No “Multiplicative” Preliminary Injunction Standard: Fourth Circuit Denies Shutdown-Based Extension to Fast-Track Clarification in AFT v. Bessent

Introduction

In American Federation of Teachers v. Scott Bessent, No. 25-1282 (4th Cir.), the Fourth Circuit denied the federal government’s motion to extend the time to respond to a petition for rehearing en banc on account of a lapse in appropriations (the federal shutdown). The order, entered October 9, 2025, is procedurally modest: it simply refuses an extension. Substantively, however, Judge King’s concurring opinion uses the occasion to deliver an urgent message to courts and litigants within the Circuit: the panel majority’s recently announced, “heightened” preliminary injunction standard—framed as a “multiplicative problem” requiring an “extremely high” likelihood of success on each independent issue—conflicts with binding Supreme Court and Fourth Circuit precedent and should not be used.

The case sits at the intersection of emergency relief standards and fast-moving federal policy. Plaintiffs—national unions and individual veterans—challenge the unprecedented access of the President’s newly created Department of Government Efficiency (“DOGE”) to personally identifiable information (PII) held by federal agencies, including the Departments of the Treasury and Education and the Office of Personnel Management (OPM). After the district court entered a TRO and then a preliminary injunction prohibiting disclosure of PII to DOGE and affiliates, a Fourth Circuit panel stayed and then vacated that injunction, unveiling a novel “probability multiplication” test for the likelihood-of-success factor. Several district courts have since expressed uncertainty about whether they must apply the panel’s formulation. With requests for emergency relief proliferating during the shutdown, the concurrence argues that delay would compound legal error and practical harm, and presses the court to move promptly toward en banc clarification—here or in a related, pending en banc appeal involving the Social Security Administration (“SSA case,” No. 25-1411).

Summary of the Opinion

The court’s order denies the government’s motion to stay or extend the deadline to respond to the petition for rehearing en banc, notwithstanding the ongoing lapse of appropriations. The order was entered at the direction of Judge Richardson with the concurrence of Judges King and Agee.

Judge King’s separate concurrence (1) explains his vote to deny an extension; (2) stresses that the panel majority’s “multiplicative” preliminary injunction standard is irreconcilable with Supreme Court and Fourth Circuit precedent; (3) warns that lower courts are not obliged to, and should not, employ that heightened approach; and (4) urges the court to resolve the applicable standard expeditiously—either in this case or in the en banc SSA case—given the volume and urgency of ongoing requests for injunctive relief against government actions during the shutdown. He cites examples of district courts already invoking or wrestling with the panel’s test, underlining the risk of doctrinal drift if clarification is postponed.

Background and Procedural Posture

Parties:
- Plaintiffs–Appellees: American Federation of Teachers; International Association of Machinists and Aerospace Workers; National Active and Retired Federal Employees; National Federation of Federal Employees; International Federation of Professional & Technical Engineers; and six individual veterans (Donald Martinez, Jason Cain, Clifford Grambo, Thomas Fant, Christopher Purdy, and Kristofer Goldsmith).
- Defendants–Appellants: Scott Bessent (Secretary of the Treasury); U.S. Department of the Treasury; Charles Ezell (Acting Director of OPM); Linda McMahon (Secretary of Education); OPM; and the U.S. Department of Education.
Underlying controversy: Plaintiffs challenge agency disclosures of PII to DOGE. The district court first issued a TRO (Feb. 2025) and then a preliminary injunction (Mar. 2025) barring Treasury, Education, and OPM from sharing PII with DOGE or its affiliates. Though formally limited to the plaintiffs, the orders had a practical systemwide effect.
Fourth Circuit panel action: A panel stayed the preliminary injunction in April 2025 and, in a published decision in August 2025 (the “Panel Decision”), vacated the injunction while articulating a new, “multiplicative” standard for the likelihood-of-success factor when multiple dispositive issues are contested. The panel suggested plaintiffs “seemingly lack” Article III standing.
Rehearing sought: Plaintiffs petitioned for rehearing en banc (Sept. 8, 2025), challenging the panel’s heightened standard as incompatible with Supreme Court and Fourth Circuit law and warning it invites gamesmanship.
Shutdown motion: The government moved to extend its time to respond to the rehearing petition because of the lapse in appropriations. The court’s Oct. 9, 2025 order denies that request. Judge King’s concurrence emphasizes the urgent need to prevent further reliance on the panel’s heightened standard in the lower courts.
Related en banc case: The Fourth Circuit heard en banc argument on Sept. 11, 2025, in the SSA case (No. 25-1411), presenting overlapping issues concerning DOGE, standing, and the applicable preliminary injunction standard. A decision is pending.

