Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D.D.C.: Government preliminarily enjoined from shuttering VOA, other entities, (Apr 23, 2025)

By Kathleen Kapusta, J.D.

“The news may be good or bad; we shall tell you the truth.”

A federal court in the District of Columbia preliminarily enjoined an attempt, pursuant to an Executive Order signed by President Trump, to shutter the Voice of America, Radio Free Asia, and Middle East Broadcasting Networks, all entities of the United States Agency for Global Media (USAGM), ordering the defendants to, among other things, take all necessary steps to restore all USAGM employees and personal service contractors, who were placed on leave or terminated, to their status prior to the issuance of the EO. The court, however, denied the motion for a preliminary injunction as to other affiliated network entities (Widakuswara v. Lake, No. 1:25-cv-1015-RCL (D.D.C. Apr. 22, 2025)).

USAGM, an independent executive agency, was established by Congress to “inform, engage, and connect people around the world in support of freedom and democracy.” It oversees six federally funded broadcast networks, including the Voice of America (VOA). While all six entities are funded by the government, VOA and Office of Cuba Broadcasting (OCB) are located within the federal government, whereas Radio Free Asia, Radio Free Europe/Radio Liberty, Middle East Broadcasting Network, and Open Technology Fund are private non-profit organizations that receive funding through congressional appropriations disbursed via grant agreements with USAGM.

For FY 2024, Congress allocated funds for all six entities and in three continuing resolutions covering FY 2025, including the third which was signed into law on March 15, 2025, funding USAGM at the same levels.

EO. On March 14, 2025, President Trump issued Executive Order 14238 entitled “Continuing the Reduction of the Federal Bureaucracy,” which demands that “the non-statutory components and functions of [USAGM] shall be eliminated to the maximum extent consistent with applicable law.” The following day, USAGM placed 1,042 employees on administrative leave and all USAGM grantee networks received a letter immediately terminating their operative grant agreements. The letter, which cited the EO, stated that “[t]he award no longer effectuates agency priorities.” Several days later, two unions were notified that USAGM intended to terminate radio broadcast technicians and other union members.

Lawsuit. Various individual plaintiffs, including the VOA White House Bureau Chief and VOA journalists, along with three public sector unions, and a labor organization of private sector employees who work for Radio Free Asia, filed suit in the Southern District of New York against the Senior Advisor to the Acting CEO of the USAGM, the Acting CEO of USAGM, and USAGM, seeking emergency relief. The court granted their motion for a TRO and then, a week later, granted the defendants’ motion to transfer the case to the District of Columbia. The defendants then moved to vacate the TRO and the plaintiffs moved to expedite the hearing on their motion for a preliminary injunction, which the court found ripe for review.

Standing. The court first rejected the defendants’ assertion that the organizational plaintiffs lacked associational standing because the union members placed on administrative leave were not injured as their fear of what might happen next was mere speculation and the USAGM remains operational. The defendants’ statement 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,” was not speculative and the defendants also stated their intent to terminate over 600 union members who are VOA employees.

In addition, said the court, the organizational plaintiffs established a substantial likelihood of organizational standing. The defendants’ actions in winding down USAGM operations have interfered with the unions’ “core business interests,” injuring their ability to provide representational services to employees in affected bargaining units. Further, the defendants have decided to eliminate an entire AFSCME bargaining unit and terminate 594 AFGE members, thereby depriving both unions of dues and “existentially threatening” AFSCME’s unit. In addition, the plaintiffs allege that the public sector unions are expanding significant resources to counteract USAGM’s actions.

Likelihood of success on the merits. After next determining that it had jurisdiction over the plaintiffs’ claims regarding the defendants’ withholding of Congressional appropriations and over their claims regarding the defendants’ personnel actions, the court turned to the plaintiffs’ likelihood of success on the merits of their claim under the APA, which permits judicial review of “circumscribed, discrete agency actions.” According to the defendants, the plaintiffs are not seeking review of a discrete agency action but, rather, are seeking review of the dismantling of USAGM across the board. Disagreeing, the court explained that 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.”

