[00:00:00] Speaker 04:
Our final case for argument today is 25-1373 112 Genesee Street versus the United States.

[00:00:09] Speaker 04:
Ms.

[00:00:10] Speaker 04:
Jansen, please proceed when you're ready.

[00:00:13] Speaker 03:
Good morning and may it please the court.

[00:00:15] Speaker 03:
The American Rescue Plan Act, which created the RRF, was an economic stimulus benefit program.

[00:00:20] Speaker 03:
It was designed to keep restaurants afloat during the pandemic when they would otherwise have shuttered.

[00:00:26] Speaker 03:
And the program did this by awarding grants to eligible restaurants to support their ongoing operations throughout the COVID-19 pandemic.

[00:00:34] Speaker 03:
What plaintiff seeks here is an award of one of those grants that it did not receive while the program was in operation.

[00:00:42] Speaker 03:
It wants a grant award outside of the program after the program has closed, after all awards have been made, after the funds that were set aside to fund the program have been expended, and after Congress finally rescinded the fund in 2023 and deobligated the government.

[00:00:59] Speaker 03:
What plaintiff wants here is grant money without any of the caveats or the strings attached that Congress specifically appropriated for that grant.

[00:01:10] Speaker 03:
Now plaintiffs call this,

[00:01:12] Speaker 03:
But they want a money damage so they can plead their way into the jurisdiction of the Court of Federal Claims.

[00:01:18] Speaker 04:
Isn't it a calculation that's based in part on the damage they suffered?

[00:01:22] Speaker 04:
I mean, isn't that how the amount of the grant is calculated?

[00:01:26] Speaker 03:
That is how the amount of the grant is calculated.

[00:01:28] Speaker 03:
That is not how the statutory program works.

[00:01:31] Speaker 03:
And a money-mandating statute needs to identify within the statute itself the money mandate.

[00:01:37] Speaker 04:
So there had to be a way to measure how these... I think they point to the Shell language, the two instances of Shell, and they kind of analogize it to Maine community, right?

[00:01:47] Speaker 04:
Where the Shell language as opposed to the Maine language in 9009A is money-mandating.

[00:01:55] Speaker 04:
That's at least I think their argument.

[00:01:57] Speaker 04:
You want to confront that one directly?

[00:01:58] Speaker 03:
Sure.

[00:01:59] Speaker 03:
So shell language is found throughout a lot of statutes.

[00:02:02] Speaker 03:
It obligates the government to do a number of things.

[00:02:04] Speaker 03:
Shell pay language gets us closer to a money mandate.

[00:02:07] Speaker 03:
And in Maine community health, it was the shell pay language.

[00:02:11] Speaker 04:
If it said shell pay, we probably wouldn't be here.

[00:02:12] Speaker 04:
So it doesn't.

[00:02:13] Speaker 04:
It says shell award and shell use.

[00:02:15] Speaker 04:
So that's kind of why we're here.

[00:02:18] Speaker 04:
Otherwise, this would be squarely within Maine community.

[00:02:20] Speaker 03:
Shell award a grant is not Shell pay language, and it doesn't identify a class of individuals who are entitled to payment.

[00:02:29] Speaker 03:
What we had in Maine Community Health was a very different statutory language.

[00:02:32] Speaker 03:
And as the Corps pointed out, the Congress there created a very rare money-mandating obligation.

[00:02:38] Speaker 03:
You had a triple mandate, that the agency was to establish and administer a program, that it shall provide for payment.

[00:02:46] Speaker 03:
to certain insurers, and it shall pay qualifying insurers.

[00:02:50] Speaker 02:
What if the provisions that shall award grants to eligible entities that apply on May 21, 2021?

[00:03:04] Speaker 03:
That still would likely not create the money mandate necessary to bring this claim within the court of federal claims.

[00:03:11] Speaker 03:
Because?

[00:03:12] Speaker 02:
Why?

[00:03:13] Speaker 03:
Because Congress did a lot of other things in creating this grant program to avoid waiving sovereign immunity and creating that individual right of action here.

[00:03:23] Speaker 03:
Congress specifically said this program.

[00:03:27] Speaker 02:
Just to put a finer point on it, would it get over your concern that the statute, in your view, didn't identify a particular class of people to receive such awards?

[00:03:38] Speaker 03:
It might identify a specific class of people, but that alone is not sufficient to create a money mandate because

[00:03:44] Speaker 03:
Elsewhere, Congress limited its obligation to a certain amount of money that was going to be available until it was no longer available, and the obligation was therefore cabined.

[00:03:55] Speaker 03:
But it does other things as well.

[00:03:57] Speaker 03:
So the grant money can only be used during a specific period of time, and it can only be used for certain purposes, all of which go to supporting an ongoing business.

[00:04:07] Speaker 03:
And there's actually 11 enumerated uses that this money can be made.

[00:04:11] Speaker 03:
And it can only be spent during a three-year period.

[00:04:15] Speaker 03:
And so even if plaintiffs were able to get a grant now, they would have to return it to the government because you would be outside of the program and the permissible use of that award.

[00:04:28] Speaker 02:
Is that how money-mandating statutes work?

[00:04:31] Speaker 02:
If they file their lawsuit in time, but then the fund runs out, then there's no more liability for the government under a money-mandating statute?

[00:04:43] Speaker 03:
That's precisely what this court held twice in Greenlee and in Prairie County.

[00:04:48] Speaker 03:
There was a payment in lieu of taxes act, which created a money mandate to pay local governments for tax revenue that it did not receive because of federal funding or because of federal land.

[00:05:01] Speaker 03:
And at the same time, it also created a cap on that liability that tied the amount of money that could be paid to the availability of certain funds from an appropriation.

[00:05:14] Speaker 03:
Plaintiffs did not get their full refund, but they were owed.

[00:05:17] Speaker 03:
And so they sued the Court of Federal Claims.

[00:05:20] Speaker 03:
And this court said, you only get what is left in the fund if the government has capped its liability.

