07-0825-cv
Nassau v. Leavitt
1
2
3 UNITED STATES COURT OF APPEALS
4 FOR THE SECOND CIRCUIT
5
6 August Term 2007
7 (Argued: September 6, 2007 Decided: April 25, 2008)
8 Docket No. 07-0825-cv
9 -----------------------------------------------------x
10 COUNTY OF NASSAU, NEW YORK, COUNTY OF SUFFOLK, NEW
11 YORK, FEDERATION EMPLOYMENT AND GUIDANCE SERVICES,
12 INC., LONG ISLAND MINORITY AIDS COALITION, INC.,
13 THURSDAY’S CHILD, INC., TRACI BOWMAN, MIRIAM SPAIER,
14 JEROME KNIGHT, DONNA UYSAL,
15
16 Plaintiffs-Appellants,
17
18 -- v. --
19
20 MICHAEL O. LEAVITT, IN HIS OFFICIAL CAPACITY AS
21 SECRETARY OF HEALTH AND HUMAN SERVICES OF THE UNITED
22 STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
23 ELIZABETH M. DUKE, IN HER OFFICIAL CAPACITY AS
24 ADMINISTRATOR FOR THE HEALTH RESOURCES AND SERVICES
25 ADMINISTRATION OF THE UNITED STATES DEPARTMENT OF
26 HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT
27 OF HEALTH AND HUMAN SERVICES,
28
29 Defendants-Appellees.
30
31 -----------------------------------------------------x
32
33 B e f o r e : WALKER, CALABRESI, and SACK, Circuit Judges.
34
35 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. In so
4 ruling, the district court found that plaintiffs had not shown a
5 likelihood of success on the merits of their action. We disagree
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 PETER J. CLINES, Deputy County
12 Attorney (Lorna G. Goodman, County
13 Attorney, on the brief), Mineola,
14 N.Y., for Plaintiffs-Appellants.
15
16 THOMAS A. MCFARLAND, Assistant
17 United States Attorney (Varuni
18 Nelson, Assistant United States
19 Attorney, of counsel on the brief),
20 for Benton J. Campbell, United
21 States Attorney for the Eastern
22 District of New York, New York,
23 N.Y., for Defendants-Appellees.
24
25 JOHN M. WALKER, JR., Circuit Judge:
26 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. We find that plaintiffs
9 have shown a likelihood of success on the merits. 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.
13 BACKGROUND
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. See 42 U.S.C. § 300ff (1991). The 1990
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. The purpose
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
3
1 systems for the delivery of essential services to individuals and
2 families with HIV disease.” Id. The County plaintiffs were
3 among the recipients of this funding.
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. Under the 1990 Act,
17 areas selected for funding were deemed “Eligible Metropolitan
18 Areas” (“EMAs”). See 42 U.S.C. § 300ff-11(a) (1991). For a
19 locality to qualify as an EMA in a given fiscal year, the 1990
20 Act set forth the following requirements:
21 (1) there has been reported to and confirmed by the
22 Director of the Centers for Disease Control [CDC] a
23 cumulative total of more than 2,000 cases of acquired
24 immune deficiency syndrome [within the locality]; or
25 (2) the per capita incidence of cumulative cases of
26 such syndrome (computed on the basis of the most
27 recently available data on the population of the area)
28 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. The 1996 Amendments
4 The 1996 Amendments established different eligibility
5 requirements, stating in pertinent part:
6 (a) Eligible areas
7 The Secretary . . . shall, subject to subsections
8 (b) through (d) of this section, make grants . . . [to]
9 any metropolitan area for which there has been reported
10 to the Director of the [CDC] a cumulative total of more
11 than 2,000 cases of [AIDS] for the most recent period
12 of 5 calendar years for which such data are available.
13
14 (b) Requirements regarding confirmation of cases
15 . . .
16
17 (c) Requirements regarding population
18 . . .
19
20 (d) Continued status as eligible area
21 Notwithstanding any other provision of this
22 section, a metropolitan area that was an eligible area
23 under this part for fiscal year 1996 is an eligible
24 area for fiscal year 1997 and each subsequent fiscal
25 year.
26
27 42 U.S.C. § 300ff-11 (1997). The 1996 Amendments thus provided a
28 “grandfather clause” that protected the future funding of all
29 EMAs that had qualified for funding in fiscal year 1996.
30 C. The 2006 Act
31 The 2006 Act again amended the standards under which areas
32 could qualify for funding. It provides:
33 (a) Eligible areas
34 The Secretary . . . shall, subject to subsections
35 (b) through (c) of this section, make grants . . . [to]
36 any metropolitan area for which there has been reported
37 to the Director of the [CDC] a cumulative total of more
5
1 than 2,000 cases of [AIDS] for the most recent period
2 of 5 calendar years for which such data are available.
