112 Genesee Street, LLC v. United States

United States Court of Appeals
for the Federal Circuit
______________________
112 GENESEE STREET, LLC, ET AL.
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2025-1373
______________________
Appeal from the United States Court of Federal Claims
in No. 1:23-cv-01876-RAH, Judge Richard A. Hertling.
______________________
Decided: February 4, 2026
______________________
CHARLES MCCLOUD, Williams & Connolly LLP, Wash-
ington, DC, argued for plaintiffs-appellees. Also repre-
sented by FRANK BOWMAN, EDWARD CHARLES REDDINGTON.
MARGARET JANTZEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellant. Also repre-
sented by WILLIAM JAMES GRIMALDI, PATRICIA M.
MCCARTHY, YAAKOV ROTH.
______________________
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112 GENESEE STREET, LLC v. US 2
Before MOORE, Chief Judge, CHEN, Circuit Judge, and
ANDREWS, District Judge.1
MOORE, Chief Judge.
Over three hundred restaurants and businesses (Plain-
tiffs) brought this action against the United States (Gov-
ernment) seeking unpaid grant applications from the
Restaurant Revitalization Fund (RRF). The United States
Court of Federal Claims denied the Government’s motion
to dismiss the complaint for lack of Tucker Act jurisdiction
and failure to state a claim upon which relief may be
granted. For the following reasons, we affirm.
BACKGROUND
I. Statutory Scheme
In the wake of the COVID-19 pandemic, Congress
passed the America Rescue Plan of 2021, establishing the
RRF. 15 U.S.C. § 9009c. Congress required the Small
Business Administration (SBA) to administer the RRF pro-
gram, § 9009c(a)(1), and appropriated $28.6 billion for RRF
grants “[i]n addition to amounts otherwise available,”
§ 9009c(b)(2)(A). Eligible entities included small restau-
rants, bars, and similar types of dining establishments.
§ 9009c(a)(4). The statute directed that “[t]he Administra-
tor shall use amounts in the Fund to make grants,”
§ 9009c(b)(3) (emphasis added), and mandated that the
SBA “shall award grants to eligible entities in the order in
which the applications are received by the Administrator.”
§ 9009c(c)(1) (emphasis added). Congress also directed
that the amounts the SBA paid to recipients “shall be equal
to the pandemic-related revenue loss of the eligible entity.”
§ 9009c(c)(4)(B)(i) (emphasis added).
1 Honorable Richard G. Andrews, District Judge,
United States District Court for the District of Delaware,
sitting by designation.
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The statute required that “[d]uring the covered period,
an eligible entity that receives a grant under this subsec-
tion may use the grant funds for [certain allowable] ex-
penses incurred as a direct result of, or during, the COVID-
19 pandemic.” § 9009c(c)(5). Examples of expenses for
which grant funds could be used include payroll costs,
mortgage or rent payments, utilities, supplies, food and
beverage expenses, and other operational expenses. Id.
“Covered period” was defined as the period beginning Feb-
ruary 15, 2020 and ending December 31, 2021 or a date de-
termined by the Administrator not later than two years
after March 11, 2021. § 9009c(a)(3). The statute also es-
tablished the formula for calculating grant amounts for el-
igible entities where “the gross receipts . . . of the eligible
entity during 2020 [are] subtracted from the gross receipts
of the eligible entity in 2019.” § 9009c(a)(7)(A). The statute
required that if an eligible entity “fails to use all grant
funds or permanently ceases operations on or before the
last day of the covered period, the eligible entity shall re-
turn [the unused grant funds] to the Treasury.”
§ 9009c(c)(6).
In accordance with the statute, the covered period for
RRF grants ended on March 11, 2023, triggering the re-
quirement for entities to return unused funds. J.A. 4.
Three months later, in June 2023, the Fiscal Responsibility
Act, Pub. L. No. 118-5, 137 Stat. 10, became law, rescinding
all unobligated RRF funds. J.A. 7.
II. Procedural Background
Plaintiffs submitted RRF grant applications on the
first day applications were open to the public, but none re-
ceived a grant before the RRF was exhausted, even though
other applicants who applied after Plaintiffs received
grants. J.A. 6. Plaintiffs filed a complaint in the Court of
Federal Claims alleging they were entitled to receive
grants under the RRF and seeking damages in the amount
of the unpaid grants. J.A. 1. Plaintiffs alleged that 15
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112 GENESEE STREET, LLC v. US 4
U.S.C. § 9009c(c)(1) directed the SBA “to ‘award grants to
eligible entities in the order in which applications [were]
received by the Administrator,’ but the SBA instead made
payments to applicants in the order in which it processed
the applications.” J.A. 1. The Government moved to dis-
miss pursuant to Rule of the Court of Federal Claims
(RCFC) 12(b)(1), which the Court of Federal Claims denied.
