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US Court Blocks Government Media Chief from Replacing Technology Fund Board

FILE - Michael Pack, President Donald Trump's nominee to lead the U.S. Agency for Global Media, is seen at his confirmation hearing, on Capitol Hill, in Washington, Sept. 19, 2019. Pack's nomination was confirmed June 4, 2020.

A U.S. appellate court in Washington on Tuesday blocked the new chief executive of the U.S. Agency for Global Media (USAGM) from installing his appointees to oversee a government-funded organization that advances technology to promote internet freedom across the world.

The U.S Court of Appeals overturned a lower court ruling, enjoining the USAGM leader, Michael Pack, from replacing the previously existing leadership of the Open Technology Fund, one of several global media agencies he oversees. Voice of America is one of the USAGM entities but is not affected by the new ruling.

The appellate decision is temporary, pending further consideration of the merits of the case against Pack’s attempt to reconfigure the Open Technology Fund’s board. But it appears to reinstate the OTF’s previous board while a lawsuit over the matter proceeds in court.

The decision was the first legal setback for Pack’s effort to assert control of USAGM since he assumed office in June.

Earlier this month, U.S. District Judge Beryl Howell rejected a request by the OTF’s existing board members to block Pack’s move to replace them. Howell ruled that Congress gave the USAGM chief executive officer definitive authority to control USAGM’s entities and that if Congress did not like Pack’s actions, it could limit his authority through further legislation.

Howell noted, “Congress has decided to concentrate unilateral power in the USAGM CEO, and the court cannot override that determination.”

The appellate court, however, said Pack seems to lack the same authority over the internet-focused nonprofit Open Technology Fund that he has over the other government-funded global media organizations.

“OTF is not a broadcaster … and is not sufficiently similar to the broadcast entities expressly listed” in the law that controls the USAGM chief executive’s actions, a three-judge panel ruled. Pack’s “statutory authority … does not seem to include control of OTF’s board or operations.”

The U.S. Agency for Global Media logo at Voice of America, in Washington, D.C., Nov. 22, 2019. (VOA)
The U.S. Agency for Global Media logo at Voice of America, in Washington, D.C., Nov. 22, 2019. (VOA)

Howell dismissed concerns about Pack’s replacement of the board, but the appellate panel disagreed and said the OTF board members contesting their ouster were likely to eventually win their case.

“The government’s actions have jeopardized OTF’s relationships with its partner organizations, leading its partner organizations to fear for their safety,” the court order said. “Further, absent an injunction during the appellate process, OTF faces an increasing risk that its decision-making will be taken over by the government, that it will suffer reputational harm, and that it will lose the ability to effectively operate in light of the two dueling boards that presently exist.”

Neither Pack nor USAGM responded to a VOA inquiry Tuesday for comment on the ruling.

A legal representative for the OTF board members who brought the suit did not respond to VOA questions about the verdict.

Pack, a conservative filmmaker, won Senate confirmation last month after his nomination lingered for nearly two years in Congress over objections from Democrats.

In his first weeks in office, Pack fired the leadership of the entities he oversees, mostly replacing them with career officials. He appointed outsiders to leadership posts at OTF and Radio Marti.

Critics of the Pack’s appointment say Trump named him in an effort to garner more favorable coverage of his administration and that Pack’s replacement of key officials has undermined the media entities’ effectiveness.

Pack has defended the moves as part of his legislative powers aimed at improving and modernizing the U.S.-funded agencies.

He has also defended the editorial independence of the network’s journalists and vowed to uphold the VOA Charter.

The VOA Charter, signed into law in 1976, requires VOA to be “accurate, objective, and comprehensive” in its reporting; to provide “a balanced and comprehensive” account of American opinion, and to describe U.S. government policies “clearly and effectively.”

Pack is the first Senate-confirmed CEO of USAGM following a major overhaul of the agency’s leadership structure that Congress approved in late 2016 and former President Barack Obama signed into law. The changes gave expansive new powers to the CEO over all of the U.S. government-funded civilian broadcasters, including the power to set budgets and terminate funding for agencies the CEO no longer sees as effective.

The federal court ruling came a day after Karl Racine, the attorney general in the city of Washington, filed his own lawsuit in D.C. Superior Court, claiming that Pack’s attempted takeover of the OTF board violated city law on governance of nonprofit organizations.