Widakuswara v. Lake

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL ABRAMOWITZ, et al.,

Plaintiffs,

v. Case No. 1:25-cv-887-RCL

KARI LAKE, et al.,

Defendants.

PATSY WIDAKUSWARA, et al.,

v. Case No. 1:25-cv-1015-RCL

MEMORANDUM OPINION

Before the Court are cross-motions for partial summary judgment on the Administrative

Procedure Act claims raised by the plaintiffs in the above-captioned cases. The plaintiffs

challenge the defendants’ actions in March 2025 to dramatically downsize the United States

Agency for Global Media and its subsidiary, Voice of America, as violating Sections 706(1) and

(2) of the APA. After clearing a series of threshold hurdles, the Court ultimately concludes that

the plaintiffs prevail on all aspects of their APA claims except for certain contractors’ requests

for reinstatement. Accordingly, each parties’ motion will be GRANTED IN PART and

DENIED IN PART as set forth in an accompanying order.

1 I. BACKGROUND

a. Statutory Structure

Voice of America (“VOA”) originated as a counter-propaganda operation against the

Nazi regime during World War II. Plaintiffs’ Statement of Undisputed Material Facts, ECF No.

166-2, ¶ 1 (“SUMF”).1 Following the war, Congress codified VOA’s existence as a service “to

disseminate abroad information about the United States, its people and policies promulgated by

the Congress, the President, the Secretary of State and other responsible officials of Government

having to do with matters affecting foreign affairs.” Id. ¶¶ 2–3 (quoting U.S. Information and

Educational Exchange Act, Pub. L. No. 80-402, § 2(1), 62 Stat. 6, 6 (1948)). Since that time,

Congress has refined the legal and administrative framework governing VOA’s operations

through a series of amendments. E.g., Foreign Relations Authorization Act of 1977, Pub. L. No.

94-350, § 503, 90 Stat. 823, 831 (1976) (expressing that “the long-range interests” of the United

States “are served by communicating directly with the peoples of the world by radio”).

The International Broadcasting Act (the “Broadcasting Act”) of 1994 establishes VOA’s

current governance structure and places VOA under the oversight of the U.S. Agency for Global

Media (“USAGM”). SUMF ¶¶ 7–8. “The [Broadcasting Act] declared that ‘it is the policy of

the United States to promote the right of freedom of opinion and expression, including the

freedom “to seek, receive, and impart information and ideas through any media and regardless of

frontiers,” in accordance with Article 19 of the Universal Declaration of Human Rights.’”

Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333, 345 (D.D.C. 2020) (quoting Pub.

L. No. 103-2436, § 302(1), 180 Stat. 433 (1994)); see also 22 U.S.C. § 6201(1).

1 Unless otherwise specified, ECF citations refer to the docket in Widakuswara v. Lake, et al., No. 25-cv-1015-RCL. Facts cited herein are found not to be in material dispute unless specified.

2 The Broadcasting Act requires “United States international broadcasting” to be

“conducted in accordance with the standards and principles” established by Congress in 22

U.S.C. § 6202(a)–(b) and tasks the Chief Executive Officer of USAGM with “ensur[ing]”

adherence to those standards. 22 U.S.C. § 6204(3). As to standards, Congress requires, for

example, that broadcast activities “shall be consistent with the broad foreign policy objectives of

the United States,” id. § 6202(a)(1), “not duplicate the activities of private United States

broadcasters” or “government supported broadcasting entities of other democratic nations,” id.

§ 6202(a)(3)–(4), “be conducted in accordance with the highest professional standards of

broadcast journalism,” id. § 6202(a)(5), “be designed so as to effectively reach a significant

audience,” id. § 6202(a)(7), and “promote respect for human rights, including freedom of

religion,” id. § 6202(a)(8). As to principles, Congress prescribes that USAGM’s “broadcasting

shall include news which is consistently reliable and authoritative, accurate, objective, and

comprehensive,” id. § 6202(b)(1), and “information about developments in each significant

region of the world,” id. § 6202(b)(6), among others.

In 2021, with bipartisan support, Congress created the International Broadcasting

Advisory Board, which advises the CEO of USAGM and must approve, by a majority vote, the

appointment and removal of the heads of USAGM’s broadcasting entities, including the director

of Voice of America. SUMF ¶ 10; see also 22 U.S.C. § 6205(e)(1); Abramowitz v. Lake, 803

F. Supp. 3d 1, 6 (D.D.C. 2025), appeal filed Sept. 3, 2025.

b. Congressional funding for USAGM

USAGM and VOA receive taxpayer funding through Congressional appropriations. In

2024, Congress appropriated $857,214,000 to USAGM to “carry out international

communication activities.” SUMF ¶ 12 (quoting Further Consolidated Appropriations Act of

3 2024, Pub. L. No. 118-47, div. F, 138 Stat. 460, 735 (2024)). Of those funds, Congress

earmarked $260,032,000 for Voice of America. Id. (“[F]unds appropriated under this heading

shall be allocated in accordance with the table included under this heading in the explanatory

statement described in section 4.”); 118th Congress, Further Consolidated Appropriations Act,

2024, Legislative Text and Explanatory Statement at 1167 (Comm. Print 2024) (detailing VOA

and grantee funding).

Prior to receiving the 2024 appropriation, USAGM had submitted a budget justification,

which described the reasons for USAGM’s funding requests and how such funding would be

spent, including projected broadcasting hours across an array of countries and languages. SUMF

¶ 14 (citing Abramowitz ECF No. 49-3 (Congressional Budget Justification for FY2025)). In the

2024 appropriation, Congress required that “significant modifications to USAGM broadcast

hours previously justified to Congress,” to include “shortwave, medium wave, satellite, Internet,

and television” broadcasting, “for all USAGM language services shall be subject to regular

notification procedures of the Committees on Appropriations.” SUMF ¶ 13 (quoting 138 Stat.

460, 735–36).

Congress funded USAGM and VOA at the same level, and subject to the same

conditions, through three successive appropriation cycles in 2024 and 2025. SUMF ¶¶ 15–17;

Continuing Appropriations and Extensions Act, 2025, Pub. L. No. 118-83, 138 Stat. 1524 (2024)

(extending funding for fiscal year 2025 “at a rate for operations as provided in the applicable

appropriations Acts for fiscal year 2024 and under the authority and conditions provided in such

acts”); American Relief Act of 2025, Pub L. No. 118-158, 138 Stat. 1722, 1723 (2025) (same);

H.R. 1968, 119th Cong. § 1101(a) (2025) (same).

4 c. USAGM’s Broadcasting Operations

On March 14, 2025, Voice of America had been providing multimedia broadcasting in

forty-nine languages to approximately 362 million people around the world each week. SUMF

¶ 20 (citing Decl. of Michael Abramowitz, Abramowitz ECF No. 4-5 ¶ 1). USAGM and VOA

collectively employed 1,147 full-time employees and had entered into service contracts with 598

contractors, whom the parties refer to as “personal service contractors” or “PSCs.” Id. ¶ 21.

VOA personnel accounted for more than 1,300 of the total number of employees and contractors

at USAGM. Id. The contractors included VOA journalists based in foreign countries whose

reporting was focused on audiences abroad. Id. ¶ 22. Thirty-two radio broadcast technicians

also facilitated programming operations. Id. ¶ 23.

On March 14, 2025, the President issued an Executive Order titled “Continuing the

Reduction of the Federal Bureaucracy,” which directed seven federal agencies, including

USAGM, to “reduce the performance of their statutory functions and associated personnel to the

minimum presence and function required by law.” Exec. Order No. 14,238, § 2(a)(ii), 90 Fed.

