United States District Court, S.D. New York
ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC. et al., Plaintiffs,
UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT et al., Defendants
For Alliance for Open Society International, Inc., Open Society Institute, Plaintiffs: Aziz Huq, David Stuart Udell, Laura Klein Abel, Rebekah Ruth Diller, LEAD ATTORNEYS, Brennan Center for Justice, New York, NY; Burt Neuborne, LEAD ATTORNEY, Brennan Center for Justice, NYU School of Law, New York, NY; Richard A. Johnston, LEAD ATTORNEY, Hale and Dorr, LLP, Boston, MA; David William Bowker, Wilmer Cutler Pickering Hale & Dorr LLP (NYC), New York, NY.
For Pathfinder International, Plaintiff: Rebekah Ruth Diller, LEAD ATTORNEY, Brennan Center for Justice, New York, NY; Richard A. Johnston, LEAD ATTORNEY, Hale and Dorr, LLP, Boston, MA; David William Bowker, Wilmer Cutler Pickering Hale & Dorr LLP (NYC), New York, NY.
For Global Health Council, Plaintiff: Rebekah Ruth Diller, Brennan Center for Justice, New York, NY.
For United States Agency for International Development, United States Centers of Disease Control and Prevention, United States Department of Health and Human Services, Defendants: Benjamin Henry Torrance, LEAD ATTORNEY, U.S. Attorney's Office, S.D.N.Y. (Chambers Street), New York, NY; Richard Edward Rosberger, Rottenberg Lipman Rich P.C., New York, NY.
For Julie Louise Gerberding, in her official capacity as Director of the U.S. Centers for Disease Control and Prevention, and her successors, Michael O. Leavitt, in his official capacity as Secretayr of the U.S. Department of Health and Human Services, and his successors, Henrietta Fore, in her official capacity as administrator of the United States Agency for International Development and her successors, Defendants: Benjamin Henry Torrance, LEAD ATTORNEY, U.S. Attorney's Office, S.D.N.Y. (Chambers Street), New York, NY.
For AIDS Action et al., Amicus: Christine Ingrid Magdo, Covington & Burling LLP(NYC), New York, NY; Claudia Maria Flores, ACLU Women's Rights Project, New York, NY.
For Apne Aap et al [Amicus], Amicus: Jessica Neuwirth, Equality Now, New York, NY.
For InterAction, Amicus: Lawrence S. Lustberg, LEAD ATTORNEY, Gibbons, Del Deo, Dolan, Griffinger & Vecchione (Newark), Newark, NJ; Rebekah Ruth Diller, Brennan Center for Justice, New York, NY.
DECISION AND ORDER
VICTOR MARRERO, UNITED STATES DISTRICT JUDGE.
Plaintiffs Alliance for Open Society International (" AOSI"), Open Society Institute (" OSI"), Pathfinder International (" Pathfinder"), and Global Health Council (" GHC") (collectively " Plaintiffs") brought action against defendants, the United States Agency for International Development (" USAID"), the United States Department of Health and Human Services (" HHS"), and the United States Centers for Disease Control and Prevention (" CDC") (collectively " Defendants, " or the " Agencies, " or the " Government"). Plaintiffs sought a preliminary injunction barring the Government from applying 22 U.S.C. Section 7631(f), which requires an organization to have a " policy explicitly opposing prostitution and sex trafficking" (the " Policy Requirement") to be eligible for Government grants under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (the " Leadership Act"). This Court granted a preliminary injunction barring the Government from enforcing the Policy Requirement against the Plaintiffs because enforcement would cause Plaintiffs irreparable harm and likely amount to coerced speech endorsing the Government's message, thereby violating their First Amendment right to free speech. (Dkt. Nos. 49, 53, 83.) This Court's decision was subsequently affirmed by the Second Circuit and then by the United States Supreme Court. Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218, 224 (2d Cir. 2011), aff'd, 133 S.Ct. 2321, 186 L.Ed.2d 398 (2013). The Court will assume familiarity with the legal and factual background through the Supreme Court's June 20, 2013 decision affirming the preliminary injunction.
By letter dated September 23, 2014, Plaintiffs sought a pre-motion conference to request the Court convert the preliminary injunction to a permanent injunction, also claiming that the Government failed and continues to fail to comply with the Supreme Court's ruling in this case. (Dkt. No. 106.) The Government responded by letter dated October 3, 2014 (Dkt. No. 107), and the Plaintiffs replied by letter dated October 9, 2014. (Dkt. No. 108.) A pre-motion conference was held on October 16, 2014, at which the Court directed both parties to submit documentation supporting their arguments. Both parties submitted supporting materials. (Dkt. Nos. 112-17.)
Based on the submissions of the parties and the October 16, 2014 hearing, there are six issues to be decided: first, whether the Government has, in accordance with the preliminary injunction issued by this Court, properly exempted Plaintiffs from meeting the Policy Requirement; second, whether the language exempting Plaintiffs from the Policy Requirement in the USAID requests for proposals (" RFPs") and requests for applications (" RFAs") is so confusing that it chills free speech; third, whether the Supreme Court's decision that Plaintiffs' " affiliates" fall within the scope of the injunction was limited to domestic affiliates, or alternatively, also applies to foreign affiliates; fourth, whether the preliminary injunction in place requires the Government to include language exempting Plaintiffs from the Policy Requirement in its other official communications, including solicitations (" Other Communications"), in addition to in its RFPs and RFAs; fifth, whether the Supreme Court's Opinion found 22 U.S.C. Section 7631(f) to be unconstitutional on its face such that the Government should be precluded from enforcing it against all domestic non-government organizations (" NGOs"), or instead whether the Supreme Court found the Policy Requirement unconstitutional as applied, meaning that the Government should be precluded from enforcing it only against the Plaintiffs in this action; and sixth, whether the Plaintiffs have met their burden in seeking a permanent injunction.
A. THE GOVERNMENT'S COMPLIANCE WITH THE COURT'S PRELIMINARY INJUNCTION
At the October 16, 2014 conference, there was significant argument over how long the Government has taken to comply with each successive court ruling and how successful the Government has been with its compliance. The Agencies claim they have complied with the Court's preliminary injunction by not enforcing the Policy Requirement against the Plaintiffs and by adding language to their grant contracts explicitly exempting Plaintiffs from fulfilling the Policy Requirement as a prerequisite to obtaining grant money through the Leadership Act.
All parties agree that the Government has not actually enforced the Policy Requirement against the Plaintiffs. All parties also agree that RFPs and RFAs referencing the Policy Requirement should make clear that the Plaintiffs are exempt from it. (See Dkt. Nos. 116, 117.) There is some disagreement, however, regarding whether all RFPs and RFAs actually contain the required exemption and, if so, whether they have been updated in a timely fashion. (See Dkt. Nos. 116, 117.) Plaintiffs offer numerous examples of RFPs and RFAs that the Agencies created and issued after the Supreme Court's decision affirming this Court's preliminary injunction and that do not contain any exemption. (See Dkt. No. 112, Ex. D.) Again, there is no dispute as to whether RFAs and RFPs ...