[00:05:24] Speaker 03:
You don't get the difference.

[00:05:26] Speaker 03:
So that's precisely what Congress is empowered to do and what the law will support.

[00:05:31] Speaker 03:
So it is possible to create a money mandate and also cap the government's liability under that mandate.

[00:05:37] Speaker 03:
But we have neither in this case.

[00:05:39] Speaker 03:
What plaintiffs are seeking here and what they're really confusing is what they want to be a money judgment is actually their request to seek enforcement of the statute in their favor.

[00:05:50] Speaker 03:
That is not a money damage and that is not a cause of action under which Tucker Act can support jurisdiction.

[00:06:01] Speaker 04:
You think it's an APA action.

[00:06:04] Speaker 04:
This should be brought in district court.

[00:06:06] Speaker 03:
I can't speak to what their claim here could be brought in district court, but there were a number of claims challenging this statute and specifically SBA's administration of the program in district court.

[00:06:18] Speaker 04:
How in particular do you think NIH or Department of Education impact this and why didn't we get a double 28 day letter from anybody at all in this case about them?

[00:06:28] Speaker 04:
Because I don't think there is any relevance to this case.

[00:06:30] Speaker 04:
I understand why you would think that.

[00:06:31] Speaker 04:
I'm hoping he has a different answer.

[00:06:32] Speaker 04:
But I mean, Department of Education was mainly on the express or implied contract portion of the Topgar Act.

[00:06:37] Speaker 04:
Is that what you're going to argue or what is your argument about why they're not relevant?

[00:06:40] Speaker 04:
I'd like to hear it.

[00:06:41] Speaker 03:
Well, there wasn't any grants issued here to these plaintiffs.

[00:06:44] Speaker 03:
And so they're not trying to enforce the terms of the grant against the government.

[00:06:50] Speaker 03:
What they're trying to do is seek the award of a grant in the form of a money damage.

[00:06:56] Speaker 03:
And that's not what is at issue elsewhere.

[00:07:01] Speaker 03:
So we don't have a grant.

[00:07:02] Speaker 03:
We have the request to receive a grant long after the grant program has ended.

[00:07:08] Speaker 04:
No, no.

[00:07:08] Speaker 04:
The request to receive a grant was timely.

[00:07:11] Speaker 04:
It wasn't long after the grant program ended.

[00:07:13] Speaker 04:
The request to receive a grant was filed with the SPA in order early in the process.

[00:07:20] Speaker 03:
I'm sorry, this lawsuit.

[00:07:21] Speaker 03:
So this lawsuit is dressed up as a claim for money damages, but what it actually is is a request for equitable relief to get relief under the statutory mandate.

[00:07:33] Speaker 04:
They want money.

[00:07:34] Speaker 03:
Pardon me?

[00:07:34] Speaker 03:
They want money.

[00:07:36] Speaker 03:
They want a grant.

[00:07:37] Speaker 03:
just simple naked money judgment that SBA was issuing when the grant program was ongoing that would satisfy the program.

[00:07:46] Speaker 03:
So what they want here is money that came from a grant without any of the other

[00:07:51] Speaker 03:
caveats or strings that came attached to that grant money.

[00:07:55] Speaker 04:
Nobody- You're saying strings attached because you're trying to maybe analogize it to Loomy?

[00:07:59] Speaker 04:
I mean, I'm just trying to understand your argument in the context of the case law, right?

[00:08:02] Speaker 04:
There's main community.

[00:08:04] Speaker 04:
Tell me how this case is different from that.

[00:08:06] Speaker 04:
There's Loomy.

[00:08:06] Speaker 04:
Tell me how this case is similar to that.

[00:08:09] Speaker 04:
Help me ground what you're saying, which is quite ethereal, in the case law so I can understand where to put this.

[00:08:14] Speaker 03:
So it's different from Maine in a few respects.

[00:08:16] Speaker 03:
First, the statutory language is different.

[00:08:18] Speaker 03:
We don't have shall pay language.

[00:08:20] Speaker 04:
You have shall language.

[00:08:21] Speaker 04:
And to be clear, the Supreme Court didn't focus on shall pay.

[00:08:24] Speaker 04:
It focused on shall.

[00:08:27] Speaker 03:
So they discussed a triple mandate, which is shall establish and administer, shall provide for payment, and shall pay.

[00:08:33] Speaker 03:
And the Supreme Court did

[00:08:35] Speaker 03:
you know, clearly hold there that not every failure to perform an obligation creates a right to monetary reward.

[00:08:41] Speaker 04:
The first sign the statute imposed an obligation is this mandatory shall language.

[00:08:45] Speaker 04:
Unlike the word may, which implies discretion, the word shall usually connotes a requirement.

[00:08:50] Speaker 04:
So respectfully, yes, the statute said shall provide, shall establish, shall pay.

[00:08:57] Speaker 04:
But the Supreme Court honed in on the word shall.

[00:09:00] Speaker 04:
In particular, shall.

[00:09:03] Speaker 04:
Yes, and that was the first... Shall award and shall pay sound very similar to me.

[00:09:07] Speaker 04:
I'm having difficulty understanding.

[00:09:11] Speaker 03:
Right, so in the first part of that opinion, they addressed the issue of whether or not there was even an obligation by the government, and that's where that shell language comes in.

[00:09:22] Speaker 03:
We're not disputing if there was an obligation by the government here to act.

[00:09:26] Speaker 03:
There was the mandate to award grants to eligible entities in the order they were received.

[00:09:34] Speaker 03:
Where the court in Maine addresses the money mandating part is later and specifically relies on the statutory shall pay language.

[00:09:44] Speaker 03:
And I'm looking at the court's opinion of 1329.

[00:09:46] Speaker 04:
Where?

[00:09:47] Speaker 03:
1329.

[00:09:54] Speaker 03:
The court says here again, 1342's mandatory tax is significant.

[00:09:58] Speaker 03:
Statutory shall pay language often reflects congressional intent to create both a right and a remedy under the Tucker Act.

