Case: 19-1290    Document: 71     Page: 1   Filed: 08/14/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

   SANFORD HEALTH PLAN, MONTANA HEALTH
                   CO-OP,
              Plaintiffs-Appellees

                             v.

                    UNITED STATES,
                   Defendant-Appellant
                  ______________________

                   2019-1290, 2019-1302
                  ______________________

     Appeals from the United States Court of Federal
 Claims in Nos. 1:18-cv-00136-EDK, 1:18-cv-00143-EDK,
 Judge Elaine Kaplan.

                  ______________________

                 Decided: August 14, 2020
                  ______________________

     DANIEL WILLIAM WOLFF, Crowell & Moring, LLP,
 Washington, DC, argued for plaintiffs-appellees. Also rep-
 resented by STEPHEN JOHN MCBRADY, SKYE MATHIESON,
 CHARLES BAEK.

     ALISA BETH KLEIN, Appellate Staff, Civil Division,
 United States Department of Justice, Washington, DC, ar-
 gued for defendant-appellant. Also represented by MARK
 B. STERN, ETHAN P. DAVIS.
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 2                    SANFORD HEALTH PLAN v. UNITED STATES




     LAWRENCE SHER, Reed Smith LLP, Washington, DC,
 for amici curiae Blue Cross Blue Shield of North Dakota,
 Blue Cross and Blue Shield of Vermont, Local Initiative
 Health Authority for L.A. County, Molina Healthcare of
 California, Inc. Also represented by COLIN E. WRABLEY,
 Pittsburgh, PA.

     STEPHEN A. SWEDLOW, Quinn Emanuel Urquhart &
 Sullivan, LLP, Chicago, IL, for amicus curiae Common
 Ground Healthcare Cooperative.
                 ______________________

     Before DYK, BRYSON, and TARANTO, Circuit Judges.
 TARANTO, Circuit Judge.
     In the Patient Protection and Affordable Care Act (the
 ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010), as
 amended, Congress directed each State to establish an
 online exchange through which insurers may sell health
 plans if the plans meet certain requirements. One such re-
 quirement is that insurers must agree to reduce the “cost-
 sharing” burdens—such as the burdens of making co-pay-
 ments and meeting deductibles—of certain of their custom-
 ers. When insurers meet that requirement, the ACA says,
 the Secretary of Health and Human Services (HHS) shall
 reimburse them for the required cost-sharing reductions
 they have provided to their customers.         42 U.S.C.
 § 18071(c)(3)(A) (“the Secretary shall make periodic and
 timely payments to the issuer equal to the value of the re-
 ductions”). This reimbursement seeks to make the insur-
 ers whole for the increased payments they make to
 healthcare providers when customers do not pay the pro-
 viders unreduced cost-sharing amounts.
     In October 2017, the Secretary stopped making reim-
 bursement payments, due to determinations that such pay-
 ments were not within the congressional appropriation
 that the Secretary had, until then, been invoking to pay the
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 SANFORD HEALTH PLAN v. UNITED STATES                      3



 reimbursements. In January 2018, Sanford Health Plan—
 a seller of insurance through the North Dakota, South Da-
 kota, and Iowa exchanges—and Montana Health CO-OP—
 a seller of insurance through the Montana and Idaho ex-
 changes—brought materially identically actions against
 the United States in the Court of Federal Claims. The two
 plaintiffs alleged that they were entitled to damages be-
 cause the government had violated its statutory obliga-
 tion—or, in the alternative, breached an implied-in-fact
 contract—by failing to reimburse them for the cost-sharing
 reductions they made during the final months of 2017.
     The trial court granted summary judgment for the
 plaintiffs.   Sanford Health Plan v. United States,
 

(2018); Montana Health CO-OP v. United
 States, 

(2018). In materially identical
 opinions, the court concluded that the ACA provision on re-
 imbursement of cost-sharing reductions is “money-man-
 dating” and that the government is liable for money
 damages for its failure to make reimbursements for the
 2017 reductions. 

, 706–09;
 

, 218–21. The court did not
 reach the contract claim in either case.          

n.4; 

n.4.
 Based on stipulations as to the amounts due, the court ul-
 timately entered final judgments of $360,254.00 for San-
 ford and $1,234.058.79 for Montana.
     The government appeals. We consolidated the appeals,
 and we now affirm. After initial briefing and argument,
 the Supreme Court decided Maine Community Health Op-
 tions v. United States, 

(2020), addressing a
 different payment-obligation provision of the ACA. We
 conclude that Maine Community makes clear that the cost-
 sharing-reduction reimbursement provision imposes an
 unambiguous obligation on the government to pay money
 and that the obligation is enforceable through a damages
 action in the Court of Federal Claims under the Tucker Act,
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 4                     SANFORD HEALTH PLAN v. UNITED STATES




 28 U.S.C. § 1491(a)(1). We see no persuasive basis for dis-
 tinguishing these cases from Maine Community.
                                I
      Under the ACA, each State was to “establish an Amer-
 ican Health Benefit Exchange.” 42 U.S.C. § 18031(b)(1). 1
 Exchanges are “virtual health-insurance markets,” 

, that are designed to “facilitate[] the pur-
 chase of qualified health plans,” 42 U.S.C. § 18031(b)(1)(A).
 A “qualified health plan” must provide certain “essential
 health benefits” and, based on the “full actuarial value of
 the benefits provided under the plan,” is designated as
 providing one of four “levels of coverage”: bronze, silver,
 gold, or platinum, which differ in the percent of the plan
 benefits that the insurer pays.