Reg. 13043 (Mar. 14, 2025) (the “Executive Order” or “EO”). The President signed the 2025

appropriations law later that day, including for continued funding for USAGM and VOA as

described above. SUMF ¶ 25.

The Executive Order led the defendants to bring USAGM’s operations to a standstill.

Defendant Kari Lake learned of the Executive Order on the evening of March 14, and USAGM’s

leadership immediately began implementing the EO on March 15. Id. ¶ 26 (citing Lake Dep. at

97:13–14, 106:4–15).2 Although Lake’s role within USAGM at the time was “Senior Adviser to

2 The defendants object to considering the depositions of Kari Lake, Frank Wuco, and Leili Soltani taken during show-cause proceedings as part of the summary judgment record. The objection lacks merit. First, the defendants have long withheld the administrative record in this case despite an obligation to produce it contemporaneously with

5 the CEO,” she testified in this case that she had been delegated nearly all of the CEO’s statutory

authority. See id. ¶ 28 (quoting Lake Dep. 55:3–13 (testifying that Lake was exercising “95

percent of” the “authorit[ies] of the CEO,” including everything apart from “[w]riting reports

that were due”)); see also ECF Nos. 214-2, 214-3 (delegating CEO authorities to Lake).

According to Lake, the leadership team made a decision on March 15 to reduce

USAGM’s operations to the “statutory minimum” based solely on the direction contained in the

Executive Order. Id. ¶ 26; see also id. ¶¶ 27–28. But before even making a determination as to

what the “statutory minimum” was, the defendants immediately began winding the agency down

to only skeletal operations. Effective immediately, the defendants placed nearly all USAGM

staff on paid administrative leave pending further study of what the “statutory minimum” was.

Id. ¶ 36–37. Consequently, 1,042 out of USAGM’s 1,147 full-time employees were placed on

administrative leave. Id. ¶ 37. On the same date, Lake “decided to terminate all the personal

service contractors” under the ambit of VOA. Id. ¶ 38 (quoting Lake Dep. at 102:14–21). The

next day, USAGM notified 598 contractors that their agreements with the government would be

terminated effective March 31, 2025. Id. The defendants also “directed that VOA cease all

programming” and “ordered . . . the VOA news services” to “shut down their transmitters.” Id.

¶ 40 (quoting Lake Dep. 109:7–110:1). Within days, USAGM also notified union officials that

the agency intended to terminate all radio broadcast technicians and 594 union employees,

the filing of their motion to dismiss. See LCvR 7(n)(1). Second, the depositions at issue were authorized precisely because of the defendants ongoing refusal to produce basic information about USAGM and VOA’s operations and future plans. Indeed, not until this Court threatened the defendants with the specter of contempt proceedings did they produce the Statutory Minimum Memorandum itself, the agency action implementing the Executive Order. The defendants’ persistent omission and withholding of key information in this case has been a Hallmark production in bad faith and is more than sufficient to justify consideration of the depositions. See Safari Club Int’l v. Jewell, 111 F. Supp. 3d 1, 5 (D.D.C. 2015) (explaining that courts may consider extra-record evidence in administrative summary judgment proceedings when, inter alia, “the agency acted in bad faith”).

6 “including broadcast journalists, technicians, budget analysts, electronics engineers, and others.”

Id. ¶ 41.

The only documentation reflecting the foregoing agency action is a memorandum dated

March 18, 2025 (the “Statutory Minimum Memorandum” or “Memorandum”). See id. ¶ 30; see

also ECF No. 166-4. The three-page Memorandum identified sixty-eight employee or contractor

positions to retain, excluding members of the Senior Executive Service, and provided that “[a]ll

other positions would be terminated.” Id. It was signed by acting CEO Victor Morales, CFO

Roman Napoli, HR Director Crystal Thomas, acting CMO Christopher Luer, legal officer Royce

Min, and TSI director Terry Balazs, but not by Lake herself. See ECF No. 166-4 at 5. Lake

testified that the Memorandum was a “foundational document” that leadership intended the

agency to “rely on” in implementing the Executive Order. SUMF ¶ 31 (quoting Lake Dep. at

168:13–14). Although the Memorandum described certain contents as “recommendations,” see

ECF No. 166-4 at 3, according to Lake, the Memorandum provided “guidance” on “what the

statutory minimum was” so that the defendants “could effectuate the President’s executive

order.” SUMF ¶ 31 (quoting Lake Dep. 156:13–19). The Memorandum “list[s] the number of

employees that will fill various positions after the downsizing is accomplished,” and the

defendants do not dispute that the document “contains no findings, analysis, or consideration of

any relevant factors” apart from an assertion, as inscrutable as it is conclusory, that “[t]he Voice

of America functional requirement and scope is duplicative with the activities of [United States]

private broadcasters.” Id. ¶¶ 32–33. Lake testified that the Memorandum reflected USAGM

leadership’s “decision that this was [the] statutory minimum.” Id. ¶ 44 (quoting Lake Dep. at

153:14–18). It was meant to be used to “guide[] the agency’s decisions” in implementing the

Executive Order. Id. As a result, for just over a year since March 15, 2025, “hundreds of VOA

7 and USAGM employees” have been “paid their full government salary but prohibited from doing

any work.” Id. ¶ 39.

d. Procedural History

Proceedings in these cases began shortly after the foregoing events. On March 21, 2025,

the Widakuswara plaintiffs sued defendants Kari Lake, the U.S. Agency for Global Media, and

Victor Morales, in his official capacity as the acting CEO of USAGM, in the U.S. District Court

for the Southern District of New York. See Widakuswara Compl., ECF No. 1. The Southern

District granted a temporary restraining order (“TRO”) on March 28, 2025, concluding that the

defendants likely violated several provisions of the Administrative Procedure Act (“APA”).

Widakuswara ECF No. 54 at 21–22.

Meanwhile, on March 26, Voice of America director Michael Abramowitz, as well as

three other plaintiffs,3 sued Lake, USAGM, and Morales alleging similar legal violations based

on the same facts. See Abramowitz Compl., ECF No. 1. On April 4, while the Widakuswara

TRO was in effect but before the Southern District ruled on the pending motion for preliminary

injunction, Widakuswara was transferred to this Court as related to Abramowitz.

On April 22, 2025, this Court entered a preliminary injunction granting relief in both

cases, finding that the defendants had likely engaged in arbitrary and capricious action and

unlawfully withheld required agency action under § 706(1) and (2) of the APA. See

Widakuswara v. Lake, 779 F. Supp. 3d 10, 33 (D.D.C. 2025). As relevant here, the Court

ordered the defendants to “take all necessary steps to return USAGM employees and contractors

to their status prior to” the Executive Order “including by restoring all USAGM employees and

personal service contractors, who were placed on leave or terminated, to their status prior to

3 The first John Doe plaintiff in Abramowitz was terminated on March 28, 2025.

8 March 14, 2025” (“Prong One”) and to “restore VOA programming such that USAGM fulfills its

statutory mandate [to] ‘serve as a consistently reliable and authoritative source of news’”

(“Prong Three”).4 Id. at 39–40 (quoting 22 U.S.C. § 6202(c)). The defendants appealed Prong

One and obtained a stay, Widakuswara v. Lake, No. 25-5144, 2025 WL 1288817, at *1 (D.C.

Cir. May 3, 2025), which the en banc D.C. Circuit left in place, see Widakuswara v. Lake, No.

25-5144, 2025 WL 1521355, at *2 (D.C. Cir. May 28, 2025) (en banc). However, a majority of

the en banc court wrote separately to clarify that the denial of en banc review “should not be

understood to accept . . . the government’s assertion” that “the district court lacks any authority

. . . ‘to order personnel decisions’” in the interim. Widakuswara v. Lake, No. 25-5144, 2025 WL

2787974, at *1 (D.C. Cir. May 28, 2025) (en banc) (Statement of Srinivasan, C.J.).

