Project on Government Oversight, Inc. v. Trump

• Court: District Court, District of Columbia
• Decided: June 17, 2025
• Docket: Civil Action No. 2025-0527
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PROJECT ON GOVERNMENT OVERSIGHT, INC.,

Plaintiff, Civil Action No. 25-527 (JEB) v. DONALD J. TRUMP, et al.,

Defendants.

MEMORANDUM OPINION

Project on Government Oversight has filed this suit against several entities falling under

the umbrella of the Department of Government Efficiency, alleging violations of the entities’

statutory recordkeeping obligations. To that end, it seeks a preliminary injunction ordering the

DOGE entities to preserve all records pursuant to the Federal Records Act. Because POGO has

not shown a likelihood of irreparable harm, it does not stick the landing. The Court will thus

deny its Motion.

I. Background

A. Legal Background

As this action implicates the respective obligations imposed by two related statutes, the

Court begins there. First, the Federal Records Act “governs the creation, management and

disposal of federal records.” Armstrong v. Bush, 924 F.2d 282, 284 (D.C. Cir. 1991). To ensure

“[a]ccurate and complete documentation of the policies and transactions of the Federal

Government,” while “prevent[ing] the creation of unnecessary records,” 44 U.S.C. § 2902, the

FRA defines federal records as “all recorded information, regardless of form or characteristics,

1 made or received by a Federal agency under Federal law or in connection with the transaction of

public business and preserved or appropriate for preservation by that agency or its legitimate

successor as evidence of the organization, functions, policies, decisions, procedures, operations,

or other activities of the United States Government or because of the informational value of data

in them.” Id. § 3301(a)(1)(A). It dictates that agencies must “make and preserve records

containing adequate and proper documentation of the organization, functions, policies, decisions,

procedures, and essential transactions of the agency.” Id. § 3101. It also requires that agencies

“establish safeguards against the removal or loss of records.” Id. § 3105.

The Presidential Records Act likewise imposes recordkeeping requirements on the

federal government, but on the President and Vice President rather than on executive-branch

agencies. Id. § 2201(2)(B)(i). The PRA defines presidential records as “documentary

materials . . . created or received by the President, the President’s immediate staff, or a unit or

individual of the Executive Office of the President whose function is to advise or assist the

President, in the course of conducting activities which relate to or have an effect upon the

carrying out of the constitutional, statutory, or other official or ceremonial duties of the

President.” Id. § 2201(2). It excludes records “of a purely private or nonpublic character which

do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other

official or ceremonial duties of the President.” Id. § 2201(2)(B)(ii), (3). The statute requires the

President to “take all such steps as may be necessary to assure that the activities, deliberations,

decisions, and policies that reflect the performance of the President’s constitutional, statutory, or

other official or ceremonial duties are adequately documented and that such records are

preserved and maintained as Presidential records.” Id. § 2203(a).

2 B. Factual and Procedural Background

On January 20, 2025, the newly inaugurated President Trump issued Executive Order

14158, which “establishe[d] the Department of Government Efficiency to implement the

President’s DOGE Agenda, by modernizing Federal technology and software to maximize

governmental efficiency and productivity.” Establishing and Implementing the President’s

“Department of Government Efficiency”, 90 Fed. Reg. 8441, 8441 (Jan. 20, 2025). In the

Order, the President renamed the United States Digital Service as the United States DOGE

Service (USDS), created the U.S. DOGE Service Temporary Organization (USDSTO),

established a USDS Administrator, and directed federal agencies to establish internal DOGE

teams. Id. A few weeks later, Trump issued another Executive Order, this time elaborating on

DOGE’s role in “eliminating waste, bloat, and insularity” from the “Federal bureaucracy.”

Implementing the President’s “Department of Government Efficiency” Workforce Optimization

Initiative, 90 Fed. Reg. 9669, 9669 (Feb. 11, 2025). POGO alleges that, across dozens of

agencies, the DOGE entities have since slashed personnel, eliminated contracts, gained access to

sensitive data, and directed policy initiatives. See ECF No. 16 (Am. Compl.), ¶¶ 51–56, 61.