J.A. 1–34. The court held that “[t]he Administra-
tor . . . was required to use the RRF to make grants under
section 9009c(b)(3), and to do so in the order specified by
section 9009c(c)(1), an order that gave each eligible appli-
cant an individual right to receive payment before any later
applicant. Because the SBA lacked discretion under sec-
tion 9009c as to whether to pay money to specific applicants
who meet the requirements of the statute or as to the
amounts to award a specific applicant, section 9009c can
fairly be read to be money-mandating.” J.A. 22.
The Court of Federal Claims sua sponte raised the is-
sue of whether Plaintiffs failed to state a claim due to a
possible statutory cap on the Government’s liability.
J.A. 27. The Government argued that 15 U.S.C.
§ 9009c(b)(2)(A) established a statutory cap on government
liability, and Plaintiffs argued against the cap. J.A. 27–29.
The court explained the SBA “cannot evade its obligations
by paying the wrong entities out of the RRF and then
claiming there is no money left to pay the plaintiffs, the
text of the statute notwithstanding.” J.A. 32. The court
also explained that “[n]o funding cap exists in section 9009c
to limit the [Government]’s liability for the allegedly illegal
actions of the SBA,” therefore concluding that Plaintiffs
stated a claim upon which relief can be granted. J.A. 33.
The Court of Federal Claims granted the Government’s
motion to certify interlocutory appeal pursuant to 28
U.S.C. § 1292(d)(2), J.A. 35–42, and the Government ap-
peals. We have jurisdiction under 28 U.S.C. § 1292(d).
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112 GENESEE STREET, LLC v. US 5
DISCUSSION
I. Tucker Act Jurisdiction
We review whether the Court of Federal Claims has
subject matter jurisdiction de novo. Lummi Tribe of the
Lummi Rsrv., Washington v. United States, 870 F.3d 1313,
1317 (Fed. Cir. 2017). We also review the Court of Federal
Claims’ statutory interpretation de novo. Id. The plaintiff
bears the burden of establishing subject matter jurisdic-
tion. Id.
“The United States is immune from suit unless it une-
quivocally consents.” Maine Cmty. Health Options v.
United States, 590 U.S. 296, 322 (2020). Under the Tucker
Act, the Government waives sovereign immunity for cer-
tain damages suits in the Court of Federal Claims. Id. The
Tucker Act grants subject matter jurisdiction to the Court
of Federal Claims for “claim[s] against the United States
founded either upon the Constitution, or any Act of Con-
gress or any regulation of an executive department, or upon
any express or implied contract with the United States, or
for liquidated or unliquidated damages in cases not sound-
ing in tort.” 28 U.S.C. § 1491(a)(1).
The Tucker Act does not create “substantive rights,” so
plaintiffs must ground damages claims against the Govern-
ment in “other sources of law” such as “statutes or con-
tracts.” Maine, 590 U.S. at 322 (quoting United States v.
Navajo Nation, 556 U.S. 287, 290 (2009) (cleaned up)). A
statutory claim falls within the Tucker Act’s sovereign im-
munity waiver if it is money-mandating—i.e., if it can
“fairly be interpreted as mandating compensation by the
Federal Government for the damage sustained.” Id. (quot-
ing United States v. White Mountain Apache Tribe, 537
U.S. 465, 472 (2003) (cleaned up)). In particular, “[i]f [the
Court of Federal Claims] can provide an adequate rem-
edy—if a money judgment will give the plaintiff essentially
the remedy he seeks—then the proper forum for resolution
of the dispute is . . . the Court of Federal Claims under the
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Tucker Act.” Suburban Mortg. Assocs., Inc. v. U.S. Dep’t of
Hous. & Urb. Dev., 480 F.3d 1116, 1126 (Fed. Cir. 2007).
