AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS et al v. DEPARTMENT OF LABOR et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN FEDERATION OF LABOR
AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS, et al.,
Plaintiffs,
v. 	Civil Action No. 25-339 (JDB)
DEPARTMENT OF LABOR, et al.,
Defendants.
MEMORANDUM OPINION
Nearly two months ago, the Court denied cross-motions for summary judgment in this case,
citing ongoing disputes of material fact. See Am. Fed’n of Lab. & Cong. of Indus. Orgs. v. DOL
(“AFL-CIO VII”), Civ. A. No. 25-339, 2026 WL 879518 (D.D.C. Mar. 31, 2026). Now, plaintiffs
move for leave to conduct supplemental discovery prior to further dispositive motion practice. The
Agency defendants oppose plaintiffs’ motion, contending that the Agencies’ forthcoming
declarations will resolve all outstanding factual issues, so additional discovery is unwarranted. For
the reasons explained in this opinion, the Court grants plaintiffs’ motion in part, authorizing only
written discovery, narrowly tailored to the factual issues the Court has previously identified.
BACKGROUND
The Court assumes familiarity with this case’s factual background and extensive
procedural history.1 But briefly—and as is relevant here—plaintiffs sued the Department of Labor
(DOL) and the Department of Health and Human Services (HHS) in early February of 2025,
alleging that the Agencies had arbitrarily and capriciously abandoned their prior data access
1 For a complete recounting of that history see AFL-CIO VII, 2026 WL 879518, at *2–6.
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policies and adopted a new policy allowing affiliates of President Trump’s DOGE initiative
unfettered access to their sensitive records. See Am. Compl. [ECF No. 21] at 59–62, 64–66.
Plaintiffs further alleged that the Agencies’ shift in policy violated both the Privacy Act and the
Administrative Procedure Act. Id.
The Agencies denied plaintiffs’ allegations, insisting that they had not altered their data
access policies to accommodate DOGE. Because the case turned on whether the Agencies had
adopted the policies plaintiffs plausibly alleged and challenged as unlawful—and because no
traditional administrative record of the Agencies’ actions existed—the Court authorized limited,
expedited discovery prior to deciding plaintiffs’ motion for a preliminary injunction. See Am.
Fed’n of Lab. & Cong. of Indus. Orgs. v. DOL (“AFL-CIO III”), 349 F.R.D. 243, 246 (D.D.C.
2025).
The Agencies did not appeal the Court’s discovery order, and discovery proceeded,
including Rule 30(b)(6) depositions of DOL, HHS, and the United States DOGE Service (USDS).
After the Court denied plaintiffs’ motion for a preliminary injunction and denied in part
defendants’ motion to dismiss, the parties agreed that the record created during the limited,
expedited discovery period would constitute the record on review at summary judgment. See Pls.’
Mot. for Summ. J. [ECF No. 93-2] at 5 n.2; Defs.’ Opp’n [ECF No. 106] at 6.
But the record that the parties compiled through expedited discovery failed to resolve two
factual disputes at the core of this case. First, it did not clarify whether DOGE affiliates were
conducting software modernization projects on sensitive agency systems and were granted system
access to complete those projects, consistent with longstanding policy. See AFL-CIO VII, 2026
WL 879518, at *18. Second, the record was incomplete as to whether DOGE affiliates’
employment relationships were structured such that the affiliates were functionally internal agency
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employees at DOL and HHS and were therefore permitted to access agency systems under the
Privacy Act. See id. at *22–23.
Citing these material, disputed facts, the Court denied the parties’ cross-motions for
summary judgment. Id. at *25. The Court then ordered HHS to respond to an interrogatory it
previously refused to answer regarding its DOGE affiliates’ concurrent employment relationships,
and informed the Agencies that it would permit them to supplement the record with
(1) declarations addressing their data access policies for employees or detailees with concurrent
employment at other agencies, and (2) evidence that DOGE affiliates needed and were granted
sensitive system access because of their work on software modernization projects. Id. at *18, 23.
In light of the Court’s denial of the parties’ cross-motions for summary judgment, and the
Agencies’ forthcoming declarations, plaintiffs moved for leave of court to conduct supplemental
discovery. Pls.’ Mot. [ECF No. 105]. Specifically, plaintiffs request permission to issue three
new interrogatories, three new requests for production, and to depose four former DOGE affiliates
on the nature of their work at the Agencies and their reporting relationships. Id. at 9–10.
