Amicus Curiae Brief — Maine Community Health Options, Petitioner v. United States

Supreme Court briefSep 6, 2019

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No. 18-1028

IN THE

Supreme Court of the United States

___________

MODA HEALTH PLAN, INC.,

Petitioner,

UNITED STATES,

___________

Respondent.

BLUE CROSS AND BLUE SHIELD

OF NORTH CAROLINA,

UNITED STATES,

___________

Petitioner,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Federal Circuit

___________

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

___________

STEVEN P. LEHOTSKY

MICHAEL B. SCHON

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, N.W.

Washington, D.C. 20062

PAUL J. ZIDLICKY*

JACQUELINE G. COOPER

C. FREDERICK BECKNER III

DEREK A. WEBB

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

pzidlicky@sidley.com

Counsel for Amicus Curiae Chamber of Commerce of

the United States of America

September 6, 2019

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

iii

INTEREST OF AMICUS CURIAE ......................

SUMMARY OF ARGUMENT ..............................

ARGUMENT .........................................................

I. THE FEDERAL CIRCUIT’S DECISION IS

CONTRARY TO THIS COURT’S PRECEDENT GOVERNING THE REPEAL OF

STATUTORY OBLIGATIONS .....................

A. The Decision Below Conflicts With

Precedent Holding That Implied Repeals

Must Be “Clear And Manifest.” ................

B. The Decision Below Is Inconsistent With

Precedent Governing Implied Repeals

Through Appropriations Riders And

Based On Legislative History...................

C. The Decision Below Ignores The Presumption Against Retroactive Legislation .............................................................

D. The Decision Below Violates The Canon

Of Constitutional Avoidance ....................

II. THE FEDERAL CIRCUIT’S DECISION

UNDERMINES PUBLIC-PRIVATE PARTNERSHIPS IN AREAS OF CRITICAL

IMPORTANCE TO THE NATIONAL ECONOMY ............................................................

A. Congress Has Encouraged A Wide

Variety Of Efforts By Private Industry

To Implement Important Governmental

Priorities ....................................................

(i)

TABLE OF CONTENTS—continued

B. Critical To Any Public-Private Partnership Is A Need For Certainty And A

Shared Understanding That, Absent A

Clear And Explicit Repeal, Congress Will

Abide By Its Legal Obligations To

Private Parties ..........................................

CONCLUSION .....................................................

Page

iii

CASES

TABLE OF AUTHORITIES

Page

Amell v. United States, 384 U.S. 158

(1966) ..........................................................

Bank Markazi v. Peterson, 136 S. Ct. 1310

(2016) ..........................................................

Bowen v. Georgetown Univ. Hosp., 488 U.S.

204 (1988) ...................................................

Bruesewitz v. Wyeth, 562 U.S. 223 (2011) ....

Can. Life Assurance Co. v. Converium

Ruckversicherung (Deutschland) AG, 335

F.3d 52 (2d Cir. 2003) ................................

Commc’ns Workers of Am. v. Beck, 487 U.S.

735 (1988) ...................................................

Dash v. Van Kleeck, 7 Johns. 477 (N.Y.

1811) ...........................................................

Duke Power Co. v. Carolina Envtl. Study

Grp., Inc., 438 U.S. 59 (1978) ....................

E. Enters. v. Apfel, 524 U.S. 498 (1998) ..... 15, 16

Edward J. De Bartolo Corp. v. Fla. Gulf

Coast Bldg. & Trades Council, 485 U.S.

568 (1988) ...................................................

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612

(2018) .......................................................... 5, 8

Fernandez-Vargas v. Gonzales, 548 U.S. 30

(2006) ........................................................ 13, 14

Gen. Motors Corp. v. Romein, 503 U.S. 181

(1992) ..........................................................

Gonzales v. Oregon, 546 U.S. 243 (2006) ......

J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred

Int’l, Inc., 534 U.S. 124 (2001) ...................

Landgraf v. USI Film Prods., 511 U.S. 244

(1994) .................................................. 13, 15, 16

Miller v. French, 530 U.S. 327 (2000) ...........

Nat’l Ass’n of Home Builders v. Defs. of

Wildlife, 551 U.S. 644 (2007) .....................

TABLE OF AUTHORITIES—continued

Page

NLRB v. Catholic Bishop of Chi., 440 U.S.

490 (1979) ...................................................

NLRB v. Jones & Laughlin Steel Corp., 301

U.S. 1 (1937) ...............................................

Posadas v. Nat’l City Bank of N.Y., 296 U.S.

497 (1936) ................................................... 4, 8

Puerto Rico v. Franklin Cal. Tax-Free Tr.,

136 S. Ct. 1938 (2016) ................................

Radzanower v. Touche Ross & Co., 426 U.S.

148 (1976) ................................................. 4, 5, 7

Rodriguez v. United States, 480 U.S. 522

(1987) ..........................................................

Salazar v. Ramah Navajo Chapter, 567

U.S. 182 (2012) ...........................................

Schneider v. Feinberg, 345 F.3d 135 (2d Cir.

2003) ...........................................................

Sinclair Ref. Co. v. Atkinson, 370 U.S. 195

(1962), overruled in part on other grounds

by Boys Mkts., Inc. v. Retail Clerks Union,

Local 770, 398 U.S. 235 (1970) ..................

Tenn. Valley Auth. v. Hill, 437 U.S. 153

(1978) .......................................................... 9, 10

United States v. Davis, 139 S. Ct. 2319

(2019) ..........................................................

United States v. Langston, 118 U.S. 389

(1886) ..........................................................

United States v. Winstar Corp., 518 U.S.

839 (1996) ...................................................

STATUTES AND REGULATION

National Child Vaccine Injury Act of 1986,

42 U.S.C. §§ 300aa-1 to 300aa-34 ..............

42 U.S.C. § 2210 ............................................

42 U.S.C. § 18062 ..........................................

TABLE OF AUTHORITIES—continued

Page

Exchange and Insurance Market Standards

for 2015 and Beyond, 79 Fed. Reg. 30,240

(May 27, 2014) ............................................ 6, 11

LEGISLATIVE HISTORY

Obamacare Taxpayer Bailout Protection

Act, S. 2214, 113th Cong. (2014) ...............

160 Cong. Rec. H9838 (daily ed. Dec. 11,

2014) ...........................................................

OTHER AUTHORITIES

Herbert Broom, A Selection of Legal

Maxims (8th ed. 1911) ...............................

Bureau of Reclamation, U.S. Dep’t of the

Interior, Bureau of Reclamation Releases

Public-Private Partnerships Request for

Information Summary, https://www.usbr.

gov/p3/ (last updated Oct. 2, 2017) ............