The Tucker Act’s sovereign immunity waiver does not ap-
ply, however, “when the obligation-creating statute pro-
vides its own detailed remedies, or when the
Administrative Procedure Act . . . provides an avenue for
relief.” Maine, 590 U.S. at 323–24. In such cases, the stat-
ute is not money-mandating, and the Court of Federal
Claims must dismiss the case for lack of subject matter ju-
risdiction. Greenlee County v. United States, 487 F.3d 871,
876 (Fed. Cir. 2007).
Discerning whether a statutory provision can be “fairly
interpreted” as money-mandating under the Tucker Act in-
volves analyzing a non-exhaustive set of the statutory pro-
vision’s attributes, including: (1) mandatory statutory
language; (2) the nature of the remedy; and (3) whether the
damages are tied to a strings-attached, Government-ad-
ministered program like a grant program. See, e.g., Maine,
590 U.S. at 324–25 (analyzing mandatory statutory lan-
guage and the backwards-looking nature of the remedy
sought by the plaintiffs); Bowen v. Massachusetts, 487 U.S.
879, 905 (1988) (holding a Medicaid grant-in-aid program
non-money-mandating because the state sought “prospec-
tive relief fashioned in light of the rather complex ongoing
relationship between the parties.”). 15 U.S.C. § 9009c
(RRF statute) falls in middle territory not clearly deline-
ated by precedent because it includes features that point
both in favor (e.g., mandatory statutory language and
backwards-looking relief) and against (e.g., payment
through a grant program) it being money-mandating under
the Tucker Act.
A. Mandatory Statutory Language
Mandatory statutory language is “significant” in deter-
mining whether a statute is money-mandating. Maine, 590
U.S. at 324. In Maine, the Supreme Court explained that
“[s]tatutory ‘shall pay’ language often reflects
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112 GENESEE STREET, LLC v. US 7
congressional intent ‘to create both a right and a remedy’
under the Tucker Act.” Id. (quoting Bowen, 487 U.S. at
906, n.42 (cleaned up)). The word “shall,” in particular, is
“[t]he first sign that the statute imposed an obligation.” Id.
at 310. The statute at issue in Maine created a “Risk Cor-
ridors” program, which compensated insurers for losses in-
curred through participating in the Government’s online
health insurance exchange. Id. at 302. The statute in-
cluded a “triple mandate” requiring that the HHS Secre-
tary “shall establish and administer” the Risk Corridors
program, “shall provide” for payment according to the stat-
utory formula, and “shall pay” qualifying insurers, which
the Supreme Court held “falls comfortably within the class
of statutes that permit recovery of money damages in the
Court of Federal Claims.” Id. at 324–25; see also Greenlee
County, 487 F.3d at 877 (“[U]se of the word ‘shall’ generally
makes a statute money-mandating.” (cleaned up)).
Plaintiffs argue that the RRF statute uses mandatory
“shall use,” “shall award,” and “shall be equal” language
analogous to the mandatory statutory language in Maine.
Plaintiffs Br. 15–21 (discussing § 9009c(b)(3), (c)(1), (c)(4)).
We agree. No functional difference exists between “shall
award grants” in § 9009c(c)(1) and “shall pay” in the Risk
Corridors statute from Maine with respect to “‘creat[ing]
both a right and a remedy’ under the Tucker Act.” Maine,
590 U.S. at 324–25. Notably, another pandemic relief pro-
vision, 15 U.S.C. § 9009a, uses non-mandatory “may” lan-
guage, emphasizing the mandatory nature of “shall” in the
RRF statute. See 15 U.S.C. § 9009a(b)(2)(A) (“The Admin-
istrator may make initial grants to eligible persons or enti-
ties” (emphasis added)). And as the Supreme Court
discussed in Maine, when “Congress distinguishes between
‘may’ and ‘shall,’ it is generally clear that ‘shall’ imposes a
mandatory duty.” 590 U.S. at 310–11 (cleaned up). The
mandatory nature of “shall” in the RRF statute therefore
weighs in favor of the statute as money-mandating.
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The Government argues the Court of Federal Claims
erred in concluding the “shall” language in the RRF statute
is like the “shall” language in the Maine Risk Corridors
statute because it “failed to perceive the difference between
the mandatory language needed for Congress to establish
a benefits program and the type of mandatory language
that creates a payment right and a remedy for specified
members of the public.” Government Br. 16. This argu-
ment is unavailing. When analyzing the mandatory nature
of a statutory obligation, it is the “use of the word ‘shall’
[that] generally makes a statute money-mandating,” and
therefore the RRF statute’s use of “shall” weighs in favor of
it establishing a money mandate within Tucker Act juris-
diction. Greenlee County, 487 F.3d at 877 (cleaned up).
