U.S. District Judge John Bates in Washington, D.C. last week declined to enter a temporary restraining order (TRO) barring Elon Musk and his DOGE associates from accessing data systems at the Department of Labor, the Department of Health and Human Services, and the Consumer Financial Protection Bureau (CFPB).
The New York Times reported that the ruling was “a victory for the Trump administration and Mr. Musk in their efforts to scrutinize the activities and spending of federal agencies.”
But Lawfare journalist and Yale Law School graduate Roger Parloff responded to the news on X by writing: “Judge Bates actually delivered a blow to DOGE—though it may only be felt in other cases.”
Parloff explained that one hurdle for plaintiffs suing DOGE (unions, labor and taxpayer advocacy groups citing privacy concerns, etc.) “is that DOGE is structured so that DOGE cadres are ‘detailed’ from US DOGE Service to the agencies and then become ‘agency employees.’ (I’m simplifying.) It’s set up that way so that DOGE cadres appear to fit into a Privacy Act exemption that permits ‘agency employees’ to access agency data systems if they ‘have a need for [it] in the performance of their duties.’”
Using screenshots of the judge’s opinion which he highlighted, Parloff asserted: “In fact, Bates ridiculed DOGE’s claimed non-agency status as ‘a Goldilocks entity: not an agency when it is burdened but an agency when it is convenient.’”
(Note: Parloff slightly misquotes the judge, writing “burdened” where the decision reads “burdensome”.)
… In fact, Bates ridiculed DOGE’s claimed non-agency status as “a Goldilocks entity: not an agency when it is burdened but an agency when it is convenient.” …
/9 pic.twitter.com/EJJIIYKWlJ— Roger Parloff (@rparloff) February 15, 2025
Parloff followed by predicting that “other lawyers can and will exploit Bates’ opinion in the effort to bring DOGE to public account,” and this week, he says, his prediction came to fruition.
On Thursday, the watchdog nonprofit organization Citizens for Responsibility and Ethics in Washington (CREW) sued DOGE “to compel transparency.”
According to CREW: “Federal law requires that US DOGE Service disclose its records under the Freedom of Information Act and preserve its records under the Federal Records Act. USDS, its unknown administrator, Elon Musk, the Office of Management and Budget and OMB Director Russell Vought, the National Archives, and Acting Archivist Marco Rubio have refused to comply with CREW’s FOIA requests and repeated demands for records preservation under the FRA, and therefore must be compelled to do so by the court.”
Told-ja so!
In bringing a new FOIA suit & prelim injunction motion vs DOGE, @CREWcrew relies in part on helpful language in Judge Bates’ denial of a TRO in a DOGE case before him.https://t.co/WqK1QS0uXT pic.twitter.com/z1hmNEKNSW— Roger Parloff (@rparloff) February 21, 2025
On Friday, Parloff wrote: “Told-ja so!” and added, “In bringing a new FOIA suit & prelim injunction motion vs DOGE, @CREWcrew relies in part on helpful language in Judge Bates’ denial of a TRO in a DOGE case before him.”
Note: CREW, which sued the first Trump administration multiple times (more than 200 lawsuits), also filed 41 lawsuits during George W. Bush’s administration, and 38 during Obama’s administration.