Back on February 27, longtime squish Judge John Bates granted plaintiffs in an AFL-CIO lawsuit about DOGE data sharing discovery, the first such grant of discovery in DOGE cases. I was … surprised.

On March 11, defendant agencies asked Bates to reconsider based on their attempt to retcon the facts to eliminate the entire point of discovery (see this post for the many ways Trump keeps attempting to retcon things). In effect, they tried to eliminate the injury of having DOGE personnel working across multiple agencies, giving them access to multiple kinds of data, by hiring people at the affected agencies (HHS, CFPB and Department of Labor) into those agencies.

The factual basis for this change in status is set forth in the declarations attached to this motion, as well as the documents Defendants have moved to lodge under seal with the Court. In total, three individuals—two at HHS, and one at CFPB—were previously working at these agencies through a detail from USDS to the agency; all are now direct employees of the agency, in addition to being employees of USDS. See Rice Decl. ¶¶ 8–10; Martinez Decl. ¶4. Although it initially intended to bring on USDS employees as detailees, DOL stopped this process shortly after this lawsuit was filed, and did not subsequently onboard any USDS employees as detailees.3 Kryger Decl. ¶ 6. Today, all employees working to implement the DOGE E.O. at the Agency Defendants are now direct employees of the agencies at which they work, or detailees from agencies that no one disputes fall within the definition of “agency” under the Economy Act.

Defendants subsequently provided Plaintiffs with additional information about the employment arrangements of former USDS detailees. Specifically, on Friday, March 7, Defendants provided Plaintiffs with the SF-61s, or oath of office, for each former USDS detailee, which establishes their relationship as a direct employee of the relevant agency. On Monday, March 10, 2025, Defendants provided unredacted versions of these agreements to Plaintiffs so they could evaluate Defendants’ request to lodge the materials under seal.

Plaintiffs’ March 13 response is a dizzying description, drawing on declarations submitted in a bunch of other lawsuits, of all the ways DOGE is sharing across agencies, and all the past claims about DOGE that have fallen to pieces.

As part of the latter argument, plaintiffs invoked the way Trump retconned Amy Gleason to be DOGE administrator.

In this case and others, the government has refused to provide consistent, accurate, and plausible recitations of basic facts related to DOGE’s operations.

In this case, for example, Defendants identified five DOGE employees at Defendant Agencies in declarations prior to TRO hearings. Ramada Decl., ECF No. 16-1 ¶ 5 (identifying three DOGE detailees to DOL); Rice Decl., ECF No. 31-2 ¶ 5 (identifying one DOGE detailee to HHS); Martinez Decl., ECF No. 31-3 ¶ 5 (identifying one DOGE detailee to CFPB). Shortly thereafter, Defendants characterized the number of DOGE employees at the agencies as “untold.” ECF No. 45 at 16.

Now, Defendants claim that only two DOGE employees work at HHS, but, as described above, that claim is inconsistent with the agency’s own public database of employees. And, as described above, Mr. Martinez’s declaration concerning the processes governing DOGE access at CFPB conflicts with sworn testimony from current and former CFPB employees.

Indeed, Mr. Martinez publicly testified earlier this week that he has previously made sworn representations in publicly-filed declarations that he now knows are incorrect. According to Mr. Martinez, these false representations occurred because he did not actually “know about the mission side of the agency” and simply conveyed in his declarations “what they [agency leadership] told [him].” Exhibit G at 184-88.

In another case, the government represented that a DOGE employee would have only “read-only” access to sensitive systems at the Department of Treasury, only to correct themselves later that the employee had in fact previously been granted more expansive access to those systems. Compare Defs. Memo of Law in Support of Emergency Mot. To Dissolve, Clarify, or Modify Ex Parte Temporary Restraining Order, State of N.Y. v. U.S. Dep’t of Treas., No. 25 Civ. 01144, ECF No. 12 at 6 n. 2 (S.D.N.Y. Feb. 9, 2025) (“Marco Elez [] had ‘read only’ access to . . . BFS payment systems.”), and Declaration of Joseph Gioeli III, id., ECF No. 34 at ¶ 20 (the Department discovered on February 6 that “Mr. Elez’s database access . . . had mistakenly been configured with read/write permissions instead of read-only”)

