insurance versus united states i think we have questions about the finale of the judgment in the community health choice and main cases and before we start the clock on the merits we would like to hear parties or views on whether we do have the final judgement over which we have jurisdiction  so would the government please address that then the community health choice case there's this joint status report as the order proved by the of federal claims which appears to have the government reserving a liability and and damages arguments and in particular the question of whether there should be a reduction because of the tax credit so your honor that was an argument that the chief judge rejected in the opinion and we were just preserving it for appeal just for clarity it doesn't sound like that they wouldn't i mean i think this is the shared understanding of the party as your honor is that the we made these arguments in our briefing to the trial court and they were rejected and we were just making clear that by stipulating to the  liability and as a matter of damage as we do not see it open and that the trial court's perspective to make that argument absence of a reversal it did you brief the issue of the premium increases set aside understood the opinion not to leave room to renew before the trial where the argument in the context of damages yes but was that because you didn't properly raise the issue or that the trial court was rejected we took it dispute or discussion about whether the order in had been raised i think and i don't want to wade into the substance of the argument today but i believe that the jets we need view the issue as the same regardless of whether the government was may the three cases the chief judge sweeney decided there was an joint oral argument and essentially identical opinions and we understood the opinions to have exactly the same a fact which is to resolve as a merits matter assumption that the parties nade that this was only going to be on liability you going to i am i didn't present be argument and i don't want to state what might have been in councils had l it like getting was it presented i  it presented it as an argument soley going to liability ms not that i believe but what i what i say with confidence is that the government in reading juve john sweeney opinions took at to for closing to address in anticipation the merits of any damages argument in addition to the existence of a damage counsel's understanding with respect to the main case also it and will for maine your honor yes and it's a bit of a stock strange posture for main because main stipulated to the same posture that community health choice was in and in the main portion of this case we are actually in this was a stipulation of the parties we are relying we agreed not to brief it separately for main and we're relying on the briefing of the parties to community health choice in the government but our understanding of the post e and how it was resolved by the chief judge means the same as mr roberts reported just to be clear about that in other words that there is a final judgment there's nothing left to be decided a trial or and that the proc or rejected the damages that waiver of the damages we will not be arguing waiver we are prepared to are well i'm speaking from maine ok we'll make it we should here we are prepared to argue the merits of that of that issue is that is that the same for the other part is the damages issue was not raised at the trial court is that correct and that i think should hear from the government hurst about the stanford in montana it was a slightly different posture in that they brought separate lawsuits so is the sanford in one can of cases come to us there is no damages issue in those two cases there is correct that there is not the same damages issue and a reason that we wanted to make sure the community case understanding i mean i don't want to speak for the government but that's our understanding just with the don't confirm that is to twenty seven t there is no offset or just because of the happenstance that it was brought as a series of made in the center gets and so so to that extent the argument regarding the premium increase potential premium increases was made with respect to twenty seven to yes and in those cases and in  well i can remember the full name but it's i believe in abeyance in this court and the other one which is common ground which is the class action we've very recently moved for a bands and i think just yesterday the other side opposed  ground the class action which was the very recent one i know that the class council i believe yesterday just opposed the bans and that that has not been decided yet but the  on liability that damages ought to be reduced because of the premium increases and tax credits yes and you think that already was preserved right yes because it was rejected anticipat stipulated to damages for two thousand and seventeen and there is no quantum for maine just like montana  and eighteen should be the actual damages regardless of the large increase in tax credits for twenty eight thousand years ok so it sounds to me as though everybody's agree except with respect to twenty yes ok which may bring us back to the question of whether the summary judgment motions were directed at showing that the question liability because if they were was going to be at issue but that doesn't mean that i mean what we need to understand is not are determined down the road perhaps whether there's been a waiver with respect and seventeen is whether that was the way the summary judgment proceeding was presented to the parties that it was that was it put it simply was the government not at subsidies that congress has declined to fund and there are a number of reasons that answer is no some of which do overlap with moda but in particular here even assuming it would ever be appropriate to interpret statutory directive an agency to make payment without regard to the n t deficiency act and even assuming it would ever be appropriate to conclude that congress intended implicitly a damages remedy for congress own funding decisions it would not be appropriate here because of the tax and structure of the cia which means that if congress doesn't find these cautioning subsidies directly you know as a to just add request into an