1 (Slip Opinion) OCTOBER TERM, 2011

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


## SUPREME COURT OF THE UNITED STATES

Syllabus

SALAZAR, SECRETARY OF THE INTERIOR, ET AL

. v

. RAMAH NAVAJO CHAPTER ET AL

.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT

No. 11–551. Argued April 18, 2012—Decided June 18, 2012

The Indian Self-Determination an d Education Assistance Act (ISDA)

directs the Secretary of the Interior to enter into contracts with will

ing tribes under which they will pr ovide services such as education
and law enforcement that the Fede ral Government otherwise would have provided. It requires the Secretary to contract to pay the “full amount” of “contract support costs,” 45 U. S. C. §§450j–1(a)(2), (g), subject to the availability of appropriations, §450j–1(b). In the event of a contractual breach, tribal cont ractors are entitled to seek money damages under the Contract Disputes Act.

In Fiscal Years (FYs) 1994 to 2001, respondent Tribes contracted with the Secretary to provide servic es. During each of those FYs, Congress appropriated sufficient funds to pay any individual tribal contractor’s contract support costs in full but did not appropriate enough to pay all tribal contractor s collectively. Unable to pay every contractor in full, the Secretary paid the Tribes on a uniform, pro rata basis. Respondents sued under the Contract Disputes Act for breach of contract. The District Court granted the Government summary judgment. The Tenth Circuit reversed, finding the Gov

ernment liable to each contractor for the full contract amount.

Held: The Government must pay each Tribe’s contract support costs in

full. Pp. 5

− 18.

(a) In Cherokee Nation of Okla. v. Leavitt

, 543 U. S. 631, this Court considered the Government’s promise to pay contract support costs in
ISDA self-determination contracts that made the Government’s obli

gation “subject to the availability of appropriations,” id. , at 634

− 637.
The Government contended that Co ngress appropriated inadequate funds to fulfill its contractual obligat ions to the Tribes, while meeting2 SALAZAR v. RAMAH NAVAJO CHAPTER

Syllabus

the agency’s competing fiscal priorities. Because Congress appropri

ated sufficient legally unrestricted funds to pay the contracts, howev

er, the Court held that the Government was obligated to pay those costs in full absent “something special about the promises,” id. , at
637–638.

That conclusion followed directly from well-established principles of Government contracting law: When a Government contractor is one of several persons to be paid out of a larger appropriation suffi

cient in itself to pay the contractor, the Government is responsible to
the contractor for the full amount du e under the contract, even if the agency exhausts the appropriation in service of other permissible
ends. See Ferris v. United States , 27 Ct. Cl. 542, 546. That is so “even if an agency’s total lump-sum appropriation is insufficient to pay all” of its contracts. Cherokee Nation , 543 U. S., at 637. This principle safeguards both the expectations of Government contractors and the long-term fiscal interests of the United States. Contractors need not keep track of agencies’ sh ifting priorities and competing ob

ligations; rather, they may trust th at the Government will honor its contractual promises. And the rule furthers “the Government’s own long-run interest as a reliable contracting partner in the myriad workaday transaction of its agencies.” United States v. Winstar Corp. , 518 U. S. 839, 883. Pp. 5–8.

(b) The principles underlying Cherokee Nation and Ferris control here. Once “Congress has appropri ated sufficient legally unrestricted funds to pay the contracts at issu e, the Government normally cannot back out of a promise on grounds of ‘insufficient approp riations,’ even if the contract uses language such as ‘subject to the availability of appropriations,’ and even if an agency’s total lump-sum appropriation is insufficient to pay all the contracts the agency has made.” Chero

kee Nation , 543 U. S., at 637. That condition is satisfied here, be

cause Congress made sufficient funds available to pay any individual contractor in full. Pp. 8

− 10.

(c) The Government attempts to distinguish Ferris and Cherokee

Nation on the ground that they involved unrestricted, lump-sum ap

propriations, while Congress here appropriated “not to exceed” a cer

tain amount for contract support costs. The effect of the appropria

tions in each case, however, was id entical: the agency remained free to allocate funds among multiple contractors, so long as the contracts served the purpose Congress identified . The “not to exceed” language still has legal effect; it prevents the Secretary from reprogramming other funds to pay contract support costs, thereby protecting funds that Congress envisioned for othe r Bureau of Indian Affairs pro

grams.

Section 450j–1(b), which specifies that the Secretary is not required3 Cite as: 567 U. S. ____ (2012)

Syllabus

to reduce funding for one tribe’s programs to make funds available to another tribe, does not warrant a different result. Consistent with ordinary Government contracting principles, that language merely underscores the Secretary’s discretion to allocate funds among tribes. It does not alter the Government’s legal obligation when the Secre

tary fails to pay.

The Government’s remaining coun terarguments are unpersuasive. First, it suggests that the Secretary could violate the Anti-Deficiency Act, which prevents federal officers from making or authorizing an expenditure or obligation exceeding an amount available in an ap

propriation. That Act applies only to government officials, however, and does not affect the rights of citizens contracting with the Gov

ernment. Second, the Government argues that permitting respond

ents to recover from the Judgment Fund would circumvent Congress ’ intent to cap total expenditures for contract support costs. But ISDA expressly provides that tribal contractors may sue for “money dam

ages” under the Contract Disputes Act, and any ensuing judgments are payable from the Judgment Fund. See Cherokee Nation , 543
U. S., at 642. Third, the Govern ment invokes cases in which courts have rejected contractors’ attempts to recover for amounts beyond the maximum appropriated by Congress fo r a particular purpose. See,

e.g. , Sutton v. United States , 256 U. S. 575. However, Sutton in

volved a specific line-item appropri ation for an amount beyond which
the sole contractor could not recover. This case involves several con

tractors, each of whom contracted within the lump-sum amount Con

gress appropriated for all contractors. Unlike the sole contractor in
Sutton , they cannot reasonably be expected to know how much re

mained available of Congress’ lump -sum appropriation. Finally, the Government claims that legislative history suggests that Congress approved of pro rata distribution, but “indicia in committee reports and other legislative history as to how funds should or are expected to be spent do not establish any le gal requirement on the agency.”
Lincoln v. Vigil , 508 U. S. 182, 192. Pp. 11

− 17.

(d) This case is the product of two decisions in some tension: Con

gress required the Secretary to accept every qualifying ISDA con

tract, promising “full” funding for a ll contract support costs, but then appropriated insufficient funds to pay in full each tribal contractor. Responsibility for the resolution of that situation, however, is com

mitted to Congress. Pp. 17

− 18.
644 F. 3d 1054, affirmed.

