so the first two cases we have for argument were here in arkansas separately of there's obviously an overlap first case is seventeen one two two for land of lincoln mutual help versus the state's instruments thank you good morning in may replace the court jonathan massey for a public land of lincoln and with the court's permission i'd like to reserve five minutes for rebuttal i'd like to address two points first section thirteen forty two is money mandating and second the government's fast corrected not beyond that the cases are kind of dates well there are dice but i think they're actually clear i mean if you look at cases like fair person and well those cases have quite a labrat language explaining what it takes to  money mandating obligation i mean if you look at well it seems to me johnny one wrong way ok the difference in will is that will has this language and other stacked right well it has a hole that has four consecutive years of appropriation writers which were all construed together and so one of them said no fund no part of the funds appropriated this act or any other actual be used but then the next provision the next years of the salary increase that would be made after they gave an acronym shall not take a fact another one said no part of the by this act or any other act may be used yes so that's one place and that's of the salient differences between that and this case is that it says in any of that was that now i mean i don't recall that the court in will reference now and specifically call that is being submitted i think it looked at all four together and the fourth one just to complete is funds available for payment shall not be used so there were four riders coming they were being construed together i don't think the court said that the that using this act or any other act by you know by itself would have been sufficient looking at all four together of course this is the appropriation writers here do not say or any other act and what we mean by that so what's that the interact in this case that we're talking about the judgment without might be one source but i don't think we know exhaustively what funds were of a lable in other words we know at least four sources of funds were available even under the appropriation writers just the less the first would be payment sent four hundred eighty four million dollars the government concedes payments in would have been available to pay even though there's no specific appropriation for that and i think there's an inconsistency in the government's position frankly where they admit they acknowledge payments in are available there's not a specific appropriation t because under our view with reply brief twenty four twenty five and the jail looked at that and said they were that money would be using the two thousand and fourteen appropriations language that money would have been available the g a o may or may not have been exhaustive because after the g a o report issued we know that judge wheeler looked in footnote thirteen in the moto pinion and found seven hundred fifty million dollars in continuing appropriations under the fiscal two thousand and fifteen language and then there's also some money from user fees and sales of data that's appendix nine footnote ten so all of that money was available even under the appropriation writer so the appropriation writers did not cut off even all funds even if they had cut off all fun all the writers did was basically give the language that was the language and give the give me a limit is the only source of payments for the ins over time employed and the court still said this court's predecessor still say that there was a judgment could be entered against the united states in this quarter in th same page you know silence means we win and here we think there's not even silence there's actually affirmative appropriation of going on so clearly the appropriation writers about the idea and i think that where we have a real love in this which is the judgment that's you need to well let me just say two things yes there are cases i think ramadan navajo being the primary one in page one ninety eight and footnote nine the court says the judgment fund is available to pay this judgment that's why does not run afoul of the exhaustive best explanation of the history of the judgment fund and the history is that congress increasingly relaxed the constraints on the judgment fund and nine hundred fifty six made it a standing indefinite appropriation and in one nine hundred seventy seven it eliminated one hundred thousand dollar cap on the judgment fund so congress has basically recognized that this court is the entity that is most that it's in charge of the judgment fund and there doesn't we don't need now specific congressional appropriations so we think the history of the judgment fund frankly cuts in our favor because it shows that congress has delegated to this court the obligation of entering judgment against united states and so if no payment to them were to be made it would be necessary for the appropriators specifically cut off an think if this court entered judgment in congress and did something to the judgment fund there would be a interesting takings question about that and i don't thing you have to decide that today in order to enter judgment but i do think that rommel navaho and frankly the government's case which is cited at footnote it page eight of our reply brief the government until this case the government was taking the position that the judgment fund wasn't available source of payment for these kinds of obligations so we're not plenty of authority to to look to the judgment fund i don't think the courts have to decide that question today but let me i'll just talk about the the clear statement task and why nobody at the time of the appropriation writers understood those riders as having the effect of that the government says they had and i don't think you can meet a clear statement task when none of the relevant actors at the time understood it that way i mean president obama signed the appropriation writers with no signing statement even though he had standing veto promises  given the situation there was going to be any additional operations necessary but it's well only when the transitional policy came in here later that that kind of created havoc that result so i don't know if we want to go there if it's help sixteen recognizing that these were obligations of the united states actually this interesting because chevron the government has run away from chevron the whole case and that's because h h s always saw the statute as a money man something on the contract claim on the contract and certainly ok and also i'd like this right before i before i leave though can i just say the appropriation right come in in december of two thousand and fourteen the land of lincoln was obligated already to provide extra insurance on the exchange through twenty sixteen its contract with the government this dovetails with the contract argument contract the loan agreement that it entered into in december two thousand and twelve obligated to stay on the exchange and provide insurance through twenty sixteen and so the appropriation riders have this retroactive effect especially for a line of