OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS V. COMMONWEALTH OF MASSACHUSETTS COMMONWEALTH OF MASSACHUSETTS, CROSS-PETITIONER V. OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. No. 87-712, 87-929 In the Supreme Court of the United States October Term, 1987 On Writs of Certiorari to the United States Court of Appeals for the First Circuit Reply Brief for the Petitioners/Cross-Respondents 1. Respondent brought this action in the district court in an effort to establish its right to $11.3 million in additional Medicaid reimbursement for the years 1978-1982. /1/ The first question presented is whether, in so doing, respondent sought a money judgment that the district court was not empowered to render. We showed in our opening brief (Pet. Br. 13-34) that the district court cannot enter a judgment requiring the federal government to pay money in the absence of a waiver of sovereign immunity, and that the only waiver that might apply to this case in the district court is Section 10(a) of the Administrative Procedure Act (APA), 5 U.S.C. (Supp. IV) 702, which permits only "(a)n action . . . seeking relief other than money damages." /2/ We also showed (Pet. Br. 34-35) that Section 10(c) of the APA, 5 U.S.C. 704, would preclude this action even if the "money damages" exclusion in Section 702 did not apply, because respondent has a Tucker Act (28 U.S.C. 1491) remedy that is, in the words of Section 704, an "other adequate remedy in a court." a.(i) Respondent's principal argument is that, because it sought judicial review of an agency decision, respondent somehow did not seek "money damages" within the meaning of the APA (Resp. Br. 4, 21-22, 24, 32-34, 43-47, 62). This argument rests on a false dichotomy. "Judicial review" is a means by which an aggrieved party seeks to force the government to do something -- to pay money, to conduct itself in a certain way, or to do both. /3/ See generally Hewitt v. Helms, No. 85-1630 (June 19, 1987), slip op. 5. The APA's exclusion of "money damages" focuses not on the means but on the end the party seeks to achieve: sovereign immunity is waived if "money damages" are not sought; if money damages are sought then the party seeking them must look elsewhere for a waiver of sovereign immunity. The mere fact that the federal government's obligation to pay money can be made clear by a "reversal" of its decision that it is not obligated to pay does not convert the lawsuit into something other than an action for money. /4/ If it did, then the exclusion of "money damages" would be meaningless, and all complaints seeking the payment of money could be phrased so as to seek "judicial review" and "reversal" of the refusal to pay. Cf. Pet. Br. 21-23. /5/ A related argument contends that respondent's demand for payment of money somehow does not seek "money damages" because any actual payment by the federal government would take the form of an upward adjustment to respondent's future Medicaid grants (just as the recoupment of the amounts disallowed by the Grant Appeals Board took the form of a downward adjustment to a grant for a period long after the periods in which the disallowed amounts were paid). Amici suggest that this upward adjustment is "like a set-off" (Ala. Br. 25; see also N.Y. Br. 11 ("merely . . . a bookkeeping transaction")). That argument, however, is backwards. When the federal government invokes the process of the courts against someone who allegedly owes it money, and the alleged debtor asserts a right of setoff, then arguably no separate waiver of sovereign immunity is needed. See Bull v. United States, 295 U.S. 247, 261-262 (1935). But see United States v. Shaw, 309 U.S. 495, 503 (1940). This is not, however, a case instituted by the federal government to recover money from respondent. The federal government has already recouped the disputed money administratively. Rather, it is a case instituted by respondent to augment the amount of money that will be paid by the federal government to it. /6/ (ii) The complaint in this case clearly seeks additional dollars from the federal government. Respondent and amici endeavor in several ways, however, to demonstrate that an award of such additional dollars under the Medicaid program is not "money damages" within the meaning of the APA. The proper question to ask, of course, is what Congress meant by the term "money damages" in this statute. Thus, it is not sufficient to show that "damages" is sometimes used to distinguish one kind of money judgment from another. For example, in Burlington School Committee v. Massachusetts Department of Education, 471 U.S. 359 (1985), the Court held that a statute authorizing the reviewing court to "grant such relief as the court determines is appropriate" (20 U.S.C. 1415(e)(2)) was broad enough to permit a court to order reimbursement of certain expenditures. In distinguishing such reimbursement from "damages" (471 U.S. at 370-371), the Court was interpreting a statute that did not even use the word "damages," and the decision hardly sheds any light on what that word means in a different statute (the APA), in which it was used. Likewise, it is not sufficient to postulate, without supporting legislative history, a questionable "common law" meaning of the word "damages" that must be what Congress had in mind, no matter what the contrary indications in the legislative history (see Maryland Department of Human Resources v. Department of Health & Human Services, 763 F.2d 1441 (D.C. Cir. 1985) (MDHR v. HHS); Ala. Br. 25-26; CSG Br. 9; N.Y. Br. 11-13, 17; but see Resp. Br. 68 n.14). Such an