Fed. Bureau of Prisons, Contract Prisons,

https://www.bop.gov/about/facilities/

contract_facilities.jsp (last visited Sept. 3,

2019) ...........................................................

Loan Programs Office, U.S. Dep’t of Energy,

Tribal Energy Loan Guarantee Program,

https://www.energy.gov/sites/prod/files/

2019/03/f60/LPO-tribal-energy-final.pdf ...

Matthew McMullan, All. for Am. Mfg.,

New Balance Lands a Contract to

Supply Military Recruits with Sneakers

(Mar. 16, 2018), https://www.american

manufacturing.org/blog/entry/new-balancelands-a-contract-to-supply-military-recruitswith-sneakers ..............................................

TABLE OF AUTHORITIES—continued

Office of Energy Efficiency & Renewable

Energy, U.S. Dep’t of Energy, Small

Businesses, Big Opportunities: Advancing

Building Energy Efficiency through

Public-Private Collaboration (Oct. 27,

2016), https://www.energy.gov/eere/ .........

Office of Fin. Assistance, U.S. Small Bus.

Admin., Resources, https://www.sba.gov/

offices/headquarters/ofa/resources/11421

(last visited Sept. 3, 2019) .........................

Office of Policy & Research, U.S. Dep’t of

Hous. & Urban Dev., The Evolution of

HUD’s Public-Private Partnerships: A

HUD 50th Anniversary Publication

(2015), https://www.huduser.gov/hud50th/

HUD2-048-Public-Private_Partnership_

508.pdf ........................................................

1A Norman J. Singer & J.D. Shambie

Singer,

Statutes

and

Statutory

Construction (7th ed. 2009) .......................

2 Joseph Story, Commentaries on the

Constitution of the United States (5th ed.

1891) ...........................................................

U.S. Chamber of Commerce, Modernizing

America’s Infrastructure Requires PublicPrivate Partnerships (Jan. 17, 2018),

https://www.uschamber.com/issue-brief/

modernizing-americas-infrastructurerequires-public-private-partnerships .....

U.S. Dep’t of Agric. Rural Dev., About RD,

https://www.rd.usda.gov/about-rd

(last

visited Sept. 3, 2019) ..................................

Page

vii

TABLE OF AUTHORITIES—continued

U.S. Dep’t of Homeland Sec., NIPP 2013:

Partnering for Critical Infrastructure Security and Resilience (2013), https://www.

dhs.gov/sites/default/files/publications/

national-infrastructure-protection-plan2013-508.pdf ...............................................

U.S. Dep’t of the Treasury, Beta Datalab,

Contract Explorer, https://datalab.usa

spending.gov/contract-explorer.html (last

visited Sept. 3, 2019) ..................................

U.S. Gen. Serv. Admin., Federal Procurement Data System - Next Generation - Top

100 Contractors Report - Fiscal Year

2018, https://www.fpds.gov/downloads/top_

requests/Top_100_Contractors_Report_

Fiscal_Year_2018.xls .................................

U.S. Small Bus. Admin., Press Release No.

18-39, The Federal Government Achieves

Small Business Contracting Goal for the

Fifth Consecutive Year with RecordBreaking

$105

Billion

Small

Businesses (May 22, 2018), https://

www.sba.gov/about-sba/sba-newsroom/

press-releases-media-advisories/federalgovernment-achieves-small-businesscontracting-goal-fifth-consecutive-yearrecord-breaking ........................................

Page

INTEREST OF AMICUS CURIAE 1

The Chamber of Commerce of the United States of

America (the “Chamber”) is the world’s largest

business federation. It represents approximately

300,000 direct members and indirectly represents the

interests of more than three million businesses and

professional organizations of every size, in every

economic sector, and from every region of the country.

An important function of the Chamber is to represent

the interests of its members in matters before

Congress, the Executive Branch, and the courts. To

that end, the Chamber regularly files amicus curiae

briefs in cases that raise issues of concern to the

nation’s business community.

Many of the Chamber’s members partner with the

federal government in a variety of areas. Congress

promotes these efforts because in many instances the

public interest is best served (and frequently, can

only be served) with public-private partnerships.

These dealings are often conducted pursuant to

federal statutes that include financial incentives,

risk-sharing arrangements, liability limitations and

other provisions that Congress implemented to

induce the private sector to participate in the federal

program. Such statutory commitments can only be

effective, however, if the federal government honors

its obligations to the business community and

conducts itself as a reliable business partner.

1 The parties consented to the filing of this brief.

accordance with Supreme Court Rule 37.6, amicus states that

no counsel for any party authored this brief in whole or in part,

and no person or entity other than amicus, its members, or its

counsel made a monetary contribution to fund its preparation or

submission.

By holding that the appropriations riders at issue

repealed the government’s undisputed statutory

obligations—despite the absence of any clear

statement to that effect in the riders—the decision

below frustrates the legitimate expectations of and

creates profound uncertainty for companies that do

business and partner with the federal government. If

allowed to stand, the decision will have a chilling

effect on the business community’s work with the

federal government in the future, and make it more

difficult and expensive for the federal government to

accomplish important policy objectives. For all of

these reasons, the Chamber has substantial interests

in the case under review.

SUMMARY OF ARGUMENT

I. The decision below cannot be reconciled with

this Court’s precedent establishing the standards

that govern whether Congress has repealed, by

implication, an existing statutory obligation to

private parties. This Court has held that implied

repeals of statutory obligations are disfavored and

must be clear and manifest. According to the Federal

Circuit, Congress implemented the implied repeal

through appropriations riders.

But that is

implausible. Such riders presumptively do not affect

Congress’ existing statutory obligations. And such a

repeal would violate the presumption against

retroactive legislation and also raise substantial

constitutional doubts under the Due Process Clause

and Takings Clause.

II. The decision below, if left uncorrected, will

have far-reaching consequences for myriad areas in

which U.S. businesses partner with the federal

government to provide vital goods and services. In

addition to the health insurance context, public-

private partnerships serve essential roles in areas as

diverse

public

housing,

infrastructure

development, public health, transportation, and

nuclear energy.

Congress often obtains the

cooperation of private industry through financial

incentives, risk-sharing arrangements, technical

assistance, and other provisions. In many instances,

such partnerships are the only way to achieve

Congress’ objectives. Businesses make substantial

financial investments to participate in these federal

programs, and their willingness to do so is based on

having assurance that the government will honor its

statutory commitments.

If the Federal Circuit’s view prevails and vague

appropriations language, supplemented by snippets

of legislative history, can be read as excusing the

government from abiding by its commitments, then

this precedent will discourage doing business with

the government. At a minimum, the government will

in the future incur greater costs and risks in running

existing public-private partnerships and in pursuing

new partnerships.