And, as explained below, there is no per se rule that stat-
utes establishing benefits programs are not money-man-
dating, and the grant program created by the RRF statute
is not one that takes it out of Tucker Act jurisdiction.
The Government further contends that the Court of
Federal Claims ignored the full wording of section
9009c(c)(1), which it characterizes as merely an “instruc-
tion to award grants in the order in which applications are
received” rather than a “directly stated . . . payment man-
date.” Government Br. 17. That argument fails. Subsec-
tion (b) expressly provides that “[t]he Administrator shall
use amounts in the Fund to make grants described in sub-
section (c).” 15 U.S.C. § 9009c(b)(3). Subsection (c) then
reiterates the payment obligation and specifies the recipi-
ents of those payments. Read as a whole, the statutory text
favors interpreting the statute as money-mandating.
B. Nature of the Remedy
Mandatory statutory language alone is not dispositive
of whether a statutory provision is money-mandating. The
nature of the relief provided by the statute (i.e., retrospec-
tive versus prospective relief) can impact whether a plain-
tiff’s claim for monetary compensation falls within Tucker
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Act jurisdiction. In Bowen, Massachusetts sought payment
from the HHS secretary under the Medicaid Act, which di-
rected “that the Secretary ‘shall pay’ certain amounts for
appropriate Medicaid services.” 487 U.S. at 900–01 (de-
scribing § 1396b(a) of the Medicaid Act). Despite the “shall
pay” language of the statute, Massachusetts’ suit was “not
a suit seeking money in compensation for the damage sus-
tained by the failure of the Federal Government to pay as
mandated; rather, it is a suit seeking to enforce the statu-
tory mandate itself, which happens to be one for the pay-
ment of money.” Id. (emphasis in original). The Supreme
Court held that the Court of Federal Claims lacked juris-
diction because Massachusetts sought prospective, specific
relief rather than retrospective monetary damages. Id. at
910. The Court explained that “[d]amages are given to the
plaintiff to substitute for a suffered loss, whereas specific
remedies are not substitute remedies at all, but attempt to
give the plaintiff the very thing to which he was entitled.”
Id. at 895 (quoting Maryland Dep’t of Hum. Res. v. Dep’t of
Health & Hum. Servs., 763 F.2d 1441, 1446 (D.C. Cir. 1985)
(internal citation omitted) (emphasis in original)). Massa-
chusetts therefore should have brought its claim in district
court under the Administrative Procedure Act (APA). Id.
at 882–87, 901–05. As another example of prospective re-
lief that was not money-mandating, in Katz v. Cisneros, the
plaintiff housing developer challenged the Department of
Housing and Urban Development’s (HUD) interpretation
of contract rents for low-income housing projects. 16 F.3d
1204, 1206 (Fed. Cir. 1994). We held the plaintiff’s claims
fell outside Tucker Act jurisdiction because the developer
“unmistakably ask[ed] for prospective relief” since “[a]n ad-
judication of the lawfulness of HUD’s regulatory interpre-
tation will have future impact on the ongoing relationship
between the parties.” Id. at 1209.
By contrast, the Risk Corridors statute in Maine was
money-mandating, and the Court of Federal Claims pos-
sessed jurisdiction, because “it focus[ed] on compensating
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112 GENESEE STREET, LLC v. US 10
insurers for past conduct” rather than “‘subsidiz[ing] fu-
ture state expenditures.’” Maine, 590 U.S. at 325 (quoting
Bowen, 487 U.S. at 905 n.42). The Risk Corridors statute
fit “securely in the first category” because “[i]t uses a back-
wards-looking formula to compensate insurers for losses
incurred in providing healthcare coverage.” Id.; see San-
ford Health Plan v. United States, 969 F.3d 1370, 1381
(Fed. Cir. 2020) (concluding that a statute providing reim-
bursements to health insurers for cost-sharing reductions
was money-mandating based on its “shall pay” language
and the backwards-looking obligation “for expenses al-
ready incurred”); Kanemoto v. Reno, 41 F.3d 641, 645 (Fed.
Cir. 1994) (holding that the grant of restitution to those of
Japanese ancestry placed in internment camps during
World War II under the Civil Liberties Act of 1988 to be
money-mandating because unlike Bowen, “a ‘naked money
judgment’ would provide Kanemoto an adequate remedy.”).
