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U.S. Supreme Court
UNITED STATES v. WINSTAR CORP. et al., ___ U.S. ___ (1996)
UNITED STATES
v.
WINSTAR CORP. et al.
Certiorari to the United States Court of Appeals for the Federal Circuit.
No. 95-865.
Argued April 24, 1996
Realizing that the Federal Savings and Loan Insurance Corporation (FSLIC) lacked the funds to liquidate all of the failing thrifts during the savings and loan crisis of the 1980's, the Federal Home Loan Bank Board encouraged healthy thrifts and outside investors to take over ailing thrifts in a series of "supervisory mergers." As inducement, the Bank Board agreed to permit acquiring entities to designate the excess of the purchase price over the fair value of identifiable assets as an intangible asset referred to as supervisory goodwill, and to count such goodwill and certain capital credits toward the capital reserve requirements imposed by federal regulations. Congress's subsequent passage of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) forbade thrifts from counting goodwill and capital credits in computing the required reserves. Respondents are three thrifts created by way of supervisory mergers. Two of them were seized and liquidated by federal regulators for failure to meet FIRREA's capital requirements, and the third avoided seizure through a private recapitalization. Believing that the Bank Board and FSLIC had promised that they could count supervisory goodwill toward regulatory capital requirements, respondents each filed suit against the United States in the Court of Federal Claims, seeking damages for, inter alia, breach of contract. In granting each respondent summary judgment, the court held that the Government had breached its contractual obligations, and rejected the Government's ``unmistakability defense''-that surrenders of sovereign authority, such as the promise to refrain from regulatory changes, must appear in unmistakable terms in a contract in order to be enforceable, see Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 52 -and its ``sovereign act defense-that a ``public and general'' sovereign act, such as FIRREA's alteration of capital reserve requirements, could not trigger contractual liability, see Horowitz v. United States, 267 U. S. 458, 461. The cases were consolidated, and the en banc Federal Circuit ultimately affirmed.
Held:
The judgment is affirmed, and the case is remanded. 64 F. 3d 1531, affirmed and remanded.
Justice Souter, joined by Justice Stevens, Justice O'Connor, and Justice Breyer, concluded in Parts II, III, IV, and IV-C, that the United States is liable to respondents for breach of contract. Pp. 19-57; 66-72.
(a) There is no reason to question the Federal Circuit's conclusion that the Government had express contractual obligations to permit respondents to use goodwill and capital credits in computing their regulatory capital reserves. When the law as to capital requirements changed, the Government was unable to perform its promises and became liable for breach under ordinary contract principles. Pp. 19-30.
(b) The unmistakability doctrine is not implicated here because enforcement of the contractual obligation alleged would not block the Government's exercise of a sovereign power. The courts below did not construe these contracts as binding the Government's exercise of authority to modify its regulation of thrifts, and there has been no demonstration that awarding damages for breach would be tantamount to such a limitation. They read the contracts as solely risk-shifting agreements, and respondents seek nothing more than the benefit of promises by the Government to insure them against any losses arising from future regulatory change. Applying the unmistakability doctrine to such contracts would not only represent a conceptual expansion of the doctrine beyond its historical and practical warrant, but would compromise the Government's practical capacity to make contracts, which is "of the essence of sovereignty" itself, United States v. Bekins, 304 U.S. 27, 51 -52. Pp. 31-48.
its two related ultra vires contentions: that, under the reserved powers doctrine, Congress's power to change the law in the future was an essential attribute of its sovereignty that the Bank Board and FSLIC had no authority to bargain away; and that in any event no such authority can be conferred without an express delegation to that effect. A contract to adjust the risk of subsequent legislative change does not strip the Government of its legislative sovereignty, and the contracts did not surrender the Government's sovereign power to regulate. And there is no serious question that FSLIC (and the Bank Board acting through it) lacked authority to guarantee respondents against losses arising from subsequent regulatory changes. Pp. 49-52.
(d) The facts of this case do not warrant application of the sovereign act doctrine. That doctrine balances the Government's need for freedom to legislate with its obligation to honor its contracts by asking whether the sovereign act is properly attributable to the Government as contractor. If the answer is no, the Government's defense to liability depends on whether that act would otherwise release the Government from liability under ordinary contract principles. Pp. 52-57.
(e) Even if FIRREA were to qualify as a "public and general" act, the sovereign act doctrine cannot excuse the Government's breach here. Since the object of the doctrine is to place the Government as contractor on par with a private contractor in the same circumstances, Horowitz v. United States, 267 U. S., at 461, the Government, like any other defending party in a contract action, must show that passage of the statute rendering its performance impossible was an event contrary to the basic assumptions on which the parties agreed, and, ultimately, that the language or circumstances do not indicate that the Government should be liable in any case. The Government has not satisfied these conditions. There is no doubt that some changes in the regulatory structure governing thrift capital reserves were both foreseeable and likely when the parties contracted with the Government. In addition, any governmental contract that not only deals with regulatory change but allocates the risk of its occurring will, by definition, fail the further condition of a successful impossibility defense, for it will indeed indicate that the parties' agreement was not meant to be rendered nugatory by a change in the regulatory law. That the Bank Board and FSLIC could not themselves preclude Congress from changing the regulatory rules does not stand in the way of concluding that those agencies assumed the risk of such change, for determining the consequences of legal change was the point of the agreements. Pp. 66-72.
Justice Souter, joined by Justice Stevens and Justice Breyer, concluded in Parts IV-A and IV-B, that, since the Government should not be excused by legislation when the substantial effect of regulation was to help itself out of improvident agreements, it is impossible to attribute the exculpatory "public and general" character to FIRREA. That statute not only had the purpose of eliminating the very accounting "gimmicks" that acquiring thrifts had been promised, but the congressional debates indicate Congress's expectation, which there is no reason to question, that FIRREA would have a substantial effect on the Government's contractual obligations. The evidence of Congress's intense concern with contracts like those at issue is not neutralized by the fact that FIRREA did not formally target particular transactions or by FIRREA's broad purpose to advance the general welfare. Pp. 58-65.
Justice Scalia, joined by Justice Kennedy and Justice Thomas, agreed that the Government was contractually obligated to afford respondents favorable accounting treatment, and violated its obligations when it discontinued that treatment under FIRREA. The Government's sovereign defenses cannot be avoided by characterizing its obligations as not entailing a limitation on the exercise of sovereign power; that approach, although adopted by the plurality, is novel and fails to acknowledge that virtually every contract regarding future conduct operates as an assumption of liability in the event of nonperformance. Accordingly, it is necessary to address the Government's various sovereign defenses, particularly its invocation of the ``unmistakability'' doctrine. That doctrine simply embodies the commonsense presumption that governments do not ordinarily agree to curtail their sovereign or legislative powers. Respondents have overcome that presumption here in establishing that the Government promised, in unmistakable terms, to regulate them in a particular fashion, into the future. The Government's remaining arguments are readily rejected. The ``reserved powers'' doctrine cannot defeat a claim to recover damages for breach of contract where subsequent legislation has sought to minimize monetary risks assumed by the Government. The ``express delegation'' doctrine is satisfied here by the statutes authorizing the relevant federal bank regulatory agencies to enter into the agreements at issue. Finally, the ``sovereign acts'' doctrine adds little, if anything, to the ``unmistakability'' doctrine, and cannot be relied upon where the Government has attempted to abrogate the essential bargain of the contract. Pp. 1-6.
Souter, J., announced the judgment of the Court and delivered an opinion, in which Stevens and Breyer, JJ., joined, and in which O'Connor, J., joined except as to Parts IV-A and IV-B. Breyer, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in the judgment, in which Kennedy and Thomas, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Ginsburg, J., joined as to Parts I, III, and IV.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
[End of Syllabus]
U.S. Supreme Court
No. 95-865UNITED STATES, PETITIONER v. WINSTAR CORPORATION et al.
