MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
No. 18-1023
SUPREME COURT OF THE UNITED STATES
April 27, 2020
590 U. S. ____ (2020)
Argued December 10, 2019
OCTOBER TERM, 2019
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
No. 18-1023. Argued December 10, 2019-Decided April 27, 2020*
The Patient Protection and Affordable Care Act established online exchanges where insurers could sell their healthcare plans. The now-expired “Risk Corridors” program aimed to limit the plans’ profits and losses during the exchanges’ first three years (2014 through 2016). See
* Together with No. 18-1028, Moda Health Plan, Inc. v. United States (see this Court‘s Rule 12.4) and Blue Cross and Blue Shield of North Carolina v. United States (see this Court‘s Rule 12.4); and No. 18–1038, Land of Lincoln Mutual Health Insurance Co. v. United States, also on certiorari to the same court.
losses as calculated by the statutory formula and sought a money judgment for the unpaid sums owed. Only one petitioner prevailed in the trial courts, and the Federal Circuit ruled for the Government in each appeal, holding that §1342 had initially created a Government obligation to pay the full amounts, but that the subsequent appropriations riders impliedly “repealed or suspended” that obligation.
Held:
1. The Risk Corridors statute created a Government obligation to pay insurers the full amount set out in §1342‘s formula. Pp. 9-16.
(a) The Government may incur an obligation directly through statutory language, without also providing details about how the obligation must be satisfied. See United States v. Langston, 118 U. S. 389. Pp. 9-11.
(b) Section 1342 imposed a legal duty of the United States that could mature into a legal liability through the insurers’ participation in the exchanges. This conclusion flows from the express terms and context of §1342, which imposed an obligation by using the mandatory term “shall.” The section‘s mandatory nature is underscored by the adjacent provisions, which differentiate between when the HHS Secretary “shall” take certain actions and when she “may” exercise discretion. See
(c) Contrary to the Government‘s contention, neither the Appropriations Clause nor the Anti-Deficiency Act addresses whether Congress itself can create or incur an obligation directly by statute. Nor does §1342‘s obligation-creating language turn on whether Congress expressly provided budget authority before appropriating funds. The Government‘s arguments also conflict with well-settled principles of statutory interpretation. That §1342 contains no language limiting the obligation to the availability of appropriations, while Congress expressly used such limiting language in other Affordable Care Act provisions, indicates that Congress intended a different meaning in §1342. Pp. 13–16.
2. Congress did not impliedly repeal the obligation through its appropriations riders. Pp. 16-23.
(a) Because “‘repeals by implication are not favored,‘” Morton v. Mancari, 417 U. S. 535, 549, this Court will regard each of two statutes effective unless Congress’ intention to repeal is “‘clear and manifest,‘” or the laws are “irreconcilable,” id., at 550-551. In the appropriations
context, this requires the Government to show “something more than the mere omission to appropriate a sufficient sum.” United States v. Vulte, 233 U. S. 509, 515. As Langston and Vulte confirm, the appropriations riders here did not manifestly repeal or discharge the Government‘s uncapped obligation, see Langston, 118 U. S., at 394, and do not indicate “any other purpose than the disbursement of a sum of money for the particular fiscal years,” Vulte, 233 U. S., at 514. Nor is there any indication that HHS and CMS thought that the riders clearly expressed an intent to repeal. Pp. 16-19.
(b) Appropriations measures have been found irreconcilable with statutory obligations to pay, but the riders here did not use the kind of “shall not take effect” language decisive in United States v. Will, 449 U. S. 200, 222-223, or purport to “suspen[d]” §1342 prospectively or to foreclose funds from “any other Act” “notwithstanding” §1342‘s money-mandating text, United States v. Dickerson, 310 U. S. 554, 556-557. They also did not reference §1342‘s payment formula, let alone “irrec-oncilabl[y]” change it, United States v. Mitchell, 109 U. S. 146, 150, or provide that payments from profitable plans would be “in full compensation” of the Government‘s obligation to unprofitable plans, United States v. Fisher, 109 U. S. 143, 150. Pp. 19–21.
(c) The legislative history cited by the Federal Circuit is also unpersuasive. Pp. 22-23.
3. Petitioners properly relied on the Tucker Act to sue for damages in the Court of Federal Claims. Pp. 23-30.
(a) The United States has waived its immunity for certain damages suits in the Court of Federal Claims through the Tucker Act. Because that Act does not create “substantive rights,” United States v. Navajo Nation, 556 U. S. 287, 290, a plaintiff must premise her damages action on “other sources of law,” like “statutes or contracts,” ibid., provided those statutes “‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained,‘” United States v. White Mountain Apache Tribe, 537 U. S. 465, 472. The Act does, however, yield when the obligation-creating statute provides its own detailed remedies or when the Administrative Procedure Act provides an avenue for relief. Pp. 23-26.
(b) Petitioners clear each hurdle: The Risk Corridors statute is fairly interpreted as mandating compensation for damages, and neither exception to the Tucker Act applies. Section 1342‘s mandatory “‘shall pay’ language” falls comfortably within the class of statutes that permit recovery of money damages in the Court of Federal Claims. This finding is bolstered by §1342‘s focus on compensating insurers for past conduct. And there is no separate remedial scheme supplanting the Court of Federal Claims’ power to adjudicate petitioners’ claims.
See United States v. Bormes, 568 U. S. 6, 12. Nor does the Administrative Procedure Act bar petitioners’ Tucker Act suit. In contrast to Bowen v. Massachusetts, 487 U. S. 879, a Medicaid case where the State sued the HHS Secretary under the Administrative Procedure Act in district court, petitioners here seek not prospective, nonmonetary relief to clarify future obligations but specific sums already calculated, past due, and designed to compensate for completed labors. The Risk Corridors statute and Tucker Act allow them that remedy. And because the Risk Corridors program expired years ago, this litigation presents no special concern, as Bowen did, about managing a complex ongoing relationship or tracking ever-changing accounting sheets. Pp. 26-30.
