OPEN TECHNOLOGY FUND v. PACKOPEN TECHNOLOGY FUND v. PACK
MEMORANDUM OPINION
For nearly 80 years, international broadcasting sponsored by the United States has served as a trusted and authoritative global news source, a forum for the expression of diverse viewpoints on the most pressing topics of the day, a model of journalistic excellence and independence, and a beacon of hope for those trapped within authoritarian regimes. Despite being funded by American taxpayers, U.S. international broadcasting has typically remained free of governmental interference. Indeed, its autonomy and its commitment to providing objective news coverage has often been viewed as key to its ability to advance the interests of the United States abroad. Our country‘s commitment to this model of cultural export has largely been viewed as a rousing success, helping to undermine and topple some of history‘s most oppressive regimes—including Nazi Germany and the Soviet Union—by spreading freedom and democracy around the globe.
The current Chief Executive Officer (“CEO”) of the United States Agency for Global Media (“USAGM”)—the defendant, Michael Pack—is accused of putting this legacy at serious risk. Since taking office less than a month ago, Pack has upended U.S.-sponsored international broadcasting. Most relevant to the current dispute, on June 17, 2020, Pack unilaterally removed the operational heads and directors of four USAGM-funded organizations—Open Technology Fund (“OTF”), Radio Free Europe (“RFE”), Radio Free Asia, and the Middle East Broadcasting Networks (collectively, “Networks”)1—and replaced the
The backlash was instantaneous. Certain members of the press dubbed the event a “Wednesday night massacre.” E.g., Julian Borger, Voice of America: independence fears after Trump ally purges senior officials, THE GUARDIAN (June 18, 2020, 1:37 pm EDT), https://www.theguardian.com/media/2020/jun/18/voice-of-america-independence-fears-after-trump-ally-purges-senior-officials; Jennifer Hansler and Brian Stelter, “Wednesday night massacre” as Trump appointee takes over at global media agency, CNN BUSINESS (June 18, 2020, 12:20 PM ET), https://www.cnn.com/2020/06/17/media/us-agency-for-global-media-michael-pack/index.html. Members of Congress from both sides of the political aisle expressed serious concern about the terminations. See Press Release, Congressman Michael McCaul and Senator Blackburn, McCaul, Blackburn Statement on OTF Firings, Organization‘s Future (June 19, 2020), available at https://perma.cc/TLR8-A36P; Sarah Ellison, How Trump‘s obsessions with media and loyalty coalesced in a battle for Voice of America, WASH. POST (June 19, 2020, 4:52 PM EDT), https://www.washingtonpost.com/lifestyle/media/how-trumps-obsessions-with-media-and-loyalty-coalesced-in-a-battle-for-voice-of-america/2020/06/19/f57dcfe0-b1b1-11ea-8758-bfd1d045525a_story.html [hereinafter Ellison, A battle for Voice of America] (quoting statement from Representative Eliot Engel, Chair of the Foreign Affairs Committee of the House of Representatives). Senator Robert Menendez, Ranking Member of the Senate Committee on Foreign Relations, sent a letter to the Department of State‘s acting inspector general asking for a “review” of “whether Mr. Pack‘s wholesale firing of the leadership of [USAGM] networks violated” USAGM‘s regulations. Letter from Senator Robert Menendez to Acting Inspector General Stephen Akard (June 23, 2020), available at https://perma.cc/ZE9N-6XBD.
Widespread misgivings about Pack‘s actions raise troubling concerns about the future of these great institutions designed to advance the values and interests of the United States by providing access to accurate news and information and supporting freedom of opinion and expression in parts of the world without a free press. Plaintiffs—OTF and four of the individuals whom Pack removed from the Networks’ boards—claim that Pack‘s actions violate the International Broadcasting Act (“IBA”),
Plaintiffs seek extraordinary relief but have fallen short of making the requisite showings. Consequently, as explained in more detail below, plaintiffs’ motion is denied.
