U.S. Supreme Court

Case Status


Docket Number


Lower Court Opinion

U.S. Court of Appeals for the Federal Circuit


Questions Presented

Whether the Federal Circuit erred in holding, in direct conflict with the Tenth Circuit, that a government contractor which has fully performed its end of the bargain has no remedy when a government agency overcommits itself to other projects and, as a result, does not have enough money left in its annual appropriation to pay the contractor.

Case Updates

U.S. Supreme Court clarifies meaning and significance of “availability” clauses in government contracts

June 25, 2012

The U.S. Supreme Court granted the cert. petition, vacated the ruling, and remanded the case in light of Salazar v. Ramah Navajo Chapter.

U.S. Chamber files amicus brief

August 17, 2011

NCLC urged the U.S. Supreme Court to review the Federal Circuit's erroneous decision which effectively held that the federal government may disregard its contractual promise to pay for goods delivered and services rendered whenever the government inserts a clause stating the contract is “subject to the availability of appropriations” and the government exhausts the funding appropriation. The case arises out of the federal government's refusal to pay a health services contractor's indirect support costs, after the government overextended itself and entered into too many contracts. The Federal Circuit ruled that the obligation to pay contractors is “subject to the availability of appropriations” and that there were no available appropriations because Congress had provided that the appropriations available for the funding of contract support costs were “not to exceed” specified amounts. NCLC argued that the Federal Circuit upended the settled understanding of the commonplace “subject to availability of appropriations” clause which the U.S. Supreme Court recently explained“normally makes clear that a contracting party can negotiate a contract prior to the beginning of a fiscal year but that the contract will not become binding unless and until Congress appropriates funds for that year.” If the Federal Circuit's ruling is allowed to stand, the government’s reliability as a contracting partner will be called into question.

Amicus brief filed 8/17/11. GVR'd 6/25/12. Decided 6/25/12.

Case Documents