Widakuswara v. LakeWidakuswara v. Lake
MEMORANDUM OPINION
Before the Court is the plaintiffs’ Motion for a Preliminary Injunction, which seeks to enjoin the defendants from dismantling the United States Agency for Global Media (USAGM) in response to Executive Order 14238, “Continuing the Reduction of the Federal Bureaucracy,” announced by President Trump on March 14, 2025. The plaintiffs allege that USAGM‘s actions, purportedly in furtherance of the
For the reasons contained herein, the Motion for a Preliminary Injunction will be GRANTED IN PART and DENIED IN PART. The Court will GRANT the Motion as it applies to the defendants’ actions to shutter the USAGM entities Voice of America, Radio Free Asia, and Middle East Broadcasting Networks. The Court will DENY the Motion as to the other affiliated network entities.
I. BACKGROUND
A. Factual History
USAGM is an independent executive agency established by Congress with the mission to “inform, engage, and connect people around the world in support of freedom and democracy.” Mission, U.S. AGENCY FOR GLOBAL MEDIA, https://www.usagm.gov/who-we-are/mission/ [https://perma.cc/PK9M-Y32T]. It oversees six federally funded broadcast networks, the largest being Voice of America (VOA). VOA‘s first broadcast took place during World War II, uttering the now “immortal words“: “The news may be good or bad; we shall tell you the truth.” History, U.S. AGENCY FOR GLOBAL MEDIA, https://www.usagm.gov/who-we-are/history/ [https://perma.cc/27Y5-A8CP]. Congress codified that promise into law in 1976 in VOA‘s charter, declaring that VOA “will serve as a consistently reliable and authoritative source of news [that is] accurate, objective, and comprehensive.”
Since then, five related entities have been established to further USAGM‘s mission: a federal entity within USAGM known as the Office of Cuba Broadcasting (OCB), and four independent networks: Radio Free Europe/Radio Liberty (RFE/RL), Radio Free Asia (RFA), Middle East Broadcasting Network (MBN), and the Open Technology Fund (OTF) (collectively, “the Networks“).1 Together, these entities have “exported the cardinal American values of free speech, freedom of the press, and open debate to the dark corners of the world where independent, objective coverage of current events is otherwise unavailable.” Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333, 341–42 (D.D.C. 2020).
All six of these entities are funded by the United States government. Specifically, VOA and OCB are located within the federal government, whereas RFA, RFE/RL, MBN, and OTF are private non-profit organizations that receive funding through congressional appropriations disbursed via grant agreements with USAGM. Structure, U.S. AGENCY FOR GLOBAL MEDIA, https://www.usagm.gov/who-we-are/organizational-chart/ [https://perma.cc/ZWY5-GGDB]. Every year, Congress appropriates funds to USAGM and further allocates those funds to VOA, OCB, and each of the Networks, with a line-item amount designated to each entity. As is relevant here, in the 2024 Appropriations Act, Congress appropriated $857 million to USAGM for Fiscal Year (FY) 2024 and mandated how those funds “shall be allocated” pursuant to an “explanatory statement.” Further Consolidated Appropriations Act of 2024, Pub. L. No. 118-47, div. F, tit. I, 138 Stat. 460, 735 (2024) (requiring funds to be allocated in accordance with table in “the explanatory statement” described in section 4“); id. § 4 (identifying explanatory statement). The explanatory statement sets forth a table with earmarked funding amounts for VOA, OCB, and each of the Networks. Explanatory Statement Submitted by Ms. Granger, Chair of the House Committee on Appropriations, Regarding H.R. 2882, Further Consolidated Appropriations Act, 2024, 170 Cong. Rec. H1501, H2089 (Mar. 22, 2024) (providing table designating how funds appropriated for international broadcasting “are allocated“). For FY 2024, Congress allocated $260 million for VOA; $25 million for OCB; $142.2 million for RFE/RL; $60.8 million for RFA; $100 million for MBN; and $43.5 million for OTF. Id (listing each entity with a corresponding funding amount for the fiscal year).
In three continuing resolutions covering FY 2025, Congress funded USAGM at the same levels, and subject to the same conditions, as it funded USAGM in FY 2024. See Continuing Appropriations and Extensions Act, 2025, Pub. L. No. 118-83, div. A, § 101(11), 138 Stat. 1524–25 (2024) (“First Continuing Resolution“) (appropriating funds as provided in certain FY 2024 appropriations laws and making them available through December 20, 2024); American Relief Act, 2025, Pub. L. No. 118-158, 138 Stat. 1722 (2024) (“Second Continuing Resolution“) (extending funding through March 14, 2025); Full-Year Continuing Appropriations and Extensions Act, 2025, Pub. L. No. 119-4, div. A, § 1101 (2025) (“Third Continuing Resolution“) (extending funding through September 30, 2025). Most relevant here, effective March 15, 2025, Congress passed and President Trump signed into law the Third Continuing Resolution, which appropriates funding to USAGM and the associated Networks through September 30, 2025. Under the appropriations acts, USAGM has limited discretion to “reprogram” a small fraction of these funds among different programs, but only if it gives the House and Senate Appropriations Committees fifteen days’ advance notice. 2024 Appropriations Act, div. F, tit. I, 138 Stat. 735; see 170 Cong. Rec. at H2087. And in no event may any reprogramming reduce funding for a program by more than five percent of what Congress designated. Id.