According to POGO, DOGE has done so while “run[ning] roughshod over record

keeping requirements designed, in part, to bring greater transparency and accountability to the

government.” Id., ¶ 57. The DOGE entities and their employees have allegedly “wrapped

themselves in secrecy,” id., ¶ 60, in an effort to “ensure no records exist.” Id., ¶ 62. DOGE has

consequently been the subject of several lawsuits seeking to promote greater public insight into

its operations. In the course of that litigation, two judges of this district court have already

ordered DOGE to preserve large swaths of records. See Citizens for Resp. & Ethics in Wash. v.

3 U.S. DOGE Serv. (CREW), 2025 WL 752367, at *16–17 (D.D.C. Mar. 10, 2025); Am. Oversight

v. U.S. Dep’t of Gov’t Efficiency, No. 25-409, Minute Order of Apr. 2, 2025 (D.D.C.).

POGO “is a nonpartisan independent organization” that “champions reforms to achieve a

more effective, ethical, and accountable federal government that safeguards constitutional

principles.” Am. Compl., ¶ 4. To advance that mission, the organization conducts

“investigations using FOIA, interviews, and other fact-finding strategies.” Id. As such, POGO is

“a frequent FOIA requester” and “has a strong operational interest in government compliance

with the recordkeeping obligations that the FRA imposes on all federal agencies and agency

heads.” Id., ¶ 5.

Plaintiff filed this lawsuit in February, claiming that DOGE’s recordkeeping policies (or

lack thereof) violate the FRA. See ECF No. 1 (Compl.), ¶ 1. It named President Trump, DOGE,

USDS, USDSTO, and the Acting USDS Administrator as Defendants. Id., ¶¶ 7–11. (As noted

above, the catch-all term “DOGE” actually refers to an array of DOGE-affiliated entities; given

that Plaintiff’s arguments appear to apply to USDS alone, this Opinion uses DOGE and USDS

interchangeably.) POGO sought a preliminary injunction “requiring Defendants to collect,

retain, and preserve their records, including all electronic records, pursuant to a recordkeeping

policy that complies with the FRA and guidance from [the National Archives and Records

Administration].” ECF No. 11-1 (First PI Mot.) at 2. In opposing that Motion, Defendants

submitted a copy of USDS’s March 25, 2025, Records Retention Policy, which declares that

USDS personnel “are subject to certain records retention obligations under the [PRA].” ECF No.

12-1 (Records Retention Policy). Dubious that POGO had demonstrated irreparable injury in

light of other courts’ preservation orders and the Records Retention Policy, this Court denied the

Motion without prejudice and permitted Plaintiff (with Defendants’ agreement) to submit an

4 Amended Complaint and a renewed preliminary-injunction Motion. See ECF No. 15 (May 2

Hrg. Tr.) at 14:2–15:21. POGO filed those pleadings shortly thereafter. See Am. Compl.; ECF

No. 17-1 (Mot.). As these proceedings have unfolded, POGO has submitted several FOIA

requests with USDS and other affiliated government entities, and it expresses an intent to file

additional requests with DOGE in the future. See Am. Compl., ¶¶ 7–10.

II. Legal Standard

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary

injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to

suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in

his favor, and [4] that an injunction is in the public interest.” Sherley v. Sebelius, 644 F.3d 388,

392 (D.C. Cir. 2011) (alterations in original) (quoting Winter, 555 U.S. at 20). “The moving

party bears the burden of persuasion and must demonstrate, ‘by a clear showing,’ that the

requested relief is warranted.” Hospitality Staffing Solutions, LLC v. Reyes, 736 F. Supp. 2d

192, 197 (D.D.C. 2010) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290,

297 (D.C. Cir. 2006)).

Before the Supreme Court’s decision in Winter, courts weighed these factors on a

“sliding scale,” allowing “an unusually strong showing on one of the factors” to overcome a

weaker showing on another. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92

(D.C. Cir. 2009) (quoting Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 361 (D.C. Cir.

