Alliance for Open Society International, Inc. v. United States Agency for International Development
Docket: No. 06-4035-CV
Court: Court of Appeals for the Second Circuit; November 7, 2007; Federal Appellate Court
Defendants-appellants are appealing a preliminary injunction issued by the United States District Court for the Southern District of New York, which prevents them from enforcing their interpretation of 22 U.S.C. § 7631(f) under the Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 against plaintiffs-appellees receiving funding under the Act. To obtain a preliminary injunction, a party must demonstrate a likelihood of irreparable harm and either a likelihood of success on the merits or serious questions regarding the merits that favor the moving party. The court recognizes that loss of First Amendment freedoms constitutes irreparable harm but emphasizes that when government actions in the public interest are involved, a higher standard of demonstrating success on the merits is required. The District Court's injunction was based on its finding that the defendants’ interpretation of the Leadership Act's "policy requirement" likely violated the First Amendment by not providing adequate alternative communication channels. Defendants filed an interlocutory appeal, presenting new information at oral argument about guidelines being developed by the Department of Health and Human Services (HHS) and the United States Agency for International Development (USAID) that would allow plaintiffs to work with affiliates not bound by the policy requirement. Defendants argued these guidelines would render the policy requirement constitutional. The appellate court maintained the preliminary injunction while noting the defendants' representation that the new guidelines would be adopted shortly. Subsequent updates indicated that the guidelines were in effect, prompting the court to request supplemental briefs regarding their impact on the ongoing constitutional and statutory challenges. The letter briefing is complete, revealing that the case before the District Court has substantively changed, necessitating new fact-finding to resolve the dispute. The case is remanded to the District Court to determine if a preliminary injunction should be granted based on the new guidelines. The District Court is deemed more capable of assessing whether the regulations provide adequate alternative channels for protected expression. Although the Society's claims for declaratory and injunctive relief are justiciable, it is inappropriate for the appellate court to evaluate them without factual findings from the District Court regarding the amended regulations. The appellate court does not express opinions on the merits of the claims or the constitutionality of the guidelines, leaving the District Court free to consider relevant legal arguments and additional evidence. The injunction remains in effect pending the District Court’s proceedings, and the District Court may consolidate the preliminary injunction hearing with the trial on the merits. The case is remanded for proceedings consistent with this directive, and jurisdiction will return to the appellate court upon a letter request from any party, after which the matter will be sent back to the original panel.