Fourth Circuit Abrogates “Multiplicative” Likelihood-of-Success Test for Preliminary Injunctions and Recognizes Intrusion-upon-Seclusion Standing for Unauthorized Government Data Access

1. Introduction

This en banc decision arises from a politically and administratively fraught dispute over access to one of the federal government’s most sensitive troves of personal data: Social Security Administration (“SSA”) systems holding extensive personally identifiable information for most Americans (including Social Security numbers, bank account data, tax information, and medical history).

Plaintiffs—three large membership organizations representing millions—sued to stop SSA from providing U.S. DOGE Service (“DOGE”) personnel access to non-anonymized SSA data. Their core theory at the injunction stage was not that DOGE had already misused or publicly disclosed the information, but that granting DOGE access itself was unlawful. The District of Maryland granted a preliminary injunction. The Supreme Court stayed that injunction pending appeal and any further Supreme Court review. The Fourth Circuit, reviewing the district court’s order under 28 U.S.C. § 1292(a)(1), vacated and remanded.

2. Summary of the Opinion

The en banc court makes three headline moves:

• It repudiates and “abrogate[s]” portions of American Federation of Teachers v. Bessent (AFT), 152 F.4th 162 (4th Cir. 2025), that suggested district courts should treat likelihood-of-success in multi-issue cases as a “multiplicative problem” requiring an “extremely high likelihood of success on each individual issue.”
• It holds plaintiffs have shown likely Article III standing at the preliminary-injunction stage, concluding that unauthorized access to sensitive personal data bears a “close relationship” to the tort of intrusion upon seclusion under TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), and expressly abrogating AFT’s contrary standing analysis.
• It vacates the preliminary injunction for failure to satisfy Winter’s irreparable-harm factor, holding that (on the record before the district court at the time) plaintiffs did not show they were “likely to suffer irreparable harm in the absence of preliminary relief,” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008), because damages under the Privacy Act and/or reparative permanent injunction relief could be available later.

The court vacates without reaching the other Winter factors.

3. Analysis

A. Precedents Cited

1) Preliminary injunction standards: reaffirming Winter and rejecting “numerical multiplication”

The court anchors its injunction analysis in Winter v. Natural Res. Def. Council, Inc., reiterating the four-factor test and the Supreme Court’s admonition that preliminary injunctions are “extraordinary” and “never awarded as of right.” It also relies on eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), to reject categorical or mechanically derived injunction rules, and on Ashcroft v. ACLU, 542 U.S. 656 (2004), and Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990), to frame abuse-of-discretion review (legal error is necessarily an abuse).

Against that background, the court addresses American Federation of Teachers v. Bessent (AFT), which had described a “multiplicative problem” where likelihood of ultimate success equals the product of probabilities on “independent, dispositive issues.” The en banc court disavows any requirement (or suggestion) that district judges assign and multiply numerical probabilities, citing the Third Circuit’s critique of algorithmic equity in Delaware State Sportsmen's Ass'n v. Delaware Dep't of Safety & Homeland Sec., 108 F.4th 194 (3d Cir. 2024), and emphasizing the non-mechanical character of equity.

Critically, the en banc court uses McMellon v. United States, 387 F.3d 329 (4th Cir. 2004) (en banc), to underscore its authority to overrule a prior panel decision and announces: “All statements to the contrary in AFT are abrogated.”

2) Standing: applying TransUnion’s “close relationship” test via intrusion upon seclusion

The standing analysis is structured by Murthy v. Missouri, 603 U.S. 43 (2024) (standing required at preliminary-injunction stage; “clear showing” likely to establish each element), and TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) (concrete injury must bear a “close relationship” to historically recognized harms). The court also cites Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), to emphasize injury-in-fact as “first and foremost.”

For the historical analogue, the court relies on the Restatement definition of intrusion upon seclusion in Restatement (Second) of Torts § 652B, and treats unauthorized access to sensitive data as analogous to rummaging through private documents or compelling disclosure. The court draws support from Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020), and Persinger v. Southwest Credit Sys., L.P., 20 F.4th 1184 (7th Cir. 2021), for the principle that the intrusion itself (not downstream misuse or publication) can constitute the harm.