The issue in this case is the enforceability of contracts between the Government and participants in a regulated industry, to accord them particular regulatory treatment in exchange for their assumption of liabilities that threatened to produce claims against the Government as insurer. Although Congress subsequently changed the relevant law, and thereby barred the Government from specifically honoring its agreements, we hold that the terms assigning the risk of regulatory change to the Government are enforceable, and that the Government is therefore liable in damages for breach.
I.
A.
The resulting regulatory regime worked reasonably well until the combination of high interest rates and inflation in the late 1970's and early 1980's brought about a second crisis in the thrift industry. Many thrifts found themselves holding long-term, fixed-rate mortgages created when interest rates were low; when market rates rose, those institutions had to raise the rates they paid to depositors in order to attract funds. See House Report, at 294-295. When the costs of short-term deposits overtook the revenues from long-term mortgages, some 435 thrifts failed between 1981 and 1983. House Report, at 296; see also General Accounting Office, Thrift Industry: Forbearance for Troubled Institutions 1982-1986, p. 9 (May 1987) (GAO, Forbearance for Troubled Institutions) (describing the origins of the crisis).
The first federal response to the rising tide of thrift failures was "extensive deregulation," including "a rapid expansion in the scope of permissible thrift investment powers and a similar expansion in a thrift's ability to compete for funds with other financial services providers." House Report, at 291; see also id., at 295-297; Breeden, Thumbs on the Scale: The Role that Accounting Practices Played in the Savings and Loan Crisis, 59 Fordham L. Rev. S71, S72-S74 (1991) (describing legislation permitting nonresidential real estate lending by thrifts and deregulating interest rates paid to thrift depositors). 1 Along with this deregulation came moves to weaken the requirement that thrifts maintain adequate capital reserves as a cushion against losses, see 12 CFR Section(s) 563.13 (1981), a requirement that one commentator described as "the most powerful source of discipline for financial institutions." Breeden, supra, at S75. The result was a drop in capital reserves required by the Bank Board from five to four percent of assets in November 1980, see 45 Fed. Reg. 76111, and to three percent in January of 1982, see 47 Fed. Reg. 3543; at the same time, the Board developed new "regulatory accounting principles" (RAP) that in many instances replaced generally accepted accounting principles (GAAP) for purposes of determining compliance with its capital requirements. 2 According to the House Banking Committee, "[t]he use of various accounting gimmicks and reduced capital standards masked the worsening financial condition of the industry, and the FSLIC, and enabled many weak institutions to continue operating with an increasingly inadequate cushion to absorb future losses." House Report, at 298. The reductions in required capital reserves, moreover, allowed thrifts to grow explosively without increasing their capital base, at the same time deregulation let them expand into new (and often riskier) fields of investment. See Note, Causes of the Savings and Loan Debacle, 59 Fordham L. Rev. S301, S311 (1991); Breeden, supra, at S74-S75.
While the regulators tried to mitigate the squeeze on the thrift industry generally through deregulation, the multitude of already-failed savings and loans confronted FSLIC with deposit insurance liabilities that threatened to exhaust its insurance fund. See Olympic Federal Savings and Loan Assn. v. Director, Office of Thrift Supervision, 732 F. Supp. 1183, 1185 (DC 1990). According to the General Accounting Office, FSLIC's total reserves declined from $6.46 billion in 1980 to $4.55 billion in 1985, GAO, Forbearance for Troubled Institutions 12, when the Bank Board estimated that it would take $15.8 billion to close all institutions deemed insolvent under generally accepted accounting principles. General Accounting Office, Troubled Financial Institutions: Solutions to the Thrift Industry Problem 108 (Feb. 1989) (GAO, Solutions to the Thrift Industry Problem). By 1988, the year of the last transaction involved in this case, FSLIC was itself insolvent by over $50 billion. House Report, at 304. And by early 1989, the GAO estimated that $85 billion would be needed to cover FSLIC's responsibilities and put it back on the road to fiscal health. GAO, Solutions to the Thrift Industry Problem 43. In the end, we now know, the cost was much more even than that. See, e.g., Horowitz, The Continuing Thrift Bailout, Investor's Business Daily, Feb. 1, 1996, p. A1 (reporting an estimated $140 billion total public cost of the S&L crisis through 1995).
Realizing that FSLIC lacked the funds to liquidate all of the failing thrifts, the Bank Board chose to avoid the insurance liability by encouraging healthy thrifts and outside investors to take over ailing institutions in a series of "supervisory mergers." See GAO, Solutions to the Thrift Industry Problem 52; L. White, The S&L Debacle: Public Policy Lessons for Bank and Thrift Regulation 157 (1991) (White). 3 Such transactions, in which the acquiring parties assumed the obligations of thrifts with liabilities that far outstripped their assets, were not intrinsically attractive to healthy institutions; nor did FSLIC have sufficient cash to promote such acquisitions through direct subsidies alone, although cash contributions from FSLIC were often part of a transaction. See M. Lowy, High Rollers: Inside the Savings and Loan Debacle 37 (1991) (Lowy). Instead, the principal inducement for these supervisory mergers was an understanding that the acquisitions would be subject to a particular accounting treatment that would help the acquiring institutions meet their reserve capital requirements imposed by federal regulations. See Investigation of Lincoln Savings & Loan Assn.: Hearing Before the House Committee on Banking, Finance, and Urban Affairs, 101st Cong., 1st Sess., pt. 5, p. 447 (1989) (testimony of M. Danny Wall, Director, Office of Thrift Supervision) (noting that acquirers of failing thrifts were allowed to use certain accounting methods "in lieu of [direct] federal financial assistance").
B.
- "The Bank Board . . . . did not have sufficient resources to close all insolvent institutions, [but] at the same time, it had to consolidate the industry, move weaker institutions into stronger hands, and do everything possible to minimize losses during the transition period. Goodwill was an indispensable tool in performing this task." Savings and Loan Policies in the Late 1970's and 1980's: Hearings Before the House Committee on Banking, Finance, and Urban Affairs, 101st Cong., 2d Sess., No. 101-176, p. 227 (1990).
6
A second and more complicated incentive arose from the decision by regulators to let acquiring institutions amortize the goodwill asset over long periods, up to the forty-year maximum permitted by GAAP, see Accounting Principles Board Opinion No. 17, Para(s) 29, p. 340 (1970). Amortization recognizes that intangible assets such as goodwill are useful for just so long; accordingly, a business must "write down" the value of the asset each year to reflect its waning worth. See Kay & Searfoss, supra, at 15-36 to 15-37; Accounting Principles Board Opinion No. 17, supra, Para(s) 27, at 339-340. 7 The amount of the write down is reflected on the business's income statement each year as an operating expense. See generally E. Faris, Accounting and Law in a Nutshell Section(s) 12.2(q) (1984) (describing amortization of goodwill). At the same time that it amortizes its goodwill asset, however, an acquiring thrift must also account for changes in the value of its loans, which are its principal assets. The loans acquired as assets of the failed thrift in a supervisory merger were generally worth less than their face value, typically because they were issued at interest rates below the market rate at the time of the acquisition. See Black, Ending Our Forebearers' Forbearances: FIRREA and Supervisory Goodwill, 2 Stan. L. & Policy Rev. 102, 104-105 (1990). This differential or "discount," J. Rosenberg, Dictionary of Banking and Financial Services 233 (2d ed. 1985), appears on the balance sheet as a "contra-asset" account, or a deduction from the loan's face value to reflect market valuation of the asset, R. Estes, Dictionary of Accounting 29 (1981). Because loans are ultimately repaid at face value, the magnitude of the discount declines over time as redemption approaches; this process, technically called "accretion of discount," is reflected on a thrift's income statement as a series of capital gains. See Rosenberg, supra, at 9; Estes, supra, at 39-40.