Prong Three of the preliminary injunction remained intact, but the defendants resumed

only limited operations at Voice of America. The plaintiffs therefore moved for an order to

show cause regarding the defendants’ compliance with Prong Three. After the defendants failed

to provide satisfactory responses, the Court ordered the depositions of three USAGM and VOA

employees: Kari Lake, Frank Wuco, and VOA Persia Service Division Director and acting Head

of Programming Leili Soltani. See Order on Mot. to Show Cause, Widakuswara ECF No. 72.

The Abramowitz and Widakuswara plaintiffs have now jointly moved for partial

summary judgment on their respective APA claims. The defendants cross-moved. The motions

are now fully briefed and ripe.5

4 Under Prong Two of the preliminary injunction, the Court also ordered restoration of grant funding to several grantee networks in separate related cases. Widakuswara, 779 F. Supp. 3d at 40. Those grantees are not parties to the instant dispute. 5 While these motions remained pending, on March 7, 2026, the Court granted summary judgment in favor of the Widakuswara plaintiffs on separate claims under the Appointments Clause and Federal Vacancies Reform Act, holding that Defendant Lake had unlawfully exercised the authorities of the CEO of USAGM. See ECF Nos. 218–

9 II. LEGAL STANDARDS

a. Motion for Summary Judgment

A movant is entitled to summary judgment if he or she “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A fact is “material” only if “it might affect the outcome of a suit under

governing law.” Mayorga v. Merdon, 928 F.3d 84, 89 (D.C. Cir. 2019) (quoting Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)). A dispute is “genuine” only if “the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Id. (citation

omitted). Rule 56(c) “explicitly require[s] a party opposing summary judgment to support an

assertion that a fact is genuinely disputed with materials in the record.” Oveido v. Wash. Metro.

Area Transit Auth., 948 F.3d 386, 396 (D.C. Cir. 2020). “When parties file cross-motions for

summary judgment, each motion is considered separately, in the light most favorable to the non-

moving party, and the court must determine, for each motion, whether the Rule 56 standard has

been met.” Am. Ctr. for Int’l Lab. Solidarity v. Chavez-DeRemer, 789 F. Supp. 3d 66, 80

(D.D.C. 2025).

III. ANALYSIS

a. The plaintiffs have adequately shown Article III standing.

The defendants dispute the plaintiffs’ Article III standing to pursue their claims, an

argument the plaintiffs unsurprisingly resist. For substantially the same reasons addressed in the

Court’s preliminary injunction ruling, the Court finds the associational and organizational

plaintiffs have standing.

19. However, because the Statutory Minimum Memorandum was not issued under Lake’s purported authority, the motions now before the Court continue to present a live dispute.

10 Because “standing is not dispensed in gross,” Lewis v. Casey, 518 U.S. 343, 358 n.6

(1996), the Court must assess the plaintiffs’ standing with respect to the particular claim at issue

and “each form of relief” sought, TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021).

Article III standing requires the plaintiffs to demonstrate that, for each claim, they have (1)

“suffered an ‘injury in fact,’” (2) that is “fairly . . . trace[able] to the challenged action of the

defendant,” and (3) that is “likely” to be “redressed by a favorable decision.” Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560–61 (1992) (citations omitted). At summary judgment, proof of

standing must consist of “affidavits or other evidence to demonstrate the specific facts necessary

to support standing.” Ctr. for Biological Diversity v. Regan, 597 F. Supp. 3d 173, 188 (D.D.C.

2022). Membership-based organizations may demonstrate standing through either of two

avenues: they may invoke “associational standing” to sue on behalf of their members, Hunt v.

Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977), or “organizational standing” to

sue on their own behalf, People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797

F.3d 1087, 1093 (D.C. Cir. 2015).

As the Court has previously addressed, the union plaintiffs in Widakuswara — the

American Federation of Government Employees (“AFGE”) and the American Federation of

State, County, and Municipal Employees (“AFSCME”) — may assert associational standing.

See Widakuswara, 79 F. Supp. 3d at 26–27. To show associational standing, the plaintiffs must

demonstrate that “(1) at least one 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’

placement of union members on administrative leave and oft-repeated intention to remove

11 approximately 600 of the unions’ members causes injury to AFGE and AFSCME’s members

within the meaning of Article III. Widakuswara, 779 F. Supp. 3d at 26–27. As to the second and

third prongs of the associational standing test, it remains germane to the unions’ purpose to

defend “the existence of the agency where their members work, or that funds their members’

work,” and “the relief that Plaintiffs seek pertains to Defendants’ wholesale dissolution of

USAGM and does not depend on the individual circumstances of any union member.” Id. at 27.

The defendants’ actions also inflict Article III injuries on Reporters Sans Frontières

(“RSF”) and its correspondents as consumers of VOA broadcasting. See Pl.’s Opp. to Mot. to

Dismiss at 22, ECF No. 131. The Supreme Court has acknowledged a “right to ‘receive

information and ideas,’” and has acknowledged a cognizable injury to that right “where the

listener has a concrete, specific connection to [a] speaker” whose message is curtailed by

government action. Murthy v. Missouri, 603 U.S. 43, 75 (2024) (quoting Kleindienst v. Mandel,

408 U.S. 753, 762 (1972)). RSF’s correspondents rely on VOA as a “critical flow of

information” in locations around the world “where media is tightly controlled,” and where

VOA’s broadcasts in local languages therefore “cannot be replicated by domestic outlets.” Decl.

of Thibaut Bruttin ¶ 9, Widakuswara ECF No. 16-15 (“Bruttin Decl.”). Indeed, RSF has detailed

at length how correspondents reporting on countries including the Democratic Republic of

Congo, Ethiopia, Kenya, Tibet and Vietnam suffer due to the sudden absence of VOA

broadcasting in those countries. See also id. ¶¶ 10–12, 16–17. For example, an RSF

correspondent in Vietnam relies on regular VOA broadcasts for information about the

government that is not otherwise available, and without which the correspondent would have to

cultivate their own sources at potential risk to their safety. Id. ¶ 10 (explaining that at least one

VOA journalist has been jailed in Vietnam for reporting on the government). The Court finds

12 that these plaintiffs’ have a “concrete” and “specific connection” to USAGM’s broadcasting.

Murthy, 603 U.S. at 75. These injuries are likely to persist so long as VOA’s broadcasting

remains broadly inoperative, as the Statutory Minimum Memorandum would require. See Food

& Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 381 (2024) (requiring plaintiffs

seeking injunctive relief to show “sufficient likelihood of future injury”). Taken together, these

facts support the conclusion that severing RSF members’ access to VOA broadcasting causes

Article III injuries, and thus, RSF has standing. See Carpenters Indus. Council v. Zinke, 854

F.3d 1, 9 (D.C. Cir. 2017) (“[When] constitutional standing ‘can be shown for at least one

plaintiff,’ [the Court] need not consider the standing of the other plaintiffs to raise that claim.”

(quoting Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996))).6

b. The plaintiffs’ APA claims are ripe.

Next, the defendants contend that the plaintiffs’ APA claims are not ripe. ECF No. 188

at 30. The ripeness doctrine is designed to “prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements over administrative policies,

and also to protect the agencies from judicial interference until an administrative decision has

been formalized and its effects felt in a concrete way by the challenging parties.” Nat’l Park

Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08 (2003) (quoting Abbott Lab’ys v.

Gardner, 387 U.S. 136, 148–49 (1967)). Constitutional ripeness, however, is “subsumed” by

standing’s injury-in-fact requirement. See Am. Petroleum Inst. v EPA, 683 F.3d 382, 386 (D.C.

