4th Circuit: ‘Local controversy’ exception, free speech, more

Civil Practice; Rule 56(d)

BOTTOM LINE: In a case of first impression, the court joined the Fifth and Ninth Circuits in holding that district courts need not directly address an outstanding Rule 56(d) motion. Absent evidence of accidentally overlooking the motion, “[w]hen a district court enters a final judgment, it has implicitly denied any outstanding motions, even if the court does not explicitly deny a particular motion.”

CASE: Escobar-Salmeron v. Moyer, Case No. 20-6853 (filed Aug. 14, 2025) (Judges Agee, Rushing, BENJAMIN).

FACTS: Escobar-Salmeron sued correctional officers Corey T. Holland and Daniel Arndt, as well as Stephen T. Moyer, the former secretary of the Maryland Department of Public Safety and Correctional Services, alleging that the correctional officers violently assaulted him in violation of the Eighth Amendment and Maryland law. Moyer and the correctional officers moved to dismiss, or, in the alternative, for summary judgment, to which they attached 28 exhibits.

Escobar-Salmeron opposed the motion, citing Fed. R. Civ. P. 56(f) to argue summary judgment should be denied because he had been unable to pursue discovery. The district court nonetheless dismissed Escobar-Salmeron’s state law claim and his claims against Moyer before granting the correctional officers summary judgment on the remaining claims.

LAW: The correctional officers argue that the district court properly granted summary judgment despite Escobar-Salmeron’s purported Rule 56(d) declaration because any such “request” was deficient. They point out that Escobar-Salmeron did not file a formal Rule 56(d) affidavit, request discovery or move to compel or permit discovery and that he did not identify the specific facts in dispute in the sole possession of the correctional officers and of which he was not already aware.

Circuits disagree as to whether a court must explicitly acknowledge a Rule 56(d) declaration. This court agrees with the Fifth and Ninth Circuits that district courts need not directly address an outstanding Rule 56(d) motion. Absent evidence of accidentally overlooking the motion, “[w]hen a district court enters a final judgment, it has implicitly denied any outstanding motions, even if the court does not explicitly deny a particular motion.” Because Escobar-Salmeron has presented no evidence that the district court overlooked his Rule 56(d) declaration, this court interprets the district court’s silence as a denial.

Regarding Escobar-Salmeron’s Rule 56(d) motion, the court finds his request procedurally insufficient. Merely alleging that the correctional officers had not been responsive to his discovery requests—without having requested discovery in the instant case—was insufficient to put the district court on notice of the discovery he sought.

Turning Escobar-Salmeron’s excessive force claim, his verified complaint, which retains its “evidentiary value as an affidavit at the summary judgment stage,” alleges that the correctional officers kicked, punched and beat him, thereby injuring his neck, shoulders, head and back. These allegations are supported by the large, raised bruise on the top of Escobar-Salmeron’s head, which was still observable by medical providers more than three weeks later, and by his months-long string of requests for x-rays, medication and treatment for back and shoulder pain stemming from the altercation.

Both correctional officers denied striking Escobar-Salmeron yet provided no alternative explanation for the bruise’s source. This difference of accounts is exactly the sort of “genuine dispute of material fact” that renders summary judgment inappropriate on an excessive force claim.

The correctional officers also argue that the record “blatantly contradict[s]” Escobar-Salmeron’s “conclusory assertions . . . that he complied with all the Correctional Officers’ orders and that their use of force was unwarranted.” But Escobar-Salmeron disagrees with that claim and notes the lack of specific unrebutted evidence in the record that would permit the grant of summary judgment at this point. So, because material facts remain in dispute, Escobar-Salmeron met his burden at this stage, and the district court’s grant of summary judgment was improper.

Vacated and remanded.

Civil Procedure; CAFA ‘local controversy’ exception

BOTTOM LINE: Where a putative class action was properly removed to federal court, but the plaintiffs showed the dispute involved a local controversy, the district court did not err when it remanded the case to state court.

CASE: Skyline Tower Painting Inc. v. Goldberg, Case Nos. 24-141, 24-142, 24-1250, 24-1251 (filed Aug. 1, 2025) (Judges Diaz, WYNN, Thacker).

FACTS: Plaintiffs filed a putative class action against Television Tower Inc., or TTI, and Skyline Tower Painting Inc. after Skyline hydroblasted a television tower owned by TTI during cleaning, causing lead-based paint chips to spread in every direction. Defendants removed the case to federal court pursuant to the Class Action Fairness Act, or CAFA. The district court granted plaintiffs’ motion to remand pursuant to CAFA’s local-controversy exception.