[00:10:06] Speaker 03:
And then they go on to discuss.

[00:10:08] Speaker 04:
So is there a difference in your mind between shall pay and shall grant or shall award?

[00:10:15] Speaker 04:
Yes.

[00:10:15] Speaker 04:
What's the difference?

[00:10:16] Speaker 03:
Well, one is the payment of money, period.

[00:10:19] Speaker 03:
Full stop.

[00:10:20] Speaker 03:
The other one is an award of a grant, which is very nuanced.

[00:10:23] Speaker 04:
Well, to be clear, the Shell Pay language here was in the context of a grant statute, correct?

[00:10:29] Speaker 04:
It was in the Remain Community Health.

[00:10:33] Speaker 04:
Yeah, no.

[00:10:34] Speaker 04:
Oh, this is the ACA.

[00:10:36] Speaker 03:
This is the risk corridors program.

[00:10:37] Speaker 04:
Yeah, I mixed it up in my own brain.

[00:10:41] Speaker 04:
All right.

[00:10:41] Speaker 04:
So the Shell Pay you think is money and the Shell Grant, because it's a grant, which, by the way, also happens to be money, is different.

[00:10:49] Speaker 03:
Yes, it's different because it's money and then some.

[00:10:52] Speaker 03:
It's not unfettered money.

[00:10:55] Speaker 03:
All of the strings that come attached to this grant, which is

[00:10:59] Speaker 03:
that it had to be used in one of 11 ways.

[00:11:02] Speaker 03:
It could only be used during what ended up being a three-year period of time.

[00:11:06] Speaker 03:
The money had to be returned if eligible entities went out of business and didn't use up all their money.

[00:11:10] Speaker 03:
And if the money wasn't used in the covered period, that money also had to be returned.

[00:11:15] Speaker 03:
So it wasn't just an award of money.

[00:11:18] Speaker 03:
And more importantly, the statute doesn't explicitly give

[00:11:24] Speaker 03:
I guess, access to money in the way that the statute of Maine community health did, which again was for insurers losses under the Rescuers Program.

[00:11:38] Speaker 04:
Well, I mean, this is to handle losses attributable to COVID for certain industries that are more susceptible to that, right?

[00:11:48] Speaker 03:
Not exactly.

[00:11:49] Speaker 03:
It was to keep restaurants in business and to keep them operating so they wouldn't go out of business while the pandemic continued.

[00:11:58] Speaker 03:
And the way they measured how much a business was impacted by the pandemic was by calculating, looking in reverse, how much revenue they had lost in the year preceding.

[00:12:11] Speaker 03:
So it was a revenue replacement program, not a loss compensation program.

[00:12:18] Speaker 03:
The whole purpose was to keep restaurants afloat and to provide for their ongoing operations.

[00:12:24] Speaker 03:
So it was very much a forward looking in real time program.

[00:12:28] Speaker 03:
And it was very much cabins with specific period of time and a specific amount of money.

[00:12:32] Speaker 02:
And it's also premised on some backwards looking harm in the sense that you had to approve that you had to prove as a restaurant that there was a loss of revenue.

[00:12:46] Speaker 02:
in the prior year due to the pandemic?

[00:12:50] Speaker 03:
Well, there had to be a way to calculate how much grant money any entity could get.

[00:12:57] Speaker 02:
Right.

[00:12:57] Speaker 02:
And the amount, though, is tied to the amount that you lost in the prior year.

[00:13:04] Speaker 02:
Well, it had to be.

[00:13:04] Speaker 02:
In that sense, it's starting to look like, OK, you are in distress already.

[00:13:11] Speaker 02:
We know that.

[00:13:12] Speaker 02:
And we expect you'll be in distress for the coming year.

[00:13:14] Speaker 02:
But we know you're in distress already because you lost X amount of money in the prior year.

[00:13:21] Speaker 02:
And so we're going to give you right now that same amount of money that you just lost.

[00:13:26] Speaker 02:
Now, I understand that the money is going to be used in all these different ways for rent or payroll or other expenses to keep you afloat and keep the doors open.

[00:13:36] Speaker 02:
But it's all part of a continuing harm, I guess, that's all related to

[00:13:43] Speaker 02:
the pandemic, but it's rooted in giving money based on past harm, it seems like.

[00:13:51] Speaker 03:
Well, it's rooted in a loss of revenue.

[00:13:54] Speaker 03:
But that, again, is a measuring stick for how an entity has been impacted by the pandemic.

[00:14:04] Speaker 03:
It's hard to imagine any other way that the government could calculate the impact of the pandemic of an eligible entity without looking at the difference in revenue between

[00:14:15] Speaker 03:
pre-pandemic years and pandemic years.

[00:14:17] Speaker 02:
I guess what I'm trying to say is this feels like an in-between case in the sense that it's not really just about purely forward-looking expenditures, nor is it purely about just trying to make you whole for some past injury.

[00:14:33] Speaker 02:
It's something in between, and we've got this kind of ongoing crisis in the country that started the year before, but we fully expect to be suffering through for the next year or two.

[00:14:45] Speaker 03:
But what is different here is that the statute, and this is different than what we see in other money-mandating statutes like Maine Community Health, is that the government is not responsible for this loss.

[00:14:57] Speaker 03:
It's not as though the government is saying, you know, you were entitled to something that we didn't give you.

[00:15:03] Speaker 03:
You have suffered a harm in Maine Community Health.

[00:15:07] Speaker 03:
It was, we want insurers to participate in this government-sponsored exchange program.

[00:15:12] Speaker 03:
But don't worry.

[00:15:13] Speaker 03:
If you lose too much money, we'll pay you.

[00:15:15] Speaker 03:
By the same token, if you make too much money, you've got to pay us.

[00:15:18] Speaker 03:
This was a recognition of an economy in free fall and wanting to prop that economy up.

[00:15:25] Speaker 03:
This was not a loss that was identified specifically in the statute as requiring

[00:15:31] Speaker 03:
compensation.