The advantage in all this to an acquiring thrift depends upon the fact that accretion of discount is the mirror image of amortization of goodwill. In the typical case, a failed thrift's primary assets were long-term mortgage loans that earned low rates of interest and therefore had declined in value to the point that the thrift's assets no longer exceeded its liabilities to depositors. In such a case, the disparity between assets and liabilities from which the accounting goodwill was derived was virtually equal to the value of the discount from face value of the thrift's outstanding loans. See Black, 2 Stan. L. & Policy Rev., at 104-105. Thrift regulators, however, typically agreed to supervisory merger terms that allowed acquiring thrifts to accrete the discount over the average life of the loans (approximately seven years), see id., at 105, while permitting amortization of the goodwill asset over a much longer period. Given that goodwill and discount were substantially equal in overall values, the more rapid accrual of capital gain from accretion resulted in a net paper profit over the initial years following the acquisition. See ibid.; Lowy 39-40. 8 The difference between amortization and accretion schedules thus allowed acquiring thrifts to seem more profitable than they in fact were.
Some transactions included yet a further inducement, described as a "capital credit." Such credits arose when FSLIC itself contributed cash to further a supervisory merger and permitted the acquiring institution to count the FSLIC contribution as a permanent credit to regulatory capital. By failing to require the thrift to subtract this FSLIC contribution from the amount of supervisory goodwill generated by the merger, regulators effectively permitted double counting of the cash as both a tangible and an intangible asset. See, e.g., Transohio Savings Bank v. Director, Office of Thrift Supervision, 967 F. 2d 598, 604 (CADC 1992). Capital credits thus inflated the acquiring thrift's regulatory capital and permitted leveraging of more and more loans.
As we describe in more detail below, the accounting treatment to be accorded supervisory goodwill and capital credits was the subject of express arrangements between the regulators and the acquiring institutions. While the extent to which these arrangements constituted a departure from prior norms is less clear, an acquiring institution would reasonably have wanted to bargain for such treatment. Although GAAP demonstrably permitted the use of the purchase method in acquiring a thrift suffering no distress, the relevant thrift regulations did not explicitly state that intangible goodwill assets created by that method could be counted toward regulatory capital. See 12 CFR Section(s) 563.13(a)(3) (1981) (permitting thrifts to count as reserves any "items listed in the definition of net worth"); 12 CFR Section(s) 561.13 (1981) (defining "net worth" as "the sum of all reserve accounts . . ., retained earnings, permanent stock, mutual capital certificates . . ., and any other nonwithdrawable accounts of an insured institution"). 9 Indeed, the rationale for recognizing goodwill stands on its head in a supervisory merger: ordinarily, goodwill is recognized as valuable because a rational purchaser would not pay more than assets are worth; here, however, the purchase is rational only because of the accounting treatment for the shortfall. See Black, supra, at 104 ("GAAP's treatment of goodwill . . . assumes that buyers do not overpay when they purchase an S&L"). In the end, of course, such reasoning circumvented the whole purpose of the reserve requirements, which was to protect depositors and the deposit insurance fund. As some in Congress later recognized, "[g]oodwill is not cash. It is a concept, and a shadowy one at that. When the Federal Government liquidates a failed thrift, goodwill is simply no good. It is valueless. That means, quite simply, that the taxpayer picks up the tab for the shortfall." 135 Cong. Rec. 11795 (1989) (Rep. Barnard); see also White 84 (acknowledging that in some instances supervisory goodwill "involved the creation of an asset that did not have real value as protection for the FSLIC"). To those with the basic foresight to appreciate all this, then, it was not obvious that regulators would accept purchase accounting in determining compliance with regulatory criteria, and it was clearly prudent to get agreement on the matter.
The advantageous treatment of amortization schedules and capital credits in supervisory mergers amounted to more clear-cut departures from GAAP and, hence, subjects worthy of agreement by those banking on such treatment. In 1983, the Financial Accounting Standards Board (the font of GAAP) promulgated Statement of Financial Accounting Standards No. 72, which applied specifically to the acquisition of a savings and loan association. SFAS 72 provided that "[i]f, and to the extent that, the fair value of liabilities assumed exceeds the fair value of identifiable assets acquired in the acquisition of a banking or thrift institution, the unidentifiable intangible asset recognized generally shall be amortized to expense by the interest method over a period no longer than the discount on the long-term interest-bearing assets acquired is to be recognized as interest income." Accounting Standards, Original Pronouncements (July 1973-June 1, 1989), p. 725. In other words, SFAS 72 eliminated any doubt that the differential amortization periods on which acquiring thrifts relied to produce paper profits in supervisory mergers were inconsistent with GAAP. SFAS 72 also barred double-counting of capital credits by requiring that financial assistance from regulatory authorities must be deducted from the cost of the acquisition before the amount of goodwill is determined. SFAS 72, Para(s) 9. 10 Thrift acquirers relying on such credits, then, had every reason for concern as to the continued availability of the RAP in effect at the time of these transactions.
C.
FIRREA made enormous changes in the structure of federal thrift regulation by (1) abolishing FSLIC and transferring its functions to other agencies; (2) creating a new thrift deposit insurance fund under the Federal Deposit Insurance Corporation (FDIC); (3) replacing the Bank Board with the Office of Thrift Supervision (OTS), a Treasury Department office with responsibility for the regulation of all federally insured savings associations; and (4) establishing the Resolution Trust Corporation (RTC) to liquidate or otherwise dispose of certain closed thrifts and their assets. See note following 12 U. S. C. Section(s) 1437, Section(s) 1441a, 1821. More importantly for the present case, FIRREA also obligated OTS to "prescribe and maintain uniformly applicable capital standards for savings associations" in accord with strict statutory requirements. 12 U. S. C. Section(s) 1464(t)(1)(A). 11 In particular, the statute required thrifts to "maintain core capital in an amount not less than 3 percent of the savings association's total assets," 12 U. S. C. Section(s) 1464(t)(2)(A), and defined "core capital" to exclude "unidentifiable intangible assets," 12 U. S. C. Section(s) 1464(t)(9)(A), such as goodwill. Although the reform provided a "transition rule" permitting thrifts to count "qualifying supervisory goodwill" toward half the core capital requirement, this allowance was phased out by 1995. 12 U. S. C. Section(s) 1464(t)(3)(A). According to the House Report, these tougher capital requirements reflected a congressional judgment that "[t]o a considerable extent, the size of the thrift crisis resulted from the utilization of capital gimmicks that masked the inadequate capitalization of thrifts." House Report, at 310.
The impact of FIRREA's new capital requirements upon institutions that had acquired failed thrifts in exchange for supervisory goodwill was swift and severe. OTS promptly issued regulations implementing the new capital standards along with a bulletin noting that FIRREA "eliminates [capital and accounting] forbearances" previously granted to certain thrifts. Office of Thrift Supervision, Capital Adequacy: Guidance on the Status of Capital and Accounting Forbearances and Capital Instruments held by a Deposit Insurance Fund, Thrift Bulletin No. 38-2, Jan. 9, 1990. OTS accordingly directed that "[a]ll savings associations presently operating with these forbearances . . . should eliminate them in determining whether or not they comply with the new minimum regulatory capital standards." Ibid. Despite the statute's limited exception intended to moderate transitional pains, many institutions immediately fell out of compliance with regulatory capital requirements, making them subject to seizure by thrift regulators. See Black, 2 Stan. L. & Policy Rev., at 107 ("FIRREA's new capital mandates have caused over 500 S&Ls . . . to report that they have failed one or more of the three capital requirements").
D.
