Office of Personnel Management v. Richmond

Syllabus

No. 88-1943. Argued February 21, 1990-Decided June 11, 1990

Not wishing to exceed a statutory limit on earnings that would disqualify him from continuing to receive a disability annuity based on his years of civilian service with the Navy, respondent Richmond sought advice from Navy employee relations personnel and received erroneous oral and written information. When Richmond's reliance on the information caused him to earn more than permitted by the relevant statute, peti- tioner, the Office of Personnel Management (OPM), denied him six months of benefits. The Merit Systems Protection Board denied his pe- tition for review, rejecting his contention that the erroneous advice given him should estop OPM and bar its finding him ineligible for benefits under the statute. The Court of Appeals reversed, ruling that the misinformation estopped the Government, and that the estoppel required payment of benefits despite the statutory provision to the contrary.

Held: Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government em- ployee to a benefits claimant cannot estop the Government from denying benefits not otherwise permitted by law. Pp. 419-434.

(a) Although dicta in some recent cases-e. g., Montana v. Kennedy, 366 U. S. 308, 314-315; INS v. Hibi, 414 U. S. 5, 8 (per curiam) -have suggested, contrary to the Court's long-recognized rule, that there might be situations in which employee misconduct could give rise to es- toppel against the Government, the Court has reversed, often sum- marily, every lower court finding of estoppel it has reviewed. The Court need not, however, address the Government's suggestion that, in order to avoid confusion in this area, the Court should adopt a flat rule that estoppel will never lie against the Government. A narrower ground of decision controls the type of suit presented in this case.

Pp. 419-424.

(b) A claim for payment of money from the Public Treasury contrary to a statutory appropriation is prohibited by the Appropriations Clause of the Constitution, Art. I, § 9, cl. 7, which provides in effect that such money may be paid out only as authorized by a statute. Thus, judicial use of the equitable doctrine of estoppel cannot grant respondent a

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money remedy that Congress has not authorized. Recognition of eq- uitable estoppel could render the Appropriations Clause a nullity if agents of the Executive were able, by their unauthorized oral or written statements to citizens, to obligate the Treasury contrary to the wishes of Congress. Where Congress wishes to recognize claims for estoppel, it knows how to do so, as it has done by statute in the past. Pp. 424-429. (c) This decision is supported by the Court's estoppel precedents, which have never upheld an estoppel claim against the Government for the payment of money; by provisions of the Federal Tort Claims Act (FTCA) which authorize private suits against the Government based on its agents' torts, but exclude misrepresentation claims similar to Rich- mond's; and by Congress' historical and continuing practice of reserving to itself the power to address hardship claims arising from misinforma- tion or erroneous advice given by Government officials. Although Con- gress has made a general appropriation of funds to pay judgments against the Government under the FTCA and other statutory authoriza- tions for suits against the Government, none of those provisions encom- pass, or authorize payment for, Richmond's claim. A rule of estoppel would invite endless litigation over both real and imagined claims of mis- information, imposing an unpredictable and substantial drain on the pub- lic fisc, and might prompt the Government, in order to limit liability, to cut back and impose strict controls on the free and valuable information it now provides to the public. Pp. 429-434.

862 F. 2d 294, reversed.

KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST,

WHITE, J., filed a concurring opinion, in which BLACKMUN, J., joined, post, p. 434.

STEVENS, J., filed an opinion concurring in the judgment, post, p. 435. MARSHALL, J., filed a dissenting opinion, in which BREN- NAN, J., joined, post, p. 437.

Solicitor General Starr argued the cause for petitioner.

With him on the briefs were Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, William Kanter, and Richard Olderman.

Gill Deford argued the cause for respondent. With him on the brief were Peter Komlos-Hrobsky and Neal S. Dudovitz.

JUSTICE KENNEDY delivered the opinion of the Court.

This case presents the question whether erroneous oral and written advice given by a Government employee to a

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benefits claimant may give rise to estoppel against the Gov- ernment and so entitle the claimant to a monetary payment not otherwise permitted by law. We hold that payments of money from the Federal Treasury are limited to those au- thorized by statute, and we reverse the contrary holding of the Court of Appeals.

Not wishing to exceed a statutory limit on earnings that would disqualify him from a disability annuity, respondent Charles Richmond sought advice from a federal employee and received erroneous information. As a result he earned more than permitted by the eligibility requirements of the relevant statute and lost six months of benefits. Respondent now claims that the erroneous and unauthorized advice should give rise to equitable estoppel against the Government, and that we should order payment of the benefits contrary to the statutory terms. Even on the assumption that much equity subsists in respondent's claim, we cannot agree with him or the Court of Appeals that we have authority to order the pay- ment he seeks.

Respondent was a welder at the Navy Public Works Cen- ter in San Diego, California. He left this position in 1981 after petitioner, the Office of Personnel Management (OPM), approved his application for a disability retirement. OPM determined that respondent's impaired eyesight prevented him from performing his job and made him eligible for a dis- ability annuity under 5 U. S. C. § 8337(a). Section 8337(a) provides this benefit for disabled federal employees who have completed five years of service. The statute directs, how- ever, that the entitlement to disability payments will end if the retired employee is "restored to an earning capacity fairly comparable to the current rate of pay of the position occupied at the time of retirement."

§ 8337(d).

The statutory rules for restoration of earning capacity are central to this case. Prior to 1982, an individual was deemed

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restored to earning capacity, and so rendered ineligible for a disability annuity, if

"in each of 2 succeeding calendar years the income of the annuitant from wages or self-employment.... equals at least 80 percent of the current rate of pay of the position occupied immediately before retirement."

§ 8337(d) (1976 ed.) (emphasis added).

The provision was amended in 1982 by the Omnibus Budget Reconciliation Act, Pub. L. 97-253, 96 Stat. 792, to change the measuring period for restoration of earning capacity from

"Earning capacity is deemed restored if in any calendar year the income of the annuitant from wages or self- employment or both equals at least 80 percent of the current rate of pay of the position occupied immediately before retirement."

5 U. S. C. § 8337(d) (emphasis added).

After taking disability retirement for his vision impair- ment, respondent undertook part-time employment as a schoolbus driver. From 1982 to 1985, respondent earned an average of $12,494 in this job, leaving him under the 80% limit for entitlement to continued annuity payments.

