Maine Community Health Options v. United States , 206 L. Ed. 2d 764 ( 2020 )

(Slip Opinion) OCTOBER TERM, 2019 1
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 ex-
changes 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
§1342, 124 Stat. 211. Section 1342 set out a formula for computing a
plan’s gains or losses at the end of each year, providing that eligible
profitable plans “shall pay” the Secretary of the Department of Health
and Human Services (HHS), while the Secretary “shall pay” eligible
unprofitable plans. The Act neither appropriated funds for these
yearly payments nor limited the amounts that the Government might
pay. Nor was the program required to be budget neutral. Each year,
the Government owed more money to unprofitable insurers than prof-
itable insurers owed to the Government, resulting in a total deficit of
more than $12 billion. And at the end of each year, the appropriations
bills for the Centers for Medicare and Medicaid Services (CMS) in-
cluded a rider preventing CMS from using the funds for Risk Corridors
payments. Petitioners—four health-insurance companies that claim
losses under the program—sued the Federal Government for damages
in the Court of Federal Claims. Invoking the Tucker Act, they alleged
that §1342 obligated the Government to pay the full amount of their
——————
* 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 Car-
olina 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 certio-
rari to the same court.
2 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Syllabus
losses as calculated by the statutory formula and sought a money judg-
ment 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 obliga-
tion 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 obli-
gation 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 Sec-
retary “shall” take certain actions and when she “may” exercise discre-
tion. See §§1341(b)(2), 1343(b). Section 1342 neither requires the Risk
Corridors program to be budget-neutral nor suggests that the Secre-
tary’s payments to unprofitable plans pivoted on profitable plans’ pay-
ments to the Secretary or that a partial payment would satisfy the
Government’s whole obligation. It thus must be given its plain mean-
ing: The Government “shall pay” the sum prescribed by §1342. Pp. 11–
13.
(c) Contrary to the Government’s contention, neither the Appro-
priations Clause nor the Anti-Deficiency Act addresses whether Con-
gress 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 ex-
pressly used such limiting language in other Affordable Care Act pro-
visions, indicates that Congress intended a different meaning in
§1342. Pp. 13–16.
2. Congress did not impliedly repeal the obligation through its ap-
propriations 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
Cite as: 590 U. S. ____ (2020) 3
Syllabus
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 appro-
priations riders here did not manifestly repeal or discharge the Gov-
ernment’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 compen-
sation’ ” 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 un-
persuasive. 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 dam-
ages suits in the Court of Federal Claims through the Tucker Act. Be-
cause that Act does not create “substantive rights,” United States v.
Navajo Nation, 556 U.S. 287, 290, a plaintiff must premise her dam-
ages action on “other sources of law,” like “statutes or contracts,” ibid.,
provided those statutes “ ‘can fairly be interpreted as mandating com-
pensation 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 nei-
ther 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.
4 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Syllabus
See United States v. Bormes, 568 U.S. 6, 12. Nor does the Adminis-
trative 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 be-
cause 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.
Cite as: 590 U. S. ____ (2020) 1
Opinion of the Court
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, Wash-
ington, 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.
2 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
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 market-
places, the Act created several programs to defray the car-
riers’ costs and cabin their risks.
Among these initiatives was the “Risk Corridors” pro-
gram, a temporary framework meant to compensate insur-
ers for unexpectedly unprofitable plans during the market-
places’ first three years. The since-expired Risk Corridors
statute, §1342, set a formula for calculating payments un-
der 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 §1342, 124 Stat. 211–212
(codified at 42 U.S. C. §18062). Some plans made money
and paid the Government. Many suffered losses and sought
reimbursement. The Government, however, did not pay.
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 ob-
ligation, 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 Af-
fordable Care Act, 124 Stat. 119, seeking to improve na-
tional health-insurance markets and extend coverage to
millions of people without adequate (or any) health insur-
ance. To that end, the Affordable Care Act called for the
creation of virtual health-insurance markets, or “Health
Benefit Exchanges,” in each State. 42 U.S. C. §18031(b)(1).
Cite as: 590 U. S. ____ (2020) 3
Opinion of the Court
Individuals may buy health-insurance plans directly on an
exchange and, depending on their household income, re-
ceive tax credits for doing so. 26 U.S. C. §36B; 42 U.S. C.
§§18081, 18082. Once an insurer puts a plan on an ex-
change, it must “accept every employer and individual in
the State that applies for such coverage,” 42 U.S. C.
§300gg–1(a), and may not tether premiums to a particular
applicant’s health, §300gg(a). In other words, the Act “en-
sure[s] that anyone can buy insurance.” King v. Burwell,
576 U.S. 473, 493 (2015).
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 af-
fected 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 §1342, 124 Stat. 211, 42
U.S. C. §18062. It did so through a formula that computed
a plan’s gains or losses at the end of each year. Plans with
——————
1 The others were the “Reinsurance” and “Risk Adjustment” programs.
The former ran from 2014 to 2016 and required insurers to pay premi-
ums into a pool that compensated carriers covering “high risk individu-
als.” §1341, 124 Stat. 208, 42 U.S. C. §18061. The latter is still in effect
and annually transfers funds from insurance plans with relatively low-
risk enrollees to plans with higher risk enrollees. See §1343, 124 Stat.
212, 42 U.S. C. §18063.
4 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
profits above a certain threshold would pay the Govern-
ment, while plans with losses below that threshold would
receive payments from the Government. §1342(b), 124
Stat. 211. Specifically, §1342 stated that the eligible prof-
itable plans “shall pay” the Secretary of the Department of
Health and Human Services (HHS), while the Secretary
“shall pay” the eligible unprofitable plans. Ibid.2
When it enacted the Affordable Care Act in 2010, Con-
gress 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 Out-
look: 2014 to 2024, p. 59 (2014). The CBO thus recognized
that “[i]f insurers’ costs exceed their expectations, on aver-
age, the risk corridor program will impose costs on the fed-
eral budget.” Id., at 110.