No. 18-1023 and No. 18-1028 (second judgment), 729 Fed. Appx. 939; No. 18-1028 (first judgment), 892 F. 3d 1311; No. 18–1038, 892 F. 3d 1184, reversed and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, KAGAN, and KAVANAUGH, JJ., joined, and in which THOMAS and GORSUCH, JJ., joined as to all but Part III-C. ALITO, J., filed a dissenting opinion.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 18-1023, 18-1028 and 18-1038
MAINE COMMUNITY HEALTH OPTIONS, PETITIONER
18-1023 v. UNITED STATES
MODA HEALTH PLAN, INC., PETITIONER
18-1028 v. UNITED STATES
BLUE CROSS AND BLUE SHIELD OF NORTH CAROLINA, PETITIONER v. UNITED STATES
LAND OF LINCOLN MUTUAL HEALTH INSURANCE COMPANY, AN ILLINOIS NONPROFIT MUTUAL INSURANCE CORPORATION, PETITIONER
18-1038 v. UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
[April 27, 2020]
JUSTICE SOTOMAYOR delivered the opinion of the Court.*
The Patient Protection and Affordable Care Act expanded healthcare coverage to many who did not have or could not
* JUSTICE THOMAS and JUSTICE GORSUCH join all but Part III-C of this opinion.
afford it. The Affordable Care Act did this by, among other things, providing tax credits to help people buy insurance and establishing online marketplaces where insurers could sell plans. To encourage insurers to enter those marketplaces, the Act created several programs to defray the carriers’ costs and cabin their risks.
Among these initiatives was the “Risk Corridors” program, a temporary framework meant to compensate insurers for unexpectedly unprofitable plans during the marketplaces’ first three years. The since-expired Risk Corridors statute, §1342, set a formula for calculating payments under the program: If an insurance plan loses a certain amount of money, the Federal Government “shall pay” the plan; if the plan makes a certain amount of money, the plan “shall pay” the Government. See
These cases are about whether petitioners—insurers who claim losses under the Risk Corridors program-have a right to payment under §1342 and a damages remedy for the unpaid amounts. We hold that they do. We conclude that §1342 of the Affordable Care Act established a money-mandating obligation, that Congress did not repeal this obligation, and that petitioners may sue the Government for damages in the Court of Federal Claims.
I
A
In 2010, Congress passed the Patient Protection and Affordable Care Act,
Individuals may buy health-insurance plans directly on an exchange and, depending on their household income, receive tax credits for doing so.
Insurance carriers had many reasons to participate in these new exchanges. Through the Affordable Care Act, they gained access to millions of new customers with tax credits worth “billions of dollars in spending each year.” Id., at 485. But the exchanges posed some business risks, too—including a lack of “reliable data to estimate the cost of providing care for the expanded pool of individuals seeking coverage.” 892 F. 3d 1311, 1314 (CA Fed. 2018) (case below in No. 18-1028).
This uncertainty could have given carriers pause and affected the rates they set. So the Affordable Care Act created several risk-mitigation programs. At issue here is the Risk Corridors program.1
B
The Risk Corridors program aimed to limit participating plans’ profits and losses for the exchanges’ first three years (2014, 2015, and 2016). See
profits above a certain threshold would pay the Government, while plans with losses below that threshold would receive payments from the Government.
When it enacted the Affordable Care Act in 2010, Congress did not simultaneously appropriate funds for the yearly payments the Secretary could potentially owe under the Risk Corridors program. Neither did Congress limit the amounts that the Government might pay under §1342. Nor did the Congressional Budget Office (CBO) “score“-that is, calculate the budgetary impact of the Risk Corridors program.
In later years, the CBO noted that the Risk Corridors statute did not require the program to be budget neutral. The CBO reported that, “[i]n contrast” to the Act‘s other risk-mitigation programs, “risk corridor collections (which will be recorded as revenues) will not necessarily equal risk corridor payments, so that program can have net effects on the budget deficit.” CBO, The Budget and Economic Outlook: 2014 to 2024, p. 59 (2014). The CBO thus recognized that “[i]f insurers’ costs exceed their expectations, on average, the risk corridor program will impose costs on the federal budget.” Id., at 110.
Like the CBO, the federal agencies charged with implementing the program agreed that §1342 did not require
budget neutrality. Nine months before the program started, HHS acknowledged that the Risk Corridors program was “not statutorily required to be budget neutral.” 78 Fed. Reg. 15473 (2013). HHS assured, however, that “[r]egardless of the balance of payments and receipts, HHS will remit payments as required under Section 1342 of the Affordable Care Act.” Ibid.
Similar guidance came from the Centers for Medicare and Medicaid Services (CMS), the agency tasked with helping the HHS Secretary collect and remit program payments. CMS confirmed that a lack of payments from profitable plans would not relieve the Government from making its payments to the unprofitable ones. See 79 Fed. Reg. 30260 (2014). Citing “concerns that risk corridors collections may not be sufficient to fully fund risk corridors payments” to the unprofitable plans, CMS declared that “[i]n the unlikely event of a shortfall ... HHS recognizes that the Affordable Care Act requires the Secretary to make full payments to issuers.” Ibid.
C
The program‘s first year, 2014, tallied a deficit of about $2.5 billion. Profitable plans owed the Government $362 million, while the Government owed unprofitable plans $2.87 billion. See CMS, Risk Corridors Payment Proration Rate for 2014 (2015).
