“Stacked-Probabilities” and the Preliminary Injunction: The Fourth Circuit’s New Multiplicative-Likelihood Doctrine in American Federation of Teachers v. Bessent

1. Introduction

On 12 August 2025 the United States Court of Appeals for the Fourth Circuit vacated a district-court preliminary injunction that had barred three federal agencies from giving Department of Government Efficiency (“DOGE”) employees administrator-level access to sensitive databases. The plaintiffs—six national unions and six individual veterans—contended that such access violated the Privacy Act and the Administrative Procedure Act (“APA”). Writing for the majority, Judge Richardson articulated a new, highly influential lens for the first Winter factor (“likelihood of success on the merits”) when a movant must prevail on multiple independent legal issues. The court characterised the analysis as a “multiplicative problem”: overall likelihood equals the product of the probabilities of success on each dispositive point. Because the district court had not discounted the plaintiffs’ overall odds to account for this compounding uncertainty, the Fourth Circuit held that it abused its discretion and remanded the case.

Judge King dissented vigorously, accusing the majority of importing a “heightened standard” that effectively rewrites Winter. The judgment therefore sets up a clear doctrinal fork that other circuits—and the Supreme Court—may soon have to confront, particularly in related DOGE litigation already on the Court’s shadow docket.

2. Summary of the Judgment

Disposition: Preliminary injunction vacated and case remanded.
Holding: In multi-issue cases, courts must treat the “likelihood of success” requirement as multiplicative; the district court’s failure to do so overstated plaintiffs’ prospects and thus abused discretion.
Key ancillary holdings/predictions:
- Plaintiffs are unlikely to establish Article III standing because unauthorised internal access is not closely analogous to the common-law tort of intrusion upon seclusion under TransUnion.
- Even if standing exists, plaintiffs still face serious obstacles as to (i) “final agency action,” (ii) APA preclusion by an “adequate remedy” under the Privacy Act, and (iii) the Privacy Act’s “need-to-know” exception.
- Any one of those obstacles defeats the required composite probability.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

Winter v. NRDC (555 U.S. 7 (2008))
Established the four-factor test for preliminary injunctions. The majority emphasised that all four factors must be met and that a PI is “extraordinary.” Bessent does not change Winter's factors but recalibrates factor one in complex cases.
Lackey v. Stinnie (145 S.Ct. 659 (2025))
Re-affirmed that preliminary relief is not a merits adjudication. Richardson quotes Lackey to reinforce the need for distinct analysis.
Nken v. Holder (556 U.S. 418 (2009))
Provided the parallel four-factor test for stays. The panel referenced its earlier stay order and the Supreme Court’s DOGE-related stay in SSA v. AFSCME, importing that predictive assessment into the present merits review.
TransUnion LLC v. Ramirez (594 U.S. 413 (2021))
Central for the standing discussion; requires a “close relationship” between the alleged injury and a recognised common-law harm. The majority holds that mere internal data access lacks the necessary analogy to intrusion on seclusion.
Bennett v. Spear (520 U.S. 154 (1997)) and progeny
Guide the “final agency action” inquiry; cited to show the uncertainty whether IT-access decisions amount to consummated agency action.
Bowen v. Massachusetts (487 U.S. 879 (1988))
Stands for the principle that APA review is displaced where Congress provides a specific remedial scheme—relevant to whether the Privacy Act’s monetary remedies bar equitable APA claims.
Garey v. James S. Farrin, P.C. (35 F.4th 917 (4th Cir. 2022)) & Krakauer v. Dish (925 F.3d 643 (4th Cir. 2019))
Distinguished; the court reads them narrowly, confining intrusion-upon-seclusion analogies to targeted intrusions such as unwanted calls or mailings, not passive data storage.