A silver
 plan “is designed to provide benefits that are actuarially
 equivalent to 70 percent of the full actuarial value of the
 benefits provided under the plan,” leaving 30% for the en-
 rollee (or someone else) to pay.

 sell plans on an exchange, an insurer must “offer at least
 one qualified health plan in the silver level and at least one
 plan in the gold level.”

addition to providing for the basic exchange infra-
 structure, the ACA, as relevant here, includes two mecha-
 nisms to help certain enrollees in exchange-offered
 insurance plans bear the cost of obtaining healthcare
 through such plans. One is directly at issue, the other as-
 serted by the government to be indirectly relevant. We de-
 scribe them in turn.




     1   In referring to the ACA, we include the amendment
 adopted almost immediately after enactment. Health Care
 and Education Reconciliation Act of 2010, Pub. L. No. 111-
 152, 124 Stat. 1029 (2010). We have been pointed to no
 later changes in the ACA that alter the analysis.
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 SANFORD HEALTH PLAN v. UNITED STATES                         5



                               A
     The mechanism directly at issue involves reductions in
 “cost-sharing”—the contributions to healthcare providers’
 charges that enrollees must make by way of “deductibles,
 coinsurance, copayments, or similar charges” or “any other
 expenditure required of an insured individual” for defined
 medical expenses. 42 U.S.C. § 18022(c)(3)(A). Specifically,
 section 1402 of the ACA, which is codified at 42 U.S.C.
 § 18071, states that the Secretary of HHS “shall” notify an
 insurer offering a plan on an exchange if an “eligible in-
 sured” is “enrolled in a qualified health plan” and, for such
 an enrollment, that the insurer “shall reduce the cost-shar-
 ing under the plan” as specified in subsection (c).

“eligible insured” must be enrolled in a
 silver-level plan.

“eligible insured”
 must also be an individual “whose household income ex-
 ceeds 100 percent but does not exceed 400 percent of the
 poverty line.”

amount of the required
 cost-sharing reduction varies based on relevant family in-
 come.

also

 tional cost-sharing reductions for lower income enrollees).
      Of critical importance for purposes of the present ap-
 peals, the ACA guarantees reimbursement to insurers of
 the mandated cost-sharing reductions so that the man-
 date’s burden falls on the federal government, not the in-
 surers that otherwise would pay healthcare providers
 amounts not paid to them by enrollees when cost sharing
 is reduced:
     An issuer of a qualified health plan making reduc-
     tions under this subsection shall notify the Secre-
     tary [of HHS] of such reductions and the Secretary
     shall make periodic and timely payments to the is-
     suer equal to the value of the reductions.

added). The ACA reinforces
 that payment commitment by providing for the govern-
 ment to make advance payments of amounts due. See

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 6                    SANFORD HEALTH PLAN v. UNITED STATES




 § 18082(c)(3) (directing the Secretary of the Treasury, upon
 receiving notice from the Secretary of HHS “if an advance
 payment of the cost-sharing reductions . . . is to be made to
 the [insurer],” to “make such advance payment at such
 time and in such amount as the Secretary [of HHS] speci-
 fies in the notice”).
      As confirmed by the regulations adopted by the Secre-
 tary of HHS, advance payments are merely provisional
 transfers, with the government’s payment obligation ulti-
 mately fixed by looking back to what cost-sharing reduc-
 tions a relevant insurer has actually provided to an eligible
 insured (with accompanying increased payments the in-
 surer made to healthcare providers). See 45 C.F.R.
 § 156.430. Thus, “the regulations specify that such insur-
 ers ‘will receive periodic advance payments based on the
 advance payment amounts calculated in accordance’ with
 a regulatory formula.” 

(quot-
 ing 45 C.F.R. § 156.430(b)(1)); 

 (same). And “[t]he regulations further provide that HHS
 will reconcile the amounts paid in advance and the actual
 cost-sharing reductions made.” 

n.2; 

n.2 (same); see 45
 C.F.R. § 156.430(d) (stating that “HHS will perform peri-
 odic reconciliations of any advance payments of cost-shar-
 ing reductions provided to” an insurer against “[t]he actual
 amount of cost-sharing reductions provided to enrollees and
 reimbursed to providers” by the insurer) (emphasis added);

that if “the actual amounts of
 cost-sharing reductions” described in (d) are “[l]ess than
 the amount of advance payments provided,” the insurer
 “must repay the difference to HHS”; similarly, if advance
 payments were too low to reflect actual amounts under (d),
 “HHS will reimburse [the insurer] for the difference”).
    Despite the payment command regarding cost-sharing
 reduction reimbursements, however, the ACA contains no
 permanent appropriation referring to such payments.
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 SANFORD HEALTH PLAN v. UNITED STATES                       7



