Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—En banc Fourth Circuit denies government’s request for stay of injunction preventing DOGE access to SSA records, (May 1, 2025)

By Brandi O. Brown, J.D.

SSA had attempted to give DOGE “immediate and unfettered access” to all SSA records.

Yesterday, a majority of the Fourth Circuit, sitting en banc, denied a motion filed by the Federal government, including the SSA, Elon Musk, and U.S. DOGE, to stay, pending appeal, a federal district court’s preliminary injunction that, along with a TRO, barred DOGE’s access to SSA records.

Although no en banc opinion was issued, several judges penned separate concurrences and dissents, joined in two cases by others.

King’s concurrence. Judge King, with whom Chief Judge Diaz and Judges Gregory, Wynn, Thacker, Benjamin, and Berner joined, wrote a separate concurrence, praising the “very able district judge” who “carefully and thoughtfully examined the evidence and legal issues” and adopting the PI opinion in its entirety (it is included as an addendum to the appeals court’s order). Among the extensive evidence addressed by that judge’s PI and TRO opinions, they note evidence that the SSA was “in the ‘crosshairs’ of the new Trump Administration, based on the President and his agents’ broadly publicized allegations of widespread incompetence and fraud in the Social Security System and descriptions of it as a ‘Ponzi scheme.’” They also note evidence considered by the judge below that DOGE has “wrought havoc” on the agency and that the “SSA leadership abruptly accorded DOGE and its affiliates unfettered access to SSA systems of record containing personally identifiable information.”

“Unfettered access.” The lower court’s preliminary injunction opinion “emphasizes that all this highly sensitive personal information has long been handed over to SSA by the American people with every reason to believe that the information would be fiercely protected.” Yet, this “bedrock” SSA principle “has been flouted by the sudden grant to DOGE of unfettered access to SSA systems of record.” And there was no need for it because the “work could be accomplished largely with anonymized and redacted data, along with discrete pieces of non-anonymized data in limited, appropriate circumstances—as has long been typical at SSA for the type of technology upgrades and waste, abuse, and fraud detection that DOGE claims to be doing.”

Judge King noted that the preliminary injunction also requires DOGE affiliates to “disgorge and delete” the PII already in their possession or control and prohibits them from installing any software at SSA and directs them to remove any installed by them or on their behalf. However, they are not precluded from receiving from SSA access to redacted or anonymized data or records, nor are SSA employees who are not working on the DOGE agenda impacted.

Bessent. Judge King also noted that in the case of American Federation of Teachers v. Bessent, on which panel he also sat, he had likewise requested en banc consideration, to no avail. He responded to the dissenters’ argument that the Bessent case is this case’s “legal twin” and should be ruled upon in the same way. “I could not disagree more with the propositions underlying the dissent. First of all, I continue to believe that the stay motion in Bessent was worthy of initial en banc consideration and that the stay should not have been granted. In any event, I also see this as a substantially stronger case than Bessent, with vastly greater stakes for many reasons. Most especially, the Preliminary Injunction in this case protects all personally identifiable information in the Social Security records of everyone, i.e., millions upon millions of American citizens and noncitizen taxpayers. The Bessent injunctive relief, by contrast, was limited to the two million or so plaintiffs.” He also added that “numerous additional differences” between the cases were identified by the court below. “At bottom,” Judge King concluded, “to the extent this case and the Bessent case are “legal twins,” the preliminary injunctions in both cases deserve to remain in effect. At the very least, however, today’s majority is right to deny a stay herein.”

Other concurrences and a dissent. Judge Wynn also wrote a brief, separate concurrence, as did Judge Heytens. Judge Richardson wrote a dissent, with whom Judges Wilkinson, Niemeyer, Agee, Quattlebaum, and Rushing joined.

The case is No. 25-1411.

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