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[26-5006] (Christensen, Jacob) [Entered: 06/16/2026 04:08 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/472464753/","id":472464753,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/487899196/","id":487899196,"tags":[],"absolute_url":"/docket/72135139/01208858600/center-for-taxpayer-rights-v-irs/","date_created":"2026-07-28T19:43:57.431806-07:00","date_modified":"2026-07-28T19:43:57.431823-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"01208858600","attachment_number":null,"pacer_doc_id":"01208858600","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2026-07-28T19:43:57.403848-07:00","date_modified":"2026-07-28T19:43:57.411930-07:00","date_filed":"2026-06-09","time_filed":null,"entry_number":1208858600,"recap_sequence_number":"2026-06-09.001","pacer_sequence_number":null,"description":"LETTER [2177706] pursuant to FRAP 28j advising of additional authorities filed by Center for Taxpayer Rights, Communications Workers of America, AFL-CIO, Main Street Alliance and National Federation of Federal Employees, IAM AFL-CIO [Service Date: 06/09/2026 ] [26-5006] (Gitomer, Madeline) [Entered: 06/09/2026 11:28 AM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/472464752/","id":472464752,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/487899195/","id":487899195,"tags":[],"absolute_url":"/docket/72135139/01208849340/center-for-taxpayer-rights-v-irs/","date_created":"2026-07-28T19:43:57.351766-07:00","date_modified":"2026-07-28T19:43:57.351783-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"01208849340","attachment_number":null,"pacer_doc_id":"01208849340","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2026-07-28T19:43:57.312287-07:00","date_modified":"2026-07-28T19:43:57.323303-07:00","date_filed":"2026-05-12","time_filed":null,"entry_number":1208849340,"recap_sequence_number":"2026-05-12.001","pacer_sequence_number":null,"description":"ORAL ARGUMENT HELD before Judges Millett, Pillard and Wilkins. 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[26-5006]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/467755116/","id":467755116,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/483024883/","id":483024883,"tags":[],"absolute_url":"/docket/72135139/2179132/center-for-taxpayer-rights-v-irs/","date_created":"2026-06-16T13:10:16.074273-07:00","date_modified":"2026-06-18T09:06:58.343097-07:00","sha1":"51ccfe2b2fc3119ea143777abe1bfdf5ba6300ce","page_count":2,"file_size":145742,"filepath_local":"recap/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.2179132.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.2179132.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"USCA Case #26-5006 Document #2179132 Filed: 06/16/2026 Page 1 of 2\n\n\n\n\n U.S. Department of Justice\n Civil Division\n\n Washington, D.C. 20530\n\n Tel: 202-307-0878\n\nJune 16, 2026\n\n\nClifton Cislak, Clerk of Court\nU.S. Court of Appeals for the D.C. Circuit\n333 Constitution Avenue NW\nWashington, DC 20001\n\n RE: Center for Taxpayer Rights v. IRS, No. 26-5006\n Response to notice of supplemental authorities under Fed. R. App. P. 28(j)\n Oral argument held on May 12, 2026\n\nDear Mr. Cislak:\n\n The June 4, 2026 report by the Treasury Inspector General for Tax Administration,\nThe IRS Provided Addresses for Nearly 47,000 Persons to Immigration and Customs\nEnforcement (\u201cReport\u201d), confirms that IRS policy under the MOU requires that ICE\nprovide the taxpayer\u2019s name and address in any request pursuant to 26 U.S.C.\n\u00a7 6103(i)(2) and that IRS was attempting to implement the MOU\u2019s requirements in its\nAugust 2025 response. Report 2. Although the Report identifies implementing errors\nthat caused IRS\u2019s response to be both underinclusive and overinclusive, the Report found\nthat IRS has acknowledged the address-matching errors that led to overinclusiveness and\nhas sought ICE\u2019s assistance to remediate them. Report 4-8. Such errors do not constitute\nIRS \u201cpolicy,\u201d nor does the Report support plaintiffs\u2019 position that IRS has adopted a\npolicy to process non-compliant requests that fail to meet the MOU\u2019s explicit\nrequirements, including that a request set forth the taxpayer\u2019s name and address. The\ndistrict court never found that IRS has adopted a policy to process requests lacking the\ntaxpayer\u2019s name and address, nor did the court determine any such policy constitutes\n\u201cfinal agency action\u201d under the APA. See Gov\u2019t Reply Br. 23-25. Any past errors in\nIRS\u2019s August 2025 disclosure cannot serve as the basis for the court\u2019s preliminary\ninjunction granting prospective relief, which requires plaintiffs to demonstrate a\n\u201clikelihood of future injury.\u201d Food & Drug Admin. v. Alliance for Hippocratic Med., 602\nU.S. 367, 381 (2024).\n\fUSCA Case #26-5006 Document #2179132 Filed: 06/16/2026 Page 2 of 2\n\n\n\n The Report belies any suggestion that IRS unreasonably delayed notifying the\ndistrict court of potential address-matching errors in the August 2025 disclosure. Upon\nlearning of potential issues, IRS \u201cmanually reviewed the data provided to ICE\u201d and\nnotified the court (and DHS) after IRS had confirmed that \u201cless than 5% of the 47,289\nindividuals for whom the IRS identified a match\u201d were impacted. Report 3, 7.\n\n Plaintiffs\u2019 Rule 28(j) letter raises a new argument for the first time that IRS\nunreasonably relied on ICE representations to safeguard taxpayer information. That\nargument comes too late; and, regardless, disclosure by IRS is mandatory under\n\u00a7 6103(i)(2) upon receipt of a compliant request.\n\n Sincerely,\n\n /s/ Jacob Christensen\n JACOB CHRISTENSEN\n Attorney for Appellants\n\nWord Count: 346\n\ncc: Counsel of Record (via CM/ECF)\n\f","ocr_status":2,"date_upload":"2026-06-16T13:10:16.384949-07:00","document_number":"2179132","attachment_number":null,"pacer_doc_id":"01208861223","is_available":true,"is_free_on_pacer":null,"is_sealed":false,"document_type":1,"description":"Response to Letter Filed","acms_document_guid":""}],"date_created":"2026-06-16T13:10:16.034624-07:00","date_modified":"2026-06-16T13:10:16.045623-07:00","date_filed":"2026-06-16","time_filed":null,"entry_number":2179132,"recap_sequence_number":"2026-06-16.001","pacer_sequence_number":null,"description":"RESPONSE [2179132] to letter [2177706-2], letter [2177706-3] filed by Scott Bessent, Steve Davis, Stephen Ehikian, Charles Ezell, Amy Gleason, GSA, IRS, Elon Musk, OPM, TREA, U.S. Department of the Treasury DOGE Team, U.S. Digital Service (U.S. DOGE Service) and U.S. DOGE Service Temporary Organization [Service Date: 06/16/2026 by CM/ECF NDA] Length Certification: 346 Words. [26-5006] (Christensen, Jacob)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/466789132/","id":466789132,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/482036933/","id":482036933,"tags":[],"absolute_url":"/docket/72135139/2177706/center-for-taxpayer-rights-v-irs/","date_created":"2026-06-09T08:29:11.403818-07:00","date_modified":"2026-06-15T09:18:57.941425-07:00","sha1":"81d75a534cd222bb491c001c0b8fc003964c6fe8","page_count":2,"file_size":160951,"filepath_local":"recap/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.2177706.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.2177706.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.cadc.42769/482036933.thumb.1068.png","thumbnail_status":1,"plain_text":"USCA Case #26-5006 Document #2177706 Filed: 06/09/2026 Page 1 of 2\n\n\n\n\n June 9, 2026\n\nClifton Cislak, Clerk of Court\nU.S. Court of Appeals for the D.C. Circuit\n333 Constitution Avenue NW\nWashington, DC 20001\n\nVia CM/ECF\n\n Re: Center for Taxpayer Rights v. IRS, No. 26-5006\n (argument held May 12, 2026) (Millett, Pillard, and Wilkins, JJ.)\n\nDear Mr. Cislak:\n\n Pursuant to Federal Rule of Appellate Procedure 28(j), we write\nregarding a recent report issued by the Treasury Inspector General for\nTax Administration: The IRS Provided Addresses for Nearly 47,000\nPersons to Immigration and Customs Enforcement, Evaluation No. IE-\n25-037 (the \u201cReport\u201d) (attached). The Report addresses key issues raised\nin briefing and oral argument in this case and supports plaintiffs-\nappellees\u2019 position.\n\n First, the Report confirms that the disclosures to ICE were not \u201can\nerror in applying the [memorandum of understanding (MOU)]\u2019s criteria\nfor a small percentage of individuals,\u201d Gray Br. 24, but instead a core\nfeature of the IRS-ICE data-sharing process. See Report 6 (IRS data-\nmatching \u201cprocess flow only verified that the address field was not\nblank and contained a five- or nine-digit number\u201d). That finding\ndemonstrates the IRS\u2019s process did not require ICE to provide an actual\ntaxpayer address, Red Br. 43, and refutes the contention that the \u201cIRS\nhas never adopted any policy that does not require\u201d a request to include\n\u201cthe taxpayer\u2019s address.\u201d Gray Br. 23.\n\n The Report also undercuts any argument that ICE appropriately\nsafeguarded the information it received from the IRS under the MOU.\n\fUSCA Case #26-5006 Document #2177706 Filed: 06/09/2026 Page 2 of 2\n\n\n\nSee Blue Br. 8; Gray Br. 16-19, 24 (arguing that data sharing complied\nwith the MOU). The MOU required ICE to maintain return information\n\u201cin accordance with\u201d statutory requirements and IRS policy. A363-366.\nOn appeal, the IRS asserted that it reasonably relied on ICE\u2019s\nrepresentations that the information was properly safeguarded. E.g.,\nBlue Br. 8. But the Report finds that \u201cICE did not meet [] safeguarding\nstandards prior to signing the data-sharing agreement,\u201d and that the\nIRS was aware of ICE\u2019s failure to implement proper safeguards. Report\n3, 8-9. Any reliance on ICE\u2019s representations was therefore\nunreasonable.\n\n Finally, the Report states (at 7) that the Inspector General shared\nconcerns related to \u201cinvalid address matches\u201d with the IRS in November\nand December 2025. The IRS did not alert the district court to these\nimportant developments until February 2026.\n\n\n Respectfully submitted,\n\n /s/ Madeline H. Gitomer\n Madeline H. Gitomer\n\n Counsel for plaintiffs-appellees\n\nWord Count: 323\n\ncc: counsel of record (via CM/ECF)\n\n\n\n\n 2\n\f","ocr_status":2,"date_upload":"2026-06-09T08:29:11.595612-07:00","document_number":"2177706","attachment_number":null,"pacer_doc_id":"01208858600","is_available":true,"is_free_on_pacer":null,"is_sealed":false,"document_type":1,"description":"Letter Filed","acms_document_guid":""}],"date_created":"2026-06-09T08:29:11.380120-07:00","date_modified":"2026-06-09T08:29:11.386723-07:00","date_filed":"2026-06-09","time_filed":null,"entry_number":2177706,"recap_sequence_number":"2026-06-09.001","pacer_sequence_number":null,"description":"LETTER [2177706] pursuant to FRAP 28j advising of additional authorities filed by Center for Taxpayer Rights, Communications Workers of America, AFL-CIO, Main Street Alliance and National Federation of Federal Employees, IAM AFL-CIO [Service Date: 06/09/2026 ] [26-5006] (Gitomer, Madeline)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/463793000/","id":463793000,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/478949854/","id":478949854,"tags":[],"absolute_url":"/docket/72135139/2172984/center-for-taxpayer-rights-v-irs/","date_created":"2026-05-12T12:08:41.504675-07:00","date_modified":"2026-05-14T07:49:30.836526-07:00","sha1":"128d910a475c122488e0791233919b596f9a661a","page_count":1,"file_size":46336,"filepath_local":"recap/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.2172984.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.2172984.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"USCA Case #26-5006 Document #2172984 Filed: 05/12/2026 Page 1 of 1\n\n\n United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n ____________\n\n\nNo. 26-5006 September Term, 2025\n 1:25-cv-00457-CKK\n Filed On: May 12, 2026 [2172984]\nCenter for Taxpayer Rights, et al.,\n\n Appellees\n\n v.\n\nInternal Revenue Service, et al.,\n\n Appellants\n\n BEFORE: Circuit Judges Millett, Pillard, and Wilkins\n\n\n COURTROOM MINUTES OF ORAL ARGUMENT\n\nPROCLAMATION BEING MADE, the Court opened on Tuesday, May 12, 2026 at 9:33\na.m. The cause was heard as case No. 2 of 3 and argued before the Court by:\n\n Jacob Christensen (DOJ), counsel for Appellants.\n Madeline H. Gitomer, counsel for Appellees.\n\n\n FOR THE COURT:\n Clifton B. Cislak, Clerk\n\n BY: /s/\n Jaime T. Stratton\n Deputy Clerk\n\f","ocr_status":2,"date_upload":"2026-05-12T12:08:41.780869-07:00","document_number":"2172984","attachment_number":null,"pacer_doc_id":"01208849340","is_available":true,"is_free_on_pacer":null,"is_sealed":false,"document_type":1,"description":"Argument Held (Merits Panel)","acms_document_guid":""}],"date_created":"2026-05-12T12:08:41.462832-07:00","date_modified":"2026-05-12T12:08:41.482986-07:00","date_filed":"2026-05-12","time_filed":null,"entry_number":2172984,"recap_sequence_number":"2026-05-12.001","pacer_sequence_number":null,"description":"ORAL ARGUMENT HELD before Judges Millett, Pillard and Wilkins. [26-5006]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/463598492/","id":463598492,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/478749474/","id":478749474,"tags":[],"absolute_url":"","date_created":"2026-05-11T07:47:21.161773-07:00","date_modified":"2026-05-11T07:47:35.135785-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2026-05-11T07:47:21.143214-07:00","date_modified":"2026-05-11T07:47:35.098526-07:00","date_filed":"2026-05-01","time_filed":null,"entry_number":null,"recap_sequence_number":"2026-05-01.002","pacer_sequence_number":2171488,"description":"FORM 72 submitted by arguing attorney, Madeline H. Gitomer, on behalf of Appellees Center for Taxpayer Rights, Communications Workers of America, AFL-CIO, National Federation of Federal Employees, IAM AFL-CIO and Main Street Alliance (For Internal Use Only: Form is restricted to protect counsel's personal contact information). [26-5006] (Gitomer, Madeline) [Entered: 05/01/2026 02:44 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/463598491/","id":463598491,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/478749473/","id":478749473,"tags":[],"absolute_url":"","date_created":"2026-05-11T07:47:21.115355-07:00","date_modified":"2026-05-11T07:47:35.082268-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2026-05-11T07:47:21.002069-07:00","date_modified":"2026-05-11T07:47:35.057865-07:00","date_filed":"2026-05-01","time_filed":null,"entry_number":null,"recap_sequence_number":"2026-05-01.001","pacer_sequence_number":2171431,"description":"FORM 72 submitted by arguing attorney, Jacob Christensen, on behalf of Appellants Scott Bessent, Steve Davis, Stephen Ehikian, Charles Ezell, Amy Gleason, GSA, IRS, Elon Musk, OPM, TREA, U.S. Department of the Treasury DOGE Team, U.S. Digital Service (U.S. DOGE Service) and U.S. DOGE Service Temporary Organization (For Internal Use Only: Form is restricted to protect counsel's personal contact information). [26-5006] (Christensen, Jacob) [Entered: 05/01/2026 10:58 AM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/463598490/","id":463598490,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/478749472/","id":478749472,"tags":[],"absolute_url":"/docket/72135139/01208845027/center-for-taxpayer-rights-v-irs/","date_created":"2026-05-11T07:47:20.873897-07:00","date_modified":"2026-05-11T07:47:34.970179-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"01208845027","attachment_number":null,"pacer_doc_id":"01208845027","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2026-05-11T07:47:20.838951-07:00","date_modified":"2026-05-11T07:47:34.943235-07:00","date_filed":"2026-04-28","time_filed":null,"entry_number":1208845027,"recap_sequence_number":"2026-04-28.001","pacer_sequence_number":2170732,"description":"RESPONSE [2170732] to letter Rule 28j authorities [2168581-2], letter [2168581-3] filed by Scott Bessent, Steve Davis, Stephen Ehikian, Charles Ezell, Amy Gleason, GSA, IRS, Elon Musk, OPM, TREA, U.S. Department of the Treasury DOGE Team, U.S. Digital Service (U.S. DOGE Service) and U.S. DOGE Service Temporary Organization [Service Date: 04/28/2026 by CM/ECF NDA] Length Certification: 350 Words. [26-5006] (Christensen, Jacob) [Entered: 04/28/2026 10:20 AM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/463598489/","id":463598489,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/478749471/","id":478749471,"tags":[],"absolute_url":"/docket/72135139/01208840508/center-for-taxpayer-rights-v-irs/","date_created":"2026-05-11T07:47:20.801922-07:00","date_modified":"2026-05-11T07:47:34.910496-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"01208840508","attachment_number":null,"pacer_doc_id":"01208840508","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2026-05-11T07:47:20.763578-07:00","date_modified":"2026-05-11T07:47:34.883142-07:00","date_filed":"2026-04-14","time_filed":null,"entry_number":1208840508,"recap_sequence_number":"2026-04-14.001","pacer_sequence_number":2168581,"description":"LETTER [2168581] pursuant to FRAP 28j advising of additional authorities filed by Center for Taxpayer Rights, Communications Workers of America, AFL-CIO, Main Street Alliance and National Federation of Federal Employees, IAM AFL-CIO [Service Date: 04/14/2026 ] [26-5006] (Brewer, Simon) [Entered: 04/14/2026 12:25 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/463598488/","id":463598488,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/478749470/","id":478749470,"tags":[],"absolute_url":"/docket/72135139/01208838874/center-for-taxpayer-rights-v-irs/","date_created":"2026-05-11T07:47:20.692359-07:00","date_modified":"2026-05-11T07:47:34.851826-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"01208838874","attachment_number":null,"pacer_doc_id":"01208838874","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2026-05-11T07:47:20.656980-07:00","date_modified":"2026-05-11T07:47:34.824981-07:00","date_filed":"2026-04-09","time_filed":null,"entry_number":1208838874,"recap_sequence_number":"2026-04-09.001","pacer_sequence_number":2167791,"description":"APPELLANT REPLY BRIEF [2167791] filed by Scott Bessent, Steve Davis, Stephen Ehikian, Charles Ezell, Amy Gleason, GSA, IRS, Elon Musk, OPM, TREA, U.S. Department of the Treasury DOGE Team, U.S. Digital Service (U.S. DOGE Service) and U.S. DOGE Service Temporary Organization [Service Date: 04/09/2026 ] Length of Brief: 6,482 Words. [26-5006] (Christensen, Jacob) [Entered: 04/09/2026 02:25 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/462673495/","id":462673495,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/477793404/","id":477793404,"tags":[],"absolute_url":"","date_created":"2026-05-01T09:21:16.141039-07:00","date_modified":"2026-05-01T13:30:57.175671-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"01208846503","is_available":false,"is_free_on_pacer":null,"is_sealed":true,"document_type":1,"description":"Arguing Attorney Form","acms_document_guid":""}],"date_created":"2026-05-01T09:21:16.115464-07:00","date_modified":"2026-05-01T13:30:57.135898-07:00","date_filed":"2026-05-01","time_filed":null,"entry_number":null,"recap_sequence_number":"2026-05-01.001","pacer_sequence_number":null,"description":"FORM 72 submitted by arguing attorney, Madeline H. Gitomer, on behalf of Appellees Center for Taxpayer Rights, Communications Workers of America, AFL-CIO, National Federation of Federal Employees, IAM AFL-CIO and Main Street Alliance (For Internal Use Only: Form is restricted to protect counsel's personal contact information). [26-5006] (Gitomer, Madeline)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/462510523/","id":462510523,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/477627168/","id":477627168,"tags":[],"absolute_url":"/docket/72135139/01208845996/center-for-taxpayer-rights-v-irs/","date_created":"2026-04-30T09:30:18.787986-07:00","date_modified":"2026-05-11T07:47:35.033524-07:00","sha1":"c002849fb20f034831e0e92e54b4a1acced8099a","page_count":1,"file_size":47503,"filepath_local":"recap/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.01208845996.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.01208845996.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"USCA Case #26-5006 Document #2171242 Filed: 04/30/2026 Page 1 of 1\n\n\n United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n ____________\n\n\nNo. 26-5006 September Term, 2025\n 1:25-cv-00457-CKK\n Filed On: April 30, 2026 [2171242]\nCenter for Taxpayer Rights, et al.,\n\n Appellees\n\n v.\n\nInternal Revenue Service, et al.,\n\n Appellants\n\n ORDER\n\n It is ORDERED, on the court's own motion, that the following times are allotted\nfor the oral argument of this case scheduled for May 12, 2026, at 9:30 A.M.:\n\n Appellants - 15 Minutes\n\n Appellees - 15 Minutes\n\n One counsel per side to argue. The panel considering this case will consist of\nCircuit Judges Millett, Pillard, and Wilkins.\n\n Form 72, which may be accessed through the link on this order, must be\ncompleted and returned to the Clerk's Office by May 4, 2026.\n\n Per Curiam\n\n FOR THE COURT:\n Clifton B. Cislak, Clerk\n\n BY: /s/\n Michael C. McGrail\n Deputy Clerk\n\nThe following forms and notices are available on the Court's website:\n\n Notification to the Court from Attorney Intending to Present Argument (Form 72)\n\f","ocr_status":2,"date_upload":"2026-04-30T09:31:18.714094-07:00","document_number":"01208845996","attachment_number":null,"pacer_doc_id":"01208845996","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Per Curiam Order Filed (Merits Panel)","acms_document_guid":""}],"date_created":"2026-04-30T09:30:18.750594-07:00","date_modified":"2026-05-11T07:47:35.007549-07:00","date_filed":"2026-04-30","time_filed":"12:04:34","entry_number":1208845996,"recap_sequence_number":"2026-04-30.001","pacer_sequence_number":2171242,"description":"PER CURIAM ORDER [2171242] filed allocating oral argument time as follows: Appellants - 15 Minutes, Appellees - 15 Minutes. One counsel per side to argue; directing party to file Form 72 notice of arguing attorney by 05/04/2026 [26-5006] [Entered: 04/30/2026 12:04 PM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/462183068/","id":462183068,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/477292497/","id":477292497,"tags":[],"absolute_url":"/docket/72135139/2170732/center-for-taxpayer-rights-v-irs/","date_created":"2026-04-28T07:33:51.090662-07:00","date_modified":"2026-05-04T06:35:59.403815-07:00","sha1":"4578333e22865b448d5ab1b5ffccf59707d2f276","page_count":2,"file_size":151916,"filepath_local":"recap/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.2170732.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.2170732.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"USCA Case #26-5006 Document #2170732 Filed: 04/28/2026 Page 1 of 2\n\n\n\n\n U.S. Department of Justice\n Civil Division\n\n Washington, D.C. 20530\n\n Tel: 202-307-0878\n\nApril 28, 2026\n\n\nClifton Cislak, Clerk of Court\nU.S. Court of Appeals for the D.C. Circuit\n333 Constitution Avenue NW\nWashington, DC 20001\n\n RE: Center for Taxpayer Rights v. IRS, No. 26-5006\n Response to notice of supplemental authorities under Fed. R. App. P. 28(j)\n Oral argument scheduled for May 12, 2026\n\nDear Mr. Cislak:\n\n The Fourth Circuit\u2019s decision in American Federation of State, County and\nMunicipal Employess v. SSA (AFSCME), No. 25-1411, 2026 WL 969670 (4th Cir. Apr.\n10, 2026) (en banc), does not support plaintiffs\u2019 argument in support of associational\nstanding.\n\n First, AFSCME addresses the narrow question whether an injury is \u201cconcrete.\u201d\nThat question has no bearing on the first hurdle precluding associational standing here\u2014\ni.e., plaintiffs\u2019 failure to show that even a single identified member is likely to suffer an\nimminent injury in fact from IRS\u2019s alleged address-sharing policy because of an\noutstanding removal order. See Gov. Br. 30-32; Reply Br. 8-13.\n\n Second, AFSCME\u2019s ruling on concreteness is unpersuasive and distinguishable.\nAFSCME held that the Social Security Administration\u2019s disclosure of individuals\u2019\npersonal information to the Department of Government Efficiency inflicted harm that is\nanalogous to the common-law tort of intrusion upon seclusion. 2026 WL 969670, at *4-\n6. Six circuit judges disagreed, however, and for good reason. Id. at *20 (Richardson, J.,\nconcurring). Data-sharing between two government agencies does not involve an\nintrusion into anyone\u2019s \u201cprivate affairs or concerns,\u201d Restatement (Second) of Torts\n\u00a7 652B, and that is especially true where federal law already requires aliens in the United\nStates to provide DHS with their address information\u2014the same information shared with\n\fUSCA Case #26-5006 Document #2170732 Filed: 04/28/2026 Page 2 of 2\n\n\n\nDHS under IRS\u2019s challenged policy, see 8 U.S.C. \u00a7\u00a7 1305(a), 1103(a)(1); 8 C.F.R.\n\u00a7 265.1; Form AR-11. Individuals have no reasonable expectation of privacy in\ninformation they are legally required to disclose to DHS.\n\n AFSCME also undercuts plaintiffs\u2019 pending motion for remand to the district court\nso they can conduct discovery about post-decisional events that is both irrelevant and\nimpermissible in this Administrative Procedure Act case. In an appeal from a\npreliminary injunction, AFSCME declined to consider a notice filed in the district court\nafter the injunction issued because the court\u2019s task was \u201cto review the record that was\nbefore the district court at the time the preliminary injunction was entered.\u201d 2026 WL\n969670, at *6 n.8. Plaintiffs\u2019 motion similarly fails and should be denied for reasons we\nexplained. See Gov. Opposition to Remand (filed March 9, 2026); Reply Br. 23-25.\n\n\n Sincerely,\n\n /s/ Jacob Christensen\n JACOB CHRISTENSEN\n Attorney for Appellants\n\nWord Count: 350\n\ncc: Counsel of Record (via CM/ECF)\n\f","ocr_status":2,"date_upload":"2026-04-28T07:33:51.534428-07:00","document_number":"2170732","attachment_number":null,"pacer_doc_id":"01208845027","is_available":true,"is_free_on_pacer":null,"is_sealed":false,"document_type":1,"description":"Response to Letter Filed","acms_document_guid":""}],"date_created":"2026-04-28T07:33:51.044279-07:00","date_modified":"2026-04-28T07:33:51.058318-07:00","date_filed":"2026-04-28","time_filed":null,"entry_number":2170732,"recap_sequence_number":"2026-04-28.001","pacer_sequence_number":null,"description":"RESPONSE [2170732] to letter Rule 28j authorities [2168581-2], letter [2168581-3] filed by Scott Bessent, Steve Davis, Stephen Ehikian, Charles Ezell, Amy Gleason, GSA, IRS, Elon Musk, OPM, TREA, U.S. Department of the Treasury DOGE Team, U.S. Digital Service (U.S. DOGE Service) and U.S. DOGE Service Temporary Organization [Service Date: 04/28/2026 by CM/ECF NDA] Length Certification: 350 Words. [26-5006] (Christensen, Jacob)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/460699777/","id":460699777,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/475767271/","id":475767271,"tags":[],"absolute_url":"/docket/72135139/2168581/center-for-taxpayer-rights-v-irs/","date_created":"2026-04-14T09:25:38.012564-07:00","date_modified":"2026-04-18T07:13:17.828556-07:00","sha1":"d0f150b382b86e8f37286c6c3a67c6050d4c5928","page_count":36,"file_size":499955,"filepath_local":"recap/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.2168581.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.2168581.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 1 of 36\n\n\n\n\n April 14, 2026\n\nClifton Cislak, Clerk of Court\nU.S. Court of Appeals for the D.C. Circuit\n333 Constitution Avenue NW\nWashington, DC 20001\n\nVia CM/ECF\n\n Re: Center for Taxpayer Rights v. IRS, No. 26-5006\n Oral argument scheduled for May 12, 2026 (Millett, Pillard,\n and Wilkins, JJ.)\n\nDear Mr. Cislak:\n\n Pursuant to Federal Rule of Appellate Procedure 28(j), we write\nregarding American Federation of State, County and Municipal\nEmployees v. Social Security Administration (AFSCME), 2026 WL\n969670 (4th Cir. Apr. 10, 2026) (en banc) (attached). That decision\nsupports plaintiffs-appellees\u2019 position in this case.\n\n In AFSCME, the Fourth Circuit reviewed a district court\u2019s\npreliminary injunction regarding a government agency\u2019s improper data-\nsharing. The en banc court held that the agency\u2019s sharing of sensitive\npersonal information supported an Article III injury comparable to the\ntort of intrusion upon seclusion. See id. at *4-6. It specifically rejected\nthe argument that intra-governmental information sharing cannot\nsupport standing, see id. at *5, and abrogated contrary prior precedent,\nid. at *4.\n\n Here, the government reprises the same argument, relying on\nnow-abrogated Fourth Circuit precedent. See Blue Br. 33-35; Reply Br.\n14-15. This Court should likewise reject the government\u2019s argument\nand hold that plaintiffs-appellees demonstrated Article III standing.\n\fUSCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 2 of 36\n\n\n\n In a fractured decision, the AFSCME court went on to vacate the\ninjunction for lack of irreparable harm. It appears that result obtained\nbecause of the Supreme Court\u2019s prior stay of the preliminary injunction\non the facts of that case. See 2026 WL 969670, at *8 (Heytens, J.); id. at\n*9 (Wilkinson, J., concurring); id. at *14 (Richardson, J., concurring).\nThat logic is inapplicable here. And plaintiffs-appellees\u2019 harms cannot\nbe remedied through relief at the conclusion of this case. Red Br. 57-61.\n\n Finally, AFSCME underscores the importance of plaintiff-\nappellees\u2019 pending motion for a limited remand. During the AFSCME\nappeal, the government disclosed to the district court facts that\ncontradicted its prior representations, which the district court will need\nto consider in the first instance. See 2026 WL 969670, at *6 n.8\n(Heytens, J.); id. at *9 n.2 (Wilkinson, J., concurring). Additionally, six\njudges emphasized that an appellate court should not decide a case\nbased on a manifestly incorrect record. See id. at *26-27, *29-30 (King,\nJ., concurring in part and dissenting in part).\n\n The government also has filed a document disclosing\nmisrepresentations here, and a limited remand is warranted for the\ndistrict court to further consider these factual developments.\n\n\n\n Respectfully submitted,\n\n /s/ Simon C. Brewer\n Simon C. Brewer\n\n Counsel for plaintiffs-appellees\n\nWord Count: 345\n\ncc: counsel of record (via CM/ECF)\n\n\n\n\n 2\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 3 of 36\n\n\n Before DIAZ, Chief Judge, and WILKINSON, NIEMEYER,\n 2026 WL 969670\n KING, GREGORY, AGEE, WYNN, THACKER,\n Only the Westlaw citation is currently available.\n HARRIS, RICHARDSON, QUATTLEBAUM, RUSHING,\n United States Court of Appeals, Fourth Circuit.\n HEYTENS, BENJAMIN, and BERNER, Circuit Judges.\n AMERICAN FEDERATION OF STATE, COUNTY Opinion\n AND MUNICIPAL EMPLOYEES, AFL-\n CIO; Alliance for Retired Americans; American\n Preliminary injunction vacated by published opinion. Judge\n Federation of Teachers, Plaintiffs \u2013 Appellees,\n Heytens announced the judgment of the court and delivered\n v.\n the opinion of the court with respect to Parts I, II, and\n SOCIAL SECURITY ADMINISTRATION; Frank III, which Chief Judge Diaz and Judges King, Gregory,\n Bisignano, in his official capacity as purported Wynn, Thacker, Harris, Benjamin, and Berner joined, and\n Commissioner, Social Security Administration; Mike an opinion with respect to Part IV, which Chief Judge\n Russo, in his official capacity as Chief Information Diaz and Judge Harris joined. Judge Wilkinson wrote an\n Officer, Social Security Administration; Elon Musk, in opinion concurring in the judgment, which Judges Niemeyer,\n his official capacity as Senior Advisor to the President Agee, and Rushing joined. Judge Richardson wrote an\n and de facto head of DOGE; United States DOGE opinion concurring in the judgment, which Judges Wilkinson,\n Service; U.S. DOGE Service Temporary Organization; Niemeyer, Agee, Quattlebaum, and Rushing joined. Judge\n Quattlebaum wrote an opinion concurring in the judgment,\n Amy Gleason, in her official capacity as DOGE\n which Judges Richardson and Rushing joined. Judge King\n Acting Administrator, Defendants \u2013 Appellants.\n wrote an opinion concurring in part, dissenting in part, and\n No. 25-1411 dissenting from the judgment, which Judges Gregory, Wynn,\n | Thacker, Benjamin, and Berner joined. Judge Wynn wrote an\n Argued: September 11, 2025 opinion, which Judges King, Thacker, Benjamin, and Berner\n | joined.\n Decided: April 10, 2026\n TOBY HEYTENS, Circuit Judge:\nAppeal from the United States District Court for the District\n *1 Three organizations sued to stop the Social Security\nof Maryland, at Baltimore. Ellen Lipton Hollander, Senior\n Administration from giving U.S. DOGE Service personnel\nDistrict Judge. (1:25-cv-00596-ELH)\n access to sensitive personal information about millions\nAttorneys and Law Firms of Americans. The district court granted a preliminary\n injunction, which the Supreme Court stayed pending this\nARGUED: Jack E. Starcher, UNITED STATES appeal and any further Supreme Court review. We now vacate\nDEPARTMENT OF JUSTICE, Washington, D.C., the current preliminary injunction and return the case to the\nfor Appellants. Alethea Anne Swift, DEMOCRACY district court for further proceedings.