lincoln you know everyone had already signed up had already provided insurance in two thousand and fourteen the benefit year was almost over everyone had already agreed to provide insurance contractually through twenty fifteen could you sign your q h p agreements in the fall so by the time the writers came into december of two thousand and fourteen everyone was already on the hook for two thousand and fifteen lincoln was also on the hook for twenty sixteen and so to apply the appropriation writers as the government does has this very unfair retroactive effect and obviously there's a part of the effect whether it's a take well i think there's a presumption against a retroactive retroactive legislation and i think there's an implied contract claim when the government pulls the rug out actually the vast majority of cases that the government site that language actually means nothing when congress says it's authorized to be appropriated it would still have to go back in and actually appropriate but there are four cases where there's actual money given to a program authorized to be appropriated that's actually not a big deal because congress would still have to appropriate that's a placeholder essentially that doesn't guarantee appropriations anyway there are four instances in footnote four where there's actually money provided in the statute in all of those cases there are programs that need to begin right away like financial assistance to states technology and angel assistance to create the exchanges in the first place so the a c s enacted in two thousand and ten and congress knows that it needs to get some programs off the ground immediately so those are the problems that funds and footnote for the government sites those are the programs that actually have funding now that risk reporter program the government says and we agreed it was going to start for several years so government the government did not need to congress did not need to appropriate in is the language of of thirteen forty two b which created shall pay obligation and it says in mathematically determined amounts what the government shall pay it will pay based on the ratio of allowable plan it looked at risk orders that was not put but but but so but with respect i do think that the text of thirteen forty two b and the weights different from the reinsurance program and the and the risk adjustment program thirteen forty one and thirteen forty three the the reinsurance program is clearly budget neutral because thirty forty one b one b says that will be money so used in other words reinsurance program is no payments in payment of the contemplation of the parties and there in the implied contract is just like the radium mines case or the new the new york airways case where there when there is a promissory scheme that offers a party to the opportunity to it please the court at least like mine for the united states going back to where that conversation began the controlling issue is congress's intention enacting the appropriations legislation that is enacted first in december twenty fourth seen in repeatedly reenacted years after that there is no serious dispute that congress has the power through appropriations legislation or otherwise to captain the payments under the risk of course it is not your friend so let's just go to some of the details what about your friends exactly right what the way this court and the supreme court look at funding legislation appropriations legislation to determine congress's intent is they look at the provision in context what have been going on along with the legislative history here as the court knows congress in anticipation of the appropriations process asked the g a o identify the universe of funds that are potentially available to make risk orders payments when the time to make those payments which would not be until calendar year twenty fifteen g a o says i have identified two potential pots of money wine are the payments and that the insurers would start making in calendar year tw which is the appropriation that allowed h h s to take money in and distribute it to make payments out you needed that appropriation but congress in the same appropriations legislation said none of the other may be used for risk orders payments why was it not necessary for the congress to one's because the judgment and exists only to pay final judgments it has nothing to do with whether a judgment should be entered in the first place that's a question of statutory interpretation congress's intent when it legislates with respect to the particular program and that includes the appropriations legislation and can i ask you would technical necessary is so budget authority is a defined term in that statute it's two u s c six twenty two this is the way congress has implemented its appropriations clause power through a whole series statutes and one of which lays out different types of budget authority that it can give to an agency and then the other statutes including the anti deficiency act make clear that an agency may not spend a penny in lesson in till congress case i mean it doesn't matter what our position is judge brogdon is is one hundred percent correct in that even if you assume for the sake of argument that thirteen forty two of the a c l u said insurers are entitled to one hundred percent payment it doesn't matter because that's  a statute it's a statutory right it's not a contract and i will address the contract claim statutes as the supreme court emphasized in the amtrak decision that national railroad passenger corporation decision statutes do not violate our congress later congress is entirely free to amend the terms of a prior statute and including through appropriations legislation the way that term has been used congress did not merely fail to appropriate a sufficient amount congress affirmatively appropriated the amounts that were paid in and explicitly barred h h link linking on page thirty one of its of its own opening brief makes the point correctly which is that so the first appropriations legislation was december two thousand and fourteen and no obligation could possibly accrue  that for there to be an appropriation there has to be certain specific language it's the stablish that shall pay directive without identifying a source of fines is not an appropriation that's just black letter appropriations he said that section thirteen forty two did not make the payments an obligation of the government because judge broadening was correct when he said even assuming are you endo that thirteen forty two had made risk orders payments reasoning which is that in the first instance thirteen forty two did not make the taxpayer the guarantor of insurance industry losses all it did was his reasoning and we do not agree with the deference rationale but as a just a matter of law congress has the power over appropriations and just looking at the statute it was generally modeled on medicare part d but i'm like medicare part d there's no appropriation there's no budget authority in advance appropriations and there's no language that says the payments are an obligation of the government and therefore it's no surprise that c b l did not score risk or doors when it was giving congress advice before congress passed