argument would have force if "money damages" were a term invariably used with precision to refer only to some well-defined subcategory of money judgments, so that any other usage by Congress would be a misuse of the term. But, of course, that is not the case: "money damages" is a term regularly used, in Tucker Act jurisprudence and elsewhere, to mean all kinds of money judgments, including judgments requiring the payment of money previously owed but unpaid. See Pet. Br. 18-20 & n.16; Edelman v. Jordan, 415 U.S. 651, 668 (1974) (referring to an award of welfare benefits alleged to have been illegally withheld as "indistinguishable . . . from an award of damages against the State"); N.Y. Br. 12. It is therefore necessary to look to the legislative history to discern Congress's meaning. Our opening brief showed that by excluding "money damages" from the APA's waiver of sovereign immunity, Congress meant to exclude all forms of monetary relief (Pet. Br. 24-34). Respondent and amici have produced no convincing contrary evidence. Virtually the only reference to "damages" in the legislative history that respondent and amici cite is a passage from the memorandum on sovereign immunity that Professor Cramton prepared on behalf of the Administrative Conference. The passage is quoted in its entirety at N.Y. Br. 17. Although the State of New York and other amici (Ala. Br. 26 & nn.36 & 37) choose to emphasize only the sentences in this passage that refer to "compensat(ion) for harms done" and "money damages in tort and contract actions," neither sentence purports to say that this is all that is meant by the term "money damages" in the proposed statute. Rather, in the very same passage Professor Cramton wrote that "the language of our proposal, which is applicable in terms only to actions 'seeking relief other than money damages,' indicates that sovereign immunity remains as a defense to actions seeking monetary relief." Sovereign Immunity: Hearing on S. 3568 Before the subcomm. on Admin. Practice and Procedure of the Senate Comm. on the Judiciary, 91st Cong., 2d Sess. 139 (1970) (hereinafter 1970 Hearing). The passage as a whole confirms, rather than contradicts, the explicit statement earlier in the same memorandum that "(a)ll forms of monetary relief . . . are excluded from the recommendation" (id. at 118 (emphasis added)). In addition, respondent and amici (Resp. Br. 56-57; Ala. Br. 11; N.Y. Br. 10, 15; CSG Br. 10-11) rely on the reference to federal grant-in-aid programs in the committee reports accompanying the 1976 amendments to the APA (S. Rep. 94-996, 94th Cong., 2d Sess. 8; H.R. Rep. 94-1656, 94th Cong., 2d Sess. 9). /7/ But those references do not support an exception to the rule, stated throughout the rest of the legislative history, that the APA does not waive sovereign immunity for an action seeking monetary relief. Clearly, it is possible to challenge governmental administration of grant-in-aid programs on grounds that do not give rise to monetary relief. /8/ It simply does not follow therefore that one must either adjust the definition of "money damages" in order to give meaning to these references in the legislative history, or create a limited exception for grant-in-aid programs to the otherwise general prohibition on awards of monetary relief under the APA. The reference to grant-in-aid programs, after all, comes from the same Cramton memorandum discussed above (see 1970 Hearing 121), and "Dean Cramton's memorandum, and the congressional reports based on it, should not be cited as implying propositions that they clearly reject." Massachusetts v. Departmental Grant Appeals Bd., 815 F.2d 778, 783 n.3 (1s Cir. 1987). /9/ (iii) Respondent and amici make several other arguments in support of permitting respondent to seek a monetary recovery in district court, but these remaining arguments are tied barely, if at all, to the text and legislative history of the APA's exclusion of "money damages." For example, the briefs are replete with arguments to the effect that the Medicaid program has special attributes that assertedly make district court review more appropriate than Claims Court review (Resp. Br. 9 n.3, 26-28, 81-84, 91-93; Ala. Br. 6-8, 19-20; Calif. Br. 1-13; CSG Br. 21 n.13; Grimesy Br. 8-36; N.Y. Br. 3, 7-9). But whether or not Congress should have specified a procedure for judicial review of Medicaid disallowance decisions in district court, the fact is that it did not. /10/ The task before the Court is to determine whether such review may be reconciled with the framework established by other statutes that provide generally for actions against the United States. And the two relevant statutes -- the APA and the Tucker Act -- look to the nature of the relief sought, not to the subject matter of the lawsuit, in order to allocate jurisdication between the district courts and the Claims Court. A theme that nevertheless runs throughout several briefs is the assertion that the Claims Court is a "specialized" tribunal whose jurisdiction depends on the subject matter of the lawsuit -- that it is a forum for the resolution of government contracts disputes, civilian and military pay cases, and little else. /11/ But no such limitation can even remotely be found in the words of the Tucker Act (see Pet. Br. 3-4). It is certainly true that "(n)ot every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act" (United States v. Mitchell, 463 U.S. at 216). But the limitations have to do with the form of relief sought and the content of the relevant statute. There is not general principle excluding from the ken of