Asking Claude: Please analyze the article “‘Crimped view of the law’: Judge trashes Trump admin’s ‘Kafkaesque’ legal arguments in case over ‘blatantly lawless’ Privacy Act violations committed by DOGE and OPM” and the associated opinion and order and list all robust arguments, statements and findings that other litigants against DOGE also could or should be using. If you can think of additional arguments - for example based on everything else you know about DOGE - then feel free to add those too.

Claude’s answer:

Introduction To AFGE v. OPM

The case American Federation of Government Employees v. Office of Personnel Management represents one of the most significant legal challenges to President Trump's Department of Government Efficiency (DOGE) initiative. Filed in February 2025, the lawsuit stems from actions taken immediately following President Trump's inauguration, when his administration established DOGE through Executive Order 14,158 and renamed the United States Digital Service as the United States DOGE Service.

At the heart of the case is the allegation that OPM granted DOGE agents immediate, sweeping access to vast databases containing sensitive personal information of tens of millions of current and former federal employees. This information includes social security numbers, health records, financial disclosures, and data about family members. The plaintiffs—federal employee unions and individual government workers—claim this access violated the Privacy Act of 1974 and the Administrative Procedure Act.

What makes the case particularly notable is the manner in which the access was allegedly provided. According to the complaint, OPM bypassed normal security protocols, giving DOGE agents administrative-level access without proper vetting, security clearances, or training. Some agents reportedly installed themselves in OPM headquarters, bringing in sofa beds to work around the clock, while blocking career civil servants from accessing their own systems.

In her April 2025 opinion allowing most claims to proceed, Judge Denise Cote rejected the government's arguments that such access was merely routine administration. Instead, she characterized DOGE's actions as "blatantly lawless" and found that the plaintiffs had established standing to sue based on the unauthorized access to their personal information—even without proof that the information had been misused.

The case represents a critical test of the legal boundaries of presidential reorganization of the federal bureaucracy and highlights the tension between executive authority and statutory privacy protections for federal employees.

Key Arguments from AFGE v. OPM Case Against DOGE

Based on Judge Denise Cote's opinion in the AFGE v. OPM case, here are the robust arguments, statements, and findings that other litigants challenging DOGE could effectively use:

Standing Arguments

1. Intrusion Upon Seclusion Harm: The court found that unauthorized access to personal information constitutes a concrete injury analogous to the tort of intrusion upon seclusion. This doesn't require proof that records were misused - mere access is sufficient.

2. No Need to Show Actual Review: The court rejected the government's argument that plaintiffs needed to prove DOGE agents actually examined their records, finding that "providing access to another person for their review" constitutes disclosure under the Privacy Act.

3. Ongoing Harm: The court recognized that unauthorized access represents an ongoing harm, not merely a risk of future harm, stating "the harm is more than imminent — it is already here."

4. Substantial Risk of Future Harm: The court found that giving "sweeping and uncontrolled access to DOGE agents who were not properly vetted or trained" with "the ability to install and modify software and to alter internal documentation of access to the data" created a substantial risk of future harm.

Privacy Act Violations

1. Unlawful Disclosure (§ 552a(b)): The court found plausible allegations that OPM disclosed records to DOGE agents without written consent and without satisfying Exception (b)(1) which requires:

   • Recipients must be OPM employees

   • Recipients must have need-to-know for their duties

2. Failure to Establish Safeguards (§ 552a(e)(10)): The court recognized claims that the defendants failed to establish appropriate administrative, technical, and physical safeguards to ensure the security of records.

3. Lack of Required Vetting and Training: The court highlighted allegations that DOGE agents were not properly vetted, did not receive customary security clearances, and were not trained on security protocols before accessing sensitive data.

4. Employment Status Matters: The court emphasized that Exception (b)(1) only applies to employees of the agency maintaining the records (OPM), not other agencies.

APA Claims

1. Final Agency Action: The court found that OPM's decision to grant DOGE agents access constituted final agency action subject to APA review, rejecting arguments that this was merely "informal" day-to-day operations.

2. Not in Accordance with Law: The court held that violations of the Privacy Act can support an "not in accordance with law" claim under the APA.

3. Arbitrary and Capricious Action: The court recognized claims that OPM acted arbitrarily by departing from established security practices without reasoned decision-making.

4. Injunctive Relief Available: While the Privacy Act doesn't provide injunctive relief for these violations, the court confirmed that such relief is available through the APA.

Ultra Vires Claims

1. "Blatantly Lawless" Actions: The court found that DOGE's actions were "blatantly lawless" and that the defendants "plainly and openly crossed a congressionally drawn line in the sand."

2. No Statutory Authority: The court emphasized that "The DOGE Defendants have no statutory authority with respect to OPM records."

Specific Factual Allegations Found Credible

1. Administrative Access: The court recognized allegations that DOGE agents were granted "administrative access" allowing them to alter records and obscure evidence of their own activity.

2. Blocking Career Staff: The court cited allegations that "OPM civil servants have been blocked from accessing [systems]" while DOGE agents moved in "sofa beds" to work "around the clock."

3. Dubious Personnel: The court noted allegations regarding one DOGE agent described as a "19-year-old who is known online as 'Big Balls' and had been fired by a cybersecurity firm following an internal investigation into the leaking of proprietary information."

4. Foreign Adversary Risk: The court mentioned allegations that "Russia, China, Iran and other adversaries could seek to exploit the chaos by launching new cyber intrusions" due to the extraordinary access given to DOGE agents.

5. Departure from Normal Practices: The court emphasized that OPM's actions constituted a "gross departure from OPM's longstanding practices" and contrasted "sharply" with normal procedures.

Additional Arguments Litigants Could Make

1. Executive Order Limitations: The DOGE Executive Order itself states it "shall be implemented consistent with applicable law" and should not "be construed to impair or otherwise affect... the authority granted by law to an executive department or agency." This language can be used to challenge actions that exceed legal boundaries.

2. FISMA Violations: The court mentioned but did not fully analyze potential violations of the Federal Information Security Management Act (FISMA), which could provide additional bases for claims.

3. Irreparable Harm: Though not directly addressed, the facts suggest irreparable harm from unauthorized data access that cannot be remedied through monetary damages alone, supporting injunctive relief.

4. Scope of Agency Authority: Litigants could further develop arguments about the scope of DOGE's authority, especially given its ambiguous legal status as a "Temporary Organization."

5. Constitutional Claims: While not present in this case, litigants might consider Fourth Amendment claims related to unreasonable searches or invasions of privacy by government actors, especially when agency boundaries are crossed.

These arguments have proven successful in obtaining preliminary relief against OPM, Treasury, DOE, and SSA in several DOGE-related cases, making them particularly valuable for future litigants.