Case: 19-1633       Document: 73           Page: 1       Filed: 08/14/2020




   United States Court of Appeals
       for the Federal Circuit
                     ______________________

        COMMUNITY HEALTH CHOICE, INC.,
               Plaintiff-Appellee

                                     v.

                       UNITED STATES,
                      Defendant-Appellant
                     ______________________

                           2019-1633
                     ______________________

    Appeal from the United States Court of Federal Claims
 in No. 1:18-cv-00005-MMS, Chief Judge Margaret M.
 Sweeney.

      -----------------------------------------------------------------

      MAINE COMMUNITY HEALTH OPTIONS,
               Plaintiff-Appellee

                                     v.

                       UNITED STATES,
                      Defendant-Appellant
                     ______________________

                           2019-2102
                     ______________________
Case: 19-1633    Document: 73     Page: 2   Filed: 08/14/2020




 2               COMMUNITY HEALTH CHOICE    v. UNITED STATES



    Appeal from the United States Court of Federal Claims
 in No. 1:17-cv-02057-MMS, Chief Judge Margaret M.
 Sweeney.
                 ______________________

                 Decided: August 14, 2020
                  ______________________

    WILLIAM LEWIS ROBERTS, Faegre Drinker Biddle &
 Reath LLP, Minneapolis, MN, argued for plaintiff-appellee
 in 19-1633. Also represented by JONATHAN WILLIAM
 DETTMANN, NICHOLAS JAMES NELSON.

     DANIEL WILLIAM WOLFF, Crowell & Moring, LLP,
 Washington, DC, argued for plaintiff-appellee in 19-2102.
 Also represented by STEPHEN JOHN MCBRADY, SKYE
 MATHIESON, CHARLES BAEK, CLIFTON S. ELGARTEN.

     ALISA BETH KLEIN, Appellate Staff, Civil Division,
 United States Department of Justice, Washington, DC, ar-
 gued for defendant-appellant. Also represented by MARK
 B. STERN, ETHAN P. DAVIS.

      STEPHEN A. SWEDLOW, Quinn Emanuel Urquhart &
 Sullivan, LLP, Chicago, IL, for amicus curiae Common
 Ground Healthcare Cooperative. Also represented by
 DAVID COOPER, New York, NY; J. D. HORTON, ADAM
 WOLFSON, Los Angeles, CA.
                 ______________________

     Before DYK, BRYSON, and TARANTO, Circuit Judges.
 DYK, Circuit Judge.
     Today in Sanford Health Plan v. United States (“San-
 ford”), No. 19-1290, we hold that the United States failed
 to comply with section 1402 of the Patient Protection and
 Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat.
 119, 220–24 (2010) (codified at 42 U.S.C. § 18071)—which
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 COMMUNITY HEALTH CHOICE   v. UNITED STATES                 3



 requires the government to reimburse insurers for “cost-
 sharing reductions.” We hold that section 1402 “imposes
 an unambiguous obligation on the government to pay
 money and that the obligation is enforceable through a
 damages action in the Court of Federal Claims [(‘Claims
 Court’)] under the Tucker Act.” Sanford, No. 19-1290, slip
 op. at 3.
      In these cases, following our decision in Sanford, we
 affirm the Claims Court’s decisions as to liability. As in
 Sanford, we conclude that the government is not entitled
 to a reduction in damages with respect to cost-sharing re-
 ductions not paid in 2017. As to 2018, we address an issue
 not presented in Sanford: the appropriate measure of dam-
 ages. We hold that the Claims Court must reduce the in-
 surers’ damages by the amount of additional premium tax
 credit payments that each insurer received as a result of
 the government’s termination of cost-sharing reduction
 payments. We reverse and remand for further proceedings
 with respect to damages.
                       BACKGROUND
                              I
     In 2010, Congress enacted the ACA, which includes “a
 series of interlocking reforms designed to expand coverage
 in the individual health insurance market.” King v. Bur-
 well, 135 S. Ct. 2480, 2485 (2015). “[T]he Act requires the
 creation of an ‘[e]xchange’ in each State—basically, a mar-
 ketplace that allows people to compare and purchase insur-
 ance plans.” Id. Insurance plans sold on the ACA
 exchanges must provide a minimum level of “essential
 health benefits” and are referred to as “qualified health
 plans.” See 42 U.S.C. § 18031. The ACA defines four levels
 of coverage: bronze, silver, gold, and platinum, which are
 based on the percentage of essential health benefits that
 the insurer pays for under each type of plan. Sanford, No.
 19-1290, slip op. at 4. For example, under a silver-level
 plan, the health insurance provider pays for 70 percent of
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 4               COMMUNITY HEALTH CHOICE      v. UNITED STATES