the Tucker Act grant-in-aid disputes, or Medicaid disputes, or disputes about "important social policies and programs" (N.Y. Br. 3; cf. Resp. Br. 39-42), or disputes about any other subject on which Congress has enacted a statute that "can fairly be interpreted as mandating compensation by the Federal Government" (Mitchell, 463 U.S. at 217 (citations and internal quotation marks omitted)). /12/ And although the staple of the Claims Court's work admittedly has been government contracts cases, pay cases, and a few other recurrent categories, Tucker Act courts have adjudicated a wide variety of other controversies. /13/ Thus, it is not the least unnatural to believe that Congress, in enacting the 1976 amendments to the APA, did what the legislative history indicates it intended to do: open the district courts up to actions not seeking monetary relief, but leave nontort money cases, whatever their subject matter, governed by the Tucker Act (see Pet. Br. 31-32). Although the legislative history cites contract cases most frequently as an example of Tucker Act cases left unaffected by the new Section 702, this natural emphasis on the most familiar kind of Tucker Act case hardly means (see Resp. Br. 64-65, 102; Ala. Br. 26 n.37; N.Y. Br. 13 n.9; CSG Br. 16) that those are the only cases that the APA's waiver of sovereign immunity does not reach. b. As we argued in our opening brief (Pet. Br. 34-35), even if respondent's action is not a request for "money damages" within the meaning of the APA, it would be inappropriate -- at least insofar as respondent seeks a judgment that would directly enable it to obtain $11.3 million in Medicaid reimbursement for years past -- to allow respondent to sue under the APA, because respondent could obtain the same judment from the Claims Court (assuming the correctness of its position on the merits). /14/ Thus, this is not a case involving "final agency action for which there is no other adequate remedy in a court" (5 U.S.C. 704). Respondent and amici respond to this argument in two ways. First, they contend that Section 704 does not really mean what it says, that "nonstatutory" APA review is available only when there is no other adequate remedy in a court (Resp. Br. 71-72; N.Y. Br. 6-7, 17 n.11). Second, they surprisingly contend that the Claims Court would not have jurisdiction, so that the Tucker Act remedy is inadequate because it is nonexistent (Resp. Br. 29-30, 97-99; cf. Ala. Br. 24 n.34). However, notwithstanding dicta in Massachusetts v. Departmental Grant Appeals Bd., 815 F.2d at 784, there is no basis for reading Section 704 as a mere requirement of exhaustion of administrative remedies and ripeness, rather than what it purports to be: a statute precluding nonstatutory review under the APA when there exists another adequate remedy in a court. See, e.g., Council of the Blind v. Regan, 709 F.2d 1521, 1531 (D.C. Cir. 1983) (en banc) (reading Section 704 literally). The legislative history of this provision is quite scanty. See S. Doc. 248, 79th Cong., 2d Sess. 8, 37-38, 213, 276-277 (1946) (reprinting committee reports). It certainly supports the proposition that one purpose of Section 704 was to codify requirements of exhaustion and ripeness. But nowhere does it say, or even intimate, that this was its only purpose. Moreover, there can be no claim that the literal reading is nonsensical or inconsistent with any other provision of the APA. Congress could quite reasonably conclude that nonstatutory review should be confined to cases of true necessity -- where there is "no other adequate remedy in a court" -- since a broader form of nonstatutory review might render redundant or otherwise interfere with carefully limited provisions for statutory review. The contention that no Tucker Act remedy exists in this case is also without foundation. Far be it from us to "ignore() the rule that in 'determining the general scope of the Tucker Act, this Court has not lightly inferred the United States' consent to suit'" (Resp. Br. 97-98 (quoting Mitchell, 463 U.S. at 218)). But "there is simply no question that the Tucker Act provides the United States' consent to suit for claims founded upon statutes or regulations that create substantive rights to money damages" (Mitchell, 463 U.S. at 218). /15/ And respondent's statutory substantive right to repayment for valid Medicaid expenditures could not be clearer: "the Secretary . . . shall pay" the money under 42 U.S.C. 1396b(a) when the State has a valid claim for reimbursement. /16/ If the Medicaid Act did not mandate the payment of money by the federal government, it is hard to see how respondent would have any legally enforceable rights of the sort it asserts in this lawsuit. 2. If we have succeeded in showing that the interplay of the APA and the Tucker Act requires that respondent's request for monetary relief be adjudicated in the Claims Court rather than the district court, then the Court must decide the second question presented: whether that statutory division of jurisdiction -- actions seeking money in the Claims Court, actions seeking relief other than money in the district court -- allows a single lawsuit seeking both monetary relief and prospective relief to be split into two actions, with the district court taking jurisdiction over the "prospective" part of the suit and the Claims Court over the "retrospective" part. Such claim splitting, by allowing the district court to resolve all common legal issues in the course of considering the plaintiff's request for declaratory or injunctive relief, which resolution then becomes binding