Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—4th Cir.: Full court vacates injunction barring DOGE’s access to SSA’s private data, (Apr 13, 2026)

By Kathleen Kapusta, J.D.

For decades, the SSA scrupulously guarded Americans’ sensitive information and Americans trusted it to do so.

Vacating a preliminary injunction that restrained the Social Security Administration (SSA) from granting DOGE or its affiliates access to Americans’ sensitive personal information, a divided en banc Fourth Circuit found that the plaintiffs, two unions and a grass roots advocacy organization, failed to show they were likely to suffer irreparable harm in the absence of preliminary relief. Addressing what it called “the elephant in the room,” the court also noted that 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” (American Federation of State, County and Municipal Employees, AFL-CIO v. Social Security Administration, No. 25-1411 (4th Cir. Apr. 10, 2026)).

After President Trump, on January 20, 2025, signed the executive order creating the U.S. DOGE service, DOGE personnel, observed the court “quickly made their way to the Social Security Administration and sought ‘unprecedented’ access to agency systems, including non-anonymized personally identifiable information.” Following a standoff and the resignation of career officials, a “new acting administrator was installed and granted DOGE the sweeping access it sought.”

Preliminary injunction. The plaintiffs—AFSCME, the Alliance for Retired Americans, and the American Federation of Teachers—sued to prevent DOGE from accessing the personal identifiable information of the combined seven million Americans they represent. The district court issued a preliminary injunction, which the Supreme Court subsequently stayed, directing that the stay would remain in effect until the completion of all appellate review, including by the high court, of the district court’s order.

Before reaching the merits of the government’s appeal of the injunction, the Fourth Circuit first pointed to its 2025 decision in American Federation of Teachers v. Bessent, noting that it could be read as departing from the well-established principles of equity in the determination of whether to issue a preliminary injunction. “In some situations,” said the court, “—those ‘when a plaintiff must prevail on several independent issues’ to win its case—the AFT opinion describes ‘a multiplicative problem’ where the plaintiff’s ‘overall’ likelihood of success ‘is the product of [its] probability of success on each of the independent, dispositive issues.’”

Disavowed. Here, the court specifically disavowed “any suggestion that district courts should assign numerical probabilities to a plaintiff’s chances of success on each issue and then multiply those probabilities together to determine whether the plaintiff’s ‘overall odds’ of success are high enough to warrant a preliminary injunction.” The traditional four-factor test for granting a preliminary injunction, the court explained, “is a creature of equity, not ‘a mechanical algorithm,’ and attempts to reduce it to one risk ‘confusion worse confounded.’”

Standing. Regarding the preliminary injunction at issue here, the court found the plaintiffs sufficiently established standing to pursue at least some of their claims. Disclosing their members’ personally identifiable information to DOGE, said the court, inflicts a harm that is a close analogue to the common law tort of intrusion upon seclusion. “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,’” which, observed the court, is what the plaintiffs allege here.

For its part, the government argued that the plaintiffs raised no challenge to non-DOGE SSA employees accessing their members’ sensitive personal data and Article III standing cannot turn on which government employees access this information. But that argument, the court explained, “suffers from a familiar flaw: confusing a possible ‘weakness on the merits with [an] absence of Article III standing.’” The plaintiffs, observed the court, argue that DOGE team members, unlike other SSA employees, are not authorized to access this sensitive personal information, which is what renders their access an unlawful and highly offensive “intrusion.”

Irreparable injury. Satisfied that the plaintiffs established standing, the court addressed the second of the preliminary injunction factors—irreparable injury. Because a preliminary injunction “cannot reach back in time to prevent or undo irreparable harm that has already occurred,” the key issue, said the court, “is whether a preliminary injunction will prevent plaintiffs from suffering new or additional irreparable harm while they litigate this case to final judgment.”

Here, the court stated, the irreparable harm on which the district court relied in granting the preliminary injunction is that DOGE violates the plaintiffs’ members’ privacy by accessing their sensitive personal data without lawful authorization. However, observed the court, both money damages and a reparative permanent injunction could be available corrective relief here.

The Privacy Act authorizes damages for intentional or willful violations. While the plaintiffs argued that any damages would be “insufficient” and “difficult to ascertain,” they failed to explain why, said the court, or explain why two district courts, in similar cases involving DOGE’s access to government databases, erred in concluding that those plaintiffs did not satisfy the irreparable harm factor because damages could be available later.