Defendants each filed petitions for permission to appeal the district court’s decision pursuant to 28 U.S.C. § 1453. The following day, each defendant also filed a notice of appeal as of right under 28 U.S.C. § 1291.

LAW: The court first considers whether jurisdiction is appropriate. Defendants sought appellate review as of right under § 1291 and by permission under § 1453. While § 1291 gives this court “jurisdiction of appeals from all final decisions of the district courts” within this circuit, it is limited by certain other provisions. First, review must not be precluded by § 1447(d)’s limitation on appellate review of remand orders. Second, defendants must not be statutorily required to use the petition avenue provided by § 1453(c)(1).

The court first agrees with the circuit courts’ consensus that a remand order based on one of CAFA’s exceptions to the otherwise valid exercise of CAFA jurisdiction does not demonstrate a defect in the removal procedure. Sections 1447(c) and (d) thus pose no bar to an appeal as of right under § 1291 in this circumstance.

That leaves the question of whether § 1453 provides the exclusive avenue for appeal here, precluding defendants from utilizing § 1291 even though they otherwise would be entitled to do so. This court agrees with the three courts of appeals that have addressed this question and conclude that § 1453 is nonexclusive and that both statutes provide avenues for appeal. Accordingly the court has jurisdiction over this appeal under § 1291. Defendants’ petitions for review under § 1453 are dismissed as unnecessary.

Turning to the merits, there is no dispute that defendants properly removed this case to federal court pursuant to CAFA, giving the district court original jurisdiction over this matter. Section 1332(d)(4) provides that “[a] district court shall decline to exercise [CAFA] jurisdiction” when one of two exceptions applies. Here, plaintiffs invoked the local-controversy exception.

This court joins other circuits in concluding that parties seeking remand must show that a CAFA exception applies by a preponderance of the evidence. That means the plaintiffs must first establish by a preponderance of the evidence is that “greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of” Maryland.

Defendants provide no reason why “the principal physical office location of the business in its home state or country” would not equate to the business’s nerve center.  Turning to individuals, this court joins the Sixth Circuit in holding that a district court does not err when it adopts a rebuttable presumption that evidence of residency demonstrates citizenship. Here, plaintiffs counted as citizens only those individuals whose principal residence was listed on state’s website as a residence in Maryland. Accordingly, the district court correctly determined that plaintiffs satisfied their burden on the citizenship element.

The local-controversy exception also requires plaintiffs to demonstrate that “at least 1 defendant is a defendant” (a) “from whom significant relief is sought by members of the plaintiff class,” (b) “whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class” and (c) “who is a citizen of” Maryland. Because TTI is the only Maryland-citizen defendant, plaintiffs must satisfy this element as to TTI to be able to invoke the local-controversy exception. They have done so.

It doesn’t matter if Skyline is allegedly more liable than (or just as liable as) TTI, so long as plaintiffs seek “significant relief” from TTI, and TTI’s conduct “forms a significant basis” for the claims. Plaintiffs seek to hold TTI responsible not only for the actions of the company it hired to perform the work, but also for its own negligence in failing to obtain the proper permits and failing to hire a properly accredited company to undertake work it knew would be hazardous to the surrounding community. That means the relief sought against TTI is substantial.

Affirmed.

Constitutional; free speech

BOTTOM LINE: Where the Maryland General Assembly enacted a law that taxes the revenues companies produce by advertising on the internet, and restricted the ways that a resulting price increase can be communicated, the district court erred when it dismissed a facial challenge to the statute.

CASE: Chamber of Commerce of the United States of America v. Lierman, Case No. 24-1727 (filed Aug. 15, 2025) (Judges RICHARDSON, Heytens, Floyd).

FACTS: Maryland enacted a law that taxes the revenues companies produce by advertising on the internet. Then, in response to complaints that companies subject to the tax might “simply pass the cost along to already struggling Maryland businesses, rather than absorb the cost of the tax,” the General Assembly added a provision reading “A person who derives gross revenues from digital advertising services in the State may not directly pass on the cost of the tax imposed under this section to a customer who purchases the digital advertising services by means of a separate fee, surcharge, or line-item.”

A group of trade associations sued Maryland’s Comptroller of the Treasury. They claimed that the pass-through provision is a content-based restriction on political speech that violates the First Amendment because it forbids them to explain the tax to their customers and thus place political responsibility for price increases with Maryland.