Cir. 2012). Thus, the plaintiffs’ satisfaction of the Article III injury-in-fact requirement, as

described supra, also satisfies the constitutional ripeness requirement.

6 Although the defendants do not challenge Abramowitz’s standing to assert the related but independent APA claims raised in his Complaint, see Compl., Abramowitz ECF No. 1, the Court is satisfied that his placement on administrative leave gives rise to Article III standing to raise his APA challenge.

13 To the extent the defendants’ Cross-Motion and Opposition to Summary Judgment

incorporates the prudential ripeness arguments briefly raised in their motion to dismiss, see ECF

No. 188 at 30; ECF No. 128 at 37, their challenge mischaracterizes the plaintiffs’ APA claims.

To the extent it retains vitality,7 the prudential ripeness inquiry asks courts to examine “both the

fitness of the issue for judicial decision and the hardship to the parties of withholding court

consideration.” AT&T Corp. v. F.C.C., 349 F.3d 692, 699 (D.C. Cir. 2003) (quoting Abbott

Lab’ys, 387 U.S. at 149). The defendants contend that this case is premature because USAGM

“is not closed and has employees to provide mission support.” ECF No. 128 at 37. But the

plaintiffs do not premise this litigation on the literal nonexistence of USAGM. Nor does the

Court take the defendants as suggesting that the Statutory Minimum Memorandum called for the

closure of the agency. Rather, they dispute whether the defendants’ downsizing of the agency

accounted for relevant statutory factors, weighed reliance interests, and resulted in the unlawful

withholding of required action. This argument provides no basis to conclude that the agency’s

decision is prudentially unripe.

Further, Lake’s testimony makes clear that the agency had “crystalliz[ed] its policy” by

March 18. Assante v. Azar, 436 F. Supp. 3d 215, 224 (D.D.C. 2020) (quoting Nevada v. U.S.

Dep’t of Energy, 457 F.3d 78, 84 (D.C. Cir. 2006)); see also AT&T Corp., 349 F.3d at 699

(“[Claims rais[ing] purely legal questions . . . [are] presumptively suitable for judicial review.”).

For example, Lake testified that the Memorandum reflected USAGM leadership’s “decision that

this was [the] statutory minimum.” SUMF ¶ 44 (quoting Lake Dep. at 153:14–18). Lake also

7 The Court also harbors doubts about the vitality of the prudential ripeness doctrine, which has been questioned by the Supreme Court by both word and deed in recent years. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014) (doubting whether a court could “deem . . . claims nonjusticiable ‘on grounds that are “prudential” rather than constitutional’” when a “‘court’s obligation to hear and decide’ cases within its jurisdiction” is otherwise “virtually unflagging” (quoting Lexmark Int’l v. Static Control Components, Inc., 572 U.S. 118, 126 (2014))).

14 testified that the agency has continued to rely on the Statutory Minimum Memorandum for

“guidance” as to its ongoing operations,8 see id. ¶ 31 (quoting Lake Dep. 156:13–19), confirming

that the policy is already in place and that the Court need not wait for the defendants’ decisions

to “tak[e] on a more definite form,” AT&T Corp., 349 F.3d at 699–700. In light of these

undisputed facts, there is no reason to think the issues on which the plaintiffs seek summary

judgment would benefit from further factual development or that resolving those issues now

would work a hardship on the defendants. See id. at 700 (“[W]here there are no institutional

interests favoring postponement of review, [the plaintiff] need not satisfy the hardship prong.”).

The claims before the Court do not raise theoretical disagreement over agency policies yet to be

implemented or subject to future contingencies. Cf. Trump v. New York, 592 U.S. 125, 134

(2020). Rather, the plaintiffs challenge identifiable agency action whose “effects” are manifestly

being “felt in a concrete way” by USAGM personnel and consumers. Abbott Lab’ys, 387 U.S. at

148.

c. The Civil Service Reform Act does not extinguish jurisdiction over the plaintiffs’ claims.

The defendants next contend that only the Merit Systems Protection Board (“MSPB”),

and not a federal district court, may exercise jurisdiction over the plaintiffs’ APA claims

because, in the defendants’ view, the APA claims are quintessentially employment disputes

subject to the Civil Service Reform Act (“CSRA”). The plaintiffs maintain that their APA

challenge is trained on the Statutory Minimum Memorandum’s programmatic decision to draw

down agency operations, not individual employment decisions, and that in any event, the claims

of plaintiff RSF should be not channeled to the MSPB because their claims do not stem from

8 As addressed further in the merits discussion that follows, to the extent the defendants have deviated from the Statutory Minimum Memorandum, they have done so only in response to the unstayed portions of the preliminary injunction entered in this case.

15 their own employment losses. See Reply at 10; Widakuswara, 779 F. Supp. 3d at 30 (observing

that RSF, RSF-USA, and TNG-CWA “are not implicated” by the jurisdictional bar because their

claims are not premised on employment relationships with the government).

Subject to constitutional limitations, “Congress decides what cases the federal courts

have jurisdiction to consider.” Bowles v. Russell, 551 U.S. 205, 212 (2007). Thus, although

district courts ordinarily enjoy jurisdiction over claims arising under federal law, see 28 U.S.C.

§ 1331, Congress may “preclude district court jurisdiction by establishing an alternative statutory

scheme for administrative and judicial review,” Am. Fed. of Gov’t Emps., AFL-CIO v. Trump,

929 F.3d 748, 754 (D.C. Cir. 2019). The defendants’ argument invokes that power. When

determining whether Congress has established an alternative statutory scheme, courts apply the

two-step framework set forth in Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994).

Applying the Thunder Basin inquiry, a court may find “Congress intended that a litigant proceed

exclusively through a statutory scheme,” thereby barring original district court jurisdiction,

“when (i) such intent is ‘fairly discernible in the statutory scheme,’ and (ii) the litigant’s claims

are ‘of the type Congress intended to be reviewed within [the] statutory structure.’” Jarkesy v.

SEC, 803 F.3d 9, 15 (D.C. Cir. 2015) (quoting Thunder Basin, 510 U.S. at 207).

In the context of government employment, the CSRA, which includes the Federal Service

Labor-Management Relations Statute, “regulates virtually every aspect of federal employment.”

Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 448 (D.C. Cir. 2009). But although

Congress “carefully constructed a system for review and resolution of federal employment

disputes,” Filebark v. Dep’t of Transp., 555 F.3d 1009, 1010 (D.C. Cir. 2009) (emphasis added),

the defendants overstep the bounds of Congress’s discernible intent by arguing that the non-

employee plaintiffs’ claims must be channeled under the CSRA. RSF, as explained supra, and

16 TNG-CWA raise claims based on their status as listeners of USAGM-sponsored broadcasts, and

their claims against the defendants are wholly independent of the merits of any individual or

collective employment actions taken by the defendants. See Part III.a supra (discussing RSF).

The defendants’ sole response is that the relief RSF and TNG-CWA “seek is undeniably

based on injuries that would result from Defendants’ employment decisions,” citing Maryland v.

U.S. Department of Agriculture, 151 F.4th 197, 206 (4th Cir. 2025). See ECF No. 188 at 20.

But Maryland involved a distinct arrangement of facts; there, several states sued the federal

government alleging violations of the notice requirements for a reduction-in-force of federal

employees. See 151 F.4th at 206. The Fourth Circuit held that those states lacked standing (not

that the states’ claims were subject to Thunder Basin channeling) because the states’ alleged

informational injuries were not cognizable. Id. at 209. “The real and direct harms were suffered

not by the States, but by the terminated . . . employees,” none of whom were party to the lawsuit.