I. BACKGROUND
A. History of the USAGM
“Modern U.S. government-funded international broadcasting began during World War II with the creation of the Voice of America,” CONG. RESEARCH SERV., RL 43521, U.S. INTERNATIONAL BROADCASTING: BACKGROUND AND ISSUES FOR REFORM 1 (2016) [hereinafter CRS INT‘L BROADCASTING REP.], which, “[s]ince its first transmission in Germany in 1942, . . . has served as the official news outlet of the United States government in foreign lands during wars both hot and cold,” Namer v. Broad. Bd. of Governors, 628 Fed. App‘x 910, 911 (5th Cir. 2015). Voice of America was such a success that U.S. international broadcasting “continued throughout the Cold War period with Radio Free Europe broadcasting behind the Iron Curtain, and Radio Liberty [(‘RL’)] targeting populations in the former Soviet Union.” CRS INT‘L BROADCASTING REP. at 1. Yet, unlike Voice of America, RFE and RL “were technically independent services, each overseen by a private U.S. corporation.” Id. at 2. “In 1973, Congress formally created the Board of International Broadcasting (BIB),” a nine-member “independent bipartisan board,” “to oversee and fund both RFE and RL under the International Broadcasting Act of 1973 (P.L. 93-129).” Id. at 3. Notwithstanding oversight from and American taxpayer funding through BIB, RFE and RL—now combined to form a single corporation—remained separate from the government, and “provid[ed] an example of an independent broadcaster promoting journalistic integrity and democratic principles of a free media.” Id. Over the decades, this model was expanded around the globe, including through the creation of Radio Free Asia and the Middle East Broadcasting Networks, see id. at 4, and Radio Free Afghanistan, see
“For almost as long as these services have been in existence, debates over the effectiveness, strategic direction, and necessity of U.S. international broadcasting have persisted.” CRS INT‘L BROADCASTING REP. at 1. “It was deemed important by Congress that institutional arrangements be such that the stations not lose their ‘non-official status’; to transform [them] from independent broadcasters into house organs for the United States Government was seen as inimical to [their] fundamental mission.” Ralis v. RFE/RL, Inc., 770 F.2d 1121, 1125 (D.C. Cir. 1985). The method for achieving this independence, however, evolved over time. BIB itself adopted regulations that, inter alia, ensured broadcasters would operate “as independent broadcast media with professional independence.” Id. (internal quotation marks omitted) (quoting
By 2016, “[m]any observers perceive[d] flaws in the BBG‘s structure” that were believed to produce, inter alia, “weak leadership from the Board” and “inefficient administrative and personnel management of the agency.” Id. at 1. The criticisms were bipartisan. See id. at 12 (citing testimony of former Secretary of State Hillary Clinton); id. at 17 (noting that reform legislation had co-sponsors from both major political parties). To address these issues, Congress considered various legislative changes “intended, in large part, to address these perceived shortcomings.” Id. at 1. The 113th Congress, for instance, considered the creation of a new “Freedom News Network,” formed from a combination of RFE, Radio Free Asia, and the Middle East Broadcasting Networks, which would have had a “completely private” board. Report 113-541, House Comm. on Foreign Affairs, at 25 (July 18, 2014). Similar legislation was introduced in 2015. See CRS INT‘L BROADCASTING REP. at 1, 19–25. In December 2016, Congress finally acted by including, within the almost thousand-page National Defense Authorization Act for Fiscal Year 2017, amendments to the IBA that imposed a fundamentally new structure on the agency. Most notably, Congress created a presidentially appointed CEO of the BBG and granted the new CEO expansive, unilateral powers. See
On December 23, 2016, President Obama signed into law the National Defense Authorization Act, which included the provisions amending the IBA. He contemporaneously issued a statement explaining that his Administration “strongly support[ed] the bill‘s structural reform of the [BBG], which streamlines BBG operations and reduces inefficiencies, while retaining the longstanding statutory firewall, protecting against interference with and maintaining the professional independence of the agency‘s journalists and broadcasters and thus their credibility as sources of independent news and information.” President Obama‘s Statement on Signing the National Defense Authorization Act for Fiscal Year 2017, 2016 DAILY COMP. PRES. DOC. 863, at 3 (Dec. 23, 2016). Noting that these amendments “elevate the current Chief Executive Officer of the Broadcasting Board of Governors to the head of the agency and reduce the current members of the Board, unless on expired terms, from serving as the collective head of the agency to serving as advisors to the Chief Executive Officer,” he stressed that “my Administration supports the empowerment of a Chief Executive Officer with the authority to carry out the BBG‘s important functions.” Id.
In 2018, the agency itself changed its name to the United States Agency for Global Media. Firewall and Highest Standards of Professional Journalism, 85 Fed. Reg. 36,150, 36,150 n.1 (June 15, 2020) [hereinafter Firewall Rule]. No substantive changes occurred alongside the name swap. See id. On June 12, 2020, the agency put into effect a new rule interpreting the “statutory firewall.” See generally id. at 36,150–53.
