Federal Judge John D. Bates has once again rejected labor unions’ request for a Temporary Restraining Order that would have kept the Department of Government Efficiency (DOGE or USDS – the US DOGE Service) out of the Department of Labor and away from the confidential information that DOL agencies possess in their data systems. The unions refiled a request for a TRO last week after the same judge rejected the unions’ first request for a TRO based on their lack of standard.
Standing wasn’t an issue in this decision. Bates’ arguments are fairly technical in a legal sense, and not being a lawyer, I can’t really judge whether the judge is judging correctly, but I will attempt to summarize some of the key points of his decision.
But take my “analysis” with several grains of salt. I don’t want to lose my non-existent law license. And if there are any real lawyers out there who want to correct my analysis or elaborate further, take full advantage of the comment section below.
Are the DOGE Bros Agency Employees?
The main argument that the unions and other “plaintiffs” made that DOGE is is in violation of the Privacy Act of 1974 which prohibits an agency from “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.”
The unions first argue that the DOGE Bros are not government employees authorized to access this confidential data
DOGE gets around this problem by assigning current DOL employees to the DOGE team.
Therefore, according to Bates’ decision,
the record indicates that DOGE Team members are federal government “employees . . . who have a need for the record in the performance of their duties,” and must follow protocols to ensure their access is contained within the bounds of the Privacy Act.
Is DOGE an Agency?
But is DOGE even an agency authorized access confidential data?. Neither the plaintiffs nor the defendants (DOGE) deny that confidential records are being communicated, but the unions argue that DOGE is not really an agency authorized to detail employees or access data.
The unions argue that under the Economy Act of 1932, “Only agencies can detail workers to other agencies. USDS is not an agency because it was not created by statute and is not accountable to an entity that was.”
Unfortunately, the definition of an “agency” seems to be complicated and governed by ambiguous definitions in several law.
DOGE argued — and the judge accepted — that DOGE is an agency: If an entity serves solely “to advise and assist the President,” it is not an agency. But clearly DOGE does more than just “advise and assist,” it actually “implements” the President’s modernization agenda. So that makes it an agency.
Under those definitions, USDS—which is located with the Executive Office of the President, appears to be an agency. In each context mentioned above, an entity within the Executive Office of the President is an agency if it “wield[s] substantial authority independently of the President.”
Which brings us to a rather amusing part of the judge’s decision. The judge notes that even though DOGE is apparently an “agency,” DOGE itself isn’t really claiming to be an “agency” under most laws — except when it suits them.
Because if DOGE was a real agency as defined by most laws, they would be subject to the Freedom of Information Act (FOIA), the Privacy Act and the Administrative Procedures Act (APA) — all of which might hobble their efforts by forcing them to comply with laws that control how government agencies must behave — the laws that every other government agency must comply with.
No, they aren’t the type of agency subject to any of those laws. Instead, they argue that they are an “instrumentality,” (which makes them a different kind of “agency”) under the Economy Act, which has a broader definition of “agency.”
“And so,” Judge Bates observes, “USDS becomes, on defendants’ view, a Goldilocks entity: not an agency when it is burdensome but an agency when it is convenient.”
USDS becomes a Goldilocks entity: not an agency when it is burdensome but an agency when it is convenient.”
The judge admits that the whole definition of an agency is confusing and he is skeptical of the “instrumentality” argument, as well as DOGE’s contention that they aren’t covered by FOIA or the APA, but he’s leaving that for future arguments.
Can DOGE Be Trusted?
Do you follow the news? Does the prospect of Elon Musk and 20-something DOGE Bros having access the the confidential information of every person in the country make you nervous?
Well, don’t worry. DOGE promises to be good. Cross their hearts and hope to die:
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, 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.
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.” 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.”
But, the unions warn, there is evidence that DOL policy is violating federal law that prohibits threatening a federal employee with termination for failing to comply with an order “that would require the [employee] to violate a law.”
Again, not to worry, DOGE has assured the judge that its declarations require employees to comply with all applicable laws and regulations, which would include laws prohibiting retaliation.
So, despite the fact that DOGE fired thousands of USAID workers for insubordination and eliminated the Agency, there is nothing for DOL employees to fear here. Go about your business.
And if you’re one of those worry-warts concerned about DOGE access to all the nation’s most sensitive national economic data held by the Bureau of Labor Statistics’?
Again, just chill. “The record supplies insufficient support for plaintiffs’ claims that USDS seeks to access Bureau of Labor and Statistics data, particularly in an unauthorized way.”
So, in conclusion, Bates determines that “In the end, plaintiffs fail to show that any of their claims are likely to succeed on the merits, at least on this record. The Court thus denies their renewed motion for a TRO.”
Everything crystal clear? (I’m expecting my law degree to arrive any day in the mail.)
That’s about it for now.
The unions and other organizations will persist in convincing the judge to issue an injunction that would keep DOGE our of DOL. But it’s clearly a difficult path.
Stay tuned….