Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—4th Cir.: Path cleared for DOGE to access data at some federal agencies, (Apr 8, 2025)

By Todd Harrison, J.D.

“…the government suffers an irreparable harm when it cannot carry out the orders of its elected representatives.”

Granting the government’s motion to stay a TRO blocking access to the personal information of more than two million employees across several federal agencies, a divided Fourth Circuit panel found that the district court misapplied precedent in determining what constitutes a concrete injury for purposes of standing. Access to sensitive personal information, on its own, does not represent an interjection into the private sphere similar to unsolicited mailings or phone calls, said the court. Concurring, Judge Richardson explained that the tort of intrusion upon seclusion guards not against the disclosure of sensitive information, but against a feeling of unease when one should feel at peace, such as “when a photographer snaps an opportunistic photo of a woman’s underwear.” Dissenting, Judge King, joined by five others who voted for an en banc hearing, argued that a stay would permit what appears to be an illegal intra-government disclosure of personal information (American Federation of Teachers v. Bessent, No. 25-1282 (4th Cir. Apr. 7, 2025)).

Lifting a district court’s temporary restraining order blocking the Department of Government Efficiency’s access to the personal information of millions of federal employees, the Fourth Circuit, applying the factors set forth in Nken v. Holder, 556 U.S. 418 (2009), found the government was entitled to a stay pending appeal based on its strong showing that it was likely to succeed on the merits, would be irreparably injured absent a stay, that the issuance of a stay would not substantially injure the other parties, and that a stay was in the public interest.

Concrete injury. According to the court, the first Nken factor strongly favored the government because it had made a strong showing that it would succeed on the merits as to standing. Finding that the district court had misapplied TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), and Fourth Circuit precedent interpreting TransUnion, ongoing access to sensitive personal information, on its own, did not constitute a concrete injury for purposes of establishing standing, said the court.

Intrusion upon seclusion. In granting the TRO, the district court concluded that the plaintiffs’ alleged injury was concrete because it bore a close relationship to intrusion upon seclusion. However, the court here found that the district court had misapplied Garey v. James S. Farrin, P.C., 35 F.4th 917 (4th Cir. 2022), wherein the Fourth Circuit held the plaintiffs had suffered a concrete injury for standing purposes when the defendants had knowingly obtained each plaintiff’s name and address from a motor vehicle registry for an impermissible purpose and then used the information to mail unsolicited attorney advertising to the plaintiffs.

The district court in this case relied on the fact that Garey did not explicitly mention that the receipt of unsolicited materials at home informed and underlaid the Fourth Circuit’s conclusion that the plaintiffs had suffered a legally cognizable injury. “To isolate the actual intrusion into the home in Garey ignores our express reliance on Krakauer v. Dish Network, 925 F.3d 643 (4th Cir. 2019),” said the court.

In Garey, the court framed Krakauer as “a nearly identical standing challenge.” There, the court concluded that a telemarketer disregarding the Do-Not-Call registry and placing unsolicited phone calls had imposed a concrete burden on privacy. “In other words, it wasn’t the mere possession of the phone numbers but their actual use to invade the home that was dispositive,” explained the court.

At its core, continued the court, the harm contemplated by the tort of intrusion upon seclusion includes an intrusion into an individual’s private space. In this instance, the appellees failed to allege any interjection into the private sphere analogous to unsolicited mailings or phone calls. As such, the appellate court found that the district court had misread its precedent in requiring nothing more than abstract access to personal information to establish a concrete injury. Thus, the government had met its burden of a strong showing that it was likely to succeed on appeal.

Remaining factors. The remaining Nken factors also favored the government, explained the court. The Supreme Court has stated that unlike a private party, “the government suffers an irreparable harm when it cannot carry out the orders of its elected representatives.” Further, judicial management of agency operations would offend the Executive Branch’s exclusive authority to enforce federal law, said the court. Accordingly, the government was entitled to a stay pending appeal.

Concurrence. Concurring, Judge Richardson explained why the government has a high likelihood of success on the merits. First, Judge Richardson observed that the government’s likelihood of success under the first Nken factor encompassed and mirrored the plaintiffs’ likelihood of satisfying all four factors set forth in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

“As a matter of mathematics, this is an unfavorable structure for the plaintiffs,” said the judge. Between the four Winter factors along with other jurisdictional questions, continued the judge, this case involves several issues that are potentially dispositive of the appeal. To win, the government need only prevail on one of the issues, while the plaintiffs would need to prevail on all of them.

Further, with regard to showing concrete harm, Judge Richardson explained that the tort of intrusion upon seclusion guards not against the disclosure of sensitive information, but against the feeling of unease when one should feel at peace. “Its harm is felt when a reporter accosts a convalescing patient in the hospital, when a private detective peers through a neighbor’s bedroom window for weeks, and when a photographer snaps an opportunistic photo of a woman’s underwear,” said the judge, which is distinct from the alleged harm of unauthorized access to personal information. Without a common law analog, continued the judge, the plaintiffs here lacked standing.

Dissent. Judge King, joined by Judges Gregory, Wynn, Thacker, Benjamin, and Berner, all of whom voted in favor of an en banc initial hearing, “strongly” dissented from both decisions. Judge King contended that the district court had got things right.

As for the request to grant initial en banc consideration of this matter, Judge King pointed to the response of Judge Wynn in voting to grant an en banc hearing, who had stated that, “A stay would permit what appears to be the illegal intra-governmental disclosure of highly sensitive personal information. Even a momentary lapse in the preliminary injunction preventing that disclosure could irreparably harm the plaintiffs. The matters at stake—unfettered, unauthorized access to the highly sensitive personal data of millions of Americans, including veterans—merit the immediate and collective attention of this Court.”

The case is No. 25-1282.

Judge: Agee, G.

Attorneys: Liam Patrick Gennari (Munger, Tolles, & Olson) for American Federation of Teachers. Mark R. Freeman, U. S. Department of Justice, for Scott Bessent.

Companies: American Federation of Teachers

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