Nassau v. Leavitt, No. 07-0825 (2d Cir. 2008)

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07-0825-cv Nassau v. Leavitt 1 2 3 UNITED STATES COURT OF APPEALS 4 FOR THE SECOND CIRCUIT 5 6 7 August Term 2007 (Argued: September 6, 2007 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Decided: April 25, 2008) Docket No. 07-0825-cv -----------------------------------------------------x COUNTY OF NASSAU, NEW YORK, COUNTY OF SUFFOLK, NEW YORK, FEDERATION EMPLOYMENT AND GUIDANCE SERVICES, INC., LONG ISLAND MINORITY AIDS COALITION, INC., THURSDAY S CHILD, INC., TRACI BOWMAN, MIRIAM SPAIER, JEROME KNIGHT, DONNA UYSAL, Plaintiffs-Appellants, -- v. -MICHAEL O. LEAVITT, IN HIS OFFICIAL CAPACITY AS SECRETARY OF HEALTH AND HUMAN SERVICES OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ELIZABETH M. DUKE, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR FOR THE HEALTH RESOURCES AND SERVICES ADMINISTRATION OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants-Appellees. -----------------------------------------------------x B e f o r e : WALKER, CALABRESI, and SACK, Circuit Judges. Plaintiffs-appellants appeal from an order of the United 1 1 States District Court for the Eastern District of New York 2 (Joanna Seybert, Judge) denying plaintiffs motion for a 3 preliminary injunction pursuant to Fed. R. Civ. P. 65. 4 ruling, the district court found that plaintiffs had not shown a 5 likelihood of success on the merits of their action. 6 with that ruling and, because the parties agreed at oral argument 7 that our resolution of that issue would decide this case, we need 8 not remand for a finding as to irreparable harm, which was never 9 considered by the district court. 10 REVERSED and REMANDED. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In so We disagree PETER J. CLINES, Deputy County Attorney (Lorna G. Goodman, County Attorney, on the brief), Mineola, N.Y., for Plaintiffs-Appellants. THOMAS A. MCFARLAND, Assistant United States Attorney (Varuni Nelson, Assistant United States Attorney, of counsel on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, New York, N.Y., for Defendants-Appellees. JOHN M. WALKER, JR., Circuit Judge: Plaintiffs-appellants County of Nassau, County of Suffolk, 27 Federation Employment and Guidance Services, Inc., Long Island 28 Minority Aids Coalition, Inc., Thursday s Child, Inc., Traci 29 Bowman, Miriam Spaier, Jerome Knight, and Donna Uysal 30 (collectively Nassau-Suffolk ) sued the Secretary of the United 31 States Department of Health and Human Services, the Administrator 2 1 for that department s Health Resources and Services 2 Administration, and the department itself (collectively DHHS ) 3 to recover federal funding that Nassau-Suffolk claims it is owed. 4 Nassau-Suffolk appeals from an order of the District Court for 5 the Eastern District of New York (Joanna Seybert, Judge) denying 6 plaintiffs motion for a preliminary injunction, pursuant to Fed. 7 R. Civ. P. 65, upon finding that plaintiffs had failed to show a 8 likelihood of success on the merits. 9 have shown a likelihood of success on the merits. We find that plaintiffs Because the 10 parties have agreed that our resolution of that issue is 11 dispositive of this case, remand on the issue of irreparable harm 12 is unnecessary. BACKGROUND 13 14 The Ryan White Comprehensive AIDS Resources Emergency Act of 15 1990 ( the 1990 Act ) was enacted to provide emergency relief 16 funding to localities that were disproportionately affected by 17 the HIV/AIDS epidemic. 18 Act was modified on May 20, 1996 by the Ryan White CARE Act 19 Amendments of 1996 ( the 1996 Amendments ) and on October 20, 20 2000 by the Ryan White CARE Act Amendments of 2000. 21 of the statute as so amended was to make financial assistance 22 available to States and other public or private nonprofit 23 entities to provide for the development, organization, 24 coordination and operation of more effective and cost efficient See 42 U.S.C. § 300ff (1991). 3 The 1990 The purpose 1 systems for the delivery of essential services to individuals and 2 families with HIV disease. 3 among the recipients of this funding. Id. The County plaintiffs were 4 On December 19, 2006, Congress passed the Ryan White 5 HIV/AIDS Treatment Modernization Act of 2006 ( the 2006 Act ). 