Open Tech. Fund v. Pack

• Citation: 470 F.Supp.3d 8
• Decision Date: 02 July 2020
• Docket Number: Civil Action No. 20-1710 (BAH)
• Parties: OPEN TECHNOLOGY FUND, et al., Plaintiffs, v. Michael PACK, in his official capacity as Chief Executive Officer and Director of the U.S. Agency for Global Media, Defendant.
• Court: U.S. District Court — District of Columbia

470 F.Supp.3d 8

OPEN TECHNOLOGY FUND, et al., Plaintiffs,

v.Michael PACK, in his official capacity as Chief Executive Officer and Director of the U.S. Agency for Global Media, Defendant.

Civil Action No. 20-1710 (BAH)

United States District Court, District of Columbia.

Signed July 2, 2020

Deepak Gupta, Gupta Wessler PLLC, Washington, DC, for Plaintiffs.

Stephen Ehrlich, Charles E.T. Roberts, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

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 directors with five members of the current Trump Administration as well as an employee of Liberty Counsel Action, a conservative advocacy organization.

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"), 22 U.S.C. §§ 6201 – 16, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq. Compl. ¶¶ 47–60.² They seek an order enjoining Pack "from taking any action or giving effect to any action purporting ... [ (1) ] to remove any officers or directors of [OTF]," (2) to "replace the boards of directors of [the Networks] with a board effectively controlled by the federal government, or [ (3) ] to give effect to any personnel decisions (such as removal of corporate officers) that must be taken by the organization's board of directors." Pls.’ Motion for a Temporary Restraining Order and Preliminary Injunction ("Pls.’ Mot."), at 33–34, ECF No. 4. For his part, Pack defends his action as authorized by 2016 amendments to the IBA, which amendments, despite being buried without fanfare in a brief 6-page section of a 970-page enacted bill, made profound structural changes in the management of the agency tasked with overseeing the funding and operations of the affected Networks.

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 22 U.S.C. § 6215.

"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 22 C.F.R. § 1300.1(b) (1985) ). 1994 amendments to the IBA placed similar language into the IBA itself, creating the so-called "statutory firewall." See CRS INT'L BROADCASTING REP. at 3–4. Simultaneously, "Congress abolished the BIB and reorganized all existing U.S. international broadcasting services under a new Broadcasting Board of Governors [ (‘BBG’) ]." Id. at 3. The BBG was largely structured along the same lines as the BIB, made up of (1) eight presidentially appointed, senate-confirmed governors, "no more than four of whom [could] be from the same political party," and (2) the Secretary of State, who "serve[d] as the ninth voting member ex officio." Id. at 5. "By ensuring broadcasting independence while at the same time institutionalizing guidance from the Secretary of State," the 1994 law "aimed to produce U.S. international broadcasting that is both credible and supportive of U.S. foreign policy objectives." Id. at 3–4. Continuing this trend, in 1999, Congress made BBG an independent agency. See id. at 4.

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...