     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


           *
             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

                                       2
 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



                                    3
 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).

                                    4
 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

                                    5
 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).)

                                    6
 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.”

22



                                   7
 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


                                      8
 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).

                                     9
 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



          6
           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.

                                      10
 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


                                     11
 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


                                     12
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 plaintiff-
    appellant 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.

                                   13
 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


          8
           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.

                                     14
 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


                                   15
 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.

                                   16
 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

                                     17
 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.

                                   18
 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’


                                      19
 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.




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