In 2018, President Trump—the first president with the authority granted by the 2016 IBA amendments to select the single individual vested with authority to run USAGM—nominated Michael Pack to serve as the USAGM CEO. Pack‘s nomination was strongly supported by conservative commentator Steve Bannon, see, e.g., Ellison, A battle for Voice of America (quoting Bannon as saying: “He‘s my guy, and I pushed him hard.”), who previously served as a presidential advisor and was perceived to have influence with the White House. Nevertheless—or perhaps due to public support from a controversial figure—for approximately two years, Pack‘s nomination languished in the Senate. In April 2020, President Trump placed renewed effort behind achieving Pack‘s confirmation, holding a news conference to draw attention to the issue. At the conference, President Trump stated: “If you hear what‘s coming out of the Voice of America, it‘s disgusting. The things they say are disgusting toward our country. And Michael Pack would get in and do a great job.” Catie Edmondson and Edward Wong, With Push From Trump, Senate Moves to Install Contentious Filmmaker at U.S. Media Agency, N.Y. TIMES (May 8, 2020), https://www.nytimes.com/2020/05/08/us/politics/michael-pack-voa.html; see also CONG. RESEARCH SERV., IN11365, PRESIDENT TRUMP CRITICIZES VOA COVERAGE OF CHINA‘S COVID-19 RESPONSE 1 (2020) [hereinafter 2020 CRS REPORT] (noting that the White House issued a statement on April 10, 2020 critical of VOA for running an Associated Press article on its website on April 7, 2020 that the White House asserted “amplified Beijing‘s propaganda”).3
The President‘s push worked. On June 4, 2020, Pack‘s appointment was confirmed by the Senate and, on June 8, 2020, he was sworn in as the CEO of USAGM. After a week on the job, on June 17, 2020, Pack removed the Networks’ heads and the members of their boards of directors, including the individual plaintiffs in this lawsuit, explaining that he acted “pursuant to [his] authorities as [CEO] of [USAGM], including under
On June 23, 2020, OTF and the individual plaintiffs brought the instant suit, claiming that Pack‘s actions violate the IBA and the APA. Compl. ¶¶ 47–60. On June 25, 2020 they filed the pending motion for a temporary restraining order and preliminary Injunction. See generally Pls.’ Mot.
II. LEGAL STANDARD
In evaluating a motion for both a temporary restraining order and preliminary injunctive relief, generally the same standard is applied. See Sampson v. Murray, 415 U.S. 61, 86 (1974) (confirming that “a temporary restraining order continued beyond the time permissible under Rule 65 must be treated as a preliminary injunction, and must conform to the standards applicable to preliminary injunctions”); Nat‘l Mediation Bd. v. Air Line Pilots Ass‘n, Int‘l, 323 F.2d 305, 305 (D.C. Cir. 1963) (per curiam) (noting that “[a]n order extending a temporary restraining order beyond the 20 days allowed by Civil Rule 65(b) is tantamount to the grant of a preliminary injunction”). To obtain either form of relief, plaintiffs must establish that (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the public interest. See Winter v. Natural Res. Def. Counsel, 555 U.S. 7, 20 (2008). The first factor is the “most important factor.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014); see also Munaf v. Geren, 553 U.S. 674, 690 (2008) (“[A] party seeking a preliminary injunction must demonstrate, among other things, ‘a likelihood of success on the merits.‘” (quoting Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418, 428 (2006))).6
A temporary restraining order or a preliminary injunction “is an extraordinary . . . remedy, one that should not be
III. ANALYSIS
The four-factor test plaintiffs must satisfy to obtain the preliminary injunctive relief they seek is addressed below, with the final two factors considered together.
A. Plaintiffs Fail To Establish A Likelihood Of Success On The Merits
As to the first factor, plaintiffs contend that Pack‘s removal and replacement of the officers and directors of the Networks violate the IBA for two reasons.7 First, they argue that the USAGM CEO
1. The USAGM CEO Has Authority To Remove And Replace OTF Directors And Officers
a. Section 6209(d) Grants The CEO Broad Remove-And-Replace Authority Only As To Organizations Expressly Authorized In Chapter 71 Of The U.S. Code
As noted, in removing and replacing the directors and officers of all four Networks—OTF, RFE, Radio Free Asia, and the Middle East Broadcasting Networks—Pack purported to act, in part, pursuant to his authority under § 6209(d) of the IBA. Yet, in the case of OTF, plaintiffs maintain that Pack has no § 6209(d) authority. Analyzing the text of § 6209(d), plaintiffs observe, correctly, that the USAGM CEO‘s authority to appoint or remove officers and directors extends to only two types of organizations: (1) “RFE/RL Inc., Radio Free Asia, and the Middle East Broadcasting Networks or any organization that is established through the consolidation of such entities,” and (2) “any organization . . . authorized under [the IBA].”