On March 14, 2025, President Donald Trump issued Executive Order 14238 entitled “Continuing the Reduction of the Federal Bureaucracy” (the “EO“). 90 Fed. Reg. 13043 (Mar. 14, 2025).2 The EO demands that “the non-statutory components
The following day, on March 15, 2025, the White House published an article entitled “The Voice of Radical America,” which states: “President Donald J. Trump‘s [EO] on Friday will ensure that taxpayers are no longer on the hook for radical propaganda.”3 USAGM also posted an update on its website stating: “This agency is not salvageable. From top-to-bottom this agency is a giant rot and burden to the American taxpayer—a national security risk for this nation—and irretrievably broken. While there are bright spots within the agency with personnel who are talented and dedicated public servants, this is the exception rather than the rule.”4
From March 15, 2025 onward, the acting leadership of USAGM has taken a series of actions purportedly in furtherance of the EO‘s directive. On March 15, 2025, USAGM placed 1,042 employees on administrative leave.5 First Declaration of Crystal Thomas, Human Resources Director for USAGM (“First Thomas Decl.“) ¶ 6, ECF No. 43. That same day, all USAGM grantee networks received an identical letter from the agency immediately terminating their operative grant agreements, with no explanation other than the boilerplate language that “[t]he award no longer effectuates agency priorities” and citing the EO. Compl. ¶¶ 78. On March 16, 2025 “USAGM terminated contracts with all [approximately 598] personal services contractors [“PSCs“],” whose pay was scheduled to end on March 31, 2025. First Thomas Decl. ¶ 6.6 On March 17, 2025, USAGM instructed “all USAGM Foreign Service employees” to shut down all transmitters at their respective stations, place locally employed staff on leave, and expect to be placed on administrative leave themselves within two days. Compl. ¶ 83. On March 25, 2025, USAGM‘s HR Director notified union officials at American Federation of State, County and Municipal Employees, AFL-CIO (“AFSCME,” a plaintiff in this case) that USAGM intended to “send termination notices” to 29 of USAGM‘s 32 radio broadcast technicians (“RBT“)—and
As a result of the defendants’ actions, VOA is not reporting the news for the first time in its 80-year existence. Its website has not been updated since March 15, 2025, and radio stations abroad that rely on VOA‘s programming have either gone dark or air only music. Compl. ¶ 82.7
All VOA emрloyees remain on administrative leave with no indication of returning. Id. ¶¶ 74–75, 85. PSCs face termination of their contracts and those working in the United States with J1 visas face the possibility of deportation to home countries, in some instances those with authoritarian regimes that are hostile to a free press. Id. ¶¶ 22–23. USAGM‘s FY 2025 grants with the Networks either remain terminated in the cases of RFA and MBN, or simply lapsed with no other agreement in place in the case of RFE/RL, and none of these Networks have received their congressionally appropriated funds for the month of April, forcing them to wind down operations and in some instances furlough their employees without pay. The status of each Network and their lawsuit in this Court is detailed below.
B. Procedural History
i. Network Lawsuits
a. Radio Free Europe/Radio Liberty, No. 25-cv-799 (RCL)
RFE/RL began broadcasting in 1953 and has been funded by the United States government ever since. See No. 25-cv-799 (RCL), 2025 WL 900481, at *1 (D.D.C. Mar. 25, 2025) (providing an overview of RFE/RL‘s history and funding structure). Following the passage of the First and Second Continuing Resolutions in which Congress renewed RFE/RL‘s funding, USAGM executed grant agreements obligating those funds to RFE/RL through February 28, 2025.8 RFE/RL v. Lake, No. 25-cv-799 (RCL) (“RFE/RL Docket“), Compl. ¶ 30, ECF No. 1. In late February 2025, RFE/RL and USAGM exchanged drafts of a FY 2025 grant agreement to cover funding appropriated to RFE/RL through the end of the fiscal year. Id. ¶ 32. On February 27, 2025, USAGM sent a final version of the grant agreement to RFE/RL and requested a “signed version of this Master Grant Agreement at your earliest convenience.” RFE/RL responded with the signed grant agreеment that same day, but USAGM never countersigned. Id.
On March 15, 2025, RFE/RL received the termination letter from USAGM. RFE/RL filed its Complaint on March 18 and moved for preliminary injunctive relief
On March 26, the day after the Court issued its TRO, USAGM rescinded the termination letter. RFE/RL Docket, Notice of Withdrawal of Grant Termination, ECF No. 15. The grant was therefore “back in effect,” according to USAGM. Id. RFE/RL has now received its funds for all of March but has not received any funds for April (or the rest of FY 25) because the prior grant agreement has expired—and as stated supra, the fully negotiated FY 25 grant agreement was never signed by USAGM. USAGM sent a new proposed FY 25 grant agreement to RFE/RL on April 8, 2025, prompting RFE/RL to file a renewed TRO, which is still pending. RFE/RL Docket, ECF No. 28. RFE/RL argues in its TRO motion that it will soon be forced to shut down without access to its April funds and that the proposed FY 25 grant agreement from USAGM is unreasonable and a pretext for denying RFE/RL its congressional appropriations.