In 1986, however, he had an opportunity to earn extra money by working overtime. Respondent asked an employee relations specialist at the Navy Public Works Center's Civilian Person- nel Department for information about how much he could earn without exceeding the 80% eligibility limit. Relying upon the terms of the repealed pre-1982 statute, under which respondent could retain the annuity unless his income ex- ceeded the 80% limit in two consecutive years, the specialist gave respondent incorrect advice. The specialist also gave respondent a copy of Attachment 4 to Federal Personnel Manual Letter 831-64, published by OPM, which also stated the former 2-year eligibility rule. The OPM form was cor- rect when written in 1981; but when given to respondent, the

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form was out of date and therefore inaccurate. Respondent returned to the Navy in January 1987 and again was advised in error that eligibility would be determined under the old 2-year rule.

After receiving the erroneous information, respondent con- cluded that he could take on the extra work as a schoolbus driver in 1986 while still receiving full disability benefits for impaired vision so long as he kept his income for the previous and following years below the statutory level. He earned $19,936 during 1986, exceeding the statutory eligibility limit.

OPM discontinued respondent's disability annuity on June 30, 1987. The annuity was restored on January 1, 1988, since respondent did not earn more than allowed by the statute in 1987. Respondent thus lost his disability payments for a 6-month period, for a total amount of $3,993.

Respondent appealed the denial of benefits to the Merit Systems Protection Board (MSPB). He argued that the er- roneous advice given him by the Navy personnel should estop OPM and bar its finding him ineligible for benefits under the statute. The MSPB rejected this argument, noting that the officials who misinformed respondent were from the Navy, not OPM. The MSPB observed that, "[h]ad [respondent] di- rected his request for information to the OPM, presumably, he would have learned of the change in the law." The MSPB held that "OPM cannot be estopped from enforcing a statu- torily imposed requirement for retirement eligibility." App. to Pet. for Cert. 22a. The MSPB denied respondent's peti- tion for review, and respondent appealed to the Court of Ap- peals for the Federal Circuit.

A divided panel of the Court of Appeals reversed, accept- ing respondent's contention that the misinformation from Navy personnel estopped the Government, and that the es- toppel required payment of disability benefits despite the statutory provision to the contrary. The Court of Appeals acknowledged the longstanding rule that "ordinarily the gov- ernment may not be estopped because of erroneous or unau-

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thorized statements of government employees when the as- serted estoppel would nullify a requirement prescribed by Congress."

862 F. 2d 294, 296 (1988). Nonetheless, the Court of Appeals focused on this Court's statement in an ear- lier case that "we are hesitant ... to say that there are no cases" where the Government might be estopped. Heckler

v. Community Health Services of Crawford County, Inc.,

467 U. S. 51, 60 (1984). The Court of Appeals then dis- cussed other Court of Appeals and District Court opinions that had applied estoppel against the Government.

The Court of Appeals majority decided that "[b]ased on the Supreme Court's acknowledgment that the estoppel against the government is not foreclosed and based on court of ap- peals rulings applying estoppel against the government, our view is that estoppel is properly applied against the govern- ment in the present case."

862 F. 2d, at 299. The Court reasoned that the provision of the out-of-date OPM form was "affirmative misconduct" that should estop the Government from denying respondent benefits in accordance with the statute. The facts of this case, it held, are "sufficiently unusual and extreme that no concern is warranted about ex- posing the public treasury to estoppel in broad or numerous categories of cases."

Judge Mayer dissented, stating that the majority opinion made "a chasm out of the crack the Supreme Court left open in Community Health Services," and that the award of benefits to respondent "con- travenes the express mandate of Congress in 5 U. S. C. § 8337(d) .. .and Supreme Court precedent."

Id., at 301, 303.

Id., at 301.

We granted certiorari, 493 U. S. 806 (1989).

From our earliest cases, we have recognized that equitable estoppel will not lie against the Government as it lies against private litigants.

In Lee v. Munroe & Thornton, 7 Cranch 366 (1813), we held that the Government could not be bound

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by the mistaken representations of an agent unless it were clear that the representations were within the scope of the agent's authority.

In The Floyd Acceptances, 7 Wall. 666 (1869), we held that the Government could not be compelled to honor bills of exchange issued by the Secretary of War where there was no statutory authority for the issuance of the bills.

In Utah Power & Light Co. v. United States, 243

U. S. 389, 408-409 (1917), we dismissed the argument that

unauthorized representations by agents of the Government estopped the United States to prevent erection of power houses and transmission lines across a public forest in viola- tion of a statute: "Of this it is enough to say that the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit."

The principles of these and many other cases were reit- erated in Federal Crop Ins. Corporation v. Merrill, 332

U. S. 380 (1947), the leading case in our modern line of estop-

pel decisions.

In Merrill, a farmer applied for insurance under the Federal Crop Insurance Act to cover his wheat farming operations. An agent of the Federal Crop Insur- ance Corporation advised the farmer that his entire crop qualified for insurance, and the farmer obtained insurance through the Corporation. After the crop was lost, it was discovered that the agent's advice had been in error, and that part of the farmer's crop was reseeded wheat, not eligible for federal insurance under the applicable regulation. While we recognized the serious hardship caused by the agent's mis- information, we nonetheless rejected the argument that his representations estopped the Government to deny insurance benefits. We recognized that "not even the temptations of a hard case" will provide a basis for ordering recovery contrary to the terms of the regulation, for to do so would disregard "the duty of all courts to observe the conditions defined by Congress for charging the public treasury."

Id., at 385-386.

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Despite the clarity of these earlier decisions, dicta in our more recent cases have suggested the possibility that there might be some situation in which estoppel against the Government could be appropriate. The genesis of this idea appears to be an observation found at the end of our opin- ion in Montana v. Kennedy, 366 U. S. 308 (1961).

