Fourth Circuit greenlights DOGE access to millions of federal employees' data

RICHMOND, Va. (CN) — A Fourth Circuit panel vacated a preliminary injunction barring DOGE from accessing federal employee data on Tuesday after ruling the plaintiffs failed to demonstrate an injury.

The plaintiffs, totaling over 2 million people, include unions and membership organizations such as the American Federation of Teachers, which represents current and former federal employees, federal student aid recipients and six military veterans who have received federal benefits or student loans.

They sued the Department of Education, the Office of Personnel Management and the Treasury Department, along with their respective agency heads, for granting Department of Government Efficiency employees access to their personally identifiable information. The plaintiffs assert that DOGE’s “unrestricted” access to their personal information has caused them “major distress and anxiety” over whether their data could be weaponized against them or released in a privacy breach.

“Each plaintiff’s information is one row in various databases that are millions upon millions of rows long,” U.S. Circuit Judge Julius Richardson, a Donald Trump appointee, said. “The harm that might come from this generalized grant of database access to an additional handful of government employees — prone as they may be to hacks or leaks, as plaintiffs have alleged — seems different in kind, not just in degree, from the harm inflicted by reporters, detectives, and paparazzi.”

The sensitive data DOGE seeks includes individuals’ taxpayer identification numbers, Social Security numbers and income and asset information. The plaintiffs argue DOGE’s unfettered access violates the Privacy Act of 1974, which generally prohibits agencies from disclosing an individual’s records to anyone, including inside the government, without that individual’s written consent. They also claim that DOGE’s conduct is arbitrary, capricious, an abuse of discretion or otherwise contrary to law under the Administrative Procedures Act.

To obtain a preliminary injunction, plaintiffs must show that they are likely to succeed on the merits, likely to suffer irreparable harm in the absence of preliminary relief and that the injunction is in the public interest. Demonstrating a likelihood of success on the merits requires plaintiffs to overcome a significant challenge, as they must address several independent issues, each of which could determine the outcome of the case.

“Even if a plaintiff has good odds to win any one issue, their overall odds crater because they must run the table to ultimately prevail,” said Richardson, who was joined in the majority by U.S. Circuit Judge Steven Agee, a George W. Bush appointee. “The plaintiff must therefore show an extremely high likelihood of success on each individual issue in order to have a normal likelihood of success overall — otherwise, the product of the probabilities will be too low.”

U.S. Circuit Judge Robert King, a Bill Clinton appointee, dissented on the three-judge panel. King argued that Richardson created too high a bar for the labor organizations to clear.

Richardson ruled that the labor organizations lacked standing, finding they failed to demonstrate a concrete injury. The labor organizations pointed to the harm inflicted by the common-law tort of intrusion upon seclusion, which protects people from unwarranted invasions into their private affairs. Richardson disagreed.

“Its harm is felt when a reporter accosts a convalescing patient in the hospital, when a private detective peers through a bedroom window for weeks, and when a photographer snaps an opportunistic photo of a woman’s underwear,” Richardson said in describing intrusion upon seclusion. “This is distinct from plaintiffs’ alleged harm of unauthorized access.”

Richardson ruled that the plaintiffs were unlikely to succeed, regardless of their standing. He also questioned whether the action constituted a reviewable final agency decision. The Administrative Procedures Act required the labor organizations to show that no other adequate remedy is available. The data obtained may also fall under the Privacy Act’s need-for-record provision, according to Richardson.

The case returns to a Maryland-based federal court, where U.S. District Judge Deborah L. Boardman, a Joe Biden appointee, will reconsider it. Attorneys representing the organizations and the federal agencies did not respond to a request for comment.