\nFORWARD FOUNDATION, Washington, D.C., for\nAppellees. ON BRIEF: Yaakov M. Roth, Principal Deputy\nAssistant Attorney General, Eric D. McArthur, Deputy\n I.\nAssistant Attorney General, Gerard Sinzdak, Simon Jerome,\nJacob Christensen, Civil Division, UNITED STATES It would be hard to participate in American life without\nDEPARTMENT OF JUSTICE, Washington, D.C., for interacting with the Social Security Administration. The\nAppellants. Brian A. Sutherland, Anna-Rose Mathieson, agency issues Social Security numbers and oversees\nCOMPLEX APPELLATE LITIGATION GROUP LLP, retirement, disability, and survivor benefits for nearly 72\nSan Francisco, California; Mark B. Samburg, Emma million people. To do so, it collects and retains sensitive\nR. Leibowitz, Simon C. Brewer, Robin F. Thurston, information about nearly everyone in the United States\u2014\nDEMOCRACY FORWARD FOUNDATION, Washington, Social Security numbers, citizenship status, birth dates, bank\nD.C., for Appellees. account numbers, tax information, medical history, and more.\n\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 1\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 4 of 36\n\nFor decades, the agency guarded that data scrupulously, and that the balance of equities tips in his favor, and that an\nAmericans trusted it to do so. injunction is in the public interest.\u201d Id. at 20, 129 S.Ct.\n 365. The Supreme Court has condemned efforts to replace\nOn January 20, 2025, the President signed an executive these \u201cwell-established principles of equity\u201d with \u201cbroad\norder creating the U.S. DOGE Service and charging it with classifications\u201d about when injunctions may issue. eBay Inc.\nmaking government technology more efficient. See Exec. v. MercExchange, L.L.C., 547 U.S. 388, 391\u201393, 126 S.Ct.\nOrder No. 14,158, 90 Fed. Reg. 8441 (Jan. 20, 2025). DOGE 1837, 164 L.Ed.2d 641 (2006).\npersonnel quickly made their way to the Social Security\nAdministration and sought \u201cunprecedented\u201d access to agency *2 Language in this Court's recent decision in American\nsystems, including non-anonymized personally identifiable Federation of Teachers v. Bessent (AFT), 152 F.4th 162 (4th\ninformation. JA 103\u201304, 107\u201308. A standoff ensued, and Cir. 2025), can be read as departing from these principles. 1\ncareer officials resigned. A new acting administrator was In some situations\u2014those \u201cwhen a plaintiff must prevail on\ninstalled and granted DOGE the sweeping access it sought. several independent issues\u201d to win its case\u2014the AFT opinion\n describes \u201ca multiplicative problem\u201d where the plaintiff's\nThree organizations representing a combined seven million \u201coverall\u201d likelihood of success \u201cis the product of [its]\nAmericans sued to prevent DOGE from accessing their probability of success on each of the independent, dispositive\nmembers' personally identifiable information. When the issues.\u201d Id. at 169\u201370 (quotation marks removed). As the\ncase was filed and in the original preliminary injunction \u201cprobabilities are multiplied,\u201d AFT continues, \u201ctheir product\nproceedings, plaintiffs' theory of the case was not that DOGE shrinks rapidly,\u201d a point the opinion illustrates with \u201c[a]n\nhad misused the information or disclosed it (accidentally example\u201d where a plaintiff has \u201ca 75% chance of prevailing on\nor otherwise) to malicious actors. Instead, plaintiffs argued five independent issues\u201d and must \u201cprevail on all of them to\nthat handing over non-anonymized and highly sensitive receive relief.\u201d Id. at 170 & n.4. In such situations, states AFT,\ninformation to DOGE was itself unlawful. \u201c[t]he plaintiff must ... show an extremely high likelihood of\n success on each individual issue in order to have a normal\nAfter hours of hearings and hundreds of pages of analysis, likelihood of success overall.\u201d Id. at 170 (emphasis added).\nthe district court issued the preliminary injunction we review\nhere. The Supreme Court stayed that preliminary injunction 1 We deem it necessary to address this aspect of\nand directed that the stay would remain in effect until\n AFT (a decision that\u2014like this one\u2014involved\nthe completion of all appellate review\u2014including by the\n a preliminary injunction barring DOGE from\nSupreme Court\u2014of the district court's order. \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013,\n accessing sensitive data) because we cannot decide\n145 S. Ct. 1626, 1626, 222 L.Ed.2d 1068 (2025). We have\n whether the district court abused its discretion\njurisdiction to review the district court's order under 28 U.S.C.\n without ensuring it \u201cappl[ied] the correct legal\n\u00a7 1292(a)(1), and we review the grant of a preliminary\n standard[s]\u201d in granting a preliminary injunction.\ninjunction for abuse of discretion, see Ashcroft v. ACLU, 542\n BLOM Bank SAL v. Honickman, 605 U.S. 204, 216,\nU.S. 656, 664, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004). As\n 145 S.Ct. 1612, 221 L.Ed.2d 850 (2025) (quotation\nalways, that standard is \u201cnecessarily\u201d satisfied if the district\n marks removed). AFT suggests the district court\ncourt's ruling is \u201cbased ... on an erroneous view of the law.\u201d\n committed legal error by failing to consider how\nCooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110\n the \u201cmultiplicative problem\u201d impacted plaintiffs'\nS.Ct. 2447, 110 L.Ed.2d 359 (1990).\n likelihood of success on the merits. 152 F.4th at\n 170. Because we disagree with (and abrogate) the\n relevant portions of AFT, we conclude the district\n II. court committed no legal error in this regard.\n\n\u201cA preliminary injunction is an extraordinary remedy never Today, we disavow any suggestion that district courts should\nawarded as of right.\u201d Winter v. Natural Res. Def. Council, assign numerical probabilities to a plaintiff's chances of\nInc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). success on each issue and then multiply those probabilities\nTo obtain a preliminary injunction, a plaintiff \u201cmust establish together to determine whether the plaintiff's \u201coverall odds\u201d of\nthat he is likely to succeed on the merits, that he is likely to success are high enough to warrant a preliminary injunction.\nsuffer irreparable harm in the absence of preliminary relief, AFT, 152 F.4th at 170. We have no quarrel with the general\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 2\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 5 of 36\n\nproposition that it can be harder to win a complex case depending on whether a different event occurs\nwith multiple issues than a straightforward case that turns first. See generally Al-Adahi v. Obama, 613 F.3d\non a single issue. But the traditional four-factor test for 1102, 1105 (D.C. Cir. 2010) (discussing conditional\ngranting a preliminary injunction is a creature of equity, not \u201ca probability).\nmechanical algorithm,\u201d and attempts to reduce it to one risk\n *3 Better, we think, to stick with the traditional approach.\n\u201cconfusion worse confounded.\u201d Delaware State Sportsmen's\n Consistent with Winter, we reiterate that plaintiffs seeking a\nAss'n v. Delaware Dep't of Safety & Homeland Sec., 108 preliminary injunction must show they are likely to succeed\nF.4th 194, 203 (3d Cir. 2024) (first quote), cert. denied sub on the merits of their lawsuit. Plaintiffs need not clear a\nnom. Gray v. Jennings, \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, 145 S. Ct. 1049, different or additional hurdle in cases involving multiple\n220 L.Ed.2d 380 (2025); Shady Grove Orthopedic Assocs., issues or defenses. All statements to the contrary in AFT are\nP.A. v. Allstate Ins. Co., 559 U.S. 393, 404, 130 S.Ct. 1431, abrogated. See McMellon v. United States, 387 F.3d 329, 332\n176 L.Ed.2d 311 (2010) (quotation marks removed) (second (4th Cir. 2004) (en banc) (expressing \u201cno doubt\u201d that the en\nquote). banc court may \u201coverrule\u201d an earlier panel's decision in a\n different case).\nAFT suggests district courts should perform unfamiliar tasks\nfor dubious benefits. The law often deals in probabilities\nthat are \u201cincapable of precise definition or quantification\ninto percentages,\u201d Maryland v. Pringle, 540 U.S. 366, 371, III.\n124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (discussing probable\n A district court may not grant a preliminary injunction\u2014or\ncause), and we doubt the value of asking district courts to\n any other form of relief\u2014unless the plaintiff has sufficiently\nspend time pondering whether a plaintiff has a 75% (versus\n demonstrated Article III standing. See Murthy v. Missouri,\na 70% or 80%) chance of prevailing on a given issue.\n 603 U.S. 43, 49\u201350, 144 S.Ct. 1972, 219 L.Ed.2d 604\nSee Kevin M. Clermont, A Theory for Evaluating Evidence\n (2024) (holding that a court of appeals erred by affirming a\nAgainst the Standard of Proof, 127 Penn. St. L. Rev. 345, 367\n preliminary injunction because the plaintiffs lacked standing).\n(2023) (noting that \u201c[c]ognitive limitations leave humans able\n To establish standing, a plaintiff must show: \u201c(i) that he\nonly weakly to judge likelihood on any sort of scale\u201d). 2 In suffered an injury in fact that is concrete, particularized, and\naddition, AFT never defines what it means for two issues to be actual or imminent; (ii) that the injury was likely caused\n\u201cindependent\u201d in a legal or mathematical sense (see 152 F.4th by the defendant; and (iii) that the injury would likely be\nat 167, 169\u201370), nor does it address how district courts should redressed by judicial relief.\u201d TransUnion LLC v. Ramirez, 594\ndeal with the familiar statistical problem known as conditional U.S. 413, 423, 141 S.Ct. 2190, 210 L.Ed.2d 568 (2021). \u201cAt\nprobability. 3 What should district courts do when the parties the preliminary injunction stage,\u201d a \u201cplaintiff must make a\ndisagree about whether (and if so, how) the plaintiff's success clear showing that she is likely to establish each element of\non one issue would impact its odds of success on another? Are standing.\u201d Murthy, 603 U.S. at 58, 144 S.Ct. 1972 (quotation\nsome arguments so weak that a court may definitively reject marks removed). Before entering a preliminary injunction,\nthem without asking how they impact the plaintiff's \u201coverall the district court concluded that plaintiffs had sufficiently\nodds\u201d of prevailing in the suit? AFT, 152 F.4th at 170. And established standing to pursue at least some of their claims.\nwhat about novel legal issues or those of first impression, Reviewing that issue de novo, see South Carolina v. United\nwhere a district court may struggle to identify the precise States, 912 F.3d 720, 726 (4th Cir. 2019), we agree. 4\nprobability of one outcome or another?\n 4\n2 Whether we could vacate the preliminary\n For more on the difficulties of asking human injunction without addressing standing is an\n beings to assign numerical values to probabilities, unbriefed and surprisingly difficult question. The\n see Kevin M. Clermont, Procedure's Magical general rule is that a federal appellate court may\n Number Three: Psychological Bases for Standards not do anything until it establishes that the court\n of Decision, 72 Corn. L. Rev. 1115, 1139\u201341, 1144\u2013 under review had subject matter jurisdiction, see,\n 48 (1987). e.g., Louisville & Nash. R.R. Co. v. Mottley, 211\n3 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908),\n Conditional probability, broadly speaking, explains\n and whether a plaintiff has standing to seek a\n why the probability of one event occurring varies\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 3\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 6 of 36\n\n preliminary injunction implicates subject matter *4 The dispute before us focuses on \u201cthe first and foremost\n jurisdiction, see, e.g., City of Los Angeles v. Lyons, of standing's three elements\u201d: injury in fact. Spokeo, Inc. v.\n 461 U.S. 95, 105\u201310, 103 S.Ct. 1660, 75 L.Ed.2d Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635\n 675 (1983). To be sure, the Supreme Court has (2016) (brackets and quotation marks removed). \u201c[U]nder\n said federal courts may address certain \u201cnon-merits Article III, an injury in law is not an injury in fact.\u201d\n ground[s] for dismissal\u201d before addressing subject TransUnion, 594 U.S. at 427, 141 S.Ct. 2190. Rather, to\n matter jurisdiction, Sinochem Int'l Co. v. Malaysia establish Article III injury, a plaintiff must plead and prove\n Int'l Shipping Corp., 549 U.S. 422, 432, 127 S.Ct. that it has suffered (or will imminently suffer, absent a\n 1184, 167 L.Ed.2d 15 (2007) (quotation marks court's intervention) a concrete injury. See id. An injury\n removed), and has stayed preliminary injunctions is \u201cconcrete\u201d if it \u201chas a close relationship to a harm\n (including this one) without analyzing whether the traditionally recognized as providing a basis for a lawsuit in\n plaintiffs had standing, see, e.g., 145 S. Ct. at American courts.\u201d Id. at 424, 141 S.Ct. 2190 (quotation marks\n 1626; Noem v. Vasquez Perdomo, \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, removed). 5\n 146 S. Ct. 1, 1, 222 L.Ed.2d 1213 (2025). But\n whether to stay an order's operation pending appeal 5 The government does not challenge any other\n is not the same question as whether to reverse the\n aspect of standing, and the remaining requirements\n underlying order, and the Court has also said that,\n are easily satisfied here. Although the relevant\n once a reviewing court concludes a plaintiff lacks\n harms may be widely felt, those harms are still\n \u201cstanding to seek\u201d a preliminary injunction, the\n \u201cparticularized\u201d to each person whose data is\n reviewing court \u201clack[s] jurisdiction to reach\u201d any\n accessed. See, e.g., Spokeo, 578 U.S. at 339 & n.7,\n questions about \u201cthe merits of the dispute.\u201d Murthy,\n 136 S.Ct. 1540. The harm was also \u201ccaused by\n 603 U.S. at 56, 144 S.Ct. 1972.\n the defendant[s]\u201d and plaintiffs' members' injury\n Under the circumstances, we think it is appropriate\n \u201cwould likely be redressed by judicial relief.\u201d\n to start by assessing whether plaintiffs have\n TransUnion, 594 U.S. at 423, 141 S.Ct. 2190.\n standing without resolving whether we absolutely\n must do so. Addressing standing first allows us Like the district court, we conclude that disclosing plaintiffs'\n to avoid an unbriefed and unargued \u201corder of members' personally identifiable information to DOGE\n battle\u201d question that may itself have constitutional inflicts a harm that is a \u201cclose ... analogue\u201d to the common law\n implications. Pearson v. Callahan, 555 U.S. 223, tort of intrusion upon seclusion. TransUnion, 594 U.S. at 424\u2013\n 234, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) 25, 141 S.Ct. 2190 (identifying \u201cintrusion upon seclusion\u201d\n (quotation marks removed); see Steel Co. v. as a harm \u201ctraditionally recognized as providing a basis for\n Citizens for a Better Env't, 523 U.S. 83, 94\u2013 lawsuits in American courts\u201d and citing Gadelhak v. AT&T\n 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) Servs., Inc., 950 F.3d 458, 462 (7th Cir. 2020), an opinion\n (deciding merits issues before jurisdictional ones by then-Judge Barrett that held a plaintiff who received\n \u201ccarries the courts beyond the bounds of authorized unwanted text messages had standing); see JA 1352\u201383. We\n judicial action\u201d). The government's lead argument thus abrogate our Court's contrary conclusion in AFT. See 152\n on appeal is that plaintiffs lack standing, and F.4th at 171\u201374 (concluding that plaintiffs in an analogous\n standing was the dominant issue at oral argument. case \u201cseemingly lack standing\u201d).\n Finally, the underlying case remains pending in the\n district court, where the government will surely ask Intrusion upon seclusion is an \u201cintentional[ ] intru[sion],\n that court (again) to dismiss for lack of standing. physical[ ] or otherwise, upon the solitude or seclusion\n Beginning with Article III standing thus helps of another or his private affairs or concerns\u201d that\n ensure that both we and the district court \u201cstay in \u201cwould be highly offensive to a reasonable person.\u201d\n [our] proper constitutional lane.\u201d Arizona v. Navajo Restatement (Second) of Torts \u00a7 652B (A.L.I. 1977) (Second\n Nation, 599 U.S. 555, 567, 143 S.Ct. 1804, 216 Restatement); see Gadelhak, 950 F.3d at 462 (citing the same\n L.Ed.2d 540 (2023). Restatement); Gov't Reply Br. 4 (agreeing the Court should\n use \u201cthe formulation of the tort given in the Restatement\n (Second) of Torts\u201d). The tort is not limited to entering\n A. someone's house or peering through their windows. Rather,\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 4\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 7 of 36\n\nit includes \u201cother form[s] of investigation or examination\u201d\nof \u201cprivate concerns,\u201d including opening someone's mail,\n B.\ngoing through their wallet, examining their bank account,\nor \u201ccompelling [them] by a forged court order to permit *5 The government and AFT identify various\nan inspection of [their] personal documents.\u201d Second counterarguments. We are not persuaded by any of them.\nRestatement \u00a7 652B cmt. b. Intrusion upon seclusion does not\nrequire the tortfeasor to go on to misuse the information it The government's lead argument is that the presence or\nlearns or disseminate it to the public; instead, the unjustified absence of an Article III injury cannot turn on which\nintrusion upon the plaintiff's privacy is the harm. See \u00a7 652B government employees access plaintiffs' members' personally\ncmts. a & b.; Persinger v. Southwest Credit Sys., L.P., 20 F.4th identifiable information. As the government points out,\n1184, 1191\u201392 (7th Cir. 2021). plaintiffs raise no challenge to non-DOGE Social Security\n Administration employees accessing plaintiffs' members'\nMuch like rifling through someone's wallet, bank account, or sensitive personal data. And if plaintiffs have no problem\npersonal documents, granting unauthorized and unwarranted with that, the government asserts, their members cannot\naccess to a person's sensitive personal information is an suffer concrete harm for Article III purposes when DOGE\nintentional intrusion into \u201cprivate affairs or concerns.\u201d employees do the same.\nSecond Restatement \u00a7 652B. And that is what plaintiffs say\nhappened here. According to plaintiffs, the Social Security That argument suffers from a familiar flaw: confusing a\nAdministration handed over their members' most sensitive possible \u201cweakness on the merits with [an] absence of Article\npersonal data to people (DOGE team members) who were III standing.\u201d Davis v. United States, 564 U.S. 229, 249\nnot legally authorized to access it. Whether plaintiffs \u201cwould n.10, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). \u201cFor standing\nprevail in a lawsuit for common law invasion of privacy is purposes, we accept as valid the merits of [plaintiff's] legal\nirrelevant.\u201d Persinger, 20 F.4th at 1192. Instead, it is enough claims ....\u201d FEC v. Cruz, 596 U.S. 289, 298, 142 S.Ct. 1638,\nthat the injury plaintiffs have identified \u201cpose[s] the same kind 212 L.Ed.2d 654 (2022). And here, plaintiffs' merits theory\nof harm that common law courts recognize.\u201d Gadelhak, 950 is that DOGE team members\u2014unlike other Social Security\nF.3d at 463. 6 Administration employees\u2014are not authorized to access this\n sensitive personal information, which is what renders such\n6 access an unlawful and highly offensive \u201cintrusion.\u201d See DOJ\n In O'Leary v. TrustedID, Inc., 60 F.4th 240 (4th\n v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,\n Cir. 2023), this Court rejected a standing argument\n 763\u201364, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (information\n based on the plaintiff's \u201cabstract privacy interest\n may be \u201cprivate\u201d if it is \u201cintended for or restricted to the\n in\u201d his Social Security number and used language\n use of a particular person or group or class of persons,\u201d\n that can be read as suggesting that intrusion upon\n because \u201cthe extent of the protection accorded a privacy right\n seclusion always requires an \u201cunwanted intrusion\n at common law rested in part on the degree of dissemination\n into the home.\u201d Id. at 245\u201346. But plaintiffs here\n of the allegedly private fact\u201d (quotation marks removed)).\n allege that defendants did far more than ask for six\n digits of a person's Social Security number when\n Consider the following hypothetical. A psychiatrist asks a\n the statute in question only authorized asking for\n patient to record their deepest, darkest thoughts and fears\n five digits (the allegations O'Leary confronted).\n in a journal. As part of their treatment, the patient gives\n See id. at 241, 244\u201345. And, as the Second\n the psychiatrist the journal to review. Without authorization\n Restatement makes clear, intrusion upon seclusion\n from the patient or any other source of law, the psychiatrist\n is not limited to intrusions into the home. See\n intentionally gives the journal to a janitor who works for\n Second Restatement \u00a7 652B cmts. a & b; see\n the same office as the psychiatrist. The janitor reads it. Has\n also Gov't Reply Br. 4 (disavowing any argument\n the patient suffered a sufficiently concrete injury to support\n \u201cthat the intrusion must be into the plaintiff's\n Article III standing? Absolutely. Despite the government's\n home\u201d); AFT, 152 F.4th at 172 (acknowledging that\n contrary insistence at oral argument, it matters a great deal\u2014\n \u201cintrusion upon seclusion can occur beyond the\n both in life and in law\u2014who in the office reads the patient's\n confines of the home\u201d).\n journal. And under plaintiffs' merits theory (which, again, we\n\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 5\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 8 of 36\n\nmust assume is valid at this stage of the analysis), DOGE is harm for purposes of intrusion upon seclusion. To the\nthe nosy janitor. contrary, the relevant Restatement provision provides six\n examples where the defendant \u201chas invaded\u201d the plaintiff's\nThe government also insists this theory of injury \u201cclosely privacy. Second Restatement \u00a7 652B, cmt. b, illus. 1\u20135; cmt.\nresembles the harms the Supreme Court deemed insufficiently c, illus. 7. In two-thirds of those examples (Illustrations 2, 3,\nconcrete in TransUnion.\u201d Gov't Br. 25. Once again, we 4, and 7), it is never stated\u2014and far from obvious\u2014that the\ndisagree. plaintiff is aware of the defendant's wrongful actions. 7\n\nThe TransUnion plaintiffs relied on an analogy to a different 7 That makes sense. Intrusion upon seclusion \u201cfinds\ncommon law tort: defamation. See 594 U.S. at 432, 141\n its roots in trespass.\u201d AFT, 152 F.4th at 172; see\nS.Ct. 2190. As the Court noted, \u201c[p]ublication is \u2018essential\n William L. Prosser, Privacy, 48 Calif. L. Rev. 383,\nto liability\u2019 in a suit for defamation.\u201d Id. at 434, 141 S.Ct.\n 389\u201390 (1960). And an unauthorized entry onto\n2190 (quoting Restatement of Torts \u00a7 577 cmt. a. (A.L.I.\n someone else's property is no less a trespass just\n1938)). The bulk of the TransUnion plaintiffs therefore lacked\n because the owner is not at home. See Second\nstanding because the allegedly \u201cinaccurate information\u201d in the\n Restatement \u00a7 158 (listing elements of trespass,\ndefendant's \u201cinternal credit files\u201d was not disclosed to any\n which do not include plaintiff's knowledge or\nthird party and the plaintiffs \u201cdid not factually establish a\n mental distress).\nsufficient risk\u201d of a future disclosure \u201cto support Article III\nstanding.\u201d Id. at 434\u201335, 437\u201338, 141 S.Ct. 2190. In addition, neither the Restatement's text, nor its comments,\n nor its illustrations say the snooping must be \u201ctargeted\u201d\n *6 The case before us differs in nearly every relevant in the sense that AFT used that term. To be sure, the\nrespect. Plaintiffs rely on a different common law analogy\u2014 Restatement requires a defendant to have \u201cintentionally\nthe tort of intrusion upon seclusion. See TransUnion, 594 U.S. intrud[ed] ... upon the solitude or seclusion of another,\u201d\nat 425, 141 S.Ct. 2190 (identifying \u201cintrusion upon seclusion\u201d Second Restatement \u00a7 652B (emphasis added), and all\nas an \u201cexample\u201d of a \u201charm[ ] traditionally recognized as the accompanying illustrations involve a single defendant\nproviding a basis for lawsuit in American courts\u201d). It is black- violating the privacy of a single plaintiff. But AFT never\nletter law that intrusion upon seclusion, unlike defamation, explains why invading the privacy of millions of people is\nhas no publication requirement, nor does it require that the \u201cdifferent in kind\u201d from invading the privacy of just one\u2014\nunderlying information be false or defamatory. Rather, it is much less in a way that helps the defendant. 152 F.4th at\n\u201c[t]he intrusion itself [that] makes the defendant subject to 172. True, this case does not involve \u201creporters, detectives,\nliability, even though there is no publication\u201d or disclosure to and paparazzi.\u201d Id. But here, as elsewhere, a history-and-\nany third party. Second Restatement \u00a7 652B cmt. b (emphasis tradition approach asks us to identify the relevant \u201cprinciples\u201d\nadded). rather than to search for \u201ca dead ringer or a historical twin.\u201d\n United States v. Rahimi, 602 U.S. 680, 692, 144 S.Ct. 1889,\nAFT identified two other reasons that plaintiffs in a similar 219 L.Ed.2d 351 (2024) (quotation marks removed). We thus\ncase could not analogize to intrusion upon seclusion. First, conclude that plaintiffs have carried their burden of showing\nthe opinion stated that, for purposes of that tort, \u201cit is not the they are likely to establish each element of standing. See\ninformation obtained, but the knowledge that the third party Murthy, 603 U.S. at 58, 144 S.Ct. 1972.\nis engaged in targeted snooping, that causes the harm.\u201d AFT,\n152 F.4th at 172. Second, the opinion reasoned that plaintiffs\nhad not been \u201cthe subjects of targeted \u2018investigation[s] or\n IV.\nexamination[s] into [their] private concerns,\u2019 \u201d id. (quoting\nSecond Restatement \u00a7 652B cmt. b), because \u201c[e]ach Having satisfied ourselves that the district court had subject\n[p]laintiff's information [was] one row in various databases matter jurisdiction, we ask whether it exceeded its discretion\nthat [were] millions upon millions of rows long,\u201d id. at 172. by entering the preliminary injunction under review here.\n We conclude that plaintiffs did not establish\u2014based on the\nWith respect, we disagree. For one thing, none of the record then before the district court\u2014that they satisfied the\nauthorities cited in AFT say that it is the plaintiff's knowledge second Winter factor. We thus vacate the current preliminary\nrather than the defendant's actions that constitute the relevant\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 6\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 9 of 36\n\ninjunction without addressing the remaining factors. See time the preliminary injunction is entered and the case's final\nWinter, 555 U.S. at 23\u201324, 129 S.Ct. 365. 8 resolution. See University of Texas v. Camenisch, 451 U.S.\n 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (\u201cThe\n8 purpose of a preliminary injunction is merely to preserve the\n A few words about the facts relevant to our\n relative positions of the parties until a trial on the merits\n irreparable-harm analysis. After we heard oral\n can be held.\u201d). And, like any other injunction, a preliminary\n argument\u2014and months after the district court\n injunction cannot reach back in time to prevent or undo\n entered the preliminary injunction at issue here\u2014\n irreparable harm that has already occurred. See, e.g., City of\n the government submitted a \u201cNotice of Corrections\n Los Angeles v. Lyons, 461 U.S. 95, 102\u201303, 105, 103 S.Ct.\n to the Record.\u201d In that notice, the government\n 1660, 75 L.Ed.2d 675 (1983). For those reasons, the key\n admits: (1) that it provided inaccurate information\n question here is whether a preliminary injunction will prevent\n to the district court and may not have fully\n plaintiffs from suffering new or additional irreparable harm\n complied with its temporary restraining order;\n while they litigate this case to final judgment.\n (2) that DOGE used an unauthorized third-party\n server to share SSA data; and (3) that DOGE\n What is more, not all harm\u2014no matter how serious in the\n team members may have agreed to share SSA data\n real world\u2014is \u201cirreparable\u201d in a legal sense. Even a plaintiff\n with a political advocacy group that aims to \u201cfind\n who has a concrete injury for Article III standing purposes\n evidence of voter fraud and to overturn election\n may only obtain the \u201cextraordinary remedy\u201d of a preliminary\n results in certain States.\u201d Gov't Notice 5.\n injunction if that injury cannot be remedied during the\n The government's recent acknowledgments are\n ordinary course of litigation. Winter, 555 U.S. at 24, 129 S.Ct.\n alarming and raise serious questions about its\n 365; see, e.g., Di Biase v. SPX Corp., 872 F.3d 224, 232\u2013\n earlier conduct before the district court. But even\n 33, 235 (4th Cir. 2017) (concluding plaintiffs had standing\n though the notice has been made part of the official\n but not irreparable harm); Moms for Liberty v. Wilson Cnty.\n record on appeal, our task in this appeal is \u201cto\n Bd. of Educ., 155 F.4th 499, 512\u201314 (6th Cir. 2025) (same);\n review the record that was before the district court\n Alliance for Retired Ams. v. Bessent, 770 F. Supp. 3d 79,\n at the time the preliminary injunction was entered.\u201d\n 107\u201308 (D.D.C. 2025) (same). If there is even a \u201cpossibility\u201d\n Wilson v. Williams, 961 F.3d 829, 833 (6th Cir.\n that \u201cadequate compensatory or other corrective relief will\n 2020) (quotation marks removed); accord Verlo v.\n be available at a later date,\u201d a court should hesitate before\n Martinez, 820 F.3d 1113, 1125 (10th Cir. 2016).\n concluding a plaintiff's harm is \u201cirreparable\u201d for purposes of\n The same goes for the even more recent\u2014and even\n granting a preliminary injunction. Sampson v. Murray, 415\n more alarming\u2014allegations that plaintiffs flagged\n U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (quotation\n in their March 10 district court filing, which have\n marks removed).\n not been made part of the record on appeal and\n thus are not properly before us in any sense.\n \u201cOn remand, however, the parties will be able\n to introduce further evidence on\u201d these points, B.\n Ashcroft, 542 U.S. at 673, 124 S.Ct. 2783, and the\n Applying those standards here, we conclude plaintiffs have\n district court will be free to consider any future\n not satisfied Winter's second factor.\n requests for appropriate relief or corrective action.\n\n We start by identifying the only theory of irreparable harm\n A. that is properly before us. The district court did not grant this\n preliminary injunction on the theory that plaintiffs' members\n *7 Although Winter's second factor is sometimes would be harmed by some downstream misuse or public\nshorthanded as \u201cirreparable injury,\u201d see, e.g., Grupo disclosure of their personal data. See supra note 8. Instead,\nMexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., the irreparable harm on which the district court relied mirrors\n527 U.S. 308, 315, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999), plaintiffs' Article III injury: that DOGE violates plaintiffs'\nthat brief description does not tell the whole story. The role members' privacy by accessing their sensitive personal data\nof a preliminary injunction is to protect the plaintiff from without lawful authorization, and that privacy violation is\nsuffering new or additional irreparable harm between the \u201cirreparable\u201d in a legal sense.\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 7\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 10 of 36\n\n 121 L.Ed.2d 313 (1992) (noting that a court could \u201corder[ ]\nThe difficulty with that argument is that there are two forms of the Government to destroy or return any and all copies\u201d of\ncorrective relief that may be available down the line: money unlawfully obtained material); see also Restatement (Third)\ndamages and a reparative permanent injunction. of Torts: Remedies \u00a7 44 cmt. c (A.L.I., Tentative Draft No.