09-3193-cv County of Nassau, NY v. Leavitt
1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7 August Term, 2009 8 9 (Argued: April 19, 2010 Decided: May 24, 2010) 10 11 Docket No. 09-3193-cv 12 13 14 C OUNTY OF S UFFOLK, N EW Y ORK, F EDERATION E MPLOYMENT AND G UIDANCE 15 S ERVICES, I NC., L ONG I SLAND M INORITY A IDS C OALITION, I NC., T HURSDAY’ S 16 C HILD, I NC., T RACI B OWMAN, M IRIAM S PAIER, J EROME K NIGHT, and D ONNA 17 U YSAL, 18 19 Plaintiffs, 20 21 C OUNTY OF N ASSAU, N EW Y ORK, 22 23 Plaintiff-Appellant, 24 25 –v.– 26 27 K ATHLEEN S EBELIUS, in her official capacity as Secretary of 28 Health and Human Services of the United States Department of 29 Health and Human Services, M ARY W AKEFIELD, Ph.D., R.N., in her 30 official capacity as Administrator for the Health Resources 31 and Services Administration of the United States Department 32 of Health and Human Services, and U NITED S TATES D EPARTMENT OF 33 H EALTH AND H UMAN S ERVICES, 34 35 Defendants-Appellees. * 36 37 38
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The Clerk of the Court is respectfully directed to amend the official caption of this action to conform to the caption of this opinion.
1 Before: C ABRANES, W ESLEY, and L IVINGSTON, Circuit Judges. 2 3 Appeal from a May 22, 2009 order of the United States 4 District Court for the Eastern District of New York 5 (Seybert, J.), which dismissed plaintiffs’ claims as moot. 6 We hold that, because the congressional appropriations at 7 issue have been exhausted by the federal agency named as a 8 defendant in this action, no justiciable Article III 9 controversy remains. 10 11 A FFIRMED. 12 13 14 15 P ETER J. C LINES, (Rosanne M. Harvey, on the brief), 16 Deputy County Attorneys, for Lorna B. Goodman, 17 County Attorney, County of Nassau, Mineola, 18 NY, for Plaintiff-Appellant. 19 20 T HOMAS A. M CF ARLAND, (Varuni Nelson, of counsel), 21 Assistant United States Attorneys, for Benton 22 J. Campbell, United States Attorney, Eastern 23 District of New York, Central Islip, NY, for 24 Defendants-Appellees. 25 26 27 28 W ESLEY, Circuit Judge:
29 In this action brought pursuant to § 702 of the 30 Administrative Procedure Act, plaintiffs seek additional 31 funding for fiscal years (“FYs”) 2007 and 2008 from a grant 32 program administered by the Department of Health and Human 33 Services (“HHS”) pursuant to the Ryan White HIV/AIDS 34 Treatment Modernization Act of 2006. In a previous appeal 35 relating to plaintiffs’ application for a preliminary
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1 injunction, we held that they had demonstrated a likelihood 2 of success on the merits. On remand, defendants moved to 3 dismiss plaintiffs’ claims, arguing that HHS had awarded the 4 funds at issue to other grant recipients. The district 5 court verified that the pertinent congressional 6 appropriations had, in fact, been exhausted, and held that 7 plaintiffs’ claims are moot. 8 Despite the seemingly harsh result, we agree with the 9 district court. Obliged, as we are, to avoid issuing 10 advisory opinions, our authority is limited to “live” cases 11 in which there remains a possibility that the court can 12 grant some form of effectual relief. In an action such as 13 this one, the scope of available relief is bookended by the 14 government’s sovereign immunity, on the one hand, and the 15 Appropriations Clause of the Constitution, on the other. 16 Where, as here, the congressional appropriations relating to 17 the funds sought by private litigants have been lawfully 18 distributed — and therefore exhausted — by a federal agency, 19 courts lack authority to grant effectual relief in the 20 context of an Article III case or controversy. Under such 21 circumstances, any decision on the ultimate merits of the 22 dispute would be merely advisory, and the claims at issue