And as an alternative to that facial challenge, they added a second: that the provision unlawfully restricted commercial speech. The district court dismissed plaintiffs’ facial challenge, reasoning that the pass-through provision had many constitutional applications.

LAW: The pass-through forbids companies to directly pass on the cost “by” any of three specified “means”: “separate fee[s], surcharge[s], or line-item[s].” It restricts the ways that a price increase can be communicated. The upshot of the pass-through is that companies may pass on the tax by increasing their prices or silently adding the cost of the tax to the total due on an invoice. But they may not pass on the tax by noting a separate cost on the bill.

The pass-through thus restricts how companies can talk about the tax—and in so doing, it regulates speech. Telling customers what they must pay is speech. To regulate how companies can communicate that information—allowing some ways and forbidding others—is thus to regulate speech.

Maryland claims that more than anything, the pass-through provision aims at conduct. The point of the provision, it says, is to regulate the way transactions are structured—not the way companies talk about them. So even if it regulates speech, the story goes, the burden is only incidental.

This court struggles to see what transactional structures the pass-through forbids. As explained, the pass-through allows companies to pass on the cost of the tax. If it forbade passing on the cost, then the “by means of” proviso—and the words that follow it—would be surplusage. And Maryland’s concessions confirm as much.

As the state now says, companies can calculate how much tax they’ll owe because of a given transaction and add that very amount to the customer’s bill. Economically, this puts the whole cost of the tax on the customer’s ledger. And whatever else Maryland can do, it cannot ban speech to support a conduct ban that does not exist.

Maryland’s law does not just regulate speech. It also distinguishes lawful speech from unlawful based on what it says. It is thus content based and presumptively unlawful. But the state counters it should be spared the burden of strict scrutiny because the speech it regulates concerns commerce. Even if this were the case, the pass-through provision fails even intermediate scrutiny.

Without any connection to the interest Maryland invokes, the pass-through provision has no plainly legitimate sweep; it has no constitutional applications. For its “lack of tailoring” to the state’s claimed goals is “present in every case.” The pass-through provision is facially unconstitutional.

The district court reasoned that “because the State of Maryland unquestionably possesses the power to levy taxes,” the statute imposing the digital advertising tax “has a plainly legitimate sweep.” This is true but irrelevant. The question is not whether the whole statute has constitutional applications but whether the pass-through provision does.

Second, the district court claimed that the pass-through provision has “many” constitutional “applications” because it “does not prohibit a taxpayer from expressing its views or opinions about the tax imposed” or telling customers that price hikes are due to the tax. But that just means these kinds of speech are not “applications” of the pass-through—any more than a statute that forbids setting off fireworks in a park forbids someone to walk his dog there.

Reversed and remanded.

Employment; adverse employment action

BOTTOM LINE: Where the government argued an employee’s reassignment was not an adverse employment action, because it entailed no diminution in pay grade, salary or benefits, it is for the jury to assess whether the loss of supervisory responsibilities sufficed as an adverse employment action.

CASE: Herkert v. Bisignano, Case No. 24-1420 (filed Aug. 14, 2025) (Judges Gregory, HARRIS, Keenan).

FACTS: Mary Herkert is a Social Security Administration employee with a disability. According to Herkert, when she requested scheduled telework as an accommodation for her medical needs, her request was denied, and she informed her supervisors of her intent to pursue equal employment opportunity remedies. Shortly after that, Herkert says, she was reassigned to a less desirable position at the agency, where she was able to telework as requested.

Herkert sued in federal district court, claiming that her reassignment was discriminatory and retaliatory, and that it failed to reasonably accommodate her disability. The district court granted summary judgment to the defendant.

LAW: The court reasoned, in part, that Herkert could not show the adverse employment action required for her discrimination and retaliation claims because her reassignment did not work a “significant” change in her employment status. Since the district court ruling, the Supreme Court has clarified, in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), that a plaintiff like Herkert, challenging a job transfer as discriminatory, need not show a “significant” change in working conditions to establish an adverse employment action.

The parties nevertheless dispute whether Herkert can satisfy the Muldrow standard by showing “some disadvantageous change” – which need not be “significant,” “serious” or “substantial” – in the terms and conditions of her employment. The government argues that she cannot, emphasizing that Herkert’s reassignment entailed no diminution in pay grade, salary or benefits. Herkert, on the other hand, argues that her reassignment was tantamount to a demotion and distinctly “disadvantageous,” primarily because it took away her supervisory authority and duties.

