1

07

-0825

-cv Nassauv. 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 25ADMINISTRATION 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 United2 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 6with 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 Administrator3 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 6plaintiffs’ 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 18Act was modified on May 20, 1996 by the Ryan White CARE Act 19Amendments 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 efficient4 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 9plaintiffs. 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 16which localities would qualify for funding. Under the 1990 Act, 17 areas selected for funding were deemed “Eligible Metropolitan 18Areas” (“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 20Act 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 0.0025.5 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 more6 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 26which data are available, and (2) the requirement that the 27 metropolitan area have a cumulative total of 3000 or more living 28AIDS cases as of December 31 of the most recent calendar year for 29which 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:7 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’ Funding8 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. Nassau20 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-9 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 Nassau11 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 2007.10 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 5metropolitan 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 16Act 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 history11 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. 13V.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-success12 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). 2413 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 § 300ff13 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 26previously 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) could14 1 operate by determining its “continued” status for FY 2007. DHHS 2 maintains and the district court found, however, that § 300ff3 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 § 300ff8 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 15most 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 §15 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 5metropolitan 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 15Amendments, 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 21Act 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 EMA1 It is, of course, possible that Congress passed the law 1 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 Nassau5 Suffolk’s reading of the law to that suggested by DHHS. 16 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) 13meaningless and superfluous.“We are obliged[, however,] to 1 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 interpretation17 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 2618 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 16AIDS 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 the19 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 § 300ff10 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 § 300ff13 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 of20 1 § 300ff-11(b), could not qualify for TGA status under § 300ff2 19(b) if it had fewer than 1000 reported AIDS cases. That same 3 locality, however, could qualify for TGA status under § 300ff4 19(c)(1). In this circumstance, § 300ff-19(c)(1) would 5 effectuate Congress’s intent and save the locality’s funding 6where 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 16was 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 over21 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. 16As 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 19protection 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 off22 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 § 300ff8 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 three23 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 15Act’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.