S OTOMAYOR

, J., delivered the opinion of the Court, in which S CALIA

, K ENNEDY , T HOMAS , and K AGAN

, JJ., joined. R OBERTS

, C. J., filed a dis

senting opinion, in which G INSBURG , B REYER , and A LITO

, JJ., joined._________________

_________________ 1 Cite as: 567 U. S. ____ (2012)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.


## SUPREME COURT OF THE UNITED STATES

No. 11–551

KEN L. SALAZAR, SECRETARY OF THE INTERIOR,

ET AL ., PETITIONERS v. RAMAH NAVAJO
CHAPTER ET AL

.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT

[June 18, 2012]

J USTICE S OTOMAYOR delivered the opinion of the Court.

The Indian Self-Determination and Education Assis

tance Act (ISDA), 25 U. S. C. §450 et seq. , directs the Secretary of the Interior to enter into contracts with will

ing tribes, pursuant to which those tribes will provide
services such as education and law enforcement that otherwise would have been provided by the Federal Gov

ernment. ISDA mandates that the Secretary shall pay the full amount of “contract support costs” incurred by tribes in performing their contra cts. At issue in this case is whether the Government must pay those costs when Congress appropriates sufficient funds to pay in full any
individual contractor’s con tract support costs, but not enough funds to cover the aggregate amount due every contractor. Consistent with longstanding principles of Government contracting law, we hold that the Govern

ment must pay each tribe’s contract support costs in full.

I
A
Congress enacted ISDA in 1975 in order to achieve2 SALAZAR v. RAMAH NAVAJO CHAPTER

Opinion of the Court

“maximum Indian participation in the direction of educa

tional as well as other Federal services to Indian commu

nities so as to render such se rvices more responsive to the
needs and desires of those communities.” 25 U. S. C. §450a(a). To that end, the Act directs the Secretary of the Interior, “upon the request of any Indian tribe . . . to enter into a self-determination contract . . . to plan, conduct, and administer” health, education, economic, and social pro

grams that the Secretary otherwise would have adminis

tered. §450f(a)(1). As originally enacted, ISDA required the Government toprovide contracting tribes with an amount of funds equivalent to those that the Secretary “would have otherwise provided for his direct op eration of the programs.” §106(h), 88 Stat. 2211. It soon became apparent that this
secretarial amount failed to account for the full costs to tribes of providing services. Because of “concern with Government’s past failure ad equately to reimburse tribes’ indirect administrative costs,” Cherokee Nation of Okla. v. Leavitt , 543 U. S. 631, 639 (2005), Congress amended ISDA to require the Secretary to contract to pay the “full amount” of “contract support co sts” related to each self

determination contract, §§450j–1(a)(2), (g). 1 The Act also provides, however, that “[n]otwithstanding any other provision in [ISDA], the provis ion of funds under [ISDA] is subject to the availability of appropriations.” §450j–1(b). Congress included a model contract in ISDA and di

-

——————

1 As defined by ISDA, contract support costs “shall consist of an
amount for the reasonable costs for activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management, but which . . . (A) normally are not carried on by the respective Secretary in his direct operation of the program; or (B) are provided by the Secretary in support of the contracted program from resources other than those under contract.” §450j–1(a)(2). Such costs include overhead adminis

trative costs, as well as expenses such as federally mandated audits and liability insurance. See Cherokee Nation of Okla. , 543 U. S., at 635.3 Cite as: 567 U. S. ____ (2012)

Opinion of the Court

rected that each tribal self-determination contract “shall . . . contain, or incorporate [it] by reference.” §450 l (a)(1). The model contract specifies that “ ‘[s]ubject to the availa

bility of appropriations, the Secretary shall make available to the Contractor the total amount specified in the annual funding agreement’ ” between the Secretary and the tribe. §450 l (c), (model agreement §1(b)(4)). That
amount “ ‘shall not be less than the applicable amount determined pursuant to [§450j–1(a)],’ ” which includes
contract support costs. Ibid

. ; §450j–1(a)(2). The contract
indicates that “ ‘[e]ach provision of [ISDA] and each provi

sion of this Contract shall be liberally construed for the
benefit of the Contractor . . . .’ ” §450 l (c), (model agree

ment §1(a)(2)). Finally, the Act makes clear that if the Government fails to pay the amount contracted for,then tribal contractors are entitled to pursue “money damages” in accordance with the Contract Disputes Act. §450m–1(a).

B
During Fiscal Years (FYs) 1994 to 2001, respondent
Tribes contracted with the Se cretary of the Interior to provide services such as law enforcement, environmental protection, and agricultural assistance. The Tribes fully performed. During each FY, Congress appropriated a
total amount to the Bureau of Indian Affairs (BIA) “for the operation of Indian programs.” See, e.g., Department of the Interior and Related Agencies Appropriations Act, 2000, 113 Stat. 1501A–148. Of that sum, Congress pro

vided that “not to exceed [a particular amount] shall beavailable for payments to tribes and tribal organizations for contract support costs” under ISDA. E.g.

, ibid

. Thus, in FY 2000, for example, Congress appropriated $1,670,444,000 to the BIA, of which “not to exceed $120,229,000” was allocated for contract support costs.
Ibid.4 SALAZAR v. RAMAH NAVAJO CHAPTER

Opinion of the Court

During each relevant FY, Congress appropriated suffi

cient funds to pay in full any individual tribal contractor’s contract support costs. Congre ss did not, however, appro

priate sufficient funds to co ver the contract support costs due all tribal contractors collectively. Between FY 1994 and 2001, appropriations covered only between 77% and 92% of tribes’ aggregate contract support costs. The ex

tent of the shortfall was not revealed until each fiscal year was well underway, at which point a tribe’s performance of its contractual obligations was largely complete. See 644 F. 3d 1054, 1061 (CA10 2011). Lacking funds to pay each contractor in full, the Secretary paid tribes’ contract support costs on a uniform, pro rata basis. Tribes re

sponded to these shortfalls by reducing ISDA services to tribal members, diverting tribal resources from non-ISDA programs, and forgoing opportunities to contract in fur

therance of Congress’ self-det ermination objective. GAO,

V. Rezendes, Indian Self-Determination Act: Shortfalls in Indian Contract Support Costs Need to Be Addressed 3–4 (GAO/RCED–99–150, 2009). Respondent Tribes sued for breach of contract pursuant to the Contract Disputes Act, 41 U. S. C. §§601–613, alleg

ing that the Government failed to pay the full amount of contract support costs due from FY 1994 through 2001, as required by ISDA and their contracts. The United States District Court for the District of New Mexico granted summary judgment for the Go vernment. A divided panel of the United States Court of Appeals for the Tenth Cir

cuit reversed. The court reasoned that Congress made sufficient appropriations “legally available” to fund any
individual tribal contractor’s contract support costs, and
that the Government’s contractual commitment was there

fore binding. 644 F. 3d, at 1063–1065. In such cases, the Court of Appeals held that the Government is liable to
each contractor for the full co ntract amount. Judge Hartz dissented, contending that Congress intended to set a5 Cite as: 567 U. S. ____ (2012)