In that case, petitioner brought a declaratory judgment action seek- ing to establish his American citizenship. After discussing petitioner's two statutory claims at length, we rejected the final argument that a consular official's erroneous advice to petitioner's mother that she could not return to the United States while pregnant prevented petitioner from having been born in the United States and thus deprived him of United States citizenship. Our discussion was limited to the ob- servation that in light of the fact that no legal obstacle prevented petitioner's mother from returning to the United States,

"what may have been only the consular official's well- meant advice-'I am sorry, Mrs., you cannot [return to the United States] in that condition'-falls far short of misconduct such as might prevent the United States from relying on petitioner's foreign birth.

In this situa- tion, we need not stop to inquire whether, as some lower courts have held, there may be circumstances in which the United States is estopped to deny citizenship be- cause of the conduct of its officials."

Id., at 314-315.

The proposition about which we did not "stop to inquire" in Kennedy has since taken on something of a life of its own.

Our own opinions have continued to mention the possibility, in the course of rejecting estoppel arguments, that some type of "affirmative misconduct" might give rise to estoppel against the Government. See INS v. Hibi, 414 U. S. 5, 8 (1973) (per curiam) ("While the issue of whether 'affirmative misconduct' on the part of the Government might estop it from denying citizenship was left open in Montana v. Ken- nedy, 366 U. S. 308, 314, 315 (1961), no conduct of the sort

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there adverted to was involved here"); Schweiker v. Hansen, 450 U. S. 785, 788 (1981) (per curiam) (denying an estoppel claim for Social Security benefits on the authority of Merrill, supra, but observing that the Court "has never decided what type of conduct by a Government employee will estop the Government from insisting upon compliance with valid regu- lations governing the distribution of welfare benefits"); INS

v. Miranda, 459 U. S. 14, 19 (1982) (per curiam) ("This case

does not require us to reach the question we reserved in Hibi, whether affirmative misconduct in a particular case would estop the Government from enforcing the immigration laws"); Heckler v. Community Health Services, 467 U. S., at 60 ("We have left the issue open in the past, and do so again today").

The language in our decisions has spawned numerous claims for equitable estoppel in the lower courts. As Jus- TICE MARSHALL stated in dissent in Hansen, supra, "[tihe question of when the Government may be equitably estopped has divided the distinguished panel of the Court of Appeals in this case, has received inconsistent treatment from other Courts of Appeals, and has been the subject of considerable ferment." 450 U. S., at 791 (citing cases). Since that ob- servation was made, federal courts have continued to accept estoppel claims under a variety of rationales and analyses.

In sum, Courts of Appeals have taken our statements as an invitation to search for an appropriate case in which to apply estoppel against the Government, yet we have reversed Indeed, no every finding of estoppel that we have reviewed. less than three of our most recent decisions in this area have been summary reversals of decisions upholding estoppel claims. See Hibi, supra; Hansen, supra; Miranda, supra.

Summary reversals of courts of appeals are unusual under any circumstances. The extraordinary number of such dis- positions in this single area of the law provides a good indica- tion that our approach to these cases has provided inadequate

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guidance for the federal courts and served only to invite and prolong needless litigation.

The Solicitor General proposes to remedy the present con- fusion in this area of the law with a sweeping rule. As it has in the past, the Government asks us to adopt "a flat rule that estoppel may not in any circumstances run against the Gov- ernment." Community Health Services, supra, at 60. The Government bases its broad rule first upon the doctrine of sovereign immunity. Noting that the "'United States, as sovereign, is immune from suit save as it consents to be sued,"' United States v. Mitchell, 445 U. S. 535, 538 (1980), petitioner asserts that the courts are without jurisdiction to entertain a suit to compel the Government to act contrary to a statute, no matter what the context or circumstances. See Brief for Petitioner 12-13. Petitioner advances as a second basis for this rule the doctrine of separation of powers. Peti- tioner contends that to recognize estoppel based on the mis- representations of Executive Branch officials would give those misrepresentations the force of law, and thereby in- vade the legislative province reserved to Congress. This ra- tionale, too, supports the petitioner's contention that estop- pel may never justify an order requiring executive action contrary to a relevant statute, no matter what statute or what facts are involved.

We have recognized before that the "arguments the Gov- ernment advances for the rule are substantial." Community Health Services, supra, at 60. And we agree that this case should be decided under a clearer form of analysis than "we will know an estoppel when we see one." Hansen, supra, at 792 (MARSHALL, J., dissenting). But it remains true that we need not embrace a rule that no estoppel will lie against the Government in any case in order to decide this case. We leave for another day whether an estoppel claim could ever succeed against the Government. A narrower ground of de- cision is sufficient to address the type of suit presented here,

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a claim for payment of money from the Public Treasury con- trary to a statutory appropriation.

The Appropriations Clause of the Constitution, Art. I, § 9, cl. 7, provides that: "No Money shall be drawn from the Treas- ury, but in Consequence of Appropriations made by Law."

For the particular type of claim at issue here, a claim for money from the Federal Treasury, the Clause provides an ex- plicit rule of decision. Money may be paid out only through an appropriation made by law; in other words, the payment of money from the Treasury must be authorized by a statute.

All parties here agree that the award respondent seeks would be in direct contravention of the federal statute upon which his ultimate claim to the funds must rest, 5 U. S. C. § 8337. The point is made clearer when the appropriation supporting the benefits sought by respondent is examined.

In the same subchapter of the United States Code as the eli- gibility requirements, Congress established the Civil Service Retirement and Disability Fund. § 8348(a)(1)(A). That sec- tion states in pertinent part: "The Fund ... is appropriated for the payment of ... benefits as provided by this subchap- ter . .

(Emphasis added.) The benefits respondent claims were not "provided by" the relevant provision of the subchapter; rather, they were specifically denied.

It follows that Congress has appropriated no money for the payment of the benefits respondent seeks, and the Constitution prohibits that any money "be drawn from the Treasury" to pay them.

Our cases underscore the straightforward and explicit com- mand of the Appropriations Clause.

"It means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress." Cincinnati Soap Co.

v. United States, 301 U. S. 308, 321 (1937) (citing Reeside v.

Walker, 11 How. 272,291 (1851)).

In Reeside, supra, we ad- dressed a claim brought by the holder of a judgment of in- debtedness against the United States that the Secretary of

. ."

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the Treasury of the United States should be ordered to enter the claim upon the books of the Treasury so that the debt might be paid.