\n 2, 2023) (explaining that a reparative injunction orders a\nTo begin, the Privacy Act\u2014one of the statutes plaintiffs defendant \u201cto reverse or undo all or part of the violation of\naccuse defendants of violating\u2014authorizes damages for plaintiff's rights, or to reverse or undo some or all of the harm\u201d\n\u201cintentional or willful\u201d violations. 5 U.S.C. \u00a7 552a(g)(4). but \u201cstill looks to the future, by preventing the future bad\nAnd if \u201charm suffered can be remedied by money damages effects of [the defendant's] past violations\u201d). That is the theory\nat the time of judgment,\u201d a plaintiff \u201cmust overcome the on which a third district court judge concluded the plaintiffs\npresumption that a preliminary injunction will not issue.\u201d Di in yet another similar case failed to show irreparable harm.\nBiase, 872 F.3d at 230. See Alliance for Retired Ams., 770 F. Supp. 3d at 108. Once\n again, plaintiffs fail to explain why that logic is faulty as a\nThat presumption stands unrebutted here. Plaintiffs insist legal matter.\nthat any damages would be \u201cinsufficient\u201d and \u201cdifficult to\nascertain.\u201d Pls.' Br. 61 (quoting Multi-Channel TV Cable Finally, the elephant in the room. As noted earlier, the role\nCo. v. Charlottesville Quality Cable Operating Co., 22 F.3d of a preliminary injunction is to protect a plaintiff from\n546, 551\u201352 (4th Cir. 1994) (quotation marks removed)). But suffering further irreparable harm while the case is litigated.\nplaintiffs make little effort to explain why that is so. Nor do But because of the particular procedural posture of this case,\nplaintiffs explain why two district court judges\u2014in similar the district court's preliminary injunction cannot currently\ncases involving DOGE's access to government databases\u2014 protect anyone from anything and no decision we issue today\nerred in concluding that those plaintiffs did not satisfy the has the power to change that fact. The Supreme Court stayed\nsecond Winter factor because damages could be available the preliminary injunction, and the preliminary injunction will\nlater. See University of Cal. Student Ass'n v. Carter, 766 F. resume in force\u2014if ever\u2014only after events that would post-\nSupp. 3d 114, 123 (D.D.C. 2025); American Fed'n of Lab. date our decision and over which we have no control. See 145\n& Cong. of Indus. Orgs. v. Department of Lab., No. 25- S. Ct. at 1626 (directing that the stay will remain in effect\ncv-339, 2025 WL 1783899, at *14 (D.D.C. June 27, 2025). \u201cpending the disposition of the appeal in the United States\nPlaintiffs are right that \u201cthose decisions concerned different Court of Appeals for the Fourth Circuit and disposition of\nagencies, different systems of record, and different allegations a petition for a writ of certiorari, if such a writ is timely\nand evidence.\u201d Pls.' Br. 64. But plaintiffs never explain why sought.\u201d (emphasis added)). Although plaintiffs filed their\nthose differences (real as they may be) have anything to do brief after the Supreme Court's stay order, that briefing does\nwith the legal question of whether the availability of damages not grapple with whether (and if so, how) that order impacts\nprevents plaintiffs from establishing the sort of irreparable their ability to satisfy Winter's second factor.\nharm Winter requires.\n For these reasons, we hold that plaintiffs did not show\n *8 To the extent that damages alone might not be enough, \u2014based on the record before the district court when it\nplaintiffs also fail to explain why a reparative permanent entered this preliminary injunction\u2014that they were \u201clikely to\ninjunction would be legally inadequate to remedy any suffer irreparable harm in the absence of preliminary relief.\u201d\nlingering harm. The district court entered its preliminary Winter, 555 U.S. at 20, 129 S.Ct. 365 (emphasis added).\ninjunction based on a record that, at the time, stated that We thus vacate the preliminary injunction without addressing\nthe allegedly unlawful disclosure had been made to a small whether plaintiffs satisfy the remaining three Winter factors.\ngroup of people within the government. See JA 1334 (district\ncourt describing \u201c[t]he SSA DOGE Team\u201d as \u201cfive special ***\ngovernment employees and six detailees from other federal\nagencies\u201d). On that record, the district court could have\u2014 The order granting a preliminary injunction is vacated and the\nif plaintiffs ultimately prevailed on the merits\u2014ordered the case is returned to the district court for further proceedings\nrelevant employees to destroy any illegally obtained data or consistent with this opinion.\nwork derived from such data. See, e.g., Church of Scientology\nof Cal. v. United States, 506 U.S. 9, 13, 113 S.Ct. 447, SO ORDERED\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 8\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 11 of 36\n\n on the likelihood of success on the merits, not an\n actual merits judgment.\nWILKINSON, Circuit Judge, with whom Judges\nNIEMEYER, AGEE and RUSHING join, concurring in the *9 I write separately, however, to emphasize that we apply\njudgment: interim orders just as we would any of the Court's precedents\nI concur in the judgment and believe that the Supreme Court's in the normal course of business. Under any theory of stare\nissuance of the stay in this case is by far the most salient factor decisis, the precedential weight of a Supreme Court opinion is\ndictating our denial of the preliminary injunction. To conclude inextricably linked to the factual and legal similarity between\notherwise would relegate the Supreme Court's stay order to the past and present. See Epic Sys. Corp. v. Lewis, 584 U.S.\na shallow exercise. That is a course only the most audacious 497, 510, 138 S.Ct. 1612, 200 L.Ed.2d 889 (2018) (\u201cThe law\ninferior court would seek to follow. of precedent teaches that like cases should generally be treated\n alike ....\u201d). The operative question\u2014interim order or not\u2014is\n whether a precedent sits too far afield of the case at hand so as\n to be distinguishable. When a case is a perfect mimicry of that\n I. before the Supreme Court, then the answer is obvious. Just\n as identical DNA sequences produce identical twins, identical\nHere the parties are the same as in the case before the Supreme\n circumstances should produce identical judicial dispositions.\nCourt. They are still disputing the same matter. Indeed, this\npresent case lies in direct sequence with the Court's stay\n Presently, we face the legal and factual twin of the Supreme\nproceedings. While my friend Judge Wynn laments \u201ca system\n Court's order. That counsels following that very order. I\nin which unexplained orders silently control future cases,\u201d\n acknowledge that a correction to the record after the en\nthis is not one of those \u201cfuture cases,\u201d but the very same case\n banc argument has generated some disagreement as to the\nas that before the Court. Wynn Op at \u2013\u2013\u2013\u2013 n.4. The Supreme\n facts before our court, but, as my colleague Judge Heytens\nCourt's stay would only have been issued if the Court\n rightly points out, when reviewing a district court's grant of\nbelieved that the Nken factors were met. At the preliminary-\n a preliminary injunction, we look only to facts before the\ninjunction phase, we now face the nearly identical Winter\n district court at the time of that decision. Heytens Op. at\nfactors. Indeed, both the Nken and Winter factors examine\n \u2013\u2013\u2013\u2013 \u2013 \u2013\u2013\u2013\u2013 n.8. The new revelations here were not part of\nlikelihood of success on the merits. Nken v. Holder, 556\n the district court's preliminary-injunction analysis, and thus\nU.S. 418, 426, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009);\n these new facts should not and cannot become part of our\nWinter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129\n review. The information might become relevant upon a future\nS.Ct. 365, 172 L.Ed.2d 249 (2008). In the present case, the\n appeal if the district court amended its preliminary injunction\nSupreme Court has determined that this likelihood does not\n or issued a new preliminary or permanent injunction upon\nexist and/or that the equities lie heavily in the government's\n remand. But right now, the relevant record is only that which\nfavor; we cannot come to a different conclusion at this stage\n the district court considered below\u2014the uncorrected record\nwithout directly contravening the Court's order. If we heard\nthis case on the merits, we might find ourselves in a different identical to that before the Supreme Court. 2\nposition. Probabilistic determinations need not be dispositive\nof the merits themselves, and thus interim orders have only 2 Judge King discusses a whistleblower report at\npersuasive authority in a decision on the final judgment. See great length. King Op. at \u2013\u2013\u2013\u2013, \u2013\u2013\u2013\u2013 \u2013 \u2013\u2013\u2013\u2013. And\nTrump v. Boyle, \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, 145 S. Ct. 2653, 2654, 222 while he acknowledges that this report is not part\nL.Ed.2d 1181 (2025). 1 I believe Judge Richardson's opinion of the record before us, he fails to heed his own\nably captures these implications of the current procedural cautionary advice. We are duty-bound not to stray\nposture, and, for that reason, I concur in it. from the record. See, e.g., Chisholm-Ryder Co. v.\n Buck, 65 F.2d 735, 737 (4th Cir. 1933) (\u201c[A]n\n1 appellate court cannot look beyond the record\n Judge Wynn appears to believe that because interim\n before it to influence its judgment ....\u201d); al-Suyid v.\n orders cannot bind us on the merits, the stay order\n Hifter, 139 F.4th 368, 377 (4th Cir. 2025). Worse\n should not bind us here. Wynn Op. at \u2013\u2013\u2013\u2013, \u2013\u2013\u2013\u2013\n yet, the detour Judge King takes is a dangerous\n \u2013 \u2013\u2013\u2013\u2013. The problem is, however, that Judge Wynn\n one. The whistleblower report has not yet been\n confuses the procedural posture of the present case.\n We are currently making a preliminary judgment\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 9\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 12 of 36\n\n substantiated; it is an ongoing investigation that has proceedings, we must afford its order proper binding weight\n seen no resolution. in our preliminary-injunction analysis.\n And while Judge King may find this report\n distressing, I find distressing the suggestion that\n our court should jump to conclusions about\n II.\n serious allegations before allowing for any true\n investigatory or adversarial process. Indeed, the I regret my dear colleague Judge Wynn's rhetorical assault\n district court did not have the opportunity upon the Supreme Court and my friend Judge King's support\n to grapple with the report before issuing its of it. It is one thing to regret \u201cemergency motions made under\n preliminary injunction, nor did the government intense time pressure.\u201d Wynn Op. at \u2013\u2013\u2013\u2013. It is quite another\n have any opportunity to defend itself. Allowing to repeatedly lambast the Court for the \u201cunexplained and\n such untested accusations to permeate this case summary nature\u201d of its orders and to declare that \u201cinterim\n even informally will unjustly prejudice the accused orders announced without reasons can just as easily be\n party in the eyes of the public, and give legitimacy ignored without explanation,\u201d which more than hints that this\n to the allegations before legitimacy has been and future courts would be willing to do so. Id. at \u2013\u2013\u2013\u2013; see\n earned. also King Op. at \u2013\u2013\u2013\u2013 \u2013 \u2013\u2013\u2013\u2013. And while Judge Wynn states\n The district court may assess this report, as well that \u201ca stay may be a strong signal\u201d as to the ultimate outcome\n as all new revelations, when considering whether a on the merits, his opinion then proceeds to ignore that signal\n permanent injunction is appropriate upon remand. in this very case. Wynn Op. at \u2013\u2013\u2013\u2013. My brothers King and\n And if the district court's merits judgment is Wynn have delivered a stern warning to the Supreme Court.\n appealed, then we may discuss these developments. This creeps too near the water's edge of defiance for my\n But not a moment sooner. comfort.\nMoreover, as aforementioned, we operate under a parallel\nlegal standard to the one the Court employed in its stay To be sure, in an ideal world, every ruling would be\n accompanied by full briefing, oral argument, lengthy and\norder. 3 The binding authority of that order is thus easy\n reasoned opinions, and the like. To truncate or dispense with\nto see in the present circumstances. However, whether the\n that process on too frequent a basis would indeed reflect an\nSupreme Court's interim order in one discrete case should\n arbitrariness that risks public faith in the judicial process.\nalways bind an appellate court's decision in a separate case\n But there is another side to this. The Supreme Court is the\ninvolving arguably similar facts and legal issues seems a\n one judicial body that can establish a degree of uniformity\nbroader proposition that we need not embrace. We cannot\n in the application of what is, after all, our national law. And\nforecast all future circumstances, and the applicability of\n if the Court senses something is very wrong, it cannot then\nprecedent best remains a case-by-case determination.\n be right to just let it go. Or if the rulings of lower courts are\n not only disparate but chaotic, is the Court just to shrug it\n3 Judge Wynn attempts to descriptively distinguish away? Better by far to issue a stay with the expectation that\n the purpose and effects of a stay and a preliminary its assessment will have at least some effect in those instances\n injunction. Wynn Op. at \u2013\u2013\u2013\u2013 \u2013 \u2013\u2013\u2013\u2013. This where cases are factually and legally similar. The stay holds\n irrelevant truism that different remedies have matters in place, gives lower courts the chance to analyze\n different raisons d'\u00eatre does naught but misdirect and reflect, and achieves a measure of uniformity pending the\n from what really matters: the fact that both rely on ultimate decision on the merits. It is a useful device when\n approximately the same legal analysis. used sparingly, and if the danger of overuse is arbitrariness,\n *10 Even so, this decisional power must not be used to the risks of underuse are anarchic.\ndisrupt the vertical hierarchy of Article III courts. Procedural\nposture notwithstanding, we cannot ascribe to a Supreme My colleagues jump too quickly onto the bandwagon of\nCourt decision no significance whatsoever. Interim orders are those who condemn each and every use of the Supreme\nnot scrimmages; they are real proceedings with legal effect, Court's emergency docket, no matter how justified. The\nand they may have appreciable bearing in such postures unfortunate effect of Judge King and Wynn's approach will\nas we now find ourselves. And because this case offers be to aggrandize the role of the lower federal courts at the\nno true point of distinction from the Supreme Court's stay expense of the Supreme Court's own place in a hierarchical\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 10\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 13 of 36\n\njudicial system. And here, I repeat that the striking similarities about statistical probability, even when acting in equity to\nin the legal analysis before the Supreme Court and our own assess a party's likelihood of success. Fourth, I conclude that\nrequire adherence to the stay order's necessary implications. Plaintiffs are not likely to succeed on the merits because they\nThis conclusion does not, as my colleagues insinuate, raise have not shown standing or irreparable harm.\nthe specter of an absolute rule prohibiting us from ever\ninterpreting the Supreme Court's interim orders. As with\nany issue of precedential weight, the consideration for I. BACKGROUND\ninterim decisions is simply one of balance. Balance between\n When President Trump took office, he laid out an ambitious\nrespecting the Court's pronouncements and crediting any\n agenda to improve governmental efficiency. As part of\nunique circumstances of the case before us. Here, where those\n that agenda, he established the Department of Government\ncircumstances are lacking, the arrow points unmistakably to\n Efficiency (\u201cDOGE\u201d), which he tasked with \u201cmodernizing\nour responsibility to follow the Supreme Court. It matters not\n Federal technology and software to maximize governmental\nthat we might have decided the issue differently. A certain\n efficiency and productivity.\u201d See Exec. Order No. 14,158, 90\nmodesty is required of our station.\n Fed. Reg. 8441 (Jan. 20, 2025). President Trump directed\n agency leaders across the federal government to establish\nRICHARDSON, Circuit Judge, with whom WILKINSON, \u201cDOGE Teams\u201d within their agencies and\u2014\u201cto the maximum\nNIEMEYER, AGEE, QUATTLEBAUM, and RUSHING, extent consistent with law\u201d\u2014to provide DOGE with access\nCircuit Judges, join, concurring in the judgment: to agency data systems. Id. at 8441\u201342.\n *11 Article III of the Constitution sets up two categories\nof courts: \u201cone supreme Court\u201d and other \u201cinferior Courts.\u201d In compliance with this presidential directive, the Social\nU.S. Const. art. III, \u00a7 1. This Court is an inferior one. This Security Administration established an internal DOGE\njudicial hierarchy commands vertical stare decisis\u2014when the Team. 1 The SSA DOGE Team consists of eleven individuals\nSupreme Court speaks, inferior courts must listen. Of course, with various technical specialties. These DOGE Team\nmany cases feature novel legal or factual issues that require members were onboarded as SSA employees and received\ninferior courts to exercise independent judgment. But in other the same level of privacy and ethics training as other\ncases, the Supreme Court makes the answer easy. This is one SSA employees. Eventually, SSA granted DOGE Team\nsuch case. members the same level of access that dozens of other\n SSA employees possess\u2014access to various internal records\nIn this appeal, we review a district court's grant of a containing personally identifiable information, including\npreliminary injunction against a government agency. The Social Security numbers, bank information, medical records,\nmerits involve several interesting\u2014and challenging\u2014legal and addresses.\nissues. But the outcome of this appeal should be neither\ninteresting nor challenging. That's because the Supreme Court 1 Like Judge Heytens, I address the facts before\nalready answered the interim question before us in this very the district court when it issued the preliminary\ncase. SSA v. Am. Fed'n of State, Cnty., & Mun. Emps., \u2013\u2013\u2013 U.S. injunction. See Opinion of HEYTENS, J., at \u2013\u2013\u2013\u2013\n\u2013\u2013\u2013\u2013, 145 S. Ct. 1626, 1626, 222 L.Ed.2d 1068 (2025). So this n.8. Whatever the ultimate import of the new\ncase is \u201csquarely controlled\u201d by the Supreme Court's earlier arguments that Judge King's opinion seeks to raise,\ninterim order granting a stay. Trump v. Boyle, \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, they do not change the propriety of vacating the\n145 S. Ct. 2653, 2654, 222 L.Ed.2d 1181 (2025). Following preliminary injunction on appeal.\nthe Supreme Court's direction, I would vacate the preliminary\ninjunction. Frustrated with this development, three membership\n organizations sued to block the DOGE Team from accessing\nFortunately, our en banc Court reaches that result today. But SSA systems, claiming violations of the Privacy Act and\nalong the way, the Court makes several unforced errors. the Administrative Procedure Act (\u201cAPA\u201d). The district\n court granted a preliminary injunction barring DOGE Team\nThis opinion proceeds in four parts. I first describe this case's members from accessing personally identifiable information\nbackground. Second, I explain why the Supreme Court's and requiring destruction of any such information already\ninterim order in this case controls the outcome here. Third, obtained.\nI reiterate that judges are not exempt from everyday truths\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 11\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 14 of 36\n\n *12 In a stark departure from our established procedure, our interim orders: (1) they can \u201csquarely control\u201d certain other\nCourt sua sponte ordered initial hearing en banc to consider cases; (2) they \u201care not conclusive as to the merits\u201d; and\nthe government's motion to stay the preliminary injunction. (3) they \u201cinform how a court should exercise its equitable\nAm. Fed'n of State, Cnty. & Mun. Emps. v. SSA, No. 25-1411, discretion in like cases.\u201d Id. at 2654. Let's break down each\n2025 WL 1249608, at *6 (4th Cir. Apr. 30, 2025) (Richardson, point.\nJ., dissenting). When a majority of our en banc Court voted\nagainst a stay, the Supreme Court stepped in to grant the 2 As Judge McFadden and Mr. Kapoor detail, around\nstay. SSA v. Am. Fed'n of State, Cnty. & Mun. Emps., \u2013\u2013\u2013 2021, the Supreme Court began suggesting that its\nU.S. \u2013\u2013\u2013\u2013, 145 S. Ct. 1626, 1626, 222 L.Ed.2d 1068 (2025). interim orders were binding. Trevor N. McFadden\nWe now review the government's direct appeal of that same & Vetan Kapoor, A Response to The Foreshadow\npreliminary injunction. Docket, 49 Harv. J.L. & Pub. Pol'y 1, 4\u20135 (2026)\n (discussing Tandon v. Newsom, 593 U.S. 61, 141\nII. INTERIM-ORDER PRECEDENT S. Ct. 1294, 209 L.Ed.2d 355 (2021) (per curiam),\n and West Virginia v. EPA, 597 U.S. 697, 142 S.\nIn recent years, the Supreme Court has often addressed Ct. 2587, 213 L.Ed.2d 896 (2022), in which the\nconsequential issues through its emergency docket. Through Court relied on interim orders as precedent). But\ninterim orders, the Court makes initial judgments disposing Boyle eliminated whatever doubt remained. See\nof applications for temporary relief. Because these orders are Jack Goldsmith, Interim Orders, the Presidency,\nissued on tight schedules and often feature less discussion and Judicial Supremacy, 139 Harv. L. Rev. 86,\nthan opinions from the Court's merits docket, scholars and 104 (2025) (noting that, until Boyle, the Supreme\nlower courts long wondered whether these interim orders Court had \u201coccasionally treated its interim orders as\nwere binding in other cases. vertically binding\u201d without explaining \u201cthe scope\n of the vertical impact\u201d).\nOver the years, some scholars suggested thoughtful First, interim orders can control the outcome of other cases. In\nframeworks for assessing an interim order's precedential Boyle, the Supreme Court stayed a district court's permanent\nvalue. See, e.g., Trevor N. McFadden & Vetan Kapoor, injunction that barred the President from removing certain\nThe Precedential Effects of the Supreme Court's Emergency members of an independent agency. Id.; see Boyle v. Trump,\nStays, 44 Harv. J.L. & Pub. Pol'y 827 (2021). And members 791 F. Supp. 3d 585 (D. Md. 2025). In its short stay order,\nof our Court have debated whether Supreme Court stays the Court stated that the case was \u201csquarely controlled by\nshould affect our judgment. Compare CASA de Md. v. Trump, Trump v. Wilcox.\u201d Boyle, 145 S. Ct. at 2654 (citing Wilcox,\n971 F.3d 220, 230 (4th Cir. 2020) (arguing that, while we \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, 145 S. Ct. 1415, 221 L.Ed.2d 985 (2025)).\nmay \u201chave the technical authority\u201d to disregard a Supreme Wilcox was an earlier interim order that\u2014like Boyle\u2014stayed\nCourt stay, \u201cevery maxim of prudence suggests that we a district court injunction that barred the President from\nshould decline to take [that] aggressive step\u201d), with id. removing members of two different independent agencies.\nat 281 n.16 (King, J., dissenting) (arguing that \u201cassigning Even though the cases involved different agencies, the\nsuch significance to perfunctory stay orders is problematic\u201d). Court determined that Wilcox controlled Boyle. So the Court\nSuffice it to say, for years, reasonable minds could disagree explicitly embraced the precedential effect of its interim\nabout whether Supreme Court interim orders bind lower orders. But when are interim orders binding?\ncourts. No longer.\n *13 Second, Boyle teaches that interim orders \u201care not\n conclusive as to the merits.\u201d Boyle, 145 S. Ct. at 2654.\nA. Trump v. Boyle\n This makes sense. Supreme Court stay decisions apply the\n familiar Nken stay factors, the first of which requires a court\nThe Supreme Court has now spoken. 2 In Trump v. Boyle,\n to consider whether the stay applicant \u201chas made a strong\n\u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, 145 S. Ct. 2653, 222 L.Ed.2d 1181 (2025),\n showing that he is likely to succeed on the merits.\u201d Nken\nthe Supreme Court made clear that its interim orders have\n v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d\nprecedential force. Boyle is itself a short, unsigned interim\n 550 (2009). As detailed below, this factor requires a court\norder. But it packs a punch. While some questions may\n to make only a likelihood determination\u2014an assessment of\nremain, Boyle tells us three things about Supreme Court\n the probability of success, not a final adjudication on the\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 12\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 15 of 36\n\nmerits. So the Supreme Court's interim orders can be thought 556 U.S. at 434, 129 S.Ct. 1749. A lower court considering\nof as \u201cprobabilistic holdings.\u201d Nat'l Institutes of Health v. Am. similar questions cannot ignore the necessary import of the\nPub. Health Ass'n, \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, 145 S. Ct. 2658, 2664, Court's ruling.\n222 L.Ed.2d 1191 (2025) (Gorsuch, J., concurring in part).\nMuch like a preliminary injunction itself, these predictive 4\n Although the Nken stay test includes four factors,\njudgments will not bind lower courts making final decisions the Supreme Court has made clear that the first\non the merits. That is why Boyle affirmed that interim orders two\u2014likelihood of success and irreparable harm\n\u201care not conclusive as to the merits.\u201d Boyle, 145 S. Ct. at 2654 \u2014are the \u201cmost critical.\u201d Nken, 556 U.S. at 434,\n(emphasis added). But if they don't bind as to the ultimate 129 S.Ct. 1749. That's why the Court has suggested\ndecision on the merits, what do they bind? That brings us to that we need only consider the third and fourth\nBoyle's final lesson. factors in a \u201cclose case.\u201d See Ind. State Police\n Pension Tr. v. Chrysler LLC, 556 U.S. 960, 960,\nThird, interim orders \u201cinform how a court should exercise its 129 S.Ct. 2275, 173 L.Ed.2d 1285 (2009) (per\nequitable discretion in like cases.\u201d Id. at 2654. In cases that curiam) (quotation omitted). In other words, a stay\nare sufficiently similar, interim orders have precedential force applicant must show a likelihood of success on the\nover a lower court's exercise of its \u201cequitable discretion.\u201d For merits and irreparable harm. Once he has crossed\nexample, when a lower court considers whether to grant a this threshold, a court may consider the last two\nstay or to issue a preliminary injunction in a case with similar factors when deciding how to exercise its equitable\nissues as a Supreme Court interim order, the interim order will\n discretion. So a Supreme Court stay necessarily\n\u201csquarely control\u201d the lower court's later decision.\n shows a stay applicant's success on the first two\n factors, but it might not suggest anything about the\nTaking these three lessons together, the key takeaway from\n other two.\nBoyle is this: Supreme Court interim orders bind lower courts\nat the preliminary stage in like cases. 3 B. The Supreme Court's Stay Binds Us Here\n\n3 *14 With Boyle's lessons in mind, we can now consider\n Of course, regardless of a decision's procedural\n the appeal at hand. We review the district court's grant\n posture, its reasoning\u2014its ratio decidendi\u2014carries\n of a preliminary injunction barring the DOGE Team from\n precedential weight in all future cases. NIH v.\n accessing certain government records. But we don't do so\n Am. Pub. Health Ass'n, \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, 145\n on an empty slate. The Supreme Court already intervened to\n S. Ct. 2658, 2663, 222 L.Ed.2d 1191 (2025)\n stay this very same injunction. See SSA v. Am. Fed'n of State,\n (Gorsuch, J., concurring in part) (\u201c[W]hen this\n Cnty., & Mun. Emps., \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, 145 S. Ct. 1626, 1626,\n Court issues a decision,\u201d including an interim\n 222 L.Ed.2d 1068 (2025). So, following Boyle, we must ask\n order, \u201cit constitutes a precedent that commands\n whether the case at hand is \u201clike\u201d the case in which the Court\n respect in lower courts.\u201d).\n intervened. Here, this is easy. To ask the question is to answer\nIn most cases, applying this rule of precedential force will it: This is the same case with the same issues, the same factors,\nbe straightforward. We consider whether an earlier Supreme and the same procedural context. So the Court's stay decision\nCourt interim order is \u201clike\u201d the case at hand. In doing so, must \u201cinform\u201d how we \u201cexercise [our] equitable discretion\u201d\nwe ask whether meaningful differences exist between the in this posture. Boyle, 145 S. Ct. at 2654.\ninterim order and the case before us. This may\u2014I repeat,\nmay\u2014be made more challenging by the terse nature of some In its interim order, the Court explicitly stated that the Nken\ninterim orders. But even terse orders can provide significant factors favored granting a stay. Id. So the Court ruled for\ninformation. And where an order gives information about the government after considering: \u201c(1) whether the stay\nwhat the Supreme Court decided, lower courts must listen. applicant has made a strong showing that he is likely to\nFor example, when the Court stays a preliminary injunction, it succeed on the merits; (2) whether the applicant will be\nhas necessarily decided that the Nken factors support a stay in irreparably injured absent a stay; (3) whether issuance of the\nthat circumstance. This conclusion tells us that the defendant stay will substantially injure the other parties interested in the\nhas a likelihood of success on the merits of the appeal and proceeding; and (4) where the public interest lies.\u201d Nken, 556\nwould likely face irreparable harm absent a stay. 4 See Nken, U.S. at 434, 129 S.Ct. 1749 (quotation marks omitted).\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 13\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 16 of 36\n\n (2) independently analyze a ground for reaching the result\nConsider for a moment the first Nken factor\u2014the applicant's the Court reached. But a third option is off the table\u2014we\nlikelihood of success on the merits. The Supreme Court has may not defy the Supreme Court by upholding the injunction.\nmade clear that this factor asks whether the applicant \u201cis likely That should be even clearer when the Supreme Court already\nto prevail on the merits of the issue before [the court], not exercised its equitable discretion in the very case that we now\nwhether he is likely to prevail on the merits of the underlying review.\nsuit.\u201d Trump v. CASA, Inc., 606 U.S. 831, 860, 145 S.Ct. 2540,\n222 L.Ed.2d 930 (2025). In this case, the \u201cissue\u201d before the *15 Our Court takes the second permissible approach of\nSupreme Court was the validity of the preliminary injunction. reaching a conclusion consistent with the Supreme Court's\nSo the Court necessarily concluded that the government was ultimate decision. While the Court makes some mistakes\nlikely to succeed in this appeal to vacate the injunction. 5 along the way, our decision to vacate the injunction below is\nBoyle tells us that this type of Supreme Court predictive consistent with the Supreme Court's directive.\njudgment binds us when faced with a similar judgment.\nSo the Court's stay \u201csquarely controls\u201d this appeal, and the Some judges may be tempted to take the forbidden third\n option. But to do so is to assert that inferior courts are\npreliminary injunction cannot stand. 