Judge Denies FOIA Injunction but Requires FCC to Disclose DOGE Records

Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia denied the plaintiffs’ request for a preliminary injunction against the FCC just a day after it was filed, saying it was without merit, but she also chided the agency for its limited cooperation with the FOIA request and the court. “Plaintiffs’ consternation with the course of events since the lawsuit was filed is not wholly misplaced,” Jackson wrote.

The order requires the FCC to produce “responsive documents” on Sept. 15 and Oct. 6 and file a status report proposing a schedule for completing its production of documents by Oct. 13. The court had previously required only a status report in October but vacated that order after the FCC’s initial production of documents “amounted to only 35 pages,” and the agency's response to a court order to produce a schedule for releasing further documents was “vague and uninformative,” Jackson said. An FCC official told us that the documents produced were incomplete because they were only an initial production, and the complete FOIA response would likely be more substantive.

“The judge’s order shows that she took our motion seriously and agrees that the FCC is dragging its feet in producing documents,” said Smithwick & Belendiuk attorney Arthur Belendiuk, who represents Burleigh and Frequency Forward, in a statement. “This order puts the Commission on a very short leash, and we’re hopeful they will now comply and produce the documents promptly, as required by the court.” The FCC didn’t comment.

Frequency Forward and Burleigh -- who's a contributor to The New Republic and The New York Times -- sued the FCC in April after the agency missed a March deadline to respond to the FOIA request. That request sought information on DOGE’s activities at the FCC, including any documentation of the agency's contact with former DOGE head Elon Musk, his companies SpaceX and Starlink, or anyone associated with his many ventures.

“DOGE’s operations within the FCC are at the heart of a debate concerning potential conflicts of interest between Elon Musk and DOGE as regulators of the FCC, and Elon Musk’s SpaceX, including Starlink, as a regulated entity seeking licenses and other accommodations at the agency,” said Monday’s injunction request from Frequency Forward and Burleigh. They said the FCC has acted favorably toward Starlink in several recent proceedings, including opening investigations against SpaceX competitor EchoStar.

In a letter to Sen. Maria Cantwell, D-Wash., in May (see 2507310061), FCC Chairman Brendan Carr said DOGE staffers were at the agency to help it work more efficiently and “to get a fresh set of eyes on the way we operate."

The heavily redacted documents that the FCC has produced so far in response to the request deal mainly with the onboarding of DOGE employees detailed to the agency. Though Carr said the FCC had only two DOGE staffers in his May letter to lawmakers, the FOIA response appears to show onboarding documents related to three: Weil Gotshal attorney Jacob Altik, former Waymo software engineer Jordan Wick, and Tarak Makecha, who was identified in the documents as a software engineer employed by the Office of Personnel Management.

An FCC official told us that though the initial FOIA production makes it appear that Altik was detailed to the FCC, he began the onboarding process but never actually worked there. That's why Carr reported only two DOGE employees in his letter, the official said. The agency's coming FOIA responses are expected to show that Altik wasn't among the FCC's DOGE detail, the official said.

Burleigh and Frequency Forward noted in their filing that Makecha’s background is actually primarily in finance, rather than software. He formerly worked at Musk's company Tesla as a global finance lead, chief of staff for North American sales and delivery, and head of strategic planning, and Valor Equity lists him as a current vice president. Valor reportedly specializes in arranging the sale of shares in Musk’s private companies. Makecha is also still listed in the FCC’s employee directory. Financial disclosure documents related to Makecha’s OPM job show him owning stock in Tesla and several communications-sector-specific mutual funds. The Communications Act bars FCC employees from investing in companies subject to FCC regulation, Burleigh and Frequency Forward said.

Carr said in his letter to Cantwell that the DOGE employees "followed the appropriate and applicable ethics and financial disclosure guidelines. The FCC’s Ethics Office within the Office of General Counsel facilitated this process to ensure compliance. Like all other FCC employees, the new members of the agency team have followed, and will continue to follow, appropriate cybersecurity protocols."

Wick, Altik and Makecha have reportedly been associated with DOGE operations at other agencies. Wick was part of the DOGE team at the Consumer Financial Protection Bureau, and Altick reportedly worked on DOGE efforts at the U.S. African Development Foundation and OPM. Makecha worked for DOGE at the FBI and DOJ, according to The Intercept. An OPM spokesperson told us Tuesday that none of them are current employees there. DOGE didn't respond to a request for comment.

“The placement of Tarak Makecha, an individual closely tied to Musk, disguised as a software engineer, is telling,” said Frequency Forward and Burleigh in the injunction filing. “Equally telling is that these first documents produced withhold critical information about Makecha, his role within the agency and his relationship to Musk.” Makecha didn’t immediately respond to requests for comment.

Despite moving up information-production requirements on the FCC, the court on Tuesday also found that Burleigh and Frequency Forward hadn’t sufficiently justified a preliminary injunction against the agency. “Plaintiffs have identified no specific proceeding or upcoming decision to which the records pertain, much less the imminence of any event after which the records they seek would lose their value to the plaintiffs or the public,” wrote Jackson. “They have failed to identify any injury arising out of the lack of access to the requested records” that couldn’t be addressed by the documents being released later in the case.

The plaintiffs' complaints about the level of redaction on the documents and the FCC’s failure to produce particular records are “premature,” Jackson said. The court will rule on the sufficiency of the FCC’s response after it produces the documents, she added.