                              B
     In section 1401, the ACA establishes a second mecha-
 nism for helping enrollees in exchange-offered plans to
 bear their costs. This mechanism provides a refundable
 tax credit to lower the premiums that certain enrollees pay
 to their insurers, with the federal government subsidizing
 the premium reductions.
       Specifically, under section 1401 of the ACA, which is
 codified in the Internal Revenue Code, 26 U.S.C. § 36B,
 each “applicable taxpayer” is entitled to a tax credit of “an
 amount equal to the premium assistance credit amount of
 the taxpayer for the taxable year.” 26 U.S.C. § 36B(a). De-
 termining who qualifies as an “applicable taxpayer” is
 straightforward. “The term ‘applicable taxpayer’ means
 . . . a taxpayer whose household income for the taxable year
 equals or exceeds 100 percent but does not exceed 400 per-
 cent of an amount equal to the poverty line.” See

while the income qualification
 mirrors the income standard of the “eligible enrollee” defi-
 nition for the cost-sharing reduction program, the premium
 tax credit program is available more broadly, because “ap-
 plicable taxpayer” for the premium tax credit, unlike “eli-
 gible enrollee” for the cost-sharing reduction, is not
 restricted to a purchaser of a silver-level plan. 2
    Determining the “premium assistance credit
 amount”—i.e., the “sum of the premium assistance



     2    The cost-sharing reduction provision of the ACA
 adds that allowance of a premium tax credit is a prerequi-
 site to allowance of a cost-sharing reduction: “No cost-shar-
 ing reduction shall be allowed under this section with
 respect to coverage for any month unless the month is a
 coverage month with respect to which a credit is allowed to
 the insured (or an applicable taxpayer on behalf of the in-
 sured) under [26 U.S.C. § 36B].” 42 U.S.C. § 18071(f)(2).
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 8                     SANFORD HEALTH PLAN v. UNITED STATES




 amounts . . . with respect to all coverage months of the tax-
 payer occurring during the taxable year,”

more complicated. Calculated on a monthly basis, the
 “premium assistance amount” is the lesser of (1) the
 monthly premium for the taxpayer’s plan and (2) the “ex-
 cess” of the monthly premium for the “applicable second
 lowest cost silver plan with respect to the taxpayer, over
 . . . an amount equal to 1/12 of the product of the applicable
 percentage and the taxpayer’s household income.”

provided for payment of the pre-
 mium tax credits directly to insurers, using language sim-
 ilar, though not identical, to the language providing for
 payment of cost-sharing reduction reimbursements to in-
 surers.

U.S.C. §§ 18081, 18082.
     For the refundable tax credits, unlike for the cost-shar-
 ing reduction reimbursements, Congress provided for pay-
 ment through an express permanent appropriation.
 Specifically, the payment of the tax credits is implemented
 through 31 U.S.C. § 1324, which provides for the “Refund
 of internal revenue collections.” That provision perma-
 nently appropriates “[n]ecessary amounts . . . to the Secre-
 tary of the Treasury for refunding internal revenue
 collections as provided by law,”

only for
 expressly listed refunds: “[d]isbursements may be made
 from the appropriation made by this section only for . . . re-
 funds due from credit provisions” that are then specifically
 enumerated

amended by the ACA, one
 such enumerated provision is 26 U.S.C. § 36B. 31 U.S.C.
 § 1324(b)(2). The enumeration does not include the ACA’s
 cost-sharing reduction reimbursement provision.
                               C
     The government argues that the premium tax credit
 subsidy mechanism, though not directly at issue here, is
 indirectly relevant to assessing its liability for non-pay-
 ment of cost-sharing reduction reimbursements. That ar-
 gument depends on the interaction of the two subsidy
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 SANFORD HEALTH PLAN v. UNITED STATES                          9



 mechanisms in operation. A district court explained two
 aspects of that interaction in California v. Trump,
 

(N.D. Cal. 2017). It explained that,
 given how the tax credit is defined, the credit for an enrol-
 lee in any plan can rise when the premium for the second-
 lowest-cost silver plan rises

and it also ex-
 plained that when many States raised silver plan premi-
 ums to offset insurers’ loss of cost-sharing reduction
 reimbursements, the result was that many consumers re-
 ceived higher premium tax credits

See
 

n.7; 

n.7. The government builds on those two points here
 to argue that, because premium tax credits are paid to in-
 surers, the loss insurers suffer from non-reimbursement of
 cost-sharing reductions will often be reduced or wholly
 eliminated (or, indeed, more than offset) by premium in-
 creases designed to account for the cessation of federal pay-
 ment of cost-sharing reduction reimbursements. In the
 Sanford and Montana cases, however, the government ac-
 cepts that there were no such premium increases for the
 2017 period at issue. See 

 (“Sanford was unable to raise its premiums to make up for
 the shortfall in 2017, because by the time HHS issued its
 stop payment order, premiums for that year were set”);
 

(same for Montana).
     For these cases, therefore, the government’s argument
 is necessarily a categorical one. The government argues
 that the existence of the statutory mechanism for premium
 tax credits categorically eliminates the availability of a
 Tucker Act damages action for the nonpayment of cost-
 sharing reduction reimbursements, even if, for a particular
 period, there were no premium increases that had the pur-
 pose or effect of offsetting an insurer’s loss of cost-reduction
 reimbursements. In this regard, certain textual intercon-
 nections of the two mechanisms are worth noting.
    42 U.S.C. § 18071, which provides for cost-sharing re-
 ductions and reimbursements, contains several references
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 10                   SANFORD HEALTH PLAN v. UNITED STATES




 to 26 U.S.C. § 36B, the premium tax credit provision. See
 42 U.S.C. § 18071(f)(2) (quoted in note 