To fit within the second category, plaintiffs posit that OTF “would need to have
authorization has occurred. In fact, legislation that would “authorize” OTF is pending before Congress, see id. at 17 (citing H.R. 6621, 116th Cong. (2020)), but unless and until that legislation is passed, OTF “is just like any a [sic] private, nonprofit corporation that receives funds from the U.S. government,” id. at 18.
Pack counters that plaintiffs read § 6209(d) too parsimoniously. In his view, § 6209(d) does not limit the USAGM CEO‘s authority only to organizations “expressly and specifically identified in [the IBA],” Def.‘s Opp‘n at 5, as that reading would essentially transmute the key clause “authorized under” to “authorized in” the IBA, see id. at 6. Instead, “under this chapter” must be read more broadly “to capture organizations funded pursuant to (i.e., ‘under‘) the CEO‘s § 6204 grant-making ‘authorit[y].‘” Id. (alteration in original) (quoting
Adoption of Pack‘s interpretation would mean that any grantee of the USAGM—no matter the size of the grant or independence of the grantee from the government—would, as a statutory matter, forfeit control over its board and officers to the whim of the CEO, even if such a condition for receipt of the grant funds is nowhere made apparent in the grant funding agreement or sanctioned by the grantee‘s foundational or governing documents. Pack assumes that his remove-and-replace power extends over all grantees, despite their otherwise independent status from USAGM. The question before this Court is whether the statutory language supports this assumption.9
Pack backs up his construction with “at least three reasons,” id. at 4, but none is ultimately persuasive to overcome the plain text of the statute. First, he relies on the definition of “authorize” as meaning to
Second, Pack contends that “§ 6209(d)‘s ‘authorized under this chapter’ clause is mostly superfluous unless it captures organizations that Congress does not specifically contemplate, such as those funded as ‘authorized under’ the CEO‘s § 6204 grant-making power.” Def.‘s Opp‘n at 6. Not so. As plaintiffs observe, rather than requiring that the language of § 6209(d) be updated upon the establishment of a new organization in a standalone IBA provision or when incorporated by the CEO, this catchall clause accommodates such additions within the purview of the subsection. See Pls.’ Reply at 6 (“That Congress wanted a mechanism to incorporate organizations within the ambit of § 6209(d) without being required to continually update the provision‘s text is well within its authority.”). The “[e]stablishment of Radio Free Afghanistan,” in § 6215, provides a clear example of this use of the clause, since this organization is not expressly named in § 6209(d) but is nonetheless an organization authorized under chapter 71 to receive grants. See
Finally, Pack attempts to bolster his broad reading of § 6209(d) as capturing all agency-funded organizations by comparing § 6209(d)‘s “authorization” language to the text in § 6204(a)(5), “which gives the CEO the ‘authorit[y]’ to ‘make
Moreover, Pack‘s insistence on reading §§ 6209(d) and 6204(a)(5) together is inconsistent with other subsections in § 6209. See Ardestani v. INS, 502 U.S. 129, 135 (1991) (explaining that “[t]he word ‘under’ must ‘draw its meaning from its context‘”). Section 6209—
which is entitled “Broadcast entities reporting to Chief Executive Officer”—contains five subsections principally focused on three named broadcast networks—RFE/RL, Radio Free Asia, and the Middle East Broadcasting Networks—and any consolidated grantee formed from them. The first subsection sets out the CEO‘s authority “to incorporate a grantee” and to condition annual grants to these three named grantees on their consolidation “into a single, consolidated private, non-profit organization.”
named in chapter 71, or consolidated from such entities and/or incorporated by the CEO, per § 6209(a)(1).
Without concrete textual support, Pack would read the critical clause § 6209(d) as if it were written “to cover ‘any organization provided authorized funding by the agency.‘” Pls.’ Reply at 2. Such a reading is especially unwarranted given that the immediately preceding subsection, § 6209(c), does refer to funding, providing that “[n]othing in this chapter or any other Act . . . shall be construed to make . . . Radio Free Europe, Radio Free Asia, or the Middle East Broadcasting Networks or any other grantee or entity provided funding by the agency a Federal agency or instrumentality.”