The court distinguishes TransUnion (defamation analogy; publication requirement) and rejects AFT’s narrower view of intrusion upon seclusion. It also narrows the reach of O'Leary v. TrustedID, Inc., 60 F.4th 240 (4th Cir. 2023), explaining that intrusion upon seclusion is not limited to “intrusion into the home” and that the facts in O’Leary were materially different.

3) Irreparable harm: remedial adequacy and the purpose of preliminary relief

In vacating the injunction, the court draws on:

• University of Texas v. Camenisch, 451 U.S. 390 (1981), for the proposition that preliminary injunctions preserve the parties’ positions pending a final merits decision.
• Sampson v. Murray, 415 U.S. 61 (1974), for the caution that where “adequate compensatory or other corrective relief” may later be available, courts should hesitate to label harm “irreparable.”
• Di Biase v. SPX Corp., 872 F.3d 224 (4th Cir. 2017), to show standing can exist without irreparable harm, reinforcing the doctrinal separation between Article III injury and equitable irreparability.
• Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992), and Restatement (Third) of Torts: Remedies § 44 (Tentative Draft No. 2, 2023), to support the availability of a “reparative” injunction ordering destruction/return of unlawfully obtained material.

The court also notes similar DOGE-related district court decisions finding no irreparable harm—University of Cal. Student Ass'n v. Carter, 766 F. Supp. 3d 114 (D.D.C. 2025); American Fed'n of Lab. & Cong. of Indus. Orgs. v. Department of Lab., No. 25-cv-339, 2025 WL 1783899 (D.D.C. June 27, 2025); and Alliance for Retired Ams. v. Bessent, 770 F. Supp. 3d 79 (D.D.C. 2025)—as persuasive support for the proposition that damages and corrective injunctions can undermine irreparability in this data-access posture.

4) Procedural posture and competing views of the Supreme Court stay

Although the majority references the Supreme Court stay, 145 S. Ct. 1626 (2025), it does not treat the stay as dispositive precedent on the injunction’s validity; instead, it vacates on irreparable harm grounds. The separate opinions (notably Judge Wilkinson and Judge Richardson) argue the stay should effectively control under Trump v. Boyle, 145 S. Ct. 2653 (2025), while Judge Wynn disputes that interim orders bind merits-stage preliminary-injunction review in this way. This intra-court debate signals continued doctrinal friction about how lower courts should operationalize the Supreme Court’s emergency docket.

B. Legal Reasoning

1) The “multiplicative problem” is rejected as a governing legal standard

The court’s core doctrinal clarification is that Winter’s “likely to succeed on the merits” requirement does not change simply because a case involves multiple issues or defenses. While acknowledging the common-sense point that complex cases can be harder to win, the court rejects translating that intuition into a quasi-statistical framework requiring judges to assign and multiply numeric probabilities. The opinion emphasizes equity’s non-algorithmic nature and flags practical concerns: definitional uncertainty about issue “independence,” conditional probability complications, and the limited value (and cognitive difficulty) of fine-grained percentage assignments.

The operative rule announced: plaintiffs “need not clear a different or additional hurdle in cases involving multiple issues or defenses,” and “all statements to the contrary in AFT are abrogated.”

2) Standing is satisfied by unauthorized access itself (intrusion-upon-seclusion analogue)

The court treats the alleged harm as the unauthorized intrusion into private affairs when DOGE personnel—allegedly lacking lawful authorization—gain access to non-anonymized sensitive records. Under this framing:

• The injury is concrete because it resembles intrusion upon seclusion under Restatement (Second) of Torts § 652B.
• Publication or downstream misuse is not required (distinguishing the defamation-based analysis in TransUnion LLC v. Ramirez).
• The government’s argument that other SSA employees access the same data is treated as a merits dispute, not a standing defect, per FEC v. Cruz, 596 U.S. 289 (2022), and Davis v. United States, 564 U.S. 229 (2011).

This is a notable pivot away from AFT’s skepticism about standing in a substantively similar DOGE-access dispute.