In rejecting petitioner's claim for relief, we stated as an alternative ground for decision that if

"the petition in this case was allowed so far as to order the verdict against the United States to be entered on the books of the Treasury Department, the plaintiff would be as far from having a claim on the Secretary or Treasurer to pay it as now. The difficulty in the way is the want of any appropriation by Congress to pay this claim.

It is a well-known constitutional provision, that no money can be taken or drawn from the Treasury ex- cept under an appropriation by Congress. See Con- stitution, art. 1, § 9 (1 Stat. at Large, 15).

"However much money may be in the Treasury at any one time, not a dollar of it can be used in the payment of any thing not thus previously sanctioned. Any other course would give to the fiscal officers a most dangerous discretion."

Id., at 291.

The command of the Clause is not limited to the relief avail- able in a judicial proceeding seeking payment of public funds.

Any exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid res- ervation of congressional control over funds in the Treasury.

We have held, for example, that while the President's pardon power may remove all disabilities from one convicted of trea- son, that power does not extend to an order to repay from the Treasury the proceeds derived from the sale of the convict's

"So, also, if the proceeds have been paid into the treas- ury, the right to them has so far become vested in the United States that they can only be secured to the for- mer owner of the property through an act of Congress.

Moneys once in the treasury can only be withdrawn by an appropriation by law. However large, therefore,

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may be the power of pardon possessed by the President, and however extended may be its application, there is this limit to it, as there is to all his powers, -it cannot touch moneys in the treasury of the United States, ex- cept expressly authorized by act of Congress." Knote v.

United States, 95 U. S. 149, 154 (1877).

Just as the pardon power cannot override the command of the Appropriations Clause, so too judicial use of the equitable doctrine of estoppel cannot grant respondent a money rem- edy that Congress has not authorized.

See INS v. Pan- gilinan, 486 U. S. 875, 883 (1988) ("'Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law"').

We have not had occasion in past cases presenting claims of estoppel against the Government to discuss the Appropria- tions Clause, for reasons that are apparent. Given the strict rule against estoppel applied as early as 1813 in Lee v. Mun- roe & Thornton, 7 Cranch 366, claims of estoppel could be dis- missed on that ground without more.

In our cases following Montana v. Kennedy, 366 U. S. 308 (1961), reserving the possibility that estoppel might lie on some facts, we have held only that the particular facts presented were insufficient.

As discussed supra, at 423-424, we decline today to accept the Solicitor General's argument for an across-the-board no- estoppel rule. But this makes it all the more important to state the law and to settle the matter of estoppel as a basis for money claims against the Government.

Our decision is consistent with both the holdings and the rationale expressed in our estoppel precedents. Even our recent cases evince a most strict approach to estoppel claims involving public funds. See Community Health Services, 467 U. S., at 63 ("Protection of the public fisc requires that those who seek public funds act with scrupulous regard for the requirements of law"). The course of our jurisprudence shows why: Opinions have differed on whether this Court has ever accepted an estoppel claim in other contexts, see id.,

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at 60 (suggesting that United States v. Pennsylvania In- dustrial Chemical Corp., 411 U. S. 655 (1973) (PICCO), was decided on estoppel grounds); 467 U. S., at 68 (opinion of REHNQUIST, J.) (PICCO not an estoppel case), but not a sin- gle case has upheld an estoppel claim against the Government for the payment of money. And our cases denying estoppel are animated by the same concerns that prompted the Fram- ers to include the Appropriations Clause in the Constitution.

"The object is apparent upon the slightest examination.

It is to secure regularity, punctuality, and fidelity, in the disbursements of the public money. As all the taxes raised from the people, as well as revenues arising from other sources, are to be applied to the discharge of the expenses, and debts, and other engagements of the government, it is highly proper, that congress should possess the power to decide how and when any money If it were other- should be applied for these purposes. wise, the executive would possess an unbounded power over the public purse of the nation; and might apply all its moneyed resources at his pleasure. The power to control and direct the appropriations, constitutes a most useful and salutary check upon profusion and extrava- gance, as well as upon corrupt influence and public pecu- lation. . . ." 2 Commentaries on the Constitution of the United States § 1348 (3d ed. 1858).

The obvious practical consideration cited by Justice Story for adherence to the requirement of the Clause is the neces- sity, existing now as much as at the time the Constitution was ratified, of preventing fraud and corruption. We have long ago accepted this ground as a reason that claims for es- toppel cannot be entertained where public money is at stake, refusing to "introduce a rule against an abuse, of which, by improper collusions, it would be very difficult for the public to protect itself." Lee, supra, at 370. But the Clause has a more fundamental and comprehensive purpose, of direct rele-

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vance to the case before us.

It is to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not accord- ing to the individual favor of Government agents or the indi- vidual pleas of litigants.

Extended to its logical conclusion, operation of estoppel against the Government in the context of payment of money from the Treasury could in fact render the Appropriations Clause a nullity.

If agents of the Executive were able, by their unauthorized oral or written statements to citizens, to obligate the Treasury for the payment of funds, the control over public funds that the Clause reposes in Congress in ef- fect could be transferred to the Executive.

If, for example, the President or Executive Branch officials were displeased with a new restriction on benefits imposed by Congress to ease burdens on the fisc (such as the restriction imposed by the statutory change in this case) and sought to evade them, agency officials could advise citizens that the restrictions were inapplicable. Estoppel would give this advice the prac- tical force of law, in violation of the Constitution.

It may be argued that a rule against estoppel could have the opposite result, that the Executive might frustrate con- gressional intent to appropriate benefits by instructing its agents to give claimants erroneous advice that would deprive them of the benefits. But Congress may always exercise its power to expand recoveries for those who rely on mistaken advice should it choose to do so.

In numerous other contexts where Congress has been concerned at the possibility of sig- nificant detrimental reliance on the erroneous advice of Gov- ernment agents, it has provided appropriate legislative re- lief. See, e. g., Federal Election Campaign Act of 1971, 2

U. S. C. §§ 437f and 438(e); Federal Trade Commission Act,

15 U. S. C. §57b-4; Securities Act of 1933, 15 U. S. C. § 77s(a); Truth in Lending Act, 15 U. S. C. § 1640(f); Portal- to-Portal Act of 1947, 29 U. S. C. § 259; Employee Retire- ment Income Security Act of 1974, 29 U. S. C. § 1028; Tech-

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100-647, §8018, 102 Stat. 3794.