1999)). “The basis of injunctive relief,” regardless, “has always been irreparable harm.”

Sampson v. Murray, 415 U.S. 61, 88 (1974) (cleaned up) (quoting Beacon Theatres, Inc. v.

Westover, 359 U.S. 500, 506–07 (1959)). The inability “to demonstrate that irreparable injury is

5 likely in the absence of an injunction” will thus defeat a motion. See Winter, 555 U.S. at 22

(emphasis omitted).

III. Analysis

POGO once again seeks “a preliminary injunction requiring Defendants to collect, retain,

and preserve their records, including all electronic records, pursuant to a recordkeeping policy

that complies with the FRA and guidance from NARA.” Mot. at 2. Plaintiff bases its claim of

irreparable harm on the risk that DOGE’s records will be irretrievably destroyed, foreclosing its

ability to obtain them later on. Id. at 30. As POGO explains, that threat “extends to records

specifically requested in its pending FOIA request with USDS,” “records responsive to future

requests POGO intends to file with DOGE,” and “a wide range of DOGE-related issues beyond

what i[t] has specifically requested in its FOIA requests.” Id. Plaintiff’s concerns, however, are

amply addressed by USDS’s repeated and explicit commitment to comply with the PRA, its

Records Retention Policy, and the preservation orders entered against DOGE in other litigation.

In discussing those three bases below, the Court ultimately concludes that POGO cannot show

that its claimed injury, which turns solely on the risk of document destruction, is “certain and

great,” “actual and not theoretical,” and “of such imminence that there is a clear and present need

for equitable relief.” Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (cleaned up). It will

consequently deny POGO’s Motion on that ground without considering the other Winter factors.

A. Relationship Between FRA and PRA

USDS, as noted, has issued a Records Retention Policy implementing its “obligations

under the [PRA],” and it has promised Plaintiff that it “has taken all steps to preserve all USDS

records consistent with its obligations under the PRA.” Am. Compl., ¶ 67. It has, moreover,

submitted in another case a sworn declaration from its Administrator averring that the DOGE

6 entities “have obligations to maintain records and do so pursuant to the [PRA].” ECF No. 11-2,

Exh. C (Amy Gleason Decl.), ¶ 25. That is not enough, says POGO. The watchdog insists that

USDS must instead satisfy the requirements of the FRA. That is because POGO believes that

USDS qualifies as an agency (which falls under the purview of the FRA), not an entity whose

function is to advise the President (which is within the PRA’s ambit). Besides, Plaintiff argues,

the Records Retention Policy is deficient under the PRA.

At this early stage of the litigation, POGO’s contention regarding the applicability of the

FRA is immaterial. To be sure, Plaintiff has raised difficult merits questions about USDS’s status

vel non as an agency under the FRA, which at least one judge has already decided in POGO’s

favor. See CREW, 2025 WL 752367, at *10–12. This Court may indeed have to grapple with

that issue as this litigation progresses. For now, however, Plaintiff seeks an injunction requiring

document preservation for the sole purpose of “prevent[ing] any irrevocable removal, loss, or

destruction of DOGE records during the pendency of this case.” Mot. at 2. In other words, as

long as some policy protects the records, POGO is safe from the threat of destruction.

Such is the case here given that any PRA-compliant records-retention policy necessarily

also obeys the strictures of the FRA. That is because the PRA, by its own terms, covers a

broader set of records than does the FRA. The latter statute encompasses only records that are

“preserved or appropriate for preservation by [an] agency . . . as evidence of the organization,

functions, policies, decisions, procedures, operations, or other activities of the United States

Government or because of the informational value of data in them.” 44 U.S.C. § 3301(a)(1)(A).