Like the CBO, the federal agencies charged with imple-
menting the program agreed that §1342 did not require
——————
2 If a health insurance plan made (or lost) up to 3 percentage points
more than expected in a plan year, the plan would keep the gains (or
losses). If the plan made (or lost) between 3 and 8 percentage points
more than predicted, it would give up half of the earnings (or would be
compensated for half of the shortfalls) exceeding the 3 percentage-point
threshold. If the gains (or losses) exceeded predictions by eight percent-
age points, the insurers would pay (or receive) 80 percent of the gains (or
losses) exceeding the 8 percentage-point mark. See §1342(b), 124 Stat.
211, 42 U.S. C. §18062(b).
Cite as: 590 U. S. ____ (2020) 5
Opinion of the Court
budget neutrality. Nine months before the program
started, HHS acknowledged that the Risk Corridors pro-
gram 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 help-
ing the HHS Secretary collect and remit program pay-
ments. CMS confirmed that a lack of payments from prof-
itable 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 collec-
tions may not be sufficient to fully fund risk corridors pay-
ments” 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 ap-
propriating a lump sum for CMS’ Program Management.
See Pub. L. 113–235, Div. G, Tit. II, 128 Stat. 2130–2131
(providing for the fiscal year ending September 30, 2015).
The bill included a rider restricting the appropriation’s ef-
fect on Risk Corridors payments out to issuers:
“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—
6 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
Program Management’ account, may be used for pay-
ments 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 Febru-
ary 2015, HHS repeated its belief that “risk corridors col-
lections w[ould] be sufficient to pay for all” of the Govern-
ment’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 pay-
ments,” 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 re-
quired.” Ibid. And at the close of the second year, Congress
enacted another appropriations bill with the same rider as
before. See Pub. L. 114–113, §225, 129 Stat. 2624 (provid-
ing for the fiscal year ending September 30, 2016).
The program’s final year, 2016, was similar. The Govern-
ment 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 appropria-
tions bill with the same rider. See Pub. L. 115–31, §223,
131 Stat. 543 (providing for the fiscal year ending Septem-
ber 30, 2017).
Cite as: 590 U. S. ____ (2020) 7
Opinion of the Court
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 partici-
pated in the healthcare exchanges: Maine Community
Health Options, Blue Cross and Blue Shield of North Caro-
lina, 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 dam-
ages in the United States Court of Federal Claims, invoking
the Tucker Act, 28 U.S. C. §1491. They alleged that §1342
of the Affordable Care Act obligated the Government to pay
the full amount of their losses as calculated by the statutory
formula and sought a money judgment for the unpaid sums
owed—a claim that, if successful, could be satisfied through
the Judgment Fund.3 These lawsuits saw mixed results in
the trial courts. Petitioner Moda prevailed; the others did
not.4
——————
3 For a meritorious claim brought within the Tucker Act’s 6-year stat-
ute of limitations, 28 U.S. C. §2501, federal law generally requires that
the “final judgment rendered by the United States Court of Federal
Claims against the United States . . . be paid out of any general appro-
priation therefor.” §2517(a). The Judgment Fund is a permanent and
indefinite appropriation for “[n]ecessary amounts . . . to pay final judg-
ments, awards, compromise settlements, and interest and costs specified
in the judgments or otherwise authorized by law when . . . payment is
not otherwise provided for.” 31 U.S. C. §1304(a)(1).
4 Compare 130 Fed. Cl. 436 (2017) (granting Moda Health Plan partial
summary judgment on its statutory and implied-in-fact-contract claims),
with 129 Fed. Cl. 81 (2016) (dismissing Land of Lincoln’s statutory, con-
tract, and Takings Clause claims), 131 Fed. Cl. 457 (2017) (dismissing
Blue Cross Blue Shield’s statutory and contract claims), and 133 Fed.
8 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
A divided panel of the United States Court of Appeals for
the Federal Circuit ruled for the Government in each ap-
peal. See 892 F.3d 1311; 892 F.3d 1184 (2018); 729 Fed.
Appx. 939 (2018). As relevant here, the Federal Circuit con-
cluded that §1342 had initially created a Government obli-
gation to pay the full amounts that petitioners sought un-
der 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 appro-
priation to satisfy that debt, at least in certain circum-
stances.” Id., at 1321.
Even so, the court held that Congress’ appropriations rid-
ers impliedly “repealed or suspended” the Government’s ob-
ligation. Id., at 1322. Although the panel acknowledged
that “[r]epeals by implication are generally disfavored”—
especially when the “alleged repeal occurred in an appro-
priations bill”—it found that the riders here “adequately ex-
pressed Congress’s intent to suspend” the Government’s
payments to unprofitable plans “beyond the sum of pay-
ments” it collected from profitable plans. Id., at 1322–1323,
1325.
Judge Newman dissented, observing that the Govern-
ment had not identified any “statement of abrogation or
amendment of the statute,” nor any “disclaimer” of the Gov-
ernment’s “statutory and contractual commitments.” Id.,
at 1335. The dissent also reasoned that precedent under-
mined the court’s conclusion and that the appropriations
riders could not apply retroactively because the Govern-
ment had used the Risk Corridors program to induce insur-
ers 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.
——————
Cl. 1 (2017) (dismissing Maine Community Health’s statutory claims).