6 Before the 2006 Act, Nassau and Suffolk Counties were classified 7 together as a single locality for the receipt of emergency 8 funding, which funds were then distributed to the other 9 plaintiffs. After the 2006 Act s enactment, however, DHHS 10 reduced the funding. Plaintiffs contend that the funding 11 decrease was contrary to the statutory mandate expressed in the 12 2006 Act. 13 I. The Iterations of the Act 14 A. The 1990 Act 15 The original 1990 Act established standards for determining 16 which localities would qualify for funding. 17 areas selected for funding were deemed Eligible Metropolitan 18 Areas ( EMAs ). 19 locality to qualify as an EMA in a given fiscal year, the 1990 20 Act set forth the following requirements: 21 22 23 24 25 26 27 28 Under the 1990 Act, See 42 U.S.C. § 300ff-11(a) (1991). For a (1) there has been reported to and confirmed by the Director of the Centers for Disease Control [CDC] a cumulative total of more than 2,000 cases of acquired immune deficiency syndrome [within the locality]; or (2) the per capita incidence of cumulative cases of such syndrome (computed on the basis of the most recently available data on the population of the area) is not less than 0.0025. 4 1 Id. Under the 1990 Act, Nassau-Suffolk qualified as an EMA and 2 received emergency funding. 3 B. 4 The 1996 Amendments established different eligibility 5 The 1996 Amendments requirements, stating in pertinent part: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (a) Eligible areas The Secretary . . . shall, subject to subsections (b) through (d) of this section, make grants . . . [to] any metropolitan area for which there has been reported to the Director of the [CDC] a cumulative total of more than 2,000 cases of [AIDS] for the most recent period of 5 calendar years for which such data are available. 42 U.S.C. § 300ff-11 (1997). 28 grandfather clause that protected the future funding of all 29 EMAs that had qualified for funding in fiscal year 1996. (b) Requirements regarding confirmation of cases . . . (c) Requirements regarding population . . . (d) Continued status as eligible area Notwithstanding any other provision of this section, a metropolitan area that was an eligible area under this part for fiscal year 1996 is an eligible area for fiscal year 1997 and each subsequent fiscal year. The 1996 Amendments thus provided a 30 C. 31 The 2006 Act again amended the standards under which areas 32 33 34 35 36 37 The 2006 Act could qualify for funding. It provides: (a) Eligible areas The Secretary . . . shall, subject to subsections (b) through (c) of this section, make grants . . . [to] any metropolitan area for which there has been reported to the Director of the [CDC] a cumulative total of more 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 42 U.S.C. § 300ff-11(a)-(b) (2006). 20 the 2006 Act was to drop the grandfather clause and replace it 21 with a clause that would cut off EMA status if the metropolitan 22 area had failed both of two requirements for the last three 23 consecutive fiscal years: (1) the requirement that the 24 metropolitan area have more than 2000 AIDS cases reported to the 25 Director of the CDC for the most recent five-year period for 26 which data are available, and (2) the requirement that the 27 metropolitan area have a cumulative total of 3000 or more living 28 AIDS cases as of December 31 of the most recent calendar year for 29 which data are available. 30 than 2,000 cases of [AIDS] for the most recent period of 5 calendar years for which such data are available. (b) Continued status as eligible area Notwithstanding any other provision of this section, a metropolitan area that is an eligible area for a fiscal year continues to be an eligible area until the metropolitan area fails, for three consecutive fiscal years (1) to meet the requirements of subsection (a) of this section; and (2) to have a cumulative total of 3,000 or more living cases of AIDS (reported to and confirmed by the Director of the [CDC]) as of December 31 of the most recent calendar year for which such data is available. The effect, therefore, of The 2006 Act also provided for a new category of areas that 31 would receive reduced funding compared to EMAs. 32 area could qualify as a Transitional Grant Area ( TGA ) as 33 follows: 6 A metropolitan 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 (b) Transitional areas For purposes of this section, the term transitional area means, subject to subsection (c) of this section, a metropolitan area for which there has been reported to and confirmed by the Director of the [CDC] a cumulative total of at least 1,000, but fewer than 2,000, cases of AIDS during the most recent period of 5 calendar years for which such data are available. 