ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC., OPEN SOCIETY INSTITUTE, PATHFINDER INTERNATIONAL INC., GLOBAL HEALTH COUNCIL, and INTERACTION, Plaintiffs-Appellees,
UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT, MARK GREEN, in his official capacity as Administrator of the United States Agency for International Development, ROBERT R. REDFIELD, in his official capacity as Director of the United States Centers for Disease Control and Prevention, and his successors, ALEX M. AZAR II, in his official capacity as Secretary of the United States Department of Health and Human Services, and his successors, UNITED STATES CENTERS FOR DISEASE CONTROL AND PREVENTION, and UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants-Appellants. [*]
Argued: May 17, 2018
from the United States District Court for the Southern
District of New York No. 05 Civ. 8209 (VM), Victor Marrero,
District Judge, Presiding.
are several domestic organizations that receive government
funds to assist their efforts to fight HIV/AIDS abroad, often
through legally distinct affiliates. The funds come with the
condition that "[n]o funds . . . be used to provide
assistance to any group or organization that does not have a
policy explicitly opposing prostitution and sex
trafficking." 22 U.S.C. § 7631(f). The Supreme
Court concluded that this requirement compels speech in
violation of the First Amendment. Agency for Int'l
Dev. v. Alliance for Open Soc. Int'l, Inc., 570 U.S.
205 (2013). After the Supreme Court's decision, when the
Government continued to apply this requirement to
plaintiffs' foreign affiliates, plaintiffs sought
permanent injunctive relief. The United States District Court
for the Southern District of New York (Marrero, J.)
granted a permanent injunction. We affirm.
Benjamin H. Torrance, David S. Jones, for Geoffrey S. Berman,
U.S. Attorney's Office, S.D.N.Y., New York, N.Y., for
appellants United States Agency for International
Development, Mark Green (Administrator of USAID, in his
official capacity), United States Centers for Disease Control
and Prevention, Robert R. Redfield (Director, U.S.C.D.C., in
his official capacity), United States Department of Health
and Human Services, Alex M. Azar II, (Acting Secretary,
U.S.H.H.S., in his official capacity).
W. Bowker, Catherine M.A. Carroll, Ari J. Savitsky, David A.
Stoopler, Kevin M. Lamb, Jason D. Hirsch, Jonathan E. Barbee,
Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.
and New York, N.Y., for appellees Alliance for Open Society
International, Inc., Open Society Institute, Pathfinder
International, Global Health Council, InterAction.
Before: STRAUB, POOLER, and PARKER, Circuit Judges.
BARRINGTON D. PARKER, CIRCUIT JUDGE.
Agency for International Development v. Alliance for Open
Society International, Inc., 570 U.S. 205 (2013)
("AOSI"), the Supreme Court held that a
provision of the United States Leadership Against HIV/AIDS,
Tuberculosis, and Malaria Act of 2003 (the "Leadership
Act"), 22 U.S.C. § 7601 et seq., which
required that recipients of funds appropriated under the Act
affirmatively adopt a policy explicitly opposing prostitution
and sex trafficking violated the First Amendment. The Court
determined that this condition, known as the Policy
Requirement, could not be applied to plaintiffs because, as
Chief Justice Roberts stated, it "compels as a condition
of federal funding the affirmation of a belief that by its
nature cannot be confined within the scope of the Government
program." AOSI, 570 U.S. at 221.
Government subsequently interpreted the Supreme Court's
opinion as allowing the Policy Requirement to continue to be
applied to foreign affiliates. Plaintiffs disagreed and
sought and obtained a permanent injunction in the District
Court, which concluded that AOSI did not allow the
Policy Requirement to be applied to plaintiffs' foreign
affiliates. The Government appeals and we are required to
determine the narrow issue of whether the Government's
reading of the Supreme Court's decision is correct. We
agree with the District Court that the Government's
reading is foreclosed by that opinion and, consequently, we
affirm the order below.
background of this litigation is well known and fully
described in the various judicial decisions that have been
issued: the Honorable Victor Marrero's thorough and well
reasoned decision in 2006, our 2011 opinion affirming him,
and the Supreme Court's 2013 opinion affirming us.
