Alliance for Open Society International, Inc. v. United States Agency for International Development
106 F. Supp. 3d 355
S.D.N.Y.2015Background
- Plaintiffs (AOSI, OSI, Pathfinder, GHC) challenged 22 U.S.C. § 7631(f) (the "Policy Requirement") as compelling recipients of Leadership Act funds to adopt a policy opposing prostitution/sex trafficking, claiming it violates the First Amendment.
- This Court issued a preliminary injunction barring enforcement of the Policy Requirement against Plaintiffs; that injunction was affirmed by the Second Circuit and the U.S. Supreme Court.
- After the Supreme Court decision, Plaintiffs sought conversion of the preliminary injunction to a permanent injunction and alleged the Government failed to comply fully with the injunction (e.g., some solicitations lacked an explicit exemption for Plaintiffs).
- Agencies (USAID, HHS, CDC) adjusted contract language to exempt Plaintiffs but used different phrasing; Plaintiffs argued USAID’s wording was confusing and chilling, and that Government communications beyond RFPs/RFAs also deterred applicants.
- The Court held a conference, reviewed submissions, and addressed six discrete issues: adequacy of Government compliance, clarity of USAID language, scope of affiliates (foreign vs domestic), whether other communications must include exemptions, whether the Policy Requirement is facially invalid as applied to all domestic NGOs, and whether a permanent injunction is warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Has the Government exempted Plaintiffs per the injunction? | Government has not reliably included explicit exemptions in all RFPs/RFAs; thus noncompliance. | Agencies say they have not enforced the requirement and have added exemptions in awards. | Court: All RFPs/RFAs referencing the Policy Requirement must include the exemption; Government directed to ensure compliance. |
| 2) Is USAID’s exemption language unconstitutionally confusing/chilling? | USAID wording is unclear and may deter affiliates from applying. | USAID: its language is understandable and does not chill speech. | Court: USAID language is not so confusing as to violate the First Amendment; HHS language is clearer but uniform phrasing is not constitutionally required. |
| 3) Do the injunction and Supreme Court ruling cover foreign affiliates? | Plaintiffs: Supreme Court’s affiliate analysis protects domestic NGOs from being forced to speak regardless of whether affiliates are foreign or domestic. | Government: Supreme Court’s affiliate discussion concerned domestic affiliates only. | Court: Ruling protects domestic NGOs and their affiliates (foreign or domestic); Government cannot require Plaintiffs’ affiliates to comply. |
| 4) Must Other Government communications (solicitations, guidance) include the exemption? | Other Communications that state the Policy Requirement deter applications and chill speech; they must include the exemption. | Government: injunction concerns award instruments (RFP/RFA/awards); non-binding communications need not carry exemptions. | Court: Other Communications that could deter applicants must include the exemption; risk of chilling outweighs minimal burden on Government. |
| 5) Is the Policy Requirement facially invalid as to all domestic NGOs? | Plaintiffs: Supreme Court held the Policy Requirement violates the First Amendment and cannot be applied to domestic NGOs generally. | Government: contends limited application or compliance avenues may exist. | Court: Foresees no constitutional application of the Policy Requirement to domestic NGOs or their affiliates; Government must show cause if it intends to apply it to any organizations. |
| 6) Should the preliminary injunction be made permanent? | Plaintiffs: irreparable harm persists; Supreme Court and this Court’s rulings show likelihood of success on the merits. | Government: contested compliance and scope issues. | Court: Finds irreparable harm and actual success on the merits; converts injunction to permanent relief as to Plaintiffs and their affiliates. |
Key Cases Cited
- Alliance for Open Society Int'l, Inc. v. U.S. Agency for Int'l Dev., 133 S. Ct. 2321 (2013) (Supreme Court affirmed that the Policy Requirement violates the First Amendment as applied to respondents and explained limits on using affiliates to avoid compelled speech)
- Alliance for Open Society Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218 (2d Cir. 2011) (Second Circuit opinion affirming preliminary injunction)
- Rust v. Sullivan, 500 U.S. 173 (1991) (discussed in affiliate context regarding organizations’ ability to exercise First Amendment rights outside a federal program)
- Ognibene v. Parkes, 671 F.3d 174 (2d Cir. 2011) (standard for converting a preliminary injunction to a permanent injunction requires irreparable harm and actual success on the merits)