the affordable consequences well as the supreme court in this court have repeatedly health even if there were reasonable reliance on agency statements that does not in any way impair congress after h h s said repeatedly march twenty fourth teen april twenty fourth two may twenty fourteen we will implement this program in a budget neutral manner the insurers continue just sell plans they decided had a price their plans had assigned their however as a matter of law if h h s says we will remit payments regardless of receipts that is necessarily subject to congress's appropriations it would be a crime for a change us to pay out money that congress had do not bind congress and particularly here you have shall pay language that's relevant for jurisdiction we don't dispute this court's jurisdiction but it in no way permitted congress to a particular funding level it did not appropriate funds at all so nothing could happen under this program intil congress enacted appropriations legislation until congress appropriated funds in december twenty fourth change insurers had not had at most a hope that congress would appropriate do so but then and you review the appropriation is taking that whole away that it's not really hope exact location now we move into their contract and take claims and tell me why they don't least have some sort of cause of action for the that our view of the statute thirty forty to authorize the good appropriation cut in the way that these people were stuck already in the program and then suffer losses in reliance on the original stuff story language why isn't there either a contract or a taking the action because under the supreme court's amtrak's this amtrak decision this court's brooks decision for before you can infer and intense that the legislature bound itself in contract as opposed to just saying this is an obligation which i'm assuming for argument's sake congress had said you need a clear indication that the legislature intended to bind itself legally bind itself in contract and the supreme court of the amtrak decision gives  example from an earlier case where the statute said the states here by covenant and agree and the supreme court says that's the language of contract and they look at the the amtrak statute and said it doesn't matter if you railroad entered into arrangements with amtrak thinking that this statute intitled your employees to ride for free which the issue in the amtrak case congress is presumed to and acts statutes are not contracts and there is nothing in of contract new york also which is the other case and these both predate the supreme court's amtrak decision but new york the claims court emphasized that congress itself referred to liquidation of contract authorization and repeatedly recognized in the is congress the legislature is assumed to enact policies that congress can change it's at absolute liberty to change that's why we don't lightly infer that statutes are contracts because congress doesn't have the same freedom to override the government's contracts that would raise takings questions so this is the dichotomy the whole point is section thirteen forty two it just said the secretary shall establish in administer a where the statute says if you bring a successful key tam action for false patent marketing then you get half of the damages and congress later took that right away and this court said there is no contract that's not the language of contract and no one gets to rely on the continued existence of a statute and a statute under the supreme court's amtrak decision which this court has correctly applied in bro s said we do not presume absent a clear indication that congress meant to bind itself contract and there's nothing like that he could didn't even cut off all money even if they had it was not enough under dickerson or will it was just give the language second the government has the congress's intent was clear as i said the language is not clear and it's not sufficient under dickerson and will give me in new york airways they face a high standard here a clear statement rule to show that the appropriation riders not just withdrew money but substantively abrogated the promise to pay in thirteen forty two and if that congress intent were clear it would not thought that it that it is chief that through the appropriation writers and of course h h s kept recording these obligations it's true that h h s is my friend on the other side that announced that it would implement the risk quarter program in a budget neutral manner over three years but it kept saying that these were obligations until september twenty sixth scene and if they want to read h h s as if they want to read the appropriation riders as working a substantive abrogation of thirteen forty t then they're making another they're giving force to a chevron argument in terms of what h h s was saying h h s was not reading the appropriation riders that way if their argument is that the appropriation writers work a substantive change in thirteen forty they're just giving you more reasons to defer to h h s is the church determinations under chevron and finally the contract point congress can change its mind judge moore is completely correct that congress whatever that does to the statutory claim that gives rise to an implied contract or takings claim just like in winstar which is an express contract but nonetheless it was a a change in mine by congress that nonetheless created contractual liability for the united states in the  no no your honor because any given well because we're not just talking about the statute by itself the government's argument is thirteen forty two is not a contract we're not arguing the statute by itself is the contract it's the implied contract flight in fact contract claim arises as i think i said from the whole constellation of factors it is the statute but it's also the regulations that h h s will pay and they will receive it's the course of dealings with the parties if the constant promises why are contractual counterparty c m s kept telling us yes you will be paid and all of that would at least make a claim for a implied in fact contract is different from the brooks case or the amtrak case because those cases are just about the statute are implied contract claim is not just about the statute in brooks is the key pam statute which the court went out of its way to say has a long history of not creating vested rights so i think brooks is really limited to the and the radio minds case just one last thing the plaintiffs in that case did not have a contract with the government yes the there was a little work contrasts it appeared in the statute but the radium mind theory was much broader that there was a a promis structure or framework created and even though that plaintiff did not have a contract that was still entitled to money did not express contract it had implied in fact contract just like we have and so fifty thousand people in illinois lost their health insurance in the middle of the year when the government programs promise and it's and it's and this court should enforce the normal rules if this were small value case would be easy because the law is clearly on our side and we urge the court to end your judgment against the government