DOGE, the Social Security Administration, and How Inferior Courts Should Treat S. Ct. Interim Orders

Some excerpts from the 88 pages of opinions in AFSCME v. Social Security Admin., decided today by the Fourth Circuit en banc, in an opinion by Judge Toby Heytens:

Three organizations sued to stop the Social Security Administration from giving U.S. DOGE Service personnel access to sensitive personal information about millions of Americans. The district court granted a preliminary injunction, which the Supreme Court stayed pending this appeal and any further Supreme Court review. We now vacate the current preliminary injunction and return the case to the district court for further proceedings….

On January 20, 2025, the President signed an executive order creating the U.S. DOGE Service and charging it with making government technology more efficient. DOGE personnel quickly made their way to the Social Security Administration and sought “unprecedented” access to agency systems, including non-anonymized personally identifiable information. A standoff ensued, and career officials resigned. A new acting administrator was installed and granted DOGE the sweeping access it sought.

Three organizations representing a combined seven million Americans sued to prevent DOGE from accessing their members’ personally identifiable information. When the case was filed and in the original preliminary injunction proceedings, plaintiffs’ theory of the case was not that DOGE had misused the information or disclosed it (accidentally or otherwise) to malicious actors. Instead, plaintiffs argued that handing over non-anonymized and highly sensitive information to DOGE was itself unlawful.

After hours of hearings and hundreds of pages of analysis, the district court issued the preliminary injunction we review here. The Supreme Court stayed that preliminary injunction and directed that the stay would remain in effect until the completion of all appellate review—including by the Supreme Court—of the district court’s order. We have jurisdiction to review the district court’s order ….

The court concluded that the plaintiffs have sufficiently alleged injury, for purposes of standing:

Like the district court, we conclude that disclosing plaintiffs’ members’ personally identifiable information to DOGE inflicts a harm that is a “close … analogue” to the common law tort of intrusion upon seclusion…. Intrusion upon seclusion is an “intentional[ ] intru[sion], physical[ ] or otherwise, upon the solitude or seclusion of another or his private affairs or concerns” that “would be highly offensive to a reasonable person.” The tort is not limited to entering someone’s house or peering through their windows. Rather, it includes “other form[s] of investigation or examination” of “private concerns,” including opening someone’s mail, going through their wallet, examining their bank account, or “compelling [them] by a forged court order to permit an inspection of [their] personal documents.” Second Restatement § 652B cmt. b. Intrusion upon seclusion does not require the tortfeasor to go on to misuse the information it learns or disseminate it to the public; instead, the unjustified intrusion upon the plaintiff’s privacy is the harm.

Much like rifling through someone’s wallet, bank account, or personal documents, granting unauthorized and unwarranted access to a person’s sensitive personal information is an intentional intrusion into “private affairs or concerns.” And that is what plaintiffs say happened here. According to plaintiffs, the Social Security Administration handed over their members’ most sensitive personal data to people (DOGE team members) who were not legally authorized to access it. Whether plaintiffs “would prevail in a lawsuit for common law invasion of privacy is irrelevant.” Instead, it is enough that the injury plaintiffs have identified “pose[s] the same kind of harm that common law courts recognize.”

But the court concluded that a preliminary injunction was unwarranted:

The role of a preliminary injunction is to protect the plaintiff from suffering new or additional irreparable harm between the time the preliminary injunction is entered and the case’s final resolution. And, like any other injunction, a preliminary injunction cannot reach back in time to prevent or undo irreparable harm that has already occurred. For those reasons, the key question here is whether a preliminary injunction will prevent plaintiffs from suffering new or additional irreparable harm while they litigate this case to final judgment.

What is more, not all harm—no matter how serious in the real world—is “irreparable” in a legal sense. Even a plaintiff who has a concrete injury for Article III standing purposes may only obtain the “extraordinary remedy” of a preliminary injunction if that injury cannot be remedied during the ordinary course of litigation. If there is even a “possibility” that “adequate compensatory or other corrective relief will be available at a later date,” a court should hesitate before concluding a plaintiff’s harm is “irreparable” for purposes of granting a preliminary injunction….

Applying those standards here, we conclude plaintiffs have not satisfied Winter‘s second factor.

We start by identifying the only theory of irreparable harm that is properly before us. The district court did not grant this preliminary injunction on the theory that plaintiffs’ members would be harmed by some downstream misuse or public disclosure of their personal data. See supra note 8. Instead, the irreparable harm on which the district court relied mirrors plaintiffs’ Article III injury: that DOGE violates plaintiffs’ members’ privacy by accessing their sensitive personal data without lawful authorization, and that privacy violation is “irreparable” in a legal sense.

The difficulty with that argument is that there are two forms of corrective relief that may be available down the line: money damages and a reparative permanent injunction….

Finally, the elephant in the room. As noted earlier, the role of a preliminary injunction is to protect a plaintiff from suffering further irreparable harm while the case is litigated. But because of the particular procedural posture of this case, the district court’s preliminary injunction cannot currently protect anyone from anything and no decision we issue today has the power to change that fact. The Supreme Court stayed the preliminary injunction, and the preliminary injunction will resume in force—if ever—only after events that would post-date our decision and over which we have no control … (directing that the stay will remain in effect “pending the disposition of the appeal in the United States Court of Appeals for the Fourth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought“)…

Judge J. Harvie Wilkinson, joined by Judges Paul Niemeyer, Steven Agee, and Allison Rushing concurred in the judgment:

I concur in the judgment and believe that the Supreme Court’s issuance of the stay in this case is by far the most salient factor dictating our denial of the preliminary injunction. To conclude otherwise would relegate the Supreme Court’s stay order to a shallow exercise. That is a course only the most audacious inferior court would seek to follow….

