the national trade happen cases from a district court to veterans cases an employee case the employee case and one of the veterans cases are being submitted on the briefs and will not underpaid arctics low i just shy of two million dollars in the cherokee nation case the supreme court held the government liable in money damages for paying another government contractor for underpaid you know the government isn't there for and there's not to exceed like honor the appropriation on its face is more than sufficient it contractor and that is the rule of affairs if an appropriation on its face is sufficient to pay the contractor than the contract was entitled to rely on that fact and proceed with its work but there was no appropriate language and i received i appreciate your honest question there isn't a profile ability of appropriations clause in this contract in the statute in fact but the supreme court said at page six forty three of its opinion that the availability of appropriations clause doesn't change the fairest way it operates for a different purpose the availability of appropriations clause at least in normal availability the supreme court tells us is designed to commit a contract to be awarded before the appropriation acted and it doesn't go into effect the words are unless and until the appropriation is an act that's the purpose of the availability clause and springbrook goes on then to cite ferrers and to reiterate that the first rule still controls the outcome of the case so long as the appropriation is sufficient on its face to pay the contractor what's interesting about that passage when the court talks about the availability clause is that in the next paragraph which i think six forty three six forty four in that neighborhood the court rejects the secretary's proposition that when there not to exceed that when there's an availability clause that gives the secretary discretion to deal with an insufficient appropriation and the court goes on directly to reaffirm the ferrous rule that regardless of the insufficiency of the appropriation to manage have been the end of the matter because they are trying to determine whether that was a retroactive limitation on the appropriation i don't think so your honor that there was quite a lot of discussion in the supreme court majority opinion about black and black hawk focuses a lot of reprogramming in this court's opinion your honour's opinion and the time case talked a lot about the program and the issue really was joined on that issue and that point in the proceedings below the question before the court i think when it discussed section three fourteen  was whether that was trumped by the appropriations by the by the subsequent appropriations rider that tries to incorporate report language if it is in the assumption of subsection steve that if the thing had been retroactive and retroactivity had been permissible of that would have been in favor of the government of the government will want i don't think so your honor and the reason i say that it's it would be impossible to square that interpretation with what the court said about the first robotics of their discussion about terrorists is in the context of a situation where the government where the agency can reprogram not in the context of a situation which it can't because there's a not to well i would disagree on that point by looking at various itself various itself involved a line item appropriation for improving of the delaware river it was an earmark it was about as narrow earmark as you can get short of  earmark it says only so much funds for this project some kind of situation in fairness there was an earmark for the delaware river ferris did a piece of the work below philadelphia no doubt there were other contractors elsewhere on the river doing other work and the fact that other funds of course to be reprogrammed because there's a basic law that if there's an earmark you can take funds from elsewhere in the appropriations of supplement earmark even though no of the funds could be reprogrammed fairest prevailed in fact various prevailed even though the government told them to stop can't be the rule because that's not a workable world government contract if that were the rule how does the contractor know what the contract is going to be paid out of arctic slope know what it would be paid the article had no idea what it would be paid in fact it continued to get payments a speculates if one goes away from a workable rule that's based on objective criteria is an objective criteria is the appropriation sufficient to pay the contract we've got a workable rule if we instead say no the rule is going to be that the secretary in this situation has the discretion to allocate the fund in whatever way the secretary deems best they claim is unreviewable discretion a it's an unworkable rule and b it really countermands the indian self determination at which represented a tirade of effort by the congress to eliminate all possible secretarial discretion over funding matters it would be the most peculiar result to decide that the secretary has unfettered discretion over funding matters when there is one penny less than the full amount and that is not the longer fairest and i don't think the court's opinion supports that your honor i have a question yes but you wouldn't disagree would you that congress could create a regime in which that exact  actually come up with with an appropriation absolutely i think there is known pediment to congress trumping the common law rule of the fairest rule of government contract law and stepping in and saying something otherwise congress could do it in the by amending the authorizing act congress could do it in the appropriations act but it needs to do it very clearly because we're talking about a lot has been