6\n not required to follow the Supreme Court's directives. Even\n when an inferior judge might independently reach a different\n5 Put differently, when the Supreme Court stays conclusion, we remain bound by the Supreme Court. This\n a preliminary injunction, Nken's first factor\u2014 should come as no surprise\u2014that is a situation inferior\n the likelihood of success on the appeal of courts face every day. Article III establishes a hierarchical\n the preliminary injunction\u2014encompasses all four court system. While our en banc Court is not bound by\n Winter factors. That's because a defendant's existing Circuit precedent, we are never free to disregard\n likelihood of successfully vacating a preliminary Supreme Court precedent\u2014no matter how vigorously we\n injunction on appeal is the mirror image of the might disagree. That's the very nature of vertical stare decisis.\n plaintiff's chances of success on all four factors\u2014\n a defendant will succeed on appeal if the plaintiff\n has failed to show any single Winter factor. So III. THE MULTIPLICATIVE PROBLEM\n the stay of a preliminary injunction implies the\n But before Judge Heytens's opinion concludes, correctly\n Court's judgment that the preliminary injunction\n in my view, that the Plaintiffs have not adequately shown\n should be vacated on appeal. See Trump v. CASA,\n that they will suffer irreparable harm absent a preliminary\n Inc., 606 U.S. 831, 874 n.3, 145 S.Ct. 2540, 222\n injunction, it reaches out to discuss an issue that isn't relevant\n L.Ed.2d 930 (2025) (Kavanaugh, J., concurring)\n to the opinion. It argues against what I have called the\n (suggesting that the standards for granting and\n \u201cmultiplicative problem.\u201d See American Fed'n of Teachers v.\n staying a preliminary injunction \u201cmesh\u201d).\n Bessent (AFT), 152 F.4th 162, 170 (4th Cir. 2025). 7 That\n6 Judge Wynn's opinion relegates the Supreme critique is the very definition of dicta\u2014it discusses judicial\n Court's stay to the (novel) status of a \u201csignal\u201d that standards for considering Winter's first factor while expressly\n we are apparently free to disregard at will. See stating that the decision does not rely on that factor. Still,\n Opinion of WYNN, J., at \u2013\u2013\u2013\u2013 \u2013 \u2013\u2013\u2013\u2013. And his because his opinion purports to \u201cabrogate\u201d AFT's discussion\n opinion never makes clear what the legal effect of a of the multiplicative problem, I want to explain why basic\n \u201csignal\u201d is or how a \u201csignal\u201d should factor into our statistical probabilities are not abrogated when one puts on a\n analysis. Vertical stare decisis is never voluntary. black robe. 8\n And, in Boyle, the Supreme Court precluded Judge\n Wynn's approach. 7\n I cite AFT throughout this opinion, because it\nThe Supreme Court's interim order tells us the required is this case's \u201clegal twin.\u201d See AFSCME v. SSA,\noutcome of this appeal\u2014we must vacate the preliminary 2025 WL 1249608, at *6 (4th Cir. Apr. 30, 2025)\ninjunction. But the order doesn't tell us why. This leaves us (Richardson, J., dissenting from the grant of initial\nwith two lawful options: (1) simply point to the Supreme hearing en banc).\nCourt's decision and dispose of the case on precedent; or\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 14\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 17 of 36\n\n8 145 S.Ct. 2540. By contrast, in the Winter context,\n For those seeking a refresher on probability, Khan\n Academy (khanacademy.com) offers excellent a court considers the likelihood of the plaintiff's\n lessons in its Statistics and Probability unit as part ultimate success on the case's underlying merits.\n of its seventh-grade math curriculum. In essence, Winter's first factor asks: What is the probability\nLet's start with the basics. To grant a preliminary injunction, that the movant will ultimately succeed on the merits? A court\na district court must decide that the plaintiff has satisfied therefore must be guided by basic principles of probability.\nWinter's four-factor test. See Winter v. Natural Res. Def. It would be wise, then, to understand the basic concept\nCouncil, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d of probability. And part of probability\u2014the multiplicative\n249 (2008). \u201cThis requires the plaintiff to show (1) that they problem\u2014is worth discussing here. A plaintiff often faces\nare likely to succeed on the merits, (2) that they are likely to multiple independent barriers to success. In such cases, the\nsuffer irreparable harm in the absence of preliminary relief, plaintiff's ultimate success on the merits is equal to the product\n(3) that the balance of equities tips in their favor, and (4) that of the plaintiff's likelihood of success on each independent\n issue. This multiplicative problem means that a plaintiff's\nthe injunction is in the public interest.\u201d AFT, 152 F.4th at 168\u2013\n chances of future success on the merits get progressively\n69 (citing Winter, 555 U.S. at 20, 129 S.Ct. 365).\n harder the more issues he must win. 10\nIt's hard for a plaintiff to get a preliminary injunction. But that\nshouldn't be surprising\u2014Winter tells us that a \u201cpreliminary 10\n \u201cIn plain English, A and B are probabilistically\ninjunction is an extraordinary remedy never awarded as of independent if the occurrence of event B has no\nright.\u201d Winter, 555 U.S. at 24, 129 S.Ct. 365. One challenge effect on the probability of the occurrence of\nplaintiffs face is that \u201ceach of [the] four factors must be event A.\u201d David S. Schwartz & Elliott Sober,\nsatisfied to obtain preliminary injunctive relief.\u201d Henderson The Conjunction Problem and the Logic of Jury\nfor NLRB v. Bluefield Hosp. Co., LLC, 902 F.3d 432, 439 (4th Findings, 59 Wm. & Mary L. Rev. 619, 657 (2017).\nCir. 2018). On the flip side, \u201cdenying a preliminary injunction It is sometimes hard to formally demonstrate that\nonly takes the rejection of a single factor.\u201d Frazier v. Prince two concepts are probabilistically independent.\nGeorge's Cnty., 86 F.4th 537, 544 (4th Cir. 2023). It is because But if two issues are dependent\u2014that is, \u201cif the\nof this \u201casymmetry\u201d that AFT noted that plaintiffs \u201cseeking a occurrence of B affects the probability of the\npreliminary injunction thus face an inherently uneven playing occurrence of event A\u201d\u2014the multiplication rule\nfield.\u201d AFT, 152 F.4th at 169. still applies, just with added factors. Id. at 657\u2013\n 58. And even if several issues are dependent, the\n*16 A similar asymmetry often appears within the first probability of all occurring still drops as more\nWinter factor\u2014the likelihood of ultimate success on the issues are added. Id. at 656.\nmerits. 9 This \u201clikelihood\u201d analysis requires a court to make a The multiplicative problem is inherent in Winter's first factor\npredictive judgment about a party's future chances of success. \u2014you cannot simply wish it away. So in cases with multiple\nBut it does not bind a district court on the ultimate merits barriers to success, district court judges shouldn't ignore\ndetermination. See Samuel L. Bray, The Purpose of the these basic mathematical principles. They should instead\nPreliminary Injunction, 78 Vand. L. Rev. 809, 817 (2025). consider the multiplicative problem when analyzing the\nAnd that makes sense. The predictive likelihood analysis can likelihood of a plaintiff's ultimate success on the merits.\nonly be tentative: Things may change as new evidence is Doing so is not only helpful; it is necessary for making\npresented, the court can change its mind on an issue, and accurate predictive judgments about a plaintiff's likelihood of\nnew precedent can alter the legal landscape. Put simply, the ultimately succeeding on the merits.\nlikelihood analysis requires judges to bake in some room for\nuncertainty. To be clear, I have not suggested that district court judges\n must assign a specific number to the plaintiff's probability of\n9 success on each issue and then multiply them out. Though\n In the Nken stay context, a court considers the\n stay applicant's likelihood of success on the issue it might sometimes be helpful for a district court judge to\n before the court\u2014for example, the likelihood that do so as part of its weighing process, it won't be necessary\n a defendant will succeed on appeal in vacating a in every case. In many cases\u2014as in AFT itself, where this\n preliminary injunction. See CASA, 606 U.S. at 860, Court assigned no specific probability for each issue\u2014it\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 15\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 18 of 36\n\nwill be enough to identify the structural problems facing the 1102, 1105 (D.C. Cir. 2010) (\u201cThose who do not take into\nplaintiff and conclude that the plaintiff cannot meet Winter's account conditional probability are prone to making mistakes\nfirst factor. See AFT, 152 F.4th at 177. In other words, in judging evidence.\u201d). And that is precisely what the majority\nthe multiplicative approach provides a framework to guide demands that courts do.\njudges' equitable discretion in deciding whether to grant a\npreliminary injunction. Judges regularly deal with conditional probability\u2014which\n considers the likelihood of dependent events\u2014even if not\n *17 Writing for the Court, Judge Heytens's opinion rejects by name. Conditional probability is used whenever a judge\nthe multiplicative approach but assures us that it has considers how different pieces of evidence fit together to\n\u201cno quarrel with the general proposition that it can be suggest a given outcome, as when a judge assesses probable\nharder to win a complex case with multiple issues than a cause. United States v. Prandy-Binett, 5 F.3d 558, 559\nstraightforward case that turns on a single issue.\u201d See Majority (D.C. Cir. 1993) (Randolph, J., concurring in the denial of\nOp. at \u2013\u2013\u2013\u2013. But it fails to acknowledge why. It is precisely rehearing) (\u201c[J]udges assessing probable cause necessarily\nbecause there are several ways for a plaintiff to fail but only deal with conditional probabilities.\u201d). To illustrate, consider\none way to win. And as the chance of failure on each issue a hypothetical search for a bank robber. The sole fact that\nrises, the plaintiff's case gets increasingly \u201charder to win.\u201d someone has a ski mask outside the bank does not establish\nThat, in brief, is the multiplicative problem. It makes no sense probable cause that they robbed the bank\u2014ski masks are\nto accept the conclusion (that cases with multiple barriers to common outside of Aspen banks in the winter. Nor is it alone\nsuccess are harder to win) but reject the premise on which it sufficient that a given person is found outside a just-robbed\nis based (the multiplicative problem). bank on a hot summer day. But when the person with the ski\n mask is also the person found outside the just-robbed bank\nNor does the multiplicative approach require judges to on a hot summer day, the probability that the robber has been\n\u201cperform unfamiliar tasks for dubious benefits.\u201d See Majority located substantially increases. To isolate each fact without\nOp. at \u2013\u2013\u2013\u2013. For starters, the underlying tasks are not considering the others is to ignore conditional probability. We\n\u201cunfamiliar\u201d to judges and lawyers. Lawyers often need to rightly reject that approach, recognizing that even judges are\ngive their clients concrete estimates of a client's likelihood of capable of considering basic issues of conditional probability.\nsuccess in a given case. See Opinion of QUATTLEBAUM,\nJ. at \u2013\u2013\u2013\u2013 \u2013 \u2013\u2013\u2013\u2013 (concurring in the judgment). And judges *18 Perhaps I am overly optimistic about judges. But it sure\nin civil bench trials have to determine whether a plaintiff has seems to me that we trust ourselves to consider a little math\nadequately proved the merits to different standards of proof in other contexts, too. Take the immigration context, where\n\u2014such as the preponderance standard, which requires the judges have to predict the likelihood of an asylum applicant's\nweight of evidence supporting a claim to be greater than 50%. future torture. When more than one source of potential torture\nTrue enough, challenges may arise when a judge addressing exists, we have demanded compliance with basic statistics\na preliminary injunction applies the multiplicative approach by aggregating the probability of torture from each source.\nto its fullest extent\u2014by assigning probabilities to each issue. See Lopez-Sorto v. Garland, 103 F.4th 242, 255 (4th Cir.\nBut that concern stems not from the multiplicative problem 2024). 11 That is, a government agency may not require a\nbut from Winter's demand that courts predict the probability single source of potential torture to clear the 50% likelihood\nthat the movant will ultimately succeed on the merits. It may threshold on its own. We demand, at least in that context, that\nbe that judges are bad at making predictions of future success. the agency consider the conditional probability: How likely\nBut Winter demands it. The multiplicative approach merely is it that the applicant will be tortured given the combined\nprovides a helpful guide in doing so. risk of torture A, torture B, and torture C. In other words,\n what is the overall likelihood based on the aggregate of three\nThe Court suggests that judges would have difficulty estimated likelihoods. To isolate each risk of torture is to\napplying the multiplicative approach because of \u201cthe familiar ignore conditional probability. We demand some statistical\nstatistical problem known as conditional probability.\u201d Not literacy from agencies, and we should expect it from judges,\nso. Conditional probability is not a statistical \u201cproblem.\u201d It's\n too. 12\na statistical truth. The actual \u201cproblem\u201d\u2014as the case the\nopinion relies upon illustrates\u2014is not conditional probability\nitself but when judges ignore it. Al-Adahi v. Obama, 613 F.3d\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 16\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 19 of 36\n\n11\n We also recognized in Lopez-Sorto that another\n Nonetheless, the Court concludes that it is \u201cbetter ... to stick\n \u201cmathematical truth\u201d applies when considering the\n with the traditional approach\u201d to analyzing the likelihood\n likelihood that an alien would be tortured by a\n inquiry. See Majority Op. at \u2013\u2013\u2013\u2013. To be clear: I do not suggest\n single entity: \u201cThat a chain of dependent events\n a departure from the traditional approach. Nor do I suggest\n leading to a deportee's torture is no stronger than\n \u201ca different or additional hurdle\u201d or a \u201cheightened standard\u201d\n its weakest link is simple mathematical truth. For\n for obtaining a preliminary injunction. See Majority Op. at\n if some event necessarily antecedent to the alien's\n alleged torture only occurs, say, 45% the time, even \u2013\u2013\u2013\u2013 (first quote); AFT, 152 F.4th at 178 (King, J., dissenting)\n assuming all other necessary events have a 100% (second quote). I simply identify that the multiplicative\n chance of occurring, the risk of torture itself is problem is inherent in the \u201ctraditional approach\u201d when\n capped at 45% [I]t is the likelihood of all necessary multiple barriers to success exist.\n events coming together that must more likely than\n not lead to torture, and a chain of events cannot be *19 The multiplicative approach is also fully consistent\n more likely than its least likely link.\u201d 103 F.4th at with \u201cwell-established principles of equity.\u201d See eBay Inc.\n 254 (quotation omitted). v. MercExchange, L.L.C., 547 U.S. 388, 391\u201393, 126\n S.Ct. 1837, 164 L.Ed.2d 641 (2006). Far from being \u201ca\n12 mechanical algorithm\u201d that displaces equitable discretion,\n It's true that the basic math is a little different in\n these two examples. In the torture example, we it is a framework that guides that discretion in evaluating\n ask the likelihood of any torture occurring (A, B, a plaintiff's likelihood of ultimate success. Indeed, equity\n or C), so we aggregate the risk of each source. demands\u2014not forbids\u2014the application of basic probability\n In this preliminary injunction context, we ask the principles when it asks courts to engage in an inherently\n likelihood of plaintiff prevailing on every legal predictive inquiry. These do not cease to apply merely\n barrier (A, B, and C), so we must multiply the because a court sits in equity. 13 Courts sitting in equity have\n probability of plaintiff prevailing on each barrier. always made probabilistic judgments about future events;\n So while torture focuses on the aggregate risk doing so is inherent in deciding whether to grant any\n of harm, a preliminary injunction presents the forward-looking remedy and in fashioning appropriate relief.\n multiplicative risk of failure. I should note that Probabilistic reasoning is thus a hallmark of equity.\n aggregating risk does not mean that you simply\n add the percentages together; joint probability must 13 \u201cEquity eschews probability\u201d is not among the\n account for overlap. Consider the likelihood of two\n equitable maxims. See generally Roscoe Pound,\n coin flips including at least one heads. The first\n The Maxims of Equity, 34 Harv. L. Rev. 809 (1921).\n flip has a 50% chance of heads. And the second\n flip has a 50% chance of heads. But the chance Consider, for example, the context of bankruptcy, which\n of at least one heads in two flips is not the sum has long been understood as the province of equity. See\n of those percentages (\u00bd + \u00bd = 1). Rather it's \u00be Young v. United States, 535 U.S. 43, 49\u201350, 122 S.Ct. 1036,\n or 75% (\u00bd + \u00bd - (\u00bd * \u00bd)), accounting for the 152 L.Ed.2d 79 (2002). In bankruptcy proceedings, courts\n probability that both flips are heads (\u00bd * \u00bd). Should routinely must evaluate proposed reorganization plans by\n the events be dependent, it requires modifying the \u201cform[ing] an educated estimate\u201d of \u201cthe probabilities of\n overlap probability to account for the probability [a reorganization's] ultimate success,\u201d i.e., the likelihood\n that event B occurs given that event A has occurred. that creditors will be paid. Protective Comm. for Indep.\n If this seems like a lot, see note 8. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390\n U.S. 414, 424, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968). In\nIt is also wrong to suggest that the benefits of applying the\n doing so, courts must assess the likelihood of various wildly\nmultiplicative approach are \u201cdubious.\u201d As the Court sees\n uncertain and interlocking issues, while also considering \u201cthe\nit, the process for considering the likelihood of success in\n complexity, expense, and likely duration of [ ] litigation\u201d\nthe preliminary injunction context must be an unstructured,\n and \u201call other factors relevant to a full and fair assessment.\u201d\namorphous guessing game. But that is no virtue. Considering\n Id. These predictive judgments are obviously difficult and\nbasic statistical truths allows for more accurate, transparent,\n uncertain, but equity nonetheless demands them. Thus,\nand careful analysis\u2014benefits that both judges and parties\n probabilistic reasoning has always been implicit in equity's\nshould welcome.\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 17\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 20 of 36\n\npower to grant forward-looking remedies. 14 And, because *20 First, irreparable harm. I agree with the conclusion in\nthe multiplicative approach is a basic rule of probability, it fits Part IV of Judge Heytens's opinion that Plaintiffs have not\ncomfortably within a court's equitable role. met Winter's second factor. The irreparable harm analysis\n does not simply ask whether a plaintiff's harm will be severe.\n14 Instead, it ensures that injunctive relief is being used to\n Equity's discretionary character does not make\n preserve a court's ultimate remedial options. See Samuel L.\n it \u201cstandardless,\u201d \u201cunbridled,\u201d or \u201cmystic,\u201d nor\n Bray, The Purpose of the Preliminary Injunction, 78 Vand.\n does it constitute \u201ca roving commission to do\n L. Rev. 809, 824 (2025) (\u201cThe court asks whether it needs\n good.\u201d Henry E. Smith, Equity as Meta-Law,\n to act now, with a preliminary injunction, to preserve its\n 130 Yale L.J. 1050, 1071, 1112, 1135, 1140,\n ability to act in the future.\u201d). So a plaintiff must show that\n 1144 (2021). Rather, equity is guided discretion.\n his harm will no longer be remediable in the absence of a\n Id. at 1055; see also Martin v. Franklin Cap.\n preliminary injunction. Plaintiffs fail to make that showing\n Corp., 546 U.S. 132, 139, 126 S.Ct. 704, 163\n here. Recall Plaintiffs' theory of harm. They allege harm\n L.Ed.2d 547 (2005) (\u201cDiscretion is not whim, and\n arising from the knowledge that DOGE Team members may\n limiting discretion according to legal standards\n see their personal information. If there is a reason to think\n helps promote the basic principle of justice that\n that monetary damages or a permanent injunction could not\n like cases should be decided alike.\u201d). Basic rules of\n remedy this harm, it does not now occur to me. Plaintiffs'\n probability provide a necessary guide to coherently\n failure to show irreparable harm is sufficient to require us to\n assessing a movant's likelihood of success. Far\n vacate the preliminary injunction.\n from imposing \u201ca mechanical algorithm\u201d foreign\n to equity, accepting probability rules ensures that\n But Plaintiffs should also lose on Winter's first factor.\n equitable discretion operates on a sound foundation\n Consistent with my analysis in AFT, these Plaintiffs have\n \u2014one that corresponds to reality, where the basic\n not shown that they likely have standing because they lack\n rules of probability hold true. Cf. Lewis Carroll,\n a concrete injury in fact. See TransUnion LLC v. Ramirez,\n Alice's Adventures in Wonderland (W.W. Norton &\n 594 U.S. 413, 423\u201327, 141 S.Ct. 2190, 210 L.Ed.2d 568\n Co. 3d ed. 2013) (recounting Alice's adventures in\n a fantasy world governed by nonsensical rules of (2021). 16 Plaintiffs assert the harm of certain government\n mathematics and logic). employees having unlawful access to personal information.\n And this harm, Plaintiffs argue, bears a close relationship to\n the common law privacy tort called intrusion upon seclusion.\nIV. THE PRELIMINARY INJUNCTION MUST BE\n But that's wrong. The harm involved in an intrusion upon\nVACATED\n seclusion claim arises from the \u201cknowledge that a third\nRecall that the Supreme Court's interim order in this case party is engaged in targeted snooping.\u201d AFT, 152 F.4th at\ncontrols the outcome here. But for the sake of clarity, I 172. Plaintiffs at most allege that a handful of additional\nreiterate that a variety of reasons explain why the Supreme government employees now have generalized access to a\nCourt may have decided that the government was likely vast database that includes their personal information. That\nto succeed in this appeal. A brief note on two of those: claimed harm is different in kind from the sort of investigation\nirreparable harm and standing. 15 traditionally involved in an intrusion upon seclusion claim. 17\n\n15 16\n I have already described these roadblocks\u2014along Standing is properly considered as part of the\n with others\u2014to Plaintiffs' success on the merits. likelihood of a plaintiff's success on the merits.\n See AFT, 152 F.4th at 174\u201377 (describing the See AFT, 152 F.4th at 168 n.3. Although the\n challenging questions involved in deciding: (1) term \u201cmerits\u201d is often contrasted with jurisdictional\n whether plaintiffs have standing; (2) whether an issues, that is not the best reading in this context.\n agency action is \u201cfinal\u201d under the APA; (3) whether That's because, for a plaintiff to ultimately succeed\n there is an APA cause of action for violations of the on the merits, he must first have Article III\n Privacy Act; (4) how to evaluate an agency's claim standing. Id. (citing Murthy v. Missouri, 603 U.S.\n of \u201cneed\u201d under the Privacy Act; and (5) whether 43, 58, 144 S.Ct. 1972, 219 L.Ed.2d 604 (2024)).\n irreparable harm exists).\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 18\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 21 of 36\n\n17 that lawyers around the country do this very thing every\n The Court sees things differently. As far as I\n day. And if lawyers regularly assess probability of success\n can tell, we agree on the general framework for\n numerically, judges\u2014who have more time and resources than\n applying TransUnion. But the Court rejects my\n most lawyers\u2014should be able to do it too.\n characterization of the factual harm involved in an\n intrusion upon seclusion claim. See Majority Op.\n *21 To explain, consider a plaintiffs' lawyer who is deciding\n at \u2013\u2013\u2013\u2013 \u2013 \u2013\u2013\u2013\u2013. It accepts that every Restatement\n whether to take a product liability case. The potential client\n example does involve targeted snooping but thinks\n explains how the accident happened. And he then explains\n we can read this common thread out of the\n that because of it, he incurred $40,000 in medical bills and\n analysis. The Court suggests that the DOGE Team\n lost $10,000 of wages from being out of work. Plus, he\n having access to Plaintiffs' personal information\n experienced pain and suffering from his injuries. Based on\n is enough. Respectfully, I would not countenance\n experience, the lawyer estimates that if she wins at trial, an\n this departure from the Article III requirement of a\n estimated verdict is roughly three times economic damages.\n concrete injury.\n That means she'd predict a verdict of roughly $150,000 or\nBecause of this key distinction, Plaintiffs have failed to make something in that range. The lawyer also knows that to win,\na sufficient showing that they likely have standing at this she'll have to hire product design and accident reconstruction\nstage of the proceedings. This is another reason to vacate the experts, which she estimates will cost $50,000. She figures\npreliminary injunction. the other costs she'll have to pay (an investigator, deposition\n costs, etc.) are about $15,000. She knows she'll have to put\n *** in lots of her own time, and it'll likely be a couple of years\n before the case is tried.\nOur en banc Court rightly vacates the preliminary injunction\ngranted below. While several independent reasons support Should she take the case? If she wins, she'll get a fee of 1/3 of\nthis conclusion, one stands above them all: the Supreme the recovery, or $50,000, leaving $100,000 for the potential\nCourt's stay of this same injunction requires us to. Still, I client. From that, the client must repay the $65,000 in costs, so\nregret that our Court purports to reject basic principles of his net recovery is $35,000. The lawyer would need to decide\nprobability that would\u2014and already do\u2014guide district courts if a potential $50,000 fee is worth the amount of work she'd\nin the very task that equitable discretion requires: assessing a have to take the case to trial or obtain a favorable settlement.\nplaintiff's likelihood of future success. And the client would have to decide if the potential to recover\n $35,000 is worth the time and emotional toll of litigation.\n\nQUATTLEBAUM, Circuit Judge, with whom\n But there is another critical factor to consider before taking\nRICHARDSON and RUSHING, Circuit Judges, join,\n the case\u2014what is the likelihood the client will succeed\u2014\nconcurring in the judgment:\n either at trial or through settlement? The lawyer assesses the\nSometimes, appellate judges can forget what the real world\n likelihood of success by evaluating factors such as the law\nof practicing law is like. This is one of those times. While\n applicable to the potential claims, the quality of the evidence\nI agree with the majority's disposition, I also agree with\n and her experience with and knowledge of similar cases in\nJudge Richardson on the standard required for preliminary\n that jurisdiction. Her assessment of the likelihood of success\ninjunctions. But I write separately only to address one of\n then goes into any cost-benefit analysis.\nthe reasons the majority gives for rejecting what Judge\nRichardson calls the \u201cmultiplicative problem.\u201d The majority\n For example, imagine the lawyer assesses the case as a virtual\nsuggests that likelihood of success on the merits cannot be\n slam dunk. She might say the likelihood of winning is 90%. In\neffectively assessed in an objective, numerical way. In fact, it\n doing this, she isn't selecting 90% in a mathematically certain\nquotes a law review article stating that \u201c[c]ognitive limitations\n way. No one would say that predicting likelihood of success\nleave humans able only weakly to judge likelihood on any sort\n is that precise. The lawyer might just as well have picked 95%\nof scale.\u201d Maj. Op. at \u2013\u2013\u2013\u2013 (citation omitted). In my view,\n or 85%. But she wouldn't pick 60% if she thinks the case is a\nit'd be a mistake to abrogate American Federation of Teachers\n slam dunk. In other words, the lawyer will likely place some\nv. Bessent, 152 F.4th 162 (4th Cir. 2025), because we don't\n numerical value or range on her chance of success.\nthink judges can effectively assess likelihood of success in\nnumerical terms. Why do I say that? Because I know firsthand\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 19\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 22 of 36\n\nUsing 90% to make the point, the lawyer might then reduce After some discovery, the company that made the product\nthe predicted recovery by 10% to $135,000. The client would wants to decide whether to go to trial or settle the case. The\nget 2/3, or $90,000, and the lawyer would get 1/3 or $45,000. company knows it will cost $75,000 in legal fees, experts and\nBut the costs must be repaid. Subtracting $65,000 from the other costs from that point forward to defend the case through\nclient's portion, the client's net recovery would be $25,000. trial. And they agree that if they lose, the likely verdict\nSo, with a 90% estimated likelihood of success, it's still likely would be roughly $150,000 or something in that range. The\nthat the ultimate recovery for the client will be more than the general counsel asks the company's defense lawyer for a\ncosts. In other words, some upside is still there. recommendation.\n\nBut not so if the lawyer assesses the chance of success as Just as it was for the plaintiffs' lawyer, the estimate of the\na toss-up. In that situation, the lawyer might estimate the likelihood of success is critical to the advice the lawyer will\nlikelihood of success as 50%. Again, she could just as easily give. If the lawyer thinks the company is almost certainly\nhave picked 55% or 45%, but, if she thinks the case is a toss- going to lose, she might assess the likelihood of loss at\nup, she won't pick 90%. Using 50%, the predicted recovery 90% (based on the slam dunk explanation described above).\nwould be $75,000. That means the likely fee for the lawyer is In that situation, she might recommend the company settle\n$25,000, and the likely recovery for the client is only $50,000. for something less than its total expected losses from trial\nBut don't forget the costs. The $65,000 in litigation expenses \u2014which include the $75,000 in projected defense costs\nmust either be repaid by the client or eaten by the lawyer. plus the $135,000 expected value of the verdict (90% of\nEither way, one will be underwater. $150,000). But if the lawyer thinks the company has a 90%\n chance of winning, she'd make a very different settlement\nBased on this type of cost-benefit analysis, the lawyer might recommendation. 2\ntake the case if she thinks it's a slam dunk. But she might very\nwell decide not to pursue the case if she thinks it's a toss-up. 1 2 Of course, other factors may go into a plaintiffs'\n attorney's decision to take a case or a defendant's\n1 Likelihood of success isn't the only number that decision to try the case or settle. Maybe the\n will drive the decision. Imagine the potential plaintiff is determined to try to hold the company\n client's injuries are much more severe such that the accountable as a matter of principle, no matter the\n economic damages are $1,000,000. Using the same cost. Or maybe the company wants to show that\n multiplier of three times economic damages, the it will defend its products to the hilt even if it is\n likely recovery is $3,000,000. Assuming the costs likely to lose. It is perfectly fine for those and other\n remain the same, it will make sense to take this case factors to outweigh the probability of success. But\n even if it's a perceived toss-up because the potential the point is that if you are looking for probability\n upside is so big. That's because the discounted of success (or in preliminary injunction speak, the\n estimated recovery is $1,500,000. In this scenario, likelihood of success), lawyers in the real world are\n the likely fee for the lawyer is $500,000, and the using numbers to help figure it out.