42 U.S.C. § 300ff-19 (2006). Notably, certain localities that 41 never before qualified for funding as EMAs could now possibly 42 qualify as TGAs. 43 protections from the loss of funding that EMAs enjoyed. 44 II. (c) Certain eligibility rules (1) Fiscal year 2007 With respect to grants under subsection (a) of this section for fiscal year 2007, a metropolitan area that received funding under subpart I [42 U.S.C. § 300ff-11] for fiscal year 2006 but does not for fiscal year 2007 qualify under such subpart as an eligible area and does not qualify under subsection (b) of this section as a transitional area shall, notwithstanding subsection (b) of this section, be considered a transitional area. (2) Continued status as transitional area (A) In general. Notwithstanding subsection (b) of this section, a metropolitan area that is a transitional area for a fiscal year continues, except as provided in subparagraph (B), to be a transitional area until the metropolitan area fails, for three consecutive fiscal years (i) to qualify under such subsection as a transitional area; and (ii) to have a cumulative total of 1,500 or more living cases of AIDS (reported to and confirmed by the [CDC]) as of December 31 of the most recent calendar year for which such data is available. Furthermore, TGAs would enjoy analogous Plaintiffs Funding 7 1 Nassau-Suffolk qualified as an EMA under the 1990 Act. In 2 fiscal year ( FY ) 1997, although Nassau-Suffolk did not meet § 3 300ff-11(a) s requirement of having more than 2000 reported AIDS 4 cases over the previous five-year period for which data was 5 available, the locality s funding continued under § 300ff-11(d), 6 the 1996 Amendments grandfather clause. 7 Nassau-Suffolk s status as an EMA, and therefore its funding, 8 would continue indefinitely because of its status as an EMA for 9 FY 1996. Under that clause, See 42 U.S.C. § 300ff-11(d) (1997) ( [A] metropolitan 10 area that was an eligible area under this part for fiscal year 11 1996 is an eligible area for fiscal year 1997 and each subsequent 12 fiscal year. (emphasis added)). 13 status as an EMA, however, became the subject of dispute with the 14 passage of the 2006 Act. 15 Nassau-Suffolk s continued On February 12, 2007, after the enactment of the 2006 Act, 16 defendant DHHS informed Nassau-Suffolk that the locality would no 17 longer qualify as an EMA for FY 2007 but would now be categorized 18 as a TGA because Nassau-Suffolk had 1505 cases reported to and 19 confirmed by the CDC in the applicable five-year period. 20 Suffolk disputed DHHS s application of the 2006 Act and brought 21 this suit seeking a judgment declaring that DHHS s interpretation 22 of § 300ff-11 was erroneous. 23 temporary restraining order and preliminary injunction requesting 24 the district court to enjoin defendants from downgrading Nassau- Nassau- Nassau-Suffolk also moved for a 8 1 Suffolk from an EMA to a TGA. 2 III. The Parties Arguments and the Proceedings Below 3 The parties differ sharply as to the effect of the 2006 Act. 4 DHHS argues that the 2006 Act repealed the 1996 Amendments 5 grandfather clause. 6 qualify as an EMA for FY 2007 because the locality did not have 7 enough cases to meet the requirements of § 300ff-11(a) of the 8 2006 Act. 9 that an area that is eligible for a fiscal year generally It contends that Nassau-Suffolk failed to DHHS argues further that § 300ff-11(b), which provides 10 continues to be an eligible area, is inapplicable because Nassau- 11 Suffolk had never, in the first instance, qualified as an EMA for 12 FY 2007. 13 funding for FY 2007 as a TGA under § 300ff-19(a) because it had 14 between 1000 and 2000 cases during the relevant five-year period. 