out there for one hundred thirty years on the rules regarding government contracting and we want government contractors to know because the outcome here is going to be as binding for these tribal contract as it's going to be for other government contractors subject to availability appropriations conditions i have exposed the hard to me on the not to exceed language or to the read book and according to our opinion yes and in there is is the traditional language that limits the use of the appropriation so what language should be used not to see didn't do it  cut off the judge in fun first and secondly with the first question your honor congress can say out of the not to exceed appropriation every contractor is going to receive eighty percent of what it's received in the preceding year and that's a certain knowable amount objective lee verifiable from the base of the statue but what contract law can't cannot tolerate is a situation where the contractor proceeds fully performs the contract and even after the contractors perform still has no idea what the contract as amount is payable by the government is going to be because the government is saying we'll decide we'll let you know in fact we're starting out with zero and we'll tell you when we find the money wherever we find it we'll tell you how much that's not a contract that's a grant and the peculiar thing about that is that the court of claims used to say that these contracts were really grants and even though they were called contracts in the early eighty's the court ruled in the busby decision that they could not be enforced in the contract disputes act because it wasn't certain that the secretary could adjust the funding level at whatever level the secretary chose and the senate report in one thousand nine hundred seven shows the congress deliberately intended to trump that rule as well as the practice of the secretary and not funding the contracts not awarding the contracts we end up in eighty eight with the with that with a statu  the secretary has got to provide remedies in the event of a breach the secretary has to report mid term mid term and this is one thing maybe worth pausing on in the current year the secretary supposed to tell congress i'm running short while wiser that reporting requirement for fifty j dash one c so that we can have a supplemental appropriation that's what happens in d o d contracting you have a supplemental appropriation the secretary thinks he's running short that the secretary make a report and the current year no the secretary tells us he made a report three months after the year was over a long after congress could do anything about so we have a congressional scheme designed to take away all discretion from the secretary in funding matters and then we're going to end up with an outcome that says if it's one penny less than the full amount the secretary can do anything it wants it can abandon all prior procedures they can over pay some contractors fully paid pay some fifty percent pay arctics low pay some thirty percent i mean that's madness and it would make no sense for a government contractor to enter into a contract with the united states under those circumstances lease is going to make it a lot more expensive for the government was i'm going to have to insure against the possibility that the secretary will zero me out and it's plain vanilla vailable the sprinker sided three of i think fifty statutes we cited to the court in that case that provide for such a clause why because it was important for the court scuse me important for congress to make clear that it was not giving the secretary contract authority to commit the united states without regard to an appropriation as rounds of where the under the under the any deficiency act congress has the power to authorize a contract that operates without regard to appropriations new york airways was one of those examples and in babbitt decision that was the argument being made by the proponents there that they had contract authority bill because it didn't matter and your honor said no it does matter it does matter allocated a certain amount of money to the agency for a specific task the agency used all that money to do that task assuring this contractor that appropriations were available to receive a certain quantity this contractor received there's no breach here in fairest the agency assured a contractor something would happen that didn't occur here that's simply not the case the agency assured this contractor that subject to conditions would receive a certain amount and it received that certain very simply does not apply but sounds like an area where you could have made it in the first place but ship to rely on the not to exceed one would the first case being the first charity case before sound as though it would apply to the charity case just as to this in the charity case as well there was an actual amount in the contract that wasn't provided certainly here in the board assume there was a duty beyond the amount just by the not to exceed language is controlling here  it continues to bind us only if it isn't overridden by charity yes your honor so that my question is is it and if it is with respect to its rationale is it not  cherokee indicated that had the congressional reports in cherokee which contain language similar to not to exceed not even as forceful as not to exceed had those congressional imports been enacted into law as opposed to remaining in committees that language would have been affected in other words it's the combination of the not to exceed language and the availability of ensure a t v availability language didn't get the government anywhere because there was no limit in the preparation appropriation was subject to reprogram whereas here it is subject to the not to exceed language