[00:15:33] Speaker 02:
Does the compensation need to be due to government-caused harm in order for a statute to be money-mandating?

[00:15:41] Speaker 03:
I'm not aware of any rule that says that, but the case law where a money mandate has been found has been tied to some sort of governmental action.

[00:15:53] Speaker 03:
Where we have instead things that look like grant programs here, like in Looney and in National Center,

[00:16:01] Speaker 03:
Sorry, that's not a grant.

[00:16:03] Speaker 03:
Oh, it is a grant program, which have not been found to be money-mandating.

[00:16:08] Speaker 03:
Those are where the government acts as a steward or acts to further a certain policy interest and gives out money for some policy reason.

[00:16:18] Speaker 03:
And those cases, because of all of the different

[00:16:22] Speaker 03:
stipulations that are put on grant awards and the ways in which the government's obligation gets cabined have not been found to be money mandating.

[00:16:29] Speaker 03:
And I think the reason for that is pretty clear.

[00:16:32] Speaker 03:
This isn't just a handout.

[00:16:33] Speaker 03:
This isn't just an award for which someone can later claim that they have an individual right of action.

[00:16:40] Speaker 04:
I mean, were they not entitled to the money?

[00:16:44] Speaker 04:
I saw Judge Hurtling's opinion expressly indicated the government didn't dispute.

[00:16:51] Speaker 04:
that they were entitled to the money?

[00:16:52] Speaker 04:
Am I wrong in remembering that?

[00:16:54] Speaker 03:
So the government doesn't dispute that SBA process applicants in the order, or I'm sorry, they awarded grants in the order in which applications were processed and not in the order in which applications were received.

[00:17:07] Speaker 03:
So that was a difference from what the statutory mandate laid out.

[00:17:11] Speaker 04:
Did the government, they argue or allege that they would have been a recipient and would have gotten some certain

[00:17:20] Speaker 04:
had you processed it according to the rubric in the statute, which indicate in the order filed as opposed to the order processed, did the government dispute that?

[00:17:31] Speaker 03:
We have no way of knowing that unless we take all 3,000 and some applicants, put them back into the pool, reorder them according to- I didn't ask you whether you had a way of knowing it.

[00:17:41] Speaker 04:
I asked you if you disputed it.

[00:17:43] Speaker 04:
Different question.

[00:17:43] Speaker 04:
I don't think we conceded that.

[00:17:45] Speaker 04:
We don't concede that.

[00:17:46] Speaker 04:
I didn't ask you if you conceded it.

[00:17:47] Speaker 04:
I asked if you disputed it.

[00:17:49] Speaker 04:
Well, at this point, we would dispute that, because we don't know.

[00:17:52] Speaker 04:
I didn't ask if you would like to dispute it now.

[00:17:54] Speaker 04:
I'm not offering a buffet.

[00:17:55] Speaker 04:
I asked if you disputed it before, at the time, when they made the allegation this is part of a complaint.

[00:18:01] Speaker 04:
Did you dispute it?

[00:18:03] Speaker 03:
I don't know if we disputed that factual allegation, specifically.

[00:18:07] Speaker 04:
All right.

[00:18:09] Speaker 04:
OK.

[00:18:09] Speaker 04:
Well, I'll restore some of your rebuttal time.

[00:18:10] Speaker 04:
Let's go ahead and hear from Mr. McLeod.

[00:18:24] Speaker 01:
Thank you, Chief Judge Moore and may it please the court, Charles McLeod of Williams & Connolly on behalf of plaintiffs.

[00:18:29] Speaker 01:
In section 9009C, Congress mandated that SBA, quote, shall award grants to eligible entities in the order in which applications are received.

[00:18:39] Speaker 01:
That language does not mean that SBA may award grants if it feels like it, in whatever order it chooses.

[00:18:44] Speaker 01:
SBA's failure to comply with Congress's clear mandate gives rise to a classic suit for Tucker Act damages that can be heard in the court of federal claims.

[00:18:53] Speaker 01:
I'd like to start with a discussion that Chief Judge Moore.

[00:18:56] Speaker 00:
I'm sorry, Mr. McCloud.

[00:18:57] Speaker 00:
Did the statute give the SBA administrator some discretion even within the order in which people apply to pick?

[00:19:09] Speaker 00:
more of these and less of those?

[00:19:12] Speaker 01:
There was a period initially when applications were first received where Congress set out priority applicants.

[00:19:18] Speaker 01:
These were disadvantaged applicants, racial and gender priority for those individuals.

[00:19:25] Speaker 01:
But after that priority period, applications were required to be processed in order in which they were received.

[00:19:31] Speaker 01:
And there was no discretion to pick and choose and decide based on processing time instead of the application order.

[00:19:38] Speaker 01:
The government did make the argument below that order in which they were received meant the order in which they were processed.

[00:19:44] Speaker 01:
They did not renew that argument on appeal.

[00:19:47] Speaker 01:
So turning to the discussion that Chief Judge Moore was having with my colleague about whether there's a meaningful difference between shall paying and shall award grants, we think that there is no difference.

[00:19:57] Speaker 01:
Chief Judge Moore, as you pointed out.

[00:19:59] Speaker 04:
What about addressing her point, which is quite salient, that Maine community involves recouping

[00:20:05] Speaker 04:
damages, sort of a backward looking thing.

[00:20:08] Speaker 04:
It's all about damages.

[00:20:09] Speaker 04:
You just get the money and you walk away.

[00:20:11] Speaker 04:
Whereas these other

[00:20:13] Speaker 04:
Bowen or Lume, these are grant cases where the government, in its benevolence in a paternalistic fashion, is going to give people money for things.

[00:20:21] Speaker 04:
Money is not obligated to give them.

[00:20:23] Speaker 04:
How ought I to think about that difference in deciding whether this is money-mandating?

[00:20:28] Speaker 01:
Right, so I think the relevant difference is how do the grants look.