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1 are moot. Accordingly, we affirm. 2 I. BACKGROUND 3 Congress passed the Ryan White Comprehensive AIDS 4 Resources Emergency Act of 1990 (the “Ryan White Act,” or 5 the “Act”), Pub. L. No. 101-381, 104 Stat. 576, in order to 6 make funding available for the development and 7 administration of “cost efficient systems for the delivery 8 of essential services to individuals and families with HIV 9 disease.” 42 U.S.C. § 300ff. 1 Part A of the Act, titled 10 “Emergency Relief for Areas with Substantial Need for 11 Services,” directed HHS to award grants to localities that 12 qualified as “Eligible Metropolitan Areas,” or “EMAs.” Pub. 13 L. No. 101-381, pt. A, § 2601, 104 Stat. at 576; see also 42 14 U.S.C. § 300ff-11 (1991) (original definition of “EMA”). 15 HHS awarded grants to New York’s Nassau and Suffolk Counties 16 (“Nassau-Suffolk”) as a single EMA in each year through FY 17 2006. 18 Fiscal year 2007 began on October 1, 2006. Almost 19 three months later, on December 19, 2006, Congress amended
1 Unless otherwise noted, all statutory citations are to the current version of the U.S. Code. For additional discussion of the amendments to the Ryan White Act and the history of plaintiffs’ grant funding, see County of Nassau, N.Y. v. Leavitt, 524 F.3d 408, 411-13 (2d Cir. 2008).
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1 the Ryan White Act by creating a second category of funding- 2 eligible entities, referred to as “Transitional Grant Areas” 3 or “TGAs,” which were to receive less funding than EMAs. 4 Ryan White HIV/AIDS Treatment Modernization Act of 2006, 5 Pub. L. No. 109-415, § 107, 120 Stat. 2767, 2781; see also 6 42 U.S.C. § 300ff-19. The amendments took effect in FY 2007 7 and contained a sunset provision that repealed the Act 8 effective October 1, 2009. See County of Nassau, N.Y. v. 9 Leavitt, 524 F.3d 408, 416 (2d Cir. 2008). 2 10 HHS typically begins to notify recipients of grants 11 under Part A of the Ryan White Act on March 1 of each fiscal 12 year. With respect to FY 2007, however, the agency informed 13 Nassau-Suffolk on February 12, 2007 that it would be 14 classified as a TGA, rather than an EMA, based on the 2006 15 amendments to the Act. On February 27, 2007, a group of 16 plaintiffs that included Nassau-Suffolk commenced this 17 action to challenge HHS’s decision pursuant to § 702 of the 18 Administrative Procedure Act (“APA”), 5 U.S.C. § 702. 3
2 Congress revived the Ryan White Act grant program on October 31, 2009 by enacting the Ryan White HIV/AIDS Treatment Extension Act of 2009, Pub. L. No. 111-87, 123 Stat. 2885.
3 In addition to Nassau and Suffolk Counties, the plaintiffs in the district court included private entities
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1 Plaintiffs argued that HHS had incorrectly classified 2 Nassau-Suffolk as a TGA, and sought declaratory and 3 injunctive relief directing the agency to return the entity 4 to the EMA funding category. The district court denied 5 plaintiffs’ application for a preliminary injunction on 6 March 1, 2007. County of Nassau, N.Y. v. Leavitt, No. 07 7 Civ. 816, 2007 WL 708321, at *4 (E.D.N.Y. Mar. 1, 2007). 8 Following that decision, plaintiffs filed an 9 interlocutory appeal with this Court, see 28 U.S.C. § 10 1292(a)(1), as well as a motion for an injunction pending 11 appeal, see Fed. R. App. P. 8. 4 We denied the motion for 12 injunctive relief on May 4, 2007. Almost a year later, 13 however, we reversed the district court and held that 14 plaintiffs had established a likelihood of success on the 15 merits of their claims. See Leavitt, 524 F.3d at 419.
in those counties that use Ryan White Act funds to administer HIV- and AIDS-related services, as well as individuals who utilize those services. Although only Nassau County filed a notice of appeal in this action, we use the plural form, “plaintiffs,” for purposes of clarity.