3.2 Legal Reasoning

The majority’s doctrinal centerpiece is the “Multiplicative-Likelihood Doctrine.” Where success at trial requires prevailing on several independent elements (A and B and C…), the plaintiff’s overall probability equals P(A)×P(B)×P(C)… Because multiplication drives the product downward, the plaintiff must show a high probability on each input. The district court, the Fourth Circuit says, effectively treated the probabilities as additive or independent, thereby inflating plaintiffs’ overall chances.

Applying the doctrine:

Standing (P₁): The plaintiffs’ claimed injury (internal access) is at best weakly analogous to intrusion upon seclusion; hence P₁ well below 50%.
Final agency action (P₂): The grant of IT credentials may not be the “consummation” of any formal agency process; precedent murky—so P₂ uncertain.
APA cause of action (P₃): The Privacy Act’s own remedial structure may be “adequate,” displacing the APA. Again P₃ uncertain.
Substantive Privacy-Act violation (P₄): The “need-to-know” exception could legitimize DOGE access; P₄ uncertain.

The compounded probability (P₁×P₂×P₃×P₄) is therefore “too low” to clear Winter. That conclusion alone suffices; the court expressly declines to address the remaining Winter factors but notes doubts about irreparable harm.

3.3 Potential Impact

Heightened hurdle for complex injunctions. Litigants seeking preliminary relief on theories that implicate multiple threshold or merits issues must marshal near-airtight showings on each one or risk dismissal.
Government defendants advantaged. Agencies can stack procedural objections (standing, finality, statutory remedies) to erode plaintiffs’ composite likelihood.
Renewed attention to the Privacy Act/APA interface. By flagging but not resolving the “adequate remedy” question, the court invites future litigation and possibly a Supreme Court resolution.
Foreseeable circuit splits. The dissent accuses the majority of rewriting Winter. Other circuits may reject the multiplicative framing, creating conflict ripe for Supreme Court review.
DOGE litigation trilogy. This case, the SSA counterpart (already on the Supreme Court’s shadow docket), and related New York litigation form a tapestry that will likely clarify federal information-privacy doctrines and executive-order authority.

4. Complex Concepts Simplified

Preliminary Injunction: A short-term court order issued early in a lawsuit to preserve the status quo until the merits can be fully resolved. Requires satisfaction of the four Winter factors.
Likelihood of Success on the Merits: Courts do not require certainty at this stage but a reasonable probability of winning at trial; Bessent recalibrates what “reasonable” means when multiple hurdles exist.
Multiplicative-Likelihood Doctrine: When a plaintiff must win on several independent issues, the overall probability is the product of each individual probability. Even moderately strong chances on each issue can combine to a weak overall chance.
Standing & Concrete Injury: To sue in federal court a plaintiff needs an injury “in fact.” After TransUnion, the injury must resemble a harm traditionally recognised in common law. Mere statutory violation is insufficient.
Final Agency Action: Under the APA, only actions that mark the end of an agency’s decision-making and produce legal consequences are reviewable.
Need-to-Know Exception: Privacy Act §552a(b)(1) lets an agency share records with its own employees who “need” them to do their jobs. The scope of “need” is hotly contested.
Adequate Remedy: If another statute already offers sufficient judicial relief (e.g., damages under the Privacy Act), the APA cannot be used to seek additional remedies like injunctions.

5. Conclusion

American Federation of Teachers v. Bessent is far more than an agency-privacy dispute; it is the Fourth Circuit’s bold recalibration of the first Winter factor through the “stacked-probabilities” lens. By insisting that district courts discount composite likelihood when multiple dispositive issues are in play, the court erects a formidable barrier to preliminary relief in complex federal litigation—particularly cases alleging both constitutional and statutory violations against the government. Whether this multiplicative approach becomes a nationwide rule or sparks a circuit split will depend on forthcoming decisions, including the en banc SSA appeal and possible Supreme Court review. Meanwhile, advocates on both sides must account for the new doctrine: plaintiffs in framing streamlined claims and defendants in stacking legitimate procedural defenses. The judgment thus reshapes preliminary-injunction practice and hints at deeper debates over privacy, administrative law, and the judiciary’s equitable powers in the digital age.