Court Rejects AFL-CIO Demand For Temporary Restraining Order Against DOGE Access at DOL, HHS, CFPB

Court Rejects AFL-CIO Demand For Temporary Restraining Order Against DOGE Access at DOL, HHS, CFPB

There are dozens of cases filed against Trump administration policies and procedures, particularly those centered around DOGE (Department of Government Efficiency). These cases sometimes are couched in terms of privacy and sometimes around whether DOGE has authority to act. At their core, these are political cases by a vast Democrat apparatus established last fall to swamp the administration with lawsuits.

We are in the early stages, but there have been some troubling Temporary Restraining Orders issued by some court. TROs by nature are short term, but tying the hands of the executive branch from being able to run the executive branch is still serious, even if for only a week or two.

It’s hard to keep track of them all, so we will post about particularly signigicant decisions as they come down.

On February 14, 2025, Judge John H. Bates of the U.S. District Court in DC, rejected a request for a TRO that would have barred DOGE from access at the Department of Labor (“DOL”), the Department of Health and Human Services (“HHS”), and the Consumer Financial Protection Bureau (“CFPB”). It’s a very technical analysis, here’s some key parts of the Memorandum Opinion and Order (full embed below):

Labor unions, a think tank, and two nonprofits move to temporarily restrain [DOL, HHS, CFPB,] the United States Digital Service (now known as the United States DOGE Service), and the United States DOGE Service Temporary Organization, from providing any person outside the three agencies—namely, DOGE personnel—with access to records systems containing personal information or data. As it said previously, the Court has serious concerns about the privacy concerns raised by this case, and those concerns are all the graver now that the data includes information on all Americans who rely on Medicare and Medicaid, as well as countless consumers. However, on the record before it, the Court does not conclude that plaintiffs are entitled to the extraordinary relief of a temporary restraining order.

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As in its last order, “the Court’s reasoning begins and ends with likelihood of success on the merits.” First TRO Order at 5.1 Plaintiffs’ central argument is that defendants are acting contrary to law by allowing non-agency personnel—namely USDS personnel—to access individuals’ personal information in violation of the Privacy Act of 1974.2 The Privacy Act prohibits, among other things, an agency “disclos[ing] any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.” 5 U.S.C. § 552a(b). The parties don’t dispute that the personal information plaintiffs fear has been or will be disclosed falls within the Privacy Act’s definition of “records.” See id. at § 552a(4) (defining record). What they do dispute is whether the people carrying out USDS’s mission at DOL, HHS, and CFPB are authorized under the Act to access those records….

As alluded to, there are currently people carrying out the DOGE agenda (so-called DOGE Teams) at all three defendant agencies. The DOGE Team members come in three types: (1) USDS 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. The record shows that DOL’s current DOGE Team consists of “one relevant worker who is now a DOL employee,” Decl. of Ricky J. Kryger [ECF No. 31-1] (“Kryger Decl.”) ¶ 13; HHS’s consists of “at least one USDS employee[,] . . . one employee from another” agency, and one HHS employee, Decl. of Garey Rice [ECF No. 31-2] (“Rice Decl.”) ¶ 5; and CFPB’s consists of one USDS employee and five employees detailed from other agencies, Decl. of Adam Martinez [ECF No. 31-3] (“Martinez Decl.”) ¶ 6.

According to the agencies, DOGE Team members are not running rampant, accessing any data system they desire. They are supervised by the agency in which they are employed/detailed, see Kryger Decl. ¶ 7; Rice Decl. ¶ 8; Martinez Decl. ¶ 8, and must follow that agencies’ data protocol. Accordingly, team members have signed nondisclosure agreements, received security training, and are otherwise subject to agency requirements as to data permissions and accesses. See Martinez Decl. ¶¶ 6–7. For example, “[u]nder the detail agreement . . . between USDS and HHS, USDS detailees” are required to abide by ten security-related protocols, including “[a]ccess[ing] HHS data, information, and systems for a legitimate purpose” and “[c]omply[ing] with the requirements of the Privacy Act for information that HHS collects on individuals.” Rice Decl. ¶ 7. Similarly, at DOL, any employee or detailee must submit a request 24 hours in advance of accessing any information system and acknowledge “certifications relating to . . . the Privacy Act, and additional governing statutes or directives that DOL is responsible for complying with,” and “the requester [must] securely maintain and properly dispose of sensitive data when no longer needed for official purposes.” Kryger Decl. ¶ 9–10.

In short, the record indicates that DOGE Team members are federal government “employees . . . who have a need for the record in the performance of their duties,” § 552a(b)(1), and must follow protocols to ensure their access is contained within the bounds of the Privacy Act. But are they “employees of the agency” at which they are detailed? ….

For the reasons explained above, on the record as it currently stands and with limited briefing on the issue, the case law defining agencies indicates that plaintiffs have not shown a substantial likelihood that USDS is not an agency. If that is so, USDS 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. This is a close question, but plaintiffs have not, at this time, sustained their burden that they are likely to succeed on its merits.

The decision is important because it puts the lie to the hair-on-fire claims that DOGE is run amok and is violating citizens’ privacy. There are strict controls in place, and whether they are strict enough is not a matter for the courts.

The Order clearly is correct, but I would not be surprised if there are inconsistent orders from other judges and courts. All the more reason the ability of the executive department to run the executive department needs to get to the Supreme Court soon.

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