Pack asserts that “‘merely because a statute contains “examples of inartful drafting” does not mean courts are incapable of discerning its meaning, particularly with the aid of broader statutory context.‘” Def.‘s Opp‘n at 6 n.5 (quoting United States v. Epskamp, 832 F.3d 154, 162 (2d Cir. 2016)). Here, though, plaintiffs’ reading comports with the broader statutory context. “Congress‘s intent has been manifest” that U.S.-funded international broadcasters—when not government operated, such as in the case of VOA—“are to enjoy independence in programming and broadcasting decisions, subject to the sensible limitation that their programming and broadcasting be consistent with the foreign policy of the United States.” Ralis, 770 F.2d at 1125; see also H.R. REP. NO. 113-541, at 21 (explaining that “credible and accurate news funded by the United States government is not an oxymoron”). Adopting a limited ruling of § 6209(d), and requiring that the CEO acquire remove-and-replace authority via the grant-making process, see
In short, the clause in § 6209(d) “authorized under this chapter” may be interpreted as “in this chapter.”14 Consequently, given the absence of any mention of OTF in chapter 71 and the fact that this organization was not incorporated by the CEO under authority provided in the IBA, plaintiffs are correct: the USAGM CEO‘s § 6209(d) remove-and-replace authority does not extend to OTF by virtue of the operation of the IBA alone. This does not end the analysis, however, since the CEO may nonetheless have remove-and-replace authority over OTF‘s officers and directors pursuant to his grant-making authority under § 6204(a)(5), in combination with OTF‘s consent under the organization‘s grant agreement and/or bylaws. See Pls.’ Reply at 12 (acknowledging that OTF‘s bylaws can “provide independent authority for appointment and removal”).
b. OTF‘s Grant Agreement And Bylaws Authorize USAGM‘s CEO To Remove And Replace OTF Officers And Directors
As the CEO‘s authority to remove and replace OTF‘s officers and directors turns on whether OTF‘s grant agreement with USAGM or its bylaws provide such authority, these documents are examined in turn. One sentence from OTF grant‘s agreement is most relevant: “[OTF‘s] articles of incorporation, by-laws or other constitutional documents shall provide that the Board of the Directors of [OTF] may consist of some or all of the current members of the USAGM established under the International Broadcasting Act and other technical experts, as appropriate.” Gupta Decl., Ex. A, OTF Grant Agreement art. IV(b), at 4, ECF No. 4-4 [hereinafter OTF Grant Agreement].15
This sentence is ambiguous. This language could be read to mean, simply, that OTF must not enact a prohibition on USAGM officials serving as OTF officers or directors, without mandating their inclusion on OTF‘s board. For example, by contrast to the OTF agreement language, the grant agreement language for Radio Free Asia—which incubated OTF before the latter organization was spun off into an independent non-profit fully funded by USAGM—more firmly requires its “articles of incorporation, by-laws or other constitutional documents [to] provide that the Board of Directors of the Non-Federal Entity shall consist of the current members of the USAGM established under the International Broadcasting Act and of no other members.” Gupta Decl., Ex. B, Radio Free Asia Grant Agreement art. IV(b), at 4, ECF No. 4-5 [hereinafter Radio Free Asia Grant Agreement] (emphasis added). Yet, while certainly not as express as Radio Free Asia‘s grant agreement, the relevant
The parties’ dispute over OTF‘s bylaws turns on four key provisions. First, § 2.3 of OTF‘s bylaws provides that OTF “shall at all times select and provide for the election, resignation or removal of the members of its Board of Directors, and appoint and provide for the resignation or removal of its Officers, pursuant to and in compliance with the provisions of the Act, as it may be amended from time to time.” Gupta Decl., Ex. E, Bylaws of OTF § 2.3, at 2, ECF No. 4-8 [hereinafter OTF Bylaws] (emphasis added). Second, pursuant to § 5.2, “[i]ndividuals shall be elected by the Board of Directors for three-year terms upon majority vote of the Board of Directors, or as may be authorized by
In plaintiffs’ view these bylaw provisions referencing the IBA, its statutory sections, and the USAGM CEO have essentially no meaning. They contend that the bylaws “do not confer any additional authority upon” the USAGM CEO not already found in the IBA, and “since the [IBA] does not grant Mr. Pack the authority to appoint or remove [OTF]‘s officers or directors, these bylaw provisions do not enable him to do so, either.” Pls.’ Mot. at 20. Put another way, by plaintiffs’ circular reading, if OTF is not authorized “under” the IBA, then OTF is not subject to whatever the CEO “may be authorized” by the IBA to do. Pack, by contrast, maintains that these bylaws “reinforce[]” the conclusion that the IBA grants the USAGM CEO remove-and-replace authority. Def.‘s Opp‘n at 7.
Although plaintiffs’ reading is plausible, Pack has the better argument, for his interpretation both gives the bylaws some meaning and ensures that the bylaws are interpreted in the context in which they were adopted, namely, consistent with the grant agreement requirement that OTF‘s bylaws allow OTF‘s board to be taken over by USAGM officials. Plaintiffs’ circular reading would, as do its papers, brush off the grant agreement language. Recall that, to comply with its grant agreement, OTF was required to adopt bylaws that “provide that the Board of the Directors of [OTF] may consist of some or all of the current members of the USAGM established under the International Broadcasting Act and other technical experts, as appropriate.” OTF Grant Agreement art.