\n likely net recovery for the client, after paying the\n According to the majority, these sort of numerical likelihood-\n $65,000 of costs, is $935,000. of-success assessments cannot be effectively made. What if\n *22 While this example is hypothetical, the fact that lawyers after reading the majority opinion, the defense lawyer says to\nconduct this type of decision-making is not. It's a common her company client that asked her to assess the likelihood they\nway lawyers and clients make informed decisions about a would win at trial, \u201cyou're asking me the wrong question\u2014I\ncase\u2014what the majority says judges can't do effectively. just read the Fourth Circuit's opinion that says it's just too hard\nPlaintiffs' lawyers in the real world can't afford to disavow to give you percentages on likelihood of success. So, while I\nnumerical assessments of likelihood of success. think we'll win, I can't give you any numbers.\u201d\n\nAnd it's not just plaintiffs' lawyers who make probabilistic What is the company going to do then? Without some sense\nassessments about likelihood of success. Consider a product of numerical percentages, the client can't make informed\nliability defendant. Assume the plaintiff and the plaintiffs' decisions. Frustrated, it'll likely fire the lawyer who follows\nlawyer from our prior example decided to pursue the case.\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 20\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 23 of 36\n\nthe majority's thinking and replace her with someone who can of SSA records. Moreover, the Notice of Corrections belies\ngive it more concrete help. SSA's entire justification for opening its records to the\n DOGE affiliates \u2014 that the DOGE affiliates are regular SSA\nOne last example. Mediation is a common feature of modern employees working under SSA's supervision, in accordance\nlitigation. In some instances, district courts require mediation. with its rules, and on its behalf \u2014 by exposing that the DOGE\nOthers utilize it as a case management tool. Even our court affiliates are actually rogue actors whose activities are hidden\nreviews certain appeals to determine whether mediation may from SSA itself.\nbe helpful. See 4th Cir. R. 33. During mediation, mediators\nand parties constantly assess the likelihood of success on After receiving SSA's Notice of Corrections and on the\nissues in numerical terms. It happens every day in much the motion of the plaintiffs, the district court promptly corrected\nsame way I have described already. If mediators and parties the record on appeal. That leaves our en banc Court with at\nare assessing likelihood of success in numerical terms to least two legitimate options for disposing of this appeal. We\nengage in a process that federal judges promote, I don't think could (1) assess the merits of the preliminary injunction on the\nwe as judges should say it's inappropriate for us to do so in basis of the corrected record or (2) remand, without assessing\nour assessment of the very same issues. the preliminary injunction's merits, so that the district court\n may decide anew whether to award injunctive relief on the\n *23 To conclude, I agree that we should vacate the basis of the corrected record and subsequent developments.\npreliminary injunction and remand to the district court. So,\nI concur in the judgment. On the standard for preliminary I would pursue option (1) \u2014 assessing the merits of the\ninjunctions, however, I agree with Judge Richardson. But preliminary injunction on the basis of the corrected record\nregardless of how we decide that issue, it shouldn't be because \u2014 and I would thereby affirm the preliminary injunction\nwe can't effectively assess likelihood of success numerically. without hesitation. Candidly, I would affirm even if it were the\nThat makes us seem out-of-touch with the real world, where erroneous original record that controls the analysis. The very\nlawyers do every day just what the majority says can't be able district judge acted with exceptional thoughtfulness in\neffectively done. issuing the preliminary injunction, committing no legal error\n or otherwise abusing her discretion.\n\n Regrettably, however, my friend Judge Heytens pursues\nKING, Circuit Judge, with whom Judges GREGORY,\n neither option (1), option (2), nor any other legitimate option\nWYNN, THACKER, BENJAMIN, and BERNER join,\n for disposing of this appeal. Instead, in Part IV of his opinion,\nconcurring in part, dissenting in part, and dissenting from the\n Judge Heytens improperly disregards the corrected record and\njudgment:\n wrongly relies on the erroneous original record to assess the\nWhen the district court issued its preliminary injunction,\n preliminary injunction's merits. Compounding that misstep,\nthe facts then known to the district court were bad enough.\n Judge Heytens then unjustifiably rules that the district court\nThe Social Security Administration (\u201cSSA\u201d) had abruptly\n erred in crediting the plaintiffs' showing of irreparable harm,\nopened all its records to affiliates of the President's then-new\n such that the preliminary injunction must be vacated.\nDepartment of Government Efficiency (\u201cDOGE\u201d) despite the\nDOGE affiliates' lack of vetting, lack of training, and lack of\n *24 In these circumstances, I concur solely in Parts I through\nany demonstrated need for the vast and extremely sensitive\n III of Judge Heytens's opinion. I am compelled to dissent from\npersonal information that fills the SSA records.\n Part IV of the opinion, as well as the resultant judgment of our\n en banc Court vacating the preliminary injunction because of\nThe facts now known are much worse!\n purported error by the district court. 1\nAs SSA recently revealed in a \u201cNotice of Corrections to the\nRecord,\u201d a significant portion of the information provided by 1 Although I partially concur in Judge Heytens's\nSSA and the other defendants in the preliminary injunction opinion, I fully disagree with the opinions of\nproceedings was patently false. The Notice of Corrections Judge Wilkinson, Judge Richardson, and Judge\nconfesses repeated violations of the district court's prior Quattlebaum. Those disagreements are addressed\ntemporary restraining order (the \u201cTRO\u201d) and multiple\ninstances of the DOGE affiliates' misuse and mishandling\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 21\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 24 of 36\n\n in Part III of this opinion, as well as in the fine\n opinion of Judge Wynn, which I am pleased to join. Until SSA opened its records to the DOGE affiliates, there\n had been good reason for the American people to be confident\n that SSA was safeguarding the personal information entrusted\n I. to it. Since SSA's inception in 1935, a bedrock principle of the\n agency had been to ensure the confidentiality and security of\nIn explaining my views, I begin with a discussion of the\n its records. Moreover, SSA had been known to carefully abide\nrelevant factual and procedural history. This covers the\n by the various regulations and statutes enacted to reinforce\nerroneous original record that was before the district court\n its record-protecting obligations, including the Privacy Act of\nwhen it issued the preliminary injunction, as well as the\n 1974.\ncorrected record now before us on appeal. Additionally,\nI address two extra-record whistleblower reports, which\n Of especial relevance here, the Privacy Act limits SSA's\nconcern potentially significant events that allegedly occurred\n internal disclosure of records containing personal information\nin the preliminary injunction's wake.\n to solely those SSA employees \u201cwho have a need for the\n record in the performance of their duties.\u201d See 5 U.S.C.\n \u00a7 552a(b)(1). As such, SSA implemented strict policies\n A. of \u201cneed to know\u201d (according access to only employees\n with a need for it) and \u201cleast privilege\u201d (granting just the\n minimum access necessary and anonymizing data whenever\n 1.\n possible), along with \u201cseparation of duties\u201d (denying users\nFrom evidence in the erroneous original record that has not enough privileges to misuse a system on their own) and\nbeen corrected and thus remains valid, the district court \u201czero trust\u201d (performing regular security audits, assuming\nknew when it issued its preliminary injunction that, in early breaches, and scrutinizing requests for information). SSA\nFebruary 2025, SSA had accorded DOGE affiliates unfettered also required stringent background investigations and training\naccess to the Social Security records of essentially everyone before an employee was granted access, as well as regular\nin our Country. Those records contain a mass of personal recertifications and retraining thereafter.\ninformation of the utmost sensitivity, including the following:\n *25 Notably, those policies had long applied to SSA\n \u2022 Names and Social Security numbers; employees performing the same work in which the DOGE\n affiliates are now purportedly engaged, that being technology\n \u2022 Names of parents and their Social Security numbers;\n upgrades and fraud, waste, and abuse detection. But once\n \u2022 Dates and places of birth; the DOGE affiliates arrived at the agency, SSA flouted its\n own rules and opened all its records to the DOGE affiliates,\n \u2022 Phone numbers and home addresses; without even requiring them to undergo standard background\n checks and training.\n \u2022 Data regarding citizenship, ethnicity, race, and sex;\n Furthermore, although the district court afforded SSA ample\n \u2022 Birth and marriage certificates;\n opportunities in the preliminary injunction proceedings to do\n \u2022 School and family court records; so, SSA never provided a clear, consistent, or convincing\n explanation why the DOGE affiliates need unfettered access\n \u2022 Employment and pension records; to the personal information contained in the SSA records, as\n required by the Privacy Act. Nor did SSA demonstrate that\n \u2022 Details of driver's licenses, credit cards, and bank the DOGE affiliates \u2014 unlike SSA employees before them\n accounts; \u2014 cannot accomplish their work with \u201cleast privilege\u201d access\n and thus largely anonymized data. At most, SSA's evidence\n \u2022 Tax and earnings information; and\n merely suggested that a lack of unfettered access to non-\n \u2022 Extensive medical and mental health records, anonymized data may cause the work to take longer.\n documenting treatments, hospitalizations, prescription\n medications, test results, and more.\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 22\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 25 of 36\n\n remove any software previously installed by them or on their\n behalf, and bars them from accessing, altering, or disclosing\n 2.\n any SSA computer or software code.\nOn April 17, 2025, based on the erroneous original record,\nthe district court issued its preliminary injunction, supported *26 The preliminary injunction does not, however,\nby a thorough and cogent 148-page opinion. The preliminary completely block DOGE's records access or stop its purported\ninjunction replaced the court's TRO of March 20, 2025, which work on technology upgrades and fraud, waste, and abuse\nhad been accompanied by a 137-page opinion. The relief detection. Rather, the preliminary injunction allows SSA to\nwas awarded on claims brought by the plaintiffs \u2014 two provide DOGE affiliates, once properly trained and vetted,\nnational labor and membership associations and a grassroots with access to all anonymized data, as well as to any discrete\nadvocacy organization, including lead plaintiff American non-anonymized data actually needed to perform legitimate\nFederation of State, County and Municipal Employees, work.\nAFL-CIO (\u201cAFSCME\u201d) \u2014 on behalf of their millions of\nmembers. 2\n 3.\n2 The aforementioned documents are found on the\n Seeking to be freed from the modest strictures imposed by\n district court's docket, see AFSCME v. SSA, No.\n the district court, SSA and the other defendants noted this\n 1:25-cv-00596 (D. Md.), at ECF Nos. 48 & 49\n appeal from and sought an immediate stay of the preliminary\n (the TRO and accompanying opinion of March 20,\n injunction on the basis of the erroneous original record. By\n 2025), ECF No. 147 (the preliminary injunction of\n majority votes of all active judges, we agreed on April 30,\n April 17, 2025), and ECF No. 157 (the preliminary\n 2025, to initial en banc consideration of the stay motion and\n injunction opinion, as amended, of April 24, 2025).\n to deny the requested stay. We then agreed on May 6, 2025,\n The preliminary injunction opinion is published at\n to an initial hearing en banc on the merits of this appeal. 3\n 778 F. Supp. 3d 685 (D. Md. 2025).\nIn issuing the preliminary injunction, the district court 3 The relevant orders are found on our docket,\nfocused on the plaintiffs' claims under the Administrative\nProcedure Act for violations of the Privacy Act and for see AFSCME v. SSA, No. 25-1411 (4th. Cir.), at\narbitrary and capricious agency action, premised on SSA's ECF No. 20 (order of April 30, 2025, granting\nopening of its records to DOGE affiliates who have no need initial en banc consideration of stay motion and\nfor the personal information contained therein and who lack denying stay) and ECF No. 27 (order of May 6,\nstandard background checks and training. With respect to 2025, granting initial hearing en banc on merits of\nthose claims, the court carefully confirmed the plaintiffs' appeal).\nArticle III standing to sue and concluded that the plaintiffs On June 6, 2025, however, the Supreme Court stayed the\nhave satisfied the traditional Winter preliminary injunction preliminary injunction, relying on the erroneous original\nstandard. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20, record. See SSA v. AFSCME, \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, 145 S. Ct. 1626,\n129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (\u201cA plaintiff seeking 1626, 222 L.Ed.2d 1068 (2025). In so doing, the Court did\na preliminary injunction must establish [1] that he is likely to not explain its ruling and instead provided only this brief\nsucceed on the merits, [2] that he is likely to suffer irreparable discussion of the Nken stay factors:\nharm in the absence of preliminary relief, [3] that the balance\nof equities tips in his favor, and [4] that an injunction is in the When considering whether to grant a stay, this Court looks\npublic interest.\u201d). to four factors: \u201c(1) whether the stay applicant has made a\n strong showing that he is likely to succeed on the merits;\nThe preliminary injunction, like the TRO before it, both (2) whether the applicant will be irreparably injured absent\nends DOGE's unfettered access to SSA records and requires a stay; (3) whether issuance of the stay will substantially\nDOGE affiliates to disgorge and delete the personal injure the other parties interested in the proceeding; and\ninformation already in their possession or under their control. (4) where the public interest lies.\u201d Nken v. Holder, 556\nAdditionally, the preliminary injunction prohibits DOGE U.S. 418, 434 [129 S.Ct. 1749, 173 L.Ed.2d 550] (2009)\naffiliates from installing any software at SSA, directs them to (quoting Hilton v. Braunskill, 481 U.S. 770, 776 [107\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 23\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 26 of 36\n\n S.Ct. 2113, 95 L.Ed.2d 724] (1987)). After review, we TRO of March 20, 2025, and that SSA failed to disclose\n determine that the application of these factors in this case the full extent of the DOGE affiliates' systems access. We\n warrants granting the requested stay. We conclude that, further know that SSA falsely advised the district court that no\n under the present circumstances, SSA may proceed to DOGE affiliate other than those assigned to SSA had ever had\n afford members of the SSA DOGE Team access to the access to SSA records, that SSA had safeguards in place that\n agency records in question in order for those members to would prevent DOGE affiliates from violating SSA security\n do their work. protocols and integrating SSA systems with outside servers,\n and that the DOGE affiliates' work at SSA had been limited\nId. Pursuant to the Court's decision, the preliminary injunction to technology upgrades and fraud, waste, and abuse detection\nis stayed pending our Court's disposition of this appeal and within the agency.\nany subsequent Supreme Court proceedings. Id.\n Correspondingly, we know that SSA found itself obliged\n to belatedly confess the following, which includes repeated\n B. violations of the TRO and multiple incidents of the DOGE\n affiliates' misuse and mishandling of SSA records:\nIt was not until January 16, 2026 \u2014 many months after the\ndistrict court issued the preliminary injunction and our en \u2022 The TRO was violated by SSA's failure to terminate\nbanc Court denied a stay (in April 2025), the Supreme Court the DOGE affiliates' unfettered records access until\nawarded a stay (in June 2025), and we conducted the oral approximately noon on March 24, 2025, as well as by a\nargument in this appeal (on September 11, 2025) \u2014 that DOGE affiliate's searches of SSA records for personal\nSSA filed its \u201cNotice of Corrections to the Record\u201d in the information earlier that morning;\ndistrict court. On January 21, 2026, the district court corrected\n \u2022 The TRO was again violated when SSA gave a DOGE\nthe record on appeal by supplementing it with the Notice of\n affiliate access to certain records containing personal\nCorrections. See Fed. R. App. P. 10(e)(2)(B) (\u201cIf anything\n information from March 26 to April 2, 2025, and yet\nmaterial to either party is omitted from or misstated in the\n again when SSA gave a DOGE affiliate access to\nrecord by error or accident, the omission or misstatement may\n different records containing personal information from\nbe corrected and a supplemental record may be certified and\n April 9 to June 11, 2025, through the period that the\nforwarded ... by the district court[.]\u201d). The corrected record\n preliminary injunction was unstayed;\nwas thereafter transmitted to our Court on February 9, 2026.\n \u2022 SSA failed to disclose that it had granted DOGE affiliates\nFrom the corrected record, we now know that SSA and the systems access enabling them to, inter alia, exchange\nother defendants provided patently false information to the data with each other in a \u201cshared workspace\u201d and access\ndistrict court in the preliminary injunction proceedings. 4 We personal information via a \u201cdata visualization tool\u201d; and\nthus know that the prior rulings in this matter \u2014 the district\ncourt's issuance of the preliminary injunction, our Court's \u2022 It was unknown to SSA at the time of the preliminary\ndenial of a stay, and the Supreme Court's grant of a stay \u2014 injunction proceedings but later discovered that:\nwere rendered on a materially erroneous record. And we know\n - On March 3, 2025, an SSA DOGE affiliate\nthat, going forward, we should not accord the defendants any\n copied DOGE affiliates with the DOGE umbrella\nbenefit of the doubt or readily trust in anything they say.\n organization and the Department of Labor on an\n SSA email to the Department of Homeland Security,\n4 Notably, the defendants include not only SSA and attaching an encrypted and password-protected file\n two of its leaders, but also two DOGE entities believed to contain personal information derived from\n and two DOGE officials. In my view, it is beyond the SSA records of some 1,000 people;\n passing strange that only SSA filed the \u201cNotice of\n Corrections to the Record.\u201d - From March 7 to 17, 2025, DOGE affiliates shared SSA\n data through the third-party server \u201cCloudflare\u201d; and\n *27 Regarding the false information proffered in the\npreliminary injunction proceedings, we specifically know that - On March 24, 2025, acting in his official capacity\nSSA falsely assured the district court of compliance with the with SSA, a DOGE affiliate entered a \u201cVoter Data\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 24\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 27 of 36\n\n Agreement\u201d with an unnamed \u201cpolitical advocacy\n group\u201d for the purpose of proving voter fraud and Questioned about the Borges report during the September\n overturning certain state election results. 2025 oral argument in this appeal, counsel for SSA and the\n other defendants emphasized that there was no evidence the\nIn an effort to downplay the import of its admissions, SSA NUMIDENT data had actually been compromised. But as\nhas emphasized that it is unsure if one of the DOGE affiliates the report conveys, Borges could not ascertain whether the\ngranted access to personal information in the wake of the NUMIDENT data had been compromised because he was\nTRO actually engaged with any personal information. Nor locked out of the DOGE-controlled cloud server. And as my\nhas SSA been able to determine exactly what was contained friend Judge Thacker pointed out at the oral argument, the\nin the encrypted and password-protected file provided to the best defendants' counsel could say is that the NUMIDENT\noutside DOGE affiliates or whether the password to view the data apparently had not been compromised \u201cyet.\u201d See Oral\nfile was shared with them. Nor has SSA been able to ascertain Argument at 25:42, AFSCME v. SSA, No. 25-1411 (4th. Cir.\nexactly what SSA data was shared to Cloudflare or whether Sept. 11, 2025), https://www.ca4.uscourts.gov/OAarchive/\nthat data yet exists on that server. Nor has SSA seen evidence mp3/25-1411-20250911.mp3.\nthat the Voter Data Agreement resulted in the sharing of SSA\ndata with the political advocacy group. Since then, the plaintiffs have moved in the district court for\n the court to lift its stay of its own proceedings pending this\nBut this most assuredly does not, as SSA would have it, appeal and to authorize limited discovery into the information\nsomehow render the corrected record inconsequential. Rather, disclosed by SSA's \u201cNotice of Corrections to the Record.\u201d In\nit lays bare what are probably the most damning facts now support of their motion, the plaintiffs recently submitted to the\nknown. That is, the DOGE affiliates are not regular SSA court a recent news article regarding the second whistleblower\nemployees working under SSA's supervision, in accordance report, made to SSA's inspector general in January 2026. That\nwith its rules, and on its behalf. Rather, they are rogue actors report is said to allege that a former DOGE software engineer\nwhose activities are hidden from SSA itself. told coworkers that he possessed copies of the NUMIDENT\n and another SSA database \u2014 including a copy of at least one\n of those databases on a thumb drive \u2014 that he planned to\n share with his new private employer, a government contractor.\n C.\n\nBeyond the corrected record, there are the potentially To be clear, I recognize that the whistleblower reports are\nsignificant events that allegedly occurred in the preliminary not part of the evidence before us and concern events that\ninjunction's wake, as reflected in the two whistleblower allegedly occurred in the preliminary injunction's wake. The\nreports. The first of those reports was made to the U.S. Office evidence before us is instead that contained in the corrected\nof Special Counsel and members of Congress in late August record, pertaining to events that predate the preliminary\n2025 by Charles Borges, then SSA's Chief Data Officer, injunction. And while the whistleblower reports are notable\nalleging \u201cserious data security lapses\u201d on the part of DOGE for the troubling questions they raise about the ongoing\nand its affiliates. activities of DOGE affiliates at SSA, the corrected record\n already shows the DOGE affiliates' misuse and mishandling\n *28 The Borges report specifies that, shortly after the of SSA records, as well as their freedom from SSA oversight\nSupreme Court stayed the preliminary injunction in early and control.\nJune 2025, DOGE affiliates evidently authorized themselves\nto create a copy of SSA's Numerical Identification System\n(\u201cNUMIDENT\u201d) database, which contains the detailed and II.\nextremely sensitive personal information relating to each of\nthe more than 450 million Social Security numbers ever That brings me to the explanation of my areas of agreement\nissued. According to the Borges report, the DOGE affiliates \u2014 and disagreement \u2014 with my friend Judge Heytens. First\nthen transferred the NUMIDENT data to a highly vulnerable and foremost, I explain why I dissent from Part IV of Judge\n\u201ccloud environment\u201d controlled by DOGE and beyond SSA Heytens's opinion and the resultant judgment vacating the\noversight, exposing the data to misuse by not only DOGE, but preliminary injunction. Thereafter, I explain why I concur in\nalso identity thieves, blackmailers, and other bad actors. Parts I through III of the opinion.\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 25\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 28 of 36\n\n To elaborate, the passages of the Wilson and Verlo decisions\n highlighted by Judge Heytens recognize that the review of a\n preliminary injunction by a court of appeals must be based on\n A.\n the facts as of the time the preliminary injunction was issued\nIn Part IV of his opinion, Judge Heytens insists that \u2014 by the district court, and not on subsequent developments.\nalthough we now know that the original record is replete See Wilson, 961 F.3d at 833 (observing that \u201cour task is to\nwith false information \u2014 our Court is constrained to assess review the record that was before the district court at the time\nthe merits of the district court's preliminary injunction on the preliminary injunction was entered\u201d (citation modified));\nthe basis of the erroneous original record. Relying on that Verlo, 820 F.3d at 1125 (recognizing same and thus that\nrecord, Judge Heytens rules that the district court erred in it would be improper \u201cto consider events occurring after\ncrediting the plaintiffs' showing of irreparable harm, such that the preliminary injunction hearing to determine whether the\nthe preliminary injunction must be vacated. district court abused its discretion in issuing the preliminary\n injunction\u201d). Our Court has heeded the same uncontroversial\n principle, limiting our review to the facts as of the time\n the preliminary injunction was issued. See, e.g., Wetzel v.\n 1.\n Edwards, 635 F.2d 283, 286 (4th Cir. 1980) (observing that\nJudge Heytens's first mistake is that he disregards the we \u201cdecide[ ] only whether the grant of interlocutory relief ...\ncorrected record and instead assesses the merits of the was appropriate under the facts of [the] case,\u201d i.e., \u201cwhether\npreliminary injunction on the basis of the erroneous original the record shows an abuse of discretion by the district court\u201d).\nrecord. In so doing, Judge Heytens relegates SSA's \u201cNotice of\nCorrections to the Record\u201d to a footnote, despite recognizing Pursuant to Wilson, Verlo, and similar authorities such as\nthat \u201c[t]he government's recent acknowledgments are Wetzel, I readily acknowledge that we cannot consider\nalarming and raise serious questions about its earlier conduct any evidence, including the whistleblower reports, relating\nbefore the district court.\u201d See ante \u2013\u2013\u2013\u2013 n.8. As Judge Heytens to events that have allegedly occurred since the district\nsees it, \u201ceven though the [Notice of Corrections] has been court issued the preliminary injunction before us today. The\nmade part of the official record on appeal, our task in this corrected record, however, does not concern events that\nappeal is to review the record that was before the district occurred in the preliminary injunction's wake.\ncourt at the time the preliminary injunction was entered.\u201d Id.\n(internal quotation marks omitted). To Judge Heytens, the Rather, under Federal Rule of Appellate Procedure 10(e)\ncorrected record is merely something that the district court (2), the corrected record is the compilation of the facts\nmay consider on remand \u2014 along with the whistleblower as of the time the preliminary injunction was issued. That\nreports and other subsequent developments \u2014 in conjunction is, the corrected record presents the facts as they truly\nwith \u201cany future requests for appropriate relief or corrective were, correcting the false version of the facts portrayed by\naction.\u201d Id. the erroneous original record due to \u201cmaterial\u201d information\n having been \u201comitted from or misstated in [that] record by\n error or accident.\u201d See Fed. R. App. P. 10(e)(2). Simply put,\n the corrected record presents the facts as they truly were,\n a. while the erroneous original record depicts the facts as they\n never were. It is therefore the corrected record \u2014 not the\n *29 For support of his approach, Judge Heytens invokes\n erroneous original record \u2014 that is the district court's record\nthe decisions of the Sixth Circuit in Wilson v. Williams, 961\n of the preliminary injunction proceedings.\nF.3d 829 (6th Cir. 2020), and the Tenth Circuit in Verlo v.\nMartinez, 820 F.3d 1113 (10th Cir. 2016). But those decisions\n So, when Wilson and Verlo recognize that a court of appeals\nneither involved nor expressly addressed the role of a record\n must \u201creview the record that was before the district court\nthat was corrected on appeal. And as it turns out, they actually\n at the time the preliminary injunction was entered,\u201d they\ninvalidate Judge Heytens's reliance on the erroneous original\n necessarily require our consideration of the corrected record\nrecord and instead require consideration of the corrected\n herein. Contrary to Judge Heytens's reading of them, Wilson\nrecord.\n and Verlo in no way mandate reliance on the erroneous\n original record and the false version of the facts it portrays.\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 26\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 29 of 36\n\n Perhaps Judge Heytens would be uncomfortable pursuing\n option (1) and relying on the corrected record because of the\n magnitude of the corrections. If so, an appropriate alternative\n b.\n would be to pursue option (2) and refrain from assessing\nJudge Heytens' reliance on the erroneous original record not the preliminary injunction's merits at all. Indeed, there is\nonly lacks support in the authorities he cites, but also flouts precedent for such a course, at least in situations where there\nthe appellate rules. Federal Rule of Appellate Procedure 10(e) have been significant developments following the district\n(2)(B) authorizes the district court to correct material errors court's award of the injunctive relief under review. See, e.g.,\nin the record even after it has been forwarded to the court of McLeod v. Gen. Elec. Co., 385 U.S. 533, 535, 87 S.Ct.\nappeals. And our corresponding local rule favors having the 637, 17 L.Ed.2d 588 (1967) (ordering the vacatur of the\ndistrict court resolve \u201cin the first instance\u201d any \u201c[d]isputes district court's temporary injunction and a remand to that\nconcerning the accuracy ... of the record on appeal.\u201d See 4th court so that it could \u201cdetermine in the first instance the\nCir. R. 10(d). As reflected in that rule, we are so concerned effect of [a] supervening event upon the appropriateness of\nwith the record's accuracy that we deem it \u201cunnecessary to injunctive relief\u201d); City of Pontiac Retired Emps. Ass'n v.\nseek permission\u201d to correct the record and allow correction Schimmel, 751 F.3d 427, 429 (6th Cir. 2014) (per curiam\n\u201cat any time during the appellate process.\u201d Id. order of en banc court) (recognizing that \u201c[l]egal, factual,\n and equitable considerations have developed significantly\n *30 By disregarding the corrected record and instead relying since the district court denied the plaintiffs' request for\non the erroneous original record, Judge Heytens renders the a preliminary injunction,\u201d and thus vacating the district\nforegoing rules utterly meaningless. Moreover, he encourages court's denial of injunctive relief and remanding for further\negregious litigation conduct, in that he rewards SSA and the proceedings).\nother defendants for providing false information to the district\ncourt. Nevertheless, Judge Heytens rejects the valid options and\n sets on his improper course. He proceeds by wrongly relying\nThe end result is that Part IV of Judge Heytens's opinion on the erroneous original record to assess the merits of the\nconstitutes an illegitimate advisory decision that turns on preliminary injunction.