United States Federal Circuit

In an Indian tribe's suit against the Secretary of Health and Human Services for breach of contract, claiming that the government failed to pay plaintiff's so-called contract support costs shortfall for fiscal years 1999 and 2000, summary judgment for the Secretary is affirmed where: 1) the "not to exceed" language in the appropriations acts for fiscal years 1999 and 2000 imposes a statutory cap on funding for contract support costs, such that the Secretary is not permitted to make payments beyond the maximum specified in the appropriations acts; 2) the approach in Ferris v. United States, 27 Ct. Cl. 542 (1892), is inapplicable as the availability of funds provision coupled with the "not to exceed" language limits the Secretary's obligation to the tribes to the appropriated amount; and 3) plaintiff's alternative claim that the Secretary breached the contract by not requesting sufficient appropriations is without merit.

Appellate Information

• Decided 12/15/2010
• Published 12/15/2010

Judges

• DYK

Court

• United States Federal Circuit

Counsel

• For Appellant:
  
• Lloyd B. Miller, Jacob A. Schunk