[00:20:31] Speaker 01:
So in Lume at a national center, these were cooperative grants where the government was an active partner in the spending of the money.

[00:20:37] Speaker 01:
My colleague is correct that in Lume, for example, it was not just a naked money judgment.

[00:20:42] Speaker 01:
That's why this court said in Lume, the only relief that would be meaningful is injunctive relief, because you need to not only get the money, but you need the government's assistance to spend the money on the tribal housing that was at issue there.

[00:20:53] Speaker 01:
The same thing was true in National Center, where the government, again, was an active participant in the research programs that were supposed to be funded using those grants.

[00:21:01] Speaker 01:
It's very different than this case.

[00:21:02] Speaker 01:
This case involves a program where the grants are firmly rooted in a backwards-looking injury.

[00:21:08] Speaker 04:
As Judge Chen pointed out, it is... Well, the amount of the grant is, but how you can spend it is not.

[00:21:12] Speaker 04:
It's not simply compensation for that backward-looking injury.

[00:21:16] Speaker 04:
The government has also narrowed the ways in which you can utilize the grant

[00:21:21] Speaker 04:
in a forward-looking way.

[00:21:22] Speaker 01:
And that's true.

[00:21:22] Speaker 04:
I think Judge Chen was right that this feels a little more hybrid.

[00:21:25] Speaker 01:
I think it is a little bit different in that sense, but I don't think that that's a meaningful distinction.

[00:21:29] Speaker 01:
And the reason is the government is not attaching strings in the same sense as Looney or National Center.

[00:21:35] Speaker 01:
In other words, the government is not checking in to make sure that you're only using the money for those particular expenditures.

[00:21:41] Speaker 04:
I think the reason they included- The fact that they're not overseeing doesn't mean that there aren't limits.

[00:21:46] Speaker 04:
I mean, the fact that you could get away with

[00:21:48] Speaker 04:
Not using the money appropriately isn't sort of an answer, right?

[00:21:52] Speaker 04:
The government did impose limits on exactly what you could use the money for.

[00:21:55] Speaker 04:
And in fact, if those expenses exceeded in the future year, the amount you were given to compensate for sort of past damage, then you had to give the money back.

[00:22:03] Speaker 01:
That's true.

[00:22:04] Speaker 01:
And the reason I raised the government oversight is because, again, that's different from the National Center in Loomi, where you needed injunctive relief.

[00:22:10] Speaker 01:
You needed an order that said, government official, you do X, you do Y, that the plaintiff wants in order to get complete relief for the plaintiff.

[00:22:18] Speaker 01:
That is not true in this case.

[00:22:19] Speaker 01:
We would be perfectly fine with a naked money judgment, and that would rectify all of our damages.

[00:22:24] Speaker 04:
You know what?

[00:22:24] Speaker 04:
The government says that.

[00:22:26] Speaker 02:
Let me ask it this way.

[00:22:28] Speaker 02:
Is there a case that you're aware of that

[00:22:30] Speaker 02:
said that a particular statute granting money was money-mandating, even though the statute said, this money I'm about to give you, you can only spend it on X or Y or Z. And after the end of a period of time,

[00:22:49] Speaker 02:
If you haven't spent all the money I just gave you, you've got to give it back to me.

[00:22:53] Speaker 01:
So that's Maine.

[00:22:54] Speaker 01:
In Maine, the money was intended to compensate for losses from the risk corridor program.

[00:22:59] Speaker 02:
But that's the backward-looking compensation for a loss you incurred for engaging in this program.

[00:23:05] Speaker 02:
Here, we are left with a situation where the government is giving the restaurants money, but also regulating how they can use that money they're about to give the restaurant.

[00:23:16] Speaker 02:
And the restaurant can only pay

[00:23:19] Speaker 02:
rent or payroll or something like that.

[00:23:21] Speaker 02:
So now I'm looking for a case that says

[00:23:24] Speaker 02:
Hey, I'm giving you money, and you can only spend it on very certain itemized things.

[00:23:32] Speaker 02:
And yet the court said that's money mandated.

[00:23:35] Speaker 01:
So that was the point I was going to make about Maine, Your Honor.

[00:23:37] Speaker 01:
Because in Maine, the money was intended for this backward-looking purpose.

[00:23:40] Speaker 01:
And there were regular audits to ensure that the money was being used for that purpose.

[00:23:45] Speaker 01:
And if you didn't use it for that purpose, or you in fact didn't need as much money as the government had given you, the government could claw that money back.

[00:23:52] Speaker 02:
The other case I point to on that is the money that was being paid to these insurers that could only use it for a particular purpose.

[00:24:02] Speaker 01:
It was to compensate for losses from the risk corridors program.

[00:24:06] Speaker 01:
And that was really central to the dispute in Maine and the argument that the government was making, which was

[00:24:11] Speaker 01:
You really, you had no entitlement to this money because you made a bet.

[00:24:14] Speaker 01:
You made a bet that your offering of this program would make you money.

[00:24:19] Speaker 01:
It turned out not to make money.

[00:24:20] Speaker 01:
Justice Alito endorsed that position in his dissenting opinion.

[00:24:24] Speaker 01:
But the Supreme Court majority, any justice majority said that by using this sort of mandatory shall language and by focusing on compensating for a backwards looking injury, Congress had created a money-making statute.

[00:24:37] Speaker 01:
And that's why I think it's so significant that this statute comes about a year after Maine.

[00:24:42] Speaker 01:
Maine is basically a roadmap for how not to create a money-making statute.

[00:24:45] Speaker 01:
And yet Congress here used a very similar triple mandate, used the shall language, and as Chief Judge Moore noted,

[00:24:52] Speaker 01:
Congress did something very different in other provisions that were related.

[00:24:55] Speaker 01:
So section 9009A, which is grants for entertainment venue operators, uses discretionary May award language and has a very different structure.

[00:25:04] Speaker 01:
So I think this was an intentional decision by Congress to create an entitlement to these funds.