The decision below should be reversed.

ARGUMENT

I. THE FEDERAL CIRCUIT’S DECISION IS

CONTRARY TO THIS COURT’S PRECEDENT GOVERNING THE REPEAL OF

STATUTORY OBLIGATIONS.

The Federal Circuit’s decision cannot be reconciled

with this Court’s cases disfavoring implied repeals,

especially when they take the form of ambiguous

appropriations measures, require resort to legislative

history, and operate retroactively to upset reasonable

reliance interests. As a result, the Federal Circuit’s

construction calls into question the constitutionality

of Congress’ action under the Due Process and

Takings Clauses.

A. The

Decision

Below

Conflicts

With

Precedent Holding That Implied Repeals

Must Be “Clear And Manifest.”

1. The decision below conflicts with longestablished law that (i) “repeals by implication are

not favored,” Rodriguez v. United States, 480 U.S.

522, 524 (1987) (per curiam); and (ii) a party

advocating such a repeal “bears a heavy burden of

persuasion,” Amell v. United States, 384 U.S. 158,

165 (1966). 2 As this Court explained in Posadas v.

National City Bank of New York, 296 U.S. 497, 504

(1936), “[w]here the powers or directions under

several acts are such as may well subsist together, an

implication of repeal cannot be allowed,” id.; rather,

repeals must be “clear and manifest,” and the

“implication” of repeal “must be a necessary

implication,” id. (emphasis added).

Put another way, “the only permissible justification

for a repeal by implication is when the earlier and

later statutes are irreconcilable.” J.E.M. Ag Supply,

Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 14142 (2001) (quoting Morton v. Mancari, 417 U.S. 535,

550 (1974)). Statutes are irreconcilable when “there

is a positive repugnancy between them or . . . they

cannot mutually exist.” Radzanower v. Touche Ross

& Co., 426 U.S. 148, 155 (1976). “[W]hen two

statutes are capable of co-existence, it is the duty of

2 See also 1A Norman J. Singer & J.D. Shambie Singer,

Statutes and Statutory Construction § 23.10, at 475-76 (7th ed.

2009) (the presumption against implied repeals is designed “to

give harmonious effect to all acts on a subject where reasonably

possible”).

the courts . . . to regard each as effective.”

Id.

(quoting Morton, 417 U.S. at 551). That is because

“[r]espect for Congress as drafter counsels against too

easily finding irreconcilable conflicts in its work” and

“respect for the separation of powers counsels

restraint.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,

1624 (2018). Indeed, these rules “aiming for harmony

over conflict in statutory interpretation grow from an

appreciation that it’s the job of Congress by

legislation, not this Court by supposition, both to

write the laws and to repeal them.” Id.

2. An examination of Congress’ original statutory

obligation in Section 1342 and the subsequent

language tucked within the appropriations riders

confirms that there has been no “clear and manifest”

repeal of statutory rights and that there is no

“irreconcilable” conflict between Section 1342 and the

appropriations riders.

Congress induced private insurers to participate in

the Affordable Care Act (“ACA”) by granting them a

statutory right to payments that would reduce the

risk that insurance premiums would be inadequate to

cover their allowable costs. Section 1342 of the ACA

unequivocally provided that if a plan’s “allowable

costs for any plan year” were “more than 103 percent

but not more than 108 percent of the target amount,”

then “the Secretary shall pay to the plan an amount

equal to 50 percent of the target amount in excess of

103 percent of the target amount.” 42 U.S.C. § 18062

(“Section 1342”). Further, the Secretary “shall pay”

“80 percent of allowable costs in excess of 108 percent

of the target amount.” Id.

None of the judges below disputed that the “plain

language of section 1342 created an obligation of the

government to pay participants in the health benefit

exchanges the full amount indicated by the statutory

formula for payments out under the risk corridors

program.” Pet. App. 20. Put simply, Section 1342

directed “the Secretary of HHS to establish a

program whereby participating plans whose costs of

providing coverage exceeded the premiums received

(as determined by a statutory formula) would be paid

a share of their excess costs by the Secretary—

‘payments out.’” Id. at 5. In turn, “plans whose

premiums exceeded their costs (according to the same

formula) would pay a share of their profits to the

Secretary—‘payments in.’” Id. 3 The risk corridors

program thereby “permit[ted] issuers to lower

[premiums] by not adding a risk premium to account

for perceived uncertainties in the 2014 through 2016

markets.” Id. at 5-6 (alterations in original) (quoting

HHS Notice of Benefit and Payment Parameters for

2014, 78 Fed. Reg. 15,410, 15,413 (Mar. 11, 2013)). 4

3 Specifically, if a plan’s “allowable costs” for any “plan year”

were less than 97 percent of the target amount, then the Plan

would be required to pay to the Secretary a portion of the

difference between the target amount and the allowable costs

(50 percent where allowable costs were between 92 and 97

percent of the allowable amount and 80 percent “of the excess of

92 percent of the target amount over the allowable costs”). Pet.

App. 4 (quoting Section 1342(b)(2)(B)).

4 The government’s obligation to pay was reinforced through

official pronouncements by HHS.

In March 2013, HHS

published parameters for payments for the first year of the

exchanges under the risk corridors program, Pet. App. 7, and

explained that “‘the risk corridors program is not required to be

budget neutral,’ so HHS would make full payments ‘as required

under Section 1342,’” id. (quoting 78 Fed. Reg. at 15,473). And,

in March 2014, HHS again explained that “[i]n the unlikely

event of a shortfall for the 2015 program year, HHS recognizes

that the Affordable Care Act requires the Secretary to make full

payments to issuers” and that “HHS will use other sources of

funding for the risk corridors payments, subject to the

availability of appropriations.” Exchange and Insurance Market

3. The clarity with which the government

promised to make the payments contrasts sharply

with the ambiguous language in the appropriations

rider adopted on December 16, 2014, which stated:

None of the funds made available by this Act

from the Federal Hospital Insurance Trust Fund

or the Federal Supplemental Medical Insurance

Trust Fund, or transferred from other accounts

funded by this Act to the “Centers for Medicare

and Medicaid Services—Program Management”

account, may be used for payments under

Section 1342(b)(1) of [the ACA] (relating to risk

corridors).

Pet. App. 12 (emphasis added) (quoting Consolidated

and Further Continuing Appropriations Act, 2015,

Pub. L. No. 113-235, § 227, 128 Stat. 2130, 2491

(2014)). Congress adopted “identical riders in FY

2016 and FY 2017.” Id. at 13.