\nfacts that we now know were never true. Of course,\n\u201cArticle III does not assign to federal courts any power to\naddress hypothetical circumstances, give advisory opinions, 2.\nor resolve abstract disputes.\u201d See B.R. v. F.C.S.B., 17 F.4th\n485, 493 (4th Cir. 2021). But Judge Heytens does just that by Judge Heytens's next mistake is his Part IV ruling that\nassessing the merits of the preliminary injunction on the basis the district court erred in crediting the plaintiffs' showing\nof the erroneous original record. of irreparable harm, such that the preliminary injunction\n must be vacated. In reaching that ruling, Judge Heytens\n declines to consider the theory, supported by the corrected\n record, \u201cthat plaintiffs' members would be harmed by some\n c.\n downstream misuse or public disclosure of their personal\nIt bears emphasizing that Judge Heytens's reliance on the data.\u201d See ante \u2013\u2013\u2013\u2013. Instead, Judge Heytens confines his\nerroneous original record is not only wholly improper, but irreparable harm analysis to the theory that the plaintiffs were\nalso completely unnecessary. As I stated at the outset of this compelled by the erroneous original record to rely on: \u201cthat\nopinion, there are at least two valid options for disposing DOGE violates plaintiffs' members' privacy by accessing\nof this appeal, those being (1) assessing the merits of the their sensitive personal data without lawful authorization.\u201d Id.\npreliminary injunction on the basis of the corrected record or\n(2) remanding, without assessing the preliminary injunction's *31 In fairness to the plaintiffs, I underscore that they\nmerits, so that the district court may decide anew whether to predicted from the outset of this action \u2014 as it turns\naward injunctive relief on the basis of the corrected record out, accurately \u2014 that DOGE affiliates would misuse\nand subsequent developments. and improperly disclose the personal data contained in\n SSA records. Accordingly, the plaintiffs raised a theory of\n irreparable harm in the preliminary injunction proceedings\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 27\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 30 of 36\n\npremised on the potential for (but not any actual) misuse have suffered irreparable harm.\u201d Id. (quoting Am. Fed'n of\nand improper disclosure. The district court understandably Teachers v. Bessent, No. 25-1282, 2025 WL 1023638, at *10\ndisallowed that theory, explaining in its preliminary (4th Cir. Apr. 7, 2025) (Berner, J., dissenting from the denial\ninjunction opinion that the \u201crisk [was then] too speculative of initial hearing en banc)).\nto constitute irreparable harm.\u201d See AFSCME v. SSA, 778\nF. Supp. 3d 685, 776 n.56 (D. Md. 2025). In other words, Lastly, I note one more point on which I disagree with Judge\nthe plaintiffs were thwarted by a lack of evidence that the Heytens. In his irreparable harm analysis, Judge Heytens\ncorrected record now provides, i.e., evidence that by the suggests that the Supreme Court's stay may foreclose a\ntime of the preliminary injunction proceedings, misuse and showing of irreparable harm. See ante \u2013\u2013\u2013\u2013 (deeming it\nimproper disclosure had already occurred. \u201cthe elephant in the room\u201d that, because of the Supreme\n Court's stay, \u201cthe district court's preliminary injunction cannot\nEven considering the erroneous original record, however, currently protect anyone from anything and no decision we\nJudge Heytens's irreparable harm ruling is wrong. That is, issue today has the power to change that fact\u201d).\nJudge Heytens unjustifiably concludes that the plaintiffs have\nnot made the requisite showing that they are likely to suffer As I see it, the Supreme Court's stay has no role in the\nirreparable harm in the absence of a preliminary injunction, in irreparable harm analysis. Our Court is tasked today with\nthat they have not demonstrated that future money damages deciding whether the district court abused its discretion in\nor a reparative permanent injunction would be insufficient to issuing the April 2025 preliminary injunction based on the\nremedy their injuries. facts as of that time. See Wetzel, 635 F.2d at 286 (limiting our\n review to the facts as of the time the preliminary injunction\nOn the issue of future money damages, Judge Heytens was issued). The Supreme Court's stay of June 2025 is not\nimproperly faults the plaintiffs for failing to substantiate their such a fact. Moreover, to treat it as one would be just another\ncontention that such \u201cdamages would be insufficient and way of saying what my friends Judge Wilkinson and Judge\ndifficult to ascertain.\u201d See ante \u2013\u2013\u2013\u2013 (internal quotation marks Richardson wrongly assert in their opinions herein: that the\nomitted). And on the issue of a reparative future injunction, Supreme Court's stay absolutely requires our Court to vacate\nJudge Heytens first misreads the erroneous original record \u2014 the preliminary injunction. See infra Part III (joining Judge\nmisconstruing it to show that SSA's opening of its records Wynn in rejecting Judge Wilkinson's and Judge Richardson's\nto DOGE affiliates constituted only an \u201callegedly unlawful assertions regarding the Supreme Court's stay).\ndisclosure ... made to a small group of people within the\ngovernment\u201d \u2014 and then relies on that misinterpretation ***\nto wrongly conclude that any harm could thus easily be\nremedied by eventually \u201corder[ing] the relevant employees to *32 At bottom, because Judge Heytens improperly assesses\ndestroy any illegally obtained data or work derived from such the merits of the preliminary injunction on the basis of the\ndata.\u201d Id. at \u2013\u2013\u2013\u2013 \u2013 \u2013\u2013\u2013\u2013. erroneous original record, and because in that assessment he\n unjustifiably rules that the district court erred in crediting\nAs the district court underscored in its preliminary injunction the plaintiffs' showing of irreparable harm, I am left to\nopinion, this case has never been about something as dissent from Part IV of his opinion. I also must dissent from\nsimple as DOGE affiliates having a single look at a the resultant judgment of our en banc Court vacating the\ngiven SSA record. See AFSCME, 778 F. Supp. 3d at preliminary injunction due to purported error by the district\n776-78 (district court's irreparable harm analysis). From court.\nthe start, it has been about DOGE affiliates \u2014 whether\nor not they have vetting, training, or need \u2014 being\naccorded ongoing and unfettered access to \u201csome of the\n B.\nmost sensitive personal information imaginable.\u201d Id. at 777\n(internal quotation marks omitted). Consequently, \u201c[m]oney Turning to Parts I through III of Judge Heytens's opinion,\ndamages cannot rectify this invasion of privacy.\u201d Id. at 778 I concur in those aspects of the opinion for the following\n(citing numerous persuasive authorities). And waiting for a reasons. Part I is just a succinct and unobjectionable\nreparative permanent injunction \u201clets the proverbial genie discussion of the background of this matter.\nout of the bottle,\u201d such that \u201cthe plaintiffs will already\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 28\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 31 of 36\n\nPart II rightly abrogates the mathematical standard that Finally, I briefly address the opinions of my friends\nwas created from whole cloth by Judge Richardson in a Judge Wilkinson, Judge Richardson, and Judge Quattlebaum.\nsimilar DOGE case \u2014 American Federation of Teachers v. As previously mentioned, Judge Wilkinson and Judge\nBessent, 152 F.4th 162, 169-71 (4th Cir. 2025) (\u201cAFT\u201d) \u2014 Richardson assert that the Supreme Court's stay absolutely\nfor analysis of the likelihood of success on the merits in stay requires our Court to vacate the district court's preliminary\nand preliminary injunction proceedings. I have steadfastly injunction. But pursuant to Judge Richardson's opinion, they\nadvocated rejecting that baseless heightened standard, see, would vacate the preliminary injunction in any event, on the\ne.g., id. at 178-79 (King, J., dissenting), and I am relieved that premise that the plaintiffs have failed to establish Article III\nour Court is taking the opportunity to do so today. Whether standing to sue and have failed to make an adequate showing\nthe merits of the preliminary injunction are being reviewed of irreparable harm based on the erroneous original record.\non the basis of the erroneous original record (as Judge Additionally, Judge Richardson and Judge Quattlebaum seek\nHeytens does) or the corrected record (as I would do), \u201cwe to defend the heightened mathematical standard that was\ncannot decide whether the district court abused its discretion conjured up by Judge Richardson in AFT.\nwithout ensuring it applied the correct legal standards.\u201d See\nante \u2013\u2013\u2013\u2013 n.1 (citation modified). In Part II of his opinion, *33 My views on the bulk of those issues \u2014 Judge\nJudge Heytens confirms that the district court appropriately Richardson's mathematical standard, Article III standing to\napplied the traditional Winter standard and in no way erred by sue, and irreparable harm \u2014 have already been specified\nfailing to utilize Judge Richardson's mathematical standard. herein. Again, I concur in Judge Heytens's opinion insofar as\nId. (\u201cBecause we disagree with (and abrogate) the relevant he rejects the improper mathematical standard and confirms\nportions of AFT, we conclude the district court committed no the plaintiffs' Article III standing to sue, but I dissent from his\nlegal error in this regard.\u201d). opinion insofar as he assesses the merits of the preliminary\n injunction on the basis of the erroneous original record\nAs for Part III of Judge Heytens's opinion, it correctly and concludes that the district court erred in crediting the\nrules that the plaintiffs possess Article III standing to sue, plaintiffs' showing of irreparable harm.\nabrogating the contrary and erroneous standing ruling in\nAFT, see 152 F.4th at 171-74. Importantly, when evaluating I thus now focus on the issue of whether the Supreme Court's\nstanding, a court \u201cmust look to the facts at the time the stay absolutely requires our Court to vacate the district court's\ncomplaint was filed.\u201d See Wild Va. v. Council on Env't preliminary injunction. According to Judge Wilkinson and\nQuality, 56 F.4th 281, 293 (4th Cir. 2022). Thus, for purposes Judge Richardson, it does because of the overlap between\nof the standing inquiry, Judge Heytens properly considers the Nken stay factors and the Winter preliminary injunction\nthe plaintiffs' theory of the case when it was initiated, i.e., standard. I disagree with their theory for two reasons.\n\u201cthat handing over non-anonymized and highly sensitive\ninformation to DOGE was itself unlawful.\u201d See ante \u2013\u2013\u2013\u2013 First, the proper outcome of this appeal cannot possibly be\n(recognizing that the plaintiffs' original theory \u201cwas not preordained, in that the Supreme Court had to rely on the\nthat DOGE had misused the information or disclosed it erroneous original record in issuing its stay ruling, while\n(accidentally or otherwise) to malicious actors\u201d). we must assess the merits of the preliminary injunction on\n the basis of the corrected record. Simply put, the facts now\nTo be sure, the evidence in the corrected record \u2014 that DOGE known are materially different from the facts considered by\naffiliates actually have misused and improperly disclosed the Supreme Court, foreclosing any notion that the Court's\npersonal information contained in SSA records \u2014 would Nken stay analysis controls our Winter preliminary injunction\nsupport an even stronger theory with respect to Article III assessment.\nstanding to sue. Nevertheless, as Judge Heytens recognizes\nin Part III of his opinion, the plaintiffs have established their Indeed, neither Judge Wilkinson nor Judge Richardson has\nstanding even without such a theory. a satisfying response to this obvious problem with their\n theory. Each instead insists that our Court must consider the\n erroneous original record (as the Supreme Court did when\n it entered its stay), latching onto the groundless statement in\n III.\n Judge Heytens's opinion that \u201cour task in this appeal is to\n review [the erroneous original record, as] the record that was\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 29\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 32 of 36\n\nbefore the district court at the time the preliminary injunction *34 I write to voice my disagreement with the separate\nwas entered.\u201d See ante \u2013\u2013\u2013\u2013 n.8 (internal quotation marks opinions of my fine concurring colleagues Judge Wilkinson\nomitted). and Judge Richardson. Together, they advocate a step that\n judges need not take, and in my view, should not take. That's\nAs for my second reason for disagreeing with the theory because by treating the Supreme Court's short interim order\nadvanced by Judge Wilkinson and Judge Richardson, I would in Trump v. Boyle as setting precedent, they blur a line\nnot believe us to be bound by the Supreme Court's stay even the Supreme Court itself has carefully preserved\u2014the line\nif there had been no corrections to the record after that stay between provisional relief and precedential lawmaking. 2\nwas entered. That is because \u2014 notwithstanding that there is\noverlap \u2014 there are also key distinctions between the Nken 2 My colleague Judge Wilkinson suggests that\nstay factors and the Winter preliminary injunction standard. In\n this opinion \u201ccreeps too near the water's edge\nthis regard, I largely rely on the cogent opinion of my friend\n of defiance for [his] comfort.\u201d J. Wilkinson,\nJudge Wynn, which I am pleased to join.\n Concurring Op. at \u2013\u2013\u2013\u2013. That accusation mistakes\n disagreement for insubordination. To insist that law\nI add only that I reject the proposition advanced by Judge\n be reasoned rather than be inferred from silence\nWilkinson and Judge Richardson that, in the wake of the\n is not defiance\u2014it is fidelity. If anything creeps\nSupreme Court's unexplained stay decision, our options are\n towards the \u201cwater's edge,\u201d it is the notion that\nlimited to either (1) summarily vacating the preliminary\n lower courts must divine binding doctrine from\ninjunction or (2) choosing some basis for a vacatur. That\n orders that say nothing of the kind.\nproposition may seem reasonable to Judge Wilkinson, Judge\n To be sure, our judicial role is not advanced\nRichardson, and my colleagues who have joined their\n by casting disagreement in tones of reproach.\nopinions, but none of them would uphold the preliminary\n The question before us is not one of collegial\ninjunction anyway.\n disposition, but of legal obligation. On that\n question, clarity is preferable to caution, and\nI, on the other hand, have discerned no meritorious ground for\n reasoning to rhetoric.\nvacating the preliminary injunction. As such, I would see it as\nan abdication of my commission as an Article III judge and In fact, the Supreme Court could not have been clearer on\na betrayal of my conscience to rubber stamp a vacatur or to that point: \u201c[O]ur interim orders are not conclusive as to\nconcoct an excuse for one. the merits ....\u201d Trump v. Boyle, \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, 145 S. Ct.\n 2653, 2654, 222 L.Ed.2d 1181 (2025). Those words are not a\n rhetorical aside. They reflect a long-settled understanding of\n the judicial role. Interim orders exist to manage risk, preserve\n IV.\n institutional interests, and prevent irreparable harm while\nPursuant to the foregoing, I concur in Parts I through III of legal questions mature through the ordinary appellate process.\nJudge Heytens's opinion. I dissent, however, from Part IV They are not designed to announce governing law, and the\nof the opinion and from the resultant judgment of our en Court has never said they do.\nbanc Court vacating the preliminary injunction because of\npurported error by the district court. Again, I commend the My concurring colleagues rely on the Supreme Court's\nwork of the district court and would affirm the preliminary statement in Boyle that interim orders \u201cinform how a court\ninjunction. should exercise its equitable discretion in like cases.\u201d 145\n S. Ct. at 2654. That's true\u2014but it is not enough. To inform\n discretion is not to control it. Equity has always allowed room\nWYNN, Circuit Judge, writing separately, with whom Judges for judgment, nuance, and factual distinction. But converting\nKING, THACKER, BENJAMIN, and BERNER join: 1 guidance into commands drains equity of its very character\n1 I join in Parts I through III of Judge Heytens and substitutes rigidity where flexibility was intended. 3\n opinion but not in Part IV, choosing instead to join\n in Judge King's well-reasoned opinion. 3 My good friend Judge Wilkinson expresses his\n regret for this opinion's \u201crhetorical assault upon the\n Supreme Court.\u201d J. Wilkinson, Concurring Op. at\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 30\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 33 of 36\n\n \u2013\u2013\u2013\u2013. But it surely is not an \u201cassault\u201d upon the\n Supreme Court to take it at its word. When the With these preliminary thoughts in mind, I now turn to the\n Supreme Court tells us its interim orders are not particular interim order in this matter.\n conclusive as to the merits, we do not honor the\n Court by pretending otherwise. In plainer words,\n respect for the Supreme Court does not license\n I.\n embellishment. Instead, it requires adherence to\n what the Court has said\u2014not what we might wish\n it had said. A.\nThere is a deeper concern. Interim orders are frequently As an inferior court, we are bound by the Supreme Court's\nissued without full briefing and without oral argument. That commands. Payne v. Taslimi, 998 F.3d 648, 655 n.4 (4th Cir.\ncounsels caution, not expansion. To treat interim orders as 2021). But a judicial opinion can be \u201cbinding\u201d in several\nbinding precedent abandons our long-held jurisprudence of ways.\ndeciding constitutional law through reasoned opinions, not\nemergency motions made under intense time pressure. More Of course, when the Supreme Court issues an opinion that\nprofoundly, it would weaken the public's confidence in the contains analysis, we are bound both by \u201cthe result\u201d and by\nintegrity of our judicial system's commitment to deliberation the reasoning that was \u201cnecessary to that result.\u201d Seminole\nand transparency. 4 Tribe of Fla. v. Florida, 517 U.S. 44, 67, 116 S.Ct. 1114, 134\n L.Ed.2d 252 (1996); see Payne, 998 F.3d at 655.\n4 My friend Judge Wilkinson indicates that failing to\n treat interim orders as binding, \u201crisks public faith And even when a Supreme Court opinion contains no\n in the judicial process.\u201d J. Wilkinson, Concurring reasoning at all, it is binding as to the outcome of an issue\n Op. at \u2013\u2013\u2013\u2013. But the greater risk lies in quite the in a particular case. See Ramos v. Louisiana, 590 U.S. 83,\n opposite course. A system in which unexplained 104\u201305, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020); Mandel v.\n orders silently control future cases is not one of Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199\n uniformity, but of opacity. In other words, law that (1977) (holding that summary affirmances \u201cprevent lower\n cannot be explained cannot be applied consistently courts from coming to opposite conclusions on the precise\n \u2014and what cannot be consistently applied, cannot issues presented and necessarily decided by those actions\u201d).\n sustain public trust.\n Yet those summary rulings \u201cdo not have the same precedential\n *35 And even if Boyle reflects an expansion in the use and value as does an opinion of [the Supreme] Court after briefing\nimportance of interim orders, as my concurring colleagues and oral argument on the merits.\u201d Lunding v. N.Y. Tax Appeals\nsuggest, that expansion would in no way apply to being able Tribunal, 522 U.S. 287, 307, 118 S.Ct. 766, 139 L.Ed.2d\nto predict how the Supreme Court will treat these issues 717 (1998) (cleaned up). In part, that is because \u201c[i]t is\nin future years. Nothing in their unexplained and summary usually a judicial decision's reasoning\u2014its ratio decidendi\u2014\nnature confers interim orders the status of precedent that that allows it to have life and effect in the disposition of\na reasoned opinion commands in this Court. They bind no future cases.\u201d Ramos, 590 U.S. at 104, 140 S.Ct. 1390. Indeed,\nfuture Justice, constrain no future Court, and provide no the Supreme Court has held that certain issues cannot be\nprinciple capable of consistent application. In short, interim made precedential through implication, even if necessary to\norders announced without reasons can just as easily be the judgment. See, e.g., Ariz. Christian Sch. Tuition Org. v.\nignored without explanation\u2014thereby undermining public Winn, 563 U.S. 125, 144\u201345, 131 S.Ct. 1436, 179 L.Ed.2d\nconfidence and eroding trust in the integrity of judicial 523 (2011) (holding that decisions omitting a jurisdictional\ndecision making. discussion do \u201cnot stand for the proposition that no defect\n existed,\u201d and the \u201cCourt would risk error if it relied on\nIf anything risks aggrandizing the lower courts, it is the assumptions that have gone unstated and unexamined\u201d).\ninvitation to treat silence as license\u2014to fill gaps in Supreme\nCourt reasoning with our own assumptions about what must Then, there is dicta. Dicta of the Supreme Court, \u201calthough\nhave been decided. That is not deference, it is judicial activism non-binding,\u201d has \u201cconsiderable persuasive value.\u201d In re\nat its worst. Bateman, 515 F.3d 272, 282 (4th Cir. 2008). At times, we have\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 31\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 34 of 36\n\neven treated \u201ccarefully considered language of the Supreme\nCourt\u201d as \u201cauthoritative,\u201d even if it is \u201ctechnically dictum.\u201d Of course, an interim order has legal effect\u2014it binds us as\nWynne v. Town of Great Falls, 376 F.3d 292, 298 n.3 (4th Cir. to its result. But to say that an interim order has effect is not\n2004) (citation omitted). to say that it has reasoning. And without reasoning, its reach\n extends no further than its result.\n\n\n B.\n II.\nThe question here is how to treat the short stay order by the\nSupreme Court. For some of my colleagues, this silence speaks volumes.\n Specifically, in their concurring opinions, Judge Wilkinson\nWe are, of course, bound by the outcome of the order: and Judge Richardson conclude that the Supreme Court has\nThe preliminary injunction is stayed. Our opinion on the told us that this particular stay order compels us to reverse on\ntiming of any injunctive relief is irrelevant\u2014that has practical appeal. I disagree in two important respects.\nimplications for our review because our decision today cannot\nchange the fact that the injunction \u201ccannot currently protect\nanyone from anything[.]\u201d Maj. Op. at \u2013\u2013\u2013\u2013.\n A.\n\nBut as to binding reasoning, there is none in the order, which First, my colleagues point to Trump v. Boyle, a stay order in an\nhas only a few sentences to review. First, the order recites\n unrelated case, 5 to mean that we must reverse here. \u2013\u2013\u2013 U.S.\nthe legal standard under Nken v. Holder, 556 U.S. 418, 129\n \u2013\u2013\u2013\u2013, 145 S. Ct. 2653, 222 L.Ed.2d 1181 (2025). But that is\nS.Ct. 1749, 173 L.Ed.2d 550 (2009). Soc. Sec. Admin. v. Am.\n a more liberal reading than the text of that order can support.\nFed'n of State, Cnty., & Mun. Emps., \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, 145 S.\nCt. 1626, 1626\u201327, 222 L.Ed.2d 1068 (2025). Then, it states\n 5\nthe outcome: I assume, for the sake of argument, that Boyle is\n an applicable precedent. Yet I am not convinced,\n as Judge Richardson is, that a separate opinion by\n two Justices in yet another interim decision can\n *36 After review, we determine\n make clear that the Court's interim orders have\n that the application of these factors\n precedential effect in this manner. J. Richardson,\n in this case warrants granting the\n Concurring Op. at \u2013\u2013\u2013\u2013 n.3 (citing Nat'l Institutes\n requested stay. We conclude that,\n of Health v. Am. Pub. Health Ass'n, \u2013\u2013\u2013 U.S.\n under the present circumstances, SSA\n \u2013\u2013\u2013\u2013, 145 S. Ct. 2658, 222 L.Ed.2d 1191 (2025)\n may proceed to afford members of the\n (Gorsuch, J., concurring)). Indeed, many of our\n SSA DOGE Team access to the agency\n former colleagues on the bench have collectively\n records in question in order for those\n stated that \u201c[u]nexplained interim orders do not\n members to do their work.\n bind courts in different cases\u201d and that an\n interim order can only meaningfully inform judicial\n discretion if it \u201cgives reasons.\u201d Brief of Amici\nId. at 1627. Finally, it instructs us on the length of the stay,\n Curiae of Former Federal and State Judges in\nwhich will remain in place \u201cpending the disposition of the\n Support of Respondents at 6, Noem v. Doe, \u2013\u2013\u2013\nappeal\u201d in this Court and the \u201cdisposition of a petition for a\n S.Ct.\u2013\u2013\u2013\u2013 (Mar. 5, 2026) (No. 25-2995), 2026 WL\nwrit of certiorari.\u201d Id.\n 679177, at *6.\n\nThe entirety of the order's reasoning is found in the phrases In Boyle, the Court explained that its interim orders were\n\u201c[a]fter review\u201d and \u201cunder the present circumstances.\u201d It \u201cnot conclusive as to the merits,\u201d but rather should \u201cinform\nincludes no analysis, or even an indication of which legal how a court should exercise its equitable discretion in like\nfactors the Supreme Court considered relevant. There is cases.\u201d 145 S. Ct. at 2654. There, the Court pointed to a\nsimply nothing in the order that compels the outcome of our previous interim order's conclusion about the government's\nreview here. risk of harm. Id. Here, we have no such binding \u201creflect[ions]\u201d\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 32\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 35 of 36\n\nregarding the Court's judgment. Id. We are left, instead, to be granting or denying the stay, which will \u201coperate[ ] upon the\nas \u201cinformed\u201d as the outcome of the order can make us. Id. 6 judicial proceeding itself\u201d rather than on the parties. Nken,\n 556 U.S. at 428, 129 S.Ct. 1749; see id. at 433, 129 S.Ct. 1749.\n6 My colleague Judge Wilkinson invokes the\n The question answered by a preliminary injunction is whether\n language of \u201cidentical twins,\u201d as though factual\n a court should \u201ctell[ ] someone what to do or not to do\u201d\n similarity alone compels doctrinal identity. J.\n pending litigation on the merits. See id. at 428, 129 S.Ct.\n Wilkinson, Concurring Op. at \u2013\u2013\u2013\u2013 (\u201cJust\n 1749 (explaining that a preliminary injunction is \u201cdirected at\n as identical DNA sequences produce identical\n someone\u201d and \u201cgoverns that party's conduct\u201d). It is usually\n twins, identical circumstances should produce\n within the discretion of the district court. Frazier v. Prince\n identical judicial dispositions.\u201d). But law is not\n George's County, 86 F.4th 537, 543 (4th Cir. 2023).\n genetics. It does not replicate automatically from\n shared circumstances. It proceeds from articulated\n In answering those questions, the standard that the Supreme\n principle. Where no principle is given, there is\n Court applies during a stay application review does not\n nothing to replicate.\n match the standard we apply when reviewing the appeal of a\n And indeed, the circumstances are not identical.\n preliminary injunction.\n The procedural posture has changed from the\n review of a stay application to the review of\n First, the Supreme Court's review encompasses\n a preliminary injunction. As the next section\n considerations that are unavailable to us. When it evaluates\n explains, the questions at those stages are different.\n likelihood of success on the merits under Nken, it also\n That distinction matters for determining whether\n considers its own future intentions, including whether there\n the Supreme Court has already answered a\n is \u201ca reasonable probability\u201d that it will grant certiorari and\n question, despite my colleague Judge Wilkinson's\n \u201ca fair prospect\u201d that the Court will reverse. Hollingsworth\n aside that each stage involves \u201capproximately the\n v. Perry, 558 U.S. 183, 190, 130 S.Ct. 705, 175 L.Ed.2d\n same legal analysis.\u201d J. Wilkinson, Concurring Op.\n 657 (2010); see Does 1-3 v. Mills, \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, 142 S.\n at \u2013\u2013\u2013\u2013 n.3.\n Ct. 17, 18, 211 L.Ed.2d 243 (2021) (Barrett, J., concurring)\n (explaining that this factor includes \u201ca discretionary judgment\n about whether the Court should grant review in the case\u201d).\n B.\n Without any explanation and before the Supreme Court's\n *37 I also depart from my concurring colleagues on review of the injunction, we cannot know if it based its\nhow they view the overlap of the standards for stays and decision on its intention to create new law. We, of course, must\npreliminary injunctions more generally. apply the current law. See Agostini v. Felton, 521 U.S. 203,\n 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).\nMy colleagues assert that the question before this Court and\nthe one that was before the Supreme Court are the same Second, though the Nken and Winter factors have \u201csubstantial\nand that a \u201cparallel\u201d standard applies. See J. Richardson, overlap,\u201d they are not \u201cone and the same[.]\u201d Nken, 556\nConcurring Op. at \u2013\u2013\u2013\u2013 (asserting that the order \u201calready U.S. at 434, 129 S.Ct. 1749. Consider, for example, success\nanswered\u201d the same question \u201cbefore us in this very case\u201d); J. on the merits. When considering a preliminary injunction,\nWilkinson, Concurring Op. at \u2013\u2013\u2013\u2013 \u2013 \u2013\u2013\u2013\u2013 (asserting that the succeeding on the merits means succeeding on the ultimate\n\u201cbinding authority\u201d of the stay order is \u201ceasy to see\u201d because merits of the case. See Winter v. Nat. Res. Def. Council, Inc.,\nthe standard we apply today is \u201cparallel ... to the one the Court 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). But a\nemployed in its stay order\u201d). court considering a stay is two levels deep in its probabilistic\n determination, asked to divine the future from a crystal ball\nBut the stay order neither answered the same question nor within a crystal ball: It predicts whether the stay applicant\napplied the same standard as we do today. is likely to succeed on appeal by showing that the district\n court erred in applying the Winter factors, which themselves\nThe question answered by a stay order is whether a include a prediction about success on the ultimate merits.\npreliminary injunction should be enforceable pending appeal. See Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1316, 104\nThat determination is within the discretion of the court S.Ct. 3, 77 L.Ed.2d 1417 (1983). Thus, the Supreme Court\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 33\n\fAmerican Federation of State, County and Municipal Employees,..., --- F.4th ---- (2026)\n USCA Case #26-5006 Document #2168581 Filed: 04/14/2026 Page 36 of 36\n\npredicted\u2014but did not decide\u2014the result of the appeal of the v. U.S. Citizenship & Immigr. Servs., 981 F.3d 742, 749, 763\npreliminary injunction. (9th Cir. 2020); United States v. City of New Haven, 447 F.2d\n 972, 973 (2d Cir. 1971).\n *38 Most importantly, collapsing these standards would\njettison \u201cthe whole idea\u201d of a stay, which is \u201cto hold the\nmatter under review in abeyance\u201d until the appellate court has III.\n\u201csufficient time to decide the merits\u201d of the appeal. Nken, 556\nU.S. at 432, 129 S.Ct. 1749. Thus, a stay should \u201cpreserve the Ultimately, our discussion reflects a prudential concern that\navailability of a subsequent review,\u201d not \u201crender it redundant\u201d we not \u201ccultivate the appearance\u201d of defiance. CASA, 971\nby effectively deciding its outcome. Id.; cf. Cook County v. F.3d at 230. With rather strong rhetoric, my friend Judge\nWolf, 962 F.3d 208, 234 (7th Cir. 2020) (\u201cThere would be Wilkinson says, \u201cMy colleagues jump too quickly onto the\nno point in the merits stage if an issuance of a stay must bandwagon of those who condemn each and every use of the\nbe understood as a sub silentio disposition of the underlying Supreme Court's emergency docket, no matter how justified.