As to the APA’s requirement that judicial review must be of a “final agency action,” the court agreed with the prior court’s order granting the TRO that 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.” Further, said the court here, the “agency actions at issue—blanket placement of employees on administrative leave, termination of entire bargaining units of employees, termination of PSCs, and cancellation of grants dispensing congressionally appropriated funds—are, with one exception, discrete, final agency actions subject to judicial review.” The exception, said the court in a footnote, was the termination of Radio Free Europe/Radio Liberty’s grant, which was initially rescinded by USAGM and then lapsed because the previously negotiated grant agreement for FY 2025, signed by RFE/RL in February 2025, was never signed by USAGM.

Arbitrary and capricious. Turning to whether ASAGM’s actions were arbitrary and capricious, the court pointed out that the EO states that only “non-statutory components and functions” of USAGM may be eliminated “to the maximum extent consistent with applicable law.” But the defendants, said the court, “provided no indication that an analysis was undertaken to determine which aspects of USAGM are statutorily required and which are not.” Indeed, rather than argue that their actions were not arbitrary and capricious, they argued that USAGM was currently in the process of figuring out how to comply with the EO. “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,” the court reasoned, noting that “disbursing congressional appropriations are statutorily required, and the agency axed them the very same day they were enacted.”

Not in accordance with law. Further, said the court, the defendants also likely violated the APA because their actions are “not in accordance with law.” For example, while VOA’s congressionally established charter in the International Broadcasting Act states that it “will serve as a consistently reliable and authoritative source of news [that is] accurate, objective, and comprehensive,” the defendants have silenced VOA for the first time ever. In addition, by violating the International Broadcasting Act and the relevant congressional appropriations acts, the defendants likely contravene the Take Care Clause, requiring that the President take care that the laws be faithfully executed across the entire Executive Branch.

Irreparable harm. Regarding irreparable harm, the court pointed out that the defendants have placed a total of approximately 1,300 VOA journalists and other employees on administrative leave, furloughed others, and stated that over 600 more employees will be terminated within weeks. Though the defendants argued that the plaintiffs “fundamentally complain of adverse employment actions... that can be remedied by money damages at the end of the litigation,” the defendants, said the court, “have silenced VOA, canceled funds to affiliate Networks, and shut down all transmitters at foreign service stations abroad,” harms that “cannot be remedied with mere money damages.” In sum, the court concluded, “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.”

Balance of equities. Finally, as to the balance of equities and public interest, the court noted that while the plaintiffs “have put forward a laundry list of injuries” that would occur absent injunctive relief, the defendants “only seem to assert that injunctive relief would disrupt their ability to comply with the EO.” Moreover, observing that the defendants are apparently still in the process of determining how to comply with the EO, the court noted that in doing so, “they have likely violated it by reducing USAGM’s activities to levels far below the constitutional and statutory minimums.” Thus, the court found no competing harm to the government with the issuance of preliminary relief that orders compliance with governing statutes and the Constitution, while “[t]here is a substantial public interest ‘in having governmental agencies abide by the federal laws that govern their existence and operations.’”

Accordingly, the court, granting the preliminary injunction in part, ordered the defendants to take all necessary steps to return USAGM employees and contractors to their status prior to the EO, including by restoring all USAGM employees and personal service contractors, who were placed on leave or terminated, to their status prior to March 14, 2025; to restore the FY 2025 grants with USAGM Networks Radio Free Asia and Middle East Broadcasting Networks such that international USAGM outlets can “provide news which is consistently reliable and authoritative, accurate, objective, and comprehensive;” and to provide monthly status to the court. It denied the motion, however, at this time, as it relates to RFE/RL and OTF, in light of their current status.

The case is No. 1:25-cv-1015-RCL.

Judge: Lamberth, R.

Attorneys: Daniel M. Eisenberg (Emery Celli Abady Brinckerhoff Ward & Maazel) for Patsy Widakuswara. Brenda A. Gonzalez Horowitz, U.S. Department of Justice, for Kari Lake.

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