15 DHHS claims, however, that Nassau-Suffolk will receive Nassau-Suffolk argues that the 2006 Act did not change its 16 status. It notes that all versions of the statute have 17 specifically used the term fiscal year when discussing 18 eligibility requirements, and that plaintiffs FY 2007 began on 19 October 1, 2006. 20 December 19, 2006. 21 their grandfather clause were still in force at the beginning 22 of FY 2007. 23 it was still protected by that clause and therefore qualified as 24 an EMA for FY 2007. The 2006 Act, however, was not enacted until Thus, the 1996 Amendments and specifically, Nassau-Suffolk contends that as of October 1, 2006, 9 1 When the grandfather clause was replaced more than two 2 months later by the 2006 Act, Nassau-Suffolk claims that it was 3 nevertheless saved because § 300ff-11(b) of the 2006 Act 4 continued its status as an EMA. 5 metropolitan area that is an eligible area for a fiscal year 6 continues to be an eligible area until it fails, for three 7 consecutive fiscal years, to meet the cumulative total in 8 subsection (a) and to have a cumulative total of 3000 living AIDS 9 cases. That subsection provides that a 42 U.S.C. § 300ff-11(b) (2006). Plaintiffs argue that 10 because Nassau-Suffolk was an eligible area for FY 2007 (pursuant 11 to the 1996 Amendments) and had more than 3000 living AIDS cases 12 in the last three fiscal years, it continue[d] to be an eligible 13 area entitled to funding until it failed to meet both of § 14 300ff-11(b) s conditions. 15 The district court sided with DHHS, finding that the 2006 16 Act essentially wiped the slate clean regarding the status of all 17 localities. 18 the 1996 Amendments controlled the determination of a 19 locality s status for FY 2007, notwithstanding the two-month lag 20 between the start of FY 2007 and the passage of the 2006 Act. 21 Under this view, Nassau-Suffolk never qualified as an EMA in FY 22 2007, and, as a result, § 300ff-11(b) of the 2006 Act could not 23 save Nassau-Suffolk s status. 24 view to be consistent with an excerpt of the legislative history The district court reasoned that the 2006 Act not The district court also found this 10 1 that states: EMAs that received funding in fiscal year 2006 but 2 were not eligible for tier one [as EMAs] in fiscal year 2007 3 would be added to the tier two category [as TGAs]. 4 No. 109-695, pt. B, at 6 (2006). 5 based on this interpretation of the statute, that Nassau-Suffolk 6 had failed to show a likelihood of success on the merits and 7 denied the injunction. 10 The district court concluded, Plaintiffs Nassau-Suffolk now appeal. DISCUSSION 8 9 H.R. Rep. I. Legal Standard When reviewing a district court s denial of a preliminary 11 injunction, we review the district court s legal holdings de novo 12 and its ultimate decision for abuse of discretion. 13 V.D. v. N.Y. City Bd. of Educ., 465 F.3d 503, 510 (2d Cir. 2006). 14 A party seeking a preliminary injunction in this circuit must 15 show: (1) irreparable harm in the absence of the injunction and 16 (2) either (a) a likelihood of success on the merits or (b) 17 sufficiently serious questions going to the merits to make them a 18 fair ground for litigation and a balance of hardships tipping 19 decidedly in the movant s favor. 20 F.3d 471, 476 (2d Cir. 2004). 21 seeks a preliminary injunction that will affect government action 22 taken in the public interest pursuant to a statutory or 23 regulatory scheme, the injunction should be granted only if the 24 moving party meets the more rigorous likelihood-of-success D.D. ex rel. NXIVM Corp. v. Ross Inst., 364 [W]hen, as here, the moving party 11 1 standard. 2 (internal quotation marks and citation omitted). 3 plaintiffs must establish a clear or substantial likelihood of 4 success on the merits. 5 (2d Cir. 2007) (internal quotation marks and citation omitted). 6 Because the district court denied plaintiffs injunction based on 7 the absence of a likelihood of success, we examine that ground. 8 II. 9 Wright v. Giuliani, 230 F.3d 543, 547 (2d Cir. 2000) That is, Sussman v. Crawford, 488 F.3d 136, 140 Plaintiffs Have Shown a Likelihood of Success on the Merits The outcome of this appeal turns on statutory 10 interpretation. Statutory construction is a holistic endeavor. 11 In interpreting statutes, this Court reads statutory language in 12 light of the surrounding language and framework of the statute. 