) (indicating
 that allowance of cost-sharing reduction depends on allow-
 ance of premium tax credit);

to 26
 U.S.C. § 36B(c)(1)(B), concerning aliens lawfully present in
 the United States);

term used in
 this section which is also used in section 36B of title 26
 shall have the meaning given such term by such section.”);

determination under this section
 shall be made on the basis of the taxable year for which the
 advance determination [concerning certain qualifications
 for ACA benefits] is made under section 18082 of this title
 and not the taxable year for which the credit under section
 36B of title 26 is allowed.”). Moreover, other ACA provi-
 sions that provide for various implementation programs,
 including direct payments to insurers, address both cost-
 sharing reductions and premium tax credits. See 42 U.S.C.
 §§ 18081, 18082 (codifying ACA sections 1411 and 1412).
 Among those provisions is 42 U.S.C. § 18082(a)(3), which
 refers to both forms of subsidy as aimed at reducing “pre-
 miums”: “the Secretary of the Treasury makes advance
 payments of such credit or reductions to the issuers of the
 qualified health plans in order to reduce the premiums pay-
 able by individuals eligible for such credit.”

      In preparation for the inaugural year of the exchanges,
 the President requested roughly $4 billion for “carrying
 out, except as otherwise provided, sections 1402 and 1412
 of the Patient Protection and Affordable Care Act.” Execu-
 tive Office of the President, Appendix¸ Budget of the U.S.
 Government, Fiscal Year 2014, at 448, available at
 https://bit.ly/36YUqGi. Congress declined to provide the
 requested appropriation for reimbursement to insurers for
 their cost-sharing reductions. See Consolidated Appropri-
 ations Act, 2014, Pub. L. No. 113-76, 128 Stat. 5; S. Rep.
 No. 113-71, at 123 (2013) (stating that the “recommenda-
 tion does not include a mandatory appropriation, requested
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 SANFORD HEALTH PLAN v. UNITED STATES                      11



 by the administration, for reduced cost sharing assistance
 for individuals enrolling in qualified health plans pur-
 chased through the Health Insurance Marketplace, as pro-
 vided for in sections 1402 and 1412 of the ACA”).
      In January 2014, despite the absence of a specific ap-
 propriation, the Secretary of the Treasury began making
 cost-sharing reduction reimbursement payments to insur-
 ers. When the House of Representatives brought an action
 for an injunction to stop those payments, the Secretary of
 HHS and the Secretary of the Treasury (the Secretaries)
 explained that they had jointly determined that “the per-
 manent appropriation in 31 U.S.C. § 1324, as amended by
 the Affordable Care Act, is available to fund all components
 of the Act’s integrated system of subsidies for the purchase
 of health insurance, including both the premium tax credit
 and cost-sharing portions of the advance payments re-
 quired by the Act.” United States House of Representatives
 v. Burwell, 

, 174 (D.D.C. 2016) (internal
 quotations omitted). The district court rejected that posi-
 tion, granted summary judgment for the House, and issued
 an injunction.

In its analysis, the court
 described various statutory differences in the treatment of
 cost-sharing reductions and tax credits, including in the
 provision for advance payment to insurers, and concluded
 that such differences show, contrary to the government’s
 contention, “the lack of congressional intent to fuse Sec-
 tions 1401 and 1402 together through a ‘unified’ program.”

The district court sua sponte stayed its injunc-
 tion pending appeal

and cost-sharing re-
 duction reimbursement payments continued.
     In October 2017, the Attorney General informed the
 Secretaries that it was unlawful to use the permanent ap-
 propriation for refundable tax credits to make cost-sharing
 reduction reimbursement payments. See Letter from the
 Attorney General to the Secretary of the Treasury and the
 Acting Secretary of HHS, at 1 (Oct. 11, 2017), available at
 https://bit.ly/36Zqzh6. The next day, the Secretary of HHS
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 12                   SANFORD HEALTH PLAN v. UNITED STATES




 announced that cost-sharing reduction reimbursement
 payments would be “prohibited unless and until a valid ap-
 propriation exists.” Memorandum from the Acting Secre-
 tary of HHS to the Administrator of CMS, Payments to
 Issuers for Cost-Sharing Reductions, at 1 (Oct. 12, 2017),
 available at https://bit.ly/36Zqzh6. With that decision, the
 House of Representatives case was settled and the injunc-
 tion vacated.
      The present actions, filed by Sanford and Montana, fol-
 lowed in January 2018. As these cases come before us, each
 action involves only unreimbursed cost-sharing reductions
 for the last quarter of 2017. It is undisputed that, for that
 period, neither insurer set higher premiums to offset the
 absence of cost-sharing reduction reimbursement pay-
 ments. In these respects, the present two cases differ from
 two other cases decided today, Community Health Choice,
 Inc. v. United States, No. 2019-1633, and Maine Commu-
 nity Health Options v. United States, No. 2019-2102, both
 of which involve periods after 2017 for which it is alleged
 that the insurers, with the approval of state insurance reg-
 ulators, did raise premiums to offset the non-payment of
 cost-sharing reduction reimbursements. The trial court, as
 noted above, ruled in favor of Sanford and Montana and
 entered judgments for stipulated amounts for the 2017 pe-
 riod at issue.
    The government timely appealed to this court. We
 have jurisdiction under 28 U.S.C. § 1295(a)(3).
                              III
     On appeal, the government challenges the trial court’s
 determination that the ACA provision commanding pay-
 ment of cost-sharing reduction reimbursements, 42 U.S.C.
 § 18071(c)(3), is a money-mandating provision for the vio-
 lation of which the insurers here may seek money damages
 under the Tucker Act, 28 U.S.C. § 1491(a)(1). That chal-
 lenge presents a question of law. See Fisher v. United
 States, 