\u201d\ndispute.\u201d). J. Wilkinson, Concurring Op. at \u2013\u2013\u2013\u2013. But my view does\n not condemn the emergency docket\u2014it simply declines to\nIndeed, the stay order here explicitly contemplates our review. transform it. The emergency docket serves an important\nAm. Fed'n, 145 S. Ct. at 1627 (staying the preliminary function\u2014resolving urgent disputes. It does not, without\ninjunction \u201cpending the disposition of the appeal in the United more, create precedent. To insist upon that distinction is not\nStates Court of Appeals for the Fourth Circuit\u201d). Had the a criticism, it is a classification. 7\nSupreme Court instead wanted to grant certiorari before\njudgment, it could have done so. Sup. Ct. Rule 11; see, 7 In a final nonsubstantive retort, my dear friend\ne.g., Noem v. Doe, \u2013\u2013\u2013 U.S. \u2013\u2013\u2013\u2013, \u2013\u2013\u2013\u2013, \u2013\u2013\u2013 S.Ct. \u2013\u2013\u2013\u2013,\n Judge Wilkinson concludes with the reminder that\n\u2013\u2013\u2013 L.Ed.2d \u2013\u2013\u2013\u2013, 2026 WL 731088, at *1 (Mar. 16, 2026)\n \u201c[a] certain modesty is required of our station.\u201d J.\n(treating an application for stay as a petition for a writ of\n Wilkinson, Concurring Op. at \u2013\u2013\u2013\u2013. But modesty\ncertiorari before judgment and granting the petition). It did\n does not consist of surrendering judgment where\nnot.\n the Supreme Court has not exercised its own. The\n obligation of an inferior court is not to anticipate\nTo be sure, a stay may be a strong signal that the panel will\n commands, but to apply them. See Mironescu v.\nultimately reverse the injunction. But it does not compel that\n Costner, 480 F.3d 664, 676\u201377 (4th Cir. 2007)\noutcome because the stay analysis involves \u201cpredicting rather\n (\u201cOur task is not to predict what the Supreme Court\nthan deciding\u201d the outcome of the appeal. E. Bay Sanctuary\n might do but rather follow what it has done.\u201d)\nCovenant v. Biden, 993 F.3d 640, 660 (9th Cir. 2021); see, e.g.,\n (cleaned up). Where none is given, our duty is not\nDist. 4 Lodge of the Int'l Ass'n of Machinists v. Raimondo,\n diminished\u2014it is engaged.\n40 F.4th 36, 38 (1st Cir. 2022) (after the court granted a\nstay, \u201cthe handwriting was on the wall for the appeal itself,\u201d *39 Here, we have an unclear signal from the Supreme Court\nyet \u201cnevertheless, the possibility remained\u201d for success). In about what it may do in the future. Whatever my colleagues\nsimpler terms, a signal, however strong, is not a command. may think about the merits of this particular preliminary\nCourts do not adjudicate by semaphore. Binding law speaks injunction and the weight we may give to the Supreme Court's\nwith words, not signals. stay, the order did not resolve this appeal entirely, and we\n are \u201cduty-bound to give [it] a thorough and conscientious\nA review of stays and subsequent reviews in the intermediate review.\u201d CASA, 971 F.3d at 230.\nappellate courts makes clear the absurdity of a stay that\ncompels the outcome of an appeal. Indeed, many courts\n All Citations\nhave subsequently affirmed a preliminary injunction that was\npreviously stayed. See, e.g., City & County of San Francisco --- F.4th ----, 2026 WL 969670\n\nEnd of Document \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works.\n\n\n\n\n \u00a9 2026 Thomson Reuters. No claim to original U.S. Government Works. 34\n\f","ocr_status":2,"date_upload":"2026-04-14T09:25:38.461984-07:00","document_number":"2168581","attachment_number":null,"pacer_doc_id":"01208840508","is_available":true,"is_free_on_pacer":null,"is_sealed":false,"document_type":1,"description":"Letter Filed","acms_document_guid":""}],"date_created":"2026-04-14T09:25:37.982855-07:00","date_modified":"2026-04-14T09:25:37.991652-07:00","date_filed":"2026-04-14","time_filed":null,"entry_number":2168581,"recap_sequence_number":"2026-04-14.001","pacer_sequence_number":null,"description":"LETTER [2168581] pursuant to FRAP 28j advising of additional authorities filed by Center for Taxpayer Rights, Communications Workers of America, AFL-CIO, Main Street Alliance and National Federation of Federal Employees, IAM AFL-CIO [Service Date: 04/14/2026 ] [26-5006] (Brewer, Simon)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/460252914/","id":460252914,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/475307909/","id":475307909,"tags":[],"absolute_url":"/docket/72135139/2167791/center-for-taxpayer-rights-v-irs/","date_created":"2026-04-09T11:26:07.369218-07:00","date_modified":"2026-04-10T08:27:30.954796-07:00","sha1":"c516f86cfb105aee2923b6d2933d29e151a4841c","page_count":41,"file_size":304954,"filepath_local":"recap/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.2167791.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.2167791.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"USCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 1 of 41\n\n [SCHEDULED FOR ORAL ARGUMENT ON MAY 12, 2026]\n\n No. 26-5006\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n CENTER FOR TAXPAYER RIGHTS, et al.,\n\n Plaintiffs-Appellees,\n\n v.\n\n INTERNAL REVENUE SERVICE, et al.,\n\n Defendants-Appellants.\n\n\n On Appeal from the United States District Court\n for the District of Columbia\n\n\n REPLY BRIEF FOR APPELLANTS\n\n\n BRETT A. SHUMATE\n Assistant Attorney General\n ERIC D. MCARTHUR\n Deputy Assistant Attorney General\n AUGUST FLENTJE\n JACOB CHRISTENSEN\n Attorneys, Appellate Staff\n Civil Division, Room 7525\n U.S. Department of Justice\n 950 Pennsylvania Avenue NW\n Washington, DC 20530\n (202) 307-0878\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 2 of 41\n\n\n\n TABLE OF CONTENTS\n\n Page\n\nTABLE OF AUTHORITIES ...................................................................... vi\n\nGLOSSARY ................................................................................................ xi\n\nARGUMENT ............................................................................................... 1\n\nI. Plaintiffs have no likelihood of success on the merits ..................... 1\n\n A. Plaintiffs lack Article III standing .......................................... 1\n\n 1. The Center lacks organizational standing..................... 1\n\n 2. Plaintiffs lack associational standing ............................ 7\n\n B. Plaintiffs do not challenge a final agency action\n reviewable under the APA ..................................................... 16\n\n C. Plaintiffs\u2019 APA claim is foreclosed by the Internal\n Revenue Code\u2019s exclusive remedy for \u00a7 6103 violations ....... 20\n\n D. Plaintiffs\u2019 APA claim fails on the merits............................... 21\n\n 1. Section 6103 .................................................................. 21\n\n 2. Arbitrary and capricious............................................... 31\n\nII. Plaintiffs failed to establish the remaining preliminary\n injunction factors ............................................................................. 33\n\nCONCLUSION ......................................................................................... 34\n\nCERTIFICATE OF COMPLIANCE\n\nADDENDUM\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 3 of 41\n\n\n\n TABLE OF AUTHORITIES\n\nCases: Page(s)\n\nAetna Health, Inc. v. Davila,\n 542 U.S. 200 (2004) ............................................................................. 21\n\nAmerican Fed\u2019n of Gov\u2019t Emps. v. Reagan,\n 870 F.2d 723 (D.C. Cir. 1989) ............................................................. 13\n\nAmerican Fed\u2019n of Teachers v. Bessent,\n 152 F.4th 162 (4th Cir. 2025) .............................................................. 15\n\nBiden v. Texas,\n 597 U.S. 785 (2022) ............................................................................. 17\n\nCentro de Trabajadores Unidos v. Bessent,\n 167 F.4th 1218 (D.C. Cir. 2026) ....................... 9, 10, 11, 16, 19, 20, 22,\n ....................................................................................... 23, 27, 28, 31, 32\n\nChamber of Com. v. EPA,\n 642 F.3d 192 (D.C. Cir. 2011) ............................................................... 9\n\nClapper v. Amnesty Int\u2019l USA, 568 U.S. 398,\n 568 U.S. 398 (2013) ........................................................................... 6, 7\n\nDepartment of Commerce v. New York,\n 588 U.S. 752 (2019) ........................................................................... 4, 5\n\nElectronic Privacy Info. Ctr. v. U.S. Dep\u2019t of Com.,\n 928 F.3d 95 (D.C. Cir. 2019) ......................................................... 10, 11\n\nFood & Drug Admin. v. Alliance for Hippocratic Med.,\n 602 U.S. 367 (2024) ....................................................... 1, 2, 3, 4, 5, 6, 7\n\nFood & Water Watch, Inc. v. Vilsack,\n 808 F.3d 905 (D.C. Cir. 2015) ....................................................... 11, 13\n\nFund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,\n 460 F.3d 13 (D.C. Cir. 2006) ............................................................... 32\n ii\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 4 of 41\n\n\n\nHavens Realty Corp. v. Coleman,\n 455 U.S. 363 (1982) ............................................................... 1, 2, 3, 4, 5\n\nKamal v. J. Crew Grp., Inc.,\n 918 F.3d 102 (3d Cir. 2019) ................................................................. 15\n\nLoper Bright Enters. v. Raimondo,\n 603 U.S. 369 (2024) ............................................................................. 31\n\nLujan v. National Wildlife Fed\u2019n,\n 497 U.S. 871 (1990) ....................................................................... 25, 32\n\nMonsanto Co. v. Geertson Seed Farms,\n 561 U.S. 139 (2010) ............................................................................... 7\n\nSummers v. Earth Island Inst.,\n 555 U.S. 488 (2009) ................................................................................ 9\n\nTransUnion LLC v. Ramirez,\n 594 U.S. 413. (2021) ............................................................................ 14\n\nStatutes:\n\n5 U.S.C. \u00a7 551(4) ............................................................................... 17, 18\n\n5 U.S.C. \u00a7 704 ......................................................................................... 31\n\n8 U.S.C. \u00a7 1253(a)(1) .................................................................... 27-28, 30\n\n8 U.S.C. \u00a7 1305(a) ................................................................................... 15\n\n26 U.S.C. \u00a7 441 ........................................................................................ 26\n\n26 U.S.C. \u00a7 6103 ................................................................................ 14, 20\n\n26 U.S.C. \u00a7 6103(i)(2) .......................................... 16, 18, 20, 21-22, 23, 24,\n ........................................................................... 25, 27, 28, 29, 31, 32, 33\n\n26 U.S.C. \u00a7 6103(i)(2)(A)(ii) .................................................................... 29\n\n26 U.S.C. \u00a7 6103(i)(2)(B)(i) ............................................................... 22, 24\n iii\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 5 of 41\n\n\n\n26 U.S.C. \u00a7 6103(i)(2)(B)(ii) .................................................................... 26\n\n26 U.S.C. \u00a7 6103(i)(2)(B)(iv) ............................................................. 27, 28\n\n26 U.S.C. \u00a7 6110(f)(3)(A) ......................................................................... 21\n\n26 U.S.C. \u00a7 7431 ...................................................................................... 20\n\n26 U.S.C. \u00a7 7431(a) ................................................................................. 20\n\n26 U.S.C. \u00a7 7431(b) ................................................................................. 21\n\n26 U.S.C. \u00a7 7431(c) .................................................................................. 21\n\n26 U.S.C. \u00a7 7431(d) ................................................................................. 21\n\nRegulations:\n\n26 C.F.R. \u00a7 301.6103(i)-1(b) .................................................................... 30\n\n26 C.F.R. \u00a7 301.6212-2(a) ....................................................................... 27\n\n\n\n\n iv\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 6 of 41\n\n\n\n GLOSSARY\n\nA Appendix\n\nAPA Administrative Procedure Act\n\nDHS U.S. Department of Homeland Security\n\nICE U.S. Immigration and Customs Enforcement\n\nIRS Internal Revenue Service\n\nITIN Individual Taxpayer Identification Number\n\nMOU Memorandum of Understanding\n\n\n\n\n v\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 7 of 41\n\n\n\n ARGUMENT\n\n The government\u2019s opening brief demonstrates the errors in the\n\ndistrict court\u2019s order, and plaintiffs\u2019 brief repeats those errors. For the\n\nreasons below and in our opening brief, the court\u2019s order should be\n\nvacated.\n\nI. Plaintiffs have no likelihood of success on the merits\n\n A. Plaintiffs lack Article III standing\n\n 1. The Center lacks organizational standing\n\n Plaintiffs\u2019 claim IRS has adopted an unlawful \u201cpolicy\u201d of sharing\n\ntaxpayers\u2019 address information, which may cause some taxpayers to be\n\nless willing to engage the Center\u2019s services and has thus injured,\n\nindirectly, the Center. (Br. 19-20.) As demonstrated in our opening\n\nbrief (at 22-29), the Center\u2019s theory of indirect injury, causation, and\n\nredressability fails to establish standing under Article III.\n\n In its effort to show injury-in-fact, the Center relies (Br. 18, 20-21)\n\non Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), and\n\nsubsequent decisions of this Court applying Havens that predate Food\n\n& Drug Admin. v. Alliance for Hippocratic Med. (\u201cAlliance\u201d), 602 U.S.\n\n367 (2024), for the broad proposition that it may demonstrate injury\n\nmerely by showing IRS\u2019s action indirectly \u201cimpedes the Center\u2019s\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 8 of 41\n\n\n\nmission\u201d to serve taxpayers and \u201cthe Center has used its resources to\n\ncounteract\u201d that alleged harm. (Br. 20.) Alliance makes clear, however,\n\nthat this is the wrong standard and that an organization is not injured\n\nsimply because the action makes implementing its mission more\n\nchallenging such that the organization diverts resources to counteract\n\nthe action. 602 U.S. at 394. Under Alliance, a plaintiff organization\n\nalleging standing under Havens must show that the challenged action\n\n\u201cdirectly affect[s] and interfere[s]\u201d with its \u201ccore business activities.\u201d Id.\n\nat 395.\n\n The Center has not and cannot make that showing. As the\n\nCenter\u2019s own theory of injury confirms (Br. 19-20), no \u201cdirect[ ] ...\n\ninterfere[nce]\u201d has occurred here. Alliance, 602 at 395. IRS\u2019s alleged\n\npolicy of sharing address information with ICE places no restraints or\n\nprohibitions on the Center\u2019s provision of services to taxpayers, nor does\n\nit require the Center (or taxpayers, for that matter) to do or to refrain\n\nfrom doing anything. Instead, according to the Center, IRS\u2019s alleged\n\npolicy has a remote impact on the Center because it \u201cundermines the\n\nconfidence that taxpayers ... have that their data will be protected\u201d; and\n\nthat, in turn, \u201cmakes them less willing to engage with the Center and\n\n\n 2\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 9 of 41\n\n\n\nits low-income taxpayer clinic\u201d; and that, in turn, has resulted in the\n\nCenter \u201cprovid[ing] far fewer services for taxpayers without social\n\nsecurity numbers\u201d; and that, ultimately, \u201cimpedes the Center\u2019s mission\n\nof serving\u201d these taxpayers. (Br. 19-21.) But that kind of indirect\n\ninjury, far removed from IRS\u2019s action and turning on the unfettered\n\nchoices of third parties not before the Court, is not the sort of\n\n\u201cimpediment\u201d Alliance requires, even if it \u201cmakes it more difficult\u201d for\n\nthe Center to achieve its mission. 602 U.S. at 395.\n\n The Center\u2019s alleged injury differs significantly from the kind of\n\ninjury recognized in Havens, on which the Center relies. In Havens, an\n\norganization providing housing counseling services was deprived of\n\ninformation to which it had a statutory right, and on which it relied to\n\nprovide those services, when the owner of apartment complexes\n\nprovided false information about housing availability to the\n\norganization\u2019s employee. 455 U.S. at 368, 373. The apartment owner\u2019s\n\nact of giving false housing information to the organization, on which the\n\norganization relied to provide its services, \u201cdirectly affected and\n\ninterfered with [the organization\u2019s] core business activities\u2014not\n\ndissimilar to a retailer who sues a manufacturer for selling defective\n\n\n 3\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 10 of 41\n\n\n\ngoods to the retailer.\u201d Alliance, 602 U.S. at 395; see Havens, 455 U.S. at\n\n379. To apply Havens\u2019 holding to the Center\u2019s theory of injury here, in\n\nthe absence of any \u201cdirect[ ] ... interfere[nce],\u201d would impermissibly\n\n\u201cextend the Havens holding beyond its context.\u201d Alliance, 602 U.S. at\n\n395.\n\n The Center acknowledges (Br. 21) that IRS\u2019s action does not\n\ndirectly interfere with its activities because any injury to the Center is\n\n\u201cattributable to third-party decisions by [its] clients, not to the IRS.\u201d\n\nUnable to avoid that reality, the Center asks this Court to replace\n\nAlliance\u2019s direct-interference standard for injury-in-fact with a different\n\nprinciple, one that relates to the separate requirement of causation for\n\nArticle III standing\u2014i.e., the principle regarding \u201cthe predictable effect\n\nof Government action on the decisions of third parties. \u201d (Br. 21\n\n(quoting Department of Commerce v. New York, 588 U.S. 752, 768\n\n(2019)).) That response is a red herring.\n\n First, it conflates the injury-in-fact and causation requirements\n\nfor Article III standing. In requiring that a defendant\u2019s action must\n\n\u201cdirectly affect[ ] and interfere[ ]\u201d with the organization\u2019s \u201ccore business\n\nactivities,\u201d Alliance, 602 U.S. at 395, the Supreme Court was\n\n\n 4\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 11 of 41\n\n\n\ndescribing\u2014as it said in the very next sentence\u2014\u201cthe kind of injury\u201d\n\nrequired to show organizational standing. The principle on which the\n\nCenter relies, on the other hand, relates to the separate requirement of\n\ncausation. See Department of Commerce, 588 U.S. at 768. The Center\n\nmust demonstrate both injury-in-fact and causation to establish\n\nstanding, so even if the Center could show causation based on \u201cthe\n\npredictable effect of Government action on the decisions of third\n\nparties, \u201d it must still show the kind of injury required under Alliance\u2019s\n\ndirect-interference standard for injury-in-fact\u2014a showing the Center\n\ncannot make here. Indeed, any other analysis would be an end run\n\naround the key standing principles of Alliance and Havens.\n\n Second, the Center\u2019s theory of causation is speculative in any\n\nevent. \u201cThe causation requirement precludes speculative links\u2014that is,\n\nwhere it is not sufficiently predictable how third parties would react to\n\ngovernment action or cause downstream injury to plaintiffs.\u201d Alliance,\n\n602 U.S. at 383. Here, it is not at all predictable that a purportedly\n\nunlawful IRS policy to share taxpayer address information with ICE\n\nwould result in a decrease in interest for \u201cfree or nominal fee\u201d (Br. 19)\n\nservices provided by the Center\u2014an organization that is purportedly\n\n\n 5\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 12 of 41\n\n\n\n\u201cdedicated to furthering taxpayers\u2019 awareness of and access to taxpayer\n\nrights\u201d (A168). Indeed, one would expect the exact opposite to occur\u2014\n\nthat is, an increase in interest for the Center\u2019s services. A reasonable\n\ntaxpayer cognizant of his legal duty to file and pay taxes, but fearing\n\nthat IRS might unlawfully disclose his address information to ICE,\n\nwould naturally want to be informed about his \u201crights and\n\nresponsibilities under the Internal Revenue Code\u201d\u2014a service the Center\n\nsays it provides for \u201cfree\u201d or a \u201cnominal fee.\u201d (Br. 19.) Only an\n\nirrational taxpayer would intentionally fail to fulfill his legal tax filing\n\nobligations without seeking free or low-cost tax advice and services such\n\nas those the Center purports to offer. The Center\u2019s assertion that IRS\u2019s\n\nalleged policy has caused taxpayers to lose interest in the Center\u2019s\n\nservices defies common sense and rests on pure \u201cspeculation about the\n\nunfettered choices made by independent actors not before the courts.\u201d\n\nAlliance, 602 U.S. at 383 (quoting Clapper v. Amnesty Int\u2019l USA, 568\n\nU.S. 398, 414 n.5 (2013)). Therefore, the Center also fails the causation\n\nrequirement for Article III standing.\n\n The Center\u2019s only other argument for standing is that it has\n\n\u201cundertaken reasonable expenditures to mitigate the substantial risk\u201d\n\n\n 6\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 13 of 41\n\n\n\nof losing federal funding for its low-income taxpayer clinic. (Br. 23.)\n\nBut the Center cannot manufacture standing by expending resources in\n\nresponse to its fear of future harm that is not \u201ccertainly impending.\u201d\n\nClapper, 568 U.S. at 416. Plaintiffs cite Monsanto Co. v. Geertson Seed\n\nFarms, 561 U.S. 139 (2010), but that case does not support any contrary\n\nrule. And unlike the showing made by the plaintiffs in Monsanto, the\n\nCenter has not shown a \u201csubstantial risk\u201d of loss of federal funding in\n\nthe future\u2014let alone that this alleged future injury is \u201ccertainly\n\nimpending\u201d as Clapper requires\u2014for the reasons explained in our\n\nopening brief (at 26-29). Plaintiffs\u2019 brief (at 22-24) serves only to\n\nconfirm and underscore those reasons without offering anything new on\n\nthat score.\n\n 2. Plaintiffs lack associational standing\n\n The membership organization plaintiffs also lack associational\n\nstanding. 1 (See Gov. Br. 30-36.)\n\n\n\n\n 1 The Center has no members and, therefore, cannot show\n\nassociational standing (A1853 n.8), nor can it show third-party standing\nbecause it lacks standing itself, Alliance, 602 U.S. at 393 n.5.\n 7\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 14 of 41\n\n\n\n a. Plaintiffs have failed to show an\n imminent injury in fact\n\n First, plaintiffs have failed to show that even a single identified\n\nmember is likely to suffer an imminent injury in fact from IRS\u2019s alleged\n\naddress-sharing policy. The district court found (A1865) that IRS will\n\ndisclose address information to ICE only for individuals who have an\n\noutstanding order of removal. In our opening brief, we emphasized (at\n\n31-32) that plaintiffs have failed to demonstrate that even a single\n\nmember of any of the plaintiff membership organizations is subject to\n\nan outstanding order of removal and whose information is, therefore,\n\npotentially at risk of being disclosed to ICE. In their brief, plaintiffs do\n\nnot dispute that significant shortcoming of their pleadings and\n\ndeclarations (see Br. 24-27), and it is fatal to plaintiffs\u2019 Article III\n\nstanding here.\n\n Contrary to plaintiffs\u2019 mischaracterization of the government\u2019s\n\nargument, it\u2019s not just that plaintiffs \u201chave not sufficiently identified\n\nparticular members.\u201d (Br. 25 (emphasis added).) More than that,\n\nplaintiffs have failed to demonstrate\u2014or even allege\u2014that any member\n\nis in fact subject to a removal order so that there might be at least some\n\nrisk that IRS could disclose his or her address information to ICE. In\n\n 8\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 15 of 41\n\n\n\nthe absence of plaintiffs identifying at least one member who is likely to\n\nsuffer an imminent injury in fact from IRS\u2019s alleged policy, they cannot\n\nestablish associational standing. Summers v. Earth Island Inst., 555\n\nU.S. 488, 498 (2009) (\u201c[O]ur prior cases ... have required plaintiff-\n\norganizations to make specific allegations establishing that at least one\n\nidentified member had suffered or would suffer harm.\u201d); accord\n\nChamber of Com. v. EPA, 642 F.3d 192, 199-200 (D.C. Cir. 2011).\n\n Plaintiffs respond that the government\u2019s argument does not\n\n\u201caccount for the procedural posture of this case\u201d and that they can wait\n\nuntil \u201csummary judgment [to] identify[ ] a particular member with\n\nstanding at that stage.\u201d (Br. 25 (emphasis added).) Not so. Centro de\n\nTrabajadores Unidos v. Bessent, 167 F.4th 1218 (D.C. Cir. 2026), which\n\nplaintiffs cite in support, does not stand for that proposition. In Centro,\n\nthis Court rejected an APA challenge similar to the one here that\n\nsought to enjoin IRS\u2019s disclosure of taxpayer address information to\n\nICE. As a threshold question, the Court concluded that one of the\n\nplaintiff organizations had demonstrated a likelihood of associational\n\nstanding. 167 F.4th at 1228-30. Unlike this case, however, the\n\norganization in Centro had submitted a declaration by its executive\n\n\n 9\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 16 of 41\n\n\n\ndirector attesting that some of its members were subject to \u201coutstanding\n\norders of deportation\u201d and, for that reason, were \u201cin immediate danger\n\nof having information in their tax filings used against them by\n\nimmigration enforcement.\u201d Id. at 1229. By contrast, plaintiffs here\n\nhave not even alleged, let alone submitted a declaration attesting, that\n\nany of their members is subject to an outstanding removal order.\n\nTherefore, plaintiffs have failed to show that even a single member is at\n\nimminent risk of having his or her address information shared with\n\nICE. Centro\u2019s ruling on standing is distinguishable on that basis alone.\n\n Because plaintiffs sought and obtained a preliminary injunction,\n\nthey also cannot wait until a later stage in the litigation to make the\n\nrequired showing. Plaintiffs\u2019 argument in this regard misconstrues\n\nCentro\u2019s statement that \u201con a motion for a preliminary injunction, a\n\nplaintiff need only be \u2018likely to be able to demonstrate standing at the\n\nsummary judgment stage.\u2019 \u201d 167 F.4th at 1224 (quoting Electronic\n\nPrivacy Info. Ctr. (\u201cEPIC\u201d) v. U.S. Dep\u2019t of Com., 928 F.3d 95, 104 (D.C.\n\nCir. 2019)). EPIC makes clear that this quoted language means that\n\n\u201cstanding must be evaluated \u2018under the heightened standard for\n\nevaluating a motion for summary judgment\u2019 in \u2018determining whether or\n\n\n 10\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 17 of 41\n\n\n\nnot to grant the motion for preliminary injunction.\u2019 \u201d 928 F.3d at 104\n\n(quoting Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 912 (D.C.\n\nCir. 2015)). In Food & Water Watch, this Court expressly held that the\n\n\u201cappropriate standard\u201d for evaluating a plaintiff \u2019s standing to seek a\n\npreliminary injunction is \u201cthe heightened standard for evaluating a\n\nmotion for summary judgment.\u201d 808 F.3d at 912. That standard \u201cwas\n\ncorrect,\u201d id., even though the plaintiffs in that case had moved for a\n\npreliminary injunction \u201ccontemporaneously\u201d with the filing of their\n\ncomplaint and \u201cthe litigation had not proceeded past the pleadings\n\nstage.\u201d Id. at 913. Therefore, just as a plaintiff \u201cmust set forth by\n\naffidavit or other evidence specific facts to survive a motion for\n\nsummary judgment,\u201d EPIC, 928 F.3d at 104, plaintiffs here were\n\nrequired to set forth by affidavit or other evidence specific facts\n\ndemonstrating their standing to obtain a preliminary injunction. They\n\ncannot wait until some later stage in the litigation to satisfy their\n\nburden to show a \u201csubstantial likelihood of standing.\u201d Id.\n\n In sum, unlike Centro, where the plaintiff \u201cprovided detailed\n\ninformation about multiple members who would have standing to sue,\u201d\n\n167 F.4th at 1229, plaintiffs here have failed to demonstrate that even a\n\n\n 11\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 18 of 41\n\n\n\nsingle member is at risk of having his or her address information\n\nshared with ICE because of an outstanding removal order.\n\n Plaintiffs counter that ICE requests have focused not on\n\nindividuals with an outstanding removal order but instead on taxpayers\n\nwho use an Individual Taxpayer Identification Number (\u201cITIN\u201d), as\n\nsome of their members do. 2 (Br. 26.) But there is no evidence of that in\n\nthe record. To the contrary, the administrative record shows that IRS\n\nwill process a request from ICE only as to individuals with a final\n\nremoval order that has been outstanding for at least 90 days, and the\n\ndistrict court so found (A1865). The administrative record includes a\n\ndocument titled \u201cDHS-ICE Data Exchange Overview\u201d that sets forth\n\nIRS\u2019s computerized process for validating ICE requests, which includes\n\nthe requirement that the \u201cfinal order date\u201d supplied by ICE \u201cmust be [a]\n\nvalid date and over 90 days from the current date.\u201d (A462.) Internal\n\ncommunications confirm that IRS followed that process when\n\nresponding to ICE\u2019s request in August 2025. (A482.) Plaintiffs suggest\n\n\n\n 2 An ITIN is a 9-digit number issued by IRS for federal taxpayer\n\nidentification purposes to individuals who are not eligible for a Social\nSecurity number. See https://www.irs.gov/tin/itin/individual-taxpayer-\nidentification-number-itin.\n 12\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 19 of 41\n\n\n\nthat the government errs by \u201cfocusing solely on ICE\u2019s most recent data-\n\nsharing request\u201d instead of IRS\u2019s \u201cbroader\u201d policy. (Br. 26.) Yet\n\nplaintiffs themselves describe this same \u201cDHS-ICE Data Exchange\n\nOverview\u201d document\u2014which requires an outstanding removal order for\n\nIRS to process a request (A462)\u2014as \u201creflect[ing] the bounds of [IRS\u2019s]\n\naddress-sharing policy\u201d they challenge. (Br. 32.)\n\n Unable to show that any of their members faces an imminent\n\nthreat because of an outstanding removal order, plaintiffs, in a last-\n\nditch effort, raise the specter of \u201cmisidentification.\u201d (Br. 27.) But that\n\ntheory requires the Court to assume, in the absence of any evidence and\n\ncontrary to the presumption of regularity, American Fed\u2019n of Gov\u2019t\n\nEmps. v. Reagan, 870 F.2d 723, 727 (D.C. Cir. 1989), that ICE will use\n\nthe information to mistakenly prosecute the wrong person or illegally\n\nuse the information for civil enforcement and deport the wrong person.\n\nThat theory is implausible (see Gov. Br. 61-65), and such a speculative\n\nthreat falls far short of this Court\u2019s \u201cvery strict understanding of what\n\nincreases in risk and overall risk levels can count\u201d to demonstrate a\n\nsufficiently \u201cimminent\u201d injury in fact. Food & Water Watch, 808 F.3d at\n\n915.\n\n\n 13\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 20 of 41\n\n\n\n b. The alleged injury is not \u201cconcrete\u201d\n\n Plaintiffs\u2019 asserted injury\u2014namely, that IRS\u2019s disclosure of\n\ntaxpayer address information to another government agency violates\n\ntheir members\u2019 privacy interests (A1853, A97)\u2014is also not \u201cconcrete\u201d for\n\nArticle III standing purposes because it does not have a \u201cclose\n\nrelationship\u201d to a common-law analog. TransUnion LLC v. Ramirez,\n\n594 U.S. 413, 417, 424-25. (2021).\n\n Plaintiffs maintain (Br. 27-28) that intrusion upon seclusion\n\nprovides the necessary analog because \u201cCongress identified tax\n\ninformation held by the IRS as a private area analogous to other\n\nsecluded areas recognized at common law\u201d by enacting 26 U.S.C.\n\n\u00a7 6103. That argument does not work because Congress \u201cmay not\n\nsimply enact an injury into existence, using its lawmaking power to\n\ntransform something that is not remotely harmful into something that\n\nis.\u201d TransUnion, 594 U.S. at 426. Therefore, \u201cCongress\u2019s creation of a\n\nstatutory prohibition or obligation and a cause of action does not relieve\n\ncourts of their responsibility to independently decide whether a plaintiff\n\nhas suffered a concrete harm under Article III.