13 Field Day, LLC v. County of Suffolk, 463 F.3d 167, 177 (2d Cir. 14 2006) (alteration, internal quotation marks, and citation 15 omitted); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 16 (1997) ( The plainness or ambiguity of statutory language is 17 determined by reference to the language itself, the specific 18 context in which that language is used, and the broader context 19 of the statute as a whole. ). 20 of the statute, the court must look to the particular statutory 21 language at issue, as well as the language and design of the 22 statute as a whole. 23 281, 291 (1988). In ascertaining the plain meaning K Mart Corp. v. Cartier, Inc., 486 U.S. 24 12 1 2 3 4 A. § 300ff-11(b) Applies to Metropolitan Areas That Qualified as EMAs for FY 2006 and Looks Back in Time To Determine Eligibility for the Current Fiscal Year 5 As we explain in detail below, the only way that all 6 sections of the 2006 Act can function harmoniously is if we 7 interpret § 300ff-11(b) as: (1) applying to metropolitan areas 8 including those such as Nassau-Suffolk that qualified as EMAs for 9 FY 2006 under the 1996 Amendments; and (2) looking back in time 10 to ascertain whether such localities have failed to meet both of 11 § 300ff-11(b) s requirements for three consecutive fiscal years. 12 This conclusion is supported by our determination that § 300ff- 13 11(b) cannot operate in a solely prospective manner, and by other 14 provisions of the statute. 1. 15 16 17 18 19 § 300ff-11(b) Applies to Metropolitan Areas that Qualified as EMAs for FY 2006 under the 1996 Amendments Section 300ff-11(b) is entitled Continued status as an 20 eligible area. 42 U.S.C. § 300ff-11(b). It provides that a 21 metropolitan area that is an eligible area for a fiscal year 22 continues to be an eligible area until the area fails both of 23 the section s requirements for three consecutive fiscal years. 24 Id. 25 Congress s intent that § 300ff-11(b) operate to determine if a 26 previously qualified EMA continues to qualify for EMA status in 27 the next fiscal year. 28 qualified as an EMA for FY 2006. The use of the phrase continued status indicates There is no question that Nassau-Suffolk 13 Thus, § 300ff-11(b) could 1 operate by determining its continued status for FY 2007. 2 maintains and the district court found, however, that § 300ff- 3 11(b) is simply inapplicable to previously qualified EMAs and 4 only applies to metropolitan areas that have qualified as EMAs 5 under the 2006 Act. 6 7 8 9 10 11 2. DHHS We now turn to this argument. The 2006 Act s Sunset Provision Persuades Us That the Solely Prospective Application of § 300ff11(b) Is Unlikely to Have Been What Congress Intended Section 300ff-11(a) of the 2006 Act sets the requirements 12 for initially determining a metropolitan area s eligibility for 13 EMA status. 14 area has more than 2000 AIDS cases reported to the CDC in the 15 most recent five-year period for which data are available, that 16 area qualifies as an EMA for the fiscal year. 17 300ff-11(a) (2006). 18 allows a qualified metropolitan area to continue its EMA status 19 until it fails both of two requirements for three consecutive 20 fiscal years: (1) subsection (a) s requirement of having more 21 than 2000 AIDS cases reported, and (2) the requirement that the 22 area cumulatively have at least 3000 living AIDS cases as of 23 December 31 of the most recent calendar year for which data are 24 available. Simply stated, it provides that if a metropolitan See 42 U.S.C. § As noted earlier, however, § 300ff-11(b) Id. § 300ff-11(b). 25 There is no question that, for FY 2007, Nassau-Suffolk 26 cannot meet the requirements of § 300ff-11(a) because it had only 27 1505 reported cases in the applicable five-year period. 14 But § 1 300ff-11(b) may nevertheless operate to continue Nassau-Suffolk s 2 EMA status because Nassau-Suffolk has not failed to meet the 3 second requirement of § 300ff-11(b) for three consecutive fiscal 4 years. 5 metropolitan areas like Nassau-Suffolk that qualified as EMAs for 6 FY 2006 under the 1996 Amendments but that cannot qualify under 7 the 2006 Act s initial eligibility provision as stated in § 8 300ff-11(a)? 9 The dispositive question is: does § 300ff-11(b) apply to DHHS maintains that the answer is no. We disagree. DHHS argues that § 300ff-11(b) is inapplicable to EMAs that 10 qualified prior to the 2006 Act because Congress intended that 11 provision to apply only prospectively. 