A divided panel of the Federal Circuit reversed, holding that the parties did not allocate to the Government, in an unmistakably clear manner, the risk of a subsequent change in the regulatory capital requirements. Winstar Corp. v. United States, 994 F. 2d 797, 811-813 (1993). The full court, however, vacated this decision and agreed to rehear the case en banc. After rebriefing and reargument, the en banc court reversed the panel decision and affirmed the Court of Federal Claims' rulings on liability. Winstar Corp. v. United States, 64 F. 3d 1531 (CA Fed. 1995) (en banc). The Federal Circuit found that FSLIC had made express contracts with respondents, including a promise that supervisory goodwill and capital credits could be counted toward satisfaction of the regulatory capital requirements. Id., at 1540, 1542-1543. The court rejected the Government's unmistakability argument, agreeing with the Court of Federal Claims that that doctrine had no application in a suit for money damages. Id., at 1545-1548. Finally, the en banc majority found that FIRREA's new capital requirements "single[d] out supervisory goodwill for special treatment" and therefore could not be said to be a "public" and "general act" within the meaning of the sovereign acts doctrine. Id., at 1548-1551. Judge Nies dissented, essentially repeating the arguments in her prior opinion for the panel majority, id., at 1551-1552, and Judge Lourie also dissented on the ground that FIRREA was a public and general act, id., at 1552-1553. We granted certiorari, 516 U. S. ___ (1996), and now affirm.
II.
The anterior question of whether there were contracts at all between the Government and respondents dealing with regulatory treatment of supervisory goodwill and capital credits, although briefed and argued by the parties in this Court, is not strictly before us. See Yee v. Escondido, 503 U.S. 519, 535 (1992) (noting that "we ordinarily do not consider questions outside those presented in the petition for certiorari"); Sup. Ct. Rule 14.1(a). And although we may review the Court of Federal Claims' grant of summary judgment de novo, Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 465 , n. 10 (1992), we are in no better position than the Federal Circuit and the Court of Federal Claims to evaluate the documentary records of the transactions at issue. Our resolution of the legal issues raised by the petition for certiorari, however, does require some consideration of the nature of the underlying transactions.
A.
1.
The SAA itself said nothing about supervisory goodwill, but did contain the following integration clause:
- "This Agreement . . . constitutes the entire agreement between the parties thereto and supersedes all prior agreements and understandings of the parties in connection herewith, excepting only the Agreement of Merger and any resolutions or letters issued contemporaneously herewith." App. 598-599.
The Government does not seriously contest this evidence that the parties understood that goodwill arising from these transactions would be treated as satisfying regulatory requirements; it insists, however, that these documents simply reflect statements of then-current federal regulatory policy rather than contractual undertakings. Neither the Court of Federal Claims nor the Federal Circuit so read the record, however, and we agree with those courts that the Government's interpretation of the relevant documents is fundamentally implausible. The integration clause in Glendale's Supervisory Action Agreement (SAA) with FSLIC, which is similar in all relevant respects to the analogous provisions in the Winstar and Statesman contracts, provides that the SAA supersedes "all prior agreements and understandings . . . excepting only . . . any resolutions or letters issued contemporaneously" by the Board, id., at 598-599; in other words, the SAA characterizes the Board's resolutions and letters not as statements of background rules, but as part of the "agreements and understandings" between the parties.
To the extent that the integration clause leaves any ambiguity, the other courts that construed the documents found that the realities of the transaction favored reading those documents as contractual commitments, not mere statements of policy, see Restatement (Second) of Contracts Section(s) 202(1) (1981) ("Words and other conduct are interpreted in the light of all the circumstances, and if the principal purpose of the parties is ascertainable it is given great weight"), and we see no reason to disagree. As the Federal Circuit noted, "[i]t is not disputed that if supervisory goodwill had not been available for purposes of meeting regulatory capital requirements, the merged thrift would have been subject to regulatory noncompliance and penalties from the moment of its creation." 64 F. 3d, at 1542. Indeed, the assumption of Broward's liabilities would have rendered Glendale immediately insolvent by approximately $460 million, but for Glendale's right to count goodwill as regulatory capital. Although one can imagine cases in which the potential gain might induce a party to assume a substantial risk that the gain might be wiped out by a change in the law, it would have been irrational in this case for Glendale to stake its very existence upon continuation of current policies without seeking to embody those policies in some sort of contractual commitment. This conclusion is obvious from both the dollar amounts at stake and the regulators' proven propensity to make changes in the relevant requirements. See Brief for United States 26 ("[I]n light of the frequency with which federal capital requirements had changed in the past . . ., it would have been unreasonable for Glendale, FSLIC, or the Bank Board to expect or rely upon the fact that those requirements would remain unchanged"); see also infra, at 68-69. Under the circumstances, we have no doubt that the parties intended to settle regulatory treatment of these transactions as a condition of their agreement. See, e.g., The Binghamton Bridge, 3 Wall. 51, 78 (1866) (refusing to construe charter in such a way that it would have been "madness" for private party to enter into it). 13 We accordingly have no reason to question the Court of Appeals's conclusion that "the government had an express contractual obligation to permit Glendale to count the supervisory goodwill generated as a result of its merger with Broward as a capital asset for regulatory capital purposes." 64 F. 3d, at 1540.
2.
The Bank Board accepted the Winstar proposal and made an Assistance Agreement that incorporated, by an integration clause much like Glendale's, both the Board's resolution approving the merger and a forbearance letter issued on the date of the agreement. See App. 112. The forbearance letter provided that "[f]or purposes of reporting to the Board, the value of any intangible assets resulting from accounting for the merger in accordance with the purchase method may be amortized by [Winstar] over a period not to exceed 35 years by the straight-line method." Id., at 123. Moreover, the Assistance Agreement itself contained an "Accounting Principles" section with the following provisions:
- "Except as otherwise provided, any computations made for the purposes of this Agreement shall be governed by generally accepted accounting principles as applied on a going concern basis in the savings and loan industry, except that where such principles conflict with the terms of this Agreement, applicable regulations of the Bank Board or the [FSLIC], or any resolution or action of the Bank Board approving or adopted concurrently with this Agreement, then this Agreement, such regulations, or such resolution or action shall govern. . . . If there is a conflict between such regulations and the Bank Board's resolution or action, the Bank Board's resolution or action shall govern. For purposes of this section, the governing regulations and the accounting principles shall be those in effect on the Effective Date or as subsequently clarified, inter-preted, or amended by the Bank Board or the Financial Accounting Standards Board ("FASB"), respectively, or any successor organization to either." Id., at 108-109.
In any event, we do not doubt the soundness of the Federal Circuit's finding that the overall "documentation in the Winstar transaction establishes an express agreement allowing Winstar to proceed with the merger plan approved by the Bank Board, including the recording of supervisory goodwill as a capital asset for regulatory capital purposes to be amortized over 35 years." 64 F. 3d, at 1544. As in the Glendale transaction, the circumstances of the merger powerfully support this conclusion: The tangible net worth of the acquired institution was a negative $6.7 million, and the new Winstar thrift would have been out of compliance with regulatory capital standards from its very inception, without including goodwill in the relevant calculations. We thus accept the Court of Appeals's conclusion that "it was the intention of the parties to be bound by the accounting treatment for goodwill arising in the merger." Ibid.
3.
The Assistance Agreement between Statesman and FSLIC included an "accounting principles" clause virtually identical to Winstar's, see App. 402-403, as well as a specific provision for the capital credit:
- "For the purposes of reports to the Bank Board . . ., $26 million of the contribution [made by FSLIC] shall be credited to [Statesman's] regulatory capital account and shall constitute regulatory capital (as defined in Section(s) 561.13 of the Insurance Regulations)." Id., at 362a.