on the Claims Court by operation of collateral estoppel, /17/ effectively nullifies the congressional objective of centralizing the adjudication of claims for money damages against the United States in a single forum. In addition, claim splitting will inevitably give rise to confusion, delay, intercircuit conflicts, and forum shopping. We showed in our opening brief that this simply could not have been Congress's intent (Pet. Br. 38-43), that 5 U.S.C. 704 precludes such an assertion of district court jurisdiction because (at least in the circumstances of this case) respondent's Tucker Act remedy is "adequate" (Pet. Br. 43-44), and that 5 U.S.C. 702(2) precludes such an assertion of district court jurisdiction because the Tucker Act "impliedly forbids" the nonmonetary relief sought (Pet. Br. 44-46). Respondent has done much to confirm that the only relief needed or appropriate on the facts of this (or any similar) case is available from the Claims Court. Respondent recognizes that the district court entered no injunction (Resp. Br. 19). Nor did the court of appeals do so. Therefore, what would restrain petitioners from taking action inconsistent with the decisions below is not any threat of contempt for disobeying an injunctive order, but instead the stare decisis effect of the reasoning of those decisions. Respondent also acknowledges that it was satisfied with the relief it obtained below, and that nothing else was necessary to accomplish the purposes of this lawsuit (id. at 21-22, 32-33, 35, 68 & n.14). What respondent fails to acknowledge, however, is that the very same relief is and was available from the Claims Court in the form of a money judgment and/or remand, and the accompanying statement of law that would bind petitioners in their future dealings with respondent. Any decision by the Claims Court would have no less and no more of a restraining effect than the judgments entered by the courts below. See King v. United States, 390 F.2d 894, 905 (Ct. Cl. 1968) ("Any judgment of this court will inevitably have a restraining effect upon Government operations. This is true of money judgments . . . . A judgment awarding money to a particular plaintiff can be authoritative information to officials that their conduct was unlawful and that, unless their position is altered, similar judgments may be rendered in the future."), rev'd on other grounds, 395 U.S. 1 (1969). In these circumstances, it is simply wrong to describe the relief available in the Claims Court as anything short of "complete" (CSG Br. 20). It is equally wrong to maintain that "(t)he Tucker Act remedy . . . is wholly inadequate because the Claims Court cannot provide the declaratory and injunctive relief available in the district court" (Ala. Br. 12; see Resp. Br. 72). Respondent and amici have confused the question whether the Claims Court can provide the same relief with the question posed by the APA, which is whether the Claims Court can afford an "adequate remedy" (5 U.S.C. 704 (emphasis added)). See Council of the Blind v. Regan, 709 F.2d at 1532 (distinguishing proposition that relief plaintiffs sought under the APA was "more effective" from the Section 704 criterion that non-APA relief be "inadequate"). Consequently, the efforts by respondent and amici to show that the Claims Court does not have the same equitable powers as the district court (Resp. Br. 72-76; Ala. Br. 12-15; CSG Br. 11-14) -- although correct in some respects -- are quite beside the point. /18/ Congress's deliberate decision not to give the Claims Court full equitable powers should be treated as a reason not to afford injunctive and declaratory relief at all, not as something that, ispo facto, renders the Claims Court an inadequate forum in which to litigate any dispute about money that also has implications for the future. We said in our opening brief that, "(a)lthough the matter is not entirely free from doubt, we believe that plaintiffs also may waive all monetary recovery -- permanently forgoing any Tucker Act claim arising out of prejudgment events -- and thereby litigate their cases for nonmonetary relief in the district court and regional court of appeals" (Pet. Br. 15 n.11). The "doubt" to which we referred arises because it is unclear whether the adequacy of other remedies should be determined before or after the waiver. Before the waiver, the plaintiff has a Tucker Act remedy in the Claims Court, where he could secure any monetary recovery coupled with a determination of the law applicable to his situation. After the waiver, however, it is clear that the only available remedy is in district court. Perhaps we were only generous in suggesting that that doubt should be resolved in favor of viewing the plaintiff's situation after the waiver rather than before, but for two reaons we continue to believe that this is the better view. First, a plaintiff who waives all monetary recovery in order to have access to the declaratory and injunctive powers of the district courts demonstrates in a convincing fashion that he has a genuine need for the exercise of those powers. Second, when a court grants injunctive or declaratory relief that goes solely to future conduct of the parties, and cannot be used to impose monetary liability of the federal government for past conduct, the principal defect associated with claim splitting -- that it nullifies Congress's purpose to centralize money claims against the United States (other than those for which there exists a specific waiver of sovereign immunity) -- is not implicated, and there is no particular reason to remit the