At the end of the first year, Congress enacted a bill appropriating a lump sum for CMS’ Program Management. See
“None of the funds made available by this Act... or transferred from other accounts funded by this Act to the ‘Centers for Medicare and Medicaid Services-
Program Management’ account, may be used for payments under section 1342(b)(1) of Public Law 111–148 (relating to risk corridors).” §227, id., at 2491.
The program‘s second year resembled its first. In February 2015, HHS repeated its belief that “risk corridors collections w[ould] be sufficient to pay for all” of the Government‘s “risk corridors payments.” 80 Fed. Reg. 10779 (2015). The agency again “recognize[d] that the Affordable Care Act requires the Secretary to make full payments to issuers.” Ibid. “In the unlikely event that risk corridors collections” were “insufficient to make risk corridors payments,” HHS reassured, the Government would “use other sources of funding for the risk corridors payments, subject to the availability of appropriations.” Ibid.
The 2015 program year also ran a deficit, this time worth about $5.5 billion. See CMS, Risk Corridors Payment and Charge Amounts for the 2015 Benefit Year (2016). Facing a second shortfall, CMS continued to “recogniz[e] that the Affordable Care Act requires the Secretary to make full payments to issuers.” CMS, Risk Corridors Payments for 2015, p. 1 (2016). CMS also confirmed that “HHS w[ould] record risk corridors payments due as an obligation of the United States Government for which full payment is required.” Ibid. And at the close of the second year, Congress enacted another appropriations bill with the same rider as before. See
The program‘s final year, 2016, was similar. The Government owed unprofitable insurers about $3.95 billion more than profitable insurers owed the Government. See CMS, Risk Corridors Payment and Charge Amounts for the 2016 Benefit Year (2017). And Congress passed an appropriations bill with the same rider. See
All told, the Risk Corridors program‘s deficit exceeded $12 billion.
D
The dispute here is whether the Government must pay the remaining deficit. Petitioners in these consolidated cases are four health-insurance companies that participated in the healthcare exchanges: Maine Community Health Options, Blue Cross and Blue Shield of North Carolina, Land of Lincoln Mutual Health Insurance Company, and Moda Health Plan, Inc. They assert that their plans were unprofitable during the Risk Corridors program‘s 3-year term and that, under §1342, the HHS Secretary still owes them hundreds of millions of dollars.
These insurers sued the Federal Government for damages in the United States Court of Federal Claims, invoking the Tucker Act,
A divided panel of the United States Court of Appeals for the Federal Circuit ruled for the Government in each appeal. See 892 F. 3d 1311; 892 F. 3d 1184 (2018); 729 Fed. Appx. 939 (2018). As relevant here, the Federal Circuit concluded that §1342 had initially created a Government obligation to pay the full amounts that petitioners sought under the statutory formula. See 892 F. 3d, at 1320-1322. The court also recognized that “it has long been the law that the government may incur a debt independent of an appropriation to satisfy that debt, at least in certain circumstances.” Id., at 1321.
Even so, the court held that Congress’ appropriations riders impliedly “repealed or suspended” the Government‘s obligation. Id., at 1322. Although the panel acknowledged that “[r]epeals by implication are generally disfavored“—especially when the “alleged repeal occurred in an appropriations bill“—it found that the riders here “adequately expressed Congress‘s intent to suspend” the Government‘s payments to unprofitable plans “beyond the sum of payments” it collected from profitable plans. Id., at 1322–1323, 1325.
Judge Newman dissented, observing that the Government had not identified any “statement of abrogation or amendment of the statute,” nor any “disclaimer” of the Government‘s “statutory and contractual commitments.” Id., at 1335. The dissent also reasoned that precedent undermined the court‘s conclusion and that the appropriations riders could not apply retroactively because the Government had used the Risk Corridors program to induce insurers to enter the exchanges. Id., at 1336-1339. Emphasizing the importance of Government credibility in public-private enterprise, the dissent warned that the majority‘s decision would “undermin[e] the reliability of dealings with the government.” Id., at 1340.
A majority of the Federal Circuit declined to revisit the court‘s decision en banc, 908 F. 3d 738 (2018) (per curiam); see also id., at 740 (Newman, J., dissenting); id., at 741 (Wallach, J., dissenting), and we granted certiorari, 588 U. S. ____ (2019).
These cases present three questions: First, did §1342 of the Affordable Care Act obligate the Government to pay participating insurers the full amount calculated by that statute? Second, did the obligation survive Congress’ appropriations riders? And third, may petitioners sue the Government under the Tucker Act to recover on that obligation? Because our answer to each is yes, we reverse.
II
The Risk Corridors statute created a Government obligation to pay insurers the full amount set out in §1342‘s formula.
A
An “obligation” is a “definite commitment that creates a legal liability of the government for the payment of goods and services ordered or received, or a legal duty ... that could mature into a legal liability by virtue of actions on the part of the other party beyond the control of the United States.” GAO, A Glossary of Terms Used in the Federal Budget Process 70 (GAO–05–734SP, 2005). The Government may incur an obligation by contract or by statute. See ibid.
Incurring an obligation, of course, is different from paying one. After all, the Constitution‘s Appropriations Clause provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
Creating and satisfying a Government obligation, therefore, typically involves four steps: (1) Congress passes an organic statute (like the Affordable Care Act) that creates a program, agency, or function; (2) Congress passes an Act authorizing appropriations; (3) Congress enacts the appropriation, granting “budget authority” to incur obligations and make payments, and designating the funds to be drawn; and (4) the relevant Government entity begins incurring the obligation. See id., at 2–56; see also Op. Comp. Gen., B-193573 (Dec. 19, 1979).