Muldrow offers some support for Herkert’s position, recognizing that a loss of supervisory authority may be highly relevant to the “simple injury” standard it is announcing. But this court does not read Muldrow as holding that a loss of supervisory responsibility will always be “disadvantageous,” and can imagine circumstances in which, say, the removal of burdensome supervisory duties could be a welcome development that improves the terms and conditions of employment.

Accordingly, the court declines to hold that any loss of supervisory authority suffices as a matter of law to show an actionable “disadvantageous change” in employment status. Instead, this is a context-specific inquiry, and it is for a jury to assess Herkert’s allegation that in her case, reassignment to a non-supervisory role was an adverse and “disadvantageous” change that left her “worse off,” even if not “significantly so.”

As the district court recognized, courts have employed a distinct standard for identifying cognizable adverse actions in the retaliation context.  Herkert was required to show that “a reasonable employee would have found [her] reassignment to be materially adverse,” in that it “might have dissuaded a reasonable worker” from pursuing a discrimination complaint. For much the same reason a jury could credit Herkert’s allegations that her reassignment to a non-supervisory position was a “disadvantageous change” in her employment status, it could find that change might “dissuade a reasonable worker” from protected activity.

The district court separately concluded that Herkert could not show an adverse action for either discrimination or retaliation purposes because her reassignment was “voluntary.” However an employer cannot transform a demotion into a voluntary transfer by giving an employee a choice between two demotions. And to the extent the district court believed the record would not allow a jury to credit Herkert’s account, that was mistaken.

Turning to the accommodation claim, Herbert was required to show that (1) she is an individual with a qualifying disability, (2) that her employer had notice of that disability, (3) that she could perform the essential functions of her job with a reasonable accommodation and (4) that her employer refused to make a reasonable accommodation. Because it viewed Herkert’s reassignment as voluntary, for instance, the district court had no occasion to consider that “unilateral[]” reassignment of an employee to a “position they do not want” may not qualify as a reasonable accommodation. And because it viewed Herkert’s new non-supervisory job position as equal in all relevant respects to her old position, it had no occasion to consider whether it provided Herkert a “meaningful equal employment opportunity.”

Vacated and remanded.

Freedom of Information; mootness

BOTTOM LINE: Where the district court held the lawsuit was moot because the government produced records during the pendency of the lawsuit, it erred. The plaintiff sought complete records, but the government’s production was heavily redacted.

CASE: Louisa Trauma Center LLC v. United States Citizenship and Immigration Services, Case No. 24-1768 (filed Aug. 14, 2025) (Judges Diaz, Harris, BERNER).

FACTS: Louise Trauma Center submitted multiple Freedom of Information Act, or FOIA, requests to the United States Citizenship and Immigration Services, or USCIS, seeking records related to the training and performance of asylum officers. For more than two years, the agency failed to make a determination on these requests.

Only after Louise Trauma Center filed this lawsuit did the agency produce any requested records. Even then, many of the records were heavily redacted. Shortly after producing the redacted records, the agency moved to dismiss, arguing that the suit was rendered moot because it had produced the relevant records. The agency also argued that the lawsuit should be dismissed because Louise Trauma Center had failed to exhaust its administrative remedies. The district court agreed and dismissed the case.

LAW: Ordinarily, before proceeding to federal court, a FOIA requester must exhaust remedies available through FOIA’s administrative process. To prevent agencies from keeping requesters out of court by simply delaying the administrative process indefinitely, however, FOIA provides that a requester will be deemed to have constructively exhausted available administrative remedies “if the agency fails to comply with the applicable time limit provisions.”

USCIS did not adequately respond to Louise Trauma Center’s requests within FOIA’s prescribed time limit. FOIA requires agencies to notify a requester of their “determination and the reasons therefor” within 20 business days of receiving a FOIA request. Louise Trauma Center submitted its FOIA requests between January 5 and June 30, 2021. The only action that USCIS took in response to the requests before Louise Trauma Center filed suit two years later was to send boilerplate acknowledgment letters.

These boilerplate letters do not constitute “determinations” under FOIA. Because the agency failed to provide its determinations within the requisite time limit, Louise Trauma Center constructively exhausted its administrative remedies for each request.

