February 17, 2025 – D.C. District Judge Chutkan declines to immediately issue order halting Musk and DOGE from accessing federal data

In Email/Dossier/Govt Corruption Investigations, Featured Timeline Entries by Katie Weddington

Judge: Had hearing on Friday, I asked Plaintiffs to file proposed order narrowing; filed narrowing proposed scope on Sat. at 4; at Friday’s hearing it was my harm extremely serious & colorable claim; but TRO wasn’t tailored to gov’t; narrowed from 11 to 2 dept; revised to ask to enjoin Musk, DOGE, defendants, accessing/copying in 7 agencies; or terminating agents/employees in agencies: OPM, educ., labor, hhs, energy, transportation, commerce; asked for 14 days; cite complaint, declaration, news report. Gov’t responded: remains too broad & not tied to appointment clause; asked to proceed on PI; 1:30 a.m. Plaintiffs filed reply, arguing threat of data disclosure & dismanteling will cause irreparable harm, and oppose PI and seek discovery. On Friday: TROs/PI are extraordinary remedies, PI only after notice; TROs purpose to preserve status quo; same 4 part test applies to both. Emergency TRO so immenent. Plaintiff if deny & get PI, then allow discovery?

Plaintiffs: We are confident we have evidence necessary to get TRO. Judge: Lots of news reports out there. Court can’t act based of news reports–they can’t find basis for TRO. Plaintiffs: I can point to what has already happen. Absolutely narrowing request. Our concern is how they are using data–for purpose other than designed to be collected. Judge: Tie to complaint? Plaintiff: From statement Musk makes; X posts; DOGE website (workforce; regs; finance): Using data they have access to to decide how to make cuts. So, Educ. Dep’t: School notes shortage of educators, poor outcomes, plus money–rely for operational & technical support. What is threatened by DOGE? Plaintiffs: DOGE has affected funding cuts across Educ. including research program, such as Institute of Educational Science have in past studied programs used in New Mexico. Judge: If I don’t issue TRO & convert to PI: And you win? If it gets slashed can’t you get money. Cuts to nuclear hurts New Mexico. Plaintiff: We’re getting reports to DOGE direction called for cuts to CDC staff, including Indian Health Staff, just made public, new secretary is trying to rehire poeple…New Mexico has large tribe…Judge: It has to be extreme harm it has to be imminent, and tomorrow and it will definitely happen. Something that can’t be “undone”–difficult or challenging, it can be undone.

Judge: Generalized fear, even if likely, isn’t enough for TRO and I’m not seeing it so far. Plaintiffs Lawyer: If Defendants have evidence to refute this. . . (NOT Defendants’ job). Cites to Washington Post article of DOGE memos of plans to spending cut. On Wednesday will start with continue to staffing cuts–nothing described. Judge must have rolled eyes: “I understand your frustration.” Plaintiff references X posts of “Education’s next” so ask TRO based on identified targets with agencies with direct ties and direct harms.
Judge: References other cases, why can’t Plaintiffs get TRO in 2 days b/c it is happening tomorrow or today? This is a prophaletic TRO and that’s not allowed. Plaintiff: “Going back to Washington Post” and showing DOGE memo saying all agencies will be targeted, between DOGE memos, statements, and X posts, on Wednesday we will see more. This is Appointment Clause claim, is different then other TROS. Our request is drastically different b/c we aren’t seeking to enjoy Agencies: It is targeted to Musk & DOGE and that they aren’t using info in unconstitutional ways.
Judge: Look at relief? What is harm if they have access to the inform? How is that directed to harm?
Plaintiff: It is the use of the data. How they identify how to make cuts is through access to data.
Judge: But it is in DOGE’s remit (authority) to analyze data. Also, if it already happened, it’s not imminent.
Plaintiff: Yes, they were charged w/ rooting out waste. These are not advisors, based on statements, etc., it is clear that CMS, directions where to cut were from Musk & DOGE and only able to do through anaylsis of data. Giving “directives” is well beyond EO.
Judge: Again, you are for TRO: You also want to stop all personnel decisions, how does this cause harm.”
Plaintiff: Only place for safe disposal of nuclear waste; Energy issued notice to terminate personnel, that includes staff who oversee disposal.
Judge: Wouldn’t those employees have the claim.
Plaintiff: Our harm is state’s ability to carry out its function. Lose of administration personnel, no one to pick up phone, or write checks.
Judge: TRO actions OMP access, have different claims, privacy