4 In plaintiffs’ motion for an injunction pending their appeal, they did not argue that irreparable harm was threatened by the possibility that HHS would exhaust the appropriations at issue. (See Decl. in Support of Plaintiffs-Appellants Mot. for an Expedited Appeal at 5-10, County of Nassau, N.Y. v. Leavitt, No. 07-0825-cv (2d Cir.
Mar. 14, 2007).)
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1 On remand, HHS conceded that Nassau-Suffolk was to be 2 funded as an EMA in FY 2009, but defendants moved to dismiss 3 plaintiffs’ claims relating to FYs 2007 and 2008 as moot. 4 Defendants’ argument was simple: no relief was available 5 because HHS had distributed the funds that were appropriated 6 by Congress for those fiscal years to other EMAs. The 7 district court expressed concern about the “extreme 8 consequences of holding that Plaintiffs’ claims for the 2007 9 and 2008 fiscal years are moot,” and it denied the motion 10 without prejudice in order to examine whether HHS had, in 11 fact, exhausted the appropriations for FYs 2007 and 2008. 12 Defendants then submitted an April 16, 2009 declaration 13 from Douglas H. Morgan, the director of the HHS division 14 that administers the grant program. The affidavit stated 15 that, with respect to FYs 2007 and 2008, “[n]o remaining . . 16 . funds appropriated by Congress . . . are available for 17 obligation by HHS.” Based on that submission, the district 18 court dismissed plaintiffs’ claims as moot, reasoning that 19 it “lack[ed] authority” to “create . . . special funding or 20 re-organize their scheduled distributions for the upcoming 21 years.”
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1 II. DISCUSSION 2 We review de novo the district court’s conclusion that 3 plaintiffs’ claims are moot. N.Y. Civil Liberties Union v. 4 Grandeau, 528 F.3d 122, 128 (2d Cir. 2008). On appeal, 5 plaintiffs mount a two-front attack on the lower court’s 6 decision. First, they argue that “the absence of funding 7 did not absolve the government of its statutory obligations” 8 under the Ryan White Act, and that the district court “still 9 had the authority and power to enter a judgment declaring 10 [defendants] liable for the additional Ryan White [Act] 11 funds that should have been awarded” in FYs 2007 and 2008. 12 Second, plaintiffs contend that the district court also 13 erred by holding that they could not seek compensation from 14 the appropriation created by the Judgment Fund, 31 U.S.C. § 15 1304(a). At bottom, however, both of these arguments fail 16 to account for the limitations on this action resulting from 17 the federal government’s sovereign immunity and the 18 Appropriations Clause. Accordingly, for the reasons set 19 forth below, we hold that plaintiffs’ claims are moot. 20 Article III of the Constitution limits federal courts’ 21 authority — that is, our subject matter jurisdiction — to 22 disputes involving “live cases and controversies.” United
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1 States v. Quattrone, 402 F.3d 304, 308 (2d Cir. 2005). A 2 number of justiciability doctrines govern the contours of 3 this power; pertinent here is mootness, which concerns when 4 and whether a case is “live.” Specifically, under the 5 “general rule” of mootness, courts’ subject matter 6 jurisdiction ceases when “an event occurs during the course 7 of the proceedings or on appeal ‘that makes it impossible 8 for the court to grant any effectual relief whatever to a 9 prevailing party.’” Id. (quoting Church of Scientology v. 10 United States, 506 U.S. 9, 12 (1992)). 5 11 An understanding of why plaintiffs’ claims are moot 12 requires an understanding of the scope of the relief that 13 was available to them in the first instance in this action 14 against HHS and federal employees in their official 15 capacities. Absent an “unequivocally expressed” statutory 16 waiver, the United States, its agencies, and its employees 17 (when functioning in their official capacities) are immune 18 from suit based on the principle of sovereign immunity.
