Open Technology Fund v. Lake

Opinion

at issue emanate from a contract or another source of law. See id.; Crowley, 38 F.4th at 1107.

Here, the answer is the latter.

OTF alleges in its complaint,and asserts in its preliminary injunction papers,thatUSAGM

is once again acting contrary to the APA, the International Broadcasting Act, and duly enacted

federal appropriations by stonewalling the disbursement of funding allocated to OTF by Congress.

See Compl. ,r 47-57. Congress established OTF as a "grantee entity" by statute, 22 U.S.C.

§ 6208a(a)(2), and assigned it specific functions by law, id. § 6208a(a)(l), (b). Congress also

authorized the making of annual grants to OTF to fund those functions, id. § 6208a(a)(l), and set

"limitations and restrictions on such grants," including specific terms such grants must include,

see id. § 6208a(d)(2)--(4) (specifying mandatory grant terms).

In furtherance of those provisions, Congress appropriated defined sums that, by statute,

"shall be allocated" to OTF byUSAGM. See Pub. L. No. 118-47,div. F,138 Stat. 460,833 (2024);

Pub L. No. 119-4, div. A, tit. I, 139 Stat. 9, 12 (2025). No more than five percent of those funds

may be reprogrammed. See 2024 Appropriations Act, 138 Stat. at 735; Full-Year Continuing

Appropriations and Extensions Act, 2025, Pub. L. No. 119-4, div. A, § 1101 (2025). And as with

the grantee networks, like Radio Free Asia,USAGM may terminate a grant "only for 'failure to

comply with' the requirement 'that grant funds be used only for activities consistent with' the

statute." Widakuswara v. Lake, 2025 WL 1288817, at *11 (D.C. Cir. May 3, 2025) (Pillard, J.,

dissenting) (quoting 22 U.S.C. § 6208(c)(5)); see also Widakuswara v. Lake, 2025 WL 1321355,

at *1 (D.C. Cir. May 28, 2025) (en bane) (reversing panel's jurisdictional basis for denying stay

"substantially for the reasons explained by Judge Pillard"); 22 U.S.C. § 6208a(d)(2) (subjecting

OTF to similar termination provision ).

10 only $8 million in unobligated funds, just $1. 7 million of which were allocated from its Fiscal

Year 2025 appropriation. See Sixth Cunningham Deel. ,r 3-4, 7. OTF represents that it is prepared

to obligate sixty-one new contracts in furtherance of its mission totaling $15 million in

programmatic funds. Id. ,r 9. These projects would support the use ofVPNs

to overcome authoritarian censorship in China,Iran,Cuba, and other countries; develop new censorship circumvention tools and techniques to counter rapidly evolving censorship practices; combat AI-enhanced censorship ef orts· support the development and implementation of decentralized messaging platforms· and develop and scale network shutdown mitigation solutions to enable users to communication and access information during government-imposed internet blackouts.

Fifth Cunningham Deel. ,r 21. Similarly, OTF is unable to maintain its Rapid Response Fund, "the

only U.S.-government funded mechanism to provide rapid assistance to individuals and

organizations facing authoritarian state-based digital attacks and emergencies." Id. ,r 22. "OTF is

currently unable to support these.emergency requests while its FY 2025 funds are withheld." Id.

As OTF explains, and this Court agrees,9 it "faces an existential funding crisis due to USAGM' s

wrongful withholding of ... appropriated funds," and so cannot obligate its cash on hand "due to

the uncertainty of funding disbursements from USAGM to OTF." Sixth Cunningham Dec. ,r 8.

The inability to pursue its long-term programmatic goals while preserving its short-term

operational capacity means OTF cannot serve its statutory function of "maintain[ing] the

technological advantage of the United States Government over authoritarian governments." 22

U.S.C. § 6208a. This harm to OTF and its mission is permanent and ongoing - and leaves no

room for "do over" or "redress." Newby, 838 F.3d at 9 (quoting League of Women Voters ofNC.

v. North Carolina, 769 F.3d 224,247 (4th Cir. 2014)).

9 USAGM has only approved disbursement of operating expenses through November 2025, so the Court agrees OTF

has certainty of future operational funding beyond that time. See Sixth Cunningham Deel. if 16.