The previously established U.S. Digital Service was renamed United States DOGE Service (“USDS”) by Executive Order 14158, “Establishing and Implementing the President’s ‘Department of Government Efficiency’” at 90 Fed. Reg. 8441 (Jan. 20, 2025). Although not an official federal department, last week, the United States District Court for the District of Columbia ruled that the USDS likely qualifies as a federal “agency” for purposes of the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. See Citizens for Resp. and Ethics in Wash. v. U.S. DOGE Service, et. al, No. 25-cv-511, 2025 WL 752367 (D.D.C. Mar. 10, 2025).

FOIA generally provides the right to request access to records from federal agencies. Federal agencies are required to make the requested records available unless one of several exceptions applies to the record.  See 5 U.S.C. § 552. FOIA defines an “agency” to “include any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President [‘EOP’]). 5 U.S.C. § 552(f)(1).

In framing the issue, the Court explained that, “[t]o conclude that ‘an EOP unit is subject to FOIA,’ there must be ‘a finding that the entity in question wielded substantial authority independently of the President.‘” 2025 WL 752367 at *10 (quoting Citizens for Resp. & Ethics in Wash. v. Off. of Admin., 566 F.3d 219, 222 (D.C. Cir. 2009)).  By contrast, the Court explained that, “[i]f instead the unit’s ‘sole function is to advise and assist the President,’ it is not an agency. 2025 WL 752367 at *10 (quoting Alexander v. FBI, 456 F. App’x 1, 1–2 (D.C. Cir. 2011)).

The Court found that the executive orders establishing DOGE “appear to endow USDS with substantial authority independent of the President.” 2025 WL 752367 at *11. The Court explained that “[t]he initial executive order ‘establishes the Department of Government Efficiency to implement the President’s DOGE Agenda, by modernizing Federal technology and software to maximize governmental efficiency and productivity.’” Id. at *2 (quoting “Establishing and Implementing the President’s ‘Department of Governmental Efficiency.’” Exec. Order 14158, 90 Fed. Reg. 8441 (Jan. 20, 2025)) (italicized emphasis added). The court also cited the authorities enumerated in “‘Department of Government Efficiency’ Workforce Optimization Initiative.” Exec. Order 14210,  90 Fed. Reg. 9669 (Feb. 11, 2025). 

This, coupled with other public indicia concerning DOGE’s actions and initiatives recited in the opinion, led the Court to find that DOGE is “in fact exercising substantial independent authority.” 2025 WL 752367 at *11. Thus, according to the Court, DOGE “likely qualifies as an agency for the purposes of FOIA.”  Id. at *12.

The full decision can be found here. It is as of yet unknown whether other District Courts will be faced with this question and, if so, how they will rule; similarly, is unknown how the Circuit Court will rule should an appeal be filed.

Notably, although not at issue in the FOIA ruling, DOGE may be a Federal Advisory Committee (“FAC”) subject to the Federal Advisory Committee Act (“FACA”), 5 U.S.C. § 1001 et. seq. FACA mandates, among other things, various recordkeeping, disclosure, and conflicts requirements. FACs also are generally subject to the Government in Sunshine Act, which mandates that the meetings of most federal agencies be generally open to the public, and also requires the government to publicly declare planned meetings, keep minutes in closed meetings, and make the records generally available to the public. See 5 U.S.C. § 552b.

A FAC is any “committee, board, commission, council, conference, panel, task force, or other similar group” that: (1) includes at least one non-governmental member; (2) is “established or utilized to obtain advice or recommendations for the President or one or more agencies or officers of the Federal Government”; and (3) was “established or utilized by the President; or . . . established or utilized by one or more agencies.”  5 U.S.C. § 1001(2).

"[FACs] are created by Congress, Presidents, and executive branch agencies to gain expertise and policy advice from individuals outside the federal government. While they may be called by other names—such as task forces, panels, commissions, working groups, boards, councils, or conferences—the practical purpose of federal advisory committees typically remains the same: to facilitate an exchange of policy ideas among experts and affected parties and to provide recommendations to the federal government."

Kathleen Marchsteiner, Meghan Stuessy, Cong. Rsch. Serv., R47984, The Federal Advisory Committee Act (FACA): Overview and Considerations for Congress (2024).

The applicability of FACA and the Sunshine Act to USDS/DOGE are yet to be determined.