See Alliance for Open Soc'y Int'l v. U.S. Agency
for Int'l Dev., 430 F.Supp.2d 222 (S.D.N.Y. 2006);
Alliance for Open Soc. Int'l, Inc. v. U.S. Agency for
Int'l Dev., 651 F.3d 218 (2d Cir. 2011);
AOSI, 570 U.S. 205 (2013). We recount here only the
background necessary for understanding this appeal.
2003, Congress passed the Leadership Act, which authorized
the appropriation of billions of dollars to nongovernmental
organizations to assist the worldwide fight against HIV/AIDS
and other diseases. The Leadership Act contains the Policy
Requirement, which states that "[n]o funds . . . may be
used to provide assistance to any group or organization that
does not have a policy explicitly opposing prostitution and
sex trafficking." 22 U.S.C. § 7631(f).
are several domestic organizations that fight HIV/AIDS
abroad. Many plaintiffs carry out their aid work through
legally distinct affiliates that together constitute global
families of closely aligned entities. For example, plaintiff
InterAction is a network of U.S.-based humanitarian
organizations and contains, as a member, the domestic entity
Save the Children Federation, Inc., which is a part of the
global set of entities operating as Save the Children, an
international aid organization that focuses on children's
health. Save the Children Federation, Inc., in turn, is part
of the Save the Children Association, a non-profit Swiss
association that owns the Save the Children logo and
maintains criteria for Save the Children members. There are
over 30 distinct Save the Children entities incorporated
around the world in addition to in the United States, such as
in Australia, Brazil, Canada, India, Japan, Norway, South
Africa, Spain, and Swaziland. These entities comprise Save
the Children, and share the same name, logo, brand, and
mission, even though they are distinct legal entities
incorporated in various jurisdictions worldwide.
plaintiffs explain and the record reflects, maintaining a
unified global identity, branding, and approach enhances the
ability of an organization like Save the Children to perform
its aid mission. Moreover, various legal and administrative
considerations encourage (and sometimes require) such
international aid organizations to operate as formally
legally distinct entities, despite otherwise being unified.
As an example, the president and chief executive officer of
plaintiff Pathfinder International attested that defendant
United States Agency for International Development
("USAID") gives preference for Leadership Act
contracts to NGOs that are incorporated outside the United
States and sought to increase direct partnerships with local
organizations in order to enhance the long-term effectiveness
of aid delivery. USAID also limits a significant number of
potential grants to organizations incorporated outside of the
United States. Moreover, some foreign governments require
NGOs to be incorporated in their countries in order to be
permitted to undertake public health work there. Overall,
factors such as these have caused international aid
organizations to be organized as formally legally distinct
entities while operating with a unified and consistent
identity, mission, and work. As a consequence, these
organizations appear to the public as unified entities.
Throughout this litigation, plaintiffs have emphasized that,
while they do not support prostitution, they would not
include in their mission statements a policy officially
expressing an opposition to prostitution because, among other
things, effectively fighting diseases like HIV/AIDS often
requires direct involvement with sex-worker communities.
2005, plaintiffs sued to enjoin the Government's
implementation of the Policy Requirement. As noted, the
District Court issued a preliminary injunction, which we
affirmed on appeal. The Supreme Court granted certiorari and
also affirmed, holding that "[t]he Policy Requirement
compels as a condition of federal funding the affirmation of
a belief that by its nature cannot be confined within the
scope of the Government program. In so doing, it violates the
First Amendment and cannot be sustained." AOSI,
570 U.S. at 221.
the Supreme Court's decision, the Government nevertheless
continued to apply the Policy Requirement to plaintiffs'
foreign affiliates. In January 2015, after receiving letter
briefing, the District Court converted its preliminary
injunction to a permanent injunction barring the Government
from imposing the Policy Requirement on plaintiffs or their
affiliates. The Government appealed, and we stayed the
permanent injunction pending this appeal.
district court's decision to issue a permanent injunction
is reviewed for abuse of discretion, as "[t]he decision
to grant or deny permanent injunctive relief is an act of
equitable discretion by the district court." eBay
Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006);
see also, e.g., Knox v. Salinas, 193 F.3d
123, 128-29 (2d Cir. 1999) (per curiam). A district court
commits an abuse of discretion when it "(1) bases its
decision on an error of law or uses the wrong legal standard;
(2) bases its decision on a clearly erroneous factual
finding; or (3) reaches a conclusion that, though not
necessarily the product of a legal error or a clearly
erroneous factual finding, cannot be located within the range
of permissible decisions." Klipsch Grp., Inc. v.