12 300ff-11(b) only applies in subsequent fiscal years to determine 13 the continued eligibility of localities that qualified as EMAs 14 for FY 2007 under the 2006 Act. 15 Amendments, DHHS maintains that Nassau-Suffolk cannot benefit 16 from § 300ff-11(b) despite the fact that it did not fail the 17 second requirement and thus would otherwise have been eligible 18 for continued status. According to DHHS, § As a qualifier under the 1996 19 DHHS s argument is, however, significantly weakened by the 20 existence of the 2006 Act s sunset provision, which repeals the 21 Act effective October 1, 2009. 22 prospective amendment (2006). 23 provision renders DHHS s argument suspect for the following 24 reason. See 42 U.S.C. § 300ff-11, The application of the sunset Under DHHS s theory, an area that qualified as an EMA 15 1 for FY 2007 under § 300ff-11(a) of the 2006 Act would be eligible 2 for continued status under § 300ff-11(b). 3 DHHS, that subsection only applies prospectively, the agency 4 would have to wait at least three fiscal years from FY 2007 5 before it could determine whether the EMA met the two 6 requirements for continued status. 7 year in which the EMA could be shown to have failed both 8 requirements of § 300ff-11(b) would be FY 2010, which begins on 9 October 1, 2009. 10 Because, according to Thus, the earliest fiscal But the sunset provisions repeals the Act on that date. 11 Defendants interpretation of the statute would therefore, 12 in light of the sunset provision, tend to make § 300ff-11(b) 13 meaningless and superfluous.1 14 give effect, if possible, to every clause and word of a statute, 15 and to render none superfluous. 16 60, 64 (2d Cir. 2006) (alteration, internal quotation marks, and 17 citation omitted); see Trichilo v. Sec y of Health & Human 18 Servs., 823 F.2d 702, 706 (2d Cir. 1987) ( [W]e will not 19 interpret a statute so that some of its terms are rendered a 20 nullity. ); see also Acree v. Republic of Iraq, 370 F.3d 41, 56- 21 57 (D.C. Cir. 2004) (finding one party s interpretation 1 2 3 4 5 We are obliged[, however,] to 1 Tablie v. Gonzales, 471 F.3d It is, of course, possible that Congress passed the law expecting that it would be reenacted at the sunset date. But in the absence of any evidence to that effect, the existence of the sunset provision is an appropriate basis for preferring NassauSuffolk s reading of the law to that suggested by DHHS. 16 1 perplexing and bizarre when statute s sunset provision is 2 taken into account); cf. In re Eastport Assocs., 935 F.2d 1071, 3 1080 (9th Cir. 1991) (stating that party s argument that one 4 interpretation would render some of statute s provisions 5 surplusage because of the effect of a sunset provision has merit 6 as a matter of general statutory interpretation, but finding 7 that retroactivity concerns outweighed this consideration). 8 In the absence of clear support in the statute or 9 legislative history for DHHS s interpretation, we are persuaded 10 that the better interpretation is that § 300ff-11(b) fully 11 applies to a locality, like Nassau-Suffolk, that failed to meet 12 the initial eligibility requirement of § 300ff-11(a) but 13 previously qualified as an EMA for FY 2006. 14 locality then remains eligible for funding until it has failed 15 both of § 300ff-11(b) s requirements for three consecutive fiscal 16 years, which may include the years immediately preceding FY 2007. 17 This interpretation, unlike that proposed by DHHS, gives meaning 18 to all provisions of the 2006 Act. 19 interpretation leads to the conclusion that Nassau-Suffolk 20 retained its EMA status because, by virtue of having at least 21 3000 living AIDS cases in the relevant period, it did not fail 22 the second part of § 300ff-11(b) s two-part test. 23 24 25 26 B. The qualified And in the instant case, our Other Provisions of the 2006 Act Support Our Interpretation That Continued Eligibility Is Determined by Looking Back 17 1 Other provisions of the 2006 Act also illustrate the 2 soundness of our interpretation. As stated earlier, § 300ff-19 3 governs eligibility for the new TGA category. 4 300ff-19 (2006). 