This language restricts the use of funds “for

payments under section 1342(b)(1)” only from specific

identified sources from “this Act.” It does not purport

to repeal the underlying obligation of the Secretary to

make the mandatory risk corridor payments

pursuant to the formula in Section 1342. Nor does it

alter the mandatory nature of Congress’ statutory

obligation by making risk corridor payments

contingent on budget neutrality within the scope of

Section 1342. The appropriations riders do not

impliedly repeal Section 1342’s risk corridor

obligations because they are not irreconcilable with

one another. Radzanower, 426 U.S. at 155 (“[W]hen

two statutes are capable of co-existence, it is the duty

of the courts to regard each as effective.”) (alteration

Standards for 2015 and Beyond, 79 Fed. Reg. 30,240, 30,260

(May 27, 2014).

omitted); Nat’l Ass’n of Home Builders v. Defs. of

Wildlife, 551 U.S. 644, 662-63 (2007) (“We will not

infer a statutory repeal ‘unless the later statute

“expressly contradict[s] the original act”’ or unless

such a construction ‘is absolutely necessary . . . .’”)

(alteration in original).

The appropriations rider can hardly be read as

Congress’ “clear and manifest” intent to repeal the

government’s obligation to make risk corridor

payments (as opposed merely to restricting how funds

made available by “this Act” could be used). Had

Congress intended to strike a fundamentally different

bargain than the one set forth in Section 1342, this

Court’s cases require that it “say so” in the text of the

statute. Puerto Rico v. Franklin Cal. Tax-Free Tr.,

136 S. Ct. 1938, 1953 (2016). Congress cannot “alter

the fundamental details of a regulatory scheme in

vague terms or ancillary provisions.” Gonzales v.

Oregon, 546 U.S. 243, 267 (2006) (quoting Whitman v.

Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)); see

also Epic Sys. Corp., 138 S. Ct. at 1627 (same). And,

the “vague” and “ancillary language” of the

appropriations riders cannot overcome the “cardinal

rule . . . that repeals by implication are not favored,”

Posadas, 296 U.S. at 503, or satisfy this Court’s

requirement of “clear and manifest” language making

the “implication” of repeal a “necessary” one, id. at

504.

B. The Decision Below Is Inconsistent With

Precedent Governing Implied Repeals

Through Appropriations Riders And Based

On Legislative History.

1. The Federal Circuit’s decision also conflicts

with this Court’s precedent recognizing that

appropriations riders are a particularly inapt

mechanism for Congress to repeal substantive

statutory obligations.

Specifically, the “doctrine

disfavoring repeals by implication . . . applies with

even greater force when the claimed repeal rests

solely on an Appropriations Act.” Tenn. Valley Auth.

v. Hill, 437 U.S. 153, 190 (1978). 5 In Hill, after

acknowledging that “both substantive enactments

and appropriations measures are ‘Acts of Congress,’”

this Court held that “the latter have the limited and

specific purpose of providing funds for authorized

programs,” id., and adopted a presumption that

appropriations measures do not repeal existing law

because otherwise “every appropriations measure

would be pregnant with prospects of altering

substantive legislation,” id.

Here, the lower court ignored Hill and its

presumption

against

implied

repeals

via

appropriations measures. Indeed, the Hill Court

highlighted that Congress’ operating rules dictate

that appropriations bills may not change existing

law. Id. at 190-91 (citing House Rule XXI(2); Rule

16.4 of the Standing Rules of the Senate). As

explained below in Judge Newman’s dissenting

opinion, “burying a repeal in a standard

appropriations bill would provide clever legislators

with an end-run around the substantive debates that

a repeal might precipitate.” Pet. App. 47 (quoting

Moda Health Plan, Inc. v. United States, 130 Fed. Cl.

436, 458 (2017)).

5 See also United States v. Langston, 118 U.S. 389, 394 (1886)

(holding that “a statute fixing the annual salary of a public

officer at a named sum, without limitation as to time, should not

be deemed abrogated or suspended by subsequent enactments”

when those enactments “merely appropriated a less amount for

the services of that officer for particular fiscal years, and which

contained no words that expressly, or by clear implication,

modified or repealed the previous law”).

2. Further, the Federal Circuit relied heavily

upon an explanatory statement by the House

Appropriations Chairman as the basis for its

conclusion that Congress intended to modify the

government’s obligations under Section 1342. Pet.

App. 26-27 (citing 160 Cong. Rec. H9838 (daily ed.

Dec. 11, 2014)). Under Hill, however, the

presumption

against

implied

repeals

via

appropriations measures applies all the more to mere

statements by Appropriations Committees or their

members.

That is because “[e]xpressions of

committees dealing with requests for appropriations

cannot be equated with statutes enacted by

Congress.” Hill, 437 U.S. at 191 (rejecting argument

that “Congress as a whole was aware” of

appropriations committee’s statements “dealing with

requests for appropriations”). Rather, this Court has

been “extremely hesitant to presume general

congressional awareness of . . . a few isolated

statements in the thousands of pages of legislative

documents.” Id. at 192 (quoting SEC v. Sloan, 436

U.S. 103, 121 (1978)).

In any event, the legislative history the government

cites does not remotely create the necessary

inconsistency between Section 1342 and the

appropriations riders. Rather, the relevant twosentence statement by Representative Harold Rogers

did not preclude any and all federal funds from being

used to pay the government’s obligations to health

plans, let alone say that Congress was repealing the

fundamental statutory obligation to pay in the first

instance. His statement was:

In 2014, HHS issued a regulation stating that

the risk corridor program will be budget neutral,

meaning that the federal government will never

pay out more than it collects from issuers over

the three year period risk corridors are in effect.

The agreement includes new bill language to

prevent the CMS Program Management

appropriation account from being used to support

risk corridors payments.

160 Cong. Rec. H9838 (daily ed. Dec. 11, 2014). This

statement explains that the rider prevents CMS

Program Management appropriations from being

used for risk corridors payments, but does not

foreclose the use of other sources of money for the risk

corridors program.

As the government has acknowledged, Chairman

Rogers was referring to the March 2014 HHS

regulation, which stated that the risk corridor

program would be budget neutral. Br. for the United

States in Opp’n 17-18. In the course of promulgating

that regulation in March 2014, HHS explained that

while it anticipated budget-neutrality, it recognized

the possibility of further outlays by the government.

As we stated in the bulletin, we anticipate that

risk corridors collections will be sufficient to pay

for all risk corridors payments. That said, we

appreciate that some commenters believe that

there are uncertainties associated with rate

setting, given their concerns that risk corridors

collections may not be sufficient to fully fund risk

corridors payments. In the unlikely event of a

shortfall for the 2015 program year, HHS

recognizes that the Affordable Care Act requires

the Secretary to make full payments to issuers. In

that event, HHS will use other sources of funding

for the risk corridors payments, subject to the

availability of appropriations.