b. Radio Free Asia, No. 25-cv-907 (RCL) and Middlе East Broadcast Networks, No. 25-cv-966 (RCL)
RFA was established in 1996 and relies entirely on USAGM grants to fund its operations. Fleming Decl. ¶ 10–11, Radio Free Asia v. United States, No. 25-cv-907 (RCL) (“RFA Docket“), ECF No. 12-2. As it has every year for the last three decades, RFA entered a master agreement with USAGM for “FY 2025,” which was scheduled to remain in effect through September 30, 2025. RFA Docket, ECF No. 19-2. Like the other Networks, RFA received a termination letter on March 15, 2025. RFA Docket, Fleming Decl. Ex. 1.9 RFA filed its Complaint on March 27, 2025, and a motion for a TRO,10 ECF No. 12, the following day. Before this Court acted on the motion, however, Defendants represented that they believed the grant termination had been enjoined by the March 28 TRO, issued by Judge Oetken of the Southern District of New York before the case was transferred to this Court. See Op. and Order Granting Pls.’ Mot for Temp. Restraining Order (“March 28 TRO“), ECF No. 54, at 22 (enjoining Defendants from “terminating (or proceeding with terminating as announced) any USAGM grant or contract“). Then, on April 9, 2025, with the TRO still in place, RFA received the funding it was due through the end of March. RFA Docket, Request for Hearing at 2, ECF No. 14. On April 11, 2025, the Defendants emailed RFA representatives with a “revision to the RFA FY-25 Master Grant Agreement between USAGM and RFA,” which Defendants encouraged RFA to sign “in order to expedite the payment process” for their April funding.11 However, the termination of
MBN sits in a similar position as RFA. MBN has received funding via grant agreements with USAGM since its inception in 2004. MBN and USAGM entered into a mastеr grant agreement for FY 2025, scheduled to remain in effect through September 30, 2025. Def.‘s Opp‘n. App‘x. C at 3, Middle East Broadcasting Networks, Inc. v. United States of America, No. 25-cv-966 (RCL) (“MBN Docket“), ECF No. 20-2. Like the other Networks, MBN received the March 15 termination letter,12 filed a Complaint on April 1, 2025, and filed a motion for a PI, ECF No. 11, on April 9, 2025. MBN‘s grant remains terminated absent injunctive relief.
RFA and MBN seek the same relief in their respective PI motions. They ask for the Court to enter an order enjoining the Defendants “from impounding, blocking, or otherwise interfering with payment of funds appropriated to Plaintiffs” and “from enforcing or otherwise giving effect to the termination of Plaintiffs’ grants[.]” RFA Docket, Proposed Order, ECF No. 12-4; MBN Docket, Proposed Order, ECF No. 18-5.
ii. The Instant Lawsuit
The plaintiffs in this lawsuit are Patsy Widakuswara, the VOA White House Bureau Chief; Jessica Jerreat, the VOA Press Freedom Editor; Kathryn Neeper, the Director of Strategy and Performance Assessment at USAGM; John Does 1 and 2, journalists at VOA; John Does 3 and 4, independent freelance journalists working as personal service contractors (PSCs) with VOA; Reporters Sans Frontières (“RSF“) and Reporters Without Borders, Inc. (“RSF USA“), nongovernmental organizations of independent journalists; AFSCME, AFGE, and the American Foreign Service Association (“AFSA“) (collectively, the “public-sector unions“); and The NewsGuild-CWA, AFL-CIO (“TNG-CWA“), a labor organization of private sector employees who work for Radio Free Asia. The plaintiffs filed this lawsuit on March 21, 2025, in the Southern District of New York against Defendant Kari Lake, Senior Advisor to the Acting CEO of the USAGM, and Defendant Victor Morales, Acting CEO of USAGM, in their official capacities, as well as USAGM as an organization (collectively, the “defendants“). Compl., ECF No. 1. The plaintiffs allege that the defendants’ actions in “dismantling” USAGM violate the plaintiffs’ First Amendment rights, the APA, the constitutional principle of the separation of powers and the Take Care Clause, the Appointments Clause,13 congressional appropriations acts, and numerous other statutory provisions under the International Broadcasting Act and other relevant statues governing foreign relations and broadcasting. Compl. ¶¶ 2, 102–60.
On March 24, 2025, the plaintiffs sought emergency relief by filing a motion (styled as a proposed order to show cause) for a TRO and PI, with an accompanying memorandum in support. See Proposed Order to Show Cause with Emergency Relief, ECF No. 15; Mem. in Support of Proposed Order to Show Cause (hereinafter “PI Mot.“), ECF No. 17. On March 28, 2025, Judge Oetken of the Southern District of New York granted the motion for a TRO, concluding that the defendants likely violated several provisions of the APA, and ordered as follows:
Defendants, and those acting in concert with them, are temporarily enjoined from taking any further actions to implement or effectuate the March 14, 2025 Executive Order entitled “Continuing the Reduction of the Federal Bureaucracy” as to USAGM and the March 15, 2025 email issued to all VOA staff, or take any action to reduce USAGM‘s workforce (whether employees, contractors, or grantees), included but not limited to
- proceeding with any further attempt to terminate, reduce-in-force, place on leave, or furlough any USAGM employee, or contractor,
- terminating (or proceeding with terminating as announced) any USAGM grant or contract or proceeding with terminating any USAGM Personal Services Contractors (PSCs) who received notice after March 14, 2025 that their contract would be terminated, including but not limited to John Doe 3 and John Doe 4 who received notice that their contracts would be terminated on March 31, 2025, or
- closing any USAGM office or requiring employees or contractors in overseas offices to return to the United States.
March 28 TRO at 21–22. The TRO was to remain in place “pending the hearing and determination of Plaintiffs motion for a preliminary injunction.” Id. at 21. One week later, Judge Oetken granted the defendants’ motion to transfer to the District of Columbia on April 4, 2025. See Transfer Order, ECF No. 61. The case was then assigned to the undersigned on April 8, 2025, with the PI motion still pending. See ECF No. 68.