and can't be republic yes you're out there not to exceed language here is the ground rely upon but it combination of the two right the combination of the availability of appropriations which in cherokee was found not to be limiting because there weren't billable appropriations because of the ability to reprogram with the cherokee case but you have to rely on the not to exceed language to distinguish the cherokee and the board he relied upon not to exceed language exactly and it dies in fact control here and the this result it used the not to exceed language of the geo recognized as being the most effective language congress can use to limit an appropriation the argument here isn't really there's a breach of contract this is guys a breach of contract action the argument here is a lawsuit against congress wishing that congress were to appropriate more money but that didn't happen this is not rightfully a breach of contract action against the agency and that is the intent of congress that the each of these cases it seems to me comes down to asking the question of whether congress intended to authorize the contracting officers to commit federal funds at the firm in and excess beyond what was that contract officer was authorized to pay and the answer could be either yes or no to either of those questions right and depending on congressional intent when you could have a case you certainly image i'm sure that in which the contracting officer went beyond what he was designated to do by way of committing funds but nonetheless the judgment fund is liable for a contract breach  certainly not i mean right i mean so you know the question is entirely one of congressional right and what the c was authorized and actually did it is not only what congress intended to make but they're authorized by congress so they were asking ultimately the question of what congress intended how congress intended that the scheme to operate a what they were authorizing and b what they were making available by way of remedy to a complaining that's the same kind of argument that you made in cherokee you got rejected i don't understand why you keep repeating arguments that are no longer tenable that's just wrong indicates your honor respectfully that other funds here are provided for c s e cars which is different than cherokee congress indicated for those funds they could have to not exceed why it's not it's not that the appropriate a certain amount of money for this is that not to exceed line would bar as we program now and initial programming nicely certainly but certainly that doesn't mean that the judgment fund somehow exists as some buffer clause currently if there are none for the question the court what why why would the a ruling in favor of the contracting party here by late the any deficiency act at the end of deficiency was directed at the government contracting office or not at whatever remedy might be available to the private party through a lawsuit  dyker your tax question is absolutely on target does the not to exceed my own to make a difference and i can see that it does make a difference not to exceed two hundred million dollars is available to pay this contract that's what the appropriation was one and a half billion the appropriation here is a two hundred million dollars pro creation still limited but there's another difference and in that in each case it's subject of the billable operation of the chair to the supreme court said subject to the availability of appropriations doesn't prevent you from reprogramming other funds to pay for him now what the government is saying is that we again have the subject to availability appropriations but unlike charity the appropriations are not available because the not to exceed language prevents reprogramming and you must agree don't you that the not to exceed line which prevents reprogramming it prevents reprogramming outside the contracts of pork funds i mean this isn't  single line item for a contract but it doesn't prevent reprogramming within the fund it doesn't prevent reprogramming from among the payments the two hundred million dollars to vailable to three or four hundred contractors it doesn't prevent reprogramming at all in that respect but the problem is there's not enough money in the in the appropriated funds not to exceed to satisfy all the obligations and that's always the situation affairs situation there aren't enough funds your honor on page six forty one of the court's opinion there's discussion about what do we do if in paying this contract we'd have to reduce funds owed to other tribes and then the government had conceded well it's not just a question of reducing it what if we vote obligated the funds and the government says in its own greed followed by the court citation to various if the amount of an unrestricted appropriation and this one was not restricted in terms of paying our taxes if the amount of an unrestricted appropriateness efficient upon the contract the contractors entitle the payment even if the agency assumed other obligations that exhausts the options i would say the congress could congress i think that if they did that if they did align item for each then that would be the end and it would be the end of it our congress sometimes we see this congress appropriates by reference to a document that's in a committee report we've seen congress do that congress could have done that incorporated by reference a document committee report congress could have said every contract because eighty percent of the contracts that were cost price congress could have done that you know the amount congress could have said is that price and suggested the judge in fines not available to scott short ok next cases diamond saw blades versus the united states and how two thousand and ten twenty four sanchez