Analysis

Precedents and Authorities Discussed

Ramirez v. Collier, 595 U.S. 411 (2022): The Supreme Court evaluated a request for injunctive relief over religious accommodations in an execution setting under the ordinary preliminary injunction framework. Judge King invokes Ramirez to illustrate that the Court assessed multiple contested issues without any “multiplicative” probability calculus or demand that a plaintiff show an “extremely high” likelihood of success on each independent question.
League of Women Voters of North Carolina v. North Carolina, 769 F.3d 224 (4th Cir. 2014): The Fourth Circuit applied the standard preliminary injunction test in complex voting-rights litigation involving multiple claims and issues, again without resort to probability multiplication. The case undercuts the panel’s premise that multiple dispositive issues require an elevated showing on each.
State Oil Co. v. Khan, 522 U.S. 3, 20 (1997): The Supreme Court’s admonition that only the Supreme Court may overrule its own precedents. Judge King relies on this vertical-stare-decisis point to argue that a panel cannot discard controlling Supreme Court PI doctrine in favor of a novel mathematical approach.
McMellon v. United States, 387 F.3d 329, 334 (4th Cir. 2004) (en banc): Establishes that when Fourth Circuit panel decisions conflict irreconcilably, lower courts must follow the first decision unless and until overruled by the Fourth Circuit en banc or the Supreme Court. Because prior Fourth Circuit cases applied the traditional PI standard, a later panel cannot lawfully impose a conflicting, heightened test.
District court reactions:
- NAACP v. United States, No. 8:25-cv-00965 (D. Md. Aug. 19, 2025), ECF No. 86: Denied a preliminary injunction by quoting the panel’s requirement of “an extremely high likelihood of success on each individual issue.”
- PSEG Renewable Transmission LLC v. Alvi Props., LLC, No. 25-cv-02296 (D. Md. Sept. 2, 2025), ECF No. 156: Acknowledged that “the Fourth Circuit has arguably heightened the standard,” and then evaluated the motion “including under the American Federation of Teachers standard.”
These examples show immediate downstream effects from the panel decision and the confusion the concurrence seeks to arrest.

Although not cited explicitly in the concurrence, the Supreme Court’s canonical framework from Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), forms the backdrop for preliminary injunction analysis: a plaintiff must make a clear showing of (1) likelihood of success on the merits, (2) likely irreparable harm absent relief, (3) a balance of equities tipping in the plaintiff’s favor, and (4) consistency with the public interest. Judge King’s point is that neither Winter nor later Supreme Court or Fourth Circuit applications convert the first factor into a “run-the-table” probability product when cases present multiple contested merits issues.

Legal Reasoning

Judge King’s concurrence advances three interlocking propositions:

The panel’s “multiplicative” standard conflicts with binding precedent. When multiple dispositive issues are contested, Supreme Court and Fourth Circuit decisions have not ratcheted up the likelihood-of-success burden by multiplying independent probabilities. Rather, courts weigh the traditional factors and assess the merits in a holistic way faithful to Winter and its progeny. By demanding an “extremely high” likelihood of success on each individual issue so that the product clears a “normal” threshold, the panel majority deviated from controlling doctrine.
Lower courts are not obliged to apply the panel’s heightened test. Under State Oil v. Khan, a panel cannot overrule Supreme Court precedent. Under McMellon, in the event of an irreconcilable conflict with earlier Fourth Circuit panel decisions applying the ordinary standard, the earlier decisions govern unless and until the Fourth Circuit en banc or the Supreme Court says otherwise. Accordingly, district courts within the Circuit “need not and should not” employ the panel’s heightened approach.
Urgency justifies denying the extension. The government’s request to delay its rehearing response due to the shutdown might be appropriate in some cases, but not here. Ongoing governmental actions and ongoing requests for emergency relief heighten the need for swift clarification; district courts are already citing the panel’s test. The shutdown does not reduce but “intensifies” the need for prompt resolution—whether in this case or in the pending en banc SSA appeal—because delay risks the spread of an erroneous standard at a moment when effective judicial oversight is most needed.

Judge King also notes that the panel’s analysis questioned plaintiffs’ Article III standing, highlighting another contested merits issue likely to be addressed in the SSA en banc case. But his central objective is to disentangle the immediate scheduling decision from the deeper question of what preliminary injunction law requires, and to keep the court on a path to timely and definitive guidance.