plaintiff to the forum that was set up to give the plaintiff relief that he does not need or want. But whatever the merits of our supposition that plaintiffs in other situations can invoke the jurisdiction of the district court by waiving their claims to accrued money damages, this issue is not presented by the case before the Court. Respondent has not waived its accrued money claim and has done nothing else to demonstrate a genuine need for any forward-looking relief beyond the binding statement of the law that the Claims Court can provide in the course of adjudicating the claim for past-due money. In these circumstances, it would be quite incorrect and would undermine congressional intent to treat respondent's ability to proceed in the Claims Court as anything less than an "adequate remedy in a court" (5 U.S.C. 704) and to allow preemption of the Claims Court in the manner accomplished by the court of appeals in this case. For the foregoing reasons and those given in our opening brief, the judgments of the court of appeals should be affirmed in part and reversed in part, and the cases should be remanded with directions to vacate the judgments of the district court in their entirety and to transfer the cases to the Claims Court pursuant to 28 U.S.C. 1631. /19/ Respectfully submitted. CHARLES FRIED Solicitor General APRIL 1988 /1/ In this reply brief, we use "respondent" to refer to respondent/cross-petitioner the Commonwealth of Massachusetts; "Resp. Br." to refer to respondent's brief; "petitioners" or "the Secretary" to refer to petitioners/cross-respondents the Secretary of Health and Human Services, et al.; "Pet. Br." to refer to our opening brief; "Ala. Br." to refer to the brief for the States of Alabama, et al., as amici curiae; "Calif. Br." to refer to the brief for the State of California as amicus curiae; "CSG Br." to refer to the brief for the Council of State Governments, et al., as amici curiae; "Grimesy Br." to refer to the brief for Victoria Grimesy, et al., as amici curiae; and "N.Y. Br." to refer to the brief for the State of New York as amicus curiae. /2/ Some amici dispute even the threshold proposition that a waiver of sovereign immunity is necessary (Ala. Br. 26-28). They contend that there exists an exception to the general principle of sovereign immunity, not grounded in any statute, whereby an action seeking to force the federal government to pay money is permitted whenever the money would come from funds appropriated to a specific program. This Court's cases, however, support no such expansive exception. Such cases as Miguel v. McCarl, 291 U.S. 442 (1934), and Roberts v. United States, 176 U.S. 221 (1900), stand only for the proposition that courts can issue orders in the nature of mandamus to compel performance of a clear or ministerial duty to pay money. See Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich. L. Rev. 387, 403-404 (1970). It was the "'ministerial'" nature of the duty to pay (rather than to impound) appropriated funds that allowed this Court to adjudicate Train v. City of New York, 420 U.S. 35 (1975), without a waiver of sovereign immunity (see 420 U.S. at 41 n.7). Neither Train v. City of New York nor any other decision of this Court can even remotely be read to stand for the proposition that intricate questions of statutory construction concerning the precise amount of federal funds to be paid to a particular claimant can be adjudicated without a waiver of sovereign immunity, simply because a general appropriation covers those funds. To the contrary, it remains "axiomatic that the United States may not be sued without its consent" (United States v. Mitchell, 463 U.S. 206, 212 (1983)), and a mere appropriation of funds to be used for a particular program hardly represents consent of the sovereign to all lawsuits involving those funds. The suggestion to the contrary in Springdale Convalescent Center v. Mathews, 545 F.2d 943, 950 (5th Cir. 1977), is in error. /3/ Thus, even though the Tucker Act applies only to cases in which the plaintiff seeks a money judgment (see Pet. Br. 18-20 & n.16), such an adjudication is often referred to as "judicial review." See, e.g., Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983) ("judicial review" of decision of Army Board for the Correction of Military Records); Foote Mineral Co. v. United States, 654 F.2d 81 (Ct. Cl. 1981) ("judicial review" of Interior Board of Land Appeals decision denying refund of mineral royalties); Julius Goldman's Egg City v. United States, 556 F.2d 1096 (Ct. Cl. 1977) ("judicial review" of determination by Secretary of Agriculture of fair market value of poultry for whose destruction he was statutorily obligated to compensate plaintiff); Brenner, Judicial Review by Money Judgment in the Court of Crimes, 21 Fed. B.J. 179 (1961); see also Chappell v. Wallace, 462 U.S. 296, 303 (1983) ("judicial review" of decision of Board for Correction of Naval Records). /4/ For example, if the district court's judgments in this case had not been appealed, and petitioners had simply refused to pay the $11.3 million at issue for the 1978-1982 period, there can be no doubt that the district court would have regarded that refusal as contempt of court -- even though the court never entered an order that said, in so many words, "pay the Commonwealth of Massachusetts" a specified sum of money. Respondent itself states that jurisdiction should not be based on "the bare possibility that the Secretary will contemn the judgment" (Resp. Br. 38), and that, of course, is exactly the point: the judgments entered by the