5 eligibility requirement; it grants TGA status to any metropolitan 6 area with a cumulative total of less than 2000 but more than 1000 7 AIDS cases reported to the CDC for the most recent five-year 8 period for which data are available. 9 like § 300ff-11, § 300ff-19 goes further and provides for See 42 U.S.C. § Like § 300ff-11, § 300ff-19 has an initial Id. § 300ff-19(b). And 10 continued TGA status under certain circumstances. See id. § 11 300ff-19(c)(2). 12 metropolitan area that qualifies as a TGA in a fiscal year 13 continues to qualify as a TGA until it fails both of two 14 requirements for three consecutive fiscal years: (1) the initial 15 eligibility requirement of having between 1000 and 2000 reported 16 AIDS cases, and (2) the requirement that the metropolitan area 17 have a cumulative total of 1500 or more living AIDS cases 18 reported to the CDC as of December 31 of the most recent calendar 19 year for which such data are available. Section 300ff-19(c)(2) states that a Id. 20 But unlike § 300ff-11, § 300ff-19 specifically addresses the 21 case of a metropolitan area that received funding for FY 2006 but 22 failed to qualify for FY 2007 as an EMA under § 300ff-11, or as a 23 transitional area under § 300ff-19(b). 24 creates a safety valve for such a locality, providing that the 18 Section 300ff-19(c)(1) 1 area shall, notwithstanding subsection (b), be considered a 2 transitional area. 3 Id. § 300ff-19(c)(1). DHHS argues that our interpretation that § 300ff-11(b) is 4 backward-looking would render § 300ff-19(c)(1) meaningless. 5 Under our interpretation, DHHS claims, if § 300ff-11(b) applies 6 to metropolitan areas like Nassau-Suffolk, § 300ff-19(c)(1) is 7 rendered superfluous it would never be applied to qualify a 8 locality as a TGA. 9 therefore violates Congress s clear intent because § 300ff- DHHS contends that our interpretation 10 19(c)(1) was included to provide funding to those localities that 11 would lose EMA status under the 2006 Act. 12 Although we agree that Congress did indeed enact § 300ff- 13 19(c)(1) to save certain localities funding, we disagree that 14 our interpretation renders § 300ff-19(c)(1) meaningless. 15 our interpretation, subsection (c)(1) still operates, as 16 intended, to save localities funding under certain 17 circumstances. 18 maximum number of reported AIDS cases for a locality to qualify 19 for TGA status. 20 least 1000 reported cases (and no more than 2000) for a locality 21 to qualify for TGA status. 22 qualified as an EMA for FY 2006 under the 1996 Amendments 23 grandfather clause, but failed to qualify for continued EMA 24 status in FY 2007 because it could not meet both requirements of Under Notably, § 300ff-19(c)(1) contains no minimum or Section 300ff-19(b), by contrast, requires at Thus, a metropolitan area that 19 1 § 300ff-11(b), could not qualify for TGA status under § 300ff- 2 19(b) if it had fewer than 1000 reported AIDS cases. 3 locality, however, could qualify for TGA status under § 300ff- 4 19(c)(1). 5 effectuate Congress s intent and save the locality s funding 6 where another provision of the Act could not do so; our 7 interpretation therefore has no adverse effect on the operability 8 of § 300ff-19(c)(1). 9 10 11 12 C. That same In this circumstance, § 300ff-19(c)(1) would The Legislative History Does Not Support the District Court s Interpretation Under the district court s interpretation, [i]n December 13 2006, Congress re-defined what an EMA is: a locality with more 14 than 2000 reported cases of AIDS for the most recent 5-year 15 period. 16 was not an EMA. . . . 17 believed that Congress intended to wipe the slate clean with the 18 2006 Act; a locality either qualified as an EMA for FY 2007 under 19 § 300ff-11(a) or it did not qualify at all. 20 event, § 300ff-19(c)(1) would operate to save some of the 21 locality s funding by granting it TGA status. 22 district court s interpretation, as of December 2006, only 23 localities that had over 2000 AIDS cases reported to the CDC over 24 the preceding five-year period for which such data are available 25 would qualify as EMAs for FY 2007. 26 qualify as TGAs either under § 300ff-19(b) because they had over Nassau-Suffolk only had 1505. Therefore, Nassau-Suffolk In other words, the district court 20 And in the latter Thus, under the All other localities would 1 1000 AIDS reports over the preceding five-year period, or under § 2 300ff-19(c)(1) s safety provision because they had received 3 funding for FY 2006. 