What This Means For Federal Contractors

It remains to be seen if the DC Circuit Court affirms this ruling, should there be an appeal, or if other District Courts will rule in a similar fashion.  However, unless the issue is definitely decided otherwise, Federal contractors whose contracts are terminated, subjected to stop work orders, or suspended should consider filing a FOIA request to both the procuring agency taking the contract action and DOGE.  FOIA is a critical tool for obtaining documentation regarding such actions so that contractors can both understand the Government’s rationale for terminating or down-sizing existing contracts and assess the propriety of adverse contract actions.  Understanding the underlying rationale allows contractors to adjust business plans and objectives to align with rapidly evolving federal priorities—this will be critical as new Government policy, mission, and organizational objectives are announced and rolled out.  Separately, assessing the propriety of an adverse contract action is a critical step in determining potential recourse (e.g., the unilateral Government termination of a lease for privately-owned real property where the lease does not include termination rights, or the termination of federal financial assistance without justifying that the award no longer effectuates the program goals or agency priorities). 

Contractors should carefully review the terms of their current agreements with federal agencies.  If instructed by an agency to alter or stop performance of the contract requirements, contractors should provide timely notice that any such instruction is considered a stop-work order or suspension of work, and then document all costs associated with stopping work.  Read more about terminations in Dentons US, LLP client alert “Termination Turmoil: Cost Recovery Amidst Trump/DOGE Suspension, Stop-Work and Termination of Contracts and Grants.”

More Terminations Or Similar-Type Contract Actions Should Be Expected

As of March 11, 2025, the DOGE website asserts $115 billion in “Estimated Savings” via a “[c]ombination of asset sales, contract/lease cancellations and renegotiations, fraud and improper payment deletion, grant cancellations, interest savings, programmatic changes, regulatory savings, and workforce reductions”; of this, approximately $20 billion of the savings are related to 5356 “contract terminations.”  For contract terminations, the website lists the procuring agency, a description of the contract, and what DOGE holds out to be the “value” of the savings.  For now, the list is updated in real time as agencies complete batches of contract terminations, with the last update made as of March 11th.  Real-time updates certainly suggest that a good deal of new information—and thus additional adverse contract actions—should be expected.

Additionally, on February 26, 2025, the White House released Executive Order 14222 “Implementing the President’s ‘Department of Government Efficiency’ Cost Efficiency Initiative”, which augment’s DOGE’s authority and suggests additional terminations of contracts.

Executive Order 14222 requires federal agencies to:

• create a central payment system to “seamlessly” record payments and a written justification for each payment.  The system must give agency heads the ability to “pause” payments without a justification so that they can be reviewed.
• create written justifications for payments under covered contracts, subject to exceptions approved by agency heads.
• review covered contracts and grants and terminate or modify them “to reduce overall Federal spending or reallocate spending to promote efficiency and advance the policies of [the] Administration.”  Agencies are required to complete this review, in consultation with DOGE personnel on or before March 28th, and agencies also must conduct a comprehensive review of their contracting policies.
• create an additional central system for federally funded travel for conferences and other purposes, prohibiting non-essential travel without written justification.
• freeze for thirty days all credit cards held by federal agency employees, with exceptions for disaster relief, natural disaster response benefits, or other operations as determined by agency heads.
• take inventory of the agency’s real property, identify all termination rights under existing leases of government-owned property, and determine, in consultation with DOGE, whether to exercise such termination rights.  The Administrator of General Services is specifically instructed to create a plan for the disposition of government owned real property that has been deemed “no longer needed.”

Notably, the Department of the Air Force (“DAF”) has already mobilized on a portion of Executive Order 14222 by issuing a memo on March 2, 2025 providing interim guidance concerning travel.  Department of the Air Force, Interim Guidance for Executive Order 14222, “Implementing the President’s ‘Department of Government Efficiency’ Cost Efficiency Initiative” (Mar. 2, 2025).  The memo lists categories of “essential purposes,” one of which is the performance of an official duty or organizational mission requirement. The memo states that travel for an essential purpose will not be limited.  These essential purposes likely cover most types of travel undertaken by DAF military members and civilian employees.  Further, the memo states that properly authorized travel must be compensated and expenses must be paid with a Government travel credit card.  Therefore, the memo continues, mission essential travel is included in “operations” for which the credit card freeze is excepted.

It remains to be seen whether other agencies follow suit or implement the travel requirements of Executive Order 14222 more strictly or liberally than has DAF.  Regardless, however, the Executive Order strongly signals that additional adverse contract actions are on the horizon.