, 1173 (Fed. Cir. 2005). We reject the
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 SANFORD HEALTH PLAN v. UNITED STATES                       13



 government’s challenge. Having so concluded, we, like the
 trial court, decline to address the alternative claim for
 breach of contract.
                               A
      The Supreme Court recently explained the governing
 law in Maine Community, drawing on earlier precedents.
 As relevant to the statutory claim here, the Tucker Act
 gives the Court of Federal Claims jurisdiction, and waives
 the sovereign immunity of the United States, for money
 claims “against the United States founded [upon] . . . any
 Act of Congress.” 28 U.S.C. § 1491(a)(1); Maine Commu-
 

. Because the Tucker Act “does not
 create ‘substantive rights,’” Maine Commu

, Tucker Act plaintiffs like Sanford and Montana
 who sue the United States for damages for a statutory vio-
 lation must show that the statute invoked is a “so-called
 money-mandating provision[],”

, 
the label used
 to identify a “statutory claim [that] falls within the Tucker
 Act’s immunity waiver,”
 

.
     The Supreme Court in Maine Community explained
 that its precedents establish a general rule to govern when
 a statutory provision supports a Tucker Act action. That
 rule is the “fair interpretation” test.
 Id. “A statute creates
 a right capable of grounding a claim within the waiver of
 sovereign immunity if, but only if, it can fairly be inter-
 preted as mandating compensation by the Federal Govern-
 ment for the damage sustained.”
 Id. (quotations omitted);
 see 
United States v. Navajo Nation, 
556 U.S. 287
, 290
 (2009); United States v. White Mountain Apache Tribe, 
537
 U.S. 465
, 472 (2003). The Court in Maine Community reit-
 erated that “[s]atisfying this rubric is generally both neces-
 sary and sufficient to permit a Tucker Act suit for damages
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 14                   SANFORD HEALTH PLAN v. UNITED STATES




 in the Court of Federal 
Claims.” 140 S. Ct. at 1328
. 3 The
 Court added that “if a statutory obligation to pay money is
 mandatory, then the congressionally conferred right to re-
 ceive money will typically display an intent to provide a
 damages remedy for the defaulted amount.”
 

 n.12 (quotations omitted).
      Having recited the general rule, the Supreme Court
 further explained: “But there are two exceptions.”
 

. “The Tucker Act yields when the obligation-creating
 statute provides its own detailed remedies”—specifically,
 “its own judicial remedies.” Maine 
Community, 140 S. Ct.
 at 1328
, 1329–30 (citing United States v. Bormes, 
568 U.S.
 6
, 12–13, 15–16 (2012)). And it yields as well “when the
 Administrative Procedure Act, 60 Stat. 237, provides an
 avenue for relief.”
 

(citing Bowen v. Massachu-
 setts, 
487 U.S. 879
, 900–08 (1988)).
                              B
     The Court applied that framework in Maine Commu-
 nity to hold that the government was liable for Tucker Act
 damages for violating the ACA’s section 1342(b), 124 Stat.
 211–212 (codified at 42 U.S.C. § 18062(b)(1)). See 140 S.
 Ct. at 1315. In section 1342 of the ACA, Congress stated
 that the Secretary of HHS “shall” create a Risk Corridors
 program, under which the Secretary “shall” set certain
 thresholds used to ensure that both profits and losses
 would be limited for insurers that chose to offer insurance
 on the new exchanges for the first three years of the ex-
 changes. Maine 
Community, 140 S. Ct. at 1315
–16; 124
 Stat. at 211–212. “Plans with profits above a certain
 threshold would pay the Government, while plans with



      3  The Supreme Court had no occasion to discuss sep-
 arately the “illegal exaction” branch of Tucker Act jurisdic-
 tion. See Boeing Co. v. United States, No. 2019-2148, at 21
 n.6 (Fed. Cir. Aug. 10, 2020).
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 SANFORD HEALTH PLAN v. UNITED STATES                       15



 losses below that threshold would receive payments from
 the Government.” Maine 
Community, 140 S. Ct. at 1316
.
 “Specifically, § 1342 stated that the eligible profitable
 plans ‘shall pay’ the Secretary [of HHS], while the Secre-
 tary ‘shall pay’ the eligible unprofitable plans.”
 Id. 4
      In each of the three years of the program’s existence,
 the money paid in by insurers turned out to be substan-
 tially less than the money the Secretary was required by
 § 1342(b)(1) to pay out.
 Id. at 1317–18. 
Based on a se-
 quence of post-ACA statutory provisions that limited use of
 identified appropriations to make such payments, the Sec-
 retary declined to pay out more than was received from the
 profitable insurers.
 Id. Several insurers that 
had chosen
 to offer plans on exchanges and suffered losses qualifying
 them for receipt of payments sued the United States for the