This reading is confirmed by comparing OTF‘s bylaws to those that plaintiffs concede grant the CEO remove-and-replace authority. RFE‘s bylaws, for instance, provide, inter alia, that “[t]he members of the Board of Directors shall be elected by the affirmative vote of a majority of the then members of the Board of Directors, even if less than a quorum, or as may be authorized in
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The OTF bylaws, in conformance with Article IV(b) of the OTF grant agreement, confer remove-and-replace power on the USAGM CEO over OTF‘s officers and directors. Thus, although plaintiffs advance the proper interpretation of
2. The USAGM CEO Did Not Violate The Statutory Firewall By Exercising His § 6209(d) Authority
Plaintiffs’ second merits argument fares no better than their first. They argue that the CEO‘s removal and replacement of the Networks’ boards of directors violated the IBA‘s “statutory firewall” found in
Undoubtedly, a tension exists within the statute between the control that the government must necessarily exert over its own messaging, and the independence that U.S. international broadcasters must maintain to accomplish their mission. Yet, as the D.C. Circuit explained when analyzing the structure of U.S.-funded international broadcasting that Congress has erected and interpreting BIB regulations that preceded but were similar to the statutory firewall, Congress has ultimately struck a balance. USAGM is “given evaluative and review responsibilities“; “day-to-day control” is “left to the stations themselves.” Ralis, 770 F.2d at 1125. Accordingly, only when the USAGM CEO engages in day-to-day control is the statutory firewall violated. The CEO may not, for example, tell broadcasters what stories to cover or how to cover them. Nor may the CEO fire a particular staff member or command that a piece be assigned to a specific reporter. He may and must, however, oversee the operations of the Networks by exercising the statutory powers Congress gave him, including his
Notably, plaintiffs themselves advance only a very narrow argument. They do not claim that the CEO is prohibited from removing and replacing a named grantee‘s board in its entirety. Nor do they claim that the makeup of the Networks’ boards must be bipartisan. See Pls.’ Reply at 14. They do not even contend that the CEO is prohibited from putting some government officials on a grantee‘s board, see id.—a wise concession, given that
Plaintiffs’ argument does not hold water. In reality, the CEO has “substantial” control over the Networks, Ralis, 770 F.2d at 1126, and part of that control stems from the CEO‘s power to appoint, not his power to appoint government officials. As much as plaintiffs protest otherwise, an appointee‘s federal employment status has no apparent bearing on whether she will oversee the Networks in the way that the CEO expects her to. Thus, a rule preventing the CEO from creating a board whose members are primarily federal officials would do nothing to help preserve the Networks’ independence. Furthermore, and more importantly, such a rule would be unmoored from the statutory text, which expressly contemplates the appointment of federal officials to the Networks’ boards,
Plaintiffs nevertheless insist upon their bright-line rule. They point to the D.C. Circuit‘s observation in Ralis that “[relevant] regulations expressly prevent a governmental takeover of the stations’ operational control,” 770 F.2d at 1125 (emphasis added), and they analogize to corporate law, in which context, plaintiffs claim, a “takeover” occurs when one corporation installs a majority of its chosen directors on another corporation‘s board, see Hr‘g Tr. at 32:25–33:2 (“There is a critical distinction between installing a board that is majority controlled by one entity; we call that a takeover.“). Plaintiffs, however, focus on the wrong words from their cherrypicked sentence from Ralis. What the CEO may not do is “take[ ]over . . . operational control,” i.e., management of the Networks’ “day-to-day” operations. Ralis, 770 F.2d at 1125 (emphasis added).19 Exercise
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Assessing, as a policy matter, whether Congress erred in 2016 by transferring the bipartisan BBG‘s powers to a single presidentially appointed CEO is not properly an issue before this Court. Common sense could lead to the conclusion that a bipartisan board, by its nature, may be less efficient than a single executive, while inherently more balanced. Given that U.S. international broadcasting must simultaneously advance the foreign policy objectives of the United States, present a diversity of viewpoints, and model independent journalism for the world, these IBA goals may be better served by a more balanced approach. See 2020 CRS REPORT at 2 (“While Congress did not alter the principles that apply to U.S. international broadcasting, the changes left the authority to direct U.S. international broadcasting in the hands of a singular agency head appointed by and answerable to the President, and required to ‘consult regularly’ with the Secretary of State for ‘foreign policy guidance,’ possibly weakening the structural independence of the broadcasters.“). As the D.C. Circuit has cautioned, however, “[i]n a sensitive area directly affecting the foreign relations of the United States, we in the ‘least dangerous branch’ should not and will not compromise a structure carefully erected by the political branches.” Ralis, 770 F.2d at 1126. Plaintiffs have not established a likelihood of success on the merits, and thus this most important factor weighs against them.