Cite as: 590 U. S. ____ (2020) 9
Opinion of the Court
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’ ap-
propriations riders? And third, may petitioners sue the
Government under the Tucker Act to recover on that obli-
gation? Because our answer to each is yes, we reverse.
II
The Risk Corridors statute created a Government obliga-
tion 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 Govern-
ment may incur an obligation by contract or by statute. See
ibid.
Incurring an obligation, of course, is different from pay-
ing 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.”
Art. I, §9, cl. 7; see also GAO, Principles of Federal Appro-
priations Law 2–3 (4th ed. 2016) (hereinafter GAO
Redbook) (“[T]he authority to incur obligations by itself is
not sufficient to authorize payments from the Treasury”).
10 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
Creating and satisfying a Government obligation, there-
fore, 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 appro-
priation, granting “budget authority” to incur obligations
and make payments, and designating the funds to be
drawn; and (4) the relevant Government entity begins in-
curring 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 ob-
ligations 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 satis-
fied. Consider, for example, United States v. Langston, 118
U.S. 389 (1886). In that case, Congress had enacted a stat-
ute 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 re-
mainder. Id., at 393. Understanding that Congress had
Cite as: 590 U. S. ____ (2020) 11
Opinion of the Court
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 pay-
ment,” 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
——————
5 The Government suggests that Langston is irrelevant because that
case predates the Judgment Fund, cf. n. 3, supra, meaning that the Court
“had no occasion” to determine whether the statute at issue “authorized
a money-damages remedy” against the Government, Brief for United
States 30. But by affirming a judgment against the United States, Lang-
ston necessarily confirmed the Government’s obligation to pay independ-
ent of a specific appropriation. What remedies ensure that the Govern-
ment makes good on its duty to pay is a separate question that we take
up below. See Part IV, infra.
12 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
context. See, e.g., Merit Management Group, LP v. FTI Con-
sulting, Inc., 583 U. S. ___, ___ (2018) (slip op., at 11) (stat-
utory interpretation “begins with the text”). The first sign
that the statute imposed an obligation is its mandatory lan-
guage: “shall.” “Unlike the word ‘may,’ which implies dis-
cretion, 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. Mil-
berg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998)
(observing that “ ‘shall’ ” typically “creates an obligation im-
pervious to . . . discretion”). Section 1342 uses the com-
mand 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 statu-
tory formula, and “shall pay” insurers for losses exceeding
the statutory threshold. §§1342(a), (b)(1), 114 Stat. 211, 42
U.S. C. §§18062(a), (b)(1).
Section 1342’s adjacent provisions also underscore its
mandatory nature. In §1341 (a reinsurance program) and
§1343 (a risk-adjustment program), the Affordable Care Act
differentiates between when the HHS Secretary “shall”
take certain actions and when she “may” exercise discre-
tion. See §1341(b)(2), 124 Stat. 209, 42 U.S. C.
§18061(b)(2) (“[T]he Secretary . . . shall include” a formula
that “may be designed” in multiple ways); §1343(b), 124
Stat. 212, 42 U.S. C. §18063(b) (“The Secretary . . . shall
establish” and “may utilize” certain criteria). Yet Congress
chose mandatory terms for §1342. “When,” as is the case
here, Congress “distinguishes between ‘may’ and ‘shall,’ it
is generally clear that ‘shall’ imposes a mandatory duty.”
Kingdomware, 579 U. S., at ___ (slip op., at 9).
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-
Cite as: 590 U. S. ____ (2020) 13
Opinion of the Court
tial payment would satisfy the Government’s whole obliga-
tion. 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, Art. I, §9, cl. 7, and the
Anti-Deficiency Act, 31 U.S. C. §1341, “qualified” that obli-
gation by making “HHS’s payments contingent on appropri-
ations by Congress.” Brief for United States 20. “Because
Congress did not appropriate funds beyond the amounts
collected” from profitable plans, this argument goes, “HHS’s
statutory duty [to pay unprofitable plans] extended only to
disbursing those collected amounts.” Id., at 24–25.
That does not follow. Neither the Appropriations Clause
nor the Anti-Deficiency Act addresses whether Congress it-
self can create or incur an obligation directly by statute.
Rather, both provisions constrain how federal employees
and officers may make or authorize payments without ap-
propriations. See U. S. Const., Art. I, §9, cl. 7 (requiring an
“Appropriatio[n] made by Law” before money may “be
drawn” to satisfy a payment obligation); 31 U.S. C.
§1341(a)(1)(A) (“[A]n officer or employee of the United
——————
6 Our conclusion matches the interpretations that HHS and CMS have
repeated since before the Risk Corridors program began. In the agencies’
view, the Risk Corridors program was “not statutorily required to be
budget neutral” and instead required HHS to “remit payments”
“[r]egardless of the balance of payments and receipts.” 78 Fed. Reg.
15473 (HHS regulation); accord, 79 Fed. Reg. 30260 (CMS regulation
noting that even “[i]n the unlikely event of a shortfall for the 2015 pro-
gram year, . . . the Affordable Care Act requires the Secretary to make
full payments to issuers”).
14 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
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 (quot-
ing 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.” 31 U.S. C.
§1341(a)(1). Here, the Government’s obligation was author-
ized by the Risk Corridors statute.
And contrary to the Government’s view, §1342’s
obligation-creating language does not turn on whether Con-
gress expressly provided “budget authority” before appro-
priating funds. Budget authority is an agency’s power “pro-
vided by Federal law to incur financial obligations,” 88 Stat.