[00:25:10] Speaker 01:
And our claim is based on the failure of SBA, which is not conceded for purposes, which is conceded for purposes of the appeal.

[00:25:17] Speaker 01:
SBA's failure to comply with that mandate to give out the money in the order in which the funds were supposed to be given.

[00:25:23] Speaker 01:
That's the nub of the issue, and that's why we're entitled to a damages permit.

[00:25:27] Speaker 02:
Related to my prior question, why isn't this forward-looking statute in the sense that

[00:25:33] Speaker 02:
The government is trying to help subsidize your future expenditures in running the restaurant.

[00:25:38] Speaker 01:
So I don't think that that's actually right in part because of the definition of covered periods.

[00:25:42] Speaker 01:
So covered period included not only forward looking periods, but also all the way back to February of 2020.

[00:25:48] Speaker 01:
So you could use this money.

[00:25:49] Speaker 01:
to pay past expenses is just a matter of the way the statute worked.

[00:25:54] Speaker 01:
I think the reason that they included some forward-looking period is because there was uncertainty about what the impact of the pandemic would be going forward.

[00:26:01] Speaker 01:
As Your Honor noted, it was sort of an ongoing emergency.

[00:26:04] Speaker 01:
But that is not something that would take this out of the money made in context.

[00:26:09] Speaker 01:
In fact, this court's decision in Starglow is pretty similar.

[00:26:12] Speaker 02:
What was in the statute that you could use this money for past payroll or past

[00:26:19] Speaker 01:
So if you look at 9009 CA3, the definition of covered period, says that the covered period means the period beginning on February 15th, 2020 and ending December of 2021, or a date that's later determined by the administrator.

[00:26:40] Speaker 01:
And the administrator later determined it would go further.

[00:26:43] Speaker 01:
But then when you look at the use of funds, so this would be during the COVID period.

[00:26:52] Speaker 01:
So you could use it for expenses that you had incurred even prior to the program coming into existence.

[00:26:57] Speaker 01:
And the other thing I would note, and Your Honor's earlier questions alluded to this, is by definition, these were pandemic-related revolutions.

[00:27:05] Speaker 01:
revenue losses.

[00:27:06] Speaker 01:
This is A7, the definition of revenue losses, and they are based on your differences in revenue between 2020 and 2019.

[00:27:14] Speaker 01:
Now my colleague suggested that while it was impossible for the government to do any sort of subsidy going forward, I don't think that's true.

[00:27:21] Speaker 01:
The government could have simply said, we're going to make a pot of money available to help cover your expenses,

[00:27:26] Speaker 01:
and you submit applications and we'll decide how much we want to give us, that would be more like a traditional grant program like in Loomi, where it's all about subsidizing your future expenditures.

[00:27:35] Speaker 04:
Yeah, but Loomi and Bowen, the grant cases don't ever result in a finding of money mandating.

[00:27:41] Speaker 01:
I think it's because of the particular features of those cases.

[00:27:44] Speaker 04:
So in many of those cases... Or it could be that opposing counsel was on to something when she argued

[00:27:51] Speaker 04:
that there has to be a government-related harm for there to be damages.

[00:27:55] Speaker 04:
That when the government is acting benevolent and giving gifts, which is what they're doing here, they have no obligation to give this money.

[00:28:03] Speaker 04:
That doesn't trigger money mandating.

[00:28:07] Speaker 01:
And that's because in many cases, grant programs are structured as a may award rather than a shall award.

[00:28:13] Speaker 04:
I understand, but get to the heart of her argument, which is

[00:28:19] Speaker 04:
The government is awarding money in its benevolence.

[00:28:21] Speaker 04:
It's like the parable from the Bible about the people who worked a full day and the people who worked a half day, and they all got paid the same amount, right?

[00:28:27] Speaker 04:
And the idea was, I'm giving you money in exchange for this.

[00:28:31] Speaker 04:
It's a fair deal.

[00:28:32] Speaker 04:
Here, it's a gift.

[00:28:34] Speaker 04:
This is a gift by the government.

[00:28:35] Speaker 04:
The government is granting people this money.

[00:28:38] Speaker 04:
There's no quid pro quo.

[00:28:40] Speaker 01:
The difference here is Congress used chow language.

[00:28:43] Speaker 01:
So it said, if you are an eligible entity, you need to submit a qualifying application.

[00:28:47] Speaker 01:
You are entitled to the money.

[00:28:49] Speaker 01:
And as the Supreme Court said in Maine, that sort of chow language creates not only a presumption of a right, but also a presumption of a remedy in the Tucker Act.

[00:28:57] Speaker 01:
And that's why the shall language is critical and distinguishes a lot of the cases that my colleague was talking about.

[00:29:03] Speaker 01:
The other thing I would say is there has not been, as far as I have seen, in the Supreme Court's cases or this court's cases, a requirement of harm coming from the government.

[00:29:12] Speaker 01:
So you have cases like Scargate.

[00:29:13] Speaker 04:
I agree that it hasn't been.

[00:29:14] Speaker 04:
I 100% agree.

[00:29:15] Speaker 04:
But isn't it a nice thing to kind of latch onto as a

[00:29:19] Speaker 04:
helpfully divining principle in this otherwise somewhat confusing area of jurisprudence.

[00:29:24] Speaker 01:
I don't think so, Your Honor.

[00:29:25] Speaker 01:
I think that would actually introduce confusion into the law because there have been cases like Starglow where the government does something beneficial.

[00:29:33] Speaker 01:
So in that case, there was a pandemic related to fruit in Florida.

[00:29:36] Speaker 01:
Citrus crows were dying.

[00:29:38] Speaker 01:
And the federal government, out of its own beneficence, said, we shall compensate you for losses related to that pandemic that the government didn't cause.

[00:29:47] Speaker 01:
Nevertheless, the court found that language to be money-making.

[00:29:50] Speaker 01:
So that would be, I think, a sea change.

[00:29:52] Speaker 04:
So I am at my house, standing at my front door.