Plaintiffs argue that the RRF statute is money-man-
dating because the statute awarded RRF grants according
to a backwards-looking statutory formula compensating el-
igible entities for pandemic-related losses. Plaintiffs
Br. 28–41. According to Plaintiffs, the RRF statute is like
the money-mandating Risk Corridors statute at issue in
Maine as it “focus[es] on compensating” recipients “for past
conduct” rather than “subsidiz[ing] future state expendi-
tures.” Plaintiffs Br. 29 (citing 590 U.S. at 325 (cleaned
up)). We agree. The RRF statute, which Congress passed
in 2021, established a formula for calculating “pandemic-
related revenue loss” as “the gross receipts . . . of the eligi-
ble entity during 2020 subtracted from the gross receipts of
the eligible entity in 2019.” § 9009c(a)(7). The backwards-
looking nature of the statute confirms that, like the insur-
ers in Maine, “[Plaintiffs] do not ask for prospective, non-
monetary relief to clarify future obligations; they seek
specific sums already calculated, past due, and designed to
compensate for completed labors.” 590 U.S. at 327.
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Relying on Katz, the Government argues that “regard-
less of the characterization of the case by [P]laintiffs [as a
claim for retrospective relief], [we] must ‘look to the true
nature of the action in determining the existence or not of
jurisdiction.” Government Br. 44–45 (quoting 16 F.3d at
1207). The Government argues that “[P]laintiffs’ legal the-
ory is necessarily ‘forward-looking’ and invokes equitable
relief” because “the source of [P]laintiffs[’] alleged injury is
the method SBA employed to award grants.” Reply Br. 9.
The Government also admits, however, that “how the
agency would calculate the amount of a grant award” is
“backward[s]-looking.” Reply Br. 16. It is this backwards-
looking nature of the grant awards that distinguishes this
case from Katz, where the plaintiff sought “prospective re-
lief” that would “have future impact on the ongoing rela-
tionship between the parties.” 16 F.3d at 1209. The
situation here where Plaintiffs seek retrospective “money
in compensation for the damage sustained” by the govern-
ment-ordered shutdowns during the COVID-19 pandemic
is similarly distinguishable from Bowen where Massachu-
setts sought payment for Medicaid services as prospective,
specific relief. 487 U.S. at 900–01 (emphasis in original).
Moreover, the RRF statute defined the “covered period”
as the period “beginning February 15, 2020” and “ending
on December 31, 2021, or a date to be determined by the
Administrator that is not later than 2 years after March
11, 2021” during which an eligible entity “may use the
grant funds for [certain enumerated] expenses incurred as
a direct result of, or during the COVID-19 pandemic.”
§ 9009c(a)(3), (c)(5). That the covered period began on Feb-
ruary 15, 2020, before the RRF program’s existence, shows
Congress contemplated the statutory remedy as retrospec-
tive relief for “expenses already incurred” by eligible enti-
ties. Sanford Health, 969 F.3d at 1381. The backwards-
looking nature of the statutory remedy therefore weighs in
favor of the RRF statute being money-mandating within
Tucker Act jurisdiction.
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C. Grant Programs
Statutes that award monetary benefits through grant
programs establishing strings-attached funding require-
ments or requiring ongoing Government relationships in
administration of the grant programs may not be money-
mandating. For example, in Bowen, the Medicaid statute
at issue established a grant-in-aid program with a “rather
complex ongoing relationship between the parties” such
that the relief Massachusetts sought was prospective, spe-
cific relief “requir[ing] the Secretary to modify future prac-
tices” rather than a naked money judgment. Bowen, 487
U.S. at 905. In Lummi, Indian tribes sought monetary re-
lief at the Court of Federal Claims under the Native Amer-
ican Housing Assistance and Self-Determination Act of
1996 (NAHASDA), which created a grant program provid-
ing direct funding to Indian tribes to provide affordable
housing to tribe members. 870 F.3d at 1315. The statute
required that the “[HUD] Secretary ‘shall . . . make grants’
and ‘shall allocate any amounts’ among Indian tribes that
comply with certain requirements” according to a formula
based on the number of low-income housing units and
amount of economic distress within a tribal area. Id. at
1315–16 (quoting 25 U.S.C. §§ 4111, 4151). We held the
statute was not money-mandating because “the underlying
claim is not for presently due money damages. It is for
larger strings-attached NAHASDA grants—including sub-
sequent supervision and adjustment—and, hence, for equi-
table relief.” Id. at 1319.
