RICHMOND, Va.—Big Brother has come to the federal government with the approval by a Fourth U.S. Court of Appeals 2-1 partisan majority—two Republican-named judges for, and the Democratic-named judge against— of the so-called Department of Government Efficiency (DOGE) policy of rooting through and copying individuals’ personal files and data from the Treasury Department, the Education Department and the government’s own HR shop, the Office of Personnel Management.
In doing so on August 12, GOP-named Appellate Judges Julius Richardson and Steven Agee threw out an injunction which the Teachers/AFT, the Machinists, the National Federation of Federal Employees/ IAM and the National Association of Retired Federal Employees had won against the wholesale disclosures of confidential information DOGE demanded.
The ruling is a major win for Trump, DOGE and the efforts of his radical right regime and its corporate backers to gain information about, and control over, people’s personal lives. The unions estimated two million people would have their personal lives exposed and exploited in a major privacy breach.
By letting DOGE root around in the files at Trump’s command, taping and taking whatever its computer nerds want, Trump and his minions can grab people’s phone numbers, Social Security numbers, bank balances, health information and more. And there are no restrictions on its abuse.
GOP President Trump named Judge Richardson, and GOP President George W. Bush named Judge Agee. Both said the unions couldn’t sue because they individually wouldn’t be hurt—and that even if they did, they’d lose on the merits of the case anyway. Appellate Judge Robert King, a Bill Clinton nominee, dissented.
“A preliminary injunction is just that—preliminary,” Judge Richardson wrote of U.S. District Judge Deborah Boardman’s injunction, which the unions won on March 24 in federal court in Greenbelt, Md. The unions had cheered that.
“Elon Musk and DOGE should not have access to highly sensitive data” about the U.S. people in general and federal workers in particular, NFFE-IAM President Randy Erwin said in March. “Everyone in this country has the right to privacy. NFFE and our allies are committed to protecting that right, especially when our members are at risk of having their information compromised by those who wish to do them harm.”
Workers would suffer irreparable harm
Judge Boardman had said the workers “would suffer irreparable harm” without the ban on DOGE access her injunction brought. The two Republican-named judges said Judge Boardman didn’t prove her case. Democratic-named Judge King said his GOP-named colleagues disregarded her thorough fact-finding.
“A decision to grant or deny” an injunction ”does not conclusively resolve the case,” GOP-named Judge Richardson retorted in the majority’s August 13 decision. “For that reason, the Supreme Court has repeatedly ‘cautioned against…treating preliminary injunctions as ‘tantamount to decisions on the underlying merits.’
“Though the two relate and overlap, the decision to issue preliminary relief and the decision to issue ultimate relief are distinct and must be assessed on their own terms.”
And because of one unique feature, the unions’ case flunked, Judge Richardson wrote.
“The plaintiff”—the unions—”must show a likelihood of success on the merits rather than actual success…Adding ‘likelihood’ to the merits analysis creates a probabilistic structure that stacks the deck against a plaintiff who must prevail on multiple independent issues to prevail overall.” And the majority then reiterated the unions couldn’t win on those independent issues.
That ruling leaves DOGE’s computer nerds, under Trump’s command but formerly directed by multibillionaire Elon Musk—who at the time of DOGE’s digging was also Trump’s close ally—free to root around and reveal everyone’s personal data.
The unions “face what can be called a ‘multiplicative problem,’” the two GOP-named judges opined. “Their likelihood of success overall is the product of their probability of success on each of the independent, dispositive issues.
“As probabilities are multiplied, their product shrinks rapidly. Even if a plaintiff”—the unions—“has good odds to win any one issue, their overall odds crater because they must run the table to ultimately prevail.”
The government wins the case if it wins on just one contested issue, the two-judge majority said. And it did. “It is simply harder to avoid a loss when there are more issues to lose on,” they added. The issue they lost was the impact of such disclosure. The two GOP-named judges dismissed it.
“The harm that might come from this generalized grant of database access to an additional handful of government employees—prone as they may be to hacks or leaks” as the unions warned about, but which have yet to occur, “seems different in kind, not just in degree, from the harm inflicted by reporters, detectives, and paparazzi.”
The unions had to show “a concrete injury” to workers and the public to justify an injunction, temporary or permanent, stopping Trump’s delve into the files, the majority said. They didn’t.
“Unauthorized knowledge of sensitive information is instead more closely shielded by other privacy” laws and suits, covering “public disclosure of private information,” the duo added.
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