Plaintiffs’ proposed interrogatories seek information on what software modernization
projects DOGE affiliates worked on, the channels DOGE affiliates used to communicate with each
other and DOGE leadership, a summary of how DOGE affiliates used sensitive agency systems,
and an update, if any, on the Agencies’ prior interrogatory responses. Proposed Suppl. Disc. [ECF
No. 105-1] at 4–5. Plaintiffs’ proposed requests for production seek records of DOGE affiliates’
sensitive system access requests, work within those systems, and correspondence with a broad
swath of federal employees and officers. Id. at 7.
The Agencies oppose plaintiffs’ motion to conduct additional discovery, and object to their
proposed discovery requests as irrelevant and burdensome. Defs.’ Opp’n at 1–3.
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LEGAL STANDARDS
Three foundational legal rules guide the Court’s consideration of plaintiffs’ motion for
supplemental discovery.
First, although judicial review of agency action generally takes place within the confines
of the administrative record, extra-record discovery is appropriate in APA actions where “the
record is so bare that it prevents effective judicial review.” Theodore Roosevelt Conservation
P’ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010) (citation modified); see also Camp v. Pitts,
411 U.S. 138, 142–43 (1973). This may occur in the rare case where, as here, the administrative
record is nonexistent because the government denies that it adopted the policy or practice that is
challenged. See, e.g., Hisp. Affs. Project v. Acosta, 901 F.3d 378, 388 (D.C. Cir. 2018); Escobar
Molina v. DHS, Civ. A. No. 25-3417, 2026 WL 1256234, at *19–23 (D.D.C. May 7, 2026).
Second, courts may not award summary judgment by default. Winston & Strawn, LLP v.
McLean, 843 F.3d 503, 507–08 (D.C. Cir. 2016). Accordingly, where disputed, material facts
preclude the entry of summary judgment, a district court has broad discretion to give the parties
an opportunity to supplement the record to address the disputed facts, or to “issue any other
appropriate order.” Fed. R. Civ. P. 56(e); see, e.g., Am. Ctr. for Int’l Lab. Solidarity v. Chavez-
DeRemer, 789 F. Supp. 3d 66, 102 (D.D.C. 2025). Re-opening the factual record after the denial
of cross-motions for summary judgment is especially prudent in APA cases, which must be
decided by judges not juries, see Fed. R. Civ. P. 39 (prohibiting jury trials by consent against the
United States, unless authorized by federal statute), and generally do not proceed to trial.
Furthermore, courts may authorize limited discovery to accomplish such record supplementation
in APA cases. See, e.g., Am. First Legal Found. v. Cardona, 630 F. Supp. 3d 170, 187–88 (D.D.C.
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2022). And record supplementation through discovery is particularly appropriate where, as here,
the record on review was itself created through discovery.
Finally, relevancy and proportionality are the lodestars of civil discovery. Litigants may
only seek discovery of nonprivileged matters “relevant to any party’s claim or defense and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1), (2)(C)(iii). To assess
proportionality, courts must weigh: (1) the importance of the issues at stake, (2) the amount in
controversy, (3) the parties’ relative access to relevant information, (4) the parties’ resources,
(5) the importance of the discovery in resolving the issues, and (6) whether the burden of the
proposed discovery outweighs its likely benefit. Id. 26(b)(1).
ANALYSIS
This case has been—and continues to be—the unusual APA action subject to civil
discovery. AFL-CIO III, 349 F.R.D. at 248–49. Because the Agencies and DOGE did not
memorialize the conduct plaintiffs challenge, no traditional administrative record exists, and the
parties agreed to treat materials produced in discovery as the record on review. See Pls.’ Mot. for
Summ. J. at 5 n.2; Defs.’ Opp’n at 6. Thus far, the Court has concluded that discovery has not
resolved certain factual disputes essential to determining whether the Agencies arbitrarily and
capriciously abandoned their “need-to-know” data privacy policies or adopted a policy of granting
non-agency personnel access to sensitive agency systems, in violation of the Privacy Act of 1974.
So the Court has authorized the parties to supplement the factual record. AFL-CIO VII, 2026 WL
879518, at *18. Now, the Court considers whether plaintiffs should be permitted to do so through
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additional discovery, or if that process should instead be limited to declarations filed by the
Agencies.2
I. 	Additional, Limited Written Discovery Is Proper
Supplemental discovery is warranted here because discovery requests narrowly tailored to
produce material relevant to specific disputed factual issues will likely aid in the just resolution of
this case. Furthermore, limited supplemental discovery will likely mitigate any prejudice plaintiffs
might otherwise suffer from the Agencies’ introduction of declarations containing post hoc
explanations for their DOGE data access grants.