Further, in National Center For Manufacturing Sci-
ences v. United States, a non-profit research and develop-
ment consortium, NCMS, sought distribution of funds
under a cooperative research agreement with the Air Force
established by the Defense Appropriations Act of 1994 (Ap-
propriations Act). 114 F.3d 196, 197–98 (Fed. Cir. 1997).
Comparing the facts to those in Bowen, we concluded the
Appropriations Act was not money-mandating because
“[l]ike the grant-in-aid applicants referred to in Bowen v.
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112 GENESEE STREET, LLC v. US 13
Massachusetts, NCMS is seeking funds to which it claims
it is entitled under a statute; it is not seeking money in
compensation for losses that it has suffered or will suffer
as a result of the withholding of those funds.” Id. at 200.
Moreover, the Cooperative Agreement established by the
Appropriations Act “contemplates a cooperative, ongoing
relationship between NCMS and the Air Force in the allo-
cation and use of the funds” so NCMS “would not be enti-
tled to a monetary judgment that would allow it to use the
funds appropriated under the Act for any purpose, without
restriction.” Id. at 201. We therefore concluded that “a
simple money judgment issued by the Court of Federal
Claims would not be an appropriate remedy.” Id.
The Government asserts that the RRF statute is not
money-mandating because it establishes a grant program,
which is like the statutes in Lummi and National Center
that established non-money-mandating, strings-attached
grant programs. Government Br. 30–34. The Government
argues that our logic in Lummi is applicable to the situa-
tion here because “[Plaintiffs’] only alleged harm is that
they did not receive RRF grants because SBA arbitrarily
and capriciously misallocated the funding to other entities
who applied later in time.” Government Br. 31. The Gov-
ernment also asserts that, like in Lummi, where the plain-
tiffs relied on mandatory statutory language and lack of
discretion in awarding grants, “Plaintiffs[] do not make a
claim for presently due money-damages, but to obtain com-
pensation for not receiving a strings-attached grant.” Gov-
ernment Br. 32. The Government also argues the facts
here are like those in National Center because a simple
money judgment “would allow [P]laintiffs[] to avoid the
strings-attached nature of the RRF program and its re-
quirement to use or give back the funds by the end of the
‘covered period’” when the RRF statute “does not entitle
[P]laintiffs[] to receive a payment . . . for any purpose,
without restriction.” Government Br. 33–34. The Govern-
ment similarly analogizes Plaintiffs’ claim to that in
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112 GENESEE STREET, LLC v. US 14
Bowen, arguing it “is dissimilar to a genuine Tucker Act
claim” because “[Plaintiffs] seek to obtain money by having
a court enforce the statutory mandate for SBA to award
grants in the order that applications were received.” Gov-
ernment Br. 43.
We agree with the Government that the RRF statute’s
establishment of a grant program weighs against it being
money-mandating. We do not hold, however, that there is
a per se rule that grant programs or programs providing
benefits in the absence of government-caused harm are not
money-mandating. In Star-Glo, the Court of Federal
Claims possessed jurisdiction over the plaintiffs’ claims
that they were entitled to federal funds in the absence of
any government-caused harm where Congress had appro-
priated funds to pay Florida citrus grove owners whose
crops had been affected by citrus canker. Star-Glo Assocs.,
LP v. United States, 414 F.3d 1349, 1351, 1353 (Fed. Cir.
2005). Rather, we must look to the nature of the grant pro-
gram when analyzing whether a statutory provision is
money-mandating, which includes assessing the nature of
the strings attached to the grant funding and the relation-
ship between the Government and grantee carrying out the
grant. See Bowen, 487 U.S. at 905 (“We are not willing to
assume, categorically, that a naked money judgment
against the United States will always be an adequate sub-
stitute for prospective relief fashioned in light of the rather
complex ongoing relationship between the parties.”);
Lummi, 870 F.3d at 1318–19 (explaining that the Plaintiffs
Tribes’ claims for a “nominally greater strings-attached
disbursement” fell outside Tucker Act jurisdiction because
“the disbursement of funds [was] so thoroughly scruti-
nized” based on NAHASDA’s requirement that grant funds
be used to purchase property that must be “held in trust”
by the Tribes); National Center, 114 F.3d at 201 (“The [Ap-
propriations] Act thus contemplates a cooperative, ongoing
relationship between NCMS and the Air Force in the allo-
cation and use of the funds[,]” and “[t]he Cooperative
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112 GENESEE STREET, LLC v. US 15
Agreement reflects this ongoing relationship[,]” “in which
the government is to be ‘an active participant’ . . . .”).