Opinion of the Court

maximum limit on the Governme nt’s liability for contract support costs. We granted certiorari to resolve a split among the Courts of Appeals, 565 U. S. ___ (2012), and
now affirm. 2

II
A
In evaluating the Government’s obligation to pay tribes for contract support costs, we do not write on a clean slate. Only seven years ago, in Cherokee Nation , we also considered the Government’s pr omise to pay contract sup

port costs in ISDA self-determination contracts that made the Government’s obligation “s ubject to the availability of appropriations.” 543 U. S., at 634–637. For each FY at issue, Congress had appropriated to the Indian Health Service (IHS) a lump sum between $1.277 and $1.419 billion, “far more than the [contract support cost]
amounts” due under the Tribes’ individual contracts. Id., at 637; see id., at 636 (Cherokee Nation and ShoshonePaiute Tribes filed claims seeking $3.4 and $3.5 million, respectively). The Government contended, however, that Congress had appropriated inadequate funds to enable the IHS to pay the Tribes’ contract support costs in full, while meeting all of the agency’s competing fiscal priorities. As we explained, that did not excuse the Government’s responsibility to pay the Tribes. We stressed that the Government’s obligation to pay contract support costs should be treated as an ordinary contract promise, noting
that ISDA “uses the word ‘contract’ 426 times to describe the nature of the Government’s promise.” Id. , at 639. As even the Government conceded, “in the case of ordinary contracts . . . ‘if the amount of an unrestricted appropria

tion is sufficient to fund the contract, the contractor is

——————

2 Compare 644 F. 3d 1054 (case below), with Arctic Slope Native Assn., Ltd. v. Sebelius , 629 F. 3d 1296 (CA Fed. 2010) (no liability to pay total contract support costs beyond cap in appropriations Act).6 SALAZAR v. RAMAH NAVAJO CHAPTER

Opinion of the Court

entitled to payment even if the agency has allocated the funds to another purpose or assumes other obligations
that exhaust the funds.’ ” Id. , at 641. It followed, there

fore, that absent “something special about the promises at issue,” the Government was obligated to pay the Tribes’ contract support costs in full. Id. , at 638.
We held that the mere fact that ISDA self-determination contracts are made “subject to the availability of appropri

ations” did not warrant a special rule. Id., at 643 (internal quotation marks omitted). That commonplace provision, we explained, is ordinarily satisfied so long as Congress appropriates adequate legally unrestricted funds to pay
the contracts at issue. See ibid. Because Congress made sufficient funds legally available to the agency to pay the Tribes’ contracts, it did not matter that the BIA had allo

cated some of those funds to serve other purposes, such that the remainder was insufficient to pay the Tribes in full. Rather, we agreed with the Tribes that “as long as Congress has appropriated sufficient legally unrestricted funds to pay the contracts at issue,” the Government’s promise to pay was binding. Id., at 637–638.
Our conclusion in Cherokee Nation followed directly from well-established principles of Government contract

ing law. When a Government contractor is one of several persons to be paid out of a larger appropriation sufficient in itself to pay the contractor, it has long been the rule that the Government is responsible to the contractor for the full amount due under the contract, even if the agency exhausts the appropriation in service of other permissible
ends. See Ferris v. United States , 27 Ct. Cl. 542, 546 (1892); Dougherty v. United States , 18 Ct. Cl. 496, 503 (1883); see also 2 GAO, Principles of Federal Appropria

tions Law, p. 6–17 (2d ed. 1992) (hereinafter GAO Redbook). 3 That is so “even if an agency’s total lump-sum

——————

3 In Ferris , for instance, Congress appropriated $45,000 for the im

-7 Cite as: 567 U. S. ____ (2012)

Opinion of the Court

appropriation is insufficient to pay all the contracts the agency has made.” Cherokee Nation , 543 U. S., at 637. In such cases, “[t]he United States are as much bound by
their contracts as are individuals.” Lynch v. United
States , 292 U. S. 571, 580 (1934) (internal quotation marks omitted). Although the agency itself cannot dis

burse funds beyond those appropriated to it, the Govern

ment’s “valid obligations will remain enforceable in the courts.” GAO Redbook, p. 6–17. This principle safeguards both the expectations of Gov

ernment contractors and the long-term fiscal interests of the United States. For contractors, the Ferris rule reflects that when “a contract is but one activity under a larger appropriation, it is not reas onable to expect the contractor to know how much of that ap propriation remains available for it at any given time.” GAO Redbook, p. 6–18. Contrac

tors are responsible for knowing the size of the pie, not how the agency elects to slice it. Thus, so long as Con

gress appropriates adequate funds to cover a prospective contract, contractors need not keep track of agencies’ shifting priorities and competing obligations; rather, they may trust that the Government will honor its contractual promises. Dougherty , 18 Ct. Cl., at 503. In such cases, if

—————— provement of the Delaware River below Bridesburg, Pennsylvania. Act of Mar. 3, 1879, ch. 181, 20 Stat. 364. The Government contracted with Ferris for $37,000 to dredge the river. Halfway through Ferris’ perfor

mance of his contract, the United St ates Army Corps of Engineers ran out of money to pay Ferris, having used $17,000 of the appropriation to pay for other improvements. Noneth eless, the Court of Claims found
that Ferris could recover for the balance of his contract. As the court explained, the appropriation “merely impose[d] limitations upon the Government’s own agents; . . . its insufficiency [did] not pay the Gov

ernment’s debts, nor cancel its oblig ations, nor defeat the rights of other parties.” 27 Ct. Cl., at 546; see also Dougherty , 18 Ct. Cl., at 503 (rejecting Government’s argument that a contractor could not recover upon similar facts because the “approp riation had, at the time of the purchase, been covered by other contracts”).8 SALAZAR v. RAMAH NAVAJO CHAPTER