Id. at 210. The Court also reasoned that even assuming the states could show injury-in-fact,

those injuries were unlikely to be redressable, in part because the CSRA would preclude

affording the employees, and therefore the states, relief. Id. at 215. RSF’s theory of standing,

premised on harm to their rights as listeners and traceable to the Statutory Minimum

Memorandum and its effects, does not suffer from these defects. Nor does the resolution of their

claims turn on a merits-based determination of the employment actions that give rise to the

employees’ injuries. The record thus continues to compel the same conclusion that the Court

reached at the preliminary injunction stage, which is that any jurisdictional bar would not apply

17 to the claims brought by non-employee plaintiffs like RSF.9 Widakuswara, 779 F. Supp. 3d at

30.

d. The Tucker Act precludes the Court from reinstating the personal service contractors’ agreements.

The defendants next contend that the Tucker Act extinguishes the Court’s jurisdiction to

hear the APA claims of contractor Plaintiffs Anthony LaBruto, Abramowitz John Doe 2, and

Widakuswara John Does 3 and 4 (together, the “Contractor Plaintiffs”). Opp’n at 25. On this

point, the Court agrees with the defendants. Following the approach and reasoning in American

Association of Physics Teachers v. National Science Foundation, the Court concludes that it

lacks jurisdiction over the named Contractor Plaintiffs’ APA claims insofar as they seek an order

reversing the cancellation of individual personal service contracts because those claims “are ‘at

[their] essence’ contract actions ‘over which the Court of [Federal] Claims has exclusive

jurisdiction.’” 804 F. Supp. 3d 45, 60 (D.C.C. 2025) (alterations in original) (quoting

Megapulse, Inc. v. Lewis, 672 F.2d 959, 967–68 (D.C. Cir. 1982)).

First, these plaintiffs were in a contractual relationship with the government. See SUMF

¶ 21; see also 48 C.F.R. § 37.104 (Federal Acquisition Regulation defining “personal services

contract” as being “characterized by the employer-employee relationship it creates between the

Government and the contractor’s personnel”). Plaintiffs do not dispute this fact, nor do they

argue that their particular agreements with the government would fail to qualify as contracts for

9 It bears mentioning that no D.C. Circuit ruling has reasoned to the contrary. The stay panel decision disagreed with this Court’s conclusion that the employees did not raise employment disputes (and therefore were not subject to channeling), but it did not address the Court’s alternative holding that the RSF TNG-CWA’s claims were not employment claims. See Widakuswara v. Lake, 2025 WL 1288817, at *2 (D.C. Cir. May 3, 2025) (per curiam), vacated in part, 2025 WL 1521355 (May 28, 2025). And the panel decision in a separate case set aside the jurisdictional bar based on similar reasoning. See Nat’l Treasury Emps. Union v. Vought, 149 F.4th 762, 776 (D.C. Cir. 2025), reh’g en banc granted, opinion vacated, No. 25-5091, 2025 WL 3659406 (D.C. Cir. Dec. 17, 2025).

18 purposes of the Tucker Act. See Pa. Dep’t of Pub. Welfare v. United States, 48 Fed. Cl. 785, 790

(2001) (quoting Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997)).

Second, the APA claims raised by the Contractor Plaintiffs are contractual in essence.

Under binding precedent, “[c]laims based on ‘truly independent legal grounds,’ such as statutes

or the Constitution, can be heard in district court, while those that ‘sound[] genuinely in contract’

belong in the Court of Federal Claims.” Am. Ass’n of Physics Tchrs., 804 F. Supp. 3d at 62

(alterations in original) (quoting Megapulse, 672 F.2d at 969–70). Megapulse directs courts to

examine the “essence” of APA claims implicating contractual arrangements with the government

to determine whether the claim “presents a disguised contract action.” 672 F.2d at 967–68. To

do so, the Court engages in a two-part inquiry, analyzing “the source of the rights” from which

the claim arises and “the type of relief sought (or appropriate).” Id. at 968.

The first prong points to the contracts as the source of the rights at issue. The Contractor

Plaintiffs’ right to relief is premised on their contractual relationship with USAGM. “[I]n no

sense did it exist independently of th[ose] contract[s].” Spectrum Leasing Corp. v. United States,

764 F.2d 891, 894 (D.C. Cir. 1985). The plaintiffs argue that the defendants were generally

“required to comply with the APA before taking actions that resulted in the cessation of relied-

upon government services” and ask the Court to “set aside” the “[c]ancell[ation] [of]contracts

with [the] approximately 589 [contractors]” that were engaged by USAGM prior to May 30.

Pl.’s Mot. at 31–32. But they do not argue, for example, that the defendants were under an

independent and specific statutory obligation to enter into contracts with them. Cf. Open Tech.

Fund v. Lake, No. 1:25-cv-840, 2025 WL 3289166, at *6 (D.D.C. Nov. 25, 2025) (holding that

because appropriations statutes “mandate[d] that USAGM allocate funding to OTF” through

grant agreements, APA claims challenging withholding of grant funds were grounded in

19 appropriations law, not contracts). The Contractor Plaintiffs “thus ‘complain[] of wrongful

termination’ of their government contract[s],” and their claims are therefore “founded upon the

contract[s].” Am. Ass’n of Physics Tchrs., 804 F. Supp. 3d at 62 (quoting Ingersoll-Rand Co. v.

United States, 780 F.2d 74, 78 (D.C. Cir. 1985)).

Prong two also points toward Court of Federal Claims jurisdiction. An order setting

aside not just the Statutory Minimum Memorandum but also the service-contract cancellations

would implicitly require the defendants to continue to perform under — rather than breach — the

contracts. In these circumstances, an injunction of that nature would amount to an order for

specific performance. And case after case in the D.C. Circuit has made clear that where the

relief sought “would mean that the government must perform” according to the terms of a

written agreement, the case must “be resolved by” the Court of Federal Claims. See Ingersoll-

Rand, 780 F.2d at 79–80 (holding that “an order directing the Air Force to reinstitute” a contract

“amount[s] to a request for specific performance”); Spectrum Leasing, 764 F.2d at 894 (similar);

Am. Ass’n of Physics Tchrs., 804 F. Supp. 3d at 62–63.

To be sure, the plaintiffs challenge not only the termination of their individual contracts

but also the upstream agency action — including the Statutory Minimum Memorandum — that

served as “guidance” for those determinations. SUMF ¶ 31 (explaining that Lake characterized

the Statutory Minimum Memorandum as “guidance” for the actions that followed, including the

termination of contractors (quoting Lake Dep. 156:13–19)). The foregoing analysis does not

affect the Court’s jurisdiction over the Contractor Plaintiffs’, or any other plaintiff’s, challenge to

the Memorandum. That challenge is “legally distinct” from the claim seeking performance of

agreements affected by the guidance. See Nat’l Inst. of Health v. Am. Pub. Health Ass’n, 145 S.

Ct. 2658, 2661 (2025) (Mem.) (Barrett, J., concurring). The mere fact that agency guidance

20 affects internal policies related to contractual performance “does not transform a challenge to

that guidance into a claim ‘founded . . . upon’ [a] contract that only the [Court of Federal Claims]

can hear.” Id. (quoting 28 U.S.C. § 1491(a)(1)). Nevertheless, just “because [this] Court is the

right forum for [a] challenge to the guidance” does not mean “it is necessarily also the right

forum for the challenge to the [contract] terminations.” Id. The defendants will therefore

receive a limited grant of partial summary judgment for lack of jurisdiction under the Tucker Act

on the Contractor Plaintiffs’ APA claims insofar as they seek reinstatement or specific

performance of their individual agreements.

e. Merits

1. The plaintiffs challenge a discrete and final agency action.

The threshold question on the merits of this case is whether the plaintiffs have challenged

a discrete, final agency action for which judicial review is available under § 706(2) of the APA.