ePRO E-Commerce Ltd., 880 F.3d 620, 627 (2d Cir. 2018)
(internal quotation marks omitted). We review questions of
law de novo. See ACORN v. United States,
618 F.3d 125, 133 (2d Cir. 2010).
narrow issue before this Court is whether applying the Policy
Requirement to plaintiffs' closely aligned foreign
affiliates violates plaintiffs' own First Amendment
rights. The Supreme Court's decision considered this
question and resolved it in plaintiffs' favor.
Consequently, we conclude that the District Court did not
abuse its discretion in issuing its permanent
AOSI, the Supreme Court explained that requiring the
recipient of government funds to adopt the Government's
view on the issue of prostitution and sex trafficking was a
violation of plaintiffs' First Amendment rights. 570 U.S.
at 219. The Court's opinion focused on the distinction
"between conditions that define the federal program and
those that reach outside it," id. at 217, and
the Court explicitly considered the role that affiliates of a
funded organization can play in that dichotomy, id.
at 219. It noted that where a funded organization's
speech was limited by a federal program, the funded
organization could employ affiliates outside the
federal program to exercise its First Amendment rights.
Id. In so reasoning, the Court explicitly recognized
that organizations exercise their First Amendment rights
through their affiliates. Id.
Court therefore made clear that forcing an entity's
affiliate to speak the Government's message
unconstitutionally impairs that entity's own ability to
speak. As Chief Justice Roberts noted, where, as here, an
affiliate is "clearly identified" with the
recipient of government funds, the recipient can express
beliefs that contradict the speech of its affiliate
"only at the price of evident hypocrisy."
Id. Applying the Court's holding in
AOSI to the present iteration of this case as we
must, we hold that the speech of a recipient who rejects the
Government's message is unconstitutionally restricted
when it has an affiliate who is forced to speak the
Government's contrasting message.
principles decide this appeal. Here, the affiliates are
clearly identified with plaintiffs, and to require the
affiliates to abide by the Policy Requirement would require
the closely related-and often indistinguishable-plaintiffs to
be seen as simultaneously asserting two conflicting messages.
This is the "evident hypocrisy" to which the Chief
Justice referred: when the Government requires contrasting,
hypocritical messages between domestic and foreign affiliates
by making one speak the Government's message, this
requirement infringes the speech of the domestic affiliate
and, in so doing, violates the First Amendment. Id.
Indeed, the Government itself acknowledges that forced
hypocrisy can impair an entity's ability to speak:
"It may be true that when two organizations are closely
linked, in some circumstances the speech of one can be seen
as the speech of both." See Gov't Reply at
Government's arguments in this appeal are unpersuasive.
It mainly contends that foreign organizations like
plaintiffs' affiliates do not possess First Amendment
rights. But the Government as well as our dissenting
colleague misunderstands the Supreme Court's decision in
AOSI. It is the First Amendment rights of the
domestic plaintiffs that are violated when the
Policy Requirement compels them to "choose between
forced speech and paying 'the price of evident
hypocrisy.'" All. for Open Soc'y Int'l,
Inc. v. U.S. Agency for Int'l Dev., 106 F.Supp.3d
355, 361 (S.D.N.Y. 2015) (quoting AOSI, 570 U.S. at
Government also contends that the contrasting speech between
domestic and foreign affiliates is irrelevant because,
following the Supreme Court's decision, the Policy
Requirement may no longer be applied to domestic
organizations, and so domestic organizations may now say what
they want and still receive government funds. But this
argument also misses the point. It is the domestic
organization's speech, not its funding, that is at stake
when its affiliate is forced to speak the Government's
message. If the Government is right, then Chief Justice
Roberts was wrong. We part ways with our dissenting colleague
because we believe that it is the Supreme Court's
decision and not the Government's brief that controls
Government finally argues that our decisions in Planned
Parenthood Federation of America, Inc. v. Agency for
International Development, 915 F.2d 59 (2d Cir. 1990)
and Center for Reproductive Law & Policy v.
