Summer Showdown at the D.C. Circuit Court of Appeals

Last updated: 2020-07-16T16:05:13.841Z
Lawsuit Challenging Pack’s Attack On OTF Secures Expedited Briefing Schedule

Each day, more and more activists, politicians, newspapers, and commercial coalitions speak out in defense of the Open Technology Fund (OTF) thanks to the ongoing efforts of the campaign to #SaveInternetFreedom. In doing so, these individuals, organizations, and corporations reject the reckless moves made by new US Agency for Global Media (USAGM) CEO, Michael Pack, and demand that the rule of law be followed. Read on to learn more about the recent advances made by the legal team representing OTF and its illegally deposed Board of Directors - and what you or your organization can do to help as the case moves forward.

Appeal Denies USAGM has the Authority to Unilaterally Remove and Replace OTF’s Independent Officers and Directors; Seeks Emergency Relief

On June 23, 2020, OTF and members of the organization’s Board filed a lawsuit in D.C. district court challenging Pack’s attempt to unilaterally dismiss OTF officers and directors. The suit swiftly helped to unfreeze OTF’s funds and drew new, powerful bipartisan supporters to the organization’s side. Although the lower court ultimately denied OTF’s initial motion for immediate injunctive relief, the judge agreed with OTF’s legal argument that the non-profit organization is not subject to Pack’s authority under the law in the same way as other USAGM entities, and noted that “[w]idespread misgivings about Pack’s actions raise troubling concerns.”

On Friday, July 9, with the question of who controls OTF still up for debate and ripe for adjudication, OTF and its Board filed an emergency motion for an injunction, pending appeal, at the D.C. Circuit Court of Appeals. The filed motion seeks an emergency stay of all further actions stemming from Pack’s purge until the Court is able to rule on the merits of the appeal itself. The appeal argues that USAGM does not have the authority to unilaterally remove and replace officers and directors of OTF - an independent non-profit organization.

The Court of Appeals demonstrated how seriously it viewed OTF’s claims in granting the organization’s request for an expedited briefing schedule. In doing so, the Court also ruled USAGM and Pack must respond to OTF’s motion for an emergency injunction in very short order -- which they did by the deadline on Wednesday, July 15th. This tight turnaround indicates the Court may issue an initial ruling on the matter of an emergency stay sometime soon (the case itself will continue into August, with an anticipated decision sometime in September).

Open Call for Amici to Support OTF’s Current Appeal

In cases of this magnitude, it is common for amicus curiae briefs to be filed in support of an appellant like OTF. Such “friend of the court” briefs are filed by non-parties who want to support an involved party by offering critical information or additional expertise to help a court decide an important case. Anticipating that such briefs would likely be submitted in the ongoing matter, the Court of Appeals set a deadline of July 24 for all amicus briefs filed in support of OTF.

A narrow reading of the issues on appeal addresses only the facts of the relationship between USAGM and its grantee, OTF. But the broader context of the case speaks to the complex interplay between the federal government and the independent organizations that rely on federal grant funds to operate. Can a federal agency assume control over an independent non-profit solely by virtue of a grant agreement? Is it constitutional for the federal government to interfere with the freedom of association rights of independent organizations? Numerous federal agencies award grants to fund critical projects and provide public services. The ultimate answers to these questions may therefore have a far-ranging effect - not only on OTF and the internet freedom community - but on the entire federal funding landscape.

As OTF and its Board of Directors continue to fight to #SaveInternetFreedom, they need all the help they can get. If you or your organization (or an organization you know) are interested in filing an amicus brief, or signing onto a coalition brief, please immediately reach out to [email protected]. In doing so, keep in mind that time is of the essence, as briefs must be filed by the end of next week.