With regards to the leadership and structure of DOGE, the government’s positions continue to be ephemeral. As detailed in the February 18 status report in this case, ECF No. 42 at 2-3, and in Plaintiffs’ February 26 Reply Brief in Support of Expedited Discovery, ECF No. 46 at 9 n. 10, the executive branch has taken multiple conflicting positions on the structure of DOGE’s leadership. The executive for the first time stated that Mr. Musk is not the USDS Administrator in a February 17 court filing, then on February 18 refused to identify the USDS Administrator, then on February 19 President Trump said Mr. Musk is in charge of DOGE, then on February 25 for the first time identified Amy Gleason as the USDS Administrator, while also saying that Mr. Musk is “overseeing DOGE.” See ECF No. 42 at 2-3, ECF No. 46 at 9 n.10. During a February 28 court hearing in another matter, a DOJ attorney was reportedly asked who the USDS Administrator was prior to Ms. Gleason, and responded that he had asked that question and “was not able to get [an] answer.” 9 On March 4, President Trump repeated during a joint address to Congress that Mr. Musk heads DOGE.10

In sum, Defendants’ new proffered employment arrangements do not diminish the need in this case for discovery into whether and how DOGE is accessing sensitive data systems at Defendant Agencies or how DOGE is actually structured and operates with respect to DOGE employees working at Defendant Agencies. [my emphasis]

Meanwhile, back on March 11, DOJ asked to submit the attachments to several declarations, including this one from HHS referencing anonymous employees affected by the revamped employment structure under seal. (Remember, DOJ had given these to plaintiffs; they were trying to keep them hidden from us.)

6. As stated in my prior declaration, at least one USDS employee was detailed to HHS in furtherance of the EO in early February 2025 (“HHS detailee”).

7. In addition, I have since learned that another USDS employee was detailed to the Centers for Medicare and Medicaid Services (“CMS”) in furtherance of the EO in the same February 2025 time frame (“CMS detailee”). This detailee was previously detailed from USDS to CMS from 2018 to March 2020 to work on CMS health data interoperability and modernizing technology.

8. Both of these individuals were converted to direct hires of HHS on March 4, 2025. True and correct copies of their SF-61 Appointment Affidavits are attached to this declaration as Attachment A. Both individuals also continue to be employees of USDS.

Yesterday, Judge Bates was like, “uh, no, you can’t seal these declarations; the DOGE affiliations of these people are already widely public.”

The information the SF-61s reveal that may lead to harassment—the three affiants’ identities and their work with DOGE—has already been widely publicized, undercutting the argument for sealing the documents. See In re L.A. Comms. LLC, 628 F. Supp. 3d 55, 66, 69 (D.D.C. 2022); Zapp v. Zhenli Ye Gon, 746 F. Supp. 2d 145, 149 (D.D.C. 2010). Defendants contend that reporting does not negate the affiants’ privacy interests because “[d]efendants have not publicly acknowledged the employment relationships at issue.” Mot. ¶ 10. However, defendants have publicly acknowledged all three affiants’ associations with DOGE,2 have publicly acknowledged Brad Smith’s work at HHS, see U.S. Dep’t of HHS, HHS Employee Details, https://directory.psc.gov/hhsdir/eeKey.asp?Key=66006&Format=Table (last accessed March 13, 2025) [https://perma.cc/JM7S-VSMT], and have put on the record in another case in this District emails Jordan Wick sent and received from a CFPB email address, see Email from Mark Paoletta to Jafnar Gueve (Feb. 11, 2025), NTEU v. Vought, Civ. A. No. 25-381 (ABJ), ECF No. 56-1 at 6; Email from Jordan Wick to Russell Vought (Feb. 20, 2025), NTEU, ECF No. 66-2 at 5. Finally, reports and records show the three affiants are not just DOGE employees, but senior DOGE members. See, e.g., supra, n.2; HHS Employee Details, supra.

That’s when Judge Bates revealed the identity of one of them was … Amy Gleason, the retconned DOGE Administrator.

In fact, the Trump Administration has acknowledged that Amy Gleason is the Acting Administrator of USDS. See Citizens for Resp. & Ethics in Wa. v. U.S. Doge Serv., Civ. A. No. 25-511 (CRC), 2025 WL 752367, at *2 (D.D.C. Mar. 10, 2025)

That’s how this filing became public.

Amy Gleason, purportedly in charge of all of DOGE since February 25, was instead snuck into HHS on March 4 as an employee to cover for her broad access to the PII of American citizens.

Update: As Kyle Cheney noted in his story on this, last week Amy Gleason filed an affidavit in a CREW lawsuit suing to FOIA DOGE.  She claimed to be full-time Administrator at DOGE and made no mention of her HHS appointment. She swore these claims were correct.

3. I am a full-time, government employee at USDS.

4. In my role at USDS, I oversee all of USDS’s employees and detailees to USDS from other agencies.

5. I report to the White House Chief of Staff, Susie Wiles.

These kinds of conflicting sworn statements are what happen when you keep retconning what you claim to be going on in an attempt to dodge one after another valid legal theory against your law-breaking. These kinds of conflicting sworn statements provide legal purchase where, had someone competent like Russ Voght done this slowly and deliberately from the start, there would have been none.