This court has previously held that “a challenge to a particular denial of a FOIA request becomes moot if an agency produces the requested documents.” USCIS contends that this principle controls. The agency argues that Louise Trauma Center’s case was rendered moot when it produced the requested records. That many of the produced records were heavily redacted, USCIS claims, does not change this result. Had USCIS produced the entirety of the records responsive to Louise Trauma Center’s requests, the case would be moot.

But USCIS did not produce all the records that Louise Trauma Center requested. Louise Trauma Center continues to raise a justiciable challenge under FOIA. While USCIS turned over the requested records, they were heavily redacted. Louise Trauma Center alleged that it was entitled under FOIA to all the responsive records and sought an injunction requiring USCIS to comply fully with those requests. Put simply, Louise Trauma Center’s case is not moot because USCIS has yet to produce many of the complete records Louise Trauma Center requested.

USCIS argues that dismissal is appropriate because Louise Trauma Center must first exhaust its administrative remedies with respect to its claim that the agency improperly redacted the records produced. USCIS is mistaken.

Louise Trauma Center constructively exhausted its administrative remedies because USCIS failed to provide a “determination and the reasons therefor” within the requisite FOIA time limit. Louise Trauma Center is not required to jump through further administrative hoops simply because USCIS produced portions of the responsive records after this lawsuit was filed.

This court declines to adopt USCIS’s proposed rule under which an agency could deprive a requester—one that has satisfied the administrative exhaustion requirement—of a judicial remedy in the middle of a proceeding without producing the entirety of the responsive record. Dismissing a requester’s lawsuit simply because an agency partially complied with its FOIA obligations would allow administrative agencies to engage in gamesmanship that would fundamentally undermine the FOIA timeliness requirement.

Requiring administrative exhaustion for post-lawsuit agency responses could provide an incentive for agencies to forgo responding to requests unless and until requesters file suit. Such a rule could also ensnare FOIA requesters in an administrative quagmire.

Reversed.

Labor; pre-suit demand

BOTTOM LINE: Where a union member must demand that their union take action to correct the alleged wrong before bringing suit, and the member here requested her union conduct an accounting of union funds and sue an officer for breach of fiduciary duty prior to bring suit, she satisfied this condition precedent.

CASE: Gardner v. International Association of Machinists and Aerospace Workers, Case No. 24-2089 (filed Aug. 11, 2025) (Judges GREGORY, Richardson) (Judge WILKINSON dissents).

FACTS: This case concerns whether Sandra Gardner, as a union member, can sue her union and the union’s officers for breach of fiduciary duty under 29 U.S.C. § 501. Union members must satisfy two conditions before bringing a § 501 claim: They must (1) demand that their union take action to correct the alleged wrong and (2) demonstrate that there is “good cause” to bring suit. The district court found that Gardner failed to satisfy the demand requirement and therefore could not pursue her case.

LAW: This case is peculiar because, at this stage, technically, there are no claims. If Gardner had filed her proposed complaint, this case would present two claims. The district court only declined to grant Gardner permission to proceed on Count One, and therefore, Count Two would remain live and unresolved, depriving this court of jurisdiction.

But that is not what happened. Gardner never filed her proposed complaint and therefore there never were any “live” claims. So, by denying Gardner’s application to file her § 501 claim, the district court disposed of all questions before it, rendering the district court’s denial of Gardner’s application a “final decision” for purposes of § 1291.

Next, the demand requirement states that a union member may only sue if “the labor organization or its governing board or officers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member of the labor organization.”

This court has yet to consider what constitutes a proper demand but several other circuits have. They agree that § 501(b) is designed to protect two often conflicting interests: those of union members and those of union officials.  On the one hand, “the Act is designed to protect union members, who may be of limited education and are rarely represented by counsel when sending letters to their union.” On the other, Congress put in place § 501(b)’s threshold requirement “to discourage misuse of litigation and to minimize judicial interference in the management of labor organizations.”

Courts have cautioned against taking an overly technical reading of the demand requirement. This court agrees that, in evaluating whether the demand requirement is met, courts should not impose any formalistic requirements. Rather, courts should read demands as a whole and in the context in which they were issued. The demand requirement is satisfied if a reasonable union would be put on notice of what corrective action the union member demands.

Here, Gardner wanted “an accounting of the funds . . . and . . . [for IAM to] bring suit,” and “demanded that the IAM International President and Grand Lodge bring suit against . . . Cervantes.” Gardner’s letters made clear that she wanted both done, not one or the other. So, by failing to bring suit, the union did not carry out Gardner’s demand. This court thus holds that Gardner satisfied the demand requirement.