The FRA therefore covers records that are either actually maintained or deemed appropriate for

maintenance by the agency, authorizing an agency to exercise discretion in determining which

records should be preserved. See 36 C.F.R. § 1222.10(b)(5)–(6). The PRA’s definition of

7 records, on the other hand, leaves no comparable room for an official’s judgment; it includes all

“documentary materials . . . created or received by the President, the President’s immediate staff,

or a unit or individual of the Executive Office of the President whose function is to advise or

assist the President, in the course of conducting activities which relate to or have an effect upon

the carrying out of the constitutional, statutory, or other official or ceremonial duties of the

President.” 44 U.S.C. § 2201(2). It contains no discretionary language and excludes only

personal records from its reach. Id. § 2201(2)(B)(ii), (3). The PRA, moreover, contains a

provision specifically requiring and detailing the preservation of records reflecting “official

business conducted using non-official electronic messaging accounts,” id. § 2209, while the FRA

does not.

In addition to defining records differently, the PRA and FRA impose different retention

and disclosure requirements. Presidential records are presumed to be permanent. During his

term of office, the President may dispose of a presidential record only after obtaining the

Archivist’s written views regarding the value of its preservation, id. § 2203(c); after the

presidential term has concluded, the Archivist must deposit all of the records in a government-

operated archival facility, id. § 2203(g)(2), and may dispose of them only if she determines that

they lack sufficient value to justify continued preservation. Id. § 2203ss(g)(4). Federal records,

however, have no such presumption of permanence. Agency heads regularly submit to the

Archivist lists of records, including categories of records, that they believe do not warrant

continued preservation and intend to dispose of, id. § 3303, and the Archivist authorizes them to

do so if she agrees. Id. § 3303a. Indeed, while “[a]ll . . . presidential records are considered

permanent records and are eventually preserved at the appropriate NARA-administered

presidential library for public access,” “only 2%–3% of all federal records are transferred to

8 NARA for permanent retention.” Meghan M. Stuessy, Cong. Rsch. Serv., R43072, Common

Questions About Federal Records and Related Agency Requirements 4 (2015); see also David S.

Ferriero, NARA’s Role Under the Presidential Records Act and the Federal Records Act,

Prologue Mag. (2017), https://perma.cc/D5DJ-5H4Z (“While only [less than 5 percent] of

agency records are permanent, all presidential records are considered permanent . . . .”).

Last, presidential records are subject to a presumption of disclosure to the public. The

Archivist has “an affirmative duty” to make presidential records “available to the public as

rapidly and completely as possible.” 44 U.S.C. § 2203(g)(1). That duty is subject to narrow

carveouts, id. § 2204, which are themselves subject to exceptions. Id. § 2205. The FRA, by

contrast, instructs agencies only to “identify[] records of general interest or use to the public that

are appropriate for public disclosure” and to “post[] such records in a publicly accessible

electronic format.” Id. § 3102(2). There is no additional duty to disclose federal records to the

public.

So why does POGO care which statute covers the records? “[W]hile both laws require

the preservation of records, the procedures to prevent improper destruction of documents

covered by the FRA are significantly more demanding.” Armstrong v. Exec. Off. of the Pres., 90

F.3d 553, 556 (D.C. Cir. 1996). Another important difference between the statutes is that

presidential records — unlike federal records — are not subject to FOIA because they were not

created by an agency. See Armstrong v. Exec. Off. of the Pres., Off. of Admin., 1 F.3d 1274,

1292 (D.C. Cir. 1993). Such differences, however, are immaterial for current purposes. Our

Circuit has held that guidelines that purport to implement the PRA are reviewable for compliance

with that statute, thereby foreclosing any government efforts to “effectively shield all federal

records . . . from the provisions of the FRA.” Armstrong, 1 F.3d at 1293–94. The necessary

9 corollary to that holding is that a PRA-compliant recordkeeping policy cannot be a mechanism

for evading the FRA’s recordkeeping requirements. That is because, given that the PRA requires

the preservation of a broader scope of records than does the FRA, the Government could not use

the former to avoid preserving records under the latter. Put differently, any PRA-compliant

records policy necessarily protects from destruction all the records that would be safeguarded

under the FRA — regardless of which regime is actually appropriate. Indeed, Plaintiff has

already conceded as much. See June 5 Hrg. Tr. at 8:20–8:22. Consequently, if POGO ultimately

prevails on its argument that DOGE should be subject to the FRA such that its desired records

may be obtained through FOIA, those records will be available regardless of the regime from

which USDS currently understands its preservation obligations to flow. For the instant

irreparable-harm analysis, then, the point is that the preservation Plaintiff seeks is required under

both statutes.