297, 2 U.S. C. §622(2)(A), “that will result in immediate or
future outlays of government funds,” GAO Redbook 2–1; see
also id., at 2–55 (“Agencies may incur obligations only after
Congress grants budget authority”); GAO, A Glossary of
Terms Used in the Federal Budget Process, at 20–21. As
explained above, Congress usually gives budget authority
through an appropriations Act or by expressly granting an
agency authority to contract for the Government. See GAO
Redbook 2–1 to 2–5. But budget authority is not necessary
for Congress itself to create an obligation by statute. See
Langston, 118 U.S., at 394; cf. Raines v. Byrd, 521 U.S.
811, 815 (1997) (treating legal obligations of the Govern-
ment as distinct from budget authority).
The Government’s arguments also conflict with well-
settled principles of statutory interpretation. At bottom,
the Government contends that the existence and extent of
Cite as: 590 U. S. ____ (2020) 15
Opinion of the Court
its obligation here is “subject to the availability of appropri-
ations.” Brief for United States 41. But that language ap-
pears nowhere in §1342, even though Congress could have
expressly limited an obligation to available appropriations
or specific dollar amounts. Indeed, Congress did so explic-
itly in other provisions of the Affordable Care Act.7
——————
7 See, e.g., 42 U.S. C. §280k(a) (“The Secretary . . . shall, subject to the
availability of appropriations, establish a 5-year national, public educa-
tion campaign”); §293k(c) (“Fifteen percent of the amount appropriated
. . . in each . . . fiscal year shall be allocated to [certain] physician assis-
tant training programs”); §293k–1(e) (“There is authorized to be appro-
priated to carry out this section, $10,000,000”); §293k–2(e) (payments
“made to an entity from an award of a grant or contract under [§293k–
2(a)] shall be . . . subject to the availability of appropriations for the fiscal
year involved to make the payments”); §300hh–31(a) (“Subject to the
availability of appropriations, the Secretary . . . shall establish [an
epidemiology-laboratory program] to award grants”); note following
§1396a (“In no case may . . . the aggregate amount of payments made by
the Secretary to eligible States under this section exceed $75,000,000”);
§1397m–1(b)(2)(A) (“Subject to the availability of appropriations . . . the
amount paid to a State for a fiscal year under [an adult protective ser-
vices program] shall equal . . . ”).
This kind of limiting language is not unique to the Affordable Care
Act. When Congress has restricted “shall pay” language to an appropri-
ation or available funds, it has done so expressly. See, e.g., 2 U.S. C.
§2064; 5 U.S. C. §8334; 7 U.S. C. §§2013, 2031, 3243, 6523, 7717; 10
U.S. C. §§1175, 1413a, 1598, 2031, 2410j, 2774, 9780; 12 U.S. C. §3337;
15 U.S. C. §4723; 16 U.S. C. §§45f, 410aa–1, 426n, 459e–1, 460m–16,
698f, 1852; 20 U.S. C. §§80q–5, 1070a, 1134b, 1161g; 22 U.S. C. §2906;
25 U.S. C. §1912; 30 U.S. C. §1314; 32 U.S. C. §716; 34 U.S. C. §12573;
38 U.S. C. §5317A; 42 U.S. C. §§303, 624, 655, 677, 1203, 1353, 1396b,
8623, 12622, 16014, 16512; 46 U.S. C. §§51504, 53106, 53206; 47 U.S. C.
§395; 49 U.S. C. §5312; 50 U.S. C. §§4236, 4237; 52 U.S. C. §21061.
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., 5 U.S. C. §§8102a, 8134, 8461;
7 U.S. C. §§26, 6523; 10 U.S. C. §1413a; 16 U.S. C. §§450e–1, 460kk; 19
U.S. C. §2296; 20 U.S. C. §§1070g–1, 1078, 3988, 5607; 22 U.S. C.
§3681; 30 U.S. C. §1240a; 31 U.S. C. §3343; 38 U.S. C. §1542; 42
U.S. C. §§290bb–38, 295h, 618, 5318a, 15093; 43 U.S. C. §§1356a, 1619;
46 U.S. C. §53106; 50 U.S. C. §4114.
16 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
This Court generally presumes that “ ‘when Congress in-
cludes 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 Afforda-
ble Care Act would be meaningless had §1342 simultane-
ously 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 re-
pealed 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.).
Cite as: 590 U. S. ____ (2020) 17
Opinion of the Court
ternal quotation marks omitted). Presented with two stat-
utes, the Court will “regard each as effective”—unless Con-
gress’ intention to repeal is “ ‘ “clear and manifest,” ’ ” or the
two laws are “irreconcilable.” Morton, 417 U.S., at 550–
551 (quoting United States v. Borden Co., 308 U.S. 188, 198
(1939)); see also FCC v. NextWave Personal Communica-
tions Inc., 537 U.S. 293, 304 (2003) (“[W]hen two statutes
are capable of co-existence, it is the duty of the courts,
absent a clearly expressed congressional intention to the
contrary, to regard each as effective” (internal quotation
marks omitted)).
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 ques-
tion, then, is whether the appropriations riders manifestly
repealed or discharged the Government’s uncapped
obligation.
Langston confirms that the appropriations riders did nei-
ther. Recall that in Langston, Congress had established a
statutory obligation to pay a salary of $7,500, yet later ap-
propriated 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 ex-
pressly or by clear implication modified or repealed the pre-
vious 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
18 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
Government obligation to pay bonuses to military service-
men. 233 U.S., at 511–512. A 1902 statute had provided a
10 percent bonus to officers serving outside the contiguous
United States, but in 1906 and 1907, Congress enacted ap-
propriations funding the bonuses for officers “except [those
in] P[ue]rto Rico and Hawaii.” Id., at 512. Then, in 1908,
Congress enacted a statute stating “ ‘[t]hat the increase of
pay . . . shall be as now provided by law.’ ” Id., at 513. When
Lieutenant Nelson Vulte sought a bonus for his service in
Puerto Rico from 1908 to 1909, the Government refused,
contending that the appropriations Acts had impliedly re-
pealed its obligation altogether.