Opinion of the Court

an agency overcommits its funds such that it cannot fulfill its contractual commitments, even the Government has acknowledged that “[t]he risk of over-obligation may be found to fall on the agency,” not the contractor. Brief for
Federal Parties in Cherokee Nation v. Leavitt , O. T. 2004, No. 02–1472 et al., p. 24 (hereinafter Brief for Federal Parties). The rule likewise furthers “the Government’s own long

run interest as a reliable contracting partner in the myr

iad workaday transaction of its agencies.” United States v. Winstar Corp. , 518 U. S. 839, 883 (1996) (plurality opin

ion). If the Government could be trusted to fulfill its promise to pay only when more pressing fiscal needs did not arise, would-be contractors would bargain warily—if at all—and only at a premium large enough to account for the risk of nonpayment. See, e.g., Logue, Tax Transitions, Opportunistic Retroactivity, and the Benefits of Govern

ment Precommitment, 94 Mich. L. Rev. 1129, 1146 (1996). In short, contracting would become more cumbersome and expensive for the Government, and willing partners more

scarce.

B
The principles underlying Cherokee Nation and Ferris dictate the result in this case. Once “Congress has appro

priated sufficient legally unr estricted funds to pay the contracts at issue, the Government normally cannot back out of a promise to pay on grounds of ‘insufficient appro

priations,’ even if the contract uses language such as ‘subject to the availability of appropriations,’ and even if an agency’s total lump-sum appropriation is insufficient to

pay all the contracts the agency has made.” Cherokee

Nation

, 543 U. S., at 637; see also id. , at 638 (“[T]he Gov

ernment denies none of this”).
That condition is satisfied here. In each FY between 1994 and 2001, Congress appropriated to the BIA a lump

-9 Cite as: 567 U. S. ____ (2012)

Opinion of the Court

sum from which “not to exceed” between $91 and $125 million was allocated for contract support costs, an
amount that exceeded the su m due any tribal contractor. Within those constraints, the ability to direct those funds
was “ ‘committed to agency discretion by law.’ ” Lincoln v. Vigil , 508 U. S. 182, 193 (1993) (quoting 5 U. S. C. §701(a)(2)). Nothing, for instance, prevented the BIA from paying in full respondent Ramah Navajo Chapter’s contract support costs rather than other tribes’, whether based on its greater need or simply because it sought payment first. 4 See International Union, United Auto., Aerospace & Agricultural Implement Workers of Am. v. Donovan , 746 F. 2d 855, 861 (CADC 1984) (Scalia, J.) (“A lump-sum appropriation leaves it to the recipient agency (as a matter of law, at least) to distribute the funds among some or all of the permissible objects as it sees fit”). And if there was any doubt that that general rule applied here, ISDA’s statutory language itse lf makes clear that the BIA may allocate funds to one tribe at the expense of another. See §450j–1(b) (“[T]he Secretary is not required to reduce funding for programs, projects, or activities serving a tribe
to make funds available to another tribe or tribal organization under this [Act]”). The upshot is that the funds appropriated by Congress were legally available to pay any individual tribal contractor in full. See 1 GAO Redbook, p. 4–6 (3d ed. 2004). The Government’s contractual promise to pay each
tribal contractor the “full amount of funds to which the contractor [was] entitled,” §450j–1(g), was therefore bind

ing. We have expressly reje cted the Government’s argu

ment that “the tribe should bear the risk that a total

——————

4 Indeed, the Indian Health Service once allocated its appropriations for new ISDA contracts on a first-come, first-serve basis. See Dept. of Health and Human Services, Indian Self-Determination Memorandum No. 92–2, p. 4 (Feb. 27, 1992).10 SALAZAR v. RAMAH NAVAJO CHAPTER

Opinion of the Court

lump-sum appropriation (though sufficient to cover its own contracts) will not pr ove sufficient to pay all similar
contracts.” Cherokee Nation , 543 U. S.

, at 638. Rather,
the tribal contractors were enti tled to rely on the Govern

ment’s promise to pay because they were “not chargeable with knowledge” of the BIA’s administration of Congress’ appropriation, “nor [could their] legal rights be affected or impaired by its maladministration or by its diversion.”
Ferris

, 27 Ct. Cl., at 546.
As in Cherokee Nation

, we decline the Government’s invitation to ascribe “special, rather than ordinary” mean

ing to the fact that ISDA makes contracts “subject to the availability of appropriations.” 5 543 U. S., at 644. Under our previous interpretation of that language, that condi

tion was satisfied here because Congress appropriated adequate funds to pay in full any individual contractor. It is important to afford that language a “uniform interpreta

tion” in this and comparable statutes, “lest legal uncer

tainty undermine contractors’ confidence that they will be paid, and in turn increase the cost to the Government of purchasing goods and services.” Ibid . It would be particu

larly anomalous to read the statutory language differently here. Contracts made under ISDA specify that “ ‘[e]ach provision of the [ISDA] and each provision of this Contract shall be liberally construed for the benefit of the Contrac

tor. . . .’ ” §450 l (c), (model agreement §1(a)(2)). The Gov

ernment, in effect, must demonstrate that its reading is clearly required by the statutory language. Accordingly, the Government cannot back out of its contractual promise to pay each Tribe’s full contract support costs.

——————

5 The Government’s reliance on this st atutory language is particularly curious because it suggests it is superfluous. See Brief for Petitioners 30–31 (it is “unnecessary” to specify that contracts are “subject to the availability of appropriations” (i nternal quotation marks omitted)); see also Reply Brief for Petitioners 7 (“ [A]ll government contracts are contingent upon the appropriations provided by Congress”).11 Cite as: 567 U. S. ____ (2012)

Opinion of the Court

III
A
The Government primarily seeks to distinguish this case
from Cherokee Nation and Ferris on the ground that Con

gress here appropriated “not to exceed” a given amount for contract support costs, thereby imposing an express cap on the total funds available. See Brief for Petitioners 26,