4 The district court found support for its interpretation in 5 two statements from the legislative history of the 2006 Act. 6 However, those statements, without more, do not justify the 7 district court s view. 8 Congress had spoken specifically to the situation [the] 9 Plaintiffs are in. First, the district court found that The district court noted that the 10 legislative history contained the statement: EMAs that received 11 funding in fiscal year 2006 but were not eligible for tier one 12 [i.e., EMA status] in fiscal year 2007 would be added to the tier 13 two category [i.e., TGA status]. 14 at 6. 15 just as easily as it does the district court s interpretation. 16 As discussed in Part II.B, Congress could have been referring to 17 grandfathered localities with fewer than 1000 reported AIDS cases 18 that would not receive any funding for FY 2007 but for the 19 protection of § 300ff-19(c)(1). 20 H.R. Rep. No. 109-695, pt. B, But this excerpt supports the plaintiffs interpretation And such localities could present a real concern. Under the 21 1996 Amendments, grandfathered EMAs that did not meet the two 22 requirements of § 300ff-11(b) had received funding for nearly a 23 decade regardless of how many (or how few) AIDS cases they had. 24 The 2006 Act likely seeks to strike a balance by cutting off 21 1 funding to localities with the lowest AIDS rates while at the 2 same time providing safety valves and reduced funding to 3 localities that may have low, but still significant, rates. 4 Specifically, for previously grandfathered localities that 5 received funding for many years prior to the 2006 Act despite 6 having fewer than 1000 AIDS cases over the last five years, 7 Congress provided a one-year safety valve in the form of § 300ff- 8 19(c)(1). 9 effect more than two months after the beginning of the fiscal This makes good sense because the 2006 Act went into 10 year, at a time when the localities had likely already budgeted 11 for the funding. 12 Congress also made clear that funding would not continue in 13 FY 2008 unless the area qualified under one of the 2006 Act s 14 other provisions. 15 drafted § 300ff-11(b) to ensure that funding would continue as 16 long as the locality continued to meet that provision s 17 requirements. 18 Congress was only concerned with reducing the funding of 19 localities in the specific situation of Nassau-Suffolk. 20 The district court s other purported basis for its For localities like Nassau-Suffolk, Congress Nothing in the legislative history indicates that 21 interpretation is that Congress stated that eligibility would be 22 granted immediately upon crossing the threshold criteria. 23 But Congress also went on to state that if there was a declining 24 number of AIDS cases, eligibility would be maintained for three 22 Id. 1 consecutive fiscal years. 2 locality s qualification for, not disqualification from, the 3 program. 4 eligible for funding was important because Congress had now 5 created the new TGA category under which certain localities that 6 had never before qualified as EMAs could now receive funding as 7 TGAs. 8 shed light on the issue here. 9 from the legislative history indicates that Congress intended to 10 provide for certain protections in the case of declining numbers 11 of AIDS cases. 12 eligibility. 13 Id. Thus, immediately refers to a And the fact that localities could immediately become The use of the word immediately therefore does little to Moreover, the last sentence quoted Congress did not intend to immediately cease In sum, we find that our interpretation, which results in 14 Nassau-Suffolk s continued EMA status, allows all of the 2006 15 Act s provisions to retain meaning and function harmoniously and 16 is consistent with congressional intent as expressed in the 2006 17 Act and its comments. 18 established a likelihood of success on the merits. CONCLUSION 19 20 We therefore hold that Nassau-Suffolk has For the foregoing reasons, the judgment below is REVERSED 21 and the case REMANDED to the district court for further 22 proceedings consistent with this opinion. 23 are DISMISSED as moot. 23 Any pending motions

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