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 sus-
pend[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. §227, 128 Stat. 2491; accord,
§225, 129 Stat. 2624; §223, 131 Stat. 543. But “no words
Cite as: 590 U. S. ____ (2020) 19
Opinion of the Court
were used to indicate any other purpose than the disburse-
ment of a sum of money for the particular fiscal years.”
Vulte, 233 U.S., at 514. And especially because the Gov-
ernment had already begun incurring the prior year’s obli-
gation each time Congress enacted a rider, reasonable (and
nonrepealing) interpretations exist. Indeed, finding a re-
peal in these circumstances would raise serious questions
whether the appropriations riders retroactively impaired
insurers’ rights to payment. See Landgraf v. USI Film
Products, 511 U.S. 244, 265–266, 280 (1994); see also GAO
Redbook 1–61 to 1–62.
The relevant agencies’ responses to the riders also under-
mine the case for an implied repeal here. Had Congress
“clearly expressed” its intent to repeal, one might have ex-
pected 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 corri-
dors 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 insur-
ers, even “in the event of a shortfall.” Ibid.
Given the Court’s potent presumption in the appropria-
tions 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
20 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
outcome by completely revoking or suspending the underly-
ing obligation before the Government began incurring it.
See United States v. Will, 449 U.S. 200 (1980); United
States v. Dickerson, 310 U.S. 554 (1940). Will concluded
that Congress had canceled an obligation to pay cost-of-
living raises through appropriations bills that bluntly
stated that future raises “ ‘shall not take effect’ ” or that re-
stricted funds from “ ‘this Act or any other Act.’ ” 449 U.S.,
at 206–207, 223.8 Likewise, Dickerson held that a series of
appropriations bills repealed an obligation to pay military-
reenlistment bonuses due in particular fiscal years. See
310 U.S., at 561. One enactment “ ‘hereby suspended’ ” the
bonuses before they took effect, and another “continued”
this suspension for additional years, providing that “ ‘no
part of any appropriation in this or any other Act for the
[next] fiscal year . . . shall be available for the payment [of
the bonuses] notwithstanding’ ” the statute creating the
Government’s obligation to pay. Id., at 555–557.
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 sup-
ports the Federal Circuit’s implied-repeal holding.
The second strand of precedent turned on provisions that
reformed statutory payment formulas in ways “irreconcila-
ble” with the original methods. See United States v. Mitch-
ell, 109 U.S. 146, 150 (1883); see also United States v.
Fisher, 109 U.S. 143, 145–146 (1883). In Mitchell, an ap-
——————
8 Still, Will held unconstitutional the changes that purported to reduce
the Government’s payment obligations after the obligation-creating stat-
utes had already taken effect. See 449 U.S., at 224–226, 230.
Cite as: 590 U. S. ____ (2020) 21
Opinion of the Court
propriations bill decreased the salaries for federal inter-
preters (from $400 to $300) and changed how the agency
would distribute any “ ‘additional pay’ ” (from “ ‘all emolu-
ments and allowances whatsoever’ ” to payments at the
agency head’s discretion). 109 U.S., at 147, 149. And in
Fisher, Congress altered an obligation to pay judges $3,000
per year by providing that a lesser appropriation would be
“ ‘in full compensation’ ” for services rendered in the next
fiscal year. 109 U.S., at 144.9
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., §716, 128 Stat. 2163 (“None of the funds appropriated
or otherwise made available by this or any other Act shall
be used . . . ”); §714, 129 Stat. 2275 (same); §714, 131 Stat.
168 (same). But for the Risk Corridors program, it did not.
——————
9 The Federal Circuit has also recognized that Congress may override
a statutory payment formula through an appropriation that expressly
earmarks a lesser amount for that payment obligation in the upcoming
fiscal year. See Highland Falls-Fort Montgomery Central School Dist. v.
United States, 48 F.3d 1166, 1169–1171 (1995); see also GAO Redbook
2–62 (discussing Highland Falls and noting that earmarking a lesser
amount can create an “irreconcilable conflict” with a statutory payment
formula). Perhaps because these cases do not involve an earmark to sat-
isfy an incompatible payment formula, the Federal Circuit did not rely
on Highland Falls below.
22 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
C
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 re-
quired to repeal a statutory obligation through an appropri-
ations 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 “ex-
planatory statement”) does not cross the clear-expression
threshold. See 160 Cong. Rec. 17805, 18307 (2014); see also
§4, 128 Stat. 2132. That statement interpreted an HHS
regulation as saying that “the risk corridor program will be
budget neutral, meaning the federal government will never
pay out more than it collects.” 160 Cong. Rec., at 18307.10
But that misunderstands the referenced regulation, which
provided only that HHS “project[ed]” that the program
would be budget neutral and that the agency “intend[ed]”
to treat it that way, while making clear that “it [was] diffi-
cult to estimate” the “aggregate risk corridors payments
and charges at [the] time.” 79 Fed. Reg. 13829. HHS’ goals
did not alter its prior interpretation that the Risk Corridors
program was “not statutorily required to be budget neu-
tral.” 78 Fed. Reg. 15473. And neither the floor statement
——————
10 The statement provides in full:
“In 2014, HHS issued a regulation stating that the risk corridor
program will be budget neutral, meaning that the federal government
will never pay out more than it collects from issuers over the three year
period risk corridors are in effect. The agreement includes new bill lan-
guage to prevent the CMS Program Management appropriation account
from being used to support risk corridors payments.” 160 Cong. Rec., at
18307.