The Court begins with the discreteness requirement. A “person claiming a right to sue” under

§ 706(2) “must identify some ‘agency action’ that affects him.” Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871, 882 (1990) (quoting 5 U.S.C. § 702). The APA defines “agency action” to mean

“the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial

thereof, or failure to act.” 5 U.S.C. § 551(13). The Supreme Court has inferred from that

definition that a cognizable agency action must be “circumscribed” and “discrete.” Norton v. S.

Utah Wilderness All., 542 U.S. 55, 62 (2004).

The Statutory Minimum Memorandum meets the APA’s qualifications for a rule or the

equivalent thereof. To qualify as a “rule” or the “equivalent thereof” (is the latter being the

category to which the plaintiffs assign the Statutory Minimum Memorandum), the action must be

an “agency statement . . . designed to implement, interpret, or prescribe law or policy.” 5 U.S.C.

21 § 551(4). Here the defendants spoke through an official written document that reflected the

agency’s decision to reduce its future operations. And although, as discussed further below, the

Memorandum contains no analysis or reasoning, it nevertheless reflects the agency’s official

position regarding its existing legal obligations. Cf. Nat. Res. Def. Council v. Wheeler, 955 F.3d

68, 83 (D.C. Cir. 2020) (describing an interpretive rule as one that purports to “derive[]” its

conclusions from “statute[s]” or other “existing . . . document[s]” that the agency interprets as

“compel[ling] or logically justif[ying] the proposition”). As Lake testified, and the defendants

do not seriously dispute, the Memorandum reflected USAGM leadership’s “decision” about what

constituted the “statutory minimum” level of agency operations. SUMF ¶ 44 (quoting Lake Dep.

at 153:14–18). Indeed, efforts to align USAGM’s operations with the Memorandum had already

been set into motion in the seventy-two hours before it was signed on March 18, including by

placing employees on leave effective March 15, terminating contractors, and bringing

broadcasting operations to a halt. Id. ¶¶ 36–38. Critically, Lake testified that the Memorandum

reflected not only a justification of the decisions made in the preceding days, but should serve as

a forward-looking guide for future agency operations. See Biden v. Nebraska, 597 U.S. 785,

809–10 (2022) (holding that memoranda that “bound DHS staff by forbidding them to continue

the [challenged] program in any way from that moment on” were “agency actions” that fit the

§ 551(4) definition of a rule (emphases added) (citation omitted)). Thus, the plaintiffs do not

request “wholesale judicial review of Global Media’s management of the agency,” as the

defendants contend, Lujan, 497 U.S. at 890 n.2, but instead challenge a particular and

identifiable action that prescribed future agency operations.

The Court next turns to whether the Statutory Minimum Memorandum and its

implementation constitute final agency action. See 5 U.S.C. § 704. “As a general matter, two

22 conditions must be satisfied for agency action to be ‘final.’” Bennett v. Spear, 520 U.S. 154, 177

(1997). “First, the action must mark the ‘consummation’ of the agency’s decisionmaking

process,” rather than “of a merely tentative or interlocutory nature.” Id. at 177–78 (quoting Chi.

& S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)). Second, “the action

must be one by which ‘rights or obligations have been determined,’ or from which ‘legal

consequences will flow.’” Id. at 178 (quoting Port of Bos. Marine Terminal Ass’n v.

Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). These well-settled principles are

meant to facilitate a “pragmatic and flexible” inquiry that evades “self-implementing, bright-line

rule[s].” Rhea Lana, Inc. v. Dep’t of Labor, 824 F.3d 1023, 1027 (D.C. Cir. 2016) (citation

omitted).

That standard is readily met here. The record confirms that the Memorandum reflected

the defendants’ “decision” about what constituted the “statutory minimum” operations under the

laws governing USAGM. SUMF ¶ 44 (quoting Lake Dep. at 153:14–18). The decision has

never been revisited, nor has Lake hinted that it might be. To the contrary, the agency has

continued to take steps to implement the Statutory Minimum Memorandum, including by

attempting to effectuate a reduction-in-force of USAGM staff in August 2025 and a deferred-

resignation program as an interim measure. See Notice of February 26, 2026, ECF No. 212

(describing proposed deferred-resignation program); see also ECF Nos. 219–20 (vacating

reduction-in-force due improper appointment of Lake as acting USAGM CEO). And concrete

consequences have flowed from the decision, including the placement of hundreds of employees

on administrative leave and the cessation of most Voice of America broadcasting.

In the alternative, each implementing action taken by defendants as part of the drawdown

of USAGM would be independently reviewable agency action under the APA. Indeed, as the

23 Court held at the preliminary injunction stage, the “blanket placement of employees on

administrative leave, termination of entire bargaining units of employees, [and] termination of

[contractors] . . . are . . . discrete, final agency actions subject to judicial review.” Widakuswara,

779 F. Supp. 3d at 33. Even under the defendants’ preferred view of the law, these actions are

undoubtedly subject to APA review. See Nat’l Treasury Emps. Union v. Vought, 149 F.4th 762,

784 (D.C. Cir. 2025 (explaining that “firing employees” and “cancelling contracts” are “discrete

actions”), reh’g en banc granted, opinion vacated, No. 25-5091, 2025 WL 3659406 (D.C. Cir.

Dec. 17, 2025).

Finally, the defendants’ limited restoration of certain employees and broadcasting

operations since March 2025 does not alter the finality of the agency action in this case.

Broadcasting operations restarted only protracted litigation to enforce the preliminary injunction

in this case. The defendants thus strain the boundaries of the post hoc ergo propter hoc fallacy

to the extent they assert that they revived such operations on their own initiative. In any event,

even if the Court were to credit the incredible, “[t]he possibility of revision is a common

characteristic of agency action, and does not make an otherwise definitive decision nonfinal.”

POET Biorefining, LLC v. Ent’l Prot. Agency, 970 F.3d 392, 404 (D.C. Cir. 2020) (quoting U.S.

Army Corps. of Eng’rs v. Hawkes Co., 578 U.S. 590, 598 (2016). As Lake’s testimony in this

case make clear, the defendants “consummated [their] decision” in the actions challenged in this

case. The Statutory Minimum Memorandum was signed by the bulk of the agency’s nominal

leadership, with Lake’s apparent approval, and it reflected their “decision that this was [the]

statutory minimum.” SUMF ¶ 44 (quoting Lake Dep. at 153:14–18). The Court takes the

defendants at their word.

24 2. The agency action is arbitrary and capricious because the defendants failed to consider statutory factors, Congressional appropriations, and reliance interests.

Arbitrary and capricious review is “narrow,” evaluating only whether the defendants

“examined ‘the relevant data’ and articulated ‘a satisfactory explanation’ for [their] decision,

‘including a rational connection between the facts found and the choice made.’” Id. (quoting

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983)). The Court may not “substitute [its] judgment” for that of the agency, “but instead must

confine [itself] to ensuring that [they] remained ‘within the bounds of reasoned

decisionmaking.’” Id. (quoting Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S.

87, 105 (1983)).

To implement a new policy without violating the APA, the defendants were required to

demonstrate that they had considered whether “the new policy is permissible under the

[governing] statute, that there are good reasons for it, and that the agency believes it to be better”

than its old policy. FCC v. Fox Tel. Stations, Inc., 556 U.S. 502, 515 (2009). They must offer

that explanation “contemporaneous[ly]” with their actions, and “post hoc rationalizations” are

inadequate. See, e.g., Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1351 (D.C. Cir. 2014)

(internal quotation marks and citation omitted). Courts are thus appropriately skeptical of swings

in core agency policy unaccompanied by substantive explanation because such conduct violates

the “fundamental requirement” that the agency “set forth its reasons.” Tourus Recs. Inc. v. Drug

Enf’t Admin., 259 F.3d 731, 737 (D.C. Cir. 2001). “[C]onclusory statements do not suffice to

explain” agency action. Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 224 (2016); see also

Open Tech. Fund, 2025 WL 3289166, at *10 (same).