B. Plaintiffs Have Not Demonstrated Irreparable Harm
Turning next to the second factor, plaintiffs have failed to establish they are likely to suffer irreparable harm absent preliminary injunctive relief. To demonstrate irreparable harm, the moving party must satisfy two requirements. “First, the harm must be ‘certain and great,’ ‘actual and not theoretical,’ and so ‘imminen[t] that there is a clear and present need for equitable relief to prevent irreparable harm.‘” League of Women Voters of United States v. Newby, 838 F.3d 1, 7–8 (D.C. Cir. 2016) (alteration in original) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). “Second, the harm ‘must be beyond remediation.‘” Id. at 8 (quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297).
Here, the organizational plaintiff, OTF, and the individual plaintiffs have different theories of harm. OTF argues that it will suffer irreparable harm because Pack “has imperiled [OTF‘s] ability to achieve its mission by . . . attempting to fill its board with political allies who have publicly aligned themselves with causes in direct conflict to the Fund‘s mission.” Pls.’ Mot. at 27. The individual plaintiffs, for their part, assert that their “‘right to participate in the management of’ the [Networks] ‘has intrinsic value,‘” and thus “Pack‘s attempt to ‘destroy [the plaintiffs‘] voice in management’ . . . constitutes irreparable harm.” Id. at 31 (second alteration in original) (first quoting Wisdom Import Sales Co. v. Labatt Brewing Col., 339 F.3d 101, 114 (2d Cir. 2003); and then quoting Street v. Vitti, 685 F. Supp. 379, 384 (S.D.N.Y. 1998)). Each contention is taken in turn.
1. Pack‘s Actions Neither Impair OTF‘s Programs Nor Conflict With Its Mission
An organization seeking to establish a likelihood of irreparable harm must demonstrate that the “actions taken by [the defendant] have ‘perceptibly impaired’ the [organization‘s] programs.” League of Women Voters, 838 F.3d at 8 (alterations in original) (internal quotation marks omitted) (quoting Fair Emp‘t Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994)). “If so, the organization must then also show that the defendant‘s actions ‘directly conflict with the organization‘s mission.‘” Id. (quoting Nat‘l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996)). OTF satisfies neither step, for substantially the same reasons that its case fails on the merits. See, e.g., Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 281 F. Supp. 3d 88, 116 (D.D.C. 2017) (“Since the Court has concluded that plaintiff‘s constitutional and statutory rights have not been violated, plaintiff has failed to demonstrate that it would suffer irreparable harm in the absence of relief.“). The CEO‘s exercise of his “evaluative and review responsibilities,” Ralis, 770 F.2d at 1125, enhances OTF‘s programs and comports with OTF‘s mission, for it is the CEO who is ultimately accountable for ensuring that U.S.-funded international broadcasting functions in accordance with its standards and principles, see
2. Individual Plaintiffs’ Loss Of Board Positions Does Not Constitute Irreparable Harm
As for the individual plaintiffs, their claim of harm runs headlong into the well-worn rule from Sampson v. Murray that loss of employment is not irreparable harm except in a “genuinely extraordinary situation.” 415 U.S. at 92 n.68; see Farris v. Rice, 453 F. Supp. 2d 76, 79 (D.D.C. 2006) (“[C]ases are legion holding that loss of employment does not constitute irreparable injury.“). Nothing about the individual plaintiffs’ alleged harms are “genuinely extraordinary.” True, unlike in the typical case involving loss of employment, here no loss of income is on the line, see Hr‘g Tr. at 43:7–11, but in Sampson itself, the Supreme Court established that the possibility of non-monetary harm is not, alone, sufficient to justify deviation from the Sampson rule, as the Court rejected a claim that humiliation and damages to reputation associated with loss of employment justified preliminary relief. See 415 U.S. at 91. Nor does it matter that the individual plaintiffs held high-level positions, sitting on the boards of directors at the Networks. Courts have consistently applied the Sampson rule regardless of the type of employment at issue. See, e.g., English v. Trump, 279 F. Supp. 3d 307, 334 (D.D.C. 2018) (Acting Director of Consumer Financial Protection Bureau); Burns v. GAO Empl. Fed. Credit Union, No. 88-3424, 1988 WL 134925, at *1–2 (D.D.C. Dec. 2, 1988) (President of Board of Directors of U.S. General Accounting Office Employees Federal Credit Union); EEOC v. City of Janesville, 630 F.2d 1254, 1256 (7th Cir. 1980) (Chief of Police); Levesque v. State of Maine, 587 F.2d 78, 79 (1st Cir. 1978) (Maine Commissioner of Manpower).