annual procreation early on they just end up being paid by the government indirectly in the form of increased premium tax credits and you know so in other words the premium tax credit issue isn't presented in mota and that's a distinguishing feature yet yes your honor that's correct and also just to be clear these points though you know they may be unfamiliar in the general sense these are very familiar for anyone who is looking at the affordable care act and understands the basics of health insurance pricing it you know and can that be old a defense to war ability as opposed to an organ for damages because the question is whether to interpret  provide a damages remedy that congress did not explicitly provide that's just a statutory interpretation question in the language the supreme court has used the navajo nation to and informs is whether the subsequent lawsuit here in the a c i can fairly be interpreted as mandating compensation for damages sustained as a result of and here it would be congress's funding decisions that made it impossible for h h s to make the to pay these cautioning subsidies directly and as with any question of statutory interpretation you don't just look to minnesota a phrase in isolation of the statute you consider the tax and structure of the provision and related provisions and he directly and the bottom line and this is in the that ass beat issue brief it cited in our brief but also quoted in the common ground anika sprit that the class submitted before this court in effect the federal government would pay c ning reductions indirectly through increased premium tax credits and it goes on to say at much greater total expense the the expenses greater because of  makes tax credits not only linked to certain benchmark premiums but it makes those tax credits available to a significantly larger universe of people than the people who are getting the reduced  posturing by virtue of it and what the relationship between the increased tax credits and the benefits to the insurance company depends does it not on the willingness of the state regulators to adjust premiums well this is where i'm going to help refer to  rate on the other side by one hundred insurers and what they say correctly is insurers have to price premiums to recoup their costs one of their costs is if they're told lower your deductibles for a certain category of insured it's kind of like night follows day they have to raise the premiums and the insurance but they're not necessarily free to raise their premiums of state regulators don't permit them well but the state regulators and then congress enacted the a c l u against the background of the state regulation the state regulators one of their most important responsibilities is to ensure the solvency of the insurers to make sure that if you happen to be in north dakota  you're why does a deterrence company that's doing business in north dakota where the insurance premiums were not allowed to go up why do they benefit from the premium tax credit increases actually let me just north dakota and vermont were two states that typically are they've all gone up now it was just because of particularities of the vermont in north dakota markets that they couldn't go up as quickly as an all of the rest of the states the district of columbia is also different  that's the the medicaid program there is so generous covers so many people that you don't have a significant issue a crushing subsidy so that was just kind of an accident of history because a retrospect mistakenly paid these questioning amounts from the wrong fund you know from the permanent appropriation for tax credits for a number of years and when it eventually came to appreciate that no that was not permissible the announcement was made in late october two thousand and seventeen and just happened to be in two states but that was too late for them to make the adjustment but then they didn't the adjustment the following year there's no question that when congress back you know at the dawn of that the common ground amica sprit stresses correctly and so heavily that that's just axiomatic as a matter of health insurance pricing and then the other piece is just flows directly from the text and structure of the  which is that if benchmark premiums go up tax credits go up dollar for dollar and in fact because so many more people get tax credits than these washing subsidies it's it the result the bottom line is more federal spending and no damages and so it's unsurprising that congress did not provide a damages remedy explicitly and it would be wholly unwarranted to imply i want her to infer one in the provision from prior to the advancement of well there's not much legislative history on the a c l u but these points are not actually in dispute and they may flow directly from the text and structure of the a c i at the same type of subsidies were not being directly made what happens in the states and who did it but as i understand your argument you have an argument this point if as i understand it correct me if i'm wrong is that the understanding of the it didn't contemplate the need for damages from it yes ok and so i guess you're talking then about that congress that enacted the a cia yes from which i would i guess expect to see  materials i'm not in congress because of the unusual process but but somewhere from that time expressing everybody's wherever everybody is understanding of the relation between these two things on which and ten congressional intent well here's what i can give the court it although this particular issue of caution erring subsidies and premiums was an address with specificity the big issue that the congressional budget office  address before the a c m with an act and in its you know key issues and health insurance reform was what happens when premiums go up and that was very explicitly was as a result of the structure of the a c s tax credit  that interprets a statute to say claimant gets a damages remedy because congress has declined to fund a program i know there's claim of a century but we have said repeatedly we can't find a single that seems to be that different or what it is it is it's the obviously this is the vote argument but just to put in context there is no case that has ever awarded damages which the supreme court hasn't done for quite a long time