As the Court explained at the preliminary injunction stage, “[n]ot only is there an absence

of ‘reasoned analysis’ from the defendants; there is an absence of any analysis whatsoever.”

25 Widakuswara, 779 F. Supp. 3d at 33. Although the Court reached that conclusion prior to the

defendants’ production of the Statutory Minimum Memorandum, which reflects the only

contemporaneous justification for the agency action at issue in this case, the Memorandum and

the rest of the summary judgment record do nothing to change the Court’s preliminary bottom

line. The Memorandum is little more than a list of positions that the agency concluded are

necessary to fulfill minimum statutory obligations. SUMF ¶ 32. It does not mention, let alone

analyze, whether such staffing would permit the agency to comply with the broadcasting

standards and principles set by Congress in 22 U.S.C. § 6202(a)–(b). The failure to do so is

arbitrary and capricious in its own right, particularly given the duty “[t]o ensure that United

States international broadcasting is conducted in accordance with the standards and principles

contained in section 6202.” Id. § 6204(4).

Although the Memorandum quotes certain statutes mandating the existence of certain

positions, such as the director of Voice of America and the Office of Cuba Broadcasting, it fails

to address many requirements established by appropriation statutes, including notification

requirements and region- and medium-specific broadcasting requirements. See, e.g., 138 Stat.

460, 735–36. Nor does the agency explain why it considered certain statutory requirements of

the CEO to the exclusion of so many others. For example, the Memorandum references the

CEO’s obligation “[t]o submit to the President and the Congress an annual report” concerning

broadcasting activities. See ECF No. 166-4 at 5; 22 U.S.C. § 6204(9). But, for example, it gives

no indication that the agency complied with the CEO’s obligation to “undertake . . . studies” in

order “to identify areas in which broadcasting activities under its authority could be made more

efficient and economical.” 22 U.S.C. § 6204(8). It certainly does not account for reliance

interests of the employees, the consuming public, or anyone else.

26 The one substantive requirement the agency did appear to address is the obligation to

“consult[] with the Secretary of State” prior to “the addition or deletion of language services.”

Id. § 6204(4); see ECF No. 166-4 at 3 (“As part of this process, USAGM should engage with the

State Department based on the deletion of services.”). But because the Memorandum constituted

USAGM leadership’s “decision that this was [the] statutory minimum,” it necessarily put the cart

before the horse — effectuating the deletion of language services through the removal of staff

before consulting the State Department. SUMF ¶ 44 (quoting Lake Dep. at 153:14–18). At

bottom, the Memorandum is consistent with the Court’s characterization at the preliminary

injunction stage: “a hasty, indiscriminate approach” to administrative action. Widakuswara, 779

F. Supp. 3d at 34.

Nor does it suffice that, as Lake later explained, the action was taken in compliance with

an Executive Order. SUMF ¶ 26 (explaining the leadership team decided the next day to reduce

USAGM’s operations to the “statutory minimum” based solely on the direction contained in the

Executive Order). “If an agency could avoid the need to justify its decisions simply by gesturing

to an Executive Order . . . the President could unilaterally eviscerate . . . the APA simply by

issuing a carbon-copy executive order mandating that an agency act in a particular way before it

does so.” Kingdom v. Trump, No. 1:25-cv-691-RCL, 2025 WL 1568238, at *10 (D.D.C. June 3,

2025). And the agency similarly failed to consider either reliance interests or relevant statutory

factors (and are therefore contrary to such laws). See ECF No. 166-1 at 36–39. Thus, the

agency’s action cannot stand even under the “deferential” arbitrary-and-capricious standard.

Dep’t of Commerce v. New York, 588 U.S. 752, 773 (2019). The defendants do not offer, nor

does the record disclose, any discernible “rational connection between the facts found and the

27 choice made.” Ark Initiative v. Tidwell, 816 F.3d 119, 127 (D.C. Cir. 2016) (quoting State Farm,

463 U.S. 43). On the face of the Memorandum itself, all signs point to arbitrariness.

In response, and as at the preliminary injunction stage, the defendants do not defend their

action on the merits. Instead, the defendants attempt to evade APA review by suggesting that the

relevant statutory factors are “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).

“[T]he APA explicitly excludes from judicial review those agency actions that are ‘committed to

agency discretion by law.’” Sierra Club v. Jackson, 648 F.3d 848, 855 (D.C. Cir. 2011). The

defendants are correct that, ordinarily, agency action qualifies for that exception when a “statute

is drawn so that a court would have no meaningful standard against which to judge the agency’s

exercise of discretion,” rendering “meaningful judicial review impossible.” Steenholdt v. FAA,

314 F.3d 633, 638 (D.C. Cir. 2003) (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1984)). And

it is true that the International Broadcasting Act tasks the CEO of USAGM with overseeing

compliance with the broadcasting standards and principles set forth in § 6202(a) and (b) in the

agency’s broadcasting operations. See 22 U.S.C. § 6204(3).

Nevertheless, the defendants overreach by contending that the allocation of some

discretion is sufficient to render that discretion unreviewable, for two reasons. First,

administrative law embodies “a ‘strong presumption’ in favor of judicial review of

administrative action, which can only be overcome by ‘clear and convincing evidence of

congressional intent to preclude judicial review.’” Castaneira v. Noem, 138 F.4th 540, 549

(D.C. Cir. 2025) (quoting Guerrero-Lasprilla v. Barr, 589 U.S. 221, 229 (2020)). The

defendants point to nothing in the Broadcasting Act apart from language conferring some

discretion to suggest that Congress intended to foreclose review entirely. That text alone cannot

bear the weight the defendants place on it. Compare 22 U.S.C. § 6204(a) (requiring CEO to

28 “ensure that United States international broadcasting is conducted in accordance with the

standards and principles contained in [§ 6202]”) with Castaneira, 138 F.4th at 549 (delegating

USCIS “sole and unreviewable discretion” to make risk assessments (emphasis added) (quoting

8 U.S.C. § 1154a)(1)(A)(viii)(I))). To the contrary, the statute commands that the CEO “shall”

ensure compliance with the standards and principles in § 6202. See 22 U.S.C. § 6204(a); Bufkin

v. Collins, 604 U.S. 369, 379 (2025) (holding that “the word ‘shall’ imposes a mandatory

command” and “means ‘must’” (first quoting Shapiro v. McManus, 577 U.S. 39, 43 (2025), then

quoting Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 171–72 (2016))).

Second, even if the statute committed the issue to the CEO’s discretion, the CEO still

must exercise that discretion to fulfill Congress’s command, and “[a] grant of discretion to an

agency does not . . . authorize it to make an unprincipled decision.” Ky. Mun. Energy Agency v.

Fed. Energy Regul. Comm’n, 45 F.4th 162, 186 (D.C. Cir. 2022) (quoting Chippewa &

Flambeau Improvement Co. v. FERC, 325 F.3d 353, 358 (D.C. Cir. 2003)). Here, a textual

commitment of discretion could not change the fact that the defendants have provided nothing

approaching a principled basis for their decision.

The Court thus concludes that the plaintiffs are entitled to partial summary judgment on

their § 706(2) claim.

3. The defendants have unlawfully withheld agency action.

While the foregoing broadly addresses the plaintiffs’ claim under § 706(2) of the APA,

they also claim they are entitled to judgment and relief under 5 U.S.C. § 706(1), which requires

courts to “compel agency action unlawfully withheld or unreasonably delayed.” To prevail on a

§ 706(1) claim, a plaintiff must demonstrate that the “agency failed to take a discrete agency

action that it is required to take.” Norton, 542 U.S. at 64. The obligation “must amount to ‘a

29 specific, unequivocal command.’” W. Org. of Res. Councils v. Zinke, 892 F.3d 1234, 1241 (D.C.