49. The Government argues, on this basis, that Ferris and
Cherokee Nation involved “contracts made against the backdrop of unrestricted, lump-sum appropriations,” while this case does not. See Brief for Petitioners 49, 26. That premise, however, is inaccurate. In Ferris , Con

gress appropriated “[f]or im proving Delaware River below Bridesburg, Pennsylvania, forty-five thousand dollars.” 20 Stat. 364. As explained in the Government’s own appro

priations law handbook, the “not to exceed” language at issue in this case has an identical meaning to the quoted language in Ferris . See GAO Redbook, p. 6–5 (“Words like ‘not to exceed’ are not the only way to establish a maxi

mum limitation. If the approp riation includes a specific amount for a particular object (such as ‘For Cuban cigars, $100’), then the appropriation is a maximum which may not be exceeded”). The appropriation in Cherokee Nation took a similar form. See, e.g., 108 Stat. 2527–2528 (“For expenses necessary to carry out . . . ISDA [and certainother enumerated Acts], $1,713,052,000”). There is no basis, therefore, for distinguishing the class of appropriation in those cases from this one. In each case, the agency remained free to allocate funds among multiple contrac

tors, so long as the contracts served the purpose Congress
identified. This result does not leave the “not to exceed” language in Congress’ appropriation without legal effect. To the contrary, it prevents the Secretary from reprogramming other funds to pay contract support costs—thereby pro

tecting funds that Congress envisioned for other BIA12 SALAZAR v. RAMAH NAVAJO CHAPTER

Opinion of the Court

programs, including tribes that choose not to enter ISDA contracts. But when an agency makes competing contrac

tual commitments with legally available funds and then fails to pay, it is the Government that must bear the fiscal consequences, not the contractor.

B
The dissent attempts to distinguish this case from Cher

okee Nation and Ferris on different grounds, relying on §450j–1(b)’s proviso that “the Secretary is not required to reduce funding for programs, pr ojects, or activities serv

ing a tribe to make funds available to another tribe.” In the dissent’s view, that clause establishes that each dol

lar allocated by the Secretary reduces the amount of ap

propriations legally available to pay other contractors. In effect, the dissent understands §450j–1(b) to make the legal availability of appropriations turn on the Secretary’s expenditures rather than the sum allocated by Congress. That interpretation, which is inconsistent with ordinary principles of Government contracting law, is improbable. We have explained that Congress ordinarily controls the availability of appropriations; the agency controls whether to make funds from that appropriation available to pay a
contractor. See Cherokee Nation , 543 U. S., at 642–643. The agency’s allocation choi ces do not affect the Govern

ment’s liability in the event of an underpayment. See id.

, at 641 (when an “ ‘unrestricted appropriation is sufficient to fund the contract, the contractor is entitled to payment even if the agency has allocated the funds to another pur

pose ’ ”). 6 In Cherokee Nation , we found those ordinary

——————

6 The dissent’s view notwithstanding, it is beyond question that Con

gress appropriated sufficient unrestricted funds to pay any contractor in full. The dissent’s real argument is that §450j–1(b) reverses the applicability of the Ferris rule to ISDA, so that the Secretary’s alloca

tion of funds to one contractor redu ces the legal availability of funds to
others. See post, at 4 (opinion of R OBERTS

, C. J.) (“that the Secretary13 Cite as: 567 U. S. ____ (2012)

Opinion of the Court

principles generally applicable to ISDA. See id. , at 637–

646. We also found no evidence that Congress intended that “the tribe should bear the risk that a total lump-sum appropriation (though sufficient to cover its own contracts) will not prove sufficient to pay all similar contracts.” Id.

, at 638 (citing Brief for Federal Parties 23–25). The dis

sent’s reading, by contrast, would impose precisely that regime. See post, at 4–5. The better reading of §450j–1(b) accords with ordinary Government contracting princi ples. As we explained, su

pra, at 9, the clause underscores the Secretary’s discre

tion to allocate funds among tribes, but does not alter the Government’s legal obligation when the agency fails to pay. That reading gives full effect to the clause’s text, which addresses the “amount of funds provided,” and specifies that the Secretary is not required to reduce fund

ing for one tribe to make “funds available” to another. 450j–1(b). Indeed, even the Government acknowledges the clause governs the Secretary ’s discretion to distribute funds. See Brief for Petitioners 52 (pursuant to §450j– 1(b), the Secretary was not obligated to pay tribes’ “con

tract support costs on a first-come, first-served basis, but had the authority to distribute the available money among all tribal contractors in an equitable fashion”). At minimum, the fact that we, the court below, the

—————— could have allocated the funds to [a] tribe is irrelevant. What matters is what the Secretary does, and once he allocates the funds to one tribe, they are not available to another”). We are not persuaded that §450j– 1(b) was intended to enact that radical departure from ordinary Gov

ernment contracting principles. In deed, Congress has spoken clearly and directly when limiting the Govern ment’s total contractual liability to an amount appropriated in similar schemes; that it did not do so here further counsels against the dissent’s reading. See, e.g., 25
U. S. C. §2008(j)(2) (“[i]f the total amount of funds necessary to provide grants to tribes . . . for a fiscal ye ar exceeds the amount of funds appro

priated . . . , the Secretary shall reduce the amount of each grant [pro rata]”).14 SALAZAR v. RAMAH NAVAJO CHAPTER

Opinion of the Court

Government, and the Tribes do not share the dissent’sreading of §450j–1(b) is strong evidence that its interpretation is not, as it claims, “unambiguous[ly]” correct. Post, at 7 (opinion of R OBERTS

, C. J.). Because ISDA is con

strued in favor of tribes, that conclusion is fatal to the
dissent.

C
The remaining counterarguments are unpersuasive.
First , the Government suggests that today’s holding could cause the Secretary to violate the Anti-Deficiency Act, which prevents federal officers from “mak[ing] or author

iz[ing] an expenditure or ob ligation exceeding an amount available in an appropriation.” 31 U. S. C. §1341(a)(1)(A). But a predecessor version of that Act was in place when

Ferris and Dougherty were decided, see GAO Redbook, pp. 6–9 to 6–10, and the Government did not prevail there.
As Dougherty explained, the Anti-Deficiency Act’s re

quirements “apply to the official , but they do not affect the rights in this court of the ci tizen honestly contracting with the Government.” 18 Ct. Cl., at 503; see also Ferris , 27 Ct. Cl., at 546 (“An appropriation per se merely imposes limi

tations upon the Government’s own agents; . . . but its insufficiency does not pay the Government’s debts, nor cancel its obligations”). 7
Second , the Government argues that Congress could not have intended for respondents to recover from the Judg

ment Fund, 31 U. S. C. §1304, because that would allow the Tribes to circumvent Congress’ intent to cap total