Cite as: 590 U. S. ____ (2020) 23
Opinion of the Court
nor the appropriations rider said anything requiring budget
neutrality or redefining §1342’s formula.11
The GAO letter is even more inapt. In it, the GAO re-
sponded to two legislators’ inquiry by identifying two
sources of available funding for the first year of Risk Corri-
dors 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’ law-
suit 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.
——————
11 In this implied-repeal context, it is also telling that Congress
considered—but did not enact—bills containing the type of text that may
have satisfied the clear-expression rule. See e.g., Obamacare Taxpayer
Bailout Protection Act, S. 2214, 113th Cong., 2d Sess., §2 (2014) (“ ‘[T]he
Secretary shall ensure that payments out and payments in . . . are pro-
vided for in amounts that the Secretary determines are necessary to re-
duce to zero the cost . . . to the Federal Government of carrying out the
program under this section’ ”); Taxpayer Bailout Protection Act, S. 359,
114th Cong., 1st Sess., §2 (2015) (“ ‘The Secretary shall ensure that the
amount of payments to plans . . . does not exceed the amount of payments
to the Secretary’ ” and “ ‘shall proportionately decrease the amount of
payments to plans’ ”); Taxpayer Bailout Protection Act, H. R. 724, 114th
Cong., 1st Sess., §2 (2015) (same).
24 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
A
The United States is immune from suit unless it unequiv-
ocally 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 con-
tract with the United States, or for liquidated or unliqui-
dated damages in cases not sounding in tort.” 28 U.S. C.
§1491(a)(1).
The Tucker Act, however, does not create “substantive
rights.” Navajo Nation, 556 U.S., at 290. A plaintiff rely-
ing 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 mon-
etary 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 com-
pensation by the Federal Government for the damage sus-
tained.’ ” 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 suffi-
cient to permit a Tucker Act suit for damages in the Court
Cite as: 590 U. S. ____ (2020) 25
Opinion of the Court
of Federal Claims. White Mountain Apache, 537 U.S., at
472–473.12
But there are two exceptions. The Tucker Act yields
when the obligation-creating statute provides its own de-
tailed remedies, or when the Administrative Procedure Act,
60 Stat. 237, provides an avenue for relief. See Bormes, 568
——————
12 Relying on Alexander v. Sandoval, 532 U.S. 275 (2001), the dissent’s
logic suggests that a federal statute could never provide a cause of action
for damages absent magic words explicitly inviting suit. See post, at 2,
4–7. We have repeatedly rejected that notion—including in opinions
written by Sandoval’s author. See, e.g., United States v. Bormes, 568
U.S. 6, 15–16 (2012); United States v. Navajo Nation, 556 U.S. 287, 290
(2009). Not even Sandoval went as far as the dissent; that decision in-
stead explained that “[t]he judicial task is to interpret the statute Con-
gress has passed to determine whether it displays an intent to create not
just a private right but also a private remedy.” 532 U.S., at 286. That
is precisely what the money-mandating inquiry does: It provides a frame-
work for determining when Congress has authorized a claim against the
Government.
This framework also makes good sense. Cf. post, at 4. As the author
of Sandoval explained, if a statutory obligation to pay money is manda-
tory, 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 pri-
vate property for public use, Amdt. 5; see also First English Evangelical
Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304,
315–316 (1987). Although there is no express cause of action under the
Takings Clause, aggrieved owners can sue through the Tucker Act under
our case law. E.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016–
1017 (1984) (citing United States v. Causby, 328 U.S. 256, 267 (1946)).
26 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
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 dam-
ages, 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 (in-
ternal 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 ob-
ligations, 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. Statu-
tory “ ‘shall pay’ language” often reflects congressional in-
tent “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
Back Pay Act, 5 U.S. C. §5596, may permit damages suits
under the Tucker Act “in carefully limited circumstances”);
Mitchell, 463 U.S., at 217 (similar). Section 1342’s triple
mandate—that the HHS Secretary “shall establish and ad-
minister” the program, “shall provide” for payment accord-
ing to the statutory formula, and “shall pay” qualifying
Cite as: 590 U. S. ____ (2020) 27
Opinion of the Court
insurers—falls comfortably within the class of money-
mandating statutes that permit recovery of money damages
in the Court of Federal Claims.
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 com-
pensate a particular class of persons for past injuries or
labors” from laws that “subsidize future state expendi-
tures.” 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 assert-
edly imposing monetary liability on the United States
contains its own judicial remedies.” Bormes, 568 U. S., at
——————
13 Despite agreeing that “[t]he Court is correct” on the case law, the
dissent proposes supplemental briefing and re-argument. Post, at 4, 8.
We underscore, however, that all Members of this Court agree that to-
day’s cases do not break new doctrinal ground.
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 discre-
tion” 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”).
28 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
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 Fair
Credit Reporting Act, 84 Stat. 1127, and the Agricultural
Marketing Agreement Act of 1937, 50 Stat. 246. The former
superseded the Tucker Act by creating a cause of action,
imposing a statute of limitations, and providing subject-
matter jurisdiction in federal district courts. See 15 U.S. C.
§§1681n, 1681o, 1681p; Bormes, 568 U.S., at 15. And the
latter did so by allowing aggrieved parties to petition the
Secretary of Agriculture and by paving a path for judicial
review. See 7 U.S. C. §608c(15); Horne v. Department of
Agriculture, 569 U.S. 513, 527 (2013).
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 peti-
tioners’ 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 Fed-
eral Claims) for failure to make statutorily required pay-
ments. 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 peti-
tioners pursue here. In Bowen, the State did not seek
money damages, but instead sued for prospective declara-
tory and injunctive relief to clarify the extent of the Govern-
ment’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
Cite as: 590 U. S. ____ (2020) 29
Opinion of the Court
expenditures,” id., at 906, n. 42. Thus, the suit in Bowen
“was not merely for past due sums, but for an injunction to
correct the method of calculating payments going forward.”
Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S.
204, 212 (2002). And because the Court of Federal Claims
“does not have the general equitable powers of a district
court to grant prospective relief,” 487 U.S., at 905, the
Court reasoned that Bowen belonged in district court.
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 liti-
gants’ “complex ongoing relationship,” which made it im-
portant 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 Govern-
ment that occur over time and that involve constantly shift-
ing 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. Peti-
tioners’ prayer for relief under the Risk Corridors statute
looks nothing like the requested redress in Bowen. Peti-
tioners do not ask for prospective, nonmonetary relief to
clarify future obligations; they seek specific sums already
calculated, past due, and designed to compensate for com-
pleted 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 spe-
cial concern about managing a complex ongoing relation-
30 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
Opinion of the Court
ship or tracking ever-changing accounting sheets. Petition-
ers’ suit thus lies in the Tucker Act’s heartland.14
V
In establishing the temporary Risk Corridors program,
Congress created a rare money-mandating obligation re-
quiring 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 statu-
tory 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 it-
self: 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 op-
posite conduct.” Report Relative to a Provision for the Sup-
port of Public Credit (Jan. 9, 1790), in 6 Papers of Alexander
——————
14 The dissent concedes that there may “be some sharply defined cate-
gories of claims that may be properly asserted” through the Tucker
Act “simply as a matter of precedent.” Post, at 6, and nn. 3, 4 (citing
takings, breach-of-contract, failure-to-pay-compensation, and breach-of-
fiduciary-duty claims as examples). Petitioners’ claim—breach of an
unambiguous statutory promise to pay for services rendered to the
Government—fits easily within those precedents. The only differences
the dissent seems to assert here are that the dollar figure is higher and
that petitioners do not deserve a “bailout” for their “bet” that the Federal
Government would comply with federal law. Post, at 2, 3, 7; but cf., e.g.,
79 Fed. Reg. 30260 (assuring insurers with “concerns that risk corridors
collections may not be sufficient to fully fund risk corridors payments”
that the Government would still pay). Our analysis in Tucker Act cases
has never revolved on such results-oriented reasoning.
15 Having found that the Risk Corridors statute is a money-mandating
provision for which a Tucker Act suit lies, we need not resolve petitioners’
alternative arguments for recovery based on an implied-in-fact contract
theory or under the Takings Clause.
Cite as: 590 U. S. ____ (2020) 31
Opinion of the Court
Hamilton 68 (H. Syrett & J. Cooke eds. 1962). Centuries
later, this Court’s case law still concurs.
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.
Cite as: 590 U. S. ____ (2020) 1
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. ___, ___–___ (2020) (slip
op., at 5–6), after noting a 1975 decision1 inferring a private
——————
1 N.M. (J.) v. Railway Express Agency, Inc., 421 U.S. 454, 459 (1975).
2 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
ALITO, J., dissenting
right of action under 42 U.S. C. §1981, we wrote the follow-
ing about that decision:
“That was during a period when the Court often ‘as-
sumed 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. ___, ___ (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 tri-
bunals.’ 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. ___
(2020), we made the same point and accordingly refused to
infer a cause of action under the Fourth Amendment for an
allegedly unjustified cross-border shooting. We reasoned
that “a lawmaking body that enacts a provision that creates
a right . . . may not wish to pursue the provision’s purpose
to the extent of authorizing private suits for damages.” Id.,
at ___ (slip op., at 5). Other recent opinions are similar.
See, e.g., Ziglar v. Abbasi, 582 U. S. ___, ___–___, ___ (2017)
(slip op., at 9–12, 23); Jesner v. Arab Bank, PLC, 584 U. S.
___, ___–___ (2018) (slip op., at 18–19); id., at ___ (THOMAS,
J., concurring) (slip op., at 1); id., at ___, ___–___ (ALITO, J.,
concurring in part and concurring in judgment) (slip op., at
1, 3–4); id., at ___ (GORSUCH, J., concurring in part and con-
curring in judgment) (slip op., at 1).
Today, however, the Court infers a private right of action
that has the effect of providing a massive bailout for insur-
ance 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
Cite as: 590 U. S. ____ (2020) 3
ALITO, J., dissenting
for the sake of argument that the Court is correct in holding
that §1342 of the Affordable Care Act created an obligation
that was not rescinded by subsequent appropriations rid-
ers. Thus, for present purposes, I do not dispute the thrust
of the analysis in Parts I–III of the opinion of the Court.
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, 28 U.S. C. §1491, un-
der which petitioners brought suit, provides a waiver of sov-
ereign immunity and a grant of federal-court jurisdiction,
but it does not create any right of action. See, e.g., United
States v. Navajo Nation, 556 U.S. 287, 290 (2009). Nor does
any other federal statute expressly create such a right of
action. The Court, however, holds that §1342 of the Afford-
able Care Act does so by implication. Because §1342 says
that the United States “shall pay” for the companies’ losses,
42 U.S. C. §18062(b)(1), the Court finds it is proper to infer
a private right of action to recover for these losses.
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 pro-
gram 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––ap-
pears in many other federal statutes.
II
The Court concludes that it is proper for us to recognize
4 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
ALITO, J., dissenting
a right of action to collect damages from the United States
under any statute that “ ‘can fairly be interpreted as man-
dating compensation.’ ” Ante, at 24. The Court is correct
that prior cases have set out this test, but as the Court
acknowledges, we have “[r]arely” had to determine whether
it was met. See ante, at 26. And we have certainly never
inferred such a right in a case even remotely like these.