Impact

Although the order itself governs only a filing deadline, its practical and doctrinal implications are considerable:

For district courts: The concurrence offers clear, persuasive guidance: do not treat the panel’s “multiplicative” test as binding law. Until the Fourth Circuit en banc or the Supreme Court says otherwise, the ordinary preliminary injunction standard applies—even when litigation presents multiple independent merits issues. Expect lower courts to cite Judge King’s reasoning to justify adherence to Winter and established Fourth Circuit cases.
For litigants: Defendants should not presume that multiplying contested issues will mechanically lower a plaintiff’s likelihood of success below a “normal” threshold. The concurrence explicitly flags and condemns incentives to “game the probabilities” by proliferating tenuous issues. Plaintiffs seeking emergency relief should frame their likelihood-of-success arguments under the standard Winter framework and be prepared to rebut any “multiplicative” reframing.
For the Fourth Circuit: The order signals institutional urgency. The court appears poised to address, in short order, whether the panel’s standard survives en banc scrutiny—possibly in the SSA case. This may also serve as a cautionary note about the propriety of announcing major doctrinal shifts in emergency-relief contexts without en banc involvement.
For shutdown-era litigation: Courts retain discretion to deny extensions that would impede timely clarification of governing standards, especially where delay risks compounding systemic error. The order underscores that a lapse in appropriations does not create an automatic entitlement to extensions when pressing public and private interests are at stake.
Substantive privacy disputes (DOGE): While the order does not reach the merits, its expedited timeline will likely accelerate appellate consideration of standing, statutory and constitutional privacy protections, and the scope of permissible inter-agency PII sharing.

Complex Concepts Simplified

Preliminary injunction: A court order issued early in a case to maintain the status quo and prevent irreparable harm before a final judgment. The movant must generally show a likely win on the merits, likely irreparable harm without the injunction, that the balance of equities favors them, and that an injunction serves the public interest.
Likelihood of success on the merits: Not a demand for certainty, but a sufficiently strong showing that the plaintiff is likely to prevail. Courts assess this holistically; they do not normally require overwhelming odds on every single disputed issue.
The “multiplicative” approach: The panel’s idea that if a case has multiple independent, dispositive issues, the overall chance of success equals the product of the plaintiff’s probability of winning each issue. This quickly drives down the overall probability unless the plaintiff has extremely high odds on each issue. The concurrence argues this has no basis in controlling precedent and warps equitable analysis.
“Run the table” problem: The panel’s example posits that even strong odds on each issue (e.g., 75%) can produce a low overall success chance when multiplied across multiple issues (e.g., 0.75^5 ≈ 24%). The concurrence criticizes making this arithmetic dispositive of the equitable standard.
Article III standing: The constitutional requirement that plaintiffs show a concrete injury caused by the defendant’s actions and redressable by the court. The panel questioned plaintiffs’ standing; the en banc SSA case may address similar standing questions.
Rehearing en banc: Review of a panel decision by all active judges of the circuit. It is reserved for cases of exceptional importance or to secure uniformity in the court’s decisions.
Lapse of appropriations (shutdown): When Congress fails to fund government operations, certain agencies—including, often, the Department of Justice—seek to pause civil litigation. Courts may grant extensions but are not required to do so, especially if delay would prejudice important interests or perpetuate legal error.
DOGE and PII: The “Department of Government Efficiency” is described as a new executive department with broad, unprecedented access to sensitive personal data across agencies. Plaintiffs seek to halt disclosures of PII to DOGE pending adjudication of their claims.

Conclusion

The Fourth Circuit’s denial of a shutdown-based extension in AFT v. Bessent is paired with a powerful concurring opinion that amounts to a doctrinal flare: district courts in the Circuit should not apply the panel’s “multiplicative” preliminary injunction test because it conflicts with binding Supreme Court and Fourth Circuit law. By urging immediate clarification—either in this case via en banc review or in the already-argued SSA appeal—the concurrence seeks to prevent the spread of a probability-based formula that would tilt the playing field against preliminary relief whenever a defendant can multiply disputed issues.

The opinion’s immediate effect is to keep the case moving; its broader significance lies in reaffirming traditional preliminary injunction principles. Likelihood of success remains a qualitative legal judgment anchored in precedent, not an arithmetic exercise that rewards issue proliferation. As courts confront a wave of shutdown-era emergency motions amid ongoing federal initiatives, the message is clear: adhere to established standards unless and until a higher authority changes them—and do so promptly to preserve both legal coherence and the efficacy of equitable relief.