One example is of particular relevance.

In Schweiker v.

Hansen, 450 U. S. 785 (1981), we rejected an estoppel claim made by a Social Security claimant who failed to file a timely written application for benefits as required by the relevant statute. Congress then addressed such situations in the Budget Reconciliation Act of 1989 by providing that for claims to old age, survivors, and disability insurance, and for sup-

"In any case in which it is determined to the satisfaction of the Secretary that an individual failed as of any date to apply for monthly insurance benefits under this title by reason of misinformation provided to such individual by any officer or employee of the Social Security Adminis- tration relating to such individual's eligibility for benefits under this title, such individual shall be deemed to have applied for such benefits on the later of [the date on which the misinformation was given or the date upon which the applicant became eligible for benefits apart from the application requirement]." Pub. L. 101-239, § 10302, 103 Stat. 2481.

The equities are the same whether executive officials' errone- ous advice has the effect of frustrating congressional intent to withhold funds or to pay them.

In the absence of estoppel for money claims, Congress has ready means to see that pay- ments are made to those who rely on erroneous Government advice.

Judicial adoption of estoppel based on agency mis- information would, on the other hand, vest authority in these agents that Congress would be powerless to constrain.

The provisions of the Federal Tort Claims Act (FTCA), 28

U. S. C. §§ 1346(b), 2671 et seq., also provide a strong indica-

tion of Congress' general approach to claims based on govern- mental misconduct, and suggest that it has considered and rejected the possibility of an additional exercise of its appro- priation power to fund claims similar to those advanced here.

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The FTCA provides authorization in certain circumstances for suits by citizens against the Federal Government for torts committed by Government agents. Yet the FTCA by its terms excludes both negligent and intentional misrepresenta- tion claims from its coverage. See § 2680(h). The claim brought by respondent is in practical effect one for misrep- resentation, despite the application of the "estoppel" label.

We would be most hesitant to create a judicial doctrine of es- toppel that would nullify a congressional decision against au- thorization of the same class of claims.

Indeed, it would be most anomalous for a judicial order to require a Government official, such as the officers of OPM, to make an extrastatutory payment of federal funds.

It is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress. See 31 U. S. C. §§ 1341, 1350.

If an executive officer on his own initiative had decided that, in fairness, respondent should receive ben- efits despite the statutory bar, the official would risk pros- ecution. That respondent now seeks a court order to effect the same result serves to highlight the weakness and novelty of his claim.

The whole history and practice with respect to claims against the United States reveals the impossibility of an es- toppel claim for money in violation of a statute. Congress' early practice was to adjudicate each individual money claim against the United States, on the ground that the Appropria- tions Clause forbade even a delegation of individual adjudica- tory functions where payment of funds from the Treasury was involved. See W. Cowen, P. Nichols, & M. Bennett, The United States Court of Claims, A History, 216 Ct. Cl. 1, 5 (1978). As the business of the Federal Legislature has grown, Congress has placed the individual adjudication of claims based on the Constitution, statutes, or contracts, or on specific authorizations of suit against the Government, with the Judiciary. See, e. g., the Tucker Act, 28 U. S. C.

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§§ 1346, 1491. But Congress has always reserved to itself the power to address claims of the very type presented by respondent, those founded not on any statutory authority, but upon the claim that "the equities and circumstances of a case create a moral obligation on the part of the Government to extend relief to an individual." Subcommittee on Admin- istrative Law and Governmental Relations of the House Com- mittee on the Judiciary, Supplemental Rules of Procedure for Private Claims Bills, 101st Cong., 1st Sess., 2 (Comm. Print 1989).

In so-called "congressional reference" cases, Congress re- fers proposed private bills to the United States Claims Court for an initial determination of the merits of the claim, but re- tains final authority over the ultimate appropriation. See 28

U. S. C. §§ 1492, 2509(c). Congress continues to employ pri-

vate legislation to provide remedies in individual cases of hardship. See, e. g., Priv. L. 99-3, 100 Stat. 4314, and 131 Cong. Rec. 9675 (1985) (waiving statutory deadline under 5

U. S. C. § 8337(d) where petitioner failed to make timely

application due to misinformation of Government personnel officer); Priv. L. 100-37, 102 Stat. 4860, and H. R. Rep.

No. 291, 100th Cong., 1st Sess. (1987) (awarding funds lost by servicemen who joined wrong retirement plan in reliance on erroneous advice). Where sympathetic facts arise, cf. post, at 435-436 (STEVENS, J., concurring in judgment), these examples show the means by which those facts can be ad- dressed.

In short, respondent asks us to create by judicial innovation an authority over funds that is assigned by the Constitution to Congress alone, and that Congress has not seen fit to delegate.

Congress has, of course, made a general appropriation of funds to pay judgments against the United States rendered under its various authorizations for suits against the Govern- ment, such as the Tucker Act and the FTCA. See 31 U. S. C. § 1304. But respondent's claim for relief does not arise under any of these provisions. Rather, he sought and ob-

Opinion of the Court

tained an order of enrollment in the disability annuity plan, 5 U. S. C. §8337, in direct violation of that plan's require- ments. See 862 F. 2d, at 301 (remanding respondent's case to the MSPB "with instructions to direct the agency to issue the withheld disability benefits to Mr. Richmond").

The general appropriation for payment of judgments, in any event, does not create an all-purpose fund for judicial dis- bursement. A law that identifies the source of funds is not to be confused with the conditions prescribed for their pay- ment. Rather, funds may be paid out only on the basis of a judgment based on a substantive right to compensation based on the express terms of a specific statute. This principle is set forth in our leading case on jurisdiction over claims against the Government, United States v. Testan, 424 U. S. 392 (1976). As stated in JUSTICE BLACKMUN'S opinion for

"Where the United States is the defendant and the plain- tiff is not suing for money improperly exacted or re- tained, the basis of the federal claim-whether it be the Constitution, a statute, or a regulation-does not create a cause of action for money damages unless . . . that basis 'in itself... can fairly be interpreted as mandating compensation by the Federal Government for the dam- age sustained."'

Id., at 401-402.

