united thank you your honor i just focus on some of the particular errors in judge wheeler's analysis here in some ways build upon what was being said before there's no clear statement requirement as the insurers are using that term when you're looking at appropriations legislation as in highland falls and dickerson and will the only question is a fair inference about congress  intact and if you look at the way this court in highland falls looked at the appropriations legislation and the supreme court in the prior cases they looked at you know didn't require any magic words looked in the context of what congress was doing by yes and by clear implication we can see from the mode of analysis used by the supreme court in dickerson and will means we're going to look at the legislative history we're going to look at what had just happened before so for example in both dickerson and will the supreme court examine the legislative history and in dickerson reversing the claims court which had said this is merely a restriction on funding the supreme court said no we can tell in context and from the legislative history that congress was in in fact suspending the military reenlistment bonus for the fiscal years at issue it was not just a an accounting restriction and just to address the appended to appropriations legislation for the rural electrification administration you know which is obviously not the only or primary source of military reenlistment funding and so congress said no funds from this act or any other act can be used to pay the military realism and bonuses but there is no magic to that language it's certainly not a reference to the judgment fund which didn't even exist at the time of dickerson in will the supreme court walks through four different  appropriations legislation you're for did not have the any other act language and that had absolutely no significance for the supreme court the question again and well as in dickerson the supreme court looked at the legislative history and said we can tell congress meant to modify the prior cost of live living increases for judges salaries not merely to consign them to the school limbo so it grouping said in the main community health options case which is that congress was presented by g a o with two potential pools of money from which risk orders payments could be made congress eliminated one of them leaving only payments in and that is the end of the matter because congress has plenary control over the appropriations process and congress their  bycatch payments out at the total amounts collected as payments in the rhythms on contract again to be precise we i think lincoln's counsel correctly conceded that section h s authority to enter into risk orders contracts but in any event if you pull up the h h s regulations the various statements in the federal register register are none uses the language of contract there are no risk  exactly and then going back to the central point made by judge proving is congress has untethered power to modify a statutory obligation so even assuming for the sake of argument that there ever were such an obligation congress got rid of that in two thousand and fourteen twenty fifteen twenty sixteen when it repeatedly and acted appropriations legislation that appropriated monies and but explicitly barred h h s from using the only other funding source available just like a little bit of technical clean up there i think with some confusion about user fee is what g a o said correctly is to the extent insurers make payments in pursuant to thirteen forty two and those payments are then used to make payments out under thirteen forty two they meet the definition of a user fee so those payments in from insure when they started coming in in twenty fifteen twenty sixteen twenty seventeen could be used to make payments out there are other unrelated user fee is and no one has ever suggested that those monies could be used to make their supporters payments out that's just a misunderstanding of what g a o sad and to the extent  counterfactual saying congress if you reenacted the same language from the fiscal year two thousand and fourteen appropriations act in subsequent years that will allow h h s to use payments and to make payments out intended to appropriate taxpayer funds to make sure there were no shot for short falls it doesn't matter because because congress clearly and deliberately in two thousand and fourteen twenty fifteen twenty sixteen and acted legislation that and also highland falls where this court inferred from earmark alone and intent to modify an earlier spending formula and so yes it basically congress's intent in acting the appropriations legislation and repeatedly may please the court stephen rosenbaum from zero to health i want to take the issue sequentially starting with thirteen forty two did it make a promise and enforceable promise of in a forcible statutory promise we believe the answer is clearly yes and let me start by saying everyone whose opinion ought to matter agrees with us by that i mean the agency itself c m s said in two thousand and twelve before we decided to join the program explicitly and i quote we regard the promise made as to risk or to be the strongest of all there is no limitation whatsoever imposed on the shall pay obligation with respect to some of the things the government was doing and they put a specific appropriations cap and you only the case that that obligation is there let's go to the appropriate and drivers our view is that this case is it's controlled by the language of give me because the language of give me is exactly the same as the language in the appropriation of writers here in giving me this court faced language that said quote none of the funds appropriated for the immigration and naturalization service shall be used to pay compensation for overtime services other than is provided in two general statutes thereby excluding the statute under which the claim was being made this court held this court predecessor hell that language was not sufficient to vitiate the statutory promise made in the all interpreted by the court as things that ought to be read together they specifically said that the preexisting said atory obligation quote shall not take effect they obligation explicitly that obligation quote shall not take effect and they said you agree do you not that the riders could still trump the statute even if the statute is left and that that congress could appropriation say off the preexistence editorial big ation but both the majority and the concurrence made actually explicit that's not the test the test is whether