On April 8, the defendants moved to vacate the March 28 TRO. Mot. to Vacate, ECF No. 73. The parties suggested that they cross-brief the PI motion alongside the defendants’ motion to vacate on the same expedited schedule. See ECF Nos. 78, 79. To that end, on April 14, 2025, the defendants filed an Opposition to the PI Motion (“PI Opp‘n“), ECF No. 88, and the plaintiffs filed an Opposition to the motion to vacate (“Mot. to Vacate Opp‘n“), ECF No. 89, that same day. On April 16, the plaintiffs filed a reply in support of their PI Motion (“PI Reply“), ECF No. 92, and the defendants filed a reply in support of their Motion to Vacate (“Mot. to Vacate Reply“), ECF No. 93. The Court held a hearing on Thursday, April 17, 2025, during which counsel for the plaintiffs here, as well as counsel for the plaintiffs in a related case, Abramowitz v. Lake, 25-cv-887, and the defendants (which are the same in both cases), all presented argument. The Motion for a Preliminary Injunction is now ripe for review.14
II. LEGAL STANDARDS
A. Preliminary Injunction
A preliminary injunction “is a stopgap measure, generally limited as to time, and intended to maintain a status quo or ‘to preserve the relative positions of the parties until a trial on the merits can be held.‘” Sherley v. Sebelius, 689 F.3d 776, 781–82 (D.C. Cir. 2012) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). It is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 20. “Where, as here, the government is a party, the latter two factors of the preliminary analysis merge into one, because the interest of the government is taken to be identical to the interest of the public.” RFE/RL, 2025 WL 900481, at *2 (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). Courts in this Circuit have adopted a “sliding scale” approach to the preliminary relief analysis, “whereby a relatively strong showing on one of these factors may partially offset weakness in another, although some non-speculative showing of irreparable harm is essential.” Id. (citing CityFed Fin. Corp. v. Off. of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)).
III. DISCUSSION
A. Plaintiffs Have Sufficiently Shown Standing.
“[A] party who seeks a preliminary injunction ‘must show a substantial likelihood of standing.‘” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (quoting Obama v. Klayman, 800 F.3d 559, 568 (D.C. Cir. 2015)). The defendants argue that the organizational plaintiffs AFSCME, AFGE, and AFSA (the public-sector unions) and RSF and RSF-USA (nongovernmental organizations of independent journalists) have failed to make this showing. PI Opp‘n at 4.
Membership-based associations can establish standing in one of two ways: they can assert “associational standing” to sue on behalf of their members, see Hunt v. Wash. State Apple Advert. Comm‘n, 432 U.S. 333, 343 (1977), or “organizational standing” to sue on behalf of themselves, see People for Ethical Treatment of Animals v. U.S. Dep‘t of Agric. (PETA), 797 F.3d 1087, 1093 (D.C. Cir. 2015). Here, all organizational plaintiffs have asserted both associational and organizational standing. PI Mot. 34–38. Despite the defendants’ arguments to the contrary, the Court concludes that all organizational plaintiffs have shown a “substantial likelihood” of both associational and organizational standing.
i. Associational Standing
To show associational standing, an organization must demonstrate that “(1) at least onе of its members would have standing to sue in his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted, nor the relief requested requires that an individual member of the association participate in the lawsuit.” Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002). The defendants argue that the union members placed on administrative leave are not injured because “[a]lthough Plaintiffs fear what may happen next in the future, this ‘amounts to nothing more than speculation about future events that may or may not occur,’ especially given [USAGM] remains operational, contrary to what Plaintiffs suggest.” PI Opp‘n at 5 (quoting Mahorner v. Bush, 224 F. Supp. 2d 48, 50 (D.D.C. 2002)). This argument is easily dispensed with—Defendant Lake has stated that what‘s “coming up next” is that the agency “is going to be decreased in size significantly” because there is “too much rot in the agency to salvage it,” Compl. ¶ 89,15 plainly illustrating that the
ii. Organizational Standing
An organization can establish organizational standing “if it can show that the defendant‘s actions cause a ‘concrete and demonstrable injury to the organization‘s activities’ that is ‘more than simply a setback to the organization‘s abstract social interests.‘” Am. Soc‘y for Prevention of Cruelty to Animals v. Feld Ent., Inc., 659 F.3d 13, 25 (D.C. Cir. 2011) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)). The organization must satisfy two criteria: (1) the defendants’ “action or omission . . . injured the organization‘s interest;” and (2) the organization “used its resources to counteract that harm.” Elec. Priv. Info. Ctr. v. Presidential Advisory Comm‘n on Election Integrity, 878 F.3d 371, 378 (D.C. Cir. 2017) (internal citations and quotations omitted).
The defendants argue that the organizational plaintiffs have not identified a “concrete and demonstrable injury to [their] activities,” but only speculative ones, because “[VOA] has not been dismantled and [USAGM] remains operational.” PI Opp‘n at 6. Of course, as this quote concedes, VOA itself is not operational, and the Networks are winding down operations. That harm is not speculative—it is currently unfolding. The defendants’ actions have interfered with the unions’ “core business interests,” injuring their ability to provide representational services to employees in affected bargaining units. PI Mot. at 36–37 (quoting Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 395 (2024); see Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982). Moreover, the defendants have decided to eliminate an entire AFSCME bargaining unit and terminate 594 AFGE members,
Regarding the second prong of organizational standing, the plaintiffs’ Complaint, briefing and accompanying declarations show that the public-sector unions are “expending significant resources to counteract USAGM‘s obstruction of their ability to perform their core services [such as] advising members about the terms of their employment and the implication of Defendants’ actions.” PI Reply at 3; see Compl. ¶¶ 99–101 (explaining the activities of each union in response to Defendants actions since March 15, 2025). The Complaint also indicates that RSF and RSF-USA have used resources to counteract the harm at issue here because “[t]he silencing of VOA . . . force[s] [RSF and RSF USA] to lose and waste material resources it otherwise would not have spent and upon which it relies.” Compl. ¶¶ 24, 97. The Court finds these representations sufficient to show a “substantial likelihood” of organizational standing.
