The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Administration's Filings in Support of Defunding of Voice of America Are Inadequate, Federal Judge Says
From Judge Royce Lamberth (D.D.C.) today in Widakuswara & Abramowitz v. Lake:
On April 22, 2025, upon finding that the defendants likely violated several provisions of the Administrative Procedure Act (APA), this Court ordered the defendants to "restore VOA programming such that USAGM fulfills its statutory mandate that VOA 'serve as a consistently reliable and authoritative source of news.'" This portion of the Court's preliminary injunction remains in full effect.
On June 23, 2025, the Court held a hearing on the pending Motions for an Order to Show Cause … regarding the defendants' alleged noncompliance with this part of the preliminary injunction. At the conclusion of the hearing, the Court ordered the defendants to file a "supplemental memorandum with additional information regarding USAGM's recent activities, including any relevant information about USAGM [U.S. Agency for Global Media] funding decisions, personnel updates, and submissions to Congress." …
The Court, having now reviewed all filings, is still unable to get a clear picture of how VOA is operating or how the agency plans to operate VOA moving forward.
For example, the defendants cite VOA's ramped-up Persian news programming in the aftermath of the recent Israeli air strikes against Iran as a successful demonstration of VOA's capacity to report the news. The defendants emphasize their ability to "exercise[] recalls, as appropriate," and maintain their "access to critical talent" to carry out operations as needed. But at the same time, the defendants also attach their submission to Congress on June 3rd, showing their intent to fire those very Persian News Network staffers as part of the impending reduction-in-force (RIF). See June 3 Notification to Senator Graham (indicating plan to retain only 11 VOA positions and 2 Farsi language positions). Faced with this record, the Court cannot rely on the defendants' latest representation of the Persian News Network "surge operation" as any measure of compliance.
Indeed, across the board, the defendants fail to provide any concrete staffing numbers to the Court. The reported staffing level—"86 employees working for Voice of America and the Office of Cuba Broadcasting"—comes with a caveat: that "[t]hese numbers are anticipated to change with anticipated flux, including a reduction in force, and as [USAGM] responds to current events as needed." The Court cannot discern the defendants' intent to "restore VOA programming," as required by the preliminary injunction, based on such a noncommittal representation. {The Court notes that the staffing levels at the Office of Cuba Broadcasting are irrelevant, because Part III of the Court's preliminary injunction focused specifically on VOA. The Office of Cuba Broadcasting is a separate entity within USAGM.}
Of course, the Court does not mean to give the impression that staffing or other operational decisions must be permanent to allow for this Court's review. Personnel decisions are within the agency's purview, as this Court has previously emphasized. But "[w]hile the agency does have discretion regarding how it discharges its statutory responsibilities, that discretion is neither boundless nor shielded from judicial review and remediation." And as it stands, the defendants have not made personnel representations that this Court can evaluate. The defendants need to provide information on staffing that gives a realistic picture of how VOA will be operating moving forward, without touting activities undertaken by staff that will soon be fired.
Beyond the unpredictable staffing levels, the Court observes several other deficiencies in the defendants' supplemental memorandum. It contains no reference to the agency's Fiscal Year 2025 budget justification or why the defendants have decided to abandon it. The Court therefore does not have a sense of how the defendants are using the $260 million that has been appropriated for VOA for Fiscal Year 2025.
Furthermore, the supplemental memorandum contains no information on how the defendants determined the activities it would undertake to "restore VOA programming such that USAGM fulfills its statutory mandate." For example:
- None of the defendants' filings have explained why the defendants zeroed in on Dari, Pashto, Farsi, and Mandarin as the only statutorily-required languages for VOA broadcasting, when VOA was previously broadcasting in forty-eight different languages.
- The defendants report that they are broadcasting shortwave from Greenville, South Carolina, which "signal blankets all Latin America and the Caribbean." Gov't Suppl. Mem. at 6. But none of the four languages that VOA has identified are even spoken in those regions. The defendants have not explained this broadcasting decision, which on its face appears irrational.
- The defendants have never explained the decision to exclude Africa from their plan to run VOA. They emphasize the "absence of any clear directive" to broadcast to those regions, but that does nothing to explain the agency's decisionmaking process in taking the drastic action of cutting out those regions wholesale.
In short, the defendants need to provide more information. As it stands, the Court still does not have a clear picture of what VOA is doing, what the defendants' plan is for VOA moving forward, or how the defendants made any of these decisions. Without this information, the Court cannot determine the defendants' compliance with the preliminary injunction. Therefore, the Court will provide the defendants with another opportunity to respond to the Court, specifically responding to the issues highlighted above.
{The Court reminds the defendants that mere reference to the Executive Order is not sufficient for APA compliance. See State v. Su (9th Cir. 2024) ("[T)he executive order does not exempt [the agency] from basic APA requirements of reasoned decisionmaking."); Louisiana v. Eiden (W.D. La. 2022) (citation omitted) ("A decision suppo1ted by no reasoning whatsoever in the record cannot be saved merely because it involves an Executive Order.").}
William B. Schultz, Margaret M. Dotzel, and Brian J. Beaton, Jr. (Zuckerman Spaeder LLP) represent plaintiffs.