     4   Specifically, the provision commanding the Secre-
 tary to pay specified insurers read:
     (1) PAYMENTS OUT.—The Secretary shall pro-
     vide under the program established under subsec-
     tion (a) that if—
     (A) a participating plan’s allowable costs for any
     plan year are more than 103 percent but not more
     than 108 percent of the target amount, the Secre-
     tary shall pay to the plan an amount equal to 50
     percent of the target amount in excess of 103 per-
     cent of the target amount; and
     (B) a participating plan’s allowable costs for any
     plan year are more than 108 percent of the target
     amount, the Secretary shall pay to the plan an
     amount equal to the sum of 2.5 percent of the target
     amount plus 80 percent of allowable costs in excess
     of 108 percent of the target amount.
 § 1342(b)(1), 124 Stat. at 211.
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 16                     SANFORD HEALTH PLAN v. UNITED STATES




 unpaid amounts under the Tucker Act.
 Id. at 1318. 
This
 court concluded that § 1342 was money-mandating under
 the Tucker Act but that the obligation to pay out amounts
 more than insurer payments received had been impliedly
 repealed or suspended by congressional appropriations
 provisions. Moda Health Plan, Inc. v. United States, 
892
 F.3d 1311
, 1320 n.2 (money-mandating conclusion), 1322–
 23, 1325 (implied repeal or suspension conclusion) (Fed.
 Cir.), rehearing denied, 
908 F.3d 738 
(2018). The Supreme
 Court disagreed with the implied repeal/suspension conclu-
 sion and reversed, holding that Tucker Act relief was avail-
 able to the insurers. Maine 
Community, 140 S. Ct. at 1315
,
 1319, 1331. 5
      The Court first held that the “shall pay” language, un-
 modified by any relevant qualifying terms, “imposed a legal
 duty of the United States that could mature into a legal
 liability through the insurers’ actions—namely, their par-
 ticipating in the healthcare exchanges.”
 Id. at 1320. 
The
 Court next explained that, in ACA § 1342, Congress did not
 use the often-used tool of “expressly limit[ing] an obligation
 to available appropriations or specific dollar amounts.”
 Id.
 at 1322. 
On that basis the Court held that the obligation
 that ripened into a liability upon the insurers’ actions was
 “neither contingent on nor limited by the availability of ap-
 propriations or other funds,”
 id. at 1323, 
nor, therefore,
 qualified by the Appropriations Clause of the Constitution,
 art. I, § 9, cl. 7, or the Anti-Deficiency Act, 31 U.S.C. § 1341.
 Maine 
Community, 140 S. Ct. at 1321
–23. The Court then


      5  Like Sanford and Montana here, the plaintiffs in
 Maine Community sought Tucker Act relief based on as-
 serted implied-in-fact contracts as an alternative to the as-
 sertion founded on the statutory payment provision.
 Having agreed with the plaintiffs on the statutory ground,
 however, the Supreme Court in Maine Community did not
 reach the contract 
ground. 140 S. Ct. at 1331 
n.15.
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 SANFORD HEALTH PLAN v. UNITED STATES                       17



 held that the obligation undergirding the liability was not
 repealed by the post-ACA appropriations provisions.
 Id. at
 1323–27.
      The Court continued by “turn[ing] to a final question:
 Where does [the insurers’] lawsuit belong, and for what re-
 lief?,” and in answer to the question, the Court held that
 the insurers “properly relied on the Tucker Act to sue for
 damages in the Court of Federal Claims.”
 Id. at 1327. 
The
 Court concluded that § 1342 could fairly be interpreted as
 mandating compensation and that “neither exception to
 the Tucker Act applies.”
 

. Accordingly, “[t]he
 Risk Corridors statute is one of the rare laws permitting a
 damages suit in the Court of Federal Claims.”
 

.
      As to the “fair interpretation” general rule, the Court
 stressed the “shall pay” language of the statute. The Court
 reiterated that “[s]tatutory ‘“shall pay” language’ often re-
 flects congressional intent ‘to create both a right and a rem-
 edy’ under the Tucker Act.”
 
Id. at 1329 
(quoting 
Bowen,
 487 U.S. at 906 
n.42). For the Risk Corridors statute,
 “[s]ection 1342’s triple mandate—that the HHS Secretary
 ‘shall establish and administer’ the program, ‘shall provide’
 for payment according to the statutory formula, and ‘shall
 pay’ qualifying insurers—falls comfortably within the class
 of moneymandating statutes that permit recovery of money
 damages in the Court of Federal Claims.”
 Id. The Court
 added 
that “[b]olstering” its conclusion is “§ 1342’s focus on
 compensating insurers for past conduct”; the provision does
 not “‘subsidize future state expenditures’” but instead
 “uses a backwards-looking formula to compensate insurers
 for losses incurred in providing healthcare coverage for the
 prior year.” Id. (quoting 
Bowen, 487 U.S. at 906 
n.42). 6


     6    The Court stated that its conclusion did “not break
 new doctrinal ground.”
 
Id. at 1329 
n.13. The Court noted
 that it and the Federal Circuit both agreed that § 1342 was
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 18                    SANFORD HEALTH PLAN v. UNITED STATES