——————

7 We have some doubt whether a Go vernment employee would violate the Anti-Deficiency Act by obeying an express statutory command to enter a contract, as was the case here. But we need not decide the question, for this case concerns only the contractual rights of tribal contractors, not the consequences of entering into such contracts for agency employees.15 Cite as: 567 U. S. ____ (2012)

Opinion of the Court

expenditures for contract support costs. 8 That contention is puzzling. Congress expre ssly provided in ISDA thattribal contractors were entitled to sue for “money damages” under the Contract Disputes Act upon the Govern

ment’s failure to pay, 25 U. S. C. §§450m–1(a), (d), and judgments against the Government under that Act are payable from the Judgment Fund, 41 U. S. C. §7108(a). 9 Indeed, we cited the Contract Disputes Act, Judgment Fund, and Anti-Deficiency Act in Cherokee Nation , ex

plaining that if the Government commits its appropria

tions in a manner that leaves contractual obligations unfulfilled, “the contractor [is] free to pursue appropriate legal remedies arising because the Government broke its contractual promise.” 543 U. S., at 642.
Third , the Government invokes cases in which courts have rejected contractors’ atte mpts to recover for amounts beyond the maximum appropriated by Congress for a particular purpose. See, e.g., Sutton v. United States , 256
U. S. 575 (1921). In Sutton , for instance, Congress made a specific line-item appropriat ion of $23,000 for the comple

tion of a particular project. Id. , at 577. We held that the sole contractor engaged to comp lete that project could not
recover more than that amount for his work.
The Ferris and Sutton lines of cases are distinguishable,

——————

8 The Judgment Fund is a “permanent , indefinite appropriation” en

acted by Congress to pay final judgments against the United States when, inter alia , “[p]ayment may not legally be made from any other source of funds.” 31 CFR §256.1 (2011).

9 For that reason, the Government’s reliance on Office of Personnel Management v. Richmond , 496 U. S. 414 (1990), is misplaced. In
Richmond , we held that the Appropriations Clause does not permit plaintiffs to recover money for Government-caused injuries for which Congress “appropriated no money.” Id., at 424. Richmond , however, indicated that the Appropriations Clause is no bar to recovery in a case like this one, in which “th e express terms of a spec ific statute” establish “a substantive right to compensa tion” from the Judgment Fund. Id.,

at 432.16 SALAZAR v. RAMAH NAVAJO CHAPTER

Opinion of the Court

however. GAO Redbook, p. 6–18. “[I]t is settled that contractors paid from a ge neral appropriation are not barred from recovering for brea ch of contract even though the appropriation is exhausted,” but that “under a specific line-item appropriation, the answer is different.” Ibid. 10 The different results “follo[w] logically from the old maxim that ignorance of the law is no excuse.” Ibid. “If Congress appropriates a specific dollar amount for a particular contract, that amount is specified in the appropriation act
and the contractor is deemed to know it.” Ibid. This case
is far different. Hundreds of tribes entered into thousands of independent contracts, each for amounts well within the lump sum appropriated by Congress to pay contract sup

port costs. Here, where each Tribe’s “contract is but one activity under a larger appropri ation, it is not reasonable to expect [each] contractor to know how much of that appropriation remain[ed] available for it at any given
time.” Ibid.; see also Ferris , 27 Ct. Cl., at 546. Finally , the Government argues that legislative history suggests that Congress approved of the distribution of available funds on a uniform, pro rata basis. But “a fun

damental principle of appropriations law is that where Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions.” Lincoln , 508 U. S., at 192 (internal quotation marks omitted). “[I]ndicia in commit

-

——————

10 Of course, “[t]he terms ‘lump-sum’ and ‘line-item’ are relative con

cepts.” GAO Redbook, p. 6–165. For example, an appropriation for building two ships “could be viewed as a line-item appropriation in relation to the broader ‘Shipbuildin g and Conversion’ category, but it was also a lump-sum appropriation in relation to the two specific
vessels included.” Ibid. So long as a contractor does not seek payment beyond the amount Congress made legally available for a given pur

pose, “[t]his factual distinction does not affect the legal principle.” Ibid.
See also In re Newport News Shipbuilding & Dry Dock Co. , 55 Comp. Gen. 812 (1976).17 Cite as: 567 U. S. ____ (2012)

Opinion of the Court

tee reports and other legislat ive history as to how the funds should or are expected to be spent do not establish any legal requirements on the agency.” Ibid . (internal quotation marks omitted). An agency’s discretion to spend appropriated funds is cabined only by the “text of the appropriation,” not by Congress’ expectations of how the funds will be spent, as might be reflected by legislative history. Int’l Union, UAW , 746 F. 2d, at 860–861. That principle also reflects the same ideas underlying Ferris . If a contractor’s right to payment varied based on a future court’s uncertain interpretation of legislative history, it
would increase the Government’s cost of contracting. Cf.
Cherokee Nation , 543 U. S., at 644. That long-run expense would likely far exceed whatever money might be saved in any individual case.

IV
As the Government points out, the state of affairs re

sulting in this case is the product of two congressional
decisions which the BIA has found difficult to reconcile. On the one hand, Congress obligated the Secretary to accept every qualifying ISDA contract, which includes a promise of “full” funding for all contract support costs. On the other, Congress appropriated insufficient funds to pay
in full each tribal contractor. The Government’s frustra

tion is understandable, but the dilemma’s resolution is the responsibility of Congress. Congress is not short of options. For instance, it could reduce the Government’s financial obligation by amending
ISDA to remove the statutor y mandate compelling the BIA to enter into self-determination contracts, or by giving the BIA flexibility to pay less than the full amount of contract support costs. It could also pass a moratorium on the formation of new self-determination contracts, as it has done before. See §328, 112 Stat. 2681–291 to 292. Or Congress could elect to make line-item appropriations,18 SALAZAR v. RAMAH NAVAJO CHAPTER

Opinion of the Court

allocating funds to cover tribe s’ contract support costs ona contractor-by-contractor basis. On the other hand, Congress could appropriate sufficien t funds to the BIA to meet the tribes’ total contract support cost needs. Indeed, there is some evidence that Congress may do just that. See
H. R. Rep. No. 112–151, p. 42 (2011) (“The Committee believes that the Bureau should pay all contract support costs for which it has contractually agreed and directs the Bureau to include the full cost of the contract support obligations in its fiscal year 2013 budget submission”). The desirability of these options is not for us to say. We make clear only that Congress has ample means at hand
to resolve the situation under lying the Tribes’ suit. Any one of the options above could also promote transparency about the Government’s fiscal obligations with respect to ISDA’s directive that contract support costs be paid in full. For the period in question, however, it is the Govern

ment—not the Tribes—that must bear the consequences of Congress’ decision to mandate that the Government enter into binding contracts for which its appropriation was sufficient to pay any individual tribal contractor, but “insufficient to pay all the contracts the agency has made.” Cherokee Nation, 543 U. S., at 637. The judgment of the Court of Appeals is affirmed.

