In denying the plaintiffs’ request for a restraining order, the judge noted that the plaintiffs failed to show a substantial likelihood of success on the merits of their claims, which centered on the idea that DOGE’s data access policies were illegal because they were implemented without proper rulemaking or legal authority.
The AFL-CIO and other unions argued that DOGE’s ability to access sensitive information systems at the three agencies violates the Privacy Act and the Administrative Procedure Act. They contended that the federal agencies were unlawfully granting DOGE-affiliated personnel access to sensitive records without legal authority, as DOGE does not qualify as an agency employee under the Privacy Act’s provisions governing interagency data sharing.
The plaintiffs also claimed that the Trump administration’s implementation of DOGE policies lacked proper regulatory approval, violating the Administrative Procedure Act.
Bates opined that, while the legal issue is “novel and complex,” the government was correct when it argued that DOGE was an entity permitted to detail staff to other government departments.
“This is a novel and complex legal issue. There is scant case law on the Economy Act’s definition of agency,” he wrote, adding that DOGE “appears to be an agency.”
“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,” Bates wrote.
“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,” he continued. “This is a close question, but plaintiffs have not, at this time, sustained their burden that they are likely to succeed on its merits.”
Bates did, however, point out that it was odd the government did not want DOGE to be seen as an agency for purposes of those federal laws which would make it susceptible to open records requests. The judge wrote in the ruling that DOGE is a “Goldilocks entity: not an agency when it is burdensome but an agency when it is convenient.”
The judge also noted that the case would benefit from additional briefings and analyses to determine DOGE’s legal status and requested the parties put forth a schedule regarding whether he should issue a longer-term preliminary injunction preventing DOGE from accessing data at the agencies.
The Epoch Times has reached out to counsel representing the plaintiffs with a request for comment on the judge’s decision.
The ruling was issued on the same day that a Manhattan judge extended a temporary restraining order blocking DOGE from accessing payment systems at the Treasury Department.