[00:29:55] Speaker 04:
And I say, the first 10 people who come to my front door, I'm giving you $2,000.

[00:30:00] Speaker 04:
I can only give it to the first 10 people because I've only got $10,000 to give out.

[00:30:04] Speaker 04:
And I didn't notice this one small person standing kind of behind someone else.

[00:30:08] Speaker 04:
So I gave out the money to everybody.

[00:30:10] Speaker 04:
Does that person have a cause of action against me for not giving him $1,000?

[00:30:14] Speaker 01:
That would turn on questions of contract law.

[00:30:16] Speaker 01:
I think you might actually have a contract based claim.

[00:30:18] Speaker 04:
OK, but this is not a contract case, you're right.

[00:30:20] Speaker 01:
Well, yeah.

[00:30:21] Speaker 01:
I mean, the reason I bring up contract law is because another thing I was going to say is many of these grant program cases

[00:30:26] Speaker 01:
I'm aren't.

[00:30:28] Speaker 04:
I'm.

[00:30:29] Speaker 04:
I'm.

[00:30:31] Speaker 01:
I'm.

[00:30:32] Speaker 04:
I'm.

[00:30:33] Speaker 04:
I'm.

[00:30:38] Speaker 04:
I'm.

[00:30:43] Speaker 01:
I did read that opinion.

[00:30:44] Speaker 01:
We thought that because they were contract-related cases, they were not exactly on point and controlling.

[00:30:49] Speaker 01:
I do think it is interesting that nine justices of the Supreme Court apparently agree that grant-related programs can be the basis for a Tucker Act claim.

[00:30:57] Speaker 04:
I mean, there was disagreement about how the structure... Well, but is it under the contract provision as opposed to the separate notion that the statute itself creates a right?

[00:31:05] Speaker 01:
Well, I think this gets to the point that your honor was alluding to earlier, which is the government enters into contracts that he doesn't have to enter into all the time.

[00:31:15] Speaker 04:
And so if the question is simply... But once it's entered that contract, it's obligated itself.

[00:31:20] Speaker 04:
And that was exactly the... That's the question.

[00:31:22] Speaker 04:
But when we pull back a layer, when it's just sort of throwing out there the opportunity to be receiving a grant, it hasn't actually entered a contract with an individual yet.

[00:31:32] Speaker 01:
And that was Justice Alito's dissenting argument in Maine.

[00:31:34] Speaker 01:
Justice Alito said in Maine, well, this was just a bet that these companies made.

[00:31:40] Speaker 01:
And we really should be cracking down on these implied rights of action when they don't involve a contract.

[00:31:44] Speaker 01:
We shouldn't be looking to statutory language to create government obligations.

[00:31:48] Speaker 01:
And Justice Sotomayor's majority opinion points out that

[00:31:50] Speaker 01:
Statutorily implied obligations are a long-standing feature of Tucker Act jurisprudence, both in the Supreme Court and in this Court.

[00:31:58] Speaker 01:
And so we are not asking the Court to break any new ground in that respect.

[00:32:02] Speaker 01:
We're just simply asking the Court to apply many and to apply other precedents that have looked to a wide variety of different statutory terms, things like shall compensate, shall allocate, shall be entitled to and found that language to be money-mandating.

[00:32:16] Speaker 01:
We don't see any significant difference between the language here

[00:32:19] Speaker 01:
and the language in those provisions.

[00:32:22] Speaker 01:
And I will say I was surprised to hear my colleague make that argument because we did litigate that question below of whether Shell award grants was fundamentally different and categorically disqualifying, and the government conceded below that they were not going to advance that argument, that it was not correct.

[00:32:38] Speaker 01:
That's Joint Appendix 175, footnote 6 of the government's reply, where they acknowledge that based on a series of cases from the Court of Federal Claims, they were not going to advance any argument that shallower grants was categorically not money-making.

[00:32:54] Speaker 01:
They said that was not a correct interpretation of the law.

[00:32:57] Speaker 01:
So we think that they were right below, and again, like I said, I'm surprised you didn't make that argument again on appeal, but we think that they got it right the first time.

[00:33:06] Speaker 02:
Can you get to the statutory cap issue?

[00:33:09] Speaker 02:
I'm a little concerned.

[00:33:10] Speaker 02:
I'm actually more than a little concerned.

[00:33:12] Speaker 02:
I'm not sure what to do with it.

[00:33:16] Speaker 02:
The statute appears to say, give a particular amount of money for the fund.

[00:33:23] Speaker 02:
And then it also says, in addition to amounts otherwise available,

[00:33:26] Speaker 02:
Why doesn't that phrase just mean, should Congress choose to add additional amounts, it will.

[00:33:34] Speaker 02:
But if it doesn't, then the $28 billion is all this fund gets.

[00:33:39] Speaker 02:
And therefore, at this point, unfortunately, your claims are mooted.

[00:33:43] Speaker 01:
So a couple of responses.

[00:33:44] Speaker 01:
First is, as you suggested, we think that that amounts otherwise available language indicates that Congress did not intend for there to be a cap.

[00:33:53] Speaker 01:
Congress contemplated that there could be other funds.

[00:33:55] Speaker 01:
It might be appropriated funds, but it might also be funds that SBA has available as a general matter to make these payments.

[00:34:03] Speaker 01:
I think that the tense of that provision is interesting.

[00:34:06] Speaker 01:
If Congress had simply wanted to say,

[00:34:08] Speaker 01:
And we might top up the appropriation later.

[00:34:10] Speaker 01:
They could have said, in addition to amounts that will otherwise be made available or something to that effect, the fact that they used a present tense suggests that they were thinking of existing funds at the time.

[00:34:21] Speaker 02:
So then in your view, would there need to be discovery or something like that to try to figure out whether any such funds

[00:34:28] Speaker 02:
in SBA are were indeed available?

[00:34:32] Speaker 01:
I don't think so because the government has never taken the position that there were other funds that were available to it.