B. Compliance with PRA

Defendants have given the Court ample reasons to believe that they are complying with

the PRA, and Plaintiff has not refuted those representations. DOGE informed POGO that it “has

taken all steps to preserve all USDS records consistent with its obligations under the PRA,” Am.

Compl., ¶ 67, and its Administrator has sworn that the DOGE entities “have obligations to

maintain records and do so pursuant to the [PRA].” Gleason Decl., ¶ 25. But DOGE’s Records

Retention Policy is the most detailed assurance of all. It instructs personnel that “the basic rule is

to preserve all work-related communications and records, regardless of format.” It then explains:

“[R]ecord” is a broad term that includes — but is not limited to — any of the following to the extent they relate top government business: • Memoranda, letters, notes, reports, and other written communications, including with persons at other federal agencies and outside of government;

10 • Drafts, mark-ups, or comments on drafts that are circulated or shown to others; • Official government forms, such as financial disclosures and ethics paperwork; • Directives and policy statements; • Emails, chats, text messages, and other electronic communications (e.g., on Mattermost); • Voicemails or audio recordings; and • PowerPoint slides, videos, photographs, and other media.

Id.

The Policy exempts “[p]urely personal records that have no relation to, or effect on,

government work,” as well as “certain materials without historical value, such as notes, drafts, or

similar documents that are not circulated or that are not created or saved for purposes of

documenting the activities or deliberations of the Administration.” Id. It strongly encourages

personnel to comply with those requirements by “us[ing] work devices for all work-related

activities” or, if they “happen to receive work-related messages on [their] personal device[s] —

whether via text, Signal, a personal email address, or otherwise” — to “make sure to capture and

transmit those messages to [their] work device[s].” Id. It finally advises employees to

“[d]isabl[e] auto-delete features on any such messaging services.” Id.

The Court is hard pressed to see how such a policy contravenes the PRA. In fact, the

Policy is perhaps even broader than what the PRA requires, ordering employees to preserve “all

work-related communications and records,” id. (emphasis altered), as opposed to only those

records “relat[ing] to or hav[ing] an effect upon the carrying out of the constitutional, statutory,

or other official or ceremonial duties of the President.” 44 U.S.C. § 2201(2). Although POGO

points to discrepancies between the Policy’s directives and the statutory language, see Mot. at

27–29, those deviations do not appear to create any substantive difference in coverage. For

example, Plaintiff unpersuasively objects to the Policy’s instruction to “make sure to capture and

11 transmit [work-related messages received on a personal device] to your work device” as

insufficiently precise or mandatory. Id. at 28. It also believes that the Policy’s directive to

forward such messages to a “work device” is inconsistent with the statutory requirement to

forward them to an “official electronic messaging account.” Id. POGO does not explain, and the

Court cannot discern, how an instruction to “make sure” to transmit messages could be

interpreted as confusing or optional; how a “work device” would not necessarily include an

“official electronic messaging account”; or, more generally, how the Policy could lead to fewer

records being preserved than the statute requires. The differences in terminology can instead

largely be chalked up to the Policy’s effort, as Defendant explains, to use a “plain language style

so that it can be easily understood by USDS employees.” ECF No. 19 (Opp.) at 26. The Court,

furthermore, finds it even more difficult to understand why the Policy would not also fulfill any

document-preservation obligations imposed by the less inclusive FRA.