Notably, nowhere do the defendants argue that TNG-CWA, the other organizational plaintiff in this case, lacks standing. TNG-CWA represents private sector reporters who work for RFA and who rely on USAGM programs “including but not limited to RFA.” First Declaration of Jon Schleuss, President of TNG-CWA ¶ 18, ECF No. 16-16. The defendants’ actions directly interfere with TNG-CWA‘s journalist-members’ ability to access VOA and other USAGM grantee broadcasts, which provide a “free flow of information, over radio airwaves and online” in countries where “there is no media freedom.” Id. ¶¶ 15–17. As of March 21, 2025, 75% of TNG-CWA‘s members have been indefinitely furloughed without pay and they stand to lose their medical and life insurance at the end of April. Second Declaration of Jon Schleuss, President of TNG-CWA, ¶ 18, ECF No. 92-1. Many of TNG-CWA‘s members are on nonimmigrant visas and face return to their home countries where they fear potential retaliation from repressive regimes. Id. ¶ 8. The Court is satisfied that TNG-CWA has shown a “substantial likelihood” of standing, in addition to all other organizational plaintiffs, and concludes that the defendants’ challenges to the contrary are unavailing.
B. The Court has Jurisdiction over the Plaintiffs’ Claims Regarding the Withholding of Congressional Appropriations from Networks.
As part of their requested relief, the plaintiffs seek to enjoin the defendants from terminаting the grants that Congress directed USAGM to provide to the specified broadcasting Networks in congressionally appropriated amounts. Proposed PI Order, ECF No. 15 at 2. The defendants argue that this Court lacks jurisdiction to hear this portion of the dispute, characterizing it as strictly a contractual in nature, but the Court concludes otherwise.
In opposing the initial TRO Motion in the Southern District of New York,
To challenge that conclusion here, the defendants rely on the intervening Supreme Court emergency-docket order, Department of Education v. California, 145 S. Ct. 966 (2025) (рer curiam), arguing that it “clarifies” that the plaintiffs’ claims regarding USAGM‘s termination of grants cannot be heard in this Court. Mot. to Vacate at 6; PI Opp‘n at 33–34. That argument fails.
In California, grantees of the Department of Education sued under the APA to challenge the termination of their grants. 145 S. Ct. at 968. The grantees relied on relevant statutory provisions that directed the Secretary of Education to “use certain funds to make grants to entities,” which were awarded pursuant to a “competitive application process.” California v. U.S. Dep‘t of Educ., 132 F.4th 92, 95 (1st Cir. 2025). The district court entered a TRO, enjoining the government from terminating the grants and requiring the government to pay out grant obligations to those plaintiffs who had applied for and received a grant award. California v. U.S. Dep‘t of Educ., No. 25-cv-10548-MJJ, 2025 WL 760825, at *5 (D. Mass. Mar. 10, 2025). The Supreme Court stayed the TRO because the Court found it “likely” that the district court lacked jurisdiction to issue such relief. California, 145 S. Ct. at 968. In so ruling, the Court reiterated that the APA‘s waiver of sovereign immunity “does not extend to orders to enforce a contractual obligation to pay money,” and that, instead, “suits based on ‘any express or implied contract with the United States‘” must go to the Court of Federal Claims under the Tucker Act. Id.
But California does not change the conclusion in the March 28 TRO, because California does not change the governing law. It was true before California, and it remains true now, that “[w]hether a claim is ‘at its essence’ contractual for the Tucker Act ‘depends both on the source of the rights upon which the plaintiff bases its claims, and upon the type of relief sought (or appropriatе).‘” Crowley Gov‘t Servs., Inc. v. Gen. Servs. Admin., 38 F.4th 1099, 1106 (D.C. Cir. 2022) (quoting Megapulse, 672 F.2d at 968). In California, the source of the rights relied on by the plaintiffs were contained in the grant agreements—the relevant statute did not entitle any particular grantee to the funds. Here, by contrast, the source of the Networks’ rights is not rooted in the grant agreements with USAGM—grants are involved only as a vehicle to distribute congressionally appropriated funds to the Networks because Congress passed laws directing USAGM to provide grants to specific grantees, and appropriated funds for those grantees specifically. See, e.g.,
The D.C. Circuit has cautioned that the Tucker Act should not be interpreted “so broad[ly] as to deny a court jurisdiction to consider a claim that is validly based on grounds other than a contractual relationship with the government,” Megapulse, 672 F.2d at 968, and a claim of entitlement to congressional appropriations is certainly one over which the Court can exercise jurisdiction. See Md. Dep‘t of Hum. Res. v. Dep‘t of Health and Hum. Servs., 763 F.2d 1441, 1446 (D.C. Cir. 1985) (“[Plaintiff] is seeking funds to which a statute allegedly entitles it, rather than money in compensation for the losses, whatever they may be, that [Plaintiff] will suffer or has suffered by virtue of the withholding of those funds.“); Nat‘l Ctr. for Mfg. Scis. v. United States, 114 F.3d 196, 200 (Fed. Cir. 1997) (“[Plaintiffs‘] demand for the release of the remaining funds referred to in the Appropriations Act is not a demand for ‘money damages.‘“). Therefore, the Court has jurisdiction to review the defendants’ termination of congressionally appropriаted funds to the Networks.