district court in this case have precisely the same effect, unless the Secretary disobeys them, as money judgments. /5/ The exclusion would likewise be rendered meaningless if the Court were to intepret the complaint in this case as "entirely prospective" (CSG Br. 7) on the ground that the redress it seeks (payment of money in the future), as opposed to the conduct said to give rise to a right to that redress (nonpayment of money in the past), has not yet occurred. /6/ Respondent and several amici assume that an action brought before the administrative recoupment took place would not be an action for "money damages" and that it therefore could proceed in district court. On the basis of that assumption, they then assert that it is anomalous to have jurisdiction turn on whether the lawsuit is instituted before or after the recoupment. Resp. Br. 65-66; Ala. Br. 9, 22-23; Calif. Br. 6; CSG Br. 8. If any such anomaly existed, it would be one of Congress's making and one for Congress, not the courts, to correct -- if some correction were deemed appropriate. In fact, however, we do not think any distinction need be drawn between pre- and post-recoupment cases. In a pre-recoupment case as in a post-recoupment case, what is at issue is the size of a future payment to the State by the federal government. In both types of cases the plaintiff seeks, based on the legality of past conduct of the parties rather than future conduct, to require the federal government to pay more money than it would otherwise pay. Both kinds of actions therefore seek monetary relief that is excluded by the APA but contemplated by the Tucker Act. /7/ Amici Alabama, et al., misleadingly state that these references followed a decision by this Court holding that federal administration of grant-in-aid programs "could not be challenged under the Tucker Act" (Ala. Br. 11 (citing Richardson v. Morris, 409 U.S. 464 (1973)); cf. Resp. Br. 57 n.11). The cited decision said nothing of the kind. The plaintiff's had filed suit seeking equitable relief, and the district court predicated its jurisdiction on the Tucker Act. This Court wrote (409 U.S. at 465 (footnoted omitted)): The Tucker Act plainly gives district courts jurisdiction over claims against the United States for money damages of less than $10,000 that are "founded . . . upon the Constitution." But the Act has long been construed as authorizing only actions for moeny judgments and not suits for equitable relief against the United States. Consistent with the position we assert in this case, the Court's entire focus was on the nature of the relief sought, not the subject matter of the lawsuit. /8/ For example, an agency can simply fail to act on an application for federal funds, and a suit can be brought to compel the agency to act -- one way or the other -- on the application. In that situation, the court, if it agreed with the plaintiff, would compel the agency to act on the applications for funds but would not compel it to pay funds. Cf. Sarasota v. EPA, 799 F.2d 674 (11th Cir. 1986). Alternatively, those who deal with a particular federal grantee may wish to see the grantee cut off from federal funding unless it complies with certain environmental, social, or economic conditions. A lawsuit claiming that the federal government has a legal obligation to enforce such conditions or cut off funding would not seek the payment of money. /9/ In addition to the Cramton memorandum, other portions of the legislative history discussed in our opening brief show that Congress intended the phrase "money damages" to mean all monetary relief and that those who sought monetary relief would be limited to such remedies as might be available under specific statutes or under the Tucker Act. Amicus the State of New York responds to one passage we quote -- a statement by the Chairman of the Administrative Law Section of the American Bar Association (Pet. Br. 30) -- by pointing out that the statement was originally drafted in support of a statutory proposal containing different language (N.Y. Br. 16). That is true, but the submission of this same statement in support of the Administrative Conference proposal (which eventually became 5 U.S.C. 702) demonstrates that the exclusion of "money damages" was not meant or understood to be narrower than the exclusion of "monetary relief or specific relief in lieu thereof" in the ABA proposal. To the contrary, the witness understood the language of the Administrative Conference proposal to be "precise statutory language" that would accomplish the same objectives as the ABA proposal (1970 Hearing 56). /10/ As we noted in our opening brief (Pet. Br. 6 n.4), in the early years under the Medicaid program the government took the position that the absence of a specfic review provision, coupled with certain indications in the legislative history of 42 U.S.C. 1316(d), meant that judicial review of Medicaid disallowance determinations was precluded altogether. That argument was rejected in County of Alameda v. Weinberger, 520 F.2d 344, 347-349 (9th Cir. 1975). The government did not at that time advance, and the court did not consider, the additional argument that there was no waiver of sovereign immunity that would permit a district court as opposed to the Court of Claims (now the Claims Court) to order monetary redress for a disallowance decision. Given the lack of attention to this issue, there is no reason to believe that Congress, when it legislated generally on the subject of waiver of sovereign immunity in 1976, necessarily ratified all prior decisions allowing monetary actions to