For the same reasons set out above with respect to the Glendale and Winstar transactions, we accept the Federal Circuit's conclusion that "the government was contractually obligated to recognize the capital credits and the supervisory goodwill generated by the merger as part of the Statesman's regulatory capital requirement and to permit such goodwill to be amortized on a straight line basis over 25 years." 64 F. 3d, at 1543. Indeed, the Government's position is even weaker in Statesman's case because the capital credits portion of the agreement contains an express commitment to include those credits in the calculation of regulatory capital. The Government asserts that the reference to Section(s) 563.13 of FSLIC regulations, which at the time defined regulatory capital for thrift institutions, indicates that the Government's obligations could change along with the relevant regulations. But, just as in Winstar's case, the Government would have us overlook the specific incorporation of the then-current regulations as part of the agreement. 14 The Government also cites a provision requiring Statesman to "comply in all material respects with all applicable statutes, regulations, orders of, and restrictions imposed by the United States or . . . by any agency of [the United States]," App. 407, but this simply meant that Statesman was required to observe FIRREA's new capital requirements once they were promulgated. The clause was hardly necessary to oblige Statesman to obey the law, and nothing in it barred Statesman from asserting that passage of that law required the Government to take action itself or be in breach of its contract.
B.
When the law as to capital requirements changed in the present instance, the Government was unable to perform its promise and, therefore, became liable for breach. We accept the Federal Circuit's conclusion that the Government breached these contracts when, pursuant to the new regulatory capital requirements imposed by FIRREA, 12 U. S. C. Section(s) 1464(t), the federal regulatory agencies limited the use of supervisory goodwill and capital credits in calculating respondents' net worth. 64 F. 3d, at 1545. In the case of Winstar and Statesman, the Government exacerbated its breach when it seized and liquidated respondents' thrifts for regulatory noncompliance. Ibid.
In evaluating the relevant documents and circumstances, we have, of course, followed the Federal Circuit in applying ordinary principles of contract construction and breach that would be applicable to any contract action between private parties. The Government's case, however, is that the Federal Circuit's decision to apply ordinary principles was error for a variety of reasons, each of which we consider, and reject, in the sections ahead.
III.
The argument mistakes the scope of the unmistakability doctrine. The thrifts do not claim that the Bank Board and FSLIC purported to bind Congress to ossify the law in conformity to the contracts; they seek no injunction against application of FIRREA's new capital requirements to them and no exemption from FIRREA's terms. They simply claim that the Government assumed the risk that subsequent changes in the law might prevent it from performing, and agreed to pay damages in the event that such failure to perform caused financial injury. The question, then, is not whether Congress could be constrained but whether the doctrine of unmistakability is applicable to any contract claim against the Government for breach occasioned by a subsequent act of Congress. The answer to this question is no.
A.
In his Commentaries, Blackstone stated the centuries-old concept that one legislature may not bind the legislative authority of its successors:
- "Acts of parliament derogatory from the power of subsequent parliaments bind not. . . . Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if it's [sic] ordinances could bind the present parliament." 1 W. Blackstone, Commentaries on the Laws of England 90 (1765).
18
The development of this latter, American doctrine in federal litigation began in cases applying limits on state sovereignty imposed by the National Constitution. Thus Chief Justice Marshall's exposition in Fletcher v. Peck, 6 Cranch 87 (1810), where the Court held that the Contract Clause, U. S. Const., Art. I, Section(s) 10, cl. 1, barred the State of Georgia's effort to rescind land grants made by a prior state legislature. Marshall acknowledged "that one legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature cannot abridge the powers of a succeeding legislature." Id., at 135. "The correctness of this principle, so far as respects general legislation," he said, "can never be controverted." Ibid. Marshall went on to qualify the principle, however, noting that "if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power." Ibid. For Marshall, this was true for the two distinct reasons that the intrusion on vested rights by the Georgia legislature's act of repeal might well have gone beyond the limits of "the legislative power," and that Georgia's legislative sovereignty was limited by the Federal Constitution's bar against laws impairing the obligation of contracts. Id., at 135-136.
The impetus for the modern unmistakability doctrine was thus Chief Justice Marshall's application of the Contract Clause to public contracts. Although that Clause made it possible for state legislatures to bind their successors by entering into contracts, it soon became apparent that such contracts could become a threat to the sovereign responsibilities of state governments. Later decisions were accordingly less willing to recognize contractual restraints upon legislative freedom of action, and two distinct limitations developed to protect state regulatory powers. One came to be known as the "reserved powers" doctrine, which held that certain substantive powers of sovereignty could not be contracted away. See West River Bridge Co. v. Dix, 6 How. 507 (1848) (holding that a State's contracts do not surrender its eminent domain power). 20 The other, which surfaced somewhat earlier in Providence Bank v. Billings, 4 Pet. 514 (1830), and Charles River Bridge v. Warren Bridge, 11 Pet. 420 (1837), was a canon of construction disfavoring implied governmental obligations in public contracts. Under this rule that "[a]ll public grants are strictly construed," The Delaware Railroad Tax, 18 Wall. 206, 225 (1874), we have insisted that "[n]othing can be taken against the state by presumption or inference," ibid., and that "neither the right of taxation, nor any other power of sovereignty, will be held . . . to have been surrendered, unless such surrender has been expressed in terms too plain to be mistaken." Jefferson Branch Bank v. Skelly, 1 Black 436, 446 (1862).
The posture of the Government in these early unmistakability cases is important. In each, a state or local government entity had made a contract granting a private party some concession (such as a tax exemption or a monopoly), and a subsequent governmental action had abrogated the contractual commitment. In each case, the private party was suing to invalidate the abrogating legislation under the Contract Clause. A requirement that the government's obligation unmistakably appear thus served the dual purposes of limiting contractual incursions on a State's sovereign powers and of avoiding difficult constitutional questions about the extent of State authority to limit the subsequent exercise of legislative power. Cf. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress"); Ashwander v. TVA, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring) (same).
The same function of constitutional avoidance has marked the expansion of the unmistakability doctrine from its Contract Clause origins dealing with state grants and contracts to those of other governmental sovereigns, including the United States. See Merrion v. Jicarilla Apache Tribe, 455 U.S., at 148 (deriving the unmistakability principle from St. Louis v. United Railways Co., 210 U. S. 266 (1908), a Contract Clause suit against a state government). 21 Although the Contract Clause has no application to acts of the United States, Pension Benefit Guaranty Corp. v. R. A. Gray & Co., 467 U.S. 717, 732 , n. 9 (1984), it is clear that the National Government has some capacity to make agreements binding future Congresses by creating vested rights, see, e.g., Perry v. United states, 294 U. S. 330 (1935); Lynch v. United States, 292 U. S. 571 (1934). The extent of that capacity, to be sure, remains somewhat obscure. Compare, e.g., United States Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 26 (1977) (heightened Contract Clause scrutiny when States abrogate their own contractual obligations), with Pension Benefit Guaranty Corp., supra, at 733 (contrasting less exacting due process standards governing federal economic legislation affecting private contracts). But the want of more developed law on limitations independent of the Contract Clause is in part the result of applying the unmistakability canon of construction to avoid this doctrinal thicket, as we have done in several cases involving alleged surrenders of sovereign prerogatives by the National Government and Indian tribes.
First, we applied the doctrine to protect a tribal sovereign in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982), which held that long-term oil and gas leases to private parties from an Indian tribe, providing for specific royalties to be paid to the tribe, did not limit the tribe's sovereign prerogative to tax the proceeds from the lessees' drilling activities. Id., at 148. Because the lease made no reference to the tribe's taxing power, we held simply that a waiver of that power could not be "inferred . . . from silence," ibid., since the taxing power of any government remains "unless it is has been specifically surrendered in terms which admit of no other reasonable interpretation." Ibid. (internal quotation marks and citation omitted).
In Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41 (1986), this Court confronted a state claim that Section(s) 103 of the Social Security Amendments Act of 1983, 97 Stat. 71, 42 U. S. C. Section(s) 418(g) (1982 ed., Supp. II), was unenforceable to the extent it was inconsistent with the terms of a prior agreement with the National Government. Under the law before 1983, a State could agree with the Secretary of Health and Human Services to cover the State's employees under the Social Security scheme subject to a right to withdraw them from coverage later. When the 1983 Act eliminated the right of withdrawal, the State of California and related plaintiffs sought to enjoin application of the new law to them, or to obtain just compensation for loss of the withdrawal right (a remedy which the District Court interpreted as tantamount to the injunction, since it would mandate return of all otherwise required contributions, see 477 U.S., at 51 ). Although we were able to resolve the case by reading the terms of a state-federal coverage agreement to reserve the Government's right to modify its terms by subsequent legislation, in the alternative we rested the decision on the more general principle that, absent an "unmistakable" provision to the contrary, "contractual arrangements, including those to which a sovereign itself is a party, `remain subject to subsequent legislation' by the sovereign." Id., at 52 (quoting Merrion, supra, at 147). We thus rejected the proposal "to find that a `sovereign forever waives the right to exercise one of its sovereign powers unless it expressly reserves the right to exercise that power in' the contract," Bowen, supra, at 52 (quoting Merrion, supra, at 148), and held instead that unmistakability was needed for waiver, not reservation.
Most recently, in United States v. Cherokee Nation of Oklahoma, 480 U.S. 700 (1987), we refused to infer a waiver of federal sovereign power from silence. There, an Indian tribe with property rights in a river bed derived from a government treaty sued for just compensation for damage to its interests caused by the Government's navigational improvements to the Arkansas river. The claim for compensation presupposed, and was understood to presuppose, that the Government had conveyed to the tribe its easement to control navigation; absent that conveyance, the tribe's property included no right to be free from the Government's river bed improvements. Id., at 704. We found, however, that the treaty said nothing about conveying the Government's navigational easement, see id., at 706, which we saw as an aspect of sovereignty. This, we said, could be "`surrendered [only] in unmistakable terms,'" id., at 707 (quoting Bowen, supra, at 52), if indeed it could be waived at all.
Merrion, Bowen, and Cherokee Nation thus announce no new rule distinct from the canon of construction adopted in Providence Bank and Charles River Bridge; their collective holding is that a contract with a sovereign government will not be read to include an unstated term exempting the other contracting party from the application of a subsequent sovereign act (including an act of Congress), nor will an ambiguous term of a grant or contract be construed as a conveyance or surrender of sovereign power. The cases extending back into the 19th-century thus stand for a rule that applies when the Government is subject either to a claim that its contract has surrendered a sovereign power 22 (e.g., to tax or control navigation), or to a claim that cannot be recognized without creating an exemption from the exercise of such a power (e.g., the equivalent of exemption from social security obligations). The application of the doctrine thus turns on whether enforcement of the contractual obligation alleged would block the exercise of a sovereign power of the Government.
Since the criterion looks to the effect of a contract's enforcement, the particular remedy sought is not dispositive and the doctrine is not rendered inapplicable by a request for damages, as distinct from specific performance. The respondents in Cherokee Nation sought nothing beyond damages, but the case still turned on the unmistakability doctrine because there could be no claim to harm unless the right to be free of the sovereign power to control navigation had been conveyed away by the Government. 23 So, too, in Bowen: the sole relief sought was dollars and cents, but the award of damages as requested would have been the equivalent of exemption from the terms of the subsequent statute.
The application of the doctrine will therefore differ according to the different kinds of obligations the Government may assume and the consequences of enforcing them. At one end of the wide spectrum are claims for enforcement of contractual obligations that could not be recognized without effectively limiting sovereign authority, such as a claim for rebate under an agreement for a tax exemption. Granting a rebate, like enjoining enforcement, would simply block the exercise of the taxing power, cf. Bowen, 477 U.S., at 51 , and the unmistakability doctrine would have to be satisfied. 24 At the other end are contracts, say, to buy food for the army; no sovereign power is limited by the Government's promise to purchase and a claim for damages implies no such limitation. That is why no one would seriously contend that enforcement of humdrum supply contracts might be subject to the unmistakability doctrine. Between these extremes lies an enormous variety of contracts including those under which performance will require exercise (or not) of a power peculiar to the Government. So long as such a contract is reasonably construed to include a risk-shifting component that may be enforced without effectively barring the exercise of that power, the enforcement of the risk allocation raises nothing for the unmistakability doctrine to guard against, and there is no reason to apply it.
The Government argues that enforcement of the contracts in this case would implicate the unmistakability principle, with the consequence that Merrion, Bowen, and Cherokee Nation are good authorities for rejecting respondents' claims. The Government's position is mistaken, however, for the complementary reasons that the contracts have not been construed as binding the Government's exercise of authority to modify banking regulation or of any other sovereign power, and there has been no demonstration that awarding damages for breach would be tantamount to any such limitation.
As construed by each of the courts that considered these contracts before they reached us, the agreements do not purport to bind the Congress from enacting regulatory measures, and respondents do not ask the courts to infer from silence any such limit on sovereign power as would violate the holdings of Merrion and Cherokee Nation. The contracts have been read as solely risk-shifting agreements and respondents seek nothing more than the benefit of promises by the Government to insure them against any losses arising from future regulatory change. They seek no injunction against application of the law to them, as the plaintiffs did in Bowen and Merrion, cf. Reichelderfer v. Quinn, 287 U. S. 315 (1932), and they acknowledge that the Bank Board and FSLIC could not bind Congress (and possibly could not even bind their future selves) not to change regulatory policy.
Nor do the damages respondents seek amount to exemption from the new law, in the manner of the compensation sought in Bowen, see supra, at 51. Once general jurisdiction to make an award against the Government is conceded, a requirement to pay money supposes no surrender of sovereign power by a sovereign with the power to contract. See, e.g., Amino Bros. Co. v. United States, 178 Ct. Cl. 515, 525, 372 F. 2d 485, 491 ("The Government cannot make a binding contract that it will not exercise a sovereign power, but it can agree in a contract that if it does so, it will pay the other contracting party the amount by which its costs are increased by the Government's sovereign act"), cert. denied, 389 U.S. 846 (1967). 25 Even if the respondents were asking that the Government be required to make up any capital deficiency arising from the exclusion of goodwill and capital credits from the relevant calculations, such relief would hardly amount to an exemption from the capital requirements of FIRREA; after all, Glendale (the only respondent thrift still in operation) would still be required to maintain adequate tangible capital reserves under FIRREA, and the purpose of the statute, the protection of the insurance fund, would be served. Nor would such a damages award deprive the Government of money it would otherwise be entitled to receive (as a tax rebate would), since the capital requirements of FIRREA govern only the allocation of resources to a thrift and require no payments to the Government at all. 26
We recognize, of course, that while agreements to insure private parties against the costs of subsequent regulatory change do not directly impede the exercise of sovereign power, they may indirectly deter needed governmental regulation by raising its costs. But all regulations have their costs, and Congress itself expressed a willingness to bear the costs at issue here when it authorized FSLIC to "guarantee [acquiring thrifts] against loss" that might occur as a result of a supervisory merger. 12 U. S. C. Section(s) 1729(f)(2) (1988 ed.) (repealed 1989). Just as we have long recognized that the Constitution "`bar[s] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,'" Dolan v. City of Tigard, 512 U. S. ___, ___ (slip op., at 9) (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)), so we must reject the suggestion that the Government may simply shift costs of legislation onto its contractual partners who are adversely affected by the change in the law, when the Government has assumed the risk of such change.