3
4 (b) Continued status as eligible area
5 Notwithstanding any other provision of this
6 section, a metropolitan area that is an eligible area
7 for a fiscal year continues to be an eligible area
8 until the metropolitan area fails, for three
9 consecutive fiscal years—
10
11 (1) to meet the requirements of subsection (a) of this
12 section; and
13
14 (2) to have a cumulative total of 3,000 or more living
15 cases of AIDS (reported to and confirmed by the
16 Director of the [CDC]) as of December 31 of the most
17 recent calendar year for which such data is available.
18
19 42 U.S.C. § 300ff-11(a)-(b) (2006). The effect, therefore, of
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 The 2006 Act also provided for a new category of areas that
31 would receive reduced funding compared to EMAs. A metropolitan
32 area could qualify as a “Transitional Grant Area” (“TGA”) as
33 follows:
6
1 (b) Transitional areas
2 For purposes of this section, the term
3 “transitional area” means, subject to subsection (c) of
4 this section, a metropolitan area for which there has
5 been reported to and confirmed by the Director of the
6 [CDC] a cumulative total of at least 1,000, but fewer
7 than 2,000, cases of AIDS during the most recent period
8 of 5 calendar years for which such data are available.
9
10 (c) Certain eligibility rules
11
12 (1) Fiscal year 2007
13 With respect to grants under subsection (a)
14 of this section for fiscal year 2007, a
15 metropolitan area that received funding under
16 subpart I [42 U.S.C. § 300ff-11] for fiscal year
17 2006 but does not for fiscal year 2007 qualify
18 under such subpart as an eligible area and does
19 not qualify under subsection (b) of this section
20 as a transitional area shall, notwithstanding
21 subsection (b) of this section, be considered a
22 transitional area.
23
24 (2) Continued status as transitional area
25 (A) In general. Notwithstanding subsection
26 (b) of this section, a metropolitan area that is a
27 transitional area for a fiscal year continues,
28 except as provided in subparagraph (B), to be a
29 transitional area until the metropolitan area
30 fails, for three consecutive fiscal years—
31
32 (i) to qualify under such subsection as a
33 transitional area; and
34 (ii) to have a cumulative total of 1,500 or
35 more living cases of AIDS (reported to and
36 confirmed by the [CDC]) as of December 31 of
37 the most recent calendar year for which such
38 data is available.
39
40 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. Furthermore, TGAs would enjoy analogous
43 protections from the loss of funding that EMAs enjoyed.
44 II. 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. Under that 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. 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)). Nassau-Suffolk’s continued
13 status as an EMA, however, became the subject of dispute with the
14 passage of the 2006 Act.
15 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. Nassau-
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. Nassau-Suffolk also moved for a
23 temporary restraining order and preliminary injunction requesting
24 the district court to enjoin defendants from downgrading Nassau-
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. It contends that Nassau-Suffolk failed to
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. DHHS argues further that § 300ff-11(b), which provides
9 that an area that is eligible for a fiscal year generally
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. DHHS claims, however, that Nassau-Suffolk will receive
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 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. The 2006 Act, however, was not enacted until
20 December 19, 2006. Thus, the 1996 Amendments – and specifically,
21 their grandfather clause – were still in force at the beginning
22 of FY 2007. Nassau-Suffolk contends that as of October 1, 2006,
23 it was still protected by that clause and therefore qualified as
24 an EMA for FY 2007.
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. That subsection provides that “a
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. 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. The district court reasoned that the 2006 Act – not
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. The district court also found this
24 view to be consistent with an excerpt of the legislative history
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].” H.R. Rep.
4 No. 109-695, pt. B, at 6 (2006). The district court concluded,
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. Plaintiffs Nassau-Suffolk now appeal.
8 DISCUSSION
9 I. Legal Standard
10 “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.” D.D. ex rel.
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.” NXIVM Corp. v. Ross Inst., 364
20 F.3d 471, 476 (2d Cir. 2004). “[W]hen, as here, the moving party
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
11
1 standard.” Wright v. Giuliani, 230 F.3d 543, 547 (2d Cir. 2000)
2 (internal quotation marks and citation omitted). “That is,
3 plaintiffs must establish a clear or substantial likelihood of
4 success on the merits.” Sussman v. Crawford, 488 F.3d 136, 140
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. Plaintiffs Have Shown a Likelihood of Success on the Merits
9 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.”). “In ascertaining the plain meaning
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.” K Mart Corp. v. Cartier, Inc., 486 U.S.
23 281, 291 (1988).
24
12
1 A. § 300ff-11(b) Applies to Metropolitan Areas That
2 Qualified as EMAs for FY 2006 and Looks Back in Time To
3 Determine Eligibility for the Current Fiscal Year
4
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.