just in general and certainly didn't do in length then but now we're coming to this case would take it to a whole new level which has and i'm going to read this line from the h s analysis back in tw fifteen what happens a cautionary reduction subsidies aren't paid directly in effect the federal government would pay reductions indirectly through increased premium tax credits so to say that in that universe which congress would have understood no you know if you don't pay the subsidies directly they're going to come up and they're going to come out in the increased premium tax credits that we should all sell infer that congress wanted to damage as remedy that it did not choose to enact credit operation wouldn't affect the employed confident or well it would because the question is did congress looking at the language all of the language of the statue did congress have any intention to enter program there was an implied in fact contract so we're no longer talking about the statutory obligation at that point are you left as to premium tack or tax credits only of this may be a very big deal with  damages for reduction no because when i just st i want to clear we don't believe that the supreme court goes back and looks at the cases that this court recently reviewed in the american bankers association case cases like dodge and wisconsin  expressed the hope that the supreme court would go back and read that line of cases and we very much share that help because we think this court was one hundred percent correct in its recent american bankers association case to say that there is an incredibly strong presumption against treating  statutory benefits program as a binding the government contract in situations far more sympathetic where can that schoolteachers where the statute said if you work twenty years and then retire you shall be entitled to one thousand five hundred dollars  be for life and then the legislature later cut it to two thousand five hundred dollars and they said we rely on you know we work twenty years then we retired and you cut it that's a breach of contract in the supreme court the no contract you know once that similar thing the railway case just to be clear we trust that the supreme court is going to go back and read their precedents the once this court reviewed and is not going to find an implied in fact contract but hypothetically imagining that they did they would have to be concluding from the a cia that congress had an intent to enter into risk orders contracts and we don't know how they could say that here you would look in saying contract this is just that the requirement to reduce cost you know so much smaller deductibles that's just classic insurance regulation of the sort that congress has done for decades and it's done in other ac a provisions it's not different in kind from saying insurers have to cover prescription drugs which they say also says all of that just means premiums are higher so that there's no contract there's just a mandate under the commerce power and it happens that congress also chose to have a authorize a targeted form of if the court were going to interpret the a c a to conclude that congress actually intended some form of damages remedy then the question would still remain what kind of damages remedy is it one that does or does not take into account the don't know of any case i couldn't find any case where you had this kind of hydraulic relationship between the you know pushing subsidy on the one hand and the tax credits on the other there's you know sometimes there are cases that it's cited on the other side about anti know kind of passed through to consumers but that's not what we're talking about here we're talking about the government actually its own outlay is increasing by substantially more than the cautionary payment but if that were not i don't know if this is relevant but what about  unlawful if that person right after getting fired went and got a higher paying job does that factor into the damages award i don't know when i can assume not i think if it's an because i haven't read this i don't want to speak out of turn but if that's right this is even easier because their insurers don't have to even do anything if there's no other hand there are other doctrines like the collateral sourced doctrine where you don't count money that the insurance company may have paid you for your injury for example and toward kids so that is that's the other way that's actually what i had in mind and my point is that this is not a collateral source this is these are two provisions adjacent provisions of the a c a that are hydraulically linked as written by congress and the idea that if you are implying a damages remedy so again that the court is essentially writing the remedy and deciding it's scope then you wouldn't think about the fact that if cautioning subsidies aren't paid directly they get paid indirectly you know if they're not paid under fourteen other two they get paid under fourteen i won it's hard to imagine why what rational argument with specific reference to the use and efficiency act moving their party well get the question out are you in effect saying that every statute necessarily is read to say every statute providing for a payment from the government is necessarily read as a saying subject to appropriations even if that language is not in the statute that's basically your make explicit this provision represents the obligation of the government and provides authority to make payment in advance of appropriations so we're not saying that congress has not if it wants to make something an obligation in advance of appropriations congress can do that but if you just have basically language like the ass which just says agency x you shall make payment that there's no question that the n t deficiency act prohibits the agency from making the payment in last and until it gets the appropriation and that's true whether or not congress makes explicit in that substantive law that this is subject to appropriations but that the fact that the  and efficiency act may limit the ability of the officers to make the payment doesn't necessarily speak to the question of whether the judge can be entered which is i take it the distinction that's drawn in several of our cases and in fact there's a line in underscore it was also