3) The preliminary injunction fails on irreparable harm because later remedies may suffice

Having confirmed jurisdiction, the court vacates solely on Winter factor two. On the record as it stood when the district court ruled, the court holds plaintiffs did not show that the privacy intrusion was “irreparable” in the equitable sense, because:

• Damages may be available under the Privacy Act for “intentional or willful” violations, 5 U.S.C. § 552a(g)(4), and plaintiffs did not persuasively explain why damages would be legally inadequate or unascertainable.
• Corrective permanent relief could include orders to destroy unlawfully obtained data and derivatives (a reparative injunction), undermining the claim that the harm cannot be remedied through ordinary litigation.
• The Supreme Court stay further complicates the assertion that “preliminary relief” is necessary to prevent harm during the pendency of litigation, because the injunction was not operative pending the completion of appellate review.

Importantly, the court notes (in footnote 8) that post-injunction revelations contained in a “Notice of Corrections to the Record” are “alarming,” but it confines its review to the record before the district court when the injunction issued, citing Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020), and Verlo v. Martinez, 820 F.3d 1113 (10th Cir. 2016), while inviting the parties to develop additional evidence on remand.

C. Impact

1) Immediate doctrinal effects in the Fourth Circuit

• Preliminary injunction law is clarified: district courts should apply Winter’s “likely to succeed” requirement without a heightened, numerically-inflected “multiplicative” overlay when multiple issues exist. This removes a potential appellate trap created by broad readings of AFT.
• Standing in data-access cases is strengthened: unauthorized government access to sensitive personal data can constitute a concrete injury via the intrusion-upon-seclusion analogue, even absent proof of publication or misuse at the time of suit.
• Irreparable harm remains a high bar: even where privacy harms suffice for standing, plaintiffs must still show why damages and corrective final relief will not adequately remedy the injury during ordinary litigation.

2) Practical litigation consequences for Privacy Act/APA challenges

The opinion encourages plaintiffs to build an irreparable-harm record that is remedy-focused (why monetary and reparative relief cannot restore the status quo) rather than injury-focused (why the conduct is wrongful). It also signals that district courts may consider more tailored injunctions—e.g., limiting access, requiring anonymization, or conditioning access on vetting/training—if plaintiffs can demonstrate true irreparability on an updated record.

4. Complex Concepts Simplified

• Winter factors: to get a preliminary injunction, a plaintiff must show (1) likely success on the merits, (2) likely irreparable harm without the injunction, (3) equities favor the plaintiff, and (4) the injunction serves the public interest. Failing any one factor defeats the request.
• “Multiplicative problem” (as used in AFT): the idea that if you must win multiple independent issues, your overall chance of winning is like multiplying probabilities (so it shrinks quickly). This opinion says courts should not turn Winter into a numbers exercise or impose an extra hurdle in multi-issue cases.
• Article III standing vs. irreparable harm: standing asks whether the plaintiff has a concrete injury allowing entry into federal court; irreparable harm asks whether the injury is the kind that cannot be adequately fixed later through damages or final remedies. You can have standing and still lose on irreparable harm.
• Intrusion upon seclusion: a privacy tort where the wrong is the unjustified intrusion into private matters (like rifling through private documents). Publication or later misuse is not required for the intrusion itself to be harmful.
• Reparative injunction: a final injunction that orders a defendant to undo the effects of wrongdoing (e.g., destroy unlawfully obtained copies), aimed at preventing future consequences of past violations.

5. Conclusion

The Fourth Circuit’s en banc decision meaningfully resets its preliminary-injunction doctrine after American Federation of Teachers v. Bessent (AFT): courts must apply Winter without converting “likelihood of success” into a numerical, multiplicative calculus or imposing a de facto heightened standard in complex cases. At the same time, the court strengthens plaintiffs’ ability to establish standing in unauthorized-access privacy cases by embracing intrusion upon seclusion as the relevant historical analogue under TransUnion LLC v. Ramirez.

Yet the court vacates the injunction because standing is not enough: on the record before the district court, plaintiffs did not show that the alleged privacy intrusion was irreparable in the equitable sense given the potential availability of Privacy Act damages and reparative permanent relief. The result is a doctrinally consequential remand: the courthouse door remains open (standing), but extraordinary interim relief requires a more rigorous remedial showing (irreparable harm).