the statute has the language that makes it clear and what this court sitting kidney was what we quote know of no case in which any of the courts have held that a simple limitation of an appropriations bill on the use of funds has been held to suspend a statutory obligation in quote that still good law in will the language talked about it was not money managing this court said no such thing that is inconsistent with what the department of justice told this court when it was briefing in falls when it said quote as the court of federal claims found then all of these that that then it's a completely different different analysis but here it is a mandatory stands for any program that shall pay language is what this court has held is clearly sufficient to establish a mandatory i'm an obligation the one move on to a contract and yes your honor the government relies principally on two cases that are not breach of contract cases but due process cases one of them volved an agreement that the amtrak case where the court found that the government retain power to act as regulated regulator with respect to contracts between erosion amtrak and tract is not a governmental entity so we were not dealing with the government's own contracts and so the courts understandably held that if we weren't going with government contracts the government retains its normal regulatory powers but when you look at the cases of this court that deal specifically or other courts that deal specifically with breach of contract claims we think the  were sufficient to find contracts in those cases radium mines is an example where the court said that if the government in regulation in statute said if you mine uranium we will buy it for a price and that was clearly much more of a guarantee an offer through the regulation it was contemplated a direct exchange of uranium to the government for months at a whole lot more specific in terms of the contract case than what's plans they were being told if you agreed to provide qualified health plans to take on these obligations to provide the insurance coverage for these people we will provide you certain things in return the source of the content  think predominantly in the statute in mind i think it's a combination i think the statute i think if the regulation which goes is even clear within the statute perhaps all the statute clear enough to begin with that the government will make those payments i think it's the statements made in the preamble where they made explicit that the payments would be made regardless of whether payments in were sufficient to make them i think it's the adjustments that were made once it was certain potential enrollees were no longer going to have to enroll that the government stepped in and made adjustments to the risk order program to to address that i think it's the totality of those of those those conditions that are budget neutral but as the c b l made explicit that that was not a requirement and so from our perspective whether someone when the government was hoping that it was going to be budget neutral not was perhaps interesting but had nothing to do with what promise had been made the promise that have been made was made with clarity that these payments shall be made and we therefore relied upon that going forward as contractual parties do i would mention judge roubini did not have a contract claim before him so he never addressed this issue but here it is addressed clearly and we do see that the necessary elements are all present for there to be a contract in this case law it's clear that authority to enter into a contract the power to administer the in this the affordable care act to establish the exchanges to establish a risk order program and obviously these payment obligations are part of those risk or de program obligations and to pay ris  implied when what's being done is an integral part of the duties assigned and this court is applied that in many circumstances and fifth third bank the court said that there was a right to contractually obligated to allow goodwill to be traded in a certain matter because that was an essential tool for the program that was being carried out by the government agency at issue there that's just one of many examples but here there was a mutuality of exchange of intent of benefits going in both directions these are all the critical condition of a implied in fact contract and for those reasons we think we do have a contract claim and of course if we do the statutory the appropriation drivers we leave our rights unaffected in the sense that we have the right to pursue our claims here because government the question is what specificity is necessary for those powers to have been exercised and there is nothing in will or dickerson her husband falls that suggest that give me has been modified overturned or anything else and that is the statute that has the language that is clearly analogous to the language of the of the of the appropriation driving issue here i'll be brief just on give me me explain this in our brief the appropriations legislation had an explicit carve out that benefited the plaintiffs and give me it said no funds shall be paid century for overtime except in accordance with the federal employees pay act and as the given the court itself explained the federal employee pay act carved out in one nine hundred thirty one act which was the basis for give me cause of action so give me is completely unremarkable on it's holding if there is dictum that's inconsistent with the later supreme court precedents of course the supreme court precedents are controlling the standard as the court has noted is just did congress by clear implication limit spending to the amounts that were taken in and for all the reasons describe a judge proving congress was at least six clear if not clear  this context and risk or doors as congress was in dickerson will and highly involves just to explain that sentence in highland falls from the government's free for that council quoted the point was just that the statute in highland falls was discretionary spending in the sense that annual appropriations were used to fund it which was relevant in highland falls as opposed to the type of program for which there is a permanent appropriation you know mandatory entitlement programs nothing in this court's opinion suggested that the court lacked jurisdiction and that there was no money mandating statute the court affirmed the dismissal for failure to state a claim because your marks in subsequent appropriations legislation superceded a hundred percent funding formula in the organic earlier legislation