The Court has identified two material, factual disputes that the record—as it currently
stands—does not resolve. The first dispute pertains to whether the Agencies’ abandoned their
need-to-know data access policies for DOGE affiliates. The Agencies insist that they did not,
pointing, in part, to an executive order creating the DOGE initiative and vesting it with
government-wide software modernization duties. See Defs.’ Mot. for Summ. J. [ECF No. 95-1]
at 30, 33. But as the Court observed when denying the parties’ cross-motions for summary
judgment, the Agencies have yet to support their assertion that DOGE affiliates needed sensitive
system access to carry out software modernization projects with any evidence that: “the sensitive
systems DOGE affiliates accessed were scoped for [such] projects, that DOGE affiliates were
staffed to work on those projects, or that Agency employees granted the affiliates access because
of their involvement in those projects.” AFL-CIO VII, 2026 WL 879518, at *18.
At least two of plaintiffs’ proposed discovery requests bear directly on the existence of
software modernization projects at the Agencies and would therefore aid the Court in resolving
2 The Court disagrees with the Agencies’ characterization of plaintiffs’ motion as one to reopen discovery.
See Defs.’ Opp’n at 8–9. The Court has determined that factual issues persist, and that supplementation of the record
would aid resolution of plaintiffs’ remaining claims. The question, then, is the proper scope of the supplementation—
not whether the factual record may be expanded—because the Court has already determined that it may.
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this factual dispute. See Proposed Suppl. Disc. at 5 (Interrog. No. 4), 7 (Req. for Produc. No. 8).
These requests seek descriptions of any software modernization projects, the systems scoped for
those projects, the DOGE affiliates staffed to them, and any documents related to DOGE affiliates’
system access requests and the Agencies’ decisions to grant them. Id.
Similarly, three of plaintiffs’ proposed discovery requests are relevant to the second
material factual dispute the Court identified—whether the DOGE affiliates were functionally
employees of DOL and HHS entitled to access agency systems under the Privacy Act. See
Proposed Suppl. Disc. at 4 (Interrog. No. 3), 7 (Reqs. for Produc. Nos. 9 & 10). These requests
seek updated information about DOGE affiliates’ concurrent employment relationships—as the
Court previously ordered—as well as records of communications between DOGE affiliates at the
defendant Agencies and leadership at the Agencies and USDS that bear on the reporting structures
governing the affiliates. Id. These materials, too, would aid the Court in resolving the outstanding
factual dispute over what agency, as a practical matter, employed the DOGE affiliates.
The Agencies’ resist the Court’s conclusion that some additional discovery is appropriate,
asserting that discovery is unwarranted because their declarations can resolve all outstanding
questions. Defs.’ Opp’n at 10. There are two threads to the Agencies’ argument. The first asserts
that the Agencies are in the best position to answer the Court’s questions, id., and the second
implies that the answers the Agencies give must be the sole and definitive source of facts bearing
on these questions, see id. at 18–19. The Court agrees with the Agencies only as to the former.
The Agencies hold most, if not all, of the information necessary to resolve the factual
disputes the Court has identified. This is a reason to permit supplemental discovery, not bar it.
See Fed. R. Civ. P. 26(b)(1) (requiring courts to consider “the parties’ relative access to relevant
information”). Allowing the Agencies to leverage the facts available to them by submitting new
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declarations, while prohibiting plaintiffs from probing any of the factual bases for those
declarations, risks significant prejudice to plaintiffs.
Courts have long acknowledged the risks of unexamined post hoc justifications of
government action. “Permitting agencies to invoke belated justifications . . . forc[es] both litigants
and courts to chase a moving target” and denies plaintiffs a fair opportunity to respond fully to an
agency’s exercise of authority. DHS v. Regents of the Univ. of Cal., 591 U.S. 1, 23 (2020). As a
result, in APA cases without discovery, courts are categorically barred from relying on government
declarations containing post hoc rationalizations. Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v.
State Farm Mut. Auto. Ins., 463 U.S. 29, 50 (1983); Regents of the Univ. of Cal., 591 U.S. at 21.
Here, limited discovery can mitigate the prejudice such declarations would otherwise cause.