To avoid the Sampson rule, plaintiffs continue to cite to the corporate law context,
The more apt comparison is to English v. Trump, which addressed whether the President could appoint an Acting Director to head the Consumer Financial Protection Bureau (“CFPB“), or instead whether only CFPB‘s Deputy Director could fill that role. See 279 F. Supp. 3d at 311. As here, the Deputy Director advanced a theory of irreparable harm “bas[ing] her alleged injury . . . on ‘the loss of a “statutory right to function” in a position directly related to a federal agency‘s “ability to fulfill its mandate.“‘” Id. at 334 (quoting the plaintiff‘s motion (quoting Berry v. Reagan, No. 83-3182, 1983 WL 538, at *5 (D.D.C. Nov. 14, 1983))). English, however, determined that the Deputy Director‘s claim fit neatly within the Sampson rule. See id.
This Court reaches the same conclusion with respect to the former members of the Networks’ board of directors. Indeed, the case for irreparable harm was stronger in English than here, for in English, the position of acting director was set to “expire when the President nominate[d] and the Senate confirm[ed] a new Director for the CFPB,” id. at 335 (internal quotation mark omitted) (quoting the plaintiff‘s motion), which could have occurred before the case was resolved. Here, by contrast, the individual plaintiffs point to no imminent risk that their former board positions will disappear—only that their replacements will assume their former positions. Should plaintiffs ultimately prevail, they can be restored to the Networks’ board of directors, and thus they will not suffer irreparable harm in the absence of preliminary
C. The Balance Of Equities And Public Interest Weigh Against Injunctive Relief
Finally, the third and fourth factors may be easily dispatched. The parties agree, see Pls.’ Mot. at 32; Def.‘s Opp‘n at 32 n.11, that because the government is the non-movant, the balance of the equities and the public interest “merge into one factor,” Ramirez v. U.S. Immigration & Customs Enf‘t, 310 F. Supp. 3d 7, 32 (D.D.C. 2018) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). Further, plaintiffs acknowledge that “the balance of the equities and the public interest here are ‘essentially derivative of the parties’ arguments on the merits of the case.‘” Pls.’ Mot. at 33 (quoting Am. Meat Inst. v. U.S. Dep‘t of Agric., 968 F. Supp. 2d 38, 83 (D.D.C. 2013), judgment reinstated, 760 F.3d 18 (D.C. Cir. 2014)). “[T]hus, ‘it follows that the public interest factor of the preliminary injunction test should weigh in favor of whoever has the stronger arguments on the merits,‘” id. (quoting Am. Meat Inst., 968 F. Supp. 2d at 83), i.e., Pack.
Indeed, thwarting the lawful exercise of authority of a duly appointed official would be inequitable and disserve the public interest. Setting USAGM‘s priorities and managing, at a broad level, U.S. international broadcasting is the prerogative of the USAGM CEO—not that of plaintiffs, and certainly not of this Court. Moreover, Congress‘s choice to grant the USAGM CEO broad, unilateral powers over grant-making and oversight of USAGM grantees is itself “a declaration of public interest and policy which should be persuasive in inducing courts to give relief.” Va. Ry. v. Sys. Fed‘n No. 40, 300 U.S. 515, 552 (1937). Meanwhile, plaintiffs, as discussed above, will suffer no irreparable harm from the denial of their motion.
Accordingly, the balance of the equities and the public interest, just like the first two factors, weigh against granting the requested relief.
IV. CONCLUSION
Pack‘s actions have global ramifications, and plaintiffs in this case have expressed deep concerns that his tenure as USAGM CEO will damage the independence and integrity of U.S.-sponsored international broadcasting efforts. If they are correct, the result will be to diminish America‘s presence on the international stage, impede the distribution around the world of accurate information on important affairs, and strengthen totalitarian governments everywhere. Yet, Congress has decided to concentrate unilateral power in the USAGM CEO, and the Court cannot override that determination. If Pack‘s actions turn out to be misguided, his appointment by the President and confirmation by the Senate points to where the accountability rests: at the ballot box. Based on an evaluation of plaintiffs’ likelihood of success on the merits, the solution is likely not in this Court.
For the foregoing reasons, plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction, ECF No. 4, is denied.
An Order consistent with this Memorandum Opinion will be filed contemporaneously.
DATE: July 2, 2020
BERYL A. HOWELL
Chief Judge