The Government's position would not only thus represent a conceptual expansion of the unmistakability doctrine beyond its historical and practical warrant, but would place the doctrine at odds with the Government's own long-run interest as a reliable contracting partner in the myriad workaday transaction of its agencies. Consider the procurement contracts that can be affected by congressional or executive scale-backs in federal regulatory or welfare activity; or contracts to substitute private service-providers for the Government, which could be affected by a change in the official philosophy on privatization; or all the contracts to dispose of federal property, surplus or otherwise. If these contracts are made in reliance on the law of contract and without specific provision for default mechanisms, 27 should all the private contractors be denied a remedy in damages unless they satisfy the unmistakability doctrine? The answer is obviously no because neither constitutional avoidance nor any apparent need to protect the Government from the consequences of standard operations could conceivably justify applying the doctrine. Injecting the opportunity for unmistakability litigation into every common contract action would, however, produce the untoward result of compromising the Government's practical capacity to make contracts, which we have held to be "of the essence of sovereignty" itself. United States v. Bekins, 304 U.S. 27, 51 -52 (1938). 28 From a practical standpoint, it would make an inroad on this power, by expanding the Government's opportunities for contractual abrogation, with the certain result of undermining the Government's credibility at the bargaining table and increasing the cost of its engagements. As Justice Brandeis recognized, "[p]unctilious fulfillment of contractual obligations is essential to the maintenance of the credit of public as well as private debtors." Lynch v. United States, 292 U. S., at 580. 29
The dissent's only answer to our concern is to recognize that "Congress may not simply abrogate a statutory provision obligating performance without breaching the contract and rendering itself liable for damages." Post, at 6 (citing Lynch, supra, at 580). Yet the only grounds that statement suggests for distinguishing Lynch from the present case is that there the contractual obligation was embodied in a statute. Putting aside the question why this distinction should make any difference, we note that the dissent seemingly does not deny that its view would apply the unmistakability doctrine to the vast majority of governmental contracts, which would be subject to abrogation arguments based on subsequent sovereign acts. Indeed, the dissent goes so far as to argue that our conclusion that damages are available for breach even where the parties did not specify a remedy in the contract depends upon "reading of additional terms into the contract." Post, at 7. That, of course, is not the law; damages are always the default remedy for breach of contract. 30 And we suspect that most government contractors would be quite surprised by the dissent's conclusion that, where they have failed to require an express provision that damages will be available for breach, that remedy must be "implied in law" and therefore unavailable under the Tucker Act, post, at 7-8.
Nor can the dissenting view be confined to those contracts that are "regulatory" in nature. Such a distinction would raise enormous analytical difficulties; one could ask in this case whether the Government as contractor was regulating or insuring. The dissent understandably does not advocate such a distinction, but its failure to advance any limiting principle at all would effectively compromise the Government's capacity as a reliable, straightforward contractor whenever the subject matter of a contract might be subject to subsequent regulation, which is most if not all of the time. 31 Since the facts of the present case demonstrate that Government may wish to further its regulatory goals through contract, we are unwilling to adopt any rule of construction that would weaken the Government's capacity to do business by converting every contract it makes into an arena for unmistakability litigation.
In any event, we think the dissent goes fundamentally wrong when it concludes that "the issue of remedy for . . . breach" can arise only "[i]f the sovereign did surrender its power unequivocally." Post, at 6. This view ignores the other, less remarkable possibility actually found by both courts that construed these contracts: that the Government agreed to do something that did not implicate its sovereign powers at all, that is, to indemnify its contracting partners against financial losses arising from regulatory change. We accordingly hold that the Federal Circuit correctly refused to apply the unmistakability doctrine here. See 64 F. 3d, at 1548. There being no need for an unmistakably clear "second promise" not to change the capital requirements, it is sufficient that the Government undertook an obligation that it subsequently found itself unable to perform. This conclusion does not, of course, foreclose the assertion of a defense that the contracts were ultra vires or that the Government's obligation should be discharged under the common-law doctrine of impossibility, see infra, at 49-52, 52-72, but nothing in the nature of the contracts themselves raises a bar to respondents' claims for breach. 32
B.
The Government says that "[t]he logic of the doctrine . . . applies equally to contracts alleged to have been made by the federal government." Brief for United States 38. This may be so but is also beside the point, for the reason that the Government's ability to set capital requirements is not limited by the Bank Board's and FSLIC's promises to make good any losses arising from subsequent regulatory changes. See supra, at 41-43. The answer to the Government's contention that the State cannot barter away certain elements of its sovereign power is that a contract to adjust the risk of subsequent legislative change does not strip the Government of its legislative sovereignty. 34
The same response answers the Government's demand for express delegation of any purported authority to fetter the exercise of sovereign power. It is true, of course, that in Home Telephone & Telegraph Co. v. City of Los Angeles, 211 U. S., at 273, we said that "[t]he surrender, by contract, of a power of government, though in certain well-defined cases it may be made by legislative authority, is a very grave act, and the surrender itself, as well as the authority to make it, must be closely scrutinized." Hence, where "a contract has the effect of extinguishing pro tanto an undoubted power of government," we have insisted that "both [the contract's] existence and the authority to make it must clearly and unmistakably appear, and all doubts must be resolved in favor of the continuance of the power." Ibid. But Home Telephone & Telegraph simply has no application to the present case, because there were no contracts to surrender the Government's sovereign power to regulate. 35
There is no question, conversely, that the Bank Board and FSLIC had ample statutory authority to do what the Court of Federal Claims and the Federal Circuit found they did do, that is, promise to permit respondents to count supervisory goodwill and capital credits toward regulatory capital and to pay respondents' damages if that performance became impossible. The organic statute creating FSLIC as an arm of the Bank Board, 12 U. S. C. Section(s) 1725(c) (1988 ed.) (repealed 1989), generally empowered it "[t]o make contracts," 36 and Section(s) 1729(f)(2), enacted in 1978, delegated more specific powers in the context of supervisory mergers:
- "Whenever an insured institution is in default or, in the judgment of the Corporation, is in danger of default, the Corporation may, in order to facilitate a merger or consolidation of such insured institution with another insured institution . . . guarantee such other insured institution against loss by reason of its merging or consolidating with or assuming the liabilities and purchasing the assets of such insured institution in or in danger of default." 12 U. S. C. Section(s) 1729(f)(2) (1976 ed. Supp. V) (repealed 1989).
- "No provision of this section shall affect the authority of the [FSLIC] to authorize insured institutions to utilize subordinated debt and goodwill in meeting reserve and other regulatory requirements." 12 U. S. C. Section(s) 1730h(d) (1988 ed.) (repealed 1989).
IV.
The Government's position cannot prevail, however, for two independent reasons. The facts of this case do not warrant application of the doctrine, and even if that were otherwise the doctrine would not suffice to excuse liability under this governmental contract allocating risks of regulatory change in a highly regulated industry.
In Horowitz, the plaintiff sued to recover damages for breach of a contract to purchase silk from the Ordnance Department. The agreement included a promise by the Department to ship the silk within a certain time, although the manner of shipment does not appear to have been a subject of the contract. Shipment was delayed because the United States Railroad Administration placed an embargo on shipments of silk by freight, and by the time the silk reached Horowitz the price had fallen, rendering the deal unprofitable. This Court barred any damages award for the delay, noting that "[i]t has long been held by the Court of Claims that the United States when sued as a contractor cannot be held liable for an obstruction to the performance of the particular contract resulting from its public and general acts as a sovereign." 267 U. S., at 461. This statement was not, however, meant to be read as broadly as the Government urges, and the key to its proper scope is found in that portion of our opinion explaining that the essential point was to put the Government in the same position that it would have enjoyed as a private contractor:
- "`The two characters which the government possesses as a contractor and as a sovereign cannot be thus fused; nor can the United States while sued in the one character be made liable in damages for their acts done in the other. Whatever acts the government may do, be they legislative or executive, so long as they be public and general, cannot be deemed specially to alter, modify, obstruct or violate the particular contracts into which it enters with private persons. . . . In this court the United States appear simply as contractors; and they are to be held liable only within the same limits that any other defendant would be in any other court. Though their sovereign acts performed for the general good may work injury to some private contractors, such parties gain nothing by having the United States as their defendants.'" Ibid. (quoting Jones v. United States, supra, at 384).
The Government argues that "[t]he relevant question [under these cases] is whether the impact [of governmental action] . . . is caused by a law enacted to govern regulatory policy and to advance the general welfare." Brief for United States 45. This understanding assumes that the dual characters of Government as contractor and legislator are never "fused" (within the meaning of Horowitz) so long as the object of the statute is regulatoryand meant to accomplish some public good. That is, on the Government's reading, a regulatory object is proof against treating the legislature as having acted to avoid the Government's contractual obligations, in which event the sovereign acts defense would not be applicable. But the Government's position is open to serious objection.