C. The Court Has Jurisdiction Over Plaintiffs’ Claims Regarding the Defendants’ Personnel Actions.
The defendants argue that the Court lacks jurisdiction to enjoin USAGM‘s personnel actions as to individual plaintiff employees because the Federal Service Labor-Management Relations Statute (“FSL-MRS“), the Civil Service Reform Act (“CSRA“), and the Foreign Service Act (“FSA“) govern review of employment disputes between the federal government and its employees, thereby channeling claims to either the Merit Systems Protection Board (“MSPB“) for employment disputes, the Federal Labor Relations Authority for labor disputes, or the Office of Special Counsel (“OSC“) for certain “prohibited personnel practices.” PI Opp‘n at 8–14; Mot to
Vacate at 7–8. And as stated supra, “[t]he APA‘s waiver of sovereign immunity does not apply ‘if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.‘” California, 145 S. Ct. at 968 (quoting
Defendants rely primarily on AFSA v. Trump, No. 25-cv-352 (CJN), 2025 WL 573762 (D.D.C. Feb. 21, 2025), to argue that Plaintiffs claims should be channeled to the federal administrative employment dispute process. In AFSA, two unions representing USAID employees sought to enjoin the dismantling of USAID, effectuated in part by the placement of employees on administrative leave. The court denied the plaintiffs’ motion for a PI, concluding that the plaintiffs’ claims were “archetypal complaints about changed employment conditions and their follow-on effects—which at this point appear to be largely financial.” Id. at *7. In so holding, the court noted that “it may be the case that, at a high level of generality and in the long run, plaintiffs’ assertions of harm could flow from their constitutional and APA claims regarding the alleged unlawful ‘dismantl[ing]’ of USAID,” but found that “at present, the agency is still standing,” so the employees’ allegations boiled down to a quotidian employment dispute that fell within the statutory schemes of the FSL-MRS, CSRA, and FSA. Id. at *7, 11. Here, such a conclusion would ignore the facts on the record and on the ground. It strains credulity to conclude the USAGM is “still standing” when its 80-year-old flagship news service, VOA, has gone completely dark with no signs of returning, when USAGM has stopped the disbursement of funds to statutorily created, congressionally funded networks, and when USAGM leadership has called the agency “not salvageable” and “a giant rot from top to bottom.”21 It appears to this Court that USAGM has already reached the breaking point about which the ASFA court opined. The Court therefore concludes that this is not simply an employment dispute, and it has jurisdiction to hear the plaintiffs’ claims.22
i. APA
The APA permits judicial review of “circumscribed, discrete agency actions.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 62 (2004). The defendants argue that the plaintiffs do not seek review of a “discrete” agency action, because they seek review of the dismantling of USAGM across the board, by challenging a host of individual actions. Therefore, granting the plaintiffs’ requested relief, the defendants argue, “would require the Court to supervise all the agency‘s activities and determine how the agency would accomplish each statutorily-mandated function.” PI Opp‘n at 31.
The Court is not persuaded by this argument. The “discrete” requirement does not mean that if an agency takes a slew of actions quickly, the Court loses its ability to review each of them under the APA. The Court must, of course, review whether agency actions contravene the agency‘s statutorily mandated duties, even if there are a lot of actions at issue. The plaintiffs here have identified the series of actions taken by USAGM since March 15, detailed in Section I.A, supra, which are under review here.
The APA also only permits judicial review of “final agency action.” To constitute final agency actiоn: (1) “the action must mark the consummation of the agency‘s decisionmaking process” and (2) it “must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997). Courts “are to apply the finality requirement in a ‘flexible’ and ‘pragmatic’ way.” Ciba-Geigy Corp. v. U.S.E.P.A., 801 F.2d 430, 435 (D.C. Cir. 1986); U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 599 (2016) (noting the “pragmatic’ approach [the Supreme Court] ha[s] long taken to finality“).
As Judge Oetken concluded in granting the TRO, the defendants’ actions constitute final agency actions. See March 28 TRO at 7 (“The termination of contracts with partner organizations and the dismantling of critical infrastructure leading to the complete halt of agency programming are final agency actions.”) (citing Biden v. Texas, 597 U.S. 785, 807 (2022)). And although a “closer call,” Judge Oetken concluded that this applied to the mass placement of USAGM employees on administrative leave, particularly given USAGM‘s stated intent to fire over 600 VOA employees in the AFSCME and AFGE bargaining units and public statements from USAGM acting leadership that the agency is “irretrievably broken” and “a giant rot from top to bottom.” Id. at 8. The defendants hardly challenge this conclusion now, only mentioning finality in a footnote, where they argue that the actions are not final because of “the operations that are ongoing and the fact that [USAGM] has only paused other activities while it determines next steps to bring the agency into cоmpliance with the Executive Order . . . .” PI Opp‘n at 31 n.5. But this argument is unconvincing because final does not mean permanent—just because USAGM maintains the ability to reverse these actions at some unidentified
a. Arbitrary and Capricious, 5 U.S.C. § 706(2)(A)
The APA provides that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.”