proceed in district courts. Even less persuasive is the argument of respondent (Resp. Br. 90) that the Federal Courts Improvement Act of 1982 (FCIA), Pub. L. No. 97-164, 96 Stat. 25, somehow ratified decisions (see Resp. Br. 52-53) that -- without construing either the Tucker Act of the "money damages" exclusion in the APA -- had found district court jurisdiction to review grant disallowance disputes. The FCIA did not substantively amend any of the statutory provisions on which we rely for the propositon that a plaintiff seeking money from the federal government must (in the absence of a specific waiver of sovereign immunity) proceed under the Tucker Act rather than the APA, and inferences from what is not said in the legislative history of the FCIA are quite unelightening. /11/ Respondent and several amici also disparage the Claims Court as a mere Article I tribunal, and they suggest in various ways that it somehow lacks the dignity to resolve important disputes to which a sovereign State is a party. The only issues before the Court, however, are issues of statutory interpretation. This Court is not asked to decide what jurisdiction the Claims Court and district courts should be assigned, but what jurisdiction they have been assigned, and observations about the source of constitutional authority for those courts do not advance the analysis. Nor does the sovereignty of the States give them any right to sue the United States other than the rights conferred by statutes consenting to suit. See Block v. North Dakota, 461 U.S. 273, 280 (1983); Hawaii v. Gordon, 373 U.S. 57 (1963); Minnesota v. United States, 305 U.S. 382 (1939). In any event, there is no question in this case of depriving anyone of an Article III forum. Claims Court decisions can be appealed under 28 U.S.C. 1295(a)(3) to the United States Court of Appeals for the Federal Circuit, which is an Article III tribunal (see S. Rep. 97-275, 97th Cong., 2d Sess. 2 (1982)). /12/ Indeed, this Court wrote in Mitchell that the Tucker Act "makes absolutely no distinction between claims founded upon contracts and claims founded upon other specified sources of law" (463 U.S. at 216). /13/ See, e.g., cases cited in note 3, supra; Chula Vista City Sch. Dist. v. Bennett, 824 F.2d 1573 (Fed. Cir. 1987) (federal Impact Aid to local educational agencies), cert. denied, No. 87-909 (Jan. 25, 1988); Spokane Valley Gen. Hosp. v. United States, 688 F.2d 771 (Ct. Cl. 1982) (Medicare reimbursement); Whitecliff, Inc. v. United States, 536 F.2d 347 (Ct. Cl. 1976) (Medicare reimbursement), cert. denied, 430 U.S. 969 (1977); New York Airways, Inc. v. United States, 369 F.2d 743 (Ct. Cl. 1966) (subsidies for transportation of mail under order of Civil Aeronautics Board); see also Bakersfield City Sch. Dist. v. Boyer, 610 F.2d 621, 627-628 (9th Cir. 1979). The opinion of Justice Harlan in Glidden Co. v. Zdanok, 370 U.S. 530 (1962), observed that "(t)he cases heard by the Court (of Claims) have been as intricate and far-ranging as any coming within the federal-question jurisdiction . . . of the District Courts" (370 U.S. at 556-557; see also id. at 573-574). /14/ For purposes of jurisdicational arguments, we of course assume that respondent has a meritorious claim. It is by no means true, however, that "(t)he Secretary no longer disputes that the Medicaid statute covered the services the Commonwealth provided to mentally retarded citizens" (CSG Br. 6). If the court of appeals is held by this Court to have jurisdiction, then we will of course be bound by its determinations. But we believe that the court lacked jurisdiction, and if this Court agrees then we intend to litigate the merits vigorously in the Claims Court, which does have jurisdiction. /15/ We showed in our opening brief (Pet. Br. 18-20) that whatever the term "money damages" means under the APA, this term clearly encompasses all claims for monetary relief when used to describe the prerequisite to Tucker Act jurisdiction. See United States v. Jones, 131 U.S. 1 (1882); MDHR v. HHS, 763 F.2d at 1447; Pauley Petroleum, Inc. v. United States, 591 F.2d 1308, 1315-1316 (Ct. Cl. 1979). Respondent ignores this portion of our brief in its repeated assertions (Resp. Br. 29, 60-61, 69-70, 99) that we have argued that term has the same meaning under both Acts and that therefore a narrow meaning of "money damages" in APA jurisprudence would necessarily require an equally narrow meaning of the term as used in Tucker Act jurisprudence. United States v. Mottaz, 476 U.S. 834 (1986), does not redefine the term "money damages" in any way that makes a Tucker Act remedy unavailable in this case. The facts of Mottaz were sui generis: the plaintiff claimed title to a disputed parcel of land, and she sought the two-step remedy of recognition of her title followed by a required purchase of the land by the government, a remedy "appropriate" on the particular facts of that case because of the location of the land within a national forest (476 U.S. at 851). The Court therefore drew a distinction between "damages for the Government's past acts, the essence of a Tucker Act claim for monetary relief," and the unusual forward-looking remedy sought by the Mottaz plaintiff (ibid.). The Court said nothing to indicate that it was adopting a general redefinition of the word "damages," which in prior Tucker Act cases has been used to encompass all forms of monetary relief for the federal government's past acts. /16/ The determination whether a statute can fairly be read as mandating compensation is not, as the District of Columbia Circuit recently