\u201d Id. Here, plaintiffs\u2019\n\nasserted injury involving data-sharing between two government\n\n\n 14\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 21 of 41\n\n\n\nagencies about an alien\u2019s address in the United States is nothing like\n\nthe intrusion into a person\u2019s private space recognized by the common-\n\nlaw tort. See American Fed\u2019n of Teachers v. Bessent, 152 F.4th 162, 171-\n\n74 (4th Cir. 2025); Gov. Br. 33-35. In fact, federal law requires aliens in\n\nthe United States to provide DHS with address information and to\n\npromptly update it when they move, 8 U.S.C. \u00a7 1305(a); a fortiori there\n\nis no \u201cintrusion upon seclusion\u201d when government agencies share that\n\nsame information.\n\n Nor may plaintiffs rely on the tort breach of confidence because\n\nthe Internal Revenue Code does not create between IRS and taxpayers\n\nthe sort of \u201cconfidential relationship\u201d recognized by that tort. Kamal v.\n\nJ. Crew Grp., Inc., 918 F.3d 102, 114 (3d Cir. 2019). Further, that\n\nplaintiffs\u2019 alleged harm here only \u201coccurs when taxpayer information is\n\nshared with other government entities\u201d (Br. 30) does not make it\n\nanalogous to a \u201cthird party\u201d disclosure recognized by the tort, Kamal,\n\n918 F.3d at 114; rather, it underscores the distinction between the\n\ninjury recognized by the tort and the one plaintiffs allege here.\n\n\n\n\n 15\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 22 of 41\n\n\n\n B. Plaintiffs do not challenge a final agency action\n reviewable under the APA\n\n In Centro, this Court held (after the government filed its opening\n\nbrief in this case) that the MOU between IRS and ICE for sharing\n\ntaxpayer address information was not a \u201cfinal agency action\u201d reviewable\n\nunder the APA. 167 F.4th at 1235-36. Here, plaintiffs contend (Br. 30-\n\n36) that IRS has adopted, apart from the MOU, some other abstract\n\n\u201caddress-sharing policy\u201d that, unlike the MOU, does constitute final\n\nagency action. That argument is weaker than the one rejected in\n\nCentro, and it fails for all the same reasons, plus some.\n\n To begin, plaintiffs do not challenge any \u201cagency action\u201d that\n\nexists separate and apart from the MOU itself. (Gov. Br. 38-39.) As we\n\nsaid in our opening brief (at 38), IRS\u2019s only address-sharing policy,\n\n\u201cconsistent with the MOU, is to comply with 26 U.S.C. \u00a7 6103(i)(2)\u2019s\n\ndisclosure requirements upon receipt of a compliant request, as the\n\nstatute requires IRS to do.\u201d Plaintiffs and the district court, however,\n\nhave imagined another \u201caddress-sharing policy\u201d\u2014wholly apart from the\n\nMOU\u2014that plaintiffs contend is a final agency action. But the only\n\n\u201cagency action\u201d here is the MOU itself.\n\n\n\n 16\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 23 of 41\n\n\n\n In Biden v. Texas, the Supreme Court reversed the court of\n\nappeals for \u201cpostulating the existence of \u201d a \u201ctermination decision\u201d\n\npurportedly made by the agency and treating that decision as the\n\n\u201cagency action\u201d in question, even though there was no \u201c \u2018agency\n\nstatement of general or particular applicability ... designed to\n\nimplement\u2019 that decision.\u201d 597 U.S. 785, 809 (2022) (quoting 5 U.S.C.\n\n\u00a7 551(4)). Rather, the \u201coperative agency actions,\u201d the Court said, were\n\nother memoranda prepared by the agency in that case, id. at 810, and\n\n\u201cto the extent that the Court of Appeals understood itself to be\n\nreviewing an abstract decision apart from specific agency action, as\n\ndefined in the APA, that was error,\u201d id. at 809.\n\n So too here. The only address-sharing policy in this case\u2014i.e., the\n\n\u201coperative agency action,\u201d Biden, 597 U.S. at 810\u2014is the MOU, and the\n\ndistrict court erred \u201cby postulating the existence of \u201d some other alleged\n\naddress-sharing policy \u201cwholly apart from any \u2018agency statement of\n\ngeneral or particular applicability ... designed to implement\u2019 that\n\n[policy].\u201d Id. at 809 (quoting 5 U.S.C. \u00a7 551(4)). In reality, the \u201caddress-\n\nsharing policy\u201d found and articulated by the district court (A1868-1869)\n\nis nothing more than a gloss on the MOU, which allows for exactly the\n\n\n 17\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 24 of 41\n\n\n\nsame sharing of information under 26 U.S.C. \u00a7 6103(i)(2).3 But to the\n\nextent it might be construed otherwise, neither plaintiffs nor the\n\ndistrict court have pointed to an \u201cagency statement,\u201d 5 U.S.C. \u00a7 551(4),\n\nby IRS adopting or implementing that separate policy.\n\n Plaintiffs say that \u201cevidence\u201d of the alleged address-sharing policy\n\n\u201cabounds,\u201d including \u201cfactually uncontested allegations\u201d that IRS has\n\n\u201centered into an agreement with ICE to\u201d share \u201ctaxpayer address\n\ninformation,\u201d has \u201ccompleted a mass transfer ... pursuant to this\n\nagreement,\u201d and has \u201crevised its Internal Revenue Manual.\u201d 4 (Br. 31-\n\n32.) But the evidence plaintiffs cite merely evidences IRS\u2019s policy\n\nreflected in the MOU, not some other address-sharing policy that\n\nconstitutes separate \u201cagency action.\u201d The government does not dispute\n\n\n\n 3 The district court held IRS has adopted \u201ca policy of disclosing the\n\nconfidential address information of tens of thousands of taxpayers to\nICE under Section 6103(i)(2) of the Internal Revenue Code, in reliance\non representations from ICE that the addresses are relevant to and will\nbe used for immigration-related criminal investigations and\nproceedings, even when ICE identifies only a single ICE employee (or a\nsmall number of ICE employees) as the employee(s) \u2018personally and\ndirectly engaged\u2019 in each of the tens of thousands of relevant criminal\ninvestigations or proceedings.\u201d (A1868-1869.)\n 4 Plaintiffs refer repeatedly (Br. 7, 32, 53) to supposed changes to\n\nthe Internal Revenue Manual, but they never identify what those\nchanges were or how they support their claims.\n 18\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 25 of 41\n\n\n\nthe MOU\u2019s existence or that it reflects a \u201cpolicy statement\u201d that\n\n\u201coutlines the process through which ICE can request addresses from\n\nIRS.\u201d Centro, 167 F.4th at 1236. But as Centro said, id., it is the MOU,\n\nnot some other non-existent policy alleged by plaintiffs, that sets forth\n\n\u201chow the IRS will share address information with ICE\u201d (Br. 33).\n\nTherefore, plaintiffs\u2019 challenge to an alleged address-sharing policy\n\nseparate and apart from the MOU does not challenge any \u201cagency\n\naction.\u201d\n\n Further, the alleged policy (even if it existed) would not be \u201cfinal\u201d\n\nagency action at all events for the same reasons Centro held the MOU is\n\nnot final agency action\u2014it would be at most a \u201cnonbinding, nonfinal\n\npolicy statement that is not reviewable under the APA.\u201d 167 F.4th at\n\n1236; see Gov. Br. 39-42. \u201cPolicy statements generally do not qualify for\n\njudicial review.\u201d Centro, 167 F.4th at 1235. As with the MOU, the\n\nalleged policy here, which IRS denies even exists, \u201cwas not the product\n\nof notice-and-comment rulemaking,\u201d \u201cIRS has never characterized it as\n\na \u2018rule,\u2019 \u201d and IRS has not \u201crelie[d] on [it] to justify its actions.\u201d Id. at\n\n1236. The alleged policy thus lacks \u201cactual legal effect,\u201d and IRS has\n\nnever \u201ccharacteriz[ed]\u201d or \u201capplied\u201d it \u201cas if it were binding on\u201d any\n\n\n 19\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 26 of 41\n\n\n\nparty\u2014all factors to be considered when evaluating a policy statement\u2019s\n\nfinality. Id.\n\n Plaintiffs nonetheless maintain that the alleged policy affects\n\ntaxpayers\u2019 \u201cprivacy interests\u201d and the \u201cobligations of the IRS and its\n\nemployees in disclosing data to ICE.\u201d (Br. 34-35.) But this Court\n\nrejected similar arguments against the MOU in Centro, 167 F.4th at\n\n1236. As in that case, the alleged policy here, at most, \u201cmerely reflects\n\nIRS\u2019s views on what \u00a7 6103(i)(2) allows it to do.\u201d Id. (cleaned up). \u201cThis\n\ndoes not change the character of the [alleged policy] from a policy\n\nstatement to a binding rule\u201d because \u201can agency\u2019s statement that\n\nmerely expresses its view of what the law requires is not final, and not\n\nreviewable.\u201d Id.\n\n C. Plaintiffs\u2019 APA claim is foreclosed by the Internal\n Revenue Code\u2019s exclusive remedy for \u00a7 6103\n violations\n\n Congress enacted a comprehensive and carefully delineated\n\nremedial scheme for violations of 26 U.S.C. \u00a7 6103. Section 7431 is\n\nbroad in scope; it includes any violation of \u00a7 6103 by any person,\n\nwhether or not employed by the United States, and whether the\n\nviolation was knowing or merely negligent. 26 U.S.C. \u00a7 7431(a).\n\n\n 20\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 27 of 41\n\n\n\nCongress provided a civil action for damages in any such case, and it\n\ncrafted specific exceptions to liability, including for a \u201cgood faith, but\n\nerroneous\u201d interpretation, while also limiting the period for bringing\n\naction. Id. \u00a7 7431(b), (c), (d). But Congress excluded injunctive relief,\n\nand that choice must be taken as deliberate, especially given the\n\nprovision for limited injunctive relief elsewhere pertaining to the\n\ndisclosure of taxpayer information. See 26 U.S.C. \u00a7 6110(f)(3)(A). To be\n\nsure, that means plaintiffs cannot obtain the relief they seek here, but a\n\nremedial scheme does not displace the APA only when it contains each\n\nand every conceivable remedy; to the contrary, the exclusion of certain\n\nremedies is as much a policy decision as their inclusion. See, e.g., Aetna\n\nHealth, Inc. v. Davila, 542 U.S. 200, 208-09 (2004). A contrary decision\n\nwould depart from the cases holding that \u00a7 7431\u2019s remedy is exclusive.\n\nSee cases cited Gov. Br. 44.\n\n D. Plaintiffs\u2019 APA claim fails on the merits\n\n 1. Section 6103\n\n The district court erred on multiple fronts in concluding that\n\nIRS\u2019s alleged policy violates 26 U.S.C. \u00a7 6103(i)(2). Since the\n\ngovernment filed its brief, this Court has confirmed that \u201cSection\n\n\n 21\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 28 of 41\n\n\n\n6103(i)(2)\u2019s text unambiguously authorizes IRS to disclose taxpayer\n\naddress information when certain requirements are met.\u201d Centro, 167\n\nF.4th at 1231. IRS\u2019s alleged policy meets those requirements for the\n\nreasons we explained. (Gov. Br. 46-58.)\n\n a. The \u201caddress of the taxpayer\u201d\n\n A request meets the requirements under \u00a7 6103(i)(2) if it sets\n\nforth, among other things, \u201cthe name and address of the taxpayer with\n\nrespect to whom the requested return information relates.\u201d 26 U.S.C.\n\n\u00a7 6103(i)(2)(B)(i). But the district court read into the statute an\n\nadditional requirement, found nowhere in the statute\u2019s text, that IRS\n\nmust \u201cconfirm[ ]\u201d that the address provided by ICE \u201cmatche[s] an\n\naddress the IRS ha[s] in its system\u201d (A1887) even if IRS relies on the\n\ntaxpayer\u2019s unique identification number to confirm a positive match.\n\nThe district court\u2019s imposition of that atextual requirement was wrong\n\nfor reasons we explained. (Gov. Br. 46-50.)\n\n On appeal, plaintiffs do not defend the district court\u2019s reasoning\n\n(Br. 42-43)\u2014and rightly so because Centro forecloses it. Centro rejected\n\nthe contention that \u00a7 6103(i)(2)(B)(i) requires a requesting agency to\n\nprovide the taxpayer\u2019s current address because courts \u201cdo not read into\n\n\n 22\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 29 of 41\n\n\n\nstatutes words that aren\u2019t there to impose additional requirements or\n\nqualifications that Congress declined to enact,\u201d and \u201c\u00a7 6103(i)(2) does\n\nnot specify what address must be included in a written request.\u201d 167\n\nF.4th at 1231. Similarly, IRS is not statutorily required to confirm a\n\nmatch between the address submitted and an address in its system. As\n\nCentro explained, \u201cSection 6103(i)(2) allows agencies to submit a\n\ntaxpayer\u2019s name and address and request the taxpayer\u2019s current\n\nmailing address in return. These submitted and requested addresses\n\nmay be the same, which could be useful in confirming information the\n\nrequestor already has, but they may also be different, which could be\n\nuseful in giving the requestor new information.\u201d Id. All the statute\n\nrequires is that \u201cthe address provided must ... be an address known by\n\nthe requesting agency to be that \u2018of the taxpayer.\u2019 \u201d Id.\n\n Rather than defend the district court, plaintiffs assert (Br. 42-43)\n\nthat IRS\u2019s alleged policy does not require ICE requests to provide any\n\naddress at all. That baseless contention has no support in the record.\n\nThe district court never made any such finding, and IRS has never\n\nadopted any policy that does not require a request under \u00a7 6103(i)(2) to\n\ninclude the taxpayer\u2019s address. Plaintiffs\u2019 argument improperly\n\n\n 23\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 30 of 41\n\n\n\nconflates IRS\u2019s August 2025 disclosure with the alleged policy they\n\nchallenge in this case. Importantly, IRS\u2019s August 2025 disclosure,\n\nwhere IRS has acknowledged an error in applying the MOU\u2019s criteria\n\nfor a small percentage of individuals (see Gov. Br. 10, 46), is not the\n\n\u201cfinal agency action\u201d plaintiffs challenge here. Rather, the district court\n\nfound that IRS has adopted an address-sharing policy (apart from the\n\nMOU and before the August 2025 disclosure) that it held is a final\n\nagency action reviewable under the APA. But even assuming arguendo\n\nIRS has adopted such a policy, the administrative record is crystal clear\n\nthat IRS\u2019s policy is to disclose information under \u00a7 6103(i)(2) only if,\n\namong other things, the request sets forth the taxpayer\u2019s name and\n\naddress as \u00a7 6103(i)(2)(B)(i) and the MOU require. Specifically, the\n\nMOU expressly states that \u201ceach request will contain \u2026 the name and\n\naddress of the taxpayer.\u201d (A374; see also A390 (implementing\n\nagreement requiring ICE to provide an address).) In addition, IRS and\n\nTreasury Department officials have adamantly and repeatedly conveyed\n\nthat ICE requests must provide the taxpayer\u2019s name and address and\n\nthat responses would not be forthcoming if there is no name or address.\n\n(A350, A420-422.) That such policy might have been inadvertently\n\n\n 24\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 31 of 41\n\n\n\nmisapplied for a small percentage of individuals in August 2025 because\n\nof an unintended flaw in the computerized validation process is not\n\nevidence that IRS has taken \u201cfinal agency action\u201d to adopt a policy of\n\nprocessing noncompliant requests that would be directly contrary to the\n\nMOU. IRS\u2019s intent in designing its review process under the MOU was\n\nto require an address, and it has requested that ICE take appropriate\n\nremedial steps for any data based on incomplete or insufficient address\n\ninformation. See Romo Declaration, Dkt. No. 66-1 (filed Feb. 11, 2026).\n\n Plaintiffs also contend (Br. 41) that IRS\u2019s use of \u201cautomated\u201d\n\ncomputer assistance to process requests under \u00a7 6103(i)(2) is itself\n\nsomehow unlawful, as is responding to such requests \u201cen masse.\u201d But\n\n\u00a7 6103(i)(2) does not proscribe or regulate how IRS must process valid\n\nrequests under the statute. Indeed, those are the very sort of \u201cday-to-\n\nday operations\u201d of a federal agency that courts may not superintend\n\nunder the APA, Lujan v. National Wildlife Fed\u2019n, 497 U.S. 871, 899\n\n(1990), and the district court rightly rejected these arguments (A1888-\n\n1889).\n\n\n\n\n 25\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 32 of 41\n\n\n\n b. The \u201ctaxable period or periods\u201d\n\n Nor has IRS adopted any policy that does not require ICE\n\nrequests to set forth \u201cthe taxable period or periods to which such return\n\ninformation relates.\u201d 26 U.S.C. \u00a7 6103(i)(2)(B)(ii); see Gov. Br. 50-51.\n\nThe data file submitted as part of ICE\u2019s June 2025 request included,\n\nunder a column labeled \u201ctaxable period,\u201d a separate row for each\n\nindividual that specified \u201cJanuary 2022 to present\u201d as the taxable\n\nperiods for that individual. (A437-439 (redacted excerpt of ICE data file\n\nreceived on June 25, 2025 (A335)).) Plaintiffs\u2019 assertion (Br. 44) that\n\nICE supplied a single \u201cblanket entry\u201d \u201cfor more than one million\n\nrequests\u201d is plainly inaccurate. Plaintiffs also suggest (Br. 44) that the\n\nstatute\u2019s term \u201ctaxable period or periods\u201d cannot include \u201ca range of\n\nyears,\u201d but that, too, is obviously incorrect. The statute\u2019s use of the\n\nplural noun \u201ctaxable ... periods\u201d contemplates that a request for\n\ninformation may cover more than a single taxable period, which is\n\ngenerally a calendar year for individual taxpayers, see 26 U.S.C. \u00a7 441.\n\nICE\u2019s request identified \u201cJanuary 2022 to present\u201d as the relevant tax\n\nperiods, which included tax years 2022-2025. That is a legally\n\npermissible and perfectly logical way for ICE to obtain the \u201clast known\n\n\n 26\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 33 of 41\n\n\n\naddress\u201d (A449)\u2014i.e., the most current address on IRS records, 26\n\nC.F.R. \u00a7 301.6212-2(a)\u2014of the listed individuals. The inclusion of tax\n\nperiods back to 2022 was obviously intended to capture information of\n\nany individual who may not have filed more recent tax returns.\n\n\u201cSection 6103(i)(2) allows agencies to submit a taxpayer\u2019s name and\n\naddress and request the taxpayer\u2019s current mailing address in return.\u201d\n\nCentro, 167 F.4th at 1231.\n\n c. The \u201cspecific reason\u201d why disclosure\n \u201cis, or may be, relevant\u201d\n\n ICE\u2019s request also easily satisfied the statute\u2019s requirement that it\n\nset forth the \u201cspecific reason\u201d why the information \u201cis, or may be,\n\nrelevant\u201d to an investigation under 8 U.S.C. \u00a7 1253(a)(1). 26 U.S.C.\n\n\u00a7 6103(i)(2)(B)(iv); see Gov. Br. 51-53. ICE explained that it was\n\nrequesting the \u201clast known address\u201d (A449), which is the most current\n\naddress, for each individual \u201cto verify [that person\u2019s] presence within\n\nthe United States of America\u201d (A434-436). ICE also supplied the date of\n\nfinal removal orders for the listed individuals, which had to be a \u201cvalid\n\ndate and over 90 days from the current date\u201d to be processed by IRS.\n\n(A462.) The current address of a person with a final removal order that\n\nis 90 days or older is highly relevant to an investigation under 8 U.S.C.\n\n 27\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 34 of 41\n\n\n\n\u00a7 1253(a)(1) because it may indicate that an \u201calien against whom a final\n\norder of removal is outstanding\u201d has \u201cfail[ed] or refuse[d] to depart from\n\nthe United States within a period of 90 days from the date of the final\n\norder of removal.\u201d 8 U.S.C. \u00a7 1253(a)(1). ICE\u2019s explanation was\n\n\u201cspecific\u201d enough for IRS to determine that the requested address\n\ninformation \u201cis, or may be, relevant\u201d to ICE\u2019s criminal investigation,\n\nand that is all \u00a7 6103(i)(2)(B)(iv) requires.\n\n Plaintiffs\u2019 argument (Br. 46-47) rests on the false premise that the\n\naddress information ICE requested was \u201cunlinked to a taxable period\u201d\n\nand thus had no \u201cdate associated with\u201d it. That is factually incorrect as\n\nexplained above. ICE\u2019s request sought current addresses of the listed\n\nindividuals from IRS by identifying relevant taxable periods, and\n\nCentro held that \u00a7 6103(i)(2) authorizes ICE to do exactly that. 167\n\nF.4th at 1231.\n\n d. \u201cPersonally and directly engaged\u201d\n\n Plaintiffs defend (Br. 47-51) the district court\u2019s untenable\n\ninterpretation of \u00a7 6103(i)(2) as dictating to other federal agencies how\n\nthey must conduct their criminal investigations in order to receive\n\ntaxpayer information from IRS under the statute. Disclosure under\n\n\n 28\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 35 of 41\n\n\n\n\u00a7 6103(i)(2) is mandatory once IRS receives a valid request, and the\n\nstatute\u2019s \u201cpersonally and directly engaged\u201d requirement merely tells\n\nIRS to whom the mandatory disclosure must be made. So the parties\u2019\n\ndispute on this point is solely about whether IRS made the mandatory\n\ndisclosure to the right person or persons.\n\n Under plaintiffs\u2019 flawed view of the statute, ironically, IRS should\n\nhave disclosed the information to more than 47,000 officers and\n\nemployees at ICE instead of just one whom ICE identified as being\n\n\u201cpersonally and directly engaged in the criminal proceeding or criminal\n\ninvestigation.\u201d (A449, A437-439.) As plaintiffs interpret the statute,\n\nICE could receive information from IRS only if ICE had first initiated\n\nand staffed \u201cindividual criminal investigations\u201d (Br. 49)\u2014that is, a\n\nseparate investigation for each listed individual. But the statute uses\n\nvery broad terms in authorizing disclosure of taxpayer information for\n\nuse by another federal agency in \u201cany investigation which may result\n\nin\u201d a criminal proceeding. 26 U.S.C. \u00a7 6103(i)(2)(A)(ii) (emphasis\n\nadded). As explained in our opening brief (at 55-58), ICE had discretion\n\nto initiate a single, broad-scale investigation that begins with a high-\n\nlevel review of many individuals\u2019 address information to determine, at\n\n\n 29\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 36 of 41\n\n\n\nthe outset, how many of them were still present in the United States\n\nafter receiving a final removal order. That is not \u201cdata-mining\u201d (Br. 49);\n\nthat is a responsible way for an agency with limited resources to carry\n\nout its criminal enforcement obligations, and it is the sort of task that is\n\nsuitable for a single high-level ICE officer charged with enforcing 8\n\nU.S.C. \u00a7 1253(a)(1), with the aid of modern technology and help, as\n\nneeded, from his information technology support staff or others. See 26\n\nC.F.R. \u00a7 301.6103(i)-1(b) (permitting officers and employees to whom\n\ndisclosure is authorized under the statute to further disclose return\n\ninformation to clerical or other personnel with specialized knowledge or\n\ntechnical skills needed for the criminal investigation or proceeding).\n\n Plaintiffs\u2019 remaining contention on this point (Br. 50-51) is that\n\nICE was really using criminal investigation under \u00a7 1253(a)(1) as a\n\n\u201cpretext\u201d to obtain information for civil immigration enforcement, and\n\nIRS should have known that and refused to process ICE\u2019s request. That\n\nbaseless argument fails for the reasons explained in our opening brief\n\n(at 61-65).\n\n In sum, plaintiffs have failed to show that IRS has adopted any\n\naddress-sharing policy in violation of \u00a7 6103(i)(2).\n\n\n 30\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 37 of 41\n\n\n\n 2. Arbitrary and capricious\n\n Plaintiffs\u2019 claim (Br. 51-56) that IRS\u2019s alleged policy is arbitrary\n\nand capricious fails for the reasons we explained (Gov. Br. 58-59), and\n\nCentro further confirms those reasons.\n\n First, the alleged policy does not even exist apart from the MOU\n\nand, in any event, is not \u201cfinal agency action,\u201d 5 U.S.C. \u00a7 704, for the\n\nsame reasons Centro held the MOU is not final agency action, 167 F.4th\n\nat 1235-36.\n\n Second, plaintiffs\u2019 change-of-position challenge is not viable under\n\nLoper Bright Enters. v. Raimondo, 603 U.S. 369 (2024), and Centro, 167\n\nF.4th at 1236-39, rejecting a similar change-of-position challenge to the\n\nMOU. In short, IRS\u2019s compliance with a valid request under\n\n\u00a7 6103(i)(2) is mandatory, not discretionary, so any alleged policy to\n\nprocess valid requests from ICE cannot be arbitrary and capricious.\n\nCentro leaves no room for doubt that \u00a7 6103(i)(2) does not \u201cdelegate[ ]\n\ndiscretionary authority\u201d to IRS and, therefore, is \u201cnot one of those cases,\n\nin which the question is whether the agency has reasonably exercised\n\nits discretion.\u201d 167 F.4th at 1237, 1238. \u201c[Section] 6103(i)(2) requires\n\nIRS to disclose address information in response to a valid request\n\n\n 31\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 38 of 41\n\n\n\nregardless of what happens to the MOU\u201d or the policy plaintiffs allege\n\nIRS has adopted here. Id. Plaintiffs\u2019 arbitrary-and-capricious claim\n\nthus \u201crises and falls with their contrary-to-law claim.\u201d Id. at 1235.\n\n Plaintiffs nonetheless argue (Br. 52-54) that IRS has discretion\n\nover the \u201cmethod\u201d of processing \u201cvalid requests\u201d and suggest that \u201cIRS\n\ncould have continued to require that ICE submit case-by-case requests.\u201d\n\nBut \u00a7 6103(i)(2) makes disclosure mandatory upon receipt of a\n\ncompliant request that satisfies the statutory requirements, none of\n\nwhich entails that the request must be made \u201ccase-by-case.\u201d IRS thus\n\nhas no discretion to deny a \u201cbulk\u201d (Br. 54) request that meets the\n\nstatutory requirements. And to the extent plaintiffs seek to challenge\n\nIRS\u2019s use of \u201cautomat[ed]\u201d (Br. 54) computer systems to process\n\nrequests, the APA does not permit judicial review of such decisions\n\nregarding the \u201cday-to-day operations,\u201d Lujan, 497 U.S. at 899, of a\n\nfederal agency in carrying out \u201cthe common business of managing\n\ngovernment programs,\u201d Fund for Animals, Inc. v. U.S. Bureau of Land\n\nMgmt., 460 F.3d 13, 20 (D.C. Cir. 2006).\n\n\n\n\n 32\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 39 of 41\n\n\n\nII. Plaintiffs failed to establish the remaining\n preliminary injunction factors\n\n Plaintiffs have not shown irreparable harm, and the remaining\n\npreliminary injunction factors weigh heavily in the government\u2019s favor.\n\n(See Gov. Br. 59-67.) One aspect of plaintiffs\u2019 response warrants further\n\nreply. Plaintiffs dispute (Br. 63) that the district court\u2019s order\n\nestablishes a \u201cpre-clearance regime\u201d for processing requests under\n\n\u00a7 6103(i)(2). But they ignore its requirement that IRS must provide the\n\ncourt and plaintiffs with detailed information about any request it\n\nreceives \u201cif Defendant IRS determines that disclosure ... would be\n\nlawful.\u201d (A1829.) The court and plaintiffs can thus prevent IRS from\n\nresponding to any request that does not satisfy their erroneous\n\ninterpretation of \u00a7 6103(i)(2). That the order enjoins IRS from\n\nresponding to requests \u201cexcept in strict compliance\u201d with \u00a7 6103(i)(2)\n\ndoes not mitigate its harm to federal law enforcement because, as we\n\nhave demonstrated, the court badly misinterprets the statute and will\n\nbar ICE\u2019s access to information to which it is legally entitled for use in\n\ncriminal investigations under a correct interpretation of the statute.\n\n\n\n\n 33\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 40 of 41\n\n\n\n CONCLUSION\n\n The Court should vacate the district court\u2019s order.\n\n Respectfully submitted,\n\n BRETT A. SHUMATE\n Assistant Attorney General\n ERIC D. MCARTHUR\n Deputy Assistant Attorney General\n\n AUGUST FLENTJE\n\n /s/ Jacob Christensen\n JACOB CHRISTENSEN\n Attorneys, Appellate Staff\n Civil Division, Room 7525\n U.S. Department of Justice\n 950 Pennsylvania Avenue NW\n Washington, DC 20530\n (202) 307-0878\n jacob.christensen@usdoj.gov\n\nApril 2026\n\n\n\n\n 34\n\fUSCA Case #26-5006 Document #2167791 Filed: 04/09/2026 Page 41 of 41\n\n\n\n CERTIFICATE OF COMPLIANCE\n\n This brief complies with the type-volume limit of Federal Rule of\n\nAppellate Procedure 32(a)(7)(B) because it contains 6,482 words. This\n\nbrief also complies with the typeface and type-style requirements of\n\nFederal Rule of Appellate Procedure 32(a)(5)-(6) because it was\n\nprepared using Word for Microsoft 365 in Century Schoolbook 14-point\n\nfont, a proportionally spaced typeface.\n\n\n\n /s/ Jacob Christensen\n Jacob Christensen\n\f","ocr_status":2,"date_upload":"2026-04-09T11:26:07.665485-07:00","document_number":"2167791","attachment_number":null,"pacer_doc_id":"01208838874","is_available":true,"is_free_on_pacer":null,"is_sealed":false,"document_type":1,"description":"Appellant/Petitioner Reply Brief Filed","acms_document_guid":""}],"date_created":"2026-04-09T11:26:07.340138-07:00","date_modified":"2026-04-09T11:26:07.349430-07:00","date_filed":"2026-04-09","time_filed":null,"entry_number":2167791,"recap_sequence_number":"2026-04-09.001","pacer_sequence_number":null,"description":"APPELLANT REPLY BRIEF [2167791] filed by Scott Bessent, Steve Davis, Stephen Ehikian, Charles Ezell, Amy Gleason, GSA, IRS, Elon Musk, OPM, TREA, U.S. Department of the Treasury DOGE Team, U.S. Digital Service (U.S. DOGE Service) and U.S. DOGE Service Temporary Organization [Service Date: 04/09/2026 ] Length of Brief: 6,482 Words. [26-5006] (Christensen, Jacob)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/459305358/","id":459305358,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/474335276/","id":474335276,"tags":[],"absolute_url":"/docket/72135139/01208836294/center-for-taxpayer-rights-v-irs/","date_created":"2026-04-01T08:37:48.031233-07:00","date_modified":"2026-05-11T07:47:34.790364-07:00","sha1":"559fc77c7e3598f0acb0350f316621b16ab9a120","page_count":1,"file_size":46069,"filepath_local":"recap/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.1208836294.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cadc.42769/gov.uscourts.cadc.42769.01208836294.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"USCA Case #26-5006 Document #2166516 Filed: 04/01/2026 Page 1 of 1\n\n\n United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n ____________\n\n\nNo. 26-5006 September Term, 2025\n 1:25-cv-00457-CKK\n Filed On: April 1, 2026 [2166516]\nCenter for Taxpayer Rights, et al.,\n\n Appellees\n\n v.\n\nInternal Revenue Service, et al.,\n\n Appellants\n\n ORDER\n\n It is ORDERED, on the court's own motion, that this case be scheduled for oral\nargument on May 12, 2026, at 9:30 A.M. The composition of the argument panel will\nusually be revealed thirty days prior to the date of oral argument on the court's web site\nat www.cadc.uscourts.gov.\n\n The time and date of oral argument will not change absent further order of the\nCourt.\n\n A separate order will be issued regarding the allocation of time for argument.\n\n FOR THE COURT:\n Clifton B. Cislak, Clerk\n\n BY: /s/\n Michael C. McGrail\n Deputy Clerk\n\nThe following forms and notices are available on the Court's website:\n\n Memorandum to Counsel Concerning Cases Set for Oral Argument (Form 71)\n\f","ocr_status":2,"date_upload":"2026-04-01T08:37:48.026211-07:00","document_number":"01208836294","attachment_number":null,"pacer_doc_id":"01208836294","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order Filed (CLERK)","acms_document_guid":""}],"date_created":"2026-04-01T08:13:00.907133-07:00","date_modified":"2026-05-11T07:47:34.766244-07:00","date_filed":"2026-04-01","time_filed":"11:04:30","entry_number":1208836294,"recap_sequence_number":"2026-04-01.002","pacer_sequence_number":2166516,"description":"CLERK'S ORDER [2166516] filed scheduling oral argument on Tuesday, 05/12/2026. [26-5006] [Entered: 04/01/2026 11:04 AM]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/459305357/","id":459305357,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/72135139/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/474329024/","id":474329024,"tags":[],"absolute_url":"/docket/72135139/01208835659/center-for-taxpayer-rights-v-irs/","date_created":"2026-04-01T08:13:00.760785-07:00","date_modified":"2026-05-11T07:47:34.694021-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"01208835659","attachment_number":null,"pacer_doc_id":"01208835659","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2026-04-01T08:13:00.723914-07:00","date_modified":"2026-05-11T07:47:34.665001-07:00","date_filed":"2026-03-30","time_filed":null,"entry_number":1208835659,"recap_sequence_number":"2026-03-30.001","pacer_sequence_number":2166206,"description":"CORRECTED AMICUS FOR APPELLEE BRIEF [2166206] filed by 115 Members of Congress [Service Date: 03/30/2026 ] Length of Brief: 5,944 Words. [26-5006] (Weiner, Andrew) [Entered: 03/30/2026 05:55 PM]","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=72135139&page_size=40"}