But Congress can deviate from this pattern. It may, for instance, authorize agencies to enter into contracts and “incur obligations in advance of appropriations.” GAO Redbook 2-4. In that context, the contracts “constitute obligations binding on the United States,” such that a “failure or refusal by Congress to make the necessary appropriation would not defeat the obligation, and the party entitled to payment would most likely be able to recover in a lawsuit.” Id., at 2-5; see also, e.g., Cherokee Nation of Okla. v. Leavitt, 543 U. S. 631, 636–638 (2005) (rejecting the Government‘s argument that it is legally bound by its contractual promise to pay “if, and only if, Congress appropriated sufficient funds“); Salazar v. Ramah Navajo Chapter, 567 U. S. 182, 191 (2012) (“Although the agency itself cannot disburse funds beyond those appropriated to it, the Government‘s ‘valid obligations will remain enforceable in the courts‘” (quoting 2 GAO Redbook 6–17 (2d ed. 1992)).
Congress can also create an obligation directly by statute, without also providing details about how it must be satisfied. Consider, for example, United States v. Langston, 118 U. S. 389 (1886). In that case, Congress had enacted a statute fixing an official‘s annual salary at “$7,500 from the date of the creation of his office.” Id., at 394. Years later, however, Congress failed to appropriate enough funds to pay the full amount, prompting the officer to sue for the remainder. Id., at 393. Understanding that Congress had
created the obligation by statute, this Court held that a subsequent failure to appropriate enough funds neither “abrogated [n]or suspended” the Government‘s pre-existing commitment to pay. Id., at 394. The Court thus affirmed judgment for the officer for the balance owed. Ibid.5
The GAO shares this view. As the Redbook explains, if Congress created an obligation by statute without detailing how it will be paid, “an agency could presumably meet a funding shortfall by such measures as making prorated payments.” GAO Redbook 2–36, n. 39. But “such actions would be only temporary pending receipt of sufficient funds to honor the underlying obligation” and “[t]he recipient would remain legally entitled to the balance.” Ibid. Thus, the GAO warns, although a “failure to appropriate” funds “will prevent administrative agencies from making payment,” that failure “is unlikely to prevent recovery by way of a lawsuit.” Id., at 2–63 (citing, e.g., Langston, 118 U. S., at 394).
Put succinctly, Congress can create an obligation directly through statutory language.
B
Section 1342 imposed a legal duty of the United States that could mature into a legal liability through the insurers’ actions-namely, their participating in the healthcare exchanges.
This conclusion flows from §1342‘s express terms and
context. See, e.g., Merit Management Group, LP v. FTI Consulting, Inc., 583 U. S. ____ (2018) (slip op., at 11) (statutory interpretation “begins with the text“). The first sign that the statute imposed an obligation is its mandatory language: “shall.” “Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.” Kingdomware Technologies, Inc. v. United States, 579 U. S. ____ (2016) (slip op., at 9); see also Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) (observing that “‘shall’ typically ‘creates an obligation impervious to ... discretion‘“). Section 1342 uses the command three times: The HHS Secretary “shall establish and administer” the Risk Corridors program from 2014 to 2016, “shall provide” for payments according to a precise statutory formula, and “shall pay” insurers for losses exceeding the statutory threshold.
Section 1342‘s adjacent provisions also underscore its mandatory nature. In
Nothing in §1342 requires the Risk Corridors program to be budget neutral, either. Nor does the text suggest that the Secretary‘s payments to unprofitable plans pivoted on profitable plans’ payments to the Secretary, or that a par-
tial payment would satisfy the Government‘s whole obligation. Thus, without “any indication” that §1342 allows the Government to lessen its obligation, we must “give effect to [Section 1342‘s] plain command.” Lexecon, 523 U. S., at 35. That is, the statute meant what it said: The Government “shall pay” the sum that §1342 prescribes.6
C
The Government does not contest that §1342‘s plain terms appeared to create an obligation to pay whatever amount the statutory formula provides. It insists instead that the Appropriations Clause,
That does not follow. Neither the Appropriations Clause nor the Anti-Deficiency Act addresses whether Congress itself can create or incur an obligation directly by statute. Rather, both provisions constrain how federal employees and officers may make or authorize payments without appropriations. See
States Government ... may not ... make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation“). As we have explained, “‘[a]n appropriation per se merely imposes limitations upon the Government‘s own agents,‘” but “‘its insufficiency does not pay the Government‘s debts, nor cancel its obligations.‘” Ramah, 567 U. S., at 197 (quoting Ferris v. United States, 27 Ct. Cl. 542, 546 (1892)). If anything, the Anti-Deficiency Act confirms that Congress can create obligations without contemporaneous funding sources: That Act‘s prohibitions give way “as specified” or “authorized” by “any other provision of law.”
And contrary to the Government‘s view, §1342‘s obligation-creating language does not turn on whether Congress expressly provided “budget authority” before appropriating funds. Budget authority is an agency‘s power “provided by Federal law to incur financial obligations,”
The Government‘s arguments also conflict with well-settled principles of statutory interpretation. At bottom, the Government contends that the existence and extent of
its obligation here is “subject to the availability of appropriations.” Brief for United States 41. But that language appears nowhere in §1342, even though Congress could have expressly limited an obligation to available appropriations or specific dollar amounts. Indeed, Congress did so explicitly in other provisions of the Affordable Care Act.7
This Court generally presumes that “‘when Congress includes particular language in one section of a statute but omits it in another,‘” Congress “intended a difference in meaning.” Digital Realty Trust, Inc. v. Somers, 583 U. S. ____ (2018) (slip op., at 10) (quoting Loughrin v. United States, 573 U. S. 351, 358 (2014) (alterations omitted)). The Court likewise hesitates “to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.” Republic of Sudan v. Harrison, 587 U. S. ____ (2019) (slip op., at 10) (quoting Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837 (1988)). The “subject to appropriations” and payment-capping language in other sections of the Affordable Care Act would be meaningless had §1342 simultaneously achieved the same end with silence.