15 1. § 300ff-11(b) Applies to Metropolitan Areas that
16 Qualified as EMAs for FY 2006 under the 1996
17 Amendments
18
19 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. The use of the phrase “continued status” indicates
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. There is no question that Nassau-Suffolk
28 qualified as an EMA for FY 2006. Thus, § 300ff-11(b) could
13
1 operate by determining its “continued” status for FY 2007. DHHS
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. We now turn to this argument.
6 2. The 2006 Act’s Sunset Provision Persuades Us That
7 the Solely Prospective Application of § 300ff-
8 11(b) Is Unlikely to Have Been What Congress
9 Intended
10
11 Section 300ff-11(a) of the 2006 Act sets the requirements
12 for initially determining a metropolitan area’s eligibility for
13 EMA status. Simply stated, it provides that if a metropolitan
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. See 42 U.S.C. §
17 300ff-11(a) (2006). As noted earlier, however, § 300ff-11(b)
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. 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. But §
14
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. The dispositive question is: does § 300ff-11(b) apply to
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)? DHHS maintains that the answer is no. We disagree.
9 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. According to DHHS, §
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. As a qualifier under the 1996
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.
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. See 42 U.S.C. § 300ff-11,
22 prospective amendment (2006). The application of the sunset
23 provision renders DHHS’s argument suspect for the following
24 reason. 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). Because, according to
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. Thus, the earliest fiscal
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. But the sunset provisions repeals the Act on
10 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 “We are obliged[, however,] to
14 give effect, if possible, to every clause and word of a statute,
15 and to render none superfluous.” Tablie v. Gonzales, 471 F.3d
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
1 It is, of course, possible that Congress passed the law
2 expecting that it would be reenacted at the sunset date. But in
3 the absence of any evidence to that effect, the existence of the
4 sunset provision is an appropriate basis for preferring Nassau-
5 Suffolk’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. The qualified
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. And in the instant case, our
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 B. Other Provisions of the 2006 Act Support Our
24 Interpretation That Continued Eligibility Is Determined
25 by Looking Back
26
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. See 42 U.S.C. §
4 300ff-19 (2006). Like § 300ff-11, § 300ff-19 has an initial
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. Id. § 300ff-19(b). And
9 like § 300ff-11, § 300ff-19 goes further and provides for
10 continued TGA status under certain circumstances. See id. §
11 300ff-19(c)(2). Section 300ff-19(c)(2) states that a
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. 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). Section 300ff-19(c)(1)
24 creates a safety valve for such a locality, providing that the
18
1 area “shall, notwithstanding subsection (b), be considered a
2 transitional area.” Id. § 300ff-19(c)(1).
3 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. DHHS contends that our interpretation
9 therefore violates Congress’s clear intent because § 300ff-
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. Under
15 our interpretation, subsection (c)(1) still operates, as
16 intended, to save localities’ funding under certain
17 circumstances. Notably, § 300ff-19(c)(1) contains no minimum or
18 maximum number of reported AIDS cases for a locality to qualify
19 for TGA status. Section 300ff-19(b), by contrast, requires at
20 least 1000 reported cases (and no more than 2000) for a locality
21 to qualify for TGA status. Thus, a metropolitan area that
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
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. That same
3 locality, however, could qualify for TGA status under § 300ff-
4 19(c)(1). In this circumstance, § 300ff-19(c)(1) would
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 C. The Legislative History Does Not Support the District
10 Court’s Interpretation
11
12 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. Nassau-Suffolk only had 1505. Therefore, Nassau-Suffolk
16 was not an EMA. . . .” In other words, the district court
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. And in the latter
20 event, § 300ff-19(c)(1) would operate to save some of the
21 locality’s funding by granting it TGA status. Thus, under the
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. All other localities would
26 qualify as TGAs either under § 300ff-19(b) because they had over
20
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. First, the district court found that
8 Congress had spoken “specifically to the situation [the]
9 Plaintiffs are in.” 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].” H.R. Rep. No. 109-695, pt. B,
14 at 6. But this excerpt supports the plaintiffs’ interpretation
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 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). This makes good sense because the 2006 Act went into
9 effect more than two months after the beginning of the fiscal
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. For localities like Nassau-Suffolk, Congress
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. Nothing in the legislative history indicates that
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
21 interpretation is that Congress stated “that eligibility would be
22 granted immediately upon crossing the threshold criteria.” Id.
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
1 consecutive fiscal years.” Id. Thus, “immediately” refers to a
2 locality’s qualification for, not disqualification from, the
3 program. And the fact that localities could immediately become
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. The use of the word “immediately” therefore does little to
8 shed light on the issue here. Moreover, the last sentence quoted
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. Congress did not intend to “immediately” cease
12 eligibility.
13 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. We therefore hold that Nassau-Suffolk has
18 established a likelihood of success on the merits.
19 CONCLUSION
20 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. Any pending motions
23 are DISMISSED as moot.
23