It is so ordered._________________

_________________ 1 Cite as: 567 U. S. ____ (2012)

R OBERTS

, C. J., dissenting



## SUPREME COURT OF THE UNITED STATES

No. 11–551

KEN L. SALAZAR, SECRETARY OF THE INTERIOR,

ET AL ., PETITIONERS v. RAMAH NAVAJO
CHAPTER ET AL

.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT

[June 18, 2012]

C HIEF J USTICE R OBERTS , with whom J USTICE G INSBURG , J USTICE B REYER , and J USTICE A LITO join, dissenting.
Today the Court concludes t hat the Federal Government must pay the full amount of contract support costs in

curred by the respondent Tribes, regardless of whether there are any appropriated fund s left for that purpose. This despite the facts that payment of such costs is “subject to the availability of appropriations,” a condition expressly set forth in both the statute and the contracts providing for such payment, 25 U. S. C. §§450j–1(b),

450 l (c) (Model Agreement §1(b)(4)); that payment of the costs for all tribes is “not to exceed” a set amount, e.g., 108 Stat. 2511, an amount that would be exceeded here; and that the Secretary “is not re quired to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe,” §450j–1(b). Because the Court’s conclusion cannot be squared with these unambig

uous restrictions on the paymen t of contract support costs, I respectfully dissent.
The Indian Self-Determination and Education Assis

tance Act provides: “Notwith standing any other provision in [the Act], the provision of funds under this [Act] is subject to the availability of appropriations . . . .” Ibid.2 SALAZAR v. RAMAH NAVAJO CHAPTER

R OBERTS

, C. J., dissenting

This condition is repeated in the Tribes’ contracts with the Government. App. 206; see also §450 l (c) (Model Agree

ment §1(b)(4)). The question in this case is whether ap

propriations were “available” during fiscal years 1994 through 2001 to pay all the contract support costs incurred by the Tribes. Only if appropriations were “available” may the Tribes hold the Government liable for the unpaid

amounts. Congress restricted the amount of funds “available” to pay the Tribes’ contract support costs in two ways. First,in each annual appropriations statute for the Department of the Interior from fiscal year 1994 to 2001, Con

gress provided that spending on contract support costs for
all tribes was “not to exceed” a certain amount. The fiscal year 1995 appropriations statute is representative. It provided: “For operatio n of Indian programs . . . , $1,526,778,000, . . . of which not to exceed $95,823,000 shall be for payments to tribes and tribal organizations for contract support costs . . . .” 108 Stat. 2510–2511. As the Court acknowledges, ante, at 11–12, the phrase “not to exceed” has a settled meaning in federal appropriations law. By use of the phrase, Congress imposed a cap on the total funds available for contract support costs in each fiscal year. See 2 General A ccounting Office, Principles of Federal Appropriations Law, p. 6–8 (2d ed. 1992) (herein

after GAO Redbook) (“[T]he most effective way to establish a maximum . . . earmark is by the words ‘not to exceed’ or
‘not more than’ ”). Second, in §450j–1(b) itself—in the very same sentence that conditions funding on the “availability of appropria

tions”—Congress provided that “the Secretary [of the Interior] is not required to reduce funding for programs, projects, or activities serving a tribe to make funds avail

able to another tribe or tribal organization under [the Act].” An agency may be required to shift funds from one object to another, within statutory limits, when doing so is3 Cite as: 567 U. S. ____ (2012)

R OBERTS

, C. J., dissenting

necessary to meet a contractual obligation. See 1 GAO Redbook, p. 2–26 (2d ed. 1991). But the “reduction” clause in §450j–1(b) expressly provides that the Secretary is “not required” to engage in such reprogramming to make one
tribe’s funds “available to anoth er tribe.” It follows that appropriations allocated for “p rograms, projects, or activi

ties serving a tribe” are not “available” to another tribe, unless the Secretary reallocates them. Contrary to the Court’s suggestion, ante, at 13–14, the Government shares
this view that the “reduction” clause “specifically relieves the Secretary of any obligation to make funds available to one contractor by reducing paym ents to others.” Brief for Petitioners 51 (citing Arctic Slope Native Assn., Ltd. v. Sebelius , 629 F. 3d 1296, 1304 (CA Fed. 2010), cert. pend

ing, No. 11–83 (filed July 18, 2011)). Given these express restrictions established by Con

gress—which no one doubts are valid—I cannot agree with the Court’s conclusion that appropriations were “avail

able” to pay the Tribes’ contract support costs in full. Once the Secretary had allocated all the funds appropriated for contract support costs, no other funds could be usedfor that purpose without violating the “not to exceed” restrictions in the relevant appropriations statutes. The Court agrees. Ante, at 11–12. That leaves only one other possible source of funds to pay the disputed costs in this case: funds appropriated for contract support costs, but allocated to pay such costs incurred by other tribes. Those funds were not “available” either, however, because they were “funding for programs, proj ects, or activities serving a tribe,” and the Secretary was not required to reduce such funding “to make funds available to another tribe.” §450j–1(b). In reaching a contrary conclusion, the Court fails to appreciate the full significance of the “reduction” clause in §450j–1(b). As construed by the Court, that clause merely confirms that the Secretary “may allocate funds to one4 SALAZAR v. RAMAH NAVAJO CHAPTER

