 (D.C. Cir. 2020) (quoting Doe v. Exxon
Mobil Corp., 

 (D.C. Cir. 2007)). “Accordingly, we will deny mandamus even
if a petitioner’s argument, though ‘pack[ing] substantial force,’ is not clearly mandated by statutory
authority or case law.” 

 (quoting In re Khadr, 

 (D.C. Cir. 2016)). Open
legal questions do not present a clear and indisputable right to mandamus relief. See In re Al-
Nashiri, 

 (D.C. Cir. 2015). We have previously endorsed limited discovery to
determine agency status under FOIA. See Armstrong, 

; CREW, 

-
26. And that limited discovery can be used to follow up on factual questions put at issue by the
government’s declarations. See In re Cheney, 

 (D.C. Cir. 2008) (under the
Presidential Records Act). Even the government concedes, as it must, that such discovery is
sometimes appropriate. Pet. 22-23.
        In light of the government’s failure to make a persuasive showing on either of the first two
elements of the analysis, there is also no reason, in considering the totality of the circumstances,
to issue the writ. See Cheney, 

.
       Accordingly, the petition for a writ of mandamus is denied.




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