Cir. 2018) (quoting Norton, 542 U.S. 63–64).

The Court must therefore “satisfy [itself] that,” first, “there indeed exists . . . a duty” for

the agency to act,” and second, that the agency either has withheld or “has ‘unreasonably

delayed’ the contemplated action.” Bluewater, 234 F.3d at 1315 (quoting 5 U.S.C. § 706(1)).

The plaintiffs contend that the staffing levels required by the Statutory Minimum

Memorandum and the placement of most employees on administrative leave cause the agency to

violate the International Broadcasting Act and various language-specific broadcasting

requirements. By law, Voice of America must “communicat[e] directly with the peoples of the

world by radio.” 22 U.S.C. § 6202(c). In doing so, it must ensure that broadcasting includes

“information about developments in each significant region of the world” and “a variety of

opinions and voices from within particular nations and regions prevented by censorship or

repression from speaking to their fellow countrymen.” Id. § 6202(b)(6)–(7). USAGM is also

required, by law, to maintain “research capacity,” “transmitter and relay capacity,” and

“capability to provide a surge capacity to support United States foreign policy objectives during

crises abroad.” Id. § 6202(b)(4), (8), (9). Congress has also identified particular countries to

which broadcasting must be directed. Unsurprisingly, these include North Korea, Iran, and

former members of the Soviet Union. See id. §§ 7813, 7814(a)(5)–(7), 8754, 8927. These

provisions amount to “discrete agency action” that USAGM “is required to take,” Norton, 542

U.S. at 64, namely, that USAGM must broadcast by radio to particular areas of the world and

must retain surge capacity to deploy during foreign crises. While these statutes undoubtedly call

for USAGM leadership’s judgment regarding how to effectuate Congress’s broadcasting

30 directives, they have no discretion regarding whether to do so. See AIDS Vaccine Advoc. Coal.

v. U.S. Dep’t of State, 803 F. Supp. 3d 164, 186 (D.D.C. 2025) (similar).

The defendants do not dispute key facts demonstrating that they are in violation of these

provisions. To start, the defendants do not substantively dispute the factual claim that “VOA

ceased all broadcasting activities” in March 2025. SUMF ¶ 42. Nor do defendants dispute that

in response this Court’s earlier orders, defendants have begun a skeletal operation including

“four language services in a substantially reduced fashion,” and “digital programming” in

Russian and Korean. Id. ¶ 44. According to a declaration filed by Lake herself, of these four

language services — Mandarin, Farsi, Pashto, and Dari — only Pashto and Dari are broadcast

via radio. See ECF No. 69-2 ¶ 6. And the plaintiffs have offered unrebutted evidence that

USAGM’s surge capacity in fact amounts to little more than “minor fluctuations in staffing”

when “big stor[ies]” occur. SUMF ¶ 45. Moreover, there is no dispute that the placement of

most staff on administrative leave pursuant to the Statutory Minimum Memorandum leaves

USAGM incapable of operating in regions where it is statutorily required to do so. For example,

the plaintiffs offer undisputed evidence that Voice of America is unable to operate its Iran

service at current staffing levels, despite a statutory mandate to do so. Id. ¶ 46 (conceding, in

deposition testimony, that “[c]urrent operation of [the] Persian service with two employees and

zero [contractors] is not possible” (citation omitted)). Apart from boilerplate responses, the

defendants rebut none of these facts.10 The Court thus finds that the defendants are unlawfully

withholding mandatory agency action.

10 Although the defendants do not offer any specific rebuttal of the foregoing facts, they did attempt to dispute the plaintiffs’ broader characterization of USAGM’s skeletal operations in dispute through a declaration filed by Frank Wuco during earlier proceedings in this case. See Decl. of Frank Wuco, Widakuswara ECF No. 174-1 (“Wuco Decl.”). The Wuco Declaration, however, is hardly a robust defense of VOA’s current operations, primarily describing future broadcasting operations, not current activities. E.g., id. ¶ 6 (describing future plans for Korean

31 The withholding of these mandatory actions requires relief. Defendant Lake has

repeatedly thumbed her nose at these statutory requirements, testifying that she has no opinion

about which countries censor and repress their people — or even the basic question of which

regions of the world qualify as significant, as would be required just to feign compliance with 22

U.S.C. § 6202(b)(6) and (7). See SUMF ¶ 47. These refusals constitute a “transparent

violation[] of a clear duty to act.” In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir.

2008) (quoting In re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000)). It is a “bedrock

principle[] of constitutional law” that the Executive Branch “must follow statutory mandates so

long as there is appropriated money available and the President has no constitutional objection to

the statute.” In re Aiken Cnty., 725 F.3d 255, 259 (D.C. Cir. 2013) (Kavanaugh, J.) (granting

mandamus). Following the defendants’ flagrant and nearly year-long refusal to do so in this

case, the Court will grant the plaintiffs partial summary judgment on their § 706(1) claim.

f. Vacatur is the proper remedy.

The foregoing discussion leaves the question of remedy. “Vacatur is the ‘normal

remedy’ for ‘unsustainable agency action.’” See Ky. Mun. Energy Agency, 45 F.4th at 179.

Indeed, the plain text of the APA makes clear that a “reviewing court shall . . . hold unlawful and

set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, and

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Yet despite the presumption in

favor of vacatur, the defendants resist such vacatur in this case based on mistakes of both law

language “[c]ontent” that “will be delivered via terrestrial radio and on digital platforms” (emphasis added)); id. ¶ 7 (same, for Kurdish broadcasting operations). In any event, the Court need not consider the declaration, as the defendants do not rely on it in their responses to the plaintiffs’ statement of undisputed facts. See D.C. LCvR 7(h)(1) (“In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.”); Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials.”).

32 and fact. First, on the facts: the defendants suggest that the plaintiffs seek vacatur of the

Executive Order. But the record makes crystal clear that the plaintiffs APA challenge targets the

actions taken to implement the President’s decision to downsize the agency, including as

reflected in the Statutory Minimum Memorandum. Second, as to the law, the defendants rely

almost entirely on Justice Gorsuch’s concurrence in United States v. Texas, an opinion which,

while thought provoking, does not reflect the current state of the law. See United States v. Texas,

599 U.S. 670, 701 (2023) (Gorsuch, J., concurring) (acknowledging that “vacatur has been the

ordinary result when the D.C. Circuit determines that agency regulations are unlawful”). Nor

does the Supreme Court’s ruling in Trump v. CASA, Inc. affect the availability of vacatur, as the

Court reserved judgment on the “question whether the Administrative Procedure Act authorizes

federal courts to vacate federal agency action.” 606 U.S. 831, 847 n.10 (2025).

Although a court, in narrow circumstances, may justify departure from the normal rule of

vacatur, those circumstances are not present here. Departures may be proper based on (1) “the

seriousness of the deficiencies of the action,” e.g., “how likely it is the agency will be able to

justify its decision on remand,” and (2) any “disruptive consequences of vacatur.” Heartland

Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 197 (D.C. Cir. 2009). Both factors favor the

plaintiffs. First, the defendants have made no effort to defend the merits of the downsizing

decision, and “[v]acatur is appropriate” in such circumstances. Burke v. Coggins, 521

F. Supp. 3d 31, 44 (D.D.C. 2021). The Court can hardly imagine the defendants have a non-

arbitrary justification for these actions on remand after they have failed to muster one in

litigation. Second, the potential for disruption favors vacatur, not an exception. The effect of the

defendants’ action has been to keep USAGM employees on administrative leave despite