Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D.D.C.: Organizations not entitled to TRO to stop DOGE employees’ access to agencies’ data, (Feb 18, 2025)

By Tulay Turan, J.D.

They did not show a substantial likelihood of success on the merits of their Privacy Act claim.

Labor unions, a think tank, and two nonprofits failed in their renewed attempt to obtain a temporary restraining order against the Department of Labor, the Department of Health and Human Services, the Consumer Financial Protection Bureau, and the United States Digital Service (known as DOGE). The organizations sought to prevent the agencies from providing any person outside the agencies—namely, DOGE personnel—with access to records systems containing personal information or data. A federal court in the District of Columbia reiterated that, although it has “serious concerns” about the privacy issues raised by the case, the organizations were not entitled to a TRO. Because DOGE appears to be an agency, it can detail its employees to other agencies per the Economy Act. As employees of the three defendant agencies, the DOGE employees are authorized under the Privacy Act to access certain records (American Federation of Labor and Congress of Industrial Organizations v. Department of Labor, No. 25-0339 (JDB) (D.D.C. Feb. 14, 2025)).

DOGE. On January 20, 2025, President Trump issued an Executive Order (EO) creating the United States DOGE Service and required all federal agencies to “establish within their... [a]genc[y] a DOGE Team” to carry out DOGE’s mission of “modernizing Federal technology and software to maximize governmental efficiency and productivity.”

There are currently people carrying out the DOGE agenda at the DOL, HHS, and the CFPB. The DOGE team members come in three types: (1) USDS, usually referred to as DOGE, employees “detailed” to the relevant agency; (2) the relevant agency’s own employees assigned to the team; and (3) employees of other agencies detailed to the relevant agency.

Prior proceedings. Upon reports that DOGE would be entering DOL to access its data, labor unions and a think tank (organizations) filed this lawsuit, which at the time, was only against DOL and the DOGE defendants, and sought a TRO. This court denied that TRO motion because the organizations lacked standing. The organizations then filed an amended complaint, which added two nonprofits as plaintiffs and HHS and CFPB as defendants.

On February 12, 2025, the organizations filed the instant TRO motion, seeking to enjoin defendants from sharing personal identifiable information with DOGE employees. The organizations’ central argument was that the defendants were acting contrary to law by allowing nonagency personnel to access individuals’ personal information in violation of the Privacy Act.

Likelihood of success. The court denied the TRO motion because the organizations did not show a substantial likelihood that DOGE is not an agency. If it is an agency, the court said, DOGE may detail its employees to other agencies consistent with the Economy Act. “It follows that plaintiffs have not shown a substantial likelihood on the merits of their Privacy Act claim, for without the argument that USDS employees may not be detailed under the Economy Act, the Privacy Act claim all but disappears,” the court wrote.

Employees of the agency? The court first found the DOGE team members are federal government employees “who have a need for the record in the performance of their duties” and must follow protocols to ensure their access is contained within the bounds of the Privacy Act.

However, the more “novel and complex issue” before the court was whether the DOGE team members were employees of the agency at which they were detailed. The organizations argued that the DOGE employees were not. They contended that under the Economy Act, only agencies can detail workers to other agencies. They argued DOGE is not an agency because it was not created by statute and is not accountable to an entity that was. Thus, the DOGE employees working in the agencies are not employees of the agencies and are not permitted to access the agency’s record systems, according to the organizations.

The defendants argued that DOGE did fall within the Economy Act’s definition of agency because the Act employed a broad definition of agency: “a department, agency or instrumentality of the United States Government.”

Other definitions. The court noted there was scant case law on the Economy Act’s definition of agency but looked to other similar definitions for guidance. The Freedom of Information Act and the Privacy Act sweep into their definitions “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” The Administrative Procedure Act encompasses “each authority of the Government of the United States, whether or not it is within or subject to review by another agency.”

Under those definitions, DOGE—which is located within the Executive Office of the President—appears to be an agency, the court found. The district’s own case law describing agencies for other, related purposes, also supported this conclusion. In the context of the other statutes mentioned previously, the court had found that “an entity within the Executive Office of the President is an agency if it “wield[s] substantial authority independently of the President” but that if an entity serves solely “to advise and assist the President,” it is not an agency.

DOGE’s mission appears to be much more than to advise and assist the president, the court found. Per the EO, DOGE’s mission is to “implement” the President’s modernization agenda, not simply to help him form it. “Action – as contrasted with mere advice and assistance – is precisely what characterizes agencies for purposes of the other statutes,” the court wrote. Thus, the case law defining agencies indicated the organizations have not shown a substantial likelihood that DOGE is not an agency.

Remaining claims. The court also found the organizations failed to demonstrate the likelihood of success on the merits of their three additional APA claims. First, they did not establish a substantial likelihood that the DOGE access policies are contrary to any of their cited laws and regulations. Second, their arguments that the defendants are violating the Federal Information Security Modernization Act are not likely to succeed because FISMA may not be subject to review under the APA.

Finally, the court rejected the argument that the DOGE access policies were arbitrary and capricious. Because the organizations have not demonstrated a likelihood of success on the Economy Act claim, they have not demonstrated that sharing the information with the DOGE employees embedded at each agency is a breach of confidentiality that triggers the reliance interests.

Thus, the court denied the renewed motion for a TRO.

The case is No. 25-0339 (JDB).

Judge: Bates, J.

Attorneys: Aman Tewari George (Democracy Forward Foundation) for American Federation of Labor and Congress of Industrial Organizations. Benjamin S. Kurland, U.S. Department of Justice, for Department of Labor.

Companies: American Federation of Labor and Congress of Industrial Organizations

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