underscored by the deputy solicitor general in the supreme court argument that it is a mistake particularly a ca to accord significance to that subject to the availability of appropriations language if you just compare for medicine and other training the language is you know largely identical they're clearly both discretionary and one has subject to the availability appropriations and the other doesn't and the point just being the one that the chief justice emphasized in the king decision good morning to me please the court from dan wolf as we discussed earlier i represent sanford montana and then also maine and mr roberts of counsel table stand up separately to address community health choice  the government in this case invites complexity where there is no this is st and last case about statutory interpretation you were not called here to talk about the implied contract section miss miss miss klein was sad to leave and we imply in fact contract theory absolutely and it's even stronger in this case than it was and motive for the reasons laid out by chief is abandon the key term that governs which in this case you shall make and i would submit to this court you are decide this case you decide this case in mode in mota just tracked a long line of cases before to situations where there is a pay but no appropriation directive to pay no appropriation that covers that what other cases are there besides the keep the key cases we have langston of course   no specific appropriation that's applicable to that directive in this case are there any other cases with those facts other than the ones that well slattery confronts front confronts this directly by saying we don't consider says and i quote the mere absence of a more specific appropriation is not necessarily a defense to recovery from the fine citing salazar v rama so the government frankly agrees with us at least in other settings an appropriation is not necessary for this court in the court of federal claims below it to adjudicate the wholly distinct question of liability and that's the centuries old proposition that reciting because that's what's key here now let's take at the payment move taxes act which was also an issue in prairie county and in that case this court pointed out the significance of congress woman ng the exposure of the fisc through the use of the words subject to the availability of appropriations or words to that effect and importantly we don't have that here and you can't just dismiss the absence congress's choice not to use those words as at only speaks to government agency only limits the ability of government agents to pay when there is no appropriation which we are not challenging h h s is the  that's wasn't the question is that obviously we're talking about something that bowen discussed a lot about the two possible ways of challenging this if you had brought an a p a action with the anti deficiency act have precluded you from prevailing in that act against h h s because you couldn't issue an order to them to pay why do you think and i do think that if some other entity had gone to federal district court to challenge each ask coming up well fact i believe the california v trump case although that was decided the preliminary injunction phase that may have been an instance of that although that the court didn't ultimately get to the merits because it only ruled on a preliminary injunction but to take just a step back and take the hypothetical yeah i think that under the a p a if one were to go to federal district court in argue that each h s was arbitrary  liability for damages two totally different cases and as a matter of fact and i'm going to reference some footnotes in the in the bowen decision because there's justice sc involves programatic only complex overlap in cooperation between the federal and state governments on and on and one of those footnotes maybe forty two dollars suggests something kind of  statutes like the back pay act which also have the shall pay or shall make language the character this is what i guess i'm remembering that with a characterization of those tucker at cases as involving a kind of harm already done for which recovery was beings with this case fall into that or you saying that's just not as limiting as it might sound well this case falls into the and i'm not sure i'm understanding the line you're drawing this case falls into the greenlee county egg we ochlik the line of cases where shouting means shot and that's an important point because at the end of the day the government really doesn't confront what shall make means of it doesn't mean sh shall make mean show me you would expect to find if there was this coupling to be made some kind of reference shall make if state regulators do don't do this about premiums and you don't dollars of the community health choice relief this is the attorney general of the united states at the time just session talking about how the two programs are distinct she says each is authorized by a separate provision separate title in the u s code they have a different focus they each have a different eligibility formula he goes on to say that it does not mean that c s our payments are the same as tax credits under thirty six billion dollars that wasn't it that was in support of the legal can that was get that was why the tax rate for t authorized appropriations right the argument from the government is that everybody understands the as i think that word is hydraulic d relationship between what happens to premiums and these kinds of costs and therefore not on the question of whether congress intended them the amounts that it says shall be paid to the pay of course it expected that but whether for the separate part of the of the inquiry into money money mandate character or not of the statute congress expected in under the fairly discernible standard that damages would be a remedy if that application was not carried out and the government doesn't have a single name there was a judicial remedy here we're left with no remedy it's a judge bryson's earlier question to two to my friend from the government this was this is to assume that congress left the remedy up to fifty states plus other territories that have their own programs and to infer that as an intent of congress would be unprecedented and the better way to think about