Furthermore, the presumption of regularity does not command exclusive reliance on the
Agencies’ declarations. Contra Defs.’ Opp’n at 18. In the litigation context, the presumption of
regularity rests on dual premises: that government counsel is fully apprised of the facts underlying
their case and that government counsel is candid with the court when discussing those facts. The
Court does not doubt government counsel’s candor. But as the Court and the parties have
repeatedly observed in this matter, the facts on the ground have proven fast-evolving and difficult
for government counsel to discern. See, e.g., Pls.’ Mot. at 4–5; Defs.’ Opp’n at 19; Defs.’ Interrog.
Resps. [ECF No. 80-5] at 9, 18 (supplying contradictory answers for the number of agencies a
DOGE affiliate was concurrently working for). The Agencies state that their own efforts to
supplement the record are proper because they have new information “not previously available
about current circumstances.” Defs.’ Opp’n at 19. The availability of new information is a reason
to permit plaintiffs to seek updates on defendants’ prior discovery responses, see Proposed Suppl.
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Disc. at 4 (Interrog. No. 3); see also Fed. R. Civ. P. 26(e)(1), not a reason to bar their reasonable
follow-up questions.
While the Court concludes that additional limited discovery would be helpful at this
juncture, it is also cognizant that it must balance the burden of the proposed discovery against its
likely benefit. Fed. R. Civ. P. 26(b)(1). As to written discovery, the Agencies have not shown a
substantial burden. On the contrary, Federal Rule of Civil Procedure 11(b) likely already requires
the Agencies to research the questions plaintiffs wish to pose and review the documents plaintiffs
request, as the Agencies prepare their declarations. But the plaintiffs’ request to depose four
DOGE affiliates who no longer work for either HHS or DOL presents a different question.
Although the Court agrees that the DOGE affiliates who plaintiffs seek to depose could
possess information relevant to HHS and DOL’s policies regarding sensitive system access, as
well as DOGE and the Agencies’ concurrent employment practices, the Court ultimately concludes
that the burden of the proposed depositions likely outweighs their benefit. These DOGE affiliates
are neither parties to this action nor currently employed by the defendant Agencies. Their non-
party status imposes a burden on the Agencies above and beyond that of a typical employee fact
witness deposition. Cf. Wyoming v. U.S. Dep’t of Agric., 208 F.R.D. 449, 454 (D.D.C. 2002)
(finding deposition of witnesses at non-party civic organizations unduly burdensome in a suit
alleging unlawful agency action).
It is also far from clear that plaintiffs cannot obtain the information they seek in a less
burdensome way. As this Court has explained, plaintiffs may conduct written discovery regarding
the basis for the Agencies’ sensitive system access grants, and the existence of software
modernization projects that could justify those grants. They may also take written discovery
regarding the reporting structures governing DOGE affiliates’ work at HHS and DOL, including
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disclosure of the number of agencies the DOGE affiliates concurrently worked for and emails
exchanged between DOGE affiliates and leadership at HHS, DOL, or USDS pertaining to the
DOGE affiliates’ work directives within those sensitive systems.
The Court further notes that plaintiffs had a previous opportunity to conduct Rule 30(b)(6)
depositions of HHS, DOL, and USDS regarding both DOGE reporting structures and the
Agencies’ rationales for granting DOGE affiliates sensitive system access. True, in these
depositions, Agency representatives testified that they lacked knowledge of decisionmaking and
reporting structures outside their respective Agencies. See Pl.’s Mot. at 8 (citing DOL and HHS
30(b)(6) depositions). But plaintiffs have not only had the opportunity to question representatives
of each relevant Agency regarding DOGE affiliates’ sensitive system access and reporting
obligations within their respective agencies—plaintiffs have actually done so. See DOL 30(b)(6)
Dep. [ECF No. 80-9] (deposing DOL on its data access policies and supervision of its DOGE
affiliates); HHS 30(b)(6) Dep. (Wendel) [ECF No. 82-4] (deposing HHS on its data access
policies); HHS 30(b)(6) Dep. (Rice) [ECF No. 80-6] (deposing HHS on its supervision of its
DOGE affiliates); DOGE 30(b)(6) Dep. [ECF No. 82-7] (deposing USDS on its supervision of
DOGE affiliates).