5 Although there is an exception to this “general rule”
where a dispute is “capable of repetition, yet evading review,” Quattrone, 402 F.3d at 309 (internal quotation marks omitted), it is inapplicable here in light of, inter alia, HHS’s decision to fund Nassau-Suffolk as an EMA during FY 2009. See City of Houston v. Dep’t of Housing & Urban Dev., 24 F.3d 1421, 1427 (D.C. Cir. 1994).
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1 Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 260-61 2 (1999). “This may leave some aggrieved parties without 3 relief, but that is inherent in the doctrine of sovereign 4 immunity.” Adeleke v. United States, 355 F.3d 144, 150-51 5 (2d Cir. 2004). 6 In this case, plaintiffs escaped this bar by invoking § 7 702 of the APA, 5 U.S.C. § 702, in which Congress enacted a 8 limited waiver of the federal government’s sovereign 9 immunity for claims of “legal wrong [sustained] because of 10 agency action . . . seeking relief other than money 11 damages.” Id. The “agency action” plaintiffs challenge is 12 HHS’s February 2007 decision to reclassify Nassau-Suffolk as 13 a TGA under the 2006 amendments to the Ryan White Act, and 14 they argue that they are legally entitled to funding as an 15 EMA during FYs 2007 and 2008. And, as the district court 16 understood, § 702 limited the scope of the available relief 17 in such an action from its inception. Plaintiffs therefore 18 could only seek relief “other than money damages.” Id. 19 (emphasis added). 6
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Although there are, of course, additional instances in which Congress has waived the federal government’s sovereign immunity for other types of claims, plaintiffs have not invoked any of them.
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1 In this regard, careful attention must be paid to the 2 meaning of “money damages” in § 702. “The fact that a 3 judicial remedy may require one party to pay money to 4 another is not a sufficient reason to characterize the 5 relief as ‘money damages.’” Bowen v. Massachusetts, 487 6 U.S. 879, 893 (1988) (quoting 5 U.S.C. § 702). Rather, in 7 this context, the term “money damages” refers to 8 compensatory relief that functions as a substitute for lost 9 property. See id. at 895; see also Ward v. Brown, 22 F.3d 10 516, 520 (2d Cir. 1994). Thus, “sovereign immunity bars 11 [plaintiffs] from seeking [monetary] compensation” under § 12 702. Diaz v. United States, 517 F.3d 608, 612 (2d Cir. 13 2008). As such, § 702 only functions as an effective waiver 14 of the government’s sovereign immunity to the extent that 15 plaintiffs seek to force HHS to return property to Nassau- 16 Suffolk, where the res at issue is the funds appropriated by 17 Congress for this grant program for FYs 2007 and 2008. 18 Analytically speaking, the fungibility often associated 19 with money obscures, to some extent, the distinction 20 between: (1) relief that seeks to compensate a plaintiff 21 for a harm by providing a substitute for the loss, which is 22 unavailable in an action under § 702; and (2) relief that
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1 requires a defendant to transfer a specific res to the 2 plaintiff. See Diaz, 517 F.3d at 612. But where the object 3 of a plaintiff’s claims is the public fisc, the 4 Appropriations Clause of the Constitution puts things in 5 perspective: “No Money shall be drawn from the Treasury, 6 but in Consequence of Appropriations made by Law.” U.S. 7 Const. art. I, § 9, cl. 7. In other words, “‘no money can 8 be paid out of the Treasury unless it has been appropriated 9 by an act of Congress.’” Office of Pers. Mgmt. v. Richmond, 10 496 U.S. 414, 424 (1990) (quoting Cincinnati Soap Co. v. 11 United States, 301 U.S. 308, 321 (1937)). Thus, in cases 12 challenging an agency’s expenditure of funds, the res at 13 issue is identified by reference to the congressional 14 appropriation that authorized the agency’s challenged 15 expenditure. To seek funds from another source is to seek 16 compensation rather than the specific property the plaintiff 17 aims to recover. A claim seeking the former type of relief 18 falls outside the scope of the waiver of sovereign immunity 19 arising from § 702 of the APA. 20 To our knowledge, our sister Circuit in the District of 21 Columbia is the only federal appellate court that has 22 confronted this juxtaposition of sovereign immunity and the