[00:34:38] Speaker 01:
It has taken the view that it's limited to the 28.6 billion, which leads to my backup argument, which is

[00:34:44] Speaker 01:
Even if you think that it's capped at $28.6 billion, it is a long-standing principle of appropriations law that the government misspending some amount of the appropriation does not eliminate the obligation.

[00:34:54] Speaker 01:
So this goes back to the Supreme Court's decision in Sutton.

[00:34:57] Speaker 01:
The GEO Red Book codifies this.

[00:34:59] Speaker 02:
Are there other cases, though, where

[00:35:03] Speaker 02:
that there was a certain cap clearly set forth in the statute and that was the end of it?

[00:35:08] Speaker 01:
Yes.

[00:35:08] Speaker 01:
So Greenlee County is a perfect example of that.

[00:35:10] Speaker 01:
And the reason that the claim in Greenlee County failed is Congress said, distribute money according to this formula subject to available appropriations.

[00:35:20] Speaker 01:
And Congress was clear that it didn't want to appropriate any more money.

[00:35:24] Speaker 01:
And what this court said was the government complied with that obligation.

[00:35:27] Speaker 01:
The government gave out all of the money to the appropriate people

[00:35:31] Speaker 01:
completely consistent with the statute.

[00:35:34] Speaker 01:
Here our claim is they gave out the money but they messed up in the way that they were doing it.

[00:35:38] Speaker 01:
They did not comply with the statute and that's what distinguishes us from Greenlee County.

[00:35:42] Speaker 02:
So could you say that one more time because it sounds like in Greenlee

[00:35:47] Speaker 02:
you know, the plaintiffs were blocked from accessing the judgment fund.

[00:35:52] Speaker 02:
Here you think that's not true, even though they both, both statutory provisions set out a particular amount of money.

[00:35:59] Speaker 01:
That's right.

[00:35:59] Speaker 01:
My point is in Greenlee County, there was no statutory violation at all.

[00:36:03] Speaker 01:
The directive that Congress had was use the formula, but

[00:36:06] Speaker 01:
You only have to give out as much money as you had.

[00:36:08] Speaker 01:
And Congress did that.

[00:36:09] Speaker 01:
They gave out all of the money that Congress had given to them.

[00:36:12] Speaker 01:
Here, SBA gave out money, but it did not comply with the additional statutory directive to give out the money in the order in which applications were received.

[00:36:21] Speaker 01:
That's what gives rise to our claim on the merits, the conceited violation of that statutory directive.

[00:36:27] Speaker 01:
And that's what distinguishes this case from a case like Greenwood County.

[00:36:31] Speaker 01:
But I think the easiest way to resolve this issue, Your Honor,

[00:36:34] Speaker 01:
And I see I'm over my time.

[00:36:35] Speaker 01:
I understood the answer.

[00:36:37] Speaker 01:
Is simply to say that the amounts otherwise available language is the opposite of what Congress would have said if they wanted the sort of cap that's discussed in Greenland County.

[00:36:46] Speaker 01:
In Greenland County, they said amounts available as appropriated.

[00:36:49] Speaker 01:
Here, Congress is intentionally trying to expand the pool of funds that would be available.

[00:36:56] Speaker 03:
All right.

[00:36:57] Speaker 04:
Thank you, Mr. McLeod.

[00:37:00] Speaker 04:
Thank you, Your Honor.

[00:37:02] Speaker 03:
Ms.

[00:37:02] Speaker 03:
Jensen.

[00:37:06] Speaker 03:
Thank you, Your Honor.

[00:37:07] Speaker 03:
And I would just like to start where my colleague left off on the capping language.

[00:37:11] Speaker 03:
In fact, in Maine community health, language, just like what we see here in the RRF, was cited as an example of how Congress could have capped their obligations but did not do so in Maine community health.

[00:37:23] Speaker 03:
So in footnote number seven, the Supreme Court pointed to language where government contributions would be made from an appropriations account.

[00:37:33] Speaker 03:
or designated fund would consist of amounts appropriated and any other amounts that the fund may receive as examples of how Congress could have capped its liability and limited its obligations but did not do so.

[00:37:46] Speaker 03:
Here the language is nearly identical and gets us to the same

[00:37:50] Speaker 03:
outcome, which is in addition to funds otherwise available, there will be appropriated $28 billion in money available until expended.

[00:38:00] Speaker 03:
That is a clear cap on liability as the Supreme Court contemplated in Maine Community Health.

[00:38:05] Speaker 03:
I'd also like to address the use of the funds here in the oversight.

[00:38:11] Speaker 03:
My colleague referred to the different uses to which these funds could be made and that that wouldn't necessarily require any kind of oversight and doesn't take us out of Tucker Act jurisdiction.

[00:38:20] Speaker 03:
But what is absent here is the period of time during which these funds had to be used was limited.

[00:38:27] Speaker 03:
and cabined to February 2022 up until March of 2023.

[00:38:32] Speaker 03:
That period has expired.

[00:38:34] Speaker 03:
There is no way the Court of Federal Claims could offer relief under consistent with the statute that would allow these plaintiffs to receive money and use the money as appropriated or as contemplated consistent with the statutory mandate because that time period has passed.

[00:38:54] Speaker 03:
Finally, the grant cases that we talked about, Lumia National Center,

[00:38:57] Speaker 03:
Regardless of the language that was used in those statutes, the court didn't ground its holding on the statutory language, but rather looked to the true nature of the claim that was being made and found that what plaintiffs wanted here

[00:39:13] Speaker 03:
or what plaintiffs were really after was not a money judgment, but an award of a grant that would happen to involve the release of money.

[00:39:21] Speaker 03:
And those are two different types of relief that are being sought.

[00:39:24] Speaker 03:
Only one is susceptible to correct jurisdiction, and the grant, seeking a grant award, is not.

[00:39:31] Speaker 03:
That's a request for equitable relief.

[00:39:34] Speaker 03:
So if there are no further questions, respectfully, we ask the court to reverse the trial court's decision.

[00:39:40] Speaker 04:
Thank you.