Given this rule, as well as our many precedents establishing that authorizations for suits against the Government must be strictly construed in its favor, see, e. g., Library of Congress

v. Shaw, 478 U. S. 310, 318 (1986); McMahon v. United States,

342 U. S. 25, 27 (1951), we cannot accept the suggestion, post, at 438-440 (MARSHALL, J., dissenting), that the terms of a statute should be ignored based on the facts of individual cases. Here the relevant statute by its terms excludes re- spondent's claim, and his remedy must lie with Congress.

Respondent would have us ignore these obstacles on the ground that estoppel against the Government would have beneficial effects. But we are unwilling to "tamper with

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Opinion of the Court

these established principles because it might be thought that they should be responsive to a particular conception of enlightened governmental policy." Testan, supra, at 400.

And respondent's attempts to justify estoppel on grounds of public policy are suspect on their own terms. Even short of collusion by individual officers or improper executive at- tempts to frustrate legislative policy, acceptance of estoppel claims for Government funds could have pernicious effects.

It ignores reality to expect that the Government will be able to "secure perfect performance from its hundreds of thou- sands of employees scattered throughout the continent."

Hansen v. Harris, 619 F. 2d 942, 954 (CA2 1980) (Friendly, J., dissenting), rev'd sub nom. Schweiker v. Hansen, 450

U. S. 785 (1981). To open the door to estoppel claims would

only invite endless litigation over both real and imagined claims of misinformation by disgruntled citizens, imposing an unpredictable drain on the public fisc. Even if most claims were rejected in the end, the burden of defending such estop- pel claims would itself be substantial.

Also questionable is the suggestion that if the Government is not bound by its agents' statements, then citizens will not trust them and will instead seek private advice from lawyers, accountants, and others, creating wasteful expenses. Al- though mistakes occur, we may assume with confidence that Government agents attempt conscientious performance of their duties and in most cases provide free and valuable in- formation to those who seek advice about Government pro- grams. A rule of estoppel might create not more reliable advice, but less advice. See Hansen, supra, at 788-789, and

n. 5. The natural consequence of a rule that made the Gov-

ernment liable for the statements of its agents would be a decision to cut back and impose strict controls upon Govern- ment provision of information in order to limit liability. Not only would valuable informational programs be lost to the public, but the greatest impact of this loss would fall on those of limited means, who can least afford the alternative of

WHITE, J., concurring

private advice. See Braunstein, In Defense of a Traditional Immunity-Toward an Economic Rationale for Not Estop- ping the Government, 14 Rutgers L. J. 1 (1982). The inev- itable fact of occasional individual hardship cannot undermine the interest of the citizenry as a whole in the ready availabil- ity of Government information. The rationale of the Appro- priations Clause is that if individual hardships are to be reme- died by payment of Government funds, it must be at the instance of Congress.

Respondent points to no authority in precedent or history for the type of claim he advances today. Whether there are any extreme circumstances that might support estoppel in a case not involving payment from the Treasury is a matter we need not address. As for monetary claims, it is enough to say that this Court has never upheld an assertion of estoppel against the Government by a claimant seeking public funds.

In this context there can be no estoppel, for courts cannot estop the Constitution. The judgment of the Court of Ap- peals is

Reversed.

JUSTICE WHITE, with whom JUSTICE BLACKMUN joins, concurring.

I agree that the Government may not be estopped in cases such as this one and therefore join the opinion and judgment I write separately to note two limitations to of the Court. the Court's decision. First, the Court wisely does not decide that the Government may not be estopped under any circum- In my view, the case principally stances. Ante, at 423. relied on by respondent, United States v. Pennsylvania In- dustrial Chemical Corp., 411 U. S. 655 (1973) (PICCO), may well have been decided on the basis of estoppel. But there is a world of difference between PICCO and this case: In PICCO, the courts were asked to prevent the Government from exercising its lawful discretionary authority in a par- ticular case whereas here the courts have been asked to re- quire the Executive Branch to violate a congressional stat-

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STEVENS, J., concurring in judgment

ute. The Executive Branch does not have the dispensing power on its own, see Kendall v. United States ex rel.

Stokes, 12 Pet. 524, 613 (1838), and should not be granted such a power by judicial authorization.

Second, although the Court states that "[a]ny exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury," ante, at 425, the Court does not state that statutory restrictions on appropriations may never fall even if they violate a command of the Constitution such as the Just Compensation Clause, cf.

Jacobs v. United States, 290 U. S. 13 (1933), or if they encroach on the powers reserved to another branch of the Federal Government. Although Knote v. United States, 95

U. S. 149, 154 (1877), held that the President's pardon power

did not extend to the appropriation of moneys in the Treas- ury without authorization by law for the benefit of pardoned criminals, it did not hold that Congress could impair the Pres- ident's pardon power by denying him appropriations for pen and paper.

JUSTICE STEVENS, concurring in the judgment.

Although I join the Court's judgment, I cannot accept its reasoning. The Appropriations Clause of the Constitution has nothing to do with this case. Payments of pension bene- fits to retired and disabled federal servants are made "in Consequence of Appropriations made by Law" even if in particular cases they are the product of a mistaken in- terpretation of a statute or regulation. The Constitution contemplates appropriations that cover programs -not indi- vidual appropriations for individual payments. The Court's creative reliance on constitutional text is nothing but a red herring.

The dispute in this case is not about whether an appropria- tion has been made; it is instead about what rules govern ad- ministration of an appropriation that has been made. Once the issue is appropriately framed, it quickly becomes obvious

STEVENS, J., concurring in judgment

that the Court's resolution of it is untenable. Three hypo- thetical changes in the facts of this case will illustrate the error in the Court's approach. Assume, first, that the forfeiture involved a permanent and total loss of pension ben- efits rather than a 6-month hiatus. Suppose also that re- spondent was a disabled serviceman, totally incapable of pro- ductive work, who was promised that his benefits would be unaffected if he enlisted in the Reserve forces to show his continuing commitment to his country. Finally, assume that respondent was activated briefly for the sole purpose of en- hancing his earnings, thereby depriving him of his pension permanently. Would the Court apply the harsh rule against estoppel that it announces today? I think not. Unless it found in the statute some unambiguous abrogation of estop- pel principles, the Court would apply them to nullify the for- feiture.

