Court flags ‘serious questions’ about conduct in DOGE data case

A divided decision in a contentious case highlights important overlapping themes of President Donald Trump’s second term: the administration’s shady litigation conduct, the Supreme Court’s use of the shadow docket to side with the administration and how lower court judges are supposed to deal with both phenomena.

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The latest collision of these themes came in the ongoing litigation over the Department of Government Efficiency’s access to Social Security data.

By way of background, three groups had sued to stop the Social Security Administration from giving millions of Americans’ sensitive personal information to DOGE. A Maryland district court judge initially granted a preliminary injunction for the plaintiffs. But the Supreme Court halted the injunction last year, over dissent from the court’s Democratic appointees. Justice Ketanji Brown Jackson wrote then that the Republican-appointed majority let the government “give unfettered data access to DOGE … despite its failure to show any need or any interest in complying with existing privacy safeguards, and all before we know for sure whether federal law countenances such access.”

The litigation is still going, and on Friday, the federal appeals court that covers Maryland sent the case back to the district court for further proceedings. In doing so, the appeals court splintered into several separate opinions amid nearly 90 pages of back-and-forth between appellate judges over issues that go to the heart of the legal system.

Part of the disagreement centered on the relevance of the government’s damning admissions, made after the district court’s injunction ruling, that it had given inaccurate information to the court and may not have fully complied with a temporary restraining order; that DOGE used an unauthorized third-party server to share Social Security data; and that DOGE team members may have agreed to share such data with a political advocacy group that aims to “find evidence of voter fraud and to overturn election results in certain States.”

In a footnote, appellate judge Toby Heytens, a Biden appointee, called those recent government admissions “alarming” and said they “raise serious questions about its earlier conduct before the district court.”

Heytens deemed “even more alarming” the more recent revelations in The Washington Post about a former DOGE employee allegedly claiming he had access to “two highly sensitive agency databases and planned to share the information with his private employer.” If true, the article explained, that would “constitute an unprecedented breach of security protocols at an agency that serves more than 70 million Americans.”

But despite being alarmed, Heytens wrote for the appellate majority that the belated revelations weren’t relevant to this review of the district judge’s injunction. Yet he noted that when the case goes back to the district court, it “will be free to consider any future requests for appropriate relief or corrective action.”

That wasn’t good enough for another block of judges, who dissented from that part of Heytens’ opinion. Robert King, a Clinton appointee, faulted Heytens for relying on the “erroneous original record,” writing that the corrected record “presents the facts as they truly were, while the erroneous original record depicts the facts as they never were. It is therefore the corrected record — not the erroneous original record — that is the district court’s record of the preliminary injunction proceedings.”

King wrote that even when the preliminary injunction was entered, “the facts then known to the district court were bad enough,” because the Social Security Administration “had abruptly opened all its records to affiliates of” DOGE, despite the affiliates’ “lack of vetting, lack of training, and lack of any demonstrated need for the vast and extremely sensitive personal information that fills the SSA records.”