As an initial matter, we have already expressed our doubt that a workable line can be drawn between the Government's "regulatory" and "nonregulatory" capacities. In the present case, the Government chose to regulate capital reserves to protect FSLIC's insurance fund, much as any insurer might impose restrictions on an insured as a condition of the policy. The regulation thus protected the Government in its capacity analogous to a private insurer, the same capacity in which it entered into supervisory merger agreements to convert some of its financial insurance obligations into responsibilities of private entrepreneurs. In this respect, the supervisory mergers bear some analogy to private contracts for reinsurance. 37 On the other hand, there is no question that thrift regulation is, in fact, regulation, and that both the supervisory mergers of the 1980's and the subsequent passage of FIRREA were meant to advance a broader public interest. The inescapable conclusion from all of this is that the Government's "regulatory" and "nonregulatory" capacities were fused in the instances under consideration, and we suspect that such fusion will be so common in the modern regulatory state as to leave a criterion of "regulation" without much use in defining the scope of the sovereign acts doctrine. 38
An even more serious objection is that allowing the Government to avoid contractual liability merely by passing any "regulatory statute," would flaunt the general principle that, "[w]hen the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals." Lynch v. United States, 292 U. S., at 579. 39 Careful attention to the cases shows that the sovereign acts doctrine was meant to serve this principle, not undermine it. In Horowitz, for example, if the defendant had been a private shipper, it would have been entitled to assert the common-law defense of impossibility of performance against Horowitz's claim for breach. Although that defense is traditionally unavailable where the barrier to performance arises from the act of the party seeking discharge, see Restatement (Second) of Contracts Section(s) 261; 2 E. Farnsworth, Farnsworth on Contracts Section(s) 9.6, p. 551 (1990); cf. W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 767 -768, n. 10 (1983), Horowitz held that the "public and general" acts of the sovereign are not attributable to the Government as contractor so as to bar the Government's right to discharge. The sovereign acts doctrine thus balances the Government's need for freedom to legislate with its obligation to honor its contracts by asking whether the sovereign act is properly attributable to the Government as contractor. If the answer is no, the Government's defense to liability depends on the answer to the further question, whether that act would otherwise release the Government from liability under ordinary principles of contract law. 40 Neither question can be answered in the Government's favor here.
A.
Horowitz's criterion of "public and general act" thus reflects the traditional "rule of law" assumption that generality in the terms by which the use of power is authorized will tend to guard against its misuse to burden or benefit the few unjustifiably. 42 See, e.g., Hurtado v. California, 110 U. S. 516, 535-536 (1884) ("Law . . . must be not a special rule for a particular person or a particular case, but . . . `[t]he general law . . .' so `that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society'") (citation omitted). 43 Hence, governmental action will not be held against the Government for purposes of the impossibility defense so long as the action's impact upon public contracts is, as in Horowitz, merely incidental to the accomplishment of a broader governmental objective. See O'Neill v. United States, 231 Ct. Cl. 823, 926 (1982) (noting that the sovereign acts doctrine recognizes that "the Government's actions, otherwise legal, will occasionally incidentally impair the performance of contracts"). 44 The greater the Government's self-interest, however, the more suspect becomes the claim that its private contracting partners ought to bear the financial burden of the Government's own improvidence, and where a substantial part of the impact of the Government's action rendering performance impossible falls on its own contractual obligations, the defense will be unavailable. Cf. Sun Oil Co. v. United States, 215 Ct. Cl. 716, 768, 572 F. 2d 786, 817 (1978) (rejecting sovereign acts defense where the Secretary of the Interior's actions were "`directed principally and primarily at plaintiffs' contractual right'"). 45
The dissent would adopt a different rule that the Government's dual roles of contractor and sovereign may never be treated as fused, relying upon Deming's pronouncement that "[t]he United States as a contractor are not responsible for the United States as a lawgiver." Post, at 9 (quoting 1 Ct. Cl., at 191). But that view would simply eliminate the "public and general" requirement, which presupposes that the Government's capacities must be treated as fused when the Government acts in a non-general way. Deming itself twice refers to the "general" quality of the enactment at issue, 1 Ct. Cl., at 191, and notes that "[t]he statute bears upon [the governmental contract] as it bears upon all similar contracts between citizens, and affects it in no other way." Ibid. At the other extreme, of course, it is clear that any benefit at all to the Government will not disqualify an act as "public and general"; the silk embargo in Horowitz, for example, had the incidental effect of releasing the Government from its contractual obligation to transport Mr. Horowitz's shipment. Our holding that a governmental act will not be public and general if it has the substantial effect of releasing the Government from its contractual obligations strikes a middle course between these two extremes. 46
B.
This evidence of intense concern with contracts like the ones before us suffices to show that FIRREA had the substantial effect of releasing the Government from its own contractual obligations. Congress obviously expected FIRREA to have such an effect, and in the absence of any evidence to the contrary we accept its factual judgment that this would be so. 50 Nor is Congress's own judgment neutralized by the fact, emphasized by the Government, that FIRREA did not formally target particular transactions. Legislation can almost always be written in a formally general way, and the want of an identified target is not much security when a measure's impact nonetheless falls substantially upon the Government's contracting partners. For like reason, it does not answer the legislative record to insist, as the Government does, that the congressional focus is irrelevant because the broad purpose of FIRREA was to "advance the general welfare." Brief for United States 45. We assume nothing less of all congressional action, with the result that an intent to benefit the public can no more serve as a criterion of a "public and general" sovereign act than its regulatory character can. 51 While our limited enquiry into the background and evolution of the thrift crisis leaves us with the understanding that Congress acted to protect the public in the FIRREA legislation, the extent to which this reform relieved the Government of its own contractual obligations precludes a finding that the statute is a "public and general" act for purposes of the sovereign acts defense. 52
C.
- "[w]here, after a contract is made, a party's per-formance is made impracticable without his fault by the occurrence of an event the nonoccurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary." Restatement (Second) of Contracts Section(s) 261.
1.
2.
As to each of the contracts before us, our agreement with the conclusions of the Court of Federal Claims and the Federal Circuit forecloses any defense of legal impossibility, for those courts found that the Bank Board resolutions, Forbearance Letters, and other documents setting forth the accounting treatment to be accorded supervisory goodwill generated by the transactions were not mere statements of then-current regulatory policy, but in each instance were terms in an allocation of risk of regulatory change that was essential to the contract between the parties. See supra, at 21-23. Given that the parties went to considerable lengths in procuring necessary documents and drafting broad integration clauses to incorporate their terms into the contract itself, the Government's suggestion that the parties meant to say only that the regulatory treatment laid out in these documents would apply as an initial matter, subject to later change at the Government's election, is unconvincing. See ibid. It would, indeed, have been madness for respondents to have engaged in these transactions with no more protection than the Government's reading would have given them, for the very existence of their institutions would then have been in jeopardy from the moment their agreements were signed.
We affirm the Federal Circuit's ruling that the United States is liable to respondents for breach of contract. Because the Court of Federal Claims has not yet determined the appropriate measure or amount of damages in this case, we remand for further proceedings consistent with our opinion.
It is so ordered.
Justice Breyer, concurring.
I join the plurality opinion because, in my view, that opinion is basically consistent with the following understanding of what the dissent and the Government call the "unmistakability doctrine." The doctrine appears in the language of earlier cases, where the Court states that
- "sovereign power, even when unexercised, is an enduring presence that governs all contracts subject to the sovereign's jurisdiction, and will remain intact unless surrendered in unmistakable terms." Merrion v. Jicarilla Apache Tribe,
455
U.S. 130, 148
(1982) (emphasis added).