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1 Appropriations Clause under the circumstances presented by 2 this case. 7 In City of Houston v. Department of Housing & 3 Urban Development, 24 F.3d 1421 (D.C. Cir. 1994), Houston 4 challenged the decision of the Department of Housing and 5 Urban Development (“HUD”) to reduce its FY 1986 community 6 development block grant. Before Houston commenced the 7 action, however, two events occurred: (1) HUD awarded the 8 funds at issue to other grant recipients, thereby exhausting
7 Contrary to plaintiffs’ assertion, we did not address these issues in Aetna Casualty & Surety Co. v. United States, 71 F.3d 475 (2d Cir. 1995). In Aetna, we simply held that it would not have been futile for the plaintiffappellant to amend its pleading in the district court to add a claim pursuant to § 702 of the APA. See id. at 478-79.
Although the government asserted that the plaintiff’s claims relating to a tax refund were moot because it had paid the refund to another entity, we were in no position to address — as the district court did in this case — the factual issue of whether the relevant appropriation had been exhausted.
Moreover, our statement in Aetna that the government’s “duty” to pay the tax refund did “not disappear simply because the money was paid in error to the wrong person,”
id. at 479, is not inconsistent with the notion, which is applicable here, that a federal court may lack authority to adjudicate the requirements of a duty in a given case.
Finally, as discussed infra, unlike the judgment that plaintiffs seek in this case, it appears that there was an available, unexhausted appropriation for the judgment the plaintiff sought: “[t]ax refund judgments are payable from the permanent, indefinite appropriation” codified at 31 U.S.C. § 1324. See Gov’t Accountability Office, 3 Principles of Federal Appropriations Law (hereinafter, “GAO, Principles”), at 14-40 (3d ed. Sept. 2008), available at http://www.gao.gov/special.pubs/d08978sp.pdf.
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1 the relevant FY 1986 appropriation; and (2) the FY 1986 2 appropriation authorizing the grants expired and therefore 3 lapsed. 8 See id. at 1425. The D.C. Circuit held that these 4 events served as “two independent grounds” for dismissing 5 Houston’s claims. Id. at 1427. “[T]o avoid having its case 6 mooted, a plaintiff must both file its suit before the 7 relevant appropriation lapses and seek a preliminary 8 injunction preventing the agency from disbursing those 9 funds.” Id. (emphasis in original). The court reasoned 10 that, when a litigant fails to take either step, “federal 11 courts are without authority to provide monetary relief” 12 because the Appropriations Clause prevents additional funds 13 from being paid out of the Treasury. Id. at 1428. It 14 reasoned further that awarding “funds available from sources
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In City of Houston, the D.C. Circuit acknowledged a narrow exception that, under some circumstances, “permits a court to award funds based on an appropriation even after the date when the appropriation lapses, so long as ‘the lawsuit was instituted on or before that date.’” City of Houston, 24 F.3d at 1426 (first emphasis added) (quoting W.