In sum, the plain terms of the Risk Corridors provision created an obligation neither contingent on nor limited by the availability of appropriations or other funds.
III
The next question is whether Congress impliedly repealed the obligation through its appropriations riders. It did not.
A
Because Congress did not expressly repeal §1342, the Government seeks to show that Congress impliedly did so. But “repeals by implication are not favored,” Morton v. Mancari, 417 U. S. 535, 549 (1974) (internal quotation marks omitted), and are a “rarity,” J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int‘l, Inc., 534 U. S. 124, 142 (2001) (in-
These common limitations and our discussion below, see Part IV, infra-diminish the dissent‘s concern that other statutes may support a damages action in the Court of Federal Claims. Post, at 3 (opinion of ALITO, J.).
This Court‘s aversion to implied repeals is “especially” strong “in the appropriations context.” Robertson v. Seattle Audubon Soc., 503 U. S. 429, 440 (1992); see also New York Airways, Inc. v. United States, 177 Ct. Cl. 800, 810, 369 F. 2d 743, 748 (1966). The Government must point to “something more than the mere omission to appropriate a sufficient sum.” United States v. Vulte, 233 U. S. 509, 515 (1914); accord, GAO Redbook 2–63 (“The mere failure to appropriate sufficient funds is not enough“). The question, then, is whether the appropriations riders manifestly repealed or discharged the Government‘s uncapped obligation.
Langston confirms that the appropriations riders did neither. Recall that in Langston, Congress had established a statutory obligation to pay a salary of $7,500, yet later appropriated a lesser amount. 118 U. S., at 393–394. This Court held that Congress did not “abrogat[e] or suspen[d]” the salary-fixing statute by “subsequent enactments [that] merely appropriated a less amount” than necessary to pay, because the appropriations bill lacked “words that expressly or by clear implication modified or repealed the previous law.” Id., at 394.
Vulte reaffirmed that a mere failure to appropriate does not repeal or discharge an obligation to pay. At issue there was whether certain appropriations Acts had repealed a
Relying on Langston, Vulte rejected that argument. “[I]t is to be remembered,” the Court wrote, that the alleged repeals “were in appropriation acts and no words were used to indicate any other purpose than the disbursement of a sum of money for the particular fiscal years.” 233 U. S., at 514. At most, the appropriations had “temporarily suspend[ed]” payments, but they did not use ““the most clear and positive terms“” required to “modif[y] or repea[l]” the Government‘s obligation itself. Id., at 514–515 (quoting Minis v. United States, 15 Pet. 423, 445 (1841)). Because the Government had failed to show that repeal was the only “reasonable interpretation” of the appropriation Acts, the obligation persisted. 233 U. S., at 515 (quoting Minis, 15 Pet., at 445).
The parallels among Langston, Vulte, and these cases are clear. Here, like in Langston and Vulte, Congress “merely appropriated a less amount” than that required to satisfy the Government‘s obligation, without “expressly or by clear implication modif[ying]” it. Langston, 118 U. S., at 394; see also Vulte, 233 U. S., at 515. The riders stated that “[n]one of the funds made available by this Act,” as opposed to any other sources of funds, “may be used for payments under” the Risk Corridors statute.
The relevant agencies’ responses to the riders also undermine the case for an implied repeal here. Had Congress “clearly expressed” its intent to repeal, one might have expected HHS or CMS to signal the sea change. Morton, 417 U. S., at 551. But even after Congress enacted the first rider, the agencies reiterated that “the Affordable Care Act requires the Secretary to make full payments to issuers,” 80 Fed. Reg. 10779, and that “HHS w[ould] record risk corridors payments due as an obligation of the United States Government for which full payment is required,” CMS, Risk Corridors Payments for 2015, at 1. They understood that profitable insurers’ payments to the Government would not dispel the Secretary‘s obligation to pay unprofitable insurers, even “in the event of a shortfall.” Ibid.
Given the Court‘s potent presumption in the appropriations context, an implied-repeal-by-rider must be made of sterner stuff.
B
To be sure, this Court‘s implied-repeal precedents reveal two situations where the Court has deemed appropriations measures irreconcilable with statutory obligations to pay. But neither one applies here.
The first line of cases involved appropriations bills that, without expressly invoking words of “repeal,” reached that
Here, by contrast, the appropriations riders did not use the kind of “shall not take effect” language decisive in Will. See 449 U. S., at 222–223. Nor did the riders purport to “suspen[d]” §1342 prospectively or to foreclose funds from “any other Act” “notwithstanding” §1342‘s money-mandating text. Dickerson, 310 U. S., at 556–557; see also Will, 449 U. S., at 206–207. Neither Will nor Dickerson supports the Federal Circuit‘s implied-repeal holding.
