ALLIANCE FOR RETIRED AMERICANS et al v. BESSENT et al

Filing 46

REPLY re 44 ADMINISTRATIVE RECORD to Plaintiffs' Objections to the Designation of the Administrative Record filed by SCOTT BESSENT, DEPARTMENT OF THE TREASURY, BUREAU OF THE FISCAL SERVICE. (Humphreys, Bradley) Modified on 3/16/2025 to correct event and add docket link (zjm).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ALLIANCE FOR RETIRED
AMERICANS, et al.,
Plaintiffs,
Case No. 1:25-cv-00313-CKK
v.
SCOTT BESSENT, et al.,
Defendants.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ OBJECTIONS TO
THE DESIGNATION OF THE ADMINISTRATIVE RECORD
Defendants file this response to Plaintiffs’ objections to the designation of the
administrative record pursuant to this Court’s March 11, 2025 Minute Order. Defendants disagree
with Plaintiffs’ contention that the record is incomplete. The certified administrative record, filed
with the Court on March 10, contains all non-privileged documents and materials directly or
indirectly considered regarding the granting of access to systems maintained by the Bureau of the
Fiscal Service (BFS) to employees implementing Executive Order 14,158. See Certification of
Administrative Record, ECF No. 44-1 at 2.
Defendants believe that supplementation of the record is not required. However, to
conserve the parties’ and the Court’s resources and to narrow the scope of the parties’
disagreements, Defendants agree to provide certain additional information as described below by
March 14, 2025, which is the deadline Plaintiffs proposed. Defendants respond to Plaintiffs’
objections as follows:

Tabs 1.B1 and 1.B2 (ECF pages 12-20). Plaintiffs point out that the records associated
with engaging Mr. Thomas Krause as a consultant do not identify the office or officer making the
request. See Pls.’ Obj. at 2. Defendants agree to file additional documentation regarding Mr.
Krause’s engagement, or to provide the requested information in a declaration, by March 14.
Tab 3.2 (ECF pages 63-65). Plaintiffs state that the “Fiscal Service Payment Processing
Engagement Plan” references “safeguarding and handling instructions of Fiscal Service data for
the duration of this engagement,” and Plaintiffs believe those instructions should be part of the
administrative record. Pls.’ Obj. at 2. Defendants refer Plaintiffs and the Court to the Rules of
Behavior included in the administrative record at 25-cv-00313_DDC_UST_0031-32, as well as
the description of trainings and safeguards in Mr. Joseph Gioeli III’s February 12, 2025
declaration, ECF No. 24-2.
Tab 3.3 (ECF page 66). Plaintiffs state that the “Preliminary Work Plan” document, while
written in the first person, does not identify an author or recipient. The substance of the document
was authored by Thomas Krause, with input from Daniel Katz, and it was distributed to members
of the senior Treasury leadership team, which Defendants will confirm in a declaration by March
14.
Tabs 4.1 and 4.2 (ECF pages 67-68). Although Defendants have already provided a
spreadsheet specifying access to Bureau of the Fiscal Service’s systems, Plaintiffs contend that
Defendants should supplement the record with “agency documentation reflecting the access
granted to the DOGE Team,” as well as “requests for approval and forms to obtain access” to
specified databases. These materials are not part of the administrative record because they did not
inform the decision to grant access but rather reflect various IT steps taken to grant access. To

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avoid further dispute, however, Defendants agree to produce materials in response to this request
by March 14.
Tab 5.1 (ECF pages 69-70). Plaintiffs ask that redactions be lifted from an email sent by
Daniel Katz on January 26, 2025 at 6:34 PM, produced at 25-cv-00313_DDC_UST_0063.
Defendants agree to produce by March 14 a version of the that email without the redaction to
which Plaintiffs object.
Plaintiffs also seek documentation of a “request” referenced in the last-in-time email at 25cv-00313_DDC_UST_0053. The “request,” however, is already reflected in the email itself—i.e.,
to establish a process to review USAID payment information. Moreover, any request on that topic
is outside the scope of the challenged access decision.
Tab 5.2 (ECF pages 72-74). Plaintiffs ask that redactions be lifted from emails produced
at 25-cv-00313_DDC_UST_0066-68. Defendants applied the redactions in the bodies of those
emails to protect information covered by the deliberative process privilege.

The redacted

information is predecisional, because it predated the decision to proceed with the process for
reviewing USAID payments, and it is deliberative, because it consists of an internal back and forth
informing whether or not to proceed with the proposals under discussion.
Plaintiffs also seek to know the recipient email address for “Marko Elez” in the TO: line
in the email produced at the 25-cv-00313_DDC_UST_0066. Mr. Elez sent the email from his
“@treasury.gov” email address to his “@fiscal.treasury.gov” email address, which Defendants
will confirm in a declaration by March 14.
Plaintiffs’ “Other items.”
1. Plaintiffs argue that the administrative record should contain the “risk assessment” of
a subcontractor referenced in the news article Plaintiffs cite. Pls.’ Objs. at 4-5. That document

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was not considered by Treasury as part of the decision to grant access to BFS systems and therefore
is properly not part of the administrative record, which Defendants will confirm in a declaration
by March 14.
2. Plaintiffs also argue that the administrative record is deficient because it does not
include materials on “(a) how to implement the DOGE executive order . . . (b) the directions and
priorities that Defendants receive from USDS, (c) the progress updates that they provide to USDS,
[and] (d) other records reflecting coordination with USDS and the actions and decisions that have
resulted from that coordination.” The Court should not require Defendants to provide any such
materials, because they are outside the scope of the administrative record regarding the challenged
action in this case.
Plaintiffs challenge “[t]he decision to grant access to DOGE.” Pls.’ Reply in Support of
Pls.’ Mot. for Prelim. Inj. 14, ECF No. 28. Defendants dispute that Treasury’s decision to allow
Treasury DOGE Team members access to BFS systems is a final agency action subject to APA
review. See Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj 13-15, ECF No. 24. However, Treasury
included in the administrative record filed with the Court all non-privileged materials that Treasury
directly or indirectly considered in connection with the challenged decision. See Certification of
AR, ECF No. 44-1 at 2.
The “other items” Plaintiffs seek to obtain go far beyond the challenged access decision
and are unmoored from their claim that providing access to the Treasury DOGE Team violates the
Privacy Act or the Internal Revenue Code. Rather, Plaintiffs seek ongoing, post-decisional
information about Treasury’s coordination with USDS, without limitation to topic. The Court
should not permit Plaintiffs to turn the “administrative record” into a vehicle for discovery by other
means.

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Plaintiffs’ “Request for prompt action.” The administrative record is complete, though
Defendants have agreed to provide a subset of the additional information Plaintiffs requested by
March 14. To the extent the Court were to conclude that the administrative record must be
supplemented with additional material—beyond what Defendants agree above to produce—
Defendants respectfully submit that it would be impractical to do so by the March 14 deadline that
Plaintiffs propose.

Dated: March 12, 2025

Respectfully submitted,
YAAKOV M. ROTH
Acting Assistant Attorney General
Civil Division, Federal Programs Branch
MARCIA BERMAN
Assistant Director
Federal Programs Branch
/s/ Bradley P. Humphreys
BRADLEY P. HUMPHREYS
Senior Trial Counsel
Civil Division, Federal Programs Branch
United States Department of Justice
1100 L Street NW
Washington, DC 20005
Telephone: [phone]
[e-mail]
Attorneys for Defendants

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