this is as judge sweeney into the judge kaplan judge we were look at this which is we take  o two for what it is it says you shall establish a program you require the plans to make payments and then you say you shall make that up to them in the dollar for dollar reimbursement that's how fortunate to should be interpreted in this case is this court's money within the last two decades contract decision from this court and i think we mr roberts will see will amplify this so even in a contract setting like the rico setting or like the and i trust sec we don't look to what cost got passed on and there's an important reason for that one is what i would start to refer to earlier which is attorney general is actually the owners to that cost that are passed on the question well for example i should work to the question here is if as a result of the government's breach the insurers to see compensation through the tax credits why doesn't the objective of making them whole for any losses have to take  relationship between the plans right in the in the consumer but not all consumers of the rate get reimbursed from congress some have to pay it out of pocket is only the eligible insurance that get reimbursed just because congress as a separate policy decision chooses to subsidize those payers that doesn't change the nature of the relationship between communities or the insurance companies i'm sorry the money goes to the insurance from the consumer which happens to be subsidized by the actually that the tax credits though earned by the consumer actually go to the sures the plans are a conduit that is correct your honor but the fine of eight a premium is quintessentially a contractual relationship between the consumer and the plan it's not as bad as chief judge sweeney said payment for tax credit from tax credits don't equal payment for c s are there two totally different things and i commend you to jeff sessions opinion on this which is not recognized because there isn't going to be at the end of the day any kind of windfall or double recovery as the government puts in footnote eleven and this isn't one of that well as the government hides in footnote eleven of the sanford brief at the at the federal level there is something called the medical ratio which limits the amount of revenue a plan continues to do with the calculation which is exactly why when the word is not before the court the basic question before us is if insurers are made whole through tax credits why should they cover a man pursuant to either the contract they read or the statutory they are not made whole your honor they are not made hold of we don't know and presumably with no briefing on the specific thing on the damages issue and here we are with you all have given us a total of six pages of briefing on this issue and no elaboration of any of the details that you've both been talking about in conflicting terms as to whether there is isn't or is sort of is our start of isn't a recovery by the insurance companies but the question is if the insurance  indirectly or directly from the from the gov all the money that they were deprived of and the cost sharing should they still get in effect a double recovery that legally to me that seems to be the question that that what you're suggesting i think yes is the answer that i'm i'm i'm saying that the premise that they're getting a double recovery is incredibly that's that's the issue that wasn't the used communications case number let mr roberts amplify this because he states them in his in his brief as a legal matter the court simply don't allow the other side to bring in as evidence of mitigation the sorts of costs that are passed on question is what this  courtroom mission i'll jump into the discussion as it as it is flowing and discuss the damages question and whether premium tax credits going in some form either eliminate or or reduce the appropriate damages amount in this case i think of just a take a hypothetical let's assume as a result of the premium increases and the tax credits for a particular year that the insurer is made why should the insurer get double recover what is the theory as to why that should happen the theory is is based on prevailing law going back to one thousand nine hundred and eighteen with justice holmes case the southern pacific railroad that and so in a person who fails to pay an amount due or over charges in the an address context usually is not entitle him to take advantage of the victims passing on some or all of that nonpayment to their customers through price increases but that's quite different this is the government paying twice and i disagree with the court's analysis there this is exactly similar the only difference is the government government separately under a different program in a different part for you know one agreed to help out our customers to pay their premiums to us but it is a distinct transaction not with the government but with the customer just as a matter of policy or watch it why should the insurers repub or twice the policy or logic is that our government needs to hold itself accountable when it fails to follow through on an unambiguous lee mandatory obligation to pay c s r reimbursements under the snow two hundred dollars of our deterrent effect of judgment i would not say that you would end up with of double recovery but the government learned its lesson well and there's more to it than that i would not say punitive but i do think it is an important principle of our law that the government should be held accountable under the same circumstances as a private party based upon the same kind of wrongful conduct what we have here is a violation of a statute similar to an antitrust violation or a breach of a contract which that case talks so one reason for that for the rule that does not allow the wrongdoer to take advantage of a passing on of cost through a price increase is that we need to hold the violator account but there's more to it than that in addition there is the policy concern that in the law of damages we look at the immediate direct consequences we have a non payment there is a very clear and really undisputed direct injury the exact amount of money that the statute orders the government to pay pursuant to one thousand four hundred and two dollars that is damage any damages treatise will agree