The second strand of precedent turned on provisions that reformed statutory payment formulas in ways “irreconcilable” with the original methods. See United States v. Mitchell, 109 U. S. 146, 150 (1883); see also United States v. Fisher, 109 U. S. 143, 145–146 (1883). In Mitchell, an ap-
The appropriations bills here created no such conflict as in Mitchell and Fisher. The riders did not reference §1342‘s payment formula at all, let alone “irreconcilabl[y]” change it. Mitchell, 109 U. S., at 150. Nor did they provide that Risk Corridors payments from profitable plans would be ““in full compensation“” of the Government‘s obligation to unprofitable plans. Fisher, 109 U. S., at 146. Instead, the riders here must be taken at face value: as a “mere omission to appropriate a sufficient sum.” Vulte, 233 U. S., at 515. Congress could have used the kind of language we have held to effect a repeal or suspension—indeed, it did so in other provisions of the relevant appropriations bills. See, e.g.,
We also find unpersuasive the only pieces of legislative history that the Federal Circuit cited. According to the Court of Appeals, a floor statement and an unpublished GAO letter provided “clear intent” to cancel or “suspend” the Government‘s Risk Corridors obligation. See 892 F. 3d, at 1318–1319, 1325–1326. We doubt that either source could ever evince the kind of clear congressional intent required to repeal a statutory obligation through an appropriations rider. See United States v. Kwai Fun Wong, 575 U. S. 402, 412 (2015). But even if they could, they did not do so here.
The floor statement (which Congress adopted as an “explanatory statement“) does not cross the clear-expression threshold. See 160 Cong. Rec. 17805, 18307 (2014); see also
The GAO letter is even more inapt. In it, the GAO responded to two legislators’ inquiry by identifying two sources of available funding for the first year of Risk Corridors payments: CMS’ appropriations for the 2014 fiscal year and profitable insurance plans’ payments to the Secretary. 892 F. 3d, at 1318; see also App. in No. 17–1994 (CA Fed.), pp. 234–240. Because the rider cut off the first source of funds, the Federal Circuit inferred congressional intent “to temporarily cap” the Government‘s payments “at the amount of payments” profitable plans made “for each of the applicable years” of the Risk Corridors program. 892 F. 3d, at 1325. That was error. The letter has little value because it appears nowhere in the legislative record. Perhaps for that reason, the Government does not rely on it.
IV
Having found that the Risk Corridors statute established a valid yet unfulfilled Government obligation, this Court must turn to a final question: Where does petitioners’ lawsuit belong, and for what relief? We hold that petitioners properly relied on the Tucker Act to sue for damages in the Court of Federal Claims.
The United States is immune from suit unless it unequivocally consents. United States v. Navajo Nation, 556 U. S. 287, 289 (2009). The Government has waived immunity for certain damages suits in the Court of Federal Claims through the Tucker Act, 24 Stat. 505. See United States v. Mitchell, 463 U. S. 206, 212 (1983). That statute permits “claim[s] against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”
The Tucker Act, however, does not create “substantive rights.” Navajo Nation, 556 U. S., at 290. A plaintiff relying on the Tucker Act must premise her damages action on “other sources of law,” like “statutes or contracts.” Ibid. For that reason, “[n]ot every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act.” Mitchell, 463 U. S., at 216. Nor will every “failure to perform an obligation . . . creat[e] a right to monetary relief” against the Government. United States v. Bormes, 568 U. S. 6, 16 (2012).
To determine whether a statutory claim falls within the Tucker Act‘s immunity waiver, we typically employ a “fair interpretation” test. A statute creates a “right capable of grounding a claim within the waiver of sovereign immunity if, but only if, it ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.“” United States v. White Mountain Apache Tribe, 537 U. S. 465, 472 (2003) (quoting Mitchell, 463 U. S., at 217); see also Navajo Nation, 556 U. S., at 290 (“The other source of law need not explicitly provide that the right or duty it creates is enforceable through a suit for damages“). Satisfying this rubric is generally both necessary and sufficient to permit a Tucker Act suit for damages in the Court
But there are two exceptions. The Tucker Act yields when the obligation-creating statute provides its own detailed remedies, or when the Administrative Procedure Act, 60 Stat. 237, provides an avenue for relief. See Bormes, 568 U. S., at 13, 16; Bowen v. Massachusetts, 487 U. S. 879, 900–908 (1988).
B
Petitioners clear each hurdle: The Risk Corridors statute is fairly interpreted as mandating compensation for damages, and neither exception to the Tucker Act applies.
1
Rarely has the Court determined whether a statute can “fairly be interpreted as mandating compensation by the Federal Government.” Mitchell, 463 U. S., at 216–217 (internal quotation marks omitted). Likely this is because so-called money-mandating provisions are uncommon, see M. Solomson, Court of Federal Claims: Jurisdiction, Practice, and Procedure 4–18 (2016), and because Congress has at its disposal several blueprints for conditioning and limiting obligations, see n. 7, supra; see also GAO Redbook 2–22 to 2–24, 2–54 to 2–58. But Congress used none of those tools in §1342. The Risk Corridors statute is one of the rare laws permitting a damages suit in the Court of Federal Claims.
Here again §1342‘s mandatory text is significant. Statutory ““shall pay’ language” often reflects congressional intent “to create both a right and a remedy” under the Tucker Act. Bowen, 487 U. S., at 906, n. 42; see also, e.g., id., at 923 (Scalia, J., dissenting) (“[A] statute commanding the payment of a specified amount of money by the United States impliedly authorizes (absent other indication) a claim for damages in the defaulted amount“); United States v. Testan, 424 U. S. 392, 404 (1976) (suggesting that the
Bolstering our finding is §1342‘s focus on compensating insurers for past conduct. In assessing Tucker Act actions, this Court has distinguished statutes that “attempt to compensate a particular class of persons for past injuries or labors” from laws that “subsidize future state expenditures.” Bowen, 487 U. S., at 906, n. 42. (The first group permits Tucker Act suits; the second does not.) The Risk Corridors statute sits securely in the first category: It uses a backwards-looking formula to compensate insurers for losses incurred in providing healthcare coverage for the prior year.13
2
Nor is there a separate remedial scheme supplanting the Court of Federal Claims’ power to adjudicate petitioners’ claims.