In doing so, the Court would construe the statute in a way consistent with congressional intent and would ensure that the Executive administered the funds appropriated in a manner consistent with the terms of the appropriation.

This case, however, does not involve such extreme facts.

Respondent's loss of benefits was serious but temporary, and, even if we assume that respondent was not adequately compensated for the stress of his increased workload, his ad- ditional earnings certainly mitigated the shortfall in benefits. I agree with JUSTICE MARSHALL that there are strong equi- ties favoring respondent's position, but I am persuaded that unless the 5-to-4 decision in Federal Crop Ins. Corporation

v. Merrill, 332 U. S. 380 (1947), is repudiated by Congress or

this Court, this kind of maladministration must be tolerated. I think the case is closer to Schweiker v. Hansen, 450 U. S. 785 (1981), and Heckler v. Community Health Services of Crawford County, Inc., 467 U. S. 51 (1984), than to Moser v.

United States, 341 U. S. 41 (1951), and United States v.

Pennsylvania Industrial Chemical Corp., 411 U. S. 655 (1973). Accordingly, I concur in the Court's judgment but not its opinion.

414

MARSHALL, J., dissenting JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,

dissenting.

Respondent, a recipient of a federal disability annuity, was unsure whether he could accept limited overtime work with- out forfeiting his right to disability payments. He went to his former Government employer seeking an answer, asked the right questions, received an answer in the form of both oral advice and an official Government publication, and relied on that answer. Unfortunately, the publication the Govern- ment gave Richmond was years out of date, and the oral in- In this case, we must formation was similarly erroneous. decide who should bear the burden of the Government's error.

The majority hints that it is unsympathetic to Richmond's claim that he was treated unfairly, ante, at 416, but it does not rule on that basis. Rather, the majority resolves the issue by holding as a general rule that a litigant may not succeed on a claim for payment of money from the Treasury in the ab- sence of a statutory appropriation. Although the Constitu- tion generally forbids payments from the Treasury without a congressional appropriation,* that proposition does not re- solve this case. Most fundamentally, Richmond's collection of disability benefits would be fully consistent with the rele- vant appropriation. And even if the majority is correct that the statute cannot be construed to appropriate funds for claimants in Richmond's position, petitioner may nonetheless be estopped, on the basis of its prelitigation conduct, from arguing that the Appropriations Clause bars his recovery.

Both the statutory construction and the estoppel arguments *The Court does not decide whether the Appropriations Clause would

bar the Judiciary from ordering payments from the Treasury contrary to a statutory appropriation either where such payment would be required to remedy a violation of another constitutional provision, such as the Due Process or Just Compensation Clause, or where Congress' refusal to appro- priate funds would violate separation of powers. See ante, at 434-435 (WHITE, J., concurring) (noting this limitation on the Court's holding).

MARSHALL, J., dissenting

turn on the equities, and the equities favor Richmond, see 862 F. 2d 294, 299 (CA Fed. 1988).

I therefore dissent.

As the majority notes, the Appropriations Clause gener- ally bars recovery from the Treasury unless the money sought "'has been appropriated by an act of Congress.'" Ante, at 424 (quoting Cincinnati Soap Co. v. United States, 301 U. S. 308, 321 (1937)). The majority acknowledges that Congress has appropriated funds to pay disability annuities in 5 U. S. C. § 8348(a), ante, at 424, but holds that the fund created is intended for the payment of benefits only "as pro- vided by" law, ante, at 424 (quoting § 8348(a)(1)(A)). Section 8337(d) provides that a disability annuity terminates when the annuitant's earning capacity is restored and that such ca- pacity is "deemed restored" if in any calendar year the annu- itant makes more than 80% of the current rate of pay of the position he left. The majority contends on the basis of this provision that paying benefits to an annuitant who has ex- ceeded the 80% limit would violate the Appropriations Clause because such benefits are not "provided by" the statute.

The Court need not read the statute so inflexibly, how- ever. When Congress passes a law to provide a benefit to a class of people, it intends and assumes that the Executive will fairly implement that law. Where necessary to effectu- ate Congress' intent that its statutory schemes be fully im- plemented, this Court therefore often interprets the appar- ently plain words of a statute to allow a claimant to obtain relief where the statute on its face would bar recovery.

In- deed, petitioner itself suggests that the Court was engaging in just such a brand of statutory interpretation in Moser v.

United States, 341 U. S. 41, 47 (1951). Brief for Petitioner 40; Reply Brief for Petitioner 7. The relevant statute in Moser provided that a request by an alien for exemption from military service precluded him from becoming a citizen.

341

U. S., at 42-43, n. 5 (quoting 55 Stat. 845, 50 U. S. C. App.

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MARSHALL, J., dissenting

§ 303(a) (1946 ed.)). The Court interpreted the statute to mean that, "as a matter of law, the statute imposed a valid condition on the claim of a neutral alien for exemption; peti- tioner had a choice of exemption and no citizenship, or no ex- 341 U. S., at 46. Moser was er- emption and citizenship." roneously informed by the State Department that a claim for exemption would not bar him from later obtaining citizen- In those circum- ship, and he relied on that advice. stances, the Court decided, despite the absence of any such provision on the face of the statute, that "nothing less than an intelligent waiver [of the right to citizenship] is required by Id., at 47. The Court therefore held elementary fairness." that Moser's claim for exemption did not bar him from later becoming a citizen.

Ibid.

Moser was not an aberration. Where strict adherence to the literal language of the statute would produce results that Congress would not have desired, this Court has interpreted other statutes to authorize equitable exceptions though the plain language of the statute suggested a contrary result.

In Zipes v. Trans World Airlines, Inc., 455 U. S. 385 (1982), for example, we held that a statute requiring that a plaintiff file a suit under Title VII of the Civil Rights Act of 1964 (Title VII) within 90 days of the alleged unlawful employment practice Id., was "subject to waiver, estoppel, and equitable tolling." at 393 (footnote omitted). See also, e. g., Hallstrom v. Tilla- mook County, 493 U. S. 20, 27 (1989). Similarly, in Crown, Cork & Seal Co. v. Parker, 462 U. S. 345 (1983), we inter- preted Title VII's requirement that suits be filed within 90 days of receiving a notice of right to sue from the Equal Em- ployment Opportunity Commission to be subject to tolling in appropriate circumstances, notwithstanding that the statute on its face did not allow exceptions. See also Burnett v. New York Central R. Co., 380 U. S. 424 (1965) (limitations pro- vision in Federal Employers' Liability Act is subject to tolling).