Judge: Why wouldn’t those other cases provide relief that bar access to data. noted two other cases that cover access/firing. (Judges Cooper & Bates)
Plaintiff: Those were privacy act claims. We want to make sure Musk & DOGE aren’t using data inappropriately.
Judge: BUT the harm you are alleging is already being considered in other cases & still broad: 7 large agencies no data/no firing?
Plaintiff: Yes, because relief has not been issued yet. Difference between enjoining agency & enjoining Musk/DOGE. That is significant distinction.
Judge: What would imminent harm re DOT & Dep’t of Commerce, to Plaintiffs States.
Plaintiff: Inability to carry out programs & functions. (She isn’t answering).

Judge to Musk: reports of 1000 who received termination notices. Is it true?
Gov’t: I can’t confirm.
Judge: Wait! Not small thing, you haven’t looked at it?
Gov’t: I looked to what was relevant. I’ll look at it.
Judge: And are additional terminations planned in next 14 days. I can’t base on news reports. But you should be able to say we fired & we will fire x more.
Gov’t: Starting w/ State Declaration to justify imminent injury. Only 3 states discuss data access and concerns by residents. New Mexico: Says it has data at 3 agencies. Plaintiffs say that the concern is “not the access,” so the TRO shouldn’t address it. All discuss possible actions, that may affect downstream: That’s not imminent.
Judge: Reason that language is used is because DOGE actions have been unpredictable & scattershot. Will there been terminations/will there be?
Govt: There basic point is that Musk or DOGE is exercising sovereign power without authority–but all the actions complained about, there is a paper trail. What is clear is that you have a properly named officer exercising his authority. NO evidence of Musk or DOGE doing the terminating.
Judge: Musk hasn’t been appointed/confirmed–essentially a private citizen to fire/hire/contract/terminate, without congressional.
Govt: He is a Special Government Employee. There theory is that Musk exercises authoritative “influence.” THAT is not an appointment clause claim: They have not shown any formal or actual authority to make any decision himself.
Judge: I think you’re going too far.
Gov’t: Has state marshalled evidence of imminent harm.
Judge: Can gov’t agree to hold off on mass termination while PI is litigated? If not, what is harm?
Gov’t: I can’t make commitment. Agency heads have authority to manage work place.
Judge: Allegation is DOGE is directing termination. Accessing data/firing people/terminating contract, i.e., essentially running government.
Gov’t: Need evidence to back it up & it’d be easy to find: Someone is exercising power. And they can’t show that “someone” isn’t a person with power. Identify who fired. What authority. States haven’t done. Just saying puppetstrings:
Judge: Has a Court ever granted TRO re Appointment Clause?
Plaintiffs: I’d have to confirm. Judge: No, I haven’t found any. This is factually one of a kind situation. There may not be a TRO issued but we’ve never experienced this type of wielding of power. Our papers speak for themselves on points Gov’t made.

Plaintiff: Seeking to restrain DOGE & Musk & not agencies, if they don’t have authority then it won’t hurt agencies.
Judge: Thank you for coming in and making yourself available. I will rule motion for TRO & issue further scheduling. Hope to get out in 24 hours. If you have to come for PI briefing, what are you proposing: Plaintiff meet w/ Gov’t attorney & work out.

UPDATE 2/18/2025

Judge Chutkan Denies Democrat AGs Request For Restraining Order Against Elon Musk and DOGE