True, the Tucker Act “is displaced” when “a law assertedly imposing monetary liability on the United States contains its own judicial remedies.” Bormes, 568 U. S., at 12. A plaintiff in that instance cannot rely on our “fair interpretation” test, and instead must stick to the money-mandating statute‘s “own text” to “determine whether the damages liability Congress crafted extends to the Federal Government.” Id., at 15–16. Examples include the
Unlike those statutes, however, the Affordable Care Act did not establish a comparable remedial scheme. Nor has the Government identified one. So this exception to the Tucker Act is no barrier here.
Neither does the Administrative Procedure Act bar petitioners’ Tucker Act suit. To be sure, in Bowen, this Court held in the Medicaid context that a State properly sued the HHS Secretary under the Administrative Procedure Act (not the Tucker Act) in district court (not the Court of Federal Claims) for failure to make statutorily required payments. See 487 U. S., at 882–887, 901–905.
But Bowen is distinguishable on several scores. First, the relief requested there differed materially from what petitioners pursue here. In Bowen, the State did not seek money damages, but instead sued for prospective declaratory and injunctive relief to clarify the extent of the Government‘s ongoing obligations under the Medicaid program. Unlike §1342, which “provide[s] compensation for specific instances of past injuries or labors,” id., at 901, n. 31, the pertinent Medicaid provision was a “grant-in-aid program,” which “direct[ed] the Secretary . . . to subsidize future state
Second, the parties’ relationship in Bowen also differs from the one implicated here. The State had employed the Administrative Procedure Act in Bowen because of the litigants’ “complex ongoing relationship,” which made it important that a district court adjudicate future disputes. Id., at 905; see also id., at 900, n. 31. The Court added that the Administrative Procedure Act “is tailored” to “[m]anaging the relationships between States and the Federal Government that occur over time and that involve constantly shifting balance sheets,” while the Tucker Act is suited to “remedy[ing] particular categories of past injuries or labors for which various federal statutes provide compensation.” Id., at 904–905, n. 39.
These observations confirm that petitioners properly sued the Government in the Court of Federal Claims. Petitioners’ prayer for relief under the Risk Corridors statute looks nothing like the requested redress in Bowen. Petitioners do not ask for prospective, nonmonetary relief to clarify future obligations; they seek specific sums already calculated, past due, and designed to compensate for completed labors. The Risk Corridors statute and Tucker Act allow them that remedy. And because the Risk Corridors program expired years ago, this litigation presents no special concern about managing a complex ongoing relation-
V
In establishing the temporary Risk Corridors program, Congress created a rare money-mandating obligation requiring the Federal Government to make payments under §1342‘s formula. And by failing to appropriate enough sums for payments already owed, Congress did simply that and no more: The appropriation bills neither repealed nor discharged §1342‘s unique obligation. Lacking other statutory paths to relief, and absent a Bowen barrier, petitioners may seek to collect payment through a damages action in the Court of Federal Claims.15
These holdings reflect a principle as old as the Nation itself: The Government should honor its obligations. Soon after ratification, Alexander Hamilton stressed this insight as a cornerstone of fiscal policy. “States,” he wrote, “who observe their engagements . . . are respected and trusted: while the reverse is the fate of those . . . who pursue an opposite conduct.” Report Relative to a Provision for the Support of Public Credit (Jan. 9, 1790), in 6 Papers of Alexander
The judgments of the Court of Appeals are reversed, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 18–1023, 18–1028 and 18–1038
MAINE COMMUNITY HEALTH OPTIONS, PETITIONER 18–1023 v. UNITED STATES
MODA HEALTH PLAN, INC., PETITIONER 18–1028 v. UNITED STATES
BLUE CROSS AND BLUE SHIELD OF NORTH CAROLINA, PETITIONER v. UNITED STATES
LAND OF LINCOLN MUTUAL HEALTH INSURANCE COMPANY, AN ILLINOIS NONPROFIT MUTUAL INSURANCE CORPORATION, PETITIONER 18–1038 v. UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
[April 27, 2020]
JUSTICE ALITO, dissenting.
Twice this Term, we have made the point that we have basically gotten out of the business of recognizing private rights of action not expressly created by Congress. Just a month ago in Comcast Corp. v. National Assn. of African American-Owned Media, 589 U. S. 327 (2020) (slip op., at 5–6), after noting a 1975 decision1 inferring a private
“That was during a period when the Court often ‘assumed it to be a proper judicial function to provide such remedies as are necessary to make effective a statute‘s purpose.’ Ziglar v. Abbasi, 582 U. S. 120, ___ (2017) (slip op., at 8) (internal quotation marks omitted). With the passage of time, of course, we have come to appreciate that, ‘[l]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress’ and ‘[r]aising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.’ Alexander v. Sandoval, 532 U. S. 275, 286–287 (2001) (internal quotation marks omitted).”
A month before that, in Hernández v. Mesa, 589 U. S. 93 (2020), we made the same point and accordingly refused to infer a cause of action under the
Today, however, the Court infers a private right of action that has the effect of providing a massive bailout for insurance companies that took a calculated risk and lost. These companies chose to participate in an Affordable Care Act program that they thought would be profitable. I assume
I
My disagreement concerns the critical question that the Court decides in the remainder of its opinion. In order for petitioners to recover, federal law must provide a right of action for damages. The Tucker Act,
This is an important step. Under the Court‘s decision, billions of taxpayer dollars will be turned over to insurance companies that bet unsuccessfully on the success of the program in question. This money will have to be paid even though Congress has pointedly declined to appropriate money for that purpose.