Not only is there an absence of “reasoned analysis” from the defendants; there is an absence of any analysis whatsoever. The EO states that only “non-statutory components and functions” of USAGM be eliminated “to the maximum extent consistent with applicable law,” 90 Fed. Reg. 13043 (Mar. 14, 2025), but the defendants have provided no indication that an analysis was undertaken to determine which aspects of USAGM are statutorily required and which are not. In opposing the initial TRO in the Southern District of New York, the defendants only gave one line of reasoning for their actions since March 15, 2025: that they were acting “[i]n furtherance of the OPM Memorandum24 and the [EO].” See ECF.
The defendants have offered no further analysis since. In their briefing before this Court, they do not even use the words “arbitrary” or “capricious” anywhere, even thоugh the central holding of the TRO was that the defendants’ actions were arbitrary and capricious. The defendants have also offered no further explanation for the termination of the Network grants, other than the one sentence contained in each termination letter: that the grant “no longer effectuates agency priorities.” Compl. ¶ 78. And at this Court‘s PI hearing, the defendants opted not to argue the merits of the arbitrary and capricious challenge despite being given several opportunities to do so. Tr. of Apr. 17 Hearing, 67:3–9 (“We don‘t even get to the arbitrary and capricious because there is no final agency decision yet.“); see also Tr. of Apr. 17 Hearing, 82: 17–18. The defendants solely relied on their threshold, jurisdictional arguments, which this Court has resolved in the plaintiffs’ favor supra.
Rather than argue that their actions are not arbitrary and capricious, the defendants simply state that USAGM is currently in the process of figuring out how to comply with the EO. Tr. of Apr. 17 Hearing, 45:14–15 (“Right now, the agency is determining how it will best go about complying with [the EO].”; see also PI Opp‘n at 43 (USAGM “has placed its employees on administrative leave temporarily to determine how to bring the agency into compliance with the Executive Order“). But that necessarily means that the defendants took the actions at issue here without any “reasoned analysis” as to what was “statutorily required” under the EO and what was not. State Farm, 463 U.S. at 43. And the actions taken reflect a hasty, indiscriminate approach: for example, the Networks received the termination letters on the exact same day that President Trump signed the Third Continuing Resolution appropriating line-item funds to the Networks through the end of the fiscal year. Certainly, disbursing congressional appropriations are statutorily required, and the agency axed them the very same day they were enacted.
Furthermore, the defendants failed to account for any reliance interests, contributing to this Court‘s conclusion that their actions were arbitrary and capricious. “When an agency changes course, as [USAGM] did here, it must ‘be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.” Dep‘t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 30 (2020) (quoting Encino Motorcars, 579 U.S. at 212). VOA has been operating under statutory mandate and with steady congressional appropriations for over eighty years, and in so doing, has cultivated an audience of 425 million listeners who rely on VOA‘s output—particularly in areas of the world where a free press is otherwise unavailable. The Networks have contributed to U.S. international broadcasting by almost exclusively relying on their yearly congressional appropriations, which have been uninterrupted for decades before March 15, 2025. There is
In short, the defendants had no method or approach towards shutting down USAGM that this Court can discern. They took immediate and drastic action to slash USAGM, without considering its statutorily or constitutionally required functions as required by the plain language of the EO, and without regard to the harm inflicted on employees, contractors, journalists, and media consumers around the world. It is hard to fathom a more straightforward display of arbitrary and capricious actions than the Defendants’ actions here.
b. “Not in Accordance with the Law,” 5 U.S.C. § 706(2)(A)
The defendants have also likely violated the APA because their actions are “not in accordance with law.”
1. International Broadcasting Act and the Congressional Appropriations Acts
The defendants are likely in direct violation of numerous federal laws. For one, VOA‘s congressionally established charter in the International Broadcasting Act states that VOA “will serve as a consistently reliable and authoritative source of news [that is] accurate, objective, аnd comprehensive,”
Finally, the defendants’ decision to cut all grant funding to the Networks directly violates congressional appropriations laws. “[A] President sometimes has policy reasons . . . for wanting to spend less than the full amount appropriated by Congress for a particular project or program. But in those circumstances, even the
The Court therefore concludes that the defendants are likely contravening the APA by acting “not in accordance” with several International Broadcasting Act provisions and congressional appropriations acts.
2. Take Care Clause and Separation of Powers Principles
“Under the Constitution, the President must ‘take care that the laws be faithfully executed,’
“Related to Plaintiffs’ Take Care Clause claim is their argument that Defendants’ actions violate the sepаration of powers implicit in our constitutional design.” March 28 TRO at 12. The power to make law resides exclusively with the legislative branch,
c. “Unlawfully Withheld or Unreasonably Delayed,” 5 U.S.C. § 706(1)
The APA also provides that a reviewing court “shall” “compel agency action unlawfully withheld or unreasonably
E. PI Factor 2: Irreparable Harm
To qualify as irreparable harm, the injuries alleged “must be both certain and great,” “actual and not theoretical,” and “of such imminence that there is a ‘clear and present’ need for equitable relief.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). Here, the showing of irreparable harm that formed the basis of the March 28 TRO remains compelling. See March 28 TRO at 16 (“The dismantling of USAGM would clearly cause employees, contractors, and grantees irreparable harm. And Plaintiffs have offered sufficient evidence that Defendants are doing just that.”). The defendants have alreаdy placed a total of “[a]pproximately 1,300 VOA journalists and other employees” on administrative leave, furloughed others, and stated that over 600 more employees will be terminated within weeks. Compl. ¶¶ 75, 80; March 26 Letter to the Court, ECF No. 33 at 2. “[O]bstacles [that] unquestionably make it more difficult for the [plaintiff] to accomplish [its] primary mission . . . provide injury for purposes . . . [of] irreparable harm.” League of Women Voters of the U.S. v. Newby, 838 F.3d 1, 9 (D.C. Cir. 2016).