MARSHALL, J., dissenting

Respect for Congress' purposes in creating the federal dis- ability annuity system and principles of elementary fairness require that we read the statute in this case as not barring Richmond's claim. Perhaps "[t]he equities do not weigh in favor of modifying statutory requirements when the pro- cedural default is caused by petitioners' 'failure to take the minimal steps necessary' to preserve their claims." Hall- strom, supra, at 27-28 (quoting Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 466 (1975)). But the equities surely do weigh in favor of reading the disability annuity statute to authorize payment of the claim of an annuitant rendered ineligible for benefits by his reliance on misinforma- tion from the responsible federal authorities. Cf. Baldwin County Welcome Center v. Brown, 466 U. S. 147, 151 (1984) (suggesting that a party should not be able to claim that a statute of limitations bars a suit "where affirmative misconduct on the part of a defendant lulled the plaintiff into inaction").

Even if the majority is correct that the statute does not it- self require an exception where the Executive has misled a claimant, Richmond should still prevail. Although peti- tioner has an Appropriations Clause argument against any claim for money not authorized by a statutory appropriation, a court is not invariably required to entertain that argument. A number of circumstances may operate to estop the Govern- ment from invoking the Appropriations Clause in a particular case. For example, this Court's normal practice is to refuse to consider arguments not presented in the petition for cer- tiorari. See, e. g., Radio Officers v. NLRB, 347 U. S. 17, 37, n. 35 (1954). This Court customarily applies a similar rule to questions that were not raised in the Court of Ap- peals. See, e. g., Delta Air Lines, Inc. v. August, 450 U. S. 346, 362 (1981). These rules apply to all arguments, even those of constitutional dimension. See, e. g., Holland v. Il- linois, 493 U. S. 474, 487, n. 3 (1990) (refusing to consider

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MARSHALL, J., dissenting

equal protection claim on the ground that it was not pre- sented in petition for certiorari). Thus, had petitioner failed to raise the argument on which it now prevails either in its petition for certiorari or in the Court of Appeals, we likely would have refused to consider it. Of course, we would have had the power to consider the claim. See, e. g., Teague v.

Lane, 489 U. S. 288, 300 (1989) (deciding case on basis of ar- gument "raised only in an amicus brief"). We would not, however, have been obligated to do so.

The grounds on which a court may refuse to entertain an argument are many, but most have an equitable dimension.

The courts' general refusal to consider arguments not raised by the parties, for example, is founded in part on the need to ensure that each party has fair notice of the arguments to which he must respond. Cf. ibid. (justifying departure from rule that arguments not raised by parties will not be consid- ered in part on grounds that issue was raised in amicus brief and that argument was "not foreign to the parties, who have addressed [the argument] with respect to [another of peti- tioner's claims]"). Thus, the Appropriations Clause's bar against litigants' collection of money from the Treasury where payment is not authorized by statute may not be en- forced in a particular case if a court determines that the equi- ties counsel against entertaining the Government's Appropri- ations Clause argument.

The question here is thus similar to ones that we have posed and answered in any number of recent cases, see ante, at 421-422 (summarizing cases): should petitioner in this case be barred from invoking the statutory eligibility requirement (and through it, the Appropriations Clause) because Rich- mond's ineligibility for benefits was due entirely to the Gov- ernment's own error? The majority refuses to answer this question. The Court of Appeals addressed it directly, con- cluding that the facts in this case were so "unusual and ex- treme" that petitioner should be estopped from applying the

MARSHALL, J., dissenting

statutory restrictions to bar Richmond's recovery. with the Court of Appeals' ruling.

I agree

The majority argues that policy concerns justify its general refusal to apply estoppel against the Government in cases in which a claimant seeks unappropriated funds from the Trea- sury. Such a rule is necessary, says the majority, to protect against "fraud and corruption" by Executive Branch officials.

Ante, at 427.

If such officials are "displeased" with a stat- ute, the argument goes, they may misinform the public as to the statute's meaning, thereby binding the Government to the officials' representations. Ante, at 428. The majority's concern with such dangers is undercut, however, by its observation that "Government agents attempt conscientious performance of their duties." Ante, at 433. The majority also contends that even if most claims of equitable estoppel are rejected in the end, "open[ing] the door" to such claims would impose "an unpredictable drain on the public fisc."

Ante, at 433. The door has been open for almost 30 years, with an apparently unnoticeable drain on the public fisc.

This reality is persuasive evidence that the majority's fears are overblown.

Significant policy concerns would of course be implicated by an indiscriminate use of estoppel against the Government.

But estoppel is an equitable doctrine. As such, it can be tai- lored to the circumstances of particular cases, ensuring that fundamental injustices are avoided without seriously endan- gering the smooth operation of statutory schemes.

In this case, the Federal Circuit undertook a thorough examination of the circumstances and concluded that denying Richmond his pension simply because he followed the Government's ad- vice would be fundamentally unjust.

The majority does not reject the court's findings on the facts but rejects Richmond's claim on the theory that, except where the Constitution requires otherwise, see n., supra,

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MARSHALL, J., dissenting

equitable estoppel may not be applied against the Govern- ment where the claimant seeks unappropriated funds from the Treasury. This Court has never so much as mentioned the Appropriations Clause in the context of a discussion of equitable estoppel, cf., e. g., Heckler v. Community Health Services of Crawford County, Inc., 467 U. S. 51, 60 (1984) (considering constitutional objections to applying estoppel against the Government in context of claim for payment from the Treasury contrary to an appropriation, but nowhere men- tioning the Appropriations Clause), nor has the majority's theory ever before been discussed, much less adopted, by any court. This lack of precedent for the majority's position is not surprising because the Appropriations Clause does not speak either to the proper interpretation of any statute or to the question whether the Government should be estopped from invoking the Clause in a particular case.

I dissent.