Exchange and Insurance Market Standards for 2015

and Beyond, 79 Fed. Reg. 30,240, 30,260 (May 27,

2014) (emphasis added). To the extent Chairman

Rogers’ statement incorporated HHS’s March 2014

regulation, he also logically would have incorporated

HHS’s explanation that, if necessary, “other sources

of funding” would be made available to “make full

payments to issuers.”

Further, even if Chairman Rogers’ statement

supported the view that Congress was eliminating

any obligation the federal government had to make

full payments to issuers in the case of a budget

shortfall, other legislative evidence contradicts the

view that Congress made its obligation under the risk

corridor program contingent on budget neutrality. In

2014, Congress also considered but chose not to enact

a bill that would have amended Section 1342 and

required budget neutrality in its operation. See

Obamacare Taxpayer Bailout Protection Act, S. 2214,

113th Cong. (2014). As this Court has explained,

“[w]hen the repeal of a highly significant law is urged

upon that body [Congress] and that repeal is rejected

after careful consideration and discussion, the normal

expectation is that courts will be faithful to their

trust and abide by that decision.” Sinclair Ref. Co. v.

Atkinson, 370 U.S. 195, 210 (1962) (rejecting finding

of an implied repeal where Congress “rejected” an

express appeal “after careful consideration and

discussion”), overruled in part on other grounds by

Boys Mkts., Inc. v. Retail Clerks Union, Local 770,

398 U.S. 235 (1970). In this context, Congress’

refusal to enact a bill amending Section 1342 in 2014,

precludes a finding that Congress impliedly repealed

the same provision in “clear and manifest” manner

through subsequent appropriations riders.

C. The Decision Below Ignores The Presumption Against Retroactive Legislation.

In addition, the Federal Circuit’s decision

disregards that “deeply rooted in our jurisprudence”

is “the presumption against retroactive legislation.”

Landgraf v. USI Film Prods., 511 U.S. 244, 265

(1994). A retroactive statute is defined as one

“tak[ing] away or impair[ing] vested rights acquired

under existing laws . . . in respect to transactions or

considerations already past.” Fernandez-Vargas v.

Gonzales, 548 U.S. 30, 37 (2006) (alterations in

original). “Elementary considerations of fairness

dictate that individuals should have an opportunity

to know what the law is and to conform their conduct

accordingly; settled expectations should not be lightly

disrupted.” Landgraf, 511 U.S. at 265. Further,

“[r]etroactive legislation presents problems of

unfairness that are more serious than those posed by

prospective legislation, because it can deprive citizens

of legitimate expectations and upset settled

transactions.” Gen. Motors Corp. v. Romein, 503 U.S.

181, 191 (1992). Such legislation has therefore long

been disfavored under our law. Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204, 208 (1988). 6

6 See also Dash v. Van Kleeck, 7 Johns. 477, 503 (N.Y. 1811)

(“It is a principle in the English common law, as ancient as the

law itself, that a statute, even of its omnipotent parliament, is

not to have a retrospective effect.”); Herbert Broom, A Selection

of Legal Maxims 24 (8th ed. 1911) (“Retrospective laws are, as a

rule, of questionable policy, and contrary to the general principle

that legislation by which the conduct of mankind is to be

regulated ought to deal with future acts, and ought not to

change the character of past transactions carried on upon the

faith of the then existing law.”); see also 2 Joseph Story,

Commentaries on the Constitution of the United States § 1398

(5th ed. 1891) (“Retrospective laws are, indeed, generally unjust;

and, as has been forcibly said, neither accord with sound

Congress undoubtedly can choose to alter statutory

obligations prospectively in a manner that respects

the legitimate expectations of private parties and

that does not undo settled transactions that were

made in reliance on those statutory obligations. But

interpreting the appropriations riders as repealing

the government’s statutory obligation to make

payments to providers who had already chosen to

participate in the risk corridors program, when the

promise of such payments had induced them to

participate in the first place, would constitute

retroactive legislation. Pet. App. 57-58 (Newman, J.,

dissenting). Here, the appropriations riders must be

presumed not to repeal Congress’ statutory

obligations under the risk corridors program “unless

such construction is required by explicit language or

by necessary implication.” Fernandez-Vargas, 548

U.S. at 37. As discussed above, supra pp. 7-8, the

language of the appropriations riders does not

remotely satisfy this high standard.

D. The Decision Below Violates The Canon Of

Constitutional Avoidance.

Finally, the decision below should be reversed

because congressional action must be interpreted,

where reasonably possible, to avoid serious

constitutional questions. The “cardinal principle of

statutory construction is to save and not to destroy,”

and therefore this Court has held that “as between

two possible interpretations of a statute, by one of

which it would be unconstitutional and by the other

valid, our plain duty is to adopt that which will save

the act.” NLRB v. Jones & Laughlin Steel Corp., 301

U.S. 1, 30 (1937) (“Even to avoid a serious doubt the

legislation nor with the fundamental principles of the social

compact.”).

rule is the same.”); United States v. Davis, 139 S. Ct.

2319, 2332 n.6 (2019) (“[C]ourts should, if possible,

interpret ambiguous statutes to avoid rendering them

unconstitutional . . . .” (citing Parsons v. Bedford, 28

U.S. (3 Pet.) 433, 448–49 (1830) (Story, J.)). As a

result, “where an otherwise acceptable construction of

a statute would raise serious constitutional problems,

the Court will construe the statute to avoid such

problems unless such construction is plainly contrary

to the intent of Congress.” Edward J. De Bartolo

Corp. v. Fla. Gulf Coast Bldg. & Trades Council, 485

U.S. 568, 575 (1988); accord Miller v. French, 530

U.S. 327, 336 (2000); Commc’ns Workers of Am. v.

Beck, 487 U.S. 735, 762 (1988); NLRB v. Catholic

Bishop of Chi., 440 U.S. 490, 499-501 (1979).

Here, the Federal Circuit ignored this canon of

constitutional avoidance.

It construed the

appropriations riders to allow Congress to disavow

the government’s responsibility to pay private

insurers $12.3 billion under the risk corridors

program, after Congress induced health plans to

participate in the program with the promise of full

payment. That reading raises serious constitutional

questions about the retroactive effects of these riders

under both the Due Process Clause and the Takings

Clause. See, e.g., Landgraf, 511 U.S. at 266; see also

E. Enters. v. Apfel, 524 U.S. 498, 549 (1998)

(Kennedy, J., concurring in the judgment) (concluding

that retroactive imposition of liability violated the

Due Process Clause); see id. at 537 (plurality opinion)

(retroactive nature of legislation supported conclusion

that it violated the Takings Clause).