that is direct injury known the question is whether the government is entitled to bring in an affirmative defense in effect and say yes i owe you that money but you got it from another source perhaps that source ultimately was a different fund of money that comes out of the government but it is another source and therefore i don't have to pay you what the statute required me to pay and i can ask you this question if if you we covered the full c s r payments here say for two thousand and eighteen and you've already  excess you that there are legal safeguards to prevent windfalls and excess profits for insurance companies the exact mechanisms could vary state to state but i think it is clear that either in the form of rebates or adjustment of other premiums insurance companies aren't are not going to be allowed to simply pocket this money ok that may be true and that might affect the damages calculation but why is that a possibility we that if in fact we do get will not be i think we haven't really sued for purposes of deciding this that there is a possibility of a windfall and the question is whether the government is going to be able to prove that women i understand that  agree that as a matter of law this is not a defense the government is entitled to raise either with respect to live realty or damages and in order to address that head on i do i agree with you honor's distinction between the statutory claimant a breach of contract claim regarding the statutory claim we have a money mandating statute like the salary cases from long ago this statute is very specific it instructs the government who to pay and exactly how much to pay the remedy under the tucker act is to address that the loss of the legal right to compensation that has occurred here and that legal right is for the amount that the statutes isn't there a separate question of liability and remedy and you know i guess i'm thinking at one analogy maybe not familiar to you at the patent world in the e p a context the supreme court said the statute says you have a right to exclude a separate question of remedy about whether you actually get an injunction to exclude and i think it said something somewhat general about right is one question here that right that you're asserting isn't right to have make payments ma e but the question is what a separate question what is the remedy for the violation of that right and now we're talking about having to draw on remedial pays well i would say that  it is true we have not found a case that discusses specifically whether the government is entitled to raise offsets or a defense like the passing on the fence in response to a violation of a money mandating statute i don't know that there is such a case certainly there is not one suggesting they can and in my judgment the answer in that that hume is to look at the statute and apply the statute as written and in force it as written that is what the three judges below have all done in response to this situation and i think that's particularly appropriate given that there truly is no textual hook or legislative history hook whatsoever respectfully for the government's argument here the the publications coun mention from two thousand and fifteen is an h h s issue brief that's not legislative history by anyone's definition and there is simply no committee report no discussion no florida's question anyone suggesting that there should be a linkage let alone the kind of linkage this being advocated here between the payment of c s ours and the premium tax credits they truly are distinct programs serving distinct purposes the premium tax credits help the consumers afford to buy the insurance the c s r s help them afford to use it to get health care those are two different things and the statute designs them to be two separate payments out of two separate buckets and it is simply not appropriate to offset one or the other and there's no indication that congress intended that to be the result here with regard to the to the contract claim and in the of the law we cite in our brief on the passing on defense it is a proposition that does prevail throughout the law judge easterbrook talks about this in the carter v berger case that as i say passing on of pricing increases by the victim of a wrong does not give a defense to the wrongdoer and that's generally true and that's a that was in a trust case i think and it's generally true and tort cases as well but there there's a hughes satellite company by the amount that he was recruit i'm reading quoting from the case here recruited by increasing prices to customers in other words by the amount used pass through to its cost customers the court of federal claims did not allow the government to assert this defense that was affirmed by this court back in two thousand and one and it recognized the same principles we mentioned in our brief as justice holmes said i wasn't the case either where the government was saying what's right well argued and i'm sure the government was arguing you're asking me to paste damages to hughes they got their damages recovered when they raised their prices to their customers i'm sure that was the argument but the government was victim ultimately but then the class social plight i think that that would be a matter of right back if there were not i mean that i don't think that's necessarily true i think there would have to be an agreement between the wrongdoer i that's  understanding the rule but good in this context we have a breach of contract and the other important policy reason that that that drives the notion that we should not go to this next step of looking at the price increase to our customers in the implications as it is is there is a remote in set of events from the actual nonpayment and it opens up a can of worms regarding what is the actual overall economic impact of the government's violation here this is a complex marketplace there are lots of consequences to the government's nonpayment of the c s r s some perhaps do create some additional revenue it's possible to the insurance companies but others drastically reduce it in our case we know that the the sales of c s r policies the silver plans have gone down a lot for community as a result of these non payments because they've gotten more expensive and there are other unknown consequences