Va. Ass’n of Cmty. Health Ctrs. v. Heckler, 734 F.2d 1570, 1576 (D.C. Cir. 1984)). Importantly, however, “[a]pplication of this equitable doctrine . . . assumes that funds remain after the statutory lapse date.” W. Va. Ass’n of Cmty. Health Ctrs., 734 F.2d at 1577. In any event, because this appeal does not require us to consider the implications of lapsed — as opposed to exhausted —
appropriations, we do not now pass on the availability of the exception referenced in City of Houston.
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1 other than the 1986 appropriation” would contravene the 2 “fundamental requirement” of § 702 of the APA “that a 3 plaintiff seek relief ‘other than money damages.’” Id. 4 (emphasis in original) (quoting 5 U.S.C. § 702). 5 Under City of Houston, which we now follow, plaintiffs’ 6 claims are moot. In so holding, we are mindful that, unlike 7 in City of Houston, plaintiffs in this case sought to enjoin 8 HHS’s expenditure of the funds for FYs 2007 and 2008 before 9 HHS exhausted the relevant appropriations. Thus, whereas 10 the City of Houston plaintiff could be faulted for failing 11 to act, plaintiffs here took action but were unable to 12 preserve the status quo. As a result, while the claims in 13 City of Houston were moot at the time they were filed, 14 plaintiffs’ claims became moot, despite their efforts, 15 during the course of this litigation. Unfortunately, 16 however, these are distinctions without a difference for 17 purposes of the mootness doctrine. Although the City of 18 Houston court indicated that a plaintiff must “seek a 19 preliminary injunction,” id. at 1427, its analysis applies 20 with equal force where a plaintiff attempts, but ultimately 21 fails, to enjoin an agency’s expenditures. Our analysis 22 turns on the fact that, irrespective of the status of these
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1 appropriations when the action was commenced, HHS had 2 exhausted them by the time the proceedings were remanded. 9 3 After this was verified by the district court, the only 4 option “remaining to the court [was] that of announcing the 5 fact and dismissing the cause.” Ex parte McCardle, 74 U.S. 6 (7 Wall.) 506, 514 (1868). 7 Plaintiffs seek to evade the holding of City of Houston 8 by arguing that, notwithstanding HHS’s exhaustion of the 9 appropriations at issue, their claims are not moot because 10 they could collect on a judgment from the appropriation in 11 the Judgment Fund, 31 U.S.C. § 1304(a). The Judgment Fund 12 is a “permanent, indefinite appropriation for the payment of 13 judgments.” GAO, 3 Principles, supra note 7, at 14-31. But 14 the availability of this appropriation has limits. It 15 “constitutes an appropriation of amounts sufficient to pay 16 ‘final judgments . . . and interest and costs,’” id. at 14-
9 This holding is no broader than the facts of the case before us. There is no indication in the record that HHS distributed Ryan White Act grant funding to other entities that were wrongly classified as EMAs, or that the agency disregarded any legal obligation to avoid dispensing the funds at issue. Nor are we in a position to pass on the veracity of plaintiffs’ assertion that HHS “clearly had time and opportunity to issue or hold back funds.” At this point, that is a matter that can only be addressed by resort to the political branches.