     As to the two exceptions to Tucker Act applicability, the
 Court held that neither exception applied. The ACA “did
 not establish a comparable remedial scheme” that would
 displace the Tucker Act.
 Id. at 1330. 
And the Administra-
 tive Procedure Act (APA) did not bar Tucker Act relief be-
 cause the claim by the insurers was quite different from
 the claim that had been held outside the Tucker Act, and
 within the APA, in Bowen.
 Id. at 1330–31 
(“Petitioners do
 not ask for prospective, nonmonetary relief to clarify future
 obligations; they seek specific sums already calculated,
 past due, and designed to compensate for completed la-
 bors.”).
                               C
     For the cost-sharing reduction reimbursement provi-
 sion at issue here, 42 U.S.C. § 18071(c)(3), we see no suffi-
 cient basis for reaching a different conclusion from the
 conclusion the Supreme Court drew for the Risk Corridor
 provision at issue in Maine Community.
                               1
      Section 18071(c)(3) uses “shall make . . . payments” lan-
 guage—“the Secretary shall make periodic and timely pay-
 ments to the issuer equal to the value of the reductions”—
 that is indistinguishable from the “shall pay” language at
 issue in Maine Community and unmodified by limiting lan-
 guage. The obligation is to pay money based on the in-
 surer’s specified actions—“participating in the healthcare
 exchanges” under the statutorily specified conditions,
 Maine 
Community, 140 S. Ct. at 1320
. That obligation log-
 ically “mature[d] into a legal liability through the insurers’


 money-mandating.
 Id. The Court also 
stated that the Fed-
 eral Circuit “agrees with [the Supreme Court’s] analysis
 broadly, having held that ‘shall pay’ language ‘generally
 makes a statute money-mandating’ under the Tucker Act.”

 Id.
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 SANFORD HEALTH PLAN v. UNITED STATES                      19



 actions” (here, carrying out the specified cost-sharing re-
 ductions).
 Id.
     It makes no 
difference to this conclusion that Congress
 did not specifically appropriate money to make the pay-
 ments. The government, having initially argued otherwise
 in this case (see Appellant’s Opening Br. at 23–32), now
 agrees that Maine Community forecloses a contrary conclu-
 sion. See Appellant’s Post-Maine Community Supple-
 mental Br. at 6. And the government has not argued that
 there is a congressional repeal or suspension applicable to
 section 18071(c)(3).
      Section 18071(c)(3) readily comes within the general
 rule for a statute-based claim under the Tucker Act: its lan-
 guage “can fairly be interpreted as mandating compensa-
 tion by the Federal Government for the damage sustained.”
 Maine 
Community, 140 S. Ct. at 1328 
(quotations omitted).
 Indeed, its “shall make . . . payments” command, which is
 not qualified by limiting language and which follows other
 “shall” directives regarding the cost-sharing reduction du-
 ties, is materially indistinguishable from the “triple man-
 date” of “shall” directives that the Supreme Court held in
 Maine Community “falls comfortably within the class of
 moneymandating statutes that permit recovery of money
 damages in the Court of Federal Claims.”
 
Id. at 1329
; see

 id. at 1328 
n.12 (explaining that “if a statutory obligation
 to pay money is mandatory, then the congressionally con-
 ferred ‘right to receive money’ will typically display an in-
 tent to provide a damages remedy for the defaulted
 amount” (citations omitted));
 id. at 1329 
(explaining that
 “‘[s]tatutory “shall pay” language’ often reflects congres-
 sional intent ‘to create both a right and a remedy’ under
 the Tucker Act” (quoting 
Bowen, 487 U.S. at 906 
n.42)).
     Such language may be enough by itself, but the conclu-
 sion is “[b]olster[ed]” here, as it was in Maine Community,
 by the character of the obligation as “compensating insur-
 ers for past conduct,” i.e., as one looking backward to pay
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 20                    SANFORD HEALTH PLAN v. UNITED STATES




 for expenses already incurred.
 Id. The present lawsuits
 are for amounts that Sanford and Montana expended in
 2017, for which they claim reimbursement. More gener-
 ally, as explained above, supra p. 6, although the statute
 provides for the government to advance funds to insurers
 to reflect cost-sharing reductions, those are just provisional
 transfers; the payment ultimately due under section 18071
 is for actual amounts already expended by insurers to carry
 out the cost-sharing reductions while paying healthcare
 providers so that enrollees received covered services.
      Neither of the “two exceptions” recognized by Maine
 Community applies here. The ACA does not contain “its
 own detailed remedies”—i.e., “its own judicial remedies,”
 Maine 
Community, 140 S. Ct. at 1328
, 1329–30—for viola-
 tions of section 18071(c)(3). Nor does the APA apply: as in
 Maine Community, the insurers here “do not ask for pro-
 spective, nonmonetary relief to clarify future obligations;
 they seek specific sums already calculated, past due, and
 designed to compensate for completed labors.” Maine Com-
 
munity, 140 S. Ct. at 1330
–31. Indeed, in the present ap-
 peals, the government made no argument for applicability
 of the APA in its opening brief or in its supplemental brief
 filed after Maine Community was decided. 7
                               2
     Despite the foregoing straightforward application of
 the Maine Community reasoning to the present cases, the
 government argues that Maine Community calls for a dif-
 ferent result. The government’s premise is that insurers’