Bush, 304 F.3d 183 (2d Cir. 2002), which upheld a
funding condition requiring foreign organizations to agree
not to promote abortion, require us to vacate the injunction.
These cases, however, are of little help to the Government.
In Center for Reproductive Law &
Policy, we identified the "thrust of the
claim" as that because of the government's funding
conditions, "foreign NGOs are chilled from interacting
and communicating with domestic abortion rights groups such
as plaintiff CRLP, thus depriving plaintiffs of the rights to
freedom of speech and association in carrying out the mission
of the organization." Center for Reprod. Law
& Policy, 304 F.3d at 188. The foreign NGOs at
issue were mere potential partners of the plaintiffs; they
were not affiliated. In contrast, here the foreign NGOs and
plaintiffs are not just affiliates-they are homogenous.
Plaintiffs share their names, logos, and brands with their
foreign affiliates, and together they present a unified
front. This sameness creates the risk of evident
hypocrisy that motivated the Supreme Court to find a First
Amendment violation. AOSI, 570 U.S. at 219. With the
Supreme Court's articulation of "evident
hypocrisy" as our lodestar, Center for Reproductive
Law & Policy did not address the role of
closely affiliated foreign NGOs and cannot decide today's
Planned Parenthood. In that case, the government
refused to fund foreign NGOs who offered abortion as a
family-planning technique. We weighed allegations "that
it is impractical for United States citizens or organizations
to engage in abortion-related activities abroad without the
cooperation of foreign organizations and that the Standard
Clause deters many of the most logical and effective foreign
partners." Id. at 64 (internal quotation marks
omitted). But critically, the government did not request that
foreign NGOs explicitly adopt a policy of not advocating for
abortion. As such, the domestic NGOs and partner foreign NGOs
were not compelled to make contradictory statements regarding
their core objectives as plaintiffs and their foreign
affiliates are in this case.
policies in these cases did not compel speech, did not
involve closely identified organizations, and, unlike this
case, did not burden the free speech rights of domestic
organizations. Planned Parenthood, 915 F.2d at 64.
We therefore hold that the District Court did not abuse its
discretion in enjoining the Government from imposing the
Policy Requirement on plaintiffs' closely aligned foreign
Government also argues that the District Court violated
Federal Rule of Civil Procedure 65 by imposing the permanent
injunction on the basis of letter briefing and in the absence
of a formal motion and a full hearing. The Government also
argues that the injunction is unclear because its reference
to plaintiffs "or their domestic and foreign
affiliates" is imprecise. We see no abuse of discretion.
is no requirement that a District Court must wait for a
formal motion and hold a hearing to issue a permanent
injunction. This conclusion is, in our view, particularly
sound in a case such as this, involving nearly a decade of
litigation, multiple appeals and resolution by the Supreme
Court. In any event, Rule 65 requires hearings for only
preliminary injunctions, not permanent injunctions. Beck
v. Levering, 947 F.2d 639, 641-42 (2d Cir. 1991) (per
curiam) ("Appellants contend that [Rule 65] requires
that an evidentiary hearing be held in order to issue a
permanent injunction. However, Rule 65 requires hearings for
preliminary injunctions, not permanent injunctions.").
does the injunction violate Rule 65(d)'s requirement that
an injunction "describe in reasonable detail . . . the
act or acts restrained or required." Fed.R.Civ.P.
65(d)(1)(C). We are confident that the term
"affiliate" is sufficiently clear so that the
Government will be able "to ascertain from the four
corners of the order precisely what acts are forbidden."
In re Baldwin-United Corp., 770 F.2d 328, 339 (2d
Cir. 1985) (internal quotation marks omitted). As the
District Court correctly noted, the word
"affiliate" has a sufficiently clear meaning. It is
defined, according to that Court, as "[a] corporation
that is related to another corporation by shareholdings or
other means of control; a subsidiary, parent, or sibling
corporation." 258 F.Supp.3d 391, 396 (S.D.N.Y. 2017)
(quoting Black's Law Dictionary (10th ed. 2014)). As
previously noted, there is an unusually full record in this
case. We do not think that the Government, in applying a
definition such as this, lacks adequate guidance in
determining the entities to which the injunction applies or
that the District Court otherwise abused its discretion in
fashioning the permanent injunction as it did.
foregoing reasons, the order of the District ...