and the courts recognize that this is not a task that is appropriate to ask the trial court to do to to do the kind of complex reverse engineering economic analysis to try to figure out the overall economic effects of this wrong rather the law looks to the direct and proximate issues and concludes we have a clear violation we have a clear amount due that should end the matter and that's that's what the doctrine stands for and we think it applies here particularly in light of the fact that we have a money mandating statute that does not provide for any o my wouldn't i have a couple of minutes i'll apply i'll address the implied in fact contract if it's a court will entertain that we do have unanimity below here to both judge sweeney and judge wheeler found an implied in fact contract judge kaplan did not address the issue so she did not rule one way or the other we certainly do acknowledge this court's ruling in the motor case that there was no implied in fact contract under the risk or doors program  but we think this case is distinct on that issue because unlike there where this court found no none of the trappings quote unquote of a contractual agreement we think those trappings very much exist here if one looks at know two in the very same section of the statute it creates reciprocal obligations the government knows must make these payments the insurance companies must provide the reductions to their insurance they're both reciprocal obligations the statute can be viewed as an offer the insurance company's performance of the duty of providing these reductions can be viewed as an acceptance of that offer and a delivery of oh by the way we're going to ameliorate the harshness of regulation by giving you a fun funding for this as opposed to being a hunter act which parties have a mutual meeting of the minds and well i thought the banking case that that the government recently cited to the court is different in that there are there was a bit of cherry picking going on by the by the government has to pay exactly the value of the reductions that insurance companies provide to the insurance it seems much more like a reciprocal obligation than simply a regulation  certainly the lower courts view that way and i do think it is significant as well that the government did perform under this arrangement for a forty five months thirty three quarters years before it stopped payments and we do think that the new york airways case which is significant for a number of points at issue in this appeal is also quite relevant on the implied in fact contract claim and so should be considered i do want to conclude with my last fifteen seconds here matter that the two instructions are in force you know two if you look back and it was one sentence that basically said school teachers who work twenty years shall be entitled to one thousand five hundred dollars a year and that packaging did not make it an implied in fact contract here there is an insurance regulation lower deductibles and co pays for a certain category of insureds there was no funding for that in the a cia the consequence congress never chose to fund it is that reimburse insurers are crushing reductions insurers would increase plan premiums to cover these costs as a result of the a c s structure these higher premiums would translate into higher federal costs for premium very precise here but that we largely for an inference about congressional intent that kind of everybody knows the way this market works kind of well i think if the court looks at the further are that doesn't mean exchange established by the federal government and the supreme court said no we don't just look at that phrase we look at it in the context of the a c l u structure tax other provisions and that's all we're asking here which is don't look at payments until we give you the funds but more generally if you're thinking about well what would congress have intended if it thought these particular subsidies are going to be funded it certainly wouldn't have been tended to penalize the future congresses for exercising their appropriations praga of by making the fisc pay out twice it just doesn't make any sense and there's no case that's so and just to clean up two small  points the phrase money mandating can be confusing and just as we understand the greenlee county decision the court has treated a much lower bar for tucker after a stiction than when saying well are limits on finding  proposed liability and so we have all we have argued these cases as the absence of funding for close liability rather than is jurisdictional just because that's how we understand this court's precedent and finally highland falls  illustrates the point that congress is not a bomb do or if it chooses not to fund its own programs that's an exercise of its appropriations braga and it's not a basis for implying it damages remedy liability however you want to p what would you say the best case that you have for us to look at that would stand for the proposition that the insurance company if the insurance companies are getting the benefit from the tax credits that their damages should be reduced the very best case and the closest analogy to that so on that contract point no no on an on the statute assuming we don't have the contract on the state and i can only respond to their argument they're arguing about just general passthrough principles and so the fact that a victim of the wrong doing passes the costs along to customers doesn't make the you keep referring to me not not like this as a damages issue it's i'm again i can just go back to king which is when you're trying to discern congress is intact and that's a question both if you think of it as a liability question or as contours of the damages remedy you have to think about the related provisions and how it's had a very high level of abstraction i'm looking for some help that's a little closer to the actual facts that we have here you have i think you're telling me that that we did in that case that you we didn't find a case but we didn't find contrary authority either we just don't have a case because it is unusual for an entity that's actually gotten payments from the government that compensate them for the very subsidy to then come in and say we also should get damages we're just not familiar with that ever happening