Given these alternative, less burdensome avenues to obtain the information plaintiffs seek,
and the unique burden that non-party depositions would place on the government, the Court denies
plaintiffs’ request for additional depositions.3 The Court grants, however, plaintiffs’ motion to
3 The Court’s denial of plaintiffs’ request should not be construed as a determination that these former DOGE
affiliates lack information relevant to this dispute. To the contrary, as the witnesses closest to the case, the affiliates
likely know highly relevant facts. The Court thus expects that the Agencies will make reasonable efforts to contact
the affiliates and obtain those facts prior to responding to plaintiffs’ interrogatories or drafting their declarations. If it
becomes apparent that the Agencies have not conducted such reasonable inquiries or that material factual disputes
remain, the Court may consider a renewed request from plaintiffs to depose the former DOGE affiliates.
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take supplemental written discovery. To be sure, this does not mean that plaintiffs may set off on
a fishing expedition. As this opinion next clarifies, they may not.
II. 	Any Additional Written Discovery Must Be Narrowly Tailored
Plaintiffs may conduct supplemental written discovery—but this discovery must be
narrowly tailored to the specific factual issues the Court has identified. As currently drafted,
several of plaintiffs’ proposed discovery requests either sweep too far or are wholly irrelevant.
The Court thus clarifies the permissible scope of the supplemental written discovery it authorizes
today, reminding plaintiffs that they may not inquire into irrelevant persons or irrelevant subjects.
First, as this Court has twice explained and plaintiffs appear to concede in their reply, only
DOGE affiliates working for the defendant Agencies are relevant to the claims and defenses in this
case. See Am. Fed’n of Lab. & Cong. of Indus. Orgs. v. DOL, Civ. A. No. 25-339, 2025 WL
1129171, at *3 (D.D.C. Mar. 31, 2025) (defining the relevant individuals as persons “that the
defendant agencies have onboarded for the purpose of carrying out the DOGE Agenda, including
those the agencies have directly hired or received as detailees”); AFL-CIO III, 349 F.R.D. at 252
(emphasizing that “[w]hich other agencies may be hosting USDS employees is not relevant”); Pls.’
Reply [ECF No. 108] at 11–12. So just as during the earlier expedited discovery period, plaintiffs
may not seek discovery regarding DOGE team members unconnected to either HHS or DOL.
Contra Proposed Suppl. Disc. at 3, 7 (defining “DOGE Affiliate” more broadly).
Furthermore, identification of the channels of written communication between DOGE
affiliates and administration officials, and clarification of DOGE’s record retention practices, are
not relevant to plaintiffs’ claim that the Agencies arbitrarily and capriciously adopted sensitive
system access policies that violate the Privacy Act. See Proposed Suppl. Disc. at 5 (Interrog. No.
5). Nor are the details of what DOGE affiliates did within sensitive agency systems after they
were granted access, because this information does not bear directly on whether the Agencies
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unlawfully altered their access policies. So to the extent that plaintiffs seek information about
DOGE affiliates’ usage of sensitive agency systems, beyond DOGE affiliates’ general purpose for
accessing those systems, their discovery requests are overbroad. See, e.g., Proposed Suppl. Disc.
at 4 (Interrog. No. 3(e)); 7 (Req. for Produc. No. 8).4
The same principles apply to plaintiffs’ requests for communications exchanged between
DOGE affiliates granted access to sensitive systems and other government employees or officers.
See Proposed Suppl. Disc. at 7 (Reqs. for Produc. Nos. 9 & 10). These communications are only
likely to be relevant, and therefore discoverable during this supplemental period, to the extent that
they either (1) address the reasons for the Agencies’ sensitive system access grants, or (2) reveal
reporting structures governing the DOGE affiliates. And communications are only likely to be
relevant to DOGE affiliate reporting structures if they are exchanged between DOGE affiliates
with sensitive system access and leadership at DOL, HHS, or USDS, and either include work
directives or reports of work done—but not deliberations on future action. The Court further
reminds the parties that only nonprivileged information is discoverable. And the Court encourages
them to meet and confer on discovery requests so as to avoid issuing requests that sweep in large
quantities of privileged material. See Pls.’ Reply at 12 n.2.
In summary, the Court instructs plaintiffs that they must modify Proposed Interrogatory
No. 3 and Proposed Requests for Production Nos. 8, 9, and 10 to comply with this opinion, and
concludes that Proposed Interrogatory No. 5 impermissibly seeks irrelevant information.
CONCLUSION
For the reasons discussed above, the Court grants in part and denies in part plaintiffs’
motion to conduct supplemental discovery.
4 Unlike general inquiries into system usage, inquiries about whether DOGE affiliates copied or shared
records from sensitive agency systems are relevant to the Agencies’ data access policies.
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A separate order shall accompany this opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: May 26, 2026
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