Reparative injunction. Nor did they explain, to the extent that damages alone might not be enough, why a reparative permanent injunction would be legally inadequate to remedy any lingering harm. Noting that the record at the time the district court entered the injunction indicated that the allegedly unlawful disclosure had been made to a small group of people within the government, the appeals court pointed out that the district court could have—if the plaintiffs ultimately prevailed on the merits—ordered the relevant employees to destroy any illegally obtained data or work derived from such data. “That is the theory on which a third district court judge concluded the plaintiffs in yet another similar case failed to show irreparable harm. Once again, plaintiffs fail to explain why that logic is faulty as a legal matter.”

Finally, pointing to the Supreme Court’s earlier stay of the preliminary injunction, the court explained that “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.” For these reasons, the court vacated the preliminary injunction and remanded to the district court.

Wilkerson concurrence. Judge Wilkerson, with whom Judges Niemeyer, Agee, and Rushing joined, concurred in the judgment, writing “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.”

Richardson concurrence. Judge Richardson, with whom Wilkinson, Niemeyer, Agee, Quattlebaum, and Rushing joined, also concurred in the judgment, explaining that “Our en banc Court rightly vacates the preliminary injunction granted below. While several independent reasons support this conclusion, one stands above them all: the Supreme Court’s stay of this same injunction requires us to. Still, I regret that our Court purports to reject basic principles of probability that would—and already do—guide district courts in the very task that equitable discretion requires: assessing a plaintiff’s likelihood of future success.”

Quattlebaum concurrence. In another concurrence in the judgment, Judge Quattlebaum, joined by Judges Richardson and Rushing, agreed that “we should vacate the preliminary injunction and remand to the district court. So, I concur in the judgment. On the standard for preliminary injunctions, however, I agree with Judge Richardson. But regardless of how we decide that issue, it shouldn’t be because we can’t effectively assess likelihood of success numerically. That makes us seem out-of-touch with the real world, where lawyers do every day just what the majority says can’t be effectively done.”

King’s partial concurrence and dissent. Judge King, with whom Judges Gregory, Wynn, Thacker, Benjamin, and Berner joined, concurred in part, dissented in part, and dissented from the judgment. According to Judge King, “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!”

Judge King pointed out that “SSA recently revealed in a ‘Notice of Corrections to the Record,’ that 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.”

Based on this, Judge King would assess “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.”

Judge King also argued that “even considering the erroneous original record, however, Judge Heytens’s irreparable harm ruling is wrong. That is, Judge Heytens unjustifiably concludes that the plaintiffs have not made the requisite showing that they are likely to suffer irreparable harm in the absence of a preliminary injunction, in that they have not demonstrated that future money damages or a reparative permanent injunction would be insufficient to remedy their injuries.”

Finally, Judge King wrote, “As I see it, the Supreme Court’s stay has no role in the irreparable harm analysis. Our Court is tasked today with deciding whether the district court abused its discretion in issuing the April 2025 preliminary injunction based on the facts as of that time. The Supreme Court’s stay of June 2025 is not such a fact.”

Wynn opinion. In a separate opinion, Judge Wynn, with whom Judges King, Thacker, Benjamim, and Berner joined, wrote that “we have an unclear signal from the Supreme Court about what it may do in the future. Whatever my colleagues may think about the merits of this particular preliminary injunction and the weight we may give to the Supreme Court’s stay, the order did not resolve this appeal entirely, and we are ‘duty-bound to give [it] a thorough and conscientious review.’”

The case is No. 25-1411.

Judge: Heytens, T.

Attorneys: Jack E. Starcher, U.S. Department of Justice for Social Security Administration, Frank Bisignano, Mike Russo, Elon Musk, U.S DOGE Service, U.S. DOGE Service Temporary Organization, and Amy Gleason. Alethea Anne Swift (Democracy Forward) and Brian A. Sutherland (Complex Appellate Litigation Group) for American Federation of State, County and Municipal Employees, AFL-CIO, Alliance for Retired Americans, and American Federation of Teachers.

Companies: American Federation of State, County and Municipal Employees, AFL-CIO; Alliance for Retired Americans; American Federation of Teachers

MainStory: TopStory RemediesDamages PublicEmployees Privacy Procedure MarylandNews NorthCarolinaNews SouthCarolinaNews VirginiaNews WestVirginiaNews GCNNews