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1 32, only when the sought-after payment is: (1) “not 2 otherwise provided for” by law; (2) “certified by the 3 Secretary of the Treasury”; and (3) payable under, inter 4 alia, 28 U.S.C. § 2414 (relating to final judgments entered 5 by federal district courts). 31 U.S.C. § 1304(a). 6 Moreover, the Judgment Fund does not waive the 7 government’s sovereign immunity, and “the legal basis for a 8 judgment or award must be found elsewhere in the law.” GAO, 9 3 Principles, at 14-34. As noted above, because plaintiffs 10 rely on the government’s waiver of its sovereign immunity in 11 § 702 of the APA, the only available remedy is an injunction 12 directing HHS to fund Nassau-Suffolk as an EMA in FYs 2007 13 and 2008 from the appropriations that were authorized by 14 Congress for those years. Money from the Judgment Fund, by 15 contrast, would function as a substitute remedy to 16 compensate plaintiffs for losses they suffered during FYs 17 2007 and 2008. Such a remedy would constitute “money 18 damages” within the meaning of that term in § 702 of the 19 APA, and the government has not waived its sovereign 20 immunity with respect to such claims. 10 In light of this
10 The GAO has previously taken the position that “monetary awards made under the APA and other equitable authorities should be treated no differently than other
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1 immunity, the district court lacked authority to grant 2 relief based on the Judgment Fund. 3 Finally, even if defendants had waived their immunity, 4 the Judgment Fund’s appropriation would not be available 5 because the statute’s first requirement — that the payment 6 sought must not be “otherwise provided for,” 31 U.S.C. § 7 1304(a)(1) — is not satisfied. “There is only one proper 8 source of funds in any given case.” GAO, 3 Principles, at 9 14-40. In this case, that source is the congressional 10 appropriations for FYs 2007 and 2008 relating to Part A of 11 the Ryan White Act. Where, as here, “payment of a 12 particular judgment is otherwise provided for as a matter of
monetary awards when being considered for payment from . . .
the Judgment Fund.” GAO, 3 Principles, at 14-20 n.47 (citing GAO, In re Judgment Fund & Law Enforcement Seizure Claims, B-259065 (Dec. 21, 1995)). We look to the GAO for authority given its role as “the investigative arm of Congress.” Med. Soc’y of N.Y. v. Cuomo, 976 F.2d 812, 815 (2d Cir. 1992); see also Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343, 1390 (1988) (“While the judicial branch is not bound by the GAO determinations . . . these determinations have been accorded significant deference by courts.”). However, this authority (understandably) offers no view on what are antecedent questions relating to when and whether a court has authority to make “monetary awards under the APA” in the first place. In fact, in the same publication the GAO acknowledged that “[t]he Judgment Fund is not itself a waiver of sovereign immunity.” GAO, 3 Principles, at 14-34. Therefore, our sovereign immunity analysis does not conflict in any way with the GAO’s position.
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1 law, the fact that the defendant agency has insufficient 2 funds at that particular time does not operate to make the 3 Judgment Fund available.” Id. at 14-39. We are persuaded 4 by the GAO’s construction of the operative statutory phrase, 5 and therefore conclude that the appropriations relating to 6 the funds plaintiffs seek are “otherwise provided for,” 31 7 U.S.C. § 1304(a)(1). Consequently, insofar as the Judgment 8 Fund is concerned, defendants are entitled to sovereign 9 immunity and the statutory prerequisites for access to this 10 appropriation are not satisfied. Therefore, we hold that 11 this alternative appropriation is unavailable as a funding 12 source for the remedy plaintiffs seek. 13 III. CONCLUSION 14 Defendants acknowledge that, based on our prior 15 interpretation of the statute, see Leavitt, 524 F.3d at 414, 16 HHS misapplied the Ryan White Act’s 2006 amendments to 17 Nassau-Suffolk. There is no dispute that Nassau-Suffolk has 18 now been properly funded as an EMA during FY 2009. There is 19 also no dispute that, by the time this action was remanded 20 to the district court, HHS had exhausted the congressional 21 appropriations relating to FYs 2007 and 2008 of the Ryan 22 White Act grant program. However, in light of defendants’
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1 sovereign immunity and the Appropriations Clause, resort to 2 those appropriations was the only remedy available to 3 plaintiffs for their claims. We therefore hold that 4 plaintiffs’ claims relating to FYs 2007 and 2008 are moot 5 because no effectual relief may be granted. 6 Like the district court, we too are aware of the 7 consequences of the result that we now announce. The 8 principles that govern this appeal, however, stem from the 9 very foundation of our institutional authority. As a court 10 of limited jurisdiction, we are not free to exceed the 11 bounds of the legal framework that governs our operation. 12 Accordingly, we affirm the judgment of the district court 13 dismissing plaintiffs’ claims.