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 ex-
plain 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) (empha-
sis 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 re-
quires 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 ques-
tionable.2
III
There is obvious tension between what the Court now
——————
2 Moreover, there is at least an argument that the Court’s application
of the test here is itself in conflict with United States v. Testan, 424 U.S.
392, 400 (1976), which also directed that the “grant of a right of action
must be made with specificity.”
Cite as: 590 U. S. ____ (2020) 5
ALITO, J., dissenting
calls the “money-mandating” test, ante, at 26–27, and our
recent decisions regarding the recognition of private rights
of action. Take the statute at issue in our Comcast decision.
That provision, 42 U.S. C. §1981(a), states:
“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 prop-
erty 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 recogni-
tion 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 dif-
ferent conclusion with respect to the “shall pay” language
in §1342 of the Affordable Care Act? Similarly, the Fourth
Amendment provides that “[t]he right of the people to be
secure . . . against unreasonable . . . seizures . . . shall not
be violated.” (Emphasis added.) Can this rights-mandating
language be distinguished from what the Court describes
as the “money-mandating” language found in §1342? See
Hernández, 589 U. S., at ___, ___–___ (slip op., at 8, 19–20)
(rejecting extension of Bivens v. Six Unknown Fed. Narcot-
ics Agents, 403 U.S. 388 (1971), to Fourth Amendment
claim arising in a “new context”).
One might argue that the assumptions underlying the en-
actment of the Tucker Act justify our exercising more lee-
way in inferring rights of action that may be asserted under
that Act. When the Tucker Act was enacted in 1887, Con-
gress 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
6 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
ALITO, J., dissenting
law. But since Erie R. Co. v. Tompkins, 304 U.S. 64 (1938),
the federal courts have lacked this power. Yet the “money-
mandating” test that the Court applies today, ante, at 26–
27, and n. 13, bears a disquieting resemblance to the sort of
test that a common-law court might use in deciding
whether to create a new cause of action. To be sure, some
of the claims asserted under the Tucker Act, most notably
contract claims, are governed by the new federal common
law that applies in limited areas involving “ ‘uniquely fed-
eral interests.’ ” Boyle v. United Technologies Corp., 487
U.S. 500, 504 (1988); see also Testan, 424 U.S., at 400.
And the recognition of an implied right to recover on such
claims is thus easy to reconcile with the post-Erie regime.
There may also be some sharply defined categories of
claims3 that may be properly asserted simply as a matter of
precedent.4 But the exercise of common-law power in cases
like the ones now before us is a different matter.
An argument based on Congress’s assumptions in enact-
ing the Tucker Act would present a question that is similar
to one we have confronted under the Alien Tort Statute
——————
3 Takings claims are an example. During the period when federal
courts applied general common law, such claims were brought under the
Tucker Act, apparently on the theory of implied contract. See, e.g., Hur-
ley v. Kincaid, 285 U.S. 95, 104 (1932); United States v. Lynah, 188 U.S.
445, 458–459 (1903). But the Court rejected the argument that a takings
claim could be based “exclusively on the Constitution, without reference
to any statute of the United States, or to any contract arising under an
act of Congress.” Hooe v. United States, 218 U.S. 322, 335 (1910).
4 Compare Testan, 424 U.S., at 400 (suggesting that private remedies
might be available for contract claims); United States v. Mitchell, 463
U.S. 206, 224–228 (1983) (relying on “fiduciary relationship . . . [that]
arises when the Government assumes . . . control over forests and prop-
erty belonging to Indians” to create cause of action); Bell v. United States,
366 U.S. 393 (1961) (adjudicating suit brought by former service mem-
bers for compensation while they were prisoners of war), with Bowen v.
Massachusetts, 487 U.S. 879, 905, n. 42 (1988) (rejecting cause of action
cognizable under the Tucker Act based on “shall pay” requirement under
the Medicaid Act, 42 U.S. C. §1396b(a)).
Cite as: 590 U. S. ____ (2020) 7
ALITO, J., dissenting
(ATS), a provision like the Tucker Act that grants federal
jurisdiction but does not itself create any right of action.
Sosa v. Alvarez-Machain, 542 U.S. 692, 713 (2004). Our
cases have assumed that the ATS was enacted on the as-
sumption that it would provide a jurisdictional basis for
plaintiffs to assert common-law claims, see id., at 724, but
our recent cases have held that even there, we should exer-
cise “great caution” before recognizing any new claims not
created by statute, id., at 728. See also Jesner, 584 U. S.,
at ___–___ (slip op., at 18–19); Kiobel v. Royal Dutch Petro-
leum Co., 569 U.S. 108, 116–117 (2013). There is every
reason to believe that a similar caution should guide cases
under the Tucker Act—especially when billions of dollars
of federal funds are at stake. The money-mandating test
that the Court applies here is in stark tension with this
precedent.
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 ap-
proach 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
——————
5 The Court claims that the logic of this opinion “suggests that a federal
statute could never provide a cause of action for damages absent magic
words explicitly inviting suit.” Ante, at 25, n. 12. But all I suggest is
that the Court request briefing on the question of inferring causes of ac-
tion to recover damages under the Tucker Act. The Court makes no effort
to explain how the test it applies here can be reconciled with our general
approach to inferring private rights of action but is apparently content
to allow that inconsistency to remain.
8 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES
ALITO, J., dissenting
briefing and argument that we have received have not fully
addressed this important question, I would request supple-
mental briefing and set the cases for re-argument next
Term.
For these reasons, I respectfully dissent.
——————
The Court is flatly wrong in saying that the test in Alexander v. Sand-
oval, 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 so-
phisticated 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.