The defendants argue that the plaintiffs “fundamentally complain of adverse employment actions . . . that can be remedied by money damages at the end of the litigation.” PI Opp‘n at 42. While the defendants are correct that “ordinary economic injuries are usually insufficient to require injunctive relief,” Wis. Gas, 758 F.2d at 674, it is also true that “financial harm can ‘constitute irreparable harm . . . where the loss threatens the very existence of the movant‘s business,” Climate United Fund v. Citibank, N.A., No. 25-cv-698 (TSC), 2025 WL 842360, at *10 (D.D.C. Mar. 18, 2025) (quoting Wis. Gas, 758 F.2d at 674). The defendants have silenced VOA, canceled funds to affiliate Networks,
The Court also concludes that the harm to Does 3 and 4, foreign nationals working as PSCs with VOA, from the looming loss of their J-1 visas constitutes irreparable harm. In opposing the March 28 TRO, the defendants argued that the revocation of these J-1 visas is not irreparable harm because it merely forces them to leave the country “earlier than scheduled.” March 28 TRO at 19 (quoting Defs.’ TRO Opp‘n at 13). The court dispensed with that argument then, and the Court adopts the same reasoning here: the immediate termination of John Does 3 and 4‘s contracts and visas is “not merely speeding up the inevitable” because the hastiness of the defendants’ actions eliminates the notice that Does 3 and 4 would otherwise have “to find a new job to sponsor a subsequent visa, or to apply for another kind of visa to stay in the country.” March 28 TRO at 19–20. The defendants’ actions virtually ensure that Does 3 and 4 will be subject to deportation immediately.
The defendants do not appear to challenge the plaintiffs’ showing of irreparable harm to RSF plaintiffs who rely on VOA while living and reporting abroad, or the harm to TNG-CWA (labor organization of RFA employees). The Court finds these allegations of irreparable harm compelling as well. See Brunnit Decl. ¶ 6 (offering testimony of irreparable harm to RSF Plaintiffs because the shutdown of VOA “depriv[es] correspondents of a trustworthy source of news” in countries “where VOA is one of the few, if not the only, sources of independent and reliable news,” and impedes RSF‘s ability to “dissemina[te] vital public interest information for journalists and public safety. . . .“); Second Schleuss Decl. ¶¶ 4–6 (testifying that TNG-CWA members will lose their health insurance as soon as May 1 and describing the medical consequences of such a result, and testifying that TNG-CWA members with H1-B visas face “deport[ation] to their home countries where they could face threats, harassment, or imprisonment for their work as journalists” as a result of their furlough status).
In sum, the irreparable harm that the plaintiffs allege impacts the very existence of USAGM, the health and safety of its journalists and employees, and the interests of the millions of reporters and listeners who depend on USAGM‘s programming. For all of these reasons, the Court concludes that the plaintiffs’ have demonstrated irreparable harm warranting the issuance of a preliminary injunction.
F. PI Factors 3 and 4: Balance of Equities and Public Interest
These final PI factors “merge when the government is the opposing party.” Am. Ass‘n of Pol. Consultants v. U.S. Small Bus. Admin., 613 F. Supp. 3d 360, 365 (D.D.C. 2020) (quoting Nken, 556 U.S. at 435). “[C]ourts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief[,] . . . pay[ing] particular regard for the public consequences” that would result in granting the emergency relief sought. Winter, 555 U.S. at 24 (quotation marks omitted). Here, as
G. The Court will Not Impose Bond.
Under
The Court has considered the question of whether to impose bond and declines to do so, following the practice of other courts in this Circuit faced with a similar posture. “A bond ‘is not necessary where requiring [one] would have the effect of denying the plaintiffs their right to judicial review of administrative action.” Nat‘l Council of Nonprofits, 2025 WL 597959, at *19 (quoting Nat. Res. Def. Council, Inc. v. Morton, 337 F. Supp. 167, 168 (D.D.C. 1971)). Such a situation arises where a bond would “hold Plaintiffs hostage” for the harm from the government‘s unlawful withholding of “previously committed funds.” Id. (noting that defendants “will personally face no monetary injury from the injunction”). That is squarely the case here, where the defendants are already constitutionally required to distribute funds in accordance with the yearly appropriations bill, so a bond would merely impose a financial barrier to litigation for plaintiffs seeking to vindicate their statutory and constitutional rights. In cases such as this one where funds are committed by Congress for specific programs, “public policy mandate[s] that parties . . . adversely affected by improper administration of programs . . . be strongly encouraged to correct such errors.” Wright & Miller, 11A Fed. Prac. & Proc. Civ. § 2954 (quoting Bass v. Richardson, 338 F. Supp. 478, 491 (S.D.N.Y. 1971)). To that end, the Court will not impose bond.
IV. CONCLUSION
For the foregoing reasons, the plaintiffs’ Motion for a Preliminary Injunction will be GRANTED as follows: The Court will preliminarily enjoin the defendants, pеnding further order of this Court, to 1) take all necessary steps to return USAGM employees
A separate Order consistent with this Memorandum Opinion shall issue.
Date: 4-22-25
2:45 p.m.
Royce C. Lamberth
United States District Judge