Because it finds that Gardner satisfied the demand requirement, the court reverses the district court’s denial of Gardner’s application for leave to file her § 501 claim. It remands for further consideration on whether Gardner satisfied the good cause requirement.

Reversed and remanded.

DISSENT: I would affirm the denial of Sandra Gardner’s application for leave to file her complaint. The majority boils § 501(b) down into two requirements: the member-plaintiff must (1) demand that the union take corrective action and (2) demonstrate “good cause” to bring the lawsuit.

According to the majority, the district court misapplied the former and declined to address the latter, warranting remand. Whatever the propriety of this formalistic distinction, it makes no difference here. We “may affirm on any grounds apparent from the record” and the record here makes apparent that Gardner lacks good cause.

Municipal; preliminary injunction

BOTTOM LINE: Where the plaintiffs were not likely to prevail on multiple issues undergirding their claims, the district court erred when it enjoined government agencies from granting IT access to their DOGE affiliates.

CASE: American Federation of Teachers v. Bessent, Case No. 25-1282 (filed Aug. 12, 2025) (Judges Agee, RICHARDSON) (Judge KING dissents).

FACTS: On Jan. 20, 2025, the President issued Executive Order 14,158 with the purpose of “modernizing Federal technology and software to maximize governmental efficiency and productivity” in executive agencies. Shortly after three agencies granted IT access to their Department of Government Efficiency-affiliated employees, plaintiffs sued in federal district court.

Plaintiffs alleged that they or their members have personally identifiable information housed in the agencies’ databases and claimed that disclosing the information to the agencies’ DOGE-affiliated employees would violate both the Privacy Act and the Administrative Procedure Act, or APA. As relief, plaintiffs sought to permanently enjoin the agencies from granting IT access to their DOGE affiliates.

In the meantime, plaintiffs also moved for a temporary restraining order to revoke the IT access already given to the DOGE affiliates. On February 24, after the DOGE affiliates at all three agencies had possessed varying degrees of IT access for about a month, the district court granted the motion. On March 24, the district court supplanted its temporary restraining order by granting plaintiffs’ motion for a longer-lasting preliminary injunction against all three agencies.

The government moved to stay the preliminary injunction pending its appeal, which this court granted. As this appeal was pending, the Supreme Court stayed the preliminary injunction in a related case involving nearly identical Privacy Act and APA claims brought against the Social Security Administration and its DOGE-affiliated employees.

LAW: A district court may only grant a preliminary injunction if it determines that the plaintiff has shown (1) that they are likely to succeed on the merits, (2) that they are likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in their favor and (4) that the injunction is in the public interest.

To find plaintiffs likely to succeed on the merits, the district court needed to conclude that it was likely that plaintiffs alleged an injury bearing a close relationship to a common-law harm, and that the government’s actions here were judicially reviewable “final agency actions” under the APA, and that the availability of monetary damages under the Privacy Act did not qualify as an adequate remedy precluding a cause of action under the APA and, finally, that the government’s disclosure of data did not fall under the Privacy Act’s listed “need-for-the-record” provision permitting intra-agency use. This court does not believe the district court could have properly done so.

This court does not hold with certainty that plaintiffs lack standing, that they have not challenged final agency action, that they cannot sue under the APA or that the DOGE affiliates’ IT access falls into the Privacy Act’s need-to-know exception. The court instead comes to a statistically surer conclusion: that plaintiffs have failed, by a decent margin, to show that they will likely prevail on all of these issues combined.

The district court abused its discretion in finding that plaintiffs were likely to prevail on each one, and with such certainty that they were likely to succeed overall. And without satisfying one Winter factor, plaintiffs could not receive a preliminary injunction. The court thus holds that the district court abused its discretion in concluding that plaintiffs were likely to succeed on the merits. The district court’s order granting plaintiffs’ motion for a preliminary injunction is vacated, and the case is remanded to the district court for further proceedings.

So ordered.

DISSENT: I would reject the panel majority’s heightened standard and affirm the district court’s preliminary injunction as a proper application of the entire four-factor Winter test. In any event, similar questions about the applicable standard, the likelihood of success on the merits and the other Winter factors are set to be considered and decided by our en banc court in  American Federation of State, County & Municipal Employees v. Social Security Administration, concerning DOGE’s access to Social Security records. Today, in this case, I dissent.