The nature of the grant program here is unlike those
in Bowen, Lummi, and National Center. The RRF statute
required that grant funds be used for certain types of busi-
ness expenses during the covered period or be returned.
§ 9009c(a)(3) (defining “covered period”), (c)(6) (requiring
that unused grant funds be returned to the Treasury),
(c)(5) (enumerating allowable uses for grant funds). The
Government argues that “[a]llowing [P]laintiffs[] to receive
money damages equal to the amounts sought in their un-
paid grant applications would allow [P]laintiffs[] to avoid
the strings-attached nature of the RRF program and its re-
quirement to use or give back the funds by the end of the
‘covered period.’” Government Br. 33 (cleaned up). None
of these restrictions on the use of grant money in the RRF
statute, however, requires ordering the Government to
take action under the statute to maintain a complex, stat-
utorily created relationship between the Government and
the grantee. Moreover, like the Risk Corridors statute in
Maine, “because the [RRF grant] program expired years
ago, this litigation presents no special concern about man-
aging a complex ongoing relationship or tracking ever-
changing accounting sheets. [Plaintiffs’] suit thus lies in
the Tucker Act’s heartland.” 590 U.S. at 327. The grant
program established by the RRF statute ended on March
11, 2023 with the expiration of the covered period, and
Plaintiffs alleged that they incurred allowable expenses
during the covered period that they paid out of pocket when
the SBA failed to properly award them RRF grants.
J.A. 83. In contrast to other grant cases where injunctive
relief was the only form of meaningful relief, Plaintiffs here
can obtain “an adequate remedy” through a claim for
money damages at the Court of Federal Claims. Suburban
Mortgage, 430 F.3d at 1125.
Weighing all of these attributes, we conclude that the
RRF statute can be “fairly interpreted” as money-
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112 GENESEE STREET, LLC v. US 16
mandating. The mandatory “shall award” statutory lan-
guage and backwards-looking nature of the damages calcu-
lation weigh in favor of the RRF statute being money-
mandating. And while the statute established a grant pro-
gram, the strings attached to the grant program that has
already expired do not weigh heavily enough against being
money-mandating to take the RRF statute out of Tucker
Act jurisdiction. For these reasons, we hold the RRF stat-
ute is money-mandating.
II Statutory Limit on Liability
We review the Court of Federal Claims’ denial of a mo-
tion to dismiss for failure to state a claim de novo. Boaz
Hous. Auth. v. United States, 994 F.3d 1359, 1364 (Fed. Cir.
2021).
Once the Court of Federal Claims concludes it has sub-
ject matter jurisdiction based on a money-mandating stat-
ute, it must determine whether Plaintiffs have established
they are entitled to relief under that statute. Greenlee
County, 487 F.3d at 876–77. Congress can create statutory
obligations on the Government that mature into legal lia-
bilities. Maine, 590 U.S. at 310. And when Congress cre-
ates a statutory payment obligation on the Government,
lack of available funds for the money-mandating program
does not necessarily cancel its obligation. The Supreme
Court in Maine explained that agencies can incur an obli-
gation to pay regardless of whether Congress appropriates
the funds necessary to pay for that obligation. Id. at 308–
09. In that case, the Court rejected the Government’s ar-
gument that its liability under the Risk Corridors program
was limited to amounts collected from profitable insurance
plans because “an appropriation per se merely imposes lim-
itations upon the Government’s own agents, but its insuf-
ficiency does not pay the Government’s debts, nor cancel its
obligations.” Id. at 312 (cleaned up).
Statutory language may limit the Government’s liabil-
ity to the amount appropriated by Congress, but “the mere
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112 GENESEE STREET, LLC v. US 17
failure of Congress to appropriate funds, without further
words modifying or repealing, expressly or by clear impli-
cation, the substantive law, does not in and of itself defeat
a Government obligation created by statute.” Greenlee
County, 487 F.3d at 877–78 (quoting N.Y. Airways, Inc. v.
