Fourth Circuit debates role in DOGE Social Security data fight

RICHMOND, Va. (CN) — An en banc Fourth Circuit debated the role of appellate courts during a testy hearing Thursday concerning an attempt to stop Department of Government Efficiency employees from accessing Social Security data.

A federal judge blocked DOGE from accessing the systems in March, questioning why officials needed large quantities of sensitive information on Social Security recipients. The Fourth Circuit denied the government’s attempt to stay the injunction ruling on the side of labor unions and retirees.

“The crux of this case and the crux of plaintiffs’ position is that government cannot grant itself an all-access pass to confidential, sensitive information merely by boldly asserting the word ’need’ or even the word ‘fraud,’” attorney Alethea Swift of the Democracy Forward Foundation, representing the unions, said.

The Supreme Court issued a June order reversing the Fourth Circuit’s conclusion and implemented a stay on a 6-3 vote. The high court majority said President Donald Trump was likely to succeed in the litigation and would be injured if the justices didn’t intervene, but did not issue an opinion to explain their reasoning.

Eye rolls and sighs dominated the day as the judges fiercely debated their role at this juncture, with Republican-appointed judges arguing the court should simply affirm the Supreme Court’s decision. In contrast, Democrat-appointed judges viewed the appellate court’s role as one requiring deeper analysis.

U.S. Circuit Court Judge Harvie Wilkinson, a Ronald Reagan appointee, inquired about the court’s course of action regarding the Supreme Court order.

“The Supreme Court’s action must mean something; it doesn’t do these things just for the kicks of it,” Wilkinson said. “We can’t just blow past it.

U.S. Circuit Court Judge Andrew Wynn, a Barack Obama appointee, criticized the Supreme Court majority for not issuing an opinion explaining its decision. Wynn said the Fourth Circuit should consider the case’s merits so that the public has an explanation for why the injunction is granted or stayed.

“Somebody ought to give a reason, some court, some judge ought to tell the public, ought to tell the litigants in the case, ‘Here are the reasons’ — that’s the way our system works in America,” Wynn said.

U.S. Circuit Court Judge Julius Richardson argued that, regardless of the lack of substance in the order, the law requires them to follow the high court.

“Our oath and the robes we wear, they are bound by our system to follow Supreme Court precedent,” the Trump appointee said. “Even if you disagree with it.”

The merits of the case — in which the labor unions argue DOGE’s unfettered access to sensitive data, including medical and mental health information, as well as family court and children’s school records, violates the Privacy Act — played a minor role in the hearing. The judges primarily argued over what they could decide in the face of the Supreme Court order.

Government attorney Jack Starcher told the judges that even if they felt they should rule on the injunction’s merits, he was confident it would fail. The government argues the unions failed to show injury.

“In imposing this sweeping injunction, the district court assumed the power to micro-manage,” the government wrote in its brief. “As the Supreme Court’s ruling foreshadows, the district court’s preliminary injunction was an abuse of discretion and should be vacated.”

U.S. Circuit Court Judge Paul Niemeyer, a George H.W. Bush appointee, cast doubt on the unions’ ability to demonstrate irreparable harm warranting the injunction without proof of data misuse. U.S. Circuit Court Judge Stephanie Thacker, an Obama appointee, asked whether the unions could only show injury after a data breach.

“Do we have to wait until some authorized person gains access to millions of Americans’ personal information, medical information, mental health information, bank information, before the government thinks that the plaintiffs have standing?” Thacker asked. “The government thinks that there is not standing until, and when, someone gains access to millions of Americans’ and children’s personal information. The government thinks we need to wait for somebody to hack into that unsecure server?”

Wilkinson agreed with Niemeyer and suggested the unions could benefit from a more fleshed-out record with evidence of abuse.

“Why would you want us at this particular stage to wade into the merits? Why would that be to your advantage?” Wilkinson asked Swift. “The record at this point in the proceedings is simply not favorable to you."

The Social Security Administration stores names, birth dates, driver’s license numbers, addresses, Social Security numbers, employment and wage histories, financial data, marriage certificates, school records, family court records, citizenship and naturalization records, and medical records.

The Fourth Circuit recently considered similar matters involving DOGE’s access to government employee records and Trump’s executive order terminating thousands of probationary federal employees.

Swift and Starcher did not respond to a request for comment.