The Due Process Clause “protects the interests in

fair notice and repose that may be compromised by

retroactive legislation.” Landgraf, 511 U.S. at 266;

see also Bank Markazi v. Peterson, 136 S. Ct. 1310,

1324-25 (2016).

Because retroactive legislation

changes “the legal consequences of transactions long

closed,” it “can destroy the reasonable certainty and

security which are the very objects of property

ownership,” and therefore “due process protection for

property must be understood to incorporate our

settled tradition against retroactive laws of great

severity.” Apfel, 524 U.S. at 548-49 (Kennedy, J.,

concurring in the judgment). The Takings Clause

likewise prohibits retrospective laws affecting

property rights.

A law that imposes a

“disproportionate and severely retroactive burden”

upon particular individuals or companies violates

“fundamental principles of fairness underlying the

Takings Clause.” Id. at 536-37 (plurality opinion).

“[S]tability of investment and confidence in the

constitutional system” are undermined by retroactive

legislation. Id. at 548-49 (Kennedy, J. concurring in

the judgment). Accordingly, the Due Process Clause

and Takings Clause of the Constitution place

restrictions against such retroactive legislation. See

Landgraf, 511 U.S. at 266 (explaining that, under the

Due Process Clause, “a justification sufficient to

validate a statute’s prospective application under the

Clause ‘may not suffice’ to warrant its retroactive

application”).

By construing the appropriation riders to repeal

statutory promises that induced participation by

private insurance carriers, the Federal Circuit’s

interpretation changed the legal consequences of

these long closed transactions and imposed a

disproportionate and severely retroactive burden on

these insurance carriers. That interpretation flouts

these bedrock restrictions of the Due Process and

Takings Clauses and conflicts with the Court’s cases

mandating that courts construe congressional

statutes to avoid rendering them unconstitutional.

II. THE FEDERAL CIRCUIT’S DECISION

UNDERMINES PUBLIC-PRIVATE PARTNERSHIPS IN AREAS OF CRITICAL

IMPORTANCE TO THE NATIONAL ECONOMY.

Although this case involves the ACA and the health

care industry, the Federal Circuit’s decision—if

allowed

stand—will

have

far-reaching

consequences for myriad areas in which U.S.

businesses partner with the federal government to

provide vital goods and services. In addition to the

health insurance context, public-private partnerships

serve essential roles in areas as diverse as public

housing, infrastructure development, public health,

transportation, and nuclear energy.

In all of these fields, businesses of all sizes invest

substantial financial and other resources to

participate in federal programs.

Congress often

encourages the cooperation of private industry

through direct and indirect financial incentives, risksharing and risk-mitigation measures (such as

indemnification, liability limitations, and loan

guarantees), technical assistance, and other

provisions. In many instances, enlisting private

business is the only way for Congress viably to

achieve its goals. Private entities rely on the federal

government’s statutory commitments when deciding

whether to participate. If the government can be

deemed to renege on those commitments through

ambiguous language tucked inside appropriations

riders, as the Federal Circuit concluded it did with

respect to the ACA’s risk corridors program, then

that ruling jeopardizes the future of public-private

partnerships and the benefits that they provide to

both the government and the private sector.

For these reasons, an affirmance of the ruling

below would adversely affect numerous members of

private industry beyond those before the Court. It

would also broadly affect the public interest because

the legal uncertainty created by the decision below

would jeopardize the ability of the federal

government to find willing partners in the business

community. At a minimum, that uncertainty would

increase the government’s costs of entering into

public-private partnerships.

A. Congress Has Encouraged A Wide Variety

Of Efforts By Private Industry To Implement Important Governmental Priorities.

Private sector businesses, large and small, are

deeply involved in implementing federal programs of

all types.

In addition to the health insurance

exchanges at issue in this case, due to Medicare,

Medicaid, and other programs, health care in the

United States is frequently delivered through

programs in which the federal government partners

with the private sector. See Br. for Amicus Curiae

Blue Cross Blue Shield Association in Supp. of Pet’rs

18-20 (Mar. 8, 2019) (discussing the Medicare and

Medicaid program); Br. of America’s Health

Insurance Plans as Amicus Curiae in Supp. of Pet’rs

15-18 (Mar. 8, 2019) (same).

The federal government’s efforts to ensure

affordable housing also depend upon the participation

of private businesses. Indeed, the U.S. Department

of Housing and Urban Development (“HUD”) has

stated that “most HUD programs are structurally

public-private partnerships” or “have some public-

private aspects.” 7 HUD has favored public-private

partnerships because they “enable government to

share risks with the private sector, leverage

investments for far greater effect, take advantage of

efficiencies outside government, and employ broader

knowledge and skills.” Id. at 2.

Infrastructure and energy development are other

areas that utilize public-private partnerships to

achieve key federal objectives. The Department of

Homeland

Security’s

National

Infrastructure

Protection Plan (“NIPP”), for example, states that

“[v]oluntary collaboration between private sector

owners and operators . . . and their government

counterparts has been and will remain the primary

mechanism for advancing collective action toward

national critical infrastructure security and

Consistent with this objective, the

resilience.” 8

7 Office

of Policy & Research, U.S. Dep’t of Hous. & Urban

Dev., The Evolution of HUD’s Public-Private Partnerships: A

HUD 50th Anniversary Publication, at 1 (2015), https://www.

huduser.gov/hud50th/HUD2-048-Public-Private_Partnership_

508.pdf (citing as examples “[t]he nation’s foremost low-income

tenant assistance subsidy,” community development block

grants, and the Federal Housing Administration’s single-family

home mortgage insurance program).

8 U.S. Dep’t of Homeland Sec., NIPP 2013: Partnering for

Critical Infrastructure Security and Resilience, at 10 (2013),

https://www.dhs.gov/sites/default/files/publications/nationalinfrastructure-protection-plan-2013-508.pdf. The Chamber

believes that the use of public-private partnerships is essential

to modernizing America’s infrastructure. See U.S. Chamber of

Commerce, Modernizing America’s Infrastructure Requires

Public-Private Partnerships (Jan. 17, 2018), https://www.

uschamber.com/issue-brief/modernizing-americas-infrastructurerequires-public-private-partnerships (urging Congress to expand

existing federal loan programs, create new loan and loan

guarantee programs, make discretionary grants, and remove

Department of the Interior’s Bureau of Reclamation

“is engaging in internal efforts to further analyze the

potential for leveraging [public-private partnerships]”

to advance its mission of managing and developing

America’s water and related resources, particularly

in the western states. 9 The Department of Energy

also uses public-private partnerships to spur

innovation and the development of new energy

sources. 10

Several federal loan guarantee programs rely upon

the participation of private financial institutions to

extend the loans to beneficiaries. For example, the

U.S. Department of Agriculture’s Rural Development

agency “promote[s] economic development” in rural

America “by supporting loans to businesses through

banks, credit unions and community-managed

lending pools.” 11

The U.S. Small Business

Administration similarly offers programs in which it

“guarantee[s] loans made to small businesses by

10F

barriers to public-private partnerships to modernize the nation’s

airports, ports, rail systems, dams, and waterways).