Not only will today‘s decision have a massive immediate impact, its potential consequences go much further. The Court characterizes provisions like §1342 as “rare,” ante, at 26, but the phrase the “Secretary shall pay“—the language that the Court construes as creating a cause of action—appears in many other federal statutes.
II
The Court concludes that it is proper for us to recognize
Nor has any prior case provided a reasoned explanation of the basis for the test. In United States v. Testan, 424 U. S. 392 (1976), the Court simply lifted the language in question from an opinion of the old United States Court of Claims before holding that the test was not met in the case at hand. Id., at 400–402 (citing Eastport S. S. Corp. v. United States, 178 Ct. Cl. 599, 607, 372 F. 2d 1002, 1009 (1967)). The Court of Claims opinion, in turn, did not explain the origin or basis for this test. See id., at 607, 372 F. 2d, at 1009. And not only have later cases parroted this language, they have expanded it. In United States v. White Mountain Apache Tribe, 537 U. S. 465, 473 (2003) (emphasis added), the Court wrote that “[i]t is enough . . . that a statute . . . be reasonably amenable to the reading that it mandates a right of recovery in damages.”
Despite the uncertain foundation of this test, our post-Testan decisions have simply taken it as a given. I would not continue that practice. Before holding that this test requires the payment of billions of dollars that Congress has pointedly refused to appropriate, we ought to be sure that there is a reasonable basis for this test. And that is questionable.2
III
There is obvious tension between what the Court now
“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” (Emphasis added.)
Our opinion in Comcast suggested that we might not find this “shall have” language sufficient to justify the recognition of a damages claim if the question came before us today as a matter of first impression. See 589 U. S., at ___–___ (slip op., at 5–6). But if that is so, how can we reach a different conclusion with respect to the “shall pay” language in §1342 of the Affordable Care Act? Similarly, the
One might argue that the assumptions underlying the enactment of the Tucker Act justify our exercising more leeway in inferring rights of action that may be asserted under that Act. When the Tucker Act was enacted in 1887, Congress undoubtedly assumed that the federal courts would ““[r]ais[e] up causes of action,“” Alexander v. Sandoval, 532 U. S. 275, 287 (2001), in the manner of a common-law court. At that time, federal courts often applied general common
An argument based on Congress‘s assumptions in enacting the Tucker Act would present a question that is similar to one we have confronted under the Alien Tort Statute
Despite its importance, the legitimacy of inferring a right of action under §1342 has not received much attention in these cases. The Federal Circuit addressed the question in passing in a footnote, 892 F. 3d 1311, 1320, n. 2 (2018), and in this Court, the briefing and argument focused primarily on other issues. No attempt was made to reconcile our approach to inferring rights of action in Tucker Act cases with our broader jurisprudence.
I am unwilling to endorse the Court‘s holding in these cases without understanding how the “money-mandating” test on which the Court relies fits into our general approach to the recognition of implied rights of action.5 Because the
For these reasons, I respectfully dissent.
The Court is flatly wrong in saying that the test in Alexander v. Sandoval, 532 U. S. 275, 286 (2001)—whether a statute “displays an intent to create not just a private right but also a private remedy” is “precisely” the same as its “money-mandating inquiry.” Ante, at 25, n. 12. In fact, the “money-mandating inquiry” is precisely contrary to the statement in Sandoval. Sandoval said unequivocally that it is not enough if a statute merely “displays an intent to create . . . a private right,” 532 U. S., at 286, but according to the Court, it is sufficient for a statute to manifest only an intent to create a right to receive money.
The Court asserts that there is no real difference between the billion-dollar private right of action that the Court now creates on behalf of sophisticated economic actors and our prior precedents, ante, at 30, n. 14, but the Court does not identify analogous precedents—perhaps because there are none to cite.
Notes
This kind of limiting language is not unique to the Affordable Care Act. When Congress has restricted “shall pay” language to an appropriation or available funds, it has done so expressly. See, e.g.,
Congress has also been explicit when it has capped payments, often setting a dollar amount or designating a specific fund from which the Government shall pay. See, e.g.,
This framework also makes good sense. Cf. post, at 4. As the author of Sandoval explained, if a statutory obligation to pay money is mandatory, then the congressionally conferred “right to receive money,” post, at 8, n. 5, will typically display an intent to provide a damages remedy for the defaulted amount, Bowen v. Massachusetts, 487 U. S. 879, 923 (1988) (Scalia, J., dissenting) (a “statute commanding the payment of a specified amount of money by the United States impliedly authorizes (absent other indication) a claim for damages in the defaulted amount“). As this Court recently observed, Congress enacted the Tucker Act to “suppl[y] the missing ingredient for an action against the United States for the breach of monetary obligations not otherwise judicially enforceable.” Bormes, 568 U. S., at 12.
By the dissent‘s contrary suggestion, not only is a mandatory statutory obligation to pay meaningless, so too is a constitutional one. After all, the Constitution did not “expressly create a right of action,” post, at 3, when it mandated “just compensation” for Government takings of private property for public use,
The Federal Circuit, moreover, concurs in our conclusion. 892 F. 3d, 1311, 1320, n. 2 (2018) (holding that §1342 “is money-mandating for [Tucker Act] purposes” (citing Greenlee County v. United States, 487 F. 3d 871, 877 (CA Fed. 2007))). It also agrees with our analysis broadly, having held that “shall pay” language “generally makes a statute money-mandating” under the Tucker Act. Id., at 877 (internal quotation marks omitted). Conversely, the Court of Appeals has concluded that a statute is not money mandating where the Government enjoys “complete discretion” in determining whether (and whom) to pay. See, e.g., Doe v. United States, 463 F. 3d 1314, 1324 (2006) (noting that the statutory term, “may,” creates a rebuttable presumption that the “statute creates discretion“).