Whether the government is required to pay insurers the full amount of the cost-sharing reduction payments required by the unambiguous shall-pay language of §1402 of the ACA

QUESTION PRESENTED Just this past Term, this Court held in Maine Community Health Options v. United States, 140 S.Ct. 1308 (2020), that the government was obligated to make the risk corridor payments required by the unambiguous shall-pay command of §1342 of the Patient Protection and Affordable Care Act (“ACA”), and that insurers who performed in full could bring suit in the Court of Federal Claims to recover the amounts that the government “shall pay.” In the decision below, the Federal Circuit recognized that under Maine Community, the government must make the cost-sharing reduction payments required by the equally unambiguous shall-pay language of §1402 of the ACA and not having appropriated funds did not simply vitiate the government’s obligation. So far, so good; but it then went on to hold, based on a purported “analogy to contract law,” that the remedy for the breach of the government’s statutory shall-pay obligation is not an order to pay the statutory shallpay amount, but only a far smaller amount (in the government’s view, perhaps even zero). The decision below discounts the specific sums the government promised to pay for specific undertakings that insurers have performed in full to account for premium increases and related tax credits prompted by the government’s breach. The question presented is: Whether the government is required to pay insurers the full amount of the cost-sharing reduction payments required by the unambiguous shall-pay language of §1402 of the ACA.