      7  The government’s reply brief (at 9–10) refers to the
 APA only in passing, when arguing that the absence of a
 permanent appropriation defeats application of the Tucker
 Act. As we have noted, the government abandoned the ap-
 propriations-based argument in this court after the deci-
 sion in Maine Community.
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 SANFORD HEALTH PLAN v. UNITED STATES                      21



 loss of cost-sharing reduction reimbursements could cause
 the insurers to secure (from state regulators) permission to
 raise premiums, and that such higher premiums would
 lead to higher premium tax credits under section 1401 of
 the ACA, offsetting the loss of the cost-sharing reduction
 payments. Under the government’s theory, this sequence
 is so self-evident and so reliable that we should understand
 Congress to have deprived an insurer of the otherwise-
 available Tucker Act remedy for non-receipt of the statuto-
 rily promised cost-sharing reduction reimbursements for a
 period even when the insurer has not received offsetting
 premium tax credits for that period. We are not persuaded.
      Accepting the government’s contention would require a
 marked departure from the Maine Community analysis,
 which the Court indicated did not break new ground in
 identifying conditions for availability of Tucker Act relief.
 The premium tax credit provision does not alter the com-
 pelling force of the “shall make . . . payment” language of
 section 18071(c)(3), which readily creates an obligation
 that matures into a liability upon the insurer’s taking the
 prescribed action, and which readily satisfies the test that
 a statute “can fairly be interpreted” as compelling compen-
 sation for non-payment. Nor does it make the APA appli-
 cable. It also does not bring section 18071(c)(3) within the
 exception to Tucker Act coverage “when ‘a law assertedly
 imposing monetary liability on the United States contains
 its own judicial remedies.’” Maine 
Community, 140 S. Ct.
 at 1329
–30 (quoting 
Bormes, 568 U.S. at 12
). The premium
 tax credit provision does not provide “judicial remedies” at
 all, and it therefore is unlike each of the statutory regimes
 to which Maine Community pointed in identifying this ex-
 ception. 8 Under the background legal principles set forth



     8   The Court in Maine Community pointed to the stat-
 utes in Bormes and in Horne v. Department of Agriculture,
 
569 U.S. 513 
(2013), both of which provided specifically for
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 22                    SANFORD HEALTH PLAN v. UNITED STATES




 in Maine Community, section 18071(c)(3) comfortably qual-
 ifies as a money-mandating provision for which the Tucker
 Act supplies a judicial remedy not present in the ACA itself
 (or elsewhere).
     The existence of the premium tax credit mechanism in
 the ACA is not a persuasive reason to infer a congressional
 displacement of the Tucker Act remedy. In terms of rem-
 edy, the premium tax credit mechanism supplies an alter-
 native way for an insurer to try to obtain money (from the
 federal government) to offset the loss caused by the govern-
 ment’s violation of section 18071(c)(3). The statutory link-
 ages of the cost-sharing reduction and premium tax credit
 provisions, 
recounted supra
, include nothing that makes
 the latter into the sole means of trying to lessen losses from
 a violation of the former.
     As noted above, section 18082(a)(3) on its face may be
 understood to indicate that government payments to insur-
 ers for cost-sharing reductions can help lower “premi-
 ums”—presumably because insurers might otherwise seek
 higher premiums to enable them to pay healthcare provid-
 ers the amounts enrollees are not paying due to cost-shar-
 ing reductions. If silver plan premiums are increased,
 government payment of premium tax credits to insurers
 will then rise. But even if section 18082(a)(3) is understood
 as implicitly so recognizing, it does not support the govern-
 ment’s theory. That understanding suggests, at the most,
 that the premium tax credit mechanism is an additional
 means for reducing losses, not that this mechanism for re-
 ducing losses displaces the otherwise-clearly-available ju-
 dicial remedy under the Tucker Act to become the sole
 “remedy.”




 traditional remedies that included access to court to chal-
 lenge specific agency 
decisions. 140 S. Ct. at 1330
.
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 SANFORD HEALTH PLAN v. UNITED STATES                      23



      The government’s conclusion would mean that the
 background body of law making the Tucker Act applicable
 to section 18071(c)(3) is displaced even for situations in
 which, as in the present two cases, the premium tax credit
 mechanism does not in fact make up for losses from section
 18071(c)(3)’s violation. In such situations, the result would
 be to leave the insurer without redress, counter to Maine
 Community’s recognition that the Tucker Act remedy gives
 effect to the principle that “[t]he Government should honor
 its 
obligations.” 140 S. Ct. at 1331
.
      Such a result is especially unwarranted because there
 is a separate body of law that more precisely addresses the
 problem the government identifies. The premise of the gov-
 ernment’s argument is that the premium tax credit provi-
 sion can indeed lead to partial or complete offsetting of
 losses from non-reimbursement of cost-sharing reductions
 and that the government should not in effect be charged
 twice for a section 18071(c)(3) violation, once through
 raised premium tax credits and again through a damages
 award under the Tucker Act. But a categorical displace-
 ment of the availability of Tucker Act damages actions is
 not necessary to avoid such overpayment. Damages law
 deals in a more targeted way with matters such as appro-
 priate accounting for offsets and avoidance of double recov-
 eries, as we conclude today in Community Health Choice,
 Inc. v. United States, No. 2019-1633, and Maine Commu-
 nity Health Options v. United States, No. 2019-2102. That
 body of law accommodates the practical interaction of the
 two subsidy mechanisms without departing from the estab-
 lished principles governing Tucker Act coverage of pay-
 ment-mandating provisions as most recently set forth in
 Maine Community.
                              IV
     For the foregoing reasons, we affirm the judgments of
 the Court of Federal Claims.
                        AFFIRMED