suggested, the same as the question whether Congress intended to create an "implied cause of action" in that statute. See National Ass'n of Counties v. Baker, No. 87-5287 (D.C. Cir. Mar. 11, 1988), slip op. 10; see also MDHR v. HHS, 763 F.2d at 1450-1451. "If the source of the substantive right can be fairly read as mandating compensation by the Government, it is needless for Congress to add expressly in that statute that suit may be maintained in this court (or elsewhere) to obtain such monetary compensation. The Tucker Act . . . perform(s) that function of giving Congressional consent to jurisdiction in this court over such pecuniary claims. Classic instances of legislation directing compensation, and therefore grounding suit in this court, are the statutes providing for military and civilian pay and allowances (which have not, of course, themselves mentioned suit or the right to sue)." Mitchell v. United States, 664 F.2d 265, 268 (Ct. Cl. 1981) (footnote omitted), aff'd, 463 U.S. 206 (1983); see id. at 281 (Nichols J., concurring and dissenting) ("The Supreme Court obviously never intended to withdraw jurisdiction over a class of case where legislation other than the Tucker Act can be said . . . to 'mandate compensation' in money. The references . . . to 'money damages' in connection with rights created outside the Tucker Act . . . (are) a shorthand way of saying the other legislation must mandate the payment of money in terms readily expressible as money damages in case the mandated duty is not performed."). As our petition for a writ of certiorari in Mitchell said (at 14): "(T)he Court of Claims . . . reasoned . . . that the necessary consent to suit may be inferred from a statute that directs payment of a particular sum of money to an individual. With this we have no quarrel, for a statute that creates a right to payment of money can fairly be interpreted as mandating the availability of a damages remedy; without the damages remedy the substantive right would be empty. See, e.g., United States v. Hvoslef, 237 U.S. 1, 10 (1915); Medbury v. United States, 173 U.S. 492, 497 (1899) . . . ." /17/ We observed in our opening brief that res judicata principles usually prohibit a plaintiff from first asserting his equitable claims in one action and then seeking money in a separate action (Pet. Br. 39 n.33). The District of Columbia Circuit recently agreed that preclusion of such belated money claims "would appear to be the expected result under black letter principles." Vietnam Veterans of America v. Secretary of the Navy, No. 86-5547 (D.C. Cir. Mar. 29, 1988), slip op. 13. /18/ Although the powers of the Claims Court are indeed limited in some important ways, they are not as limited as respondent and amici argue. The court has the power "(i)n any case within its jurisdiction" to "remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just" (28 U.S.C. 1491(a)(2)). Respondent and amici correctly note that this power was not intended to allow the Claims Court to enter declaratory and injunctive relief, but they are incorrect in asserting that the power is one that can only be exercised in government contract cases (Resp. Br. 75; Ala. Br. 14 n.18). The impetus for this provision was a set of problems that had arisen in government contract cases (see S. Rep. 92-1066, 92d Cong., 2d Sess. 3 (1972); H.R. Rep. 93-1023, 92d Cong., 2d Sess. 4 (1972)), but the committee reports that respondent and amici cite contain no hint that the congressional intention was to limit use of the remand power to such cases, despite the plain language allowing remand in any case within Claims Court (then Court of Claims) jurisdiction. And in fact, the Court of Claims and Claims Court have frequently used this remand power in cases other than government contract disputes. See, e.g., Rothman v. United States, 219 Ct. Cl. 595, 598 & n.5 (1979) (remand to Department of Health, Education, and Welfare in action for Medicare reimbursement); Hoopa Valley Tribe v. United States, 596 F.2d 435, 447 (Ct. Cl. 1979) (dictum) (in action to recover timber royalties court has power to order remand to Secretary of the Interior); Gratehouse v. United States, 512 F.2d 1104, 1112 (Ct. Cl. 1975) (remand to Civil Service Commission in action for reinstatement and backpay); Long v. United States, 12 Cl. Ct. 174, 176, 177 (1987) (remand to Air Force Board for the Correction of Military records in military pay case); Harris v. United States, 8 Cl. Ct. 299, 303 (1985) (same); see also Erika, Inc. v. United States, 634 F.2d 580, 591 (Ct. Cl. 1980) (remand to insurance carrier in Medicare reimbursement dispute), rev'd on other grounds, 456 U.S. 201 (1982). Of course, the Claims Court cannot bring a case within its jurisdiction by the technique of remanding with directions to award nonmonetary relief that is a prerequisite to monetary relief. United States v. Testan, 424 U.S. 392, 404 & n.7 (1976). But there is no opportunity for such bootstrapping in this case; respondent seeks and is entitled to the payment of money if the services at issue were covered by the Medicaid statute. /19/ We note that, whatever the resolution of the jurisdictional issues before this Court, it would not be appropriate for the Court to do as respondent suggests and remand "with instructions to reinstate the judgments of the district court" (Resp. Br. 105; see also CSG Br. 26). Despite agreeing with the district court on the basic legal question presented by the case, the court of appeals, for reasons independent of jurisdictional defects, found those judgments infirm in part (Pet. App. 7a n.2).