Judge Julius Richardson, joined by Judges J. Harvie Wilkinson, Paul Niemeyer, Steven Agee, Marvin Quattlebaum, and Allison Rushing, also concurred in the judgment:

Article III of the Constitution sets up two categories of courts: “one supreme Court” and other “inferior Courts.” U.S. Const. art. III, § 1. This Court is an inferior one. This judicial hierarchy commands vertical stare decisis—when the Supreme Court speaks, inferior courts must listen. Of course, many cases feature novel legal or factual issues that require inferior courts to exercise independent judgment. But in other cases, the Supreme Court makes the answer easy. This is one such case.

In this appeal, we review a district court’s grant of a preliminary injunction against a government agency. The merits involve several interesting—and challenging—legal issues. But the outcome of this appeal should be neither interesting nor challenging. That’s because the Supreme Court already answered the interim question before us in this very case. So this case is “squarely controlled” by the Supreme Court’s earlier interim order granting a stay. Following the Supreme Court’s direction, I would vacate the preliminary injunction.

Fortunately, our en banc Court reaches that result today. But along the way, the Court makes several unforced errors….

Judge Marvin Quattlebaum, joined by Judges Julius Richardson and Allison Rushing, had another concurrence in the judgment:

Sometimes, appellate judges can forget what the real world of practicing law is like. This is one of those times. While I agree with the majority’s disposition, I also agree with Judge Richardson on the standard required for preliminary injunctions. But I write separately only to address one of the reasons the majority gives for rejecting what Judge Richardson calls the “multiplicative problem.” The majority suggests that likelihood of success on the merits cannot be effectively assessed in an objective, numerical way. In fact, it quotes a law review article stating that “[c]ognitive limitations leave humans able only weakly to judge likelihood on any sort of scale.” In my view, it’d be a mistake to abrogate American Federation of Teachers v. Bessent (4th Cir. 2025) [as the majority does], because we don’t think judges can effectively assess likelihood of success in numerical terms. Why do I say that? Because I know firsthand that lawyers around the country do this very thing every day. And if lawyers regularly assess probability of success numerically, judges—who have more time and resources than most lawyers—should be able to do it too…. [For more on the majority’s reasons for abrogating AFT, see the full opinion. -EV]

Judge Robert King, joined by Judges Roger Gregory, James Andrew Wynn, Stephanie Thacker, DeAndrea Gist Benjamin, and Nicole Berner, concurred and dissented in part:

When the district court issued its preliminary injunction, the facts then known to the district court were bad enough. The Social Security Administration (“SSA”) had abruptly opened all its records to affiliates of the President’s then-new Department of Government Efficiency (“DOGE”) despite the DOGE affiliates’ lack of vetting, lack of training, and lack of any demonstrated need for the vast and extremely sensitive personal information that fills the SSA records.

The facts now known are much worse!

As SSA recently revealed in a “Notice of Corrections to the Record,” a significant portion of the information provided by SSA and the other defendants in the preliminary injunction proceedings was patently false. The Notice of Corrections confesses repeated violations of the district court’s prior temporary restraining order (the “TRO”) and multiple instances of the DOGE affiliates’ misuse and mishandling of SSA records. Moreover, the Notice of Corrections belies SSA’s entire justification for opening its records to the DOGE affiliates—that the DOGE affiliates are regular SSA employees working under SSA’s supervision, in accordance with its rules, and on its behalf—by exposing that the DOGE affiliates are actually rogue actors whose activities are hidden from SSA itself.

After receiving SSA’s Notice of Corrections and on the motion of the plaintiffs, the district court promptly corrected the record on appeal. That leaves our en banc Court with at least two legitimate options for disposing of this appeal. We could (1) assess the merits of the preliminary injunction on the basis of the corrected record or (2) remand, without assessing the preliminary injunction’s merits, so that the district court may decide anew whether to award injunctive relief on the basis of the corrected record and subsequent developments.

I would pursue option (1)—assessing the merits of the preliminary injunction on the basis of the corrected record—and I would thereby affirm the preliminary injunction without hesitation. Candidly, I would affirm even if it were the erroneous original record that controls the analysis. The very able district judge acted with exceptional thoughtfulness in issuing the preliminary injunction, committing no legal error or otherwise abusing her discretion.

Regrettably, however, my friend Judge Heytens pursues neither option (1), option (2), nor any other legitimate option for disposing of this appeal. Instead, in Part IV of his opinion, Judge Heytens improperly disregards the corrected record and wrongly relies on the erroneous original record to assess the preliminary injunction’s merits. Compounding that misstep, Judge Heytens then unjustifiably rules that the district court erred in crediting the plaintiffs’ showing of irreparable harm, such that the preliminary injunction must be vacated….

Judge Wynn wrote separately, joined by Judges King, Thacker, Benjamin, and Berner:

I write to voice my disagreement with the separate opinions of my fine concurring colleagues Judge Wilkinson and Judge Richardson. Together, they advocate a step that judges need not take, and in my view, should not take. That’s because by treating the Supreme Court’s short interim order in Trump v. Boyle as setting precedent, they blur a line the Supreme Court itself has carefully preserved—the line between provisional relief and precedential lawmaking….

Jack E. Starcher (DoJ) represents the government.