Schrödinger’s cat, famously, alive and dead at the same time, would have felt at home in the Department of Government Efficiency. Depending on the legal issue at hand, DOGE claims to be both part of and separate from the federal government.
But DOGE is not a thought experiment about theoretical physics. It is an actual party to real cases in federal courts.
And as a party to multiple lawsuits, once litigation about DOGE’s authority has moved past the preliminary stages, a doctrine called “judicial estoppel” will allow judges to force an identity onto the entity. Because of the powerful role that doctrine can play in the ultimate resolution of DOGE’s power, the elements of that doctrine should be an active part of the conversation in the next several weeks.
DOGE’s inconsistent positions are well documented. For example, on the one hand, DOGE claims that it complies with the applicable laws for a federal agency, allowing it to access otherwise confidential electronic information. But at the same time, it denies that it is a public agency that has to answer requests under the Freedom of Information Act.
A frustrated federal judge recently called DOGE a “Goldilocks entity” — meaning it is "not an agency when it is burdensome, but an agency when it is convenient."
Ironically, the litigation problem that looms for DOGE isn’t that it may ultimately lose some of the cases about its power. The problem is that it might win, and by doing so, become locked into that winning position by the doctrine of judicial estoppel.
A “win” in a significant FOIA case, for example, could lock DOGE into a losing position in a case about data access where it claims to have authority as a government agency.
The Supreme Court’s leading case on judicial estoppel, the 2001 case of New Hampshire v. Maine, explained the doctrine as a longstanding rule of the adversary system: When a party successfully argues one position in a court case, it cannot later switch to the opposite stance in another case. As the court summarized, a litigant may not “assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.”
The court identified three main considerations for applying judicial estoppel, while also noting that “additional considerations may inform the doctrine's application in specific factual contexts.”
First, the new position must be “clearly inconsistent” with the earlier one. DOGE’s litigation positions plainly implicate this factor.
DOGE seeks the protections of government status, such as immunity from certain lawsuits, while denying the burdens that come with that status, such as compliance with requests by the public for information about its plans and activities.
Second, the party must have persuaded a court to accept the earlier position. This factor describes the highway that DOGE finds itself traveling on at present.
So far, all parties involved in the DOGE cases have achieved only tentative rulings, made in the context of emergency requests for restraining orders. When a case progresses ...
