The en banc opinions of the Fourth Circuit in AFSCME v. Social Security Administration, dealing with the Temporary Restraining Order issued by the district judge against the SSA providing DOGE with unfettered access to the personal, non-anonymized information of pretty much everyone in America for no particularly good reason, was ultimately stayed by the Supreme Court for no particularly good reason.  It is an exercise in legal masturbation in its purest form.

The majority, in an opinion by Judge Toby Heytens, with three concurrences and a partial concurrence and a dissent, took the position that there was no new irreparable harm, warranting a TRO, and that any harm could be cured by compensation, and therefore wasn’t irreparable.

The role of a preliminary injunction is to protect the plaintiff from suffering new or additional irreparable harm between the time the preliminary injunction is entered and the case’s final resolution. And, like any other injunction, a preliminary injunction cannot reach back in time to prevent or undo irreparable harm that has already occurred. For those reasons, the key question here is whether a preliminary injunction will prevent plaintiffs from suffering new or additional irreparable harm while they litigate this case to final judgment.

What is more, not all harm—no matter how serious in the real world—is “irreparable” in a legal sense. Even a plaintiff who has a concrete injury for Article III standing purposes may only obtain the “extraordinary remedy” of a preliminary injunction if that injury cannot be remedied during the ordinary course of litigation. If there is even a “possibility” that “adequate compensatory or other corrective relief will be available at a later date,” a court should hesitate before concluding a plaintiff’s harm is “irreparable” for purposes of granting a preliminary injunction.

The problem was set forth at length in the decisions but captured in a few paragraphs in the partial dissent.

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!

As SSA recently revealed in a “Notice of Corrections to the Record,” 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.

When suit was initiated, it was premised on DOGE’s authority to gain access to essentially all private information of everyone in the nation, this disclosure itself presenting the problem. Since then, the DOGErats involved did pretty much what the plaintiffs, not to mention a great many other Americans feared would happen.

Correspondingly, we know that SSA found itself obliged to belatedly confess the following, which includes repeated violations of the TRO and multiple incidents of the DOGE affiliates’ misuse and mishandling of SSA records:

● The TRO was violated by SSA’s failure to terminate the DOGE affiliates’ unfettered records access until approximately noon on March 24, 2025, as well as by a DOGE affiliate’s searches of SSA records for personal information earlier that morning;

● The TRO was again violated when SSA gave a DOGE affiliate access to certain records containing personal information from March 26 to April 2, 2025, and yet again when SSA gave a DOGE affiliate access to different records containing personal information from April 9 to June 11, 2025, through the period that the preliminary injunction was unstayed;

● SSA failed to disclose that it had granted DOGE affiliates systems access enabling them to, inter alia, exchange data with each other in a “shared workspace” and access personal information via a “data visualization tool”; and

● It was unknown to SSA at the time of the preliminary injunction proceedings but later discovered that:

On March 3, 2025, an SSA DOGE affiliate copied DOGE affiliates with the DOGE umbrella organization and the Department of Labor on an SSA email to the Department of Homeland Security, attaching an encrypted and password protected file believed to contain personal information derived from the SSA records of some 1,000 people;

From March 7 to 17, 2025, DOGE affiliates shared SSA data through the third-party server “Cloudflare”; and

On March 24, 2025, acting in his official capacity with SSA, a DOGE affiliate entered a “Voter Data Agreement” with an unnamed “political advocacy group” for the purpose of proving voter fraud and overturning certain state election results.

Putting aside the problem of the Fourth Circuit’s debate over its duty to comply with the Supreme Court’s shadow docket order, as to whether or not it’s precedential, there is no order of any court ever that can magically make the private, personal information of most of America private again after it’s been released into the wild. Courts occasionally forget that their purpose isn’t to ramble on about pointless nonsense, but to render a decision that has a concrete impact on real people’s lives.

It was feared from the outset, with damn good reason, that the DOGErats would take this mass of the most personal and private information of Americans and abuse it by giving it up for whatever political uses appealed to them (not to mention other, more malicious uses), but it was speculative at the time the suit was commenced because DOGE had yet to gain access to this private, personal information and therefore couldn’t release it to its “affiliates.” But once done, the worst fears were realized and it was too late to undo it. Something about cats and bags, and rats.