9 See Bureau of Reclamation, U.S. Dep’t of the Interior,

Bureau of Reclamation Releases Public-Private Partnerships

Request for Information Summary, https://www.usbr.gov/p3/

(last updated Oct. 2, 2017).

10 See Office of Energy Efficiency & Renewable Energy, U.S.

Dep’t of Energy, Small Businesses, Big Opportunities:

Advancing Building Energy Efficiency through Public-Private

Collaboration (Oct. 27, 2016), https://www.energy.gov/eere/

buildings/articles/small-businesses-big-opportunities-advancingbuilding-energy-efficiency.

11 U.S. Dep’t of Agric. Rural Dev., About RD, https://www.

rd.usda.gov/about-rd (last visited Sept. 3, 2019) (noting that the

agency “has a loan portfolio of more than $224.5 billion”).

private and other institutions.” 12 In addition, the

Department of Energy recently announced the Tribal

Energy Loan Guarantee Program, in which it will

guarantee up to $2 billion in loans to tribes for energy

development projects with “[c]ommercial lenders

provid[ing] the debt.” 13

11F

12F

As with the ACA, the federal statutes that create

the public-private partnerships often include

incentives and protections for private industry to

induce and encourage its participation. Congress, for

example, enacted the National Child Vaccine Injury

Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 300aa-1 to

300aa-34, to “stabilize the vaccine market,” which

many manufacturers had exited due to the high costs

of tort liability for vaccine injuries. Bruesewitz v.

Wyeth, 562 U.S. 223, 228 (2011). The Vaccine Act

incented vaccine manufacturers to re-enter the

market by creating a no-fault compensation scheme.

This scheme is funded by industry contributions, but

provides a valuable “quid pro quo” to manufacturers

because they are “generally immunized from liability”

for tort claims. Id. at 229. This Court in Bruesewitz

recognized the importance of this “structural quid pro

quo,” when it construed the Vaccine Act as

preempting state-law design defect claims. Id. at

239. The Court reasoned that Congress “would

hardly coax manufacturers back into the market” if it

had preserved their liability for design defects. Id. at

240.

12 Office

of Fin. Assistance, U.S. Small Bus. Admin.,

Resources,

https://www.sba.gov/offices/headquarters/ofa/

resources/11421 (last visited Sept. 3, 2019).

13 Loan Programs Office, U.S. Dep’t of Energy, Tribal Energy

Loan Guarantee Program, https://www.energy.gov/sites/prod/

files/2019/03/f60/LPO-tribal-energy-final.pdf.

The Atomic Energy Act similarly includes

provisions that limit liability for accidents resulting

from the operation of private nuclear power plants.

See 42 U.S.C. § 2210. Congress designed these

liability caps to “encourage[] the private sector to

become involved in the development of atomic energy

for peaceful purposes.” Duke Power Co. v. Carolina

Envtl. Study Grp., Inc., 438 U.S. 59, 63 (1978). This

Court rejected due process and equal protection

challenges to the liability limitations extended to

nuclear power plant operators, finding that the

record “fully support[ed] the need for the imposition

of a statutory limit on liability to encourage private

industry participation” in the production of nuclear

energy. Id. at 84.

The government’s partnership with industry

sometimes takes the form of direct financial support

to ensure that private companies can provide vital

services. For example, in the aftermath of the

September 11, 2001 terrorist attacks, Congress

enacted the Air Transportation Safety and System

Stabilization Act “to preserve the continued viability

of the United States air transportation system from

potentially ruinous tort liability in the wake of the

attacks.” Schneider v. Feinberg, 345 F.3d 135, 139

(2d Cir. 2003) (per curiam). The legislation included

“financial and tax relief to the airline industry,

including federal support for airline insurance.” Can.

Life Assurance Co. v. Converium Ruckversicherung

(Deutschland) AG, 335 F.3d 52, 55 (2d Cir. 2003). It

also capped the tort liability of air carriers and

created a victim compensation fund, which conditions

claimants’ recovery upon waiver of the right to file

court actions. Schneider, 345 F.3d at 139.

Regardless of the precise forms of participation in

federal programs by the private sector, the federal

government’s statutory commitments are a necessary

precondition to the participation and cooperation of

private businesses and, therefore, a critical

component of the success of these programs.

In addition to statutory obligations, the federal

government

enters

into

direct

contractual

relationships with private sector businesses to obtain

critical goods and services. The federal government

spends “about $500 billion each year on contracts.” 14

In fiscal year 2018, the U.S. General Services

Administration’s list of the largest 100 federal

government contractors included 65 companies with

more than $1 billion in federal dollars obligated, with

Small

defense contractors topping the list. 15

businesses are also awarded a substantial portion of

federal contracts. 16

The federal government

contracts with businesses to provide everything from

13F

14F

15F

14 U.S. Dep’t of the Treasury, Beta Datalab, Contract Explorer,

https://datalab.usaspending.gov/contract-explorer.html

(last

visited Sept. 3, 2019).

15 U.S. Gen. Serv. Admin., Federal Procurement Data System -

Next Generation - Top 100 Contractors Report - Fiscal Year

2018,

https://www.fpds.gov/downloads/top_requests/Top_100_

Contractors_Report_Fiscal_Year_2018.xls (Lockheed Martin,

$40.6 billion; Boeing, $29.8 billion; Raytheon, $18.8 billion;

General Dynamics, $17.5 billion; Northrop Grumman, $12

billion).

16 U.S. Small Bus. Admin., Press Release No. 18-39, The

Federal Government Achieves Small Business Contracting Goal

for the Fifth Consecutive Year with Record-Breaking $105

Billion to Small Businesses (May 22, 2018), https://www.sba.

gov/about-sba/sba-newsroom/press-releases-media-advisories/

federal-government-achieves-small-business-contracting-goalfifth-consecutive-year-record-breaking (reporting that in fiscal

year 2017, the federal government “award[ed] 23.88 percent in

federal contract dollars to small businesses totaling $105.7

billion”).

shoes to private prisons. 17

The willingness of

companies to do business with the United States

depends upon the government honoring its

contractual commitments by paying for what it

orders.