United States, 369 F.2d 743, 748 (Ct. Cl. 1966) (internal
quotations omitted)). Congress has commonly used the
phrase “subject to the availability of appropriations” to re-
strict government liability to appropriated funds. Greenlee
County, 487 F.3d at 878. Other statutory language can also
be liability-limiting. In Greenlee County, the Payment in
Lieu of Taxes Act (PILT) compensated local governments
for loss of tax revenue due to the tax-immune status of fed-
eral lands located in their jurisdictions and directed that
“[a]mounts are available only as provided in appropriation
laws.” Id. at 873–74. We concluded based on this statutory
language that Congress intended to limit the Government’s
liability to amounts Congress appropriated. Id. at 878; see
Prairie Cnty., Montana v. United States, 782 F.3d 685, 691
(Fed. Cir. 2015) (similarly affirming dismissal of plaintiffs’
claims due to PILT’s liability cap). Star-Glo also addressed
a statute with liability-limiting language, where we held
that a statute directing the Secretary of Agriculture to com-
pensate farmers for citrus trees lost due to canker with
“$58,000,000 of the funds of the Commodity Credit Corpo-
ration . . . to remain available until expended,” Pub. L. No.
106-387 § 810(e) (2000), capped the Government’s liability
at $58,000,000. 414 F.3d at 1352. We concluded that Con-
gress meant to cap the Government’s liability at “not more
than $58,000,000.” Star-Glo, 414 F.3d at 1355 (emphasis
in original).
The Government argues that Plaintiffs cannot state a
claim upon which relief can be granted because “[a]ny obli-
gation or liability under the RRF program was capped at
$28.6 billion. This money has already been expended and
Congress has demonstrated its intent that no further
money should be spent by defunding the RRF program.”
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112 GENESEE STREET, LLC v. US 18
Government Br. 48. Plaintiffs, on the other hand, argue
that “[h]ad the [SBA] followed the statute and properly rec-
orded obligations in the order applications were received,
funds for Plaintiffs’ awards would have been reserved
within the fixed appropriation.” Plaintiffs Br. 63. Plain-
tiffs have the better argument. The Government’s obliga-
tion to pay Plaintiffs attached when their applications were
received, § 9009c(c)(1), and even the Government does not
argue that funds would not have been available to award
Plaintiffs grants if the SBA had disbursed funds properly.
Plaintiffs are correct that SBA’s “unlawful failure to award
grants to Plaintiffs required them to cover allowable ex-
penses out of their own pockets rather than with the grant
funds they should have received.” Plaintiffs Br. 67. The
RRF statute therefore created an obligation for the Govern-
ment to pay Plaintiffs when SBA received Plaintiffs’ grant
applications.
The Government also argues that the statutory lan-
guage “[i]n addition to amounts otherwise available” to-
gether with a specific dollar amount, “$28.6 billion,”
“creates a clear limit on the amount to be expended.” Gov-
ernment Br. 48 (citing § 9009c(b)(2)(A)). We do not agree
that 15 U.S.C. § 9009c(b)(2)(A) clearly limits the Govern-
ment’s liability. “In addition to amounts otherwise availa-
ble” is ambiguous. We agree with the trial court that this
language is “more ambiguous” than the statutory text at
issue in cases like Star-Glo and Greenlee County. J.A. 31;
see Greenlee County, 487 F.3d at 874 (statute directing that
“[a]mounts are available only as provided in appropriation
laws.”); Star-Glo, 414 F.3d at 1352 (statute compensating
farmers with “$58,000,000 . . . to remain available until ex-
pended”). We also do not agree with the Government that
“in addition to amounts otherwise available” is like other
examples of liability-limiting language cited in Maine.
Government Br. 49 (citing 590 U.S. at 313 n.7). None of
the examples cited in Maine or any other case the Govern-
ment relies on uses the same language as in 15
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112 GENESEE STREET, LLC v. US 19
U.S.C. § 9009c(b)(2)(A) and cannot be used to manufacture
a liability cap when there is none.
We therefore conclude that Plaintiffs have stated a
claim upon which relief may be granted because they plau-
sibly allege their grant applications were received before
the SBA expended the RRF funds, creating a Government
obligation to pay, and the statute’s ambiguous appropria-
tions language does not defeat this obligation.
CONCLUSION
We have considered the Government’s remaining argu-
ments and find them unpersuasive. We affirm the decision
of the Court of Federal Claims denying the Government’s
motion to dismiss because Plaintiffs have stated a claim
within the Tucker Act’s jurisdiction.
AFFIRMED
COSTS
Costs to appellees.
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