R OBERTS

, C. J., dissenting

tribe at the expense of another.” Ante, at 9. But as ex

plained above, the clause does more than that: It also establishes that when the Secretary does allocate funds to one tribe at the expense of another, the latter tribe has no right to those funds—the funds are not “available” to it. The fact that the Secretary could have allocated the funds
to the other tribe is irrelevant. What matters is what the Secretary actually does, and once he allocates the funds to one tribe, they are not “available” to another. The Court rejects this reading of the “reduction” clause, on the ground that it would constitute a “radical departure from ordinary Government contracting principles.” Ante, at 13, n. 6. But the fact that the clause operates as a constraint on the “availability of appropriations” is evident not only from its text, which speaks in terms of “funds available,” but also from its placement in the statute, immediately following the “subject to the availability” clause. Under the Court’s view, by contrast, the “reduc

tion” clause merely “underscores the Secretary’s discretion to allocate funds among tribes.” Ante, at 13. There is, however, no reason to suppos e that Congress enacted the provision simply to confirm this “ordinary” rule. Ibid. Wegenerally try to avoid reading statutes to be so “insignificant.” TRW Inc. v. Andrews , 534 U. S. 19, 31 (2001) (internal quotation marks omitted). The Court maintains that its holding is compelled by
our decision in Cherokee Nation of Okla. v. Leavitt , 543
U. S. 631 (2005). Ante, at 8. Like respondents here, the
tribes in Cherokee Nation sued the Government for unpaid contract support costs under the Act. Congress had ap

propriated certain sums to the Indian Health Service “[f]or expenses necessary to carry out” the Act, e.g., 108 Stat. 2527–2528, but—unlike in this case—those appropriations “contained no relevant statutory restriction,” 543 U. S., at

637. The Government in Cherokee Nation contended that it was not obligated to pay the contract support costs as5 Cite as: 567 U. S. ____ (2012)

R OBERTS

, C. J., dissenting

promised, in light of the “reduction” clause in §450j–1(b). The Government argued that the clause “makes nonbind

ing a promise to pay one tribe’s costs where doing so would require funds that the Government would otherwise de

vote to ‘programs, projects, or activities serving . . . another tribe.’ ” Id., at 641 (quoting §450j–1(b)). We ruled against the Government, but not because of any disagreement with its reading of the “reduction”
clause. The basis for our decision was instead that “the relevant congressional appropriations contained other
unrestricted funds, small in amount but sufficient to pay the claims at issue.” 543 U. S., at 641 (emphasis altered).
Those funds were allocated for “ ‘inherent federal func

tions,’ such as the cost of running the Indian Health Ser

vice’s central Washington office.” Id., at 641–642. They were not restricted by the “re duction” clause, because they
were not funds for “ ‘programs, projects, or activities serv

ing . . . another tribe.’ ” Id., at 641 (quoting §450j–1(b)). Nor were they restricted by the pertinent appropriations statutes, which, as noted, co ntained no relevant limiting language. See ibid. We therefore held that those funds— which we described as “unrestricted” throughout our opinion, id., at 641, 642, 643, 647—were available to pay the disputed contract support costs. As even the Tribes concede, Cherokee Nation does not control this case. Tr. of Oral Arg. 39 (“I don’t think this case is controlled by Cherokee ” (counsel for the Tribes)). The reason is not that the appropriations statutes in this case contained “not to exceed” caps while those in Chero

kee Nation did not. The Court is correct that appropriat

ing an amount “for” a particular purpose has the same effect as providing that appropriations for that purpose
are “not to exceed” that amount. Ante, at 11. What makes this case different is where Congress drew the line. In
Cherokee Nation , the statutes capped funding for “expenses necessary to carry out” the Act, a category that included6 SALAZAR v. RAMAH NAVAJO CHAPTER

R OBERTS

, C. J., dissenting

funding for both “inherent federal functions” and contract support costs. Accordingly, f unding for one could be used for the other, without violating the cap. Here, by contrast, the statutes capped funding for contract support costs specifically. Thus, once the Secretary exhausted those funds, he could not reprogram other funds—such as funds for “inherent federal functions”—to pay the costs. With the caps in place, moreov er, the “reduction” clause, as explained above, rendered unavailable the only possible source of funds left: funds already allocated for other contract support costs. Unlike in Cherokee Nation , there

fore, there were no unrestricte d funds to pay the costs at issue in this case. The Court’s quotation from Cherokee

Nation concerning “when an ‘ “ unrestricted appropriation is sufficient to fund the contract,” ’ ” ante, at 12 (emphasis added) (quoting Cherokee Nation

, supra , at 641), is accord

ingly beside the point.
The Court also relies on Ferris v. United States , 27 Ct. Cl. 542 (1892). That case involved a government contract to dredge the Delaware River. When work under the contract stopped because funds from the relevant appro

priation had been exhausted, a contractor sued the Gov

ernment for breach of contract, and the Court of Claims held that he was entitled to recover lost profits. As the court explained, “[a] contracto r who is one of several per

sons to be paid out of an appropriation is not chargeable with knowledge of its administration, nor can his legal rights be affected or impaired by its maladministration or by its diversion, whether legal or illegal, to other objects.” Id., at 546. That principle, however, cannot “dictate the
result in this case.” Ante, at 8. The statute in Ferris appropriated an amount “[f]or improving [the] Delaware River,” which prevented spending for that purpose beyond the specified amount. 20 Stat. 364. But in that case, allfunds appropriated for that purpose were equally available to all contractors. Here that is not true; §450j–1(b)7 Cite as: 567 U. S. ____ (2012)

R OBERTS

, C. J., dissenting

makes clear that funds allocated to one contractor are not available to another. Thus, the principle in Ferris does not apply. It is true, as the Court notes, ante, at 10, that each of the Tribes’ contracts provides that the Act and the con

tract “shall be liberally constru ed for the benefit of the Contractor.” App. 203; see also §450 l (c) (Model Agreement §1(a)(2)). But a provision can be construed “liberally” as opposed to “strictly” only when there is some ambiguity to construe. And here there is none. Congress spoke clearly when it said that the provisio n of funds was “subject to the availability of appropriations,” that spending on contract support costs was “not to exceed” a specific amount, and that the Secretary was “not required” to make funds allo

cated for one tribe’s costs “available” to another. The unambiguous meaning of these provisions is that when the Secretary has allocated the maximum amount of funds appropriated each fiscal ye ar for contract support costs, there are no other appropriations “available” to pay any remaining costs. This is hardly a typical government contracts case. Many government contracts contain a “subject to the availability of appropriations” clause, and many appropri

ations statutes contain “not to exceed” language. But this case involves not only those provisions but a third, reliev

ing the Secretary of any obligation to make funds “availa

ble” to one contractor by redu cing payments to others. Such provisions will not always appear together, but when they do, we must give them e ffect. Doing so here, I would hold that the Tribes are not entitled to payment of their contract support costs in full, and I would reverse the contrary judgment of the Court of Appeals for the Tenth
Circuit.