16F

B. Critical To Any Public-Private Partnership

Is A Need For Certainty And A Shared

Understanding That, Absent A Clear And

Explicit Repeal, Congress Will Abide By Its

Legal Obligations To Private Parties.

Businesses that partner with the federal

government make substantial investments of money,

time, and resources to comply with Congressional

mandates and regulatory requirements. Given the

need for these investments, it is crucial that

businesses have reasonable certainty that the

government will honor its statutory obligations.

Absent such certainty, potential participants will be

far less willing to put significant investments at risk,

particularly when faced with novel market

conditions, such as those that existed when the ACA’s

health insurance exchanges were first launched.

For private industry confidently to rely upon

Congress’ statutory commitments, Congress must

adhere to them unless and until it implements

changes through clear and manifest statements that

apply prospectively.

These policy considerations

underlie the principles that this Court has adopted

17 See Matthew McMullan, All. for Am. Mfg., New Balance

Lands a Contract to Supply Military Recruits with Sneakers

(Mar. 16, 2018), https://www.americanmanufacturing.org/blog/

entry/new-balance-lands-a-contract-to-supply-military-recruitswith-sneakers; Fed. Bureau of Prisons, Contract Prisons, https://

www.bop.gov/about/facilities/contract_facilities.jsp (last visited

Sept. 3, 2019).

disfavoring repeals by implication, retroactive

legislation, and statutory constructions that raise

serious constitutional questions. See Part I, supra.

Those principles ensure that private parties will

continue to participate in federal programs because

they understand the ground rules up front.

The Federal Circuit’s decision, in contrast,

threatens to destroy the trust necessary for publicprivate partnerships to flourish.

By permitting

implied repeal based upon ambiguous language in

appropriations riders and snippets of legislative

history, the Federal Circuit has materially increased

the risks of participation in federal programs.

Entities considering such participation will now

understand they face a significant risk that their

investment-backed expectations can be undone

through ambiguous language that shields lawmakers

from political responsibility. Indeed, the large losses

incurred by health insurers as well as the many

health cooperatives that went out of business due to

the lack of promised risk corridor payments, see Pet.

App. 84, stand as a cautionary tale to all businesses

that are considering participation in public-private

partnerships.

The Federal Circuit’s reliance on appropriations

riders and legislative history to infer an implied

repeal, e.g., Pet. App. 34, is particularly problematic

because it imposes an unrealistic burden on

businesses.

Appropriations bills are voluminous

documents, and “legislative history” is often

embodied in varied and scattered sources such as

congressional reports, hearing records, floor

statements, and Presidential signing statements that

may be issued over an extended period of time. It is

not realistic or reasonable to impose upon private

companies, particularly small ones, the burden of

identifying such voluminous documents and scouring

them to determine whether a clear pre-existing

statutory mandate remains in effect or has been

reneged

impliedly

through

subsequent

appropriations rider or floor statement. Businesses

have neither the resources nor expertise to monitor

continually whether the government is engaging in a

bait-and-switch through surreptitious action that is

not clear and manifest in the text of the statute. The

business community cannot efficiently operate under

a system where it is forced to guess whether courts

will construe appropriations riders or legislative

history to eliminate Congress’ express statutory

commitments.

The Federal Circuit’s reliance on language buried

in appropriations riders and legislative history also

ignores fundamental principles of good government.

As Judge Newman cogently stated in her dissent

from the denial of en banc review, “[t]his is a question

of the integrity of government.” Pet. App. 67. When

Congress buries a legislative repeal in an

appropriations rider, it shuts out “substantive

debates that a repeal might precipitate.” Id. at 47

(quoting the opinion of the Court of Federal Claims).

Such lack of transparency undermines trust in

government. The government cannot demand that

its private sector partners “turn square corners,” yet

treat obligations as “a one-way street.” Id. at 67

(quoting Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380,

387-88 (1947) (Jackson, J., dissenting)). Companies

that suffer losses due to broken government promises

will cease doing business with the government

altogether. At the end of the day, “[t]he government’s

access to private sector products and services is

undermined if non-payment is readily achieved after

performance by the private sector.” Id. at 68.

This Court has emphasized these principles in the

related context of federal contracting. In United

States v. Winstar Corp., 518 U.S. 839 (1996)

(plurality opinion), the Court stated that the federal

government has a “long-run interest as a reliable

contracting partner in the myriad workaday

transaction of its agencies.” Id. at 883; see also id. at

884 (describing the federal government’s “practical

capacity to make contracts” as “‘of the essence of

sovereignty’ itself” (quoting United States v. Bekins,

304 U.S. 27, 51-52 (1938))). The Court cautioned

against “expanding the Government’s opportunities

for contractual abrogation, with the certain result of

undermining the Government’s credibility at the

bargaining table and increasing the cost of its

engagements.” Id. In Salazar v. Ramah Navajo

Chapter, 567 U.S. 182 (2012), this Court similarly

advised that if the federal government does not act as

“a reliable contracting partner” that adheres to its

commitments, then “contracting would become more

cumbersome and expensive for the Government, and

willing partners more scarce.” Id. at 191-92 (quoting

Winstar, 518 U.S. at 883 (plurality opinion)). The

Court specifically warned that “[i]f 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.” Id.

These concerns about the consequences of private

entities not being able to rely on the government’s

contractual promises apply with even greater force to

Congress’ direct actions in making express statutory

commitments. The decision below “expand[s] the

Government’s

opportunities

for

[statutory]

abrogation,” Winstar, 518 U.S. at 884 (plurality

opinion), and thereby sends the private sector the

alarming message that it cannot rely upon the

government’s statutory commitments. Accordingly, if

the decision below is allowed to stand, the

government will be required to expend greater

resources than necessary to partner with private

industry. The government will incur greater costs

and risks of running existing public-private

partnerships, and of pursuing new partnerships in

the future.

CONCLUSION

For these reasons, the Court should reverse the

decision of the United States Court of Appeals for the

Federal Circuit.

Respectfully submitted,

STEVEN P. LEHOTSKY

MICHAEL B. SCHON

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, N.W.

Washington, D.C. 20062

PAUL J. ZIDLICKY*

JACQUELINE G. COOPER

C. FREDERICK BECKNER III

DEREK A. WEBB

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

pzidlicky@sidley.com

Counsel for Amicus Curiae Chamber of Commerce of

the United States of America

September 6, 2019

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.