1

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
2

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
3

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
4

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. 
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 more
6

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:
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’ Funding
8

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

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
11

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
12

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
13

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

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
14

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

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 §
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

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
1 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)

13 meaningless 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 interpretation
17

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
18

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
19

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 of
20

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

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
21

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
22

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 three
23

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.