Perhaps recognizing the comprehensiveness of the Records Retention Policy, Plaintiff

suggests that DOGE personnel may not have been informed of the Policy at all and contends that

employees are in any case engaging in widespread noncompliance. See Mot. at 7, 32–33. In the

hearing on this Motion, moreover, the watchdog protested that “the Government has offered no

evidence that any employee of DOGE has been trained about the record requirements

and . . . that they fully appreciate their obligations to preserve federal records.” June 5 Hrg. Tr. at

15:15–16:9. POGO, however, places the responsibility on the wrong party. It is Plaintiff’s

burden to show a risk of irreparable harm. See Sea Containers Ltd. v. Stena AB, 890 F.2d 1205,

1210–11 (D.C. Cir. 1989). The Government also enjoys a presumption of administrative

regularity and good faith absent a clear showing to the contrary. See FTC v. Owens-Corning

Fiberglas Corp., 626 F.2d 966, 975 (D.C. Cir. 1980); Ass’n of Nat’l Advertisers, Inc. v. FTC, 627

12 F.2d 1151, 1170, 1173–74 (D.C. Cir. 1979). Buttressed by a sworn declaration from a

knowledgeable government official, that presumption cannot be defeated by “the mere allegation

of bad faith.” Carter v. U.S. Dep’t of Com., 830 F.2d 388, 393 (D.C. Cir. 1987); see also Hayden

v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir. 1979) (“mere allegation of

agency misrepresentation or bad faith” and “past agency misconduct in other unrelated cases”

insufficient). Courts instead withhold the presumption only when plaintiffs present “tangible

evidence of bad faith.” Carter, 830 F.2d at 393. As POGO has not done so here, the Court must

extend the presumption of regularity to Defendants. Plaintiff’s arguments regarding DOGE’s

compliance with the PRA therefore do not prevail.

C. Preservation Orders

Even if Defendants’ apparent compliance with the PRA’s preservation obligations were

not enough, the DOGE entities are also subject to broad preservation orders as a result of other

litigation. Pursuant to one court order, USDS must preserve “any and all communications

between employees of OMB and any other individual purporting to represent, work for, or

communicate on behalf of Elon Musk or Steve Davis”; “all memoranda, directives, or policies

regarding changes to the operations of USDS”; “all communications with the office of the

Administrator of the USDS regarding actual or potential changes to USDS operations”; and “all

communications between USDS personnel and personnel of any federal agency outside of the

Executive Office of the President regarding that agency’s staffing levels (including any effort to

reduce staffing), treatment of probationary employees, contract and grant administration, access

to agency information technology systems, or the authority of USDS in relation to that agency.”

CREW v. U.S. DOGE Serv., No. 25-511, ECF No. 13 (Reply) at ECF pp. 33–34 (D.D.C. Mar. 4,

13 2025); see also CREW, 2025 WL 752367, at *17 (ordering preservation of all documents

responsive to those requests).

Under a different order, USDS must also preserve (among other things) “all email

communications between Elon Musk,” or “[a]nyone serving as Elon Musk’s chief of staff,

secretary, scheduler, assistant, senior advisor, and/or special advisor,” and anyone

communicating on behalf of Tesla, SpaceX, Starlink, The Boring Company, xAI, X, Neuralink,

and several other external entities. See Am. Oversight v. U.S. DOGE, No. 25-409, ECF No. 5

(Am. Compl.), ¶ 120 (D.D.C. Mar. 5, 2025); see Am. Oversight, No. 25-409, Minute Order of

Apr. 2, 2025 (ordering preservation of all documents responsive to those requests). Given the

breadth of those preservation orders, many — if not most — of the documents of interest to

POGO will already be preserved.

* * *

In sum, Plaintiff’s fear of document destruction has been allayed several times over.

POGO is therefore in little danger of losing access to documents to which it may be entitled if it

prevails in its litigation against DOGE, much less at risk of irreparable harm. It consequently

cannot demonstrate that it is entitled to a preliminary injunction.

IV. Conclusion

For the foregoing reasons, the Court will deny Plaintiff’s Motion for Preliminary

Injunction. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: June 17, 2025