 the actuarial value of the benefits, and either the insured
 or the government pays the remaining 30 percent. Id.
     Under most health insurance plans, the insured indi-
 vidual must bear two types of costs. First, the insured
 must pay a monthly premium to maintain coverage. Sec-
 ond, the insured must pay an additional fee—called “cost-
 sharing”—when medical expenses are incurred. Deducti-
 bles, coinsurance, and co-payments are examples of such
 fees. See 42 U.S.C. § 18022(c)(3)(A)(i). The ACA includes
 two sections, 1401 and 1402, that reduce the premiums and
 cost-sharing for low-income insureds by government pay-
 ments to the insurers. These sections “work together: the
 [premium reductions] help people obtain insurance, and
 the cost-sharing reductions help people get treatment once
 they have insurance.” See Cmty. Health Choice, Inc. v.
 United States, 141 Fed. Cl. 744, 750 (2019) (quoting Cali-
 fornia v. Trump, 267 F. Supp. 3d 1119, 1123 (N.D. Cal.
 2017)). These sections apply to taxpayers with a household
 income of between 100 percent and 400 percent of the fed-
 eral poverty line.      See 42 U.S.C. § 18071(b)(2); 26
 U.S.C. § 36B(c)(1)(A); Sanford, No. 19-1290, slip op. at 5, 7.
 The statute refers to them as “applicable taxpayer[s]” in
 the case of section 1401, 26 U.S.C. § 36B(c)(1)(A), and “eli-
 gible insured[s]” in the case of section 1402, 42 U.S.C.
 § 18071(b).
     Premium reductions. Under section 1401, each “appli-
 cable taxpayer” enrolled in an ACA exchange plan at any
 level of coverage is entitled to a “premium assistance credit
 amount” (“premium tax credit”) to offset part of the
 monthly premiums of the enrollee entitled to the premium
 tax credit. 26 U.S.C. § 36B. The ACA specifies a formula
 for determining the amount of premium tax credits, which
 depends on the applicable taxpayer’s household income,
 but not on the monthly premium or the coverage level for
 the applicable taxpayer’s plan. The premium tax credit
 cannot exceed the actual monthly premium for the individ-
 ual’s plan. See id. § 36B(b)(2). The government pays these
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 COMMUNITY HEALTH CHOICE     v. UNITED STATES                 5



 premium tax credit amounts directly to insurers. See San-
 ford, No. 19-1290, slip op. at 8; 31 U.S.C. § 1324. Thus, the
 amount of the premiums charged by the insurers to the in-
 sured is effectively reduced.
     Premium review. The ACA includes various measures
 for regulating insurance premiums. Section 1003 of the
 ACA establishes a “premium review process” that requires
 insurers to report their premium rate increases to the Sec-
 retary of Health and Human Services (“the Secretary”) and
 state regulators. See 42 U.S.C. § 300gg-94 (codifying ACA
 section 1003). State authorities can review the proposed
 rates. However, “[t]he rate review process does not estab-
 lish federal authority to deny implementation of a proposed
 rate increase; it is a sunshine provision designed to publicly
 expose rate increases determined to be unreasonable.” See
 Bernadette Fernandez, Vanessa C. Forsberg & Ryan J.
 Rosso, Cong. Rsch. Serv., R45146, Federal Requirements
 on Private Health Insurance Plans 9 (2018). If a state reg-
 ulator finds that an insurer’s premium rate increases are
 “excessive or unjustified,” it is required to recommend that
 the Secretary “exclude[] [the insurer] from participation in
 the [state] [e]xchange.” 42 U.S.C. § 300gg-94(b)(1)(B).
      Following the enactment of the ACA, states have taken
 a varied approach to premium rate review programs.
 Some, but not all, states have reserved the express author-
 ity to approve or deny premium rate increases. See Mark
 Newsom & Bernadette Fernandez, Cong. Rsch. Serv.,
 R41588, Private Health Insurance Premiums and Rate Re-
 views 15 (2011) (“There is substantive variation in state
 regulation of health insurance rates.”). In states where
 there is no express approval requirement, insurers are still
 required to notify state regulators of premium increases
 above a certain threshold. See 42 U.S.C. § 300gg-94(a)(2);
 Fernandez et al., Federal Requirements on Private Health
 Insurance Plans at 9. The damages issue here does not
 turn on whether the states have required express approval
 of premium increases.
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 6                COMMUNITY HEALTH CHOICE     v. UNITED STATES



      Cost-sharing reductions. Section 1402 of the ACA re-
 quires insurers to reduce the insured’s “cost-sharing” pay-
 ments and requires the Secretary to “make periodic and
 timely payments to the [insurer] equal to the value of the
 [cost-sharing] reductions.” 42 U.S.C. § 18071(c)(3)(A). The
 section applies to “eligible insured[s]” enrolled in silver-
 level plans offered on the exchanges. Id. § 18071(a), (b).
 Eligibility under section 1402 is tied to eligibility under
 section 1401, and the amount of cost-sharing reductions is
 directly tied to the household income of the eligible insured.
 See Id. § 18071(c), (f)(2); Sanford, No. 19-1290, slip op. at 7
 n.2.
                               II
     On October 12, 2017, the Secretary announced that the
 government would cease payment of cost-sharing reduction
 reimbursements. Sanford, No. 19-1290, slip op. at 11–12.
 The suspension of cost-sharing reduction reimbursements
 did not relieve the insurers of their statutory obligation to
 “offer plans with cost-sharing reductions to customers,”
 meaning that “the federal government’s failure to meet its
 [cost-sharing reduction] payment obligations meant the in-
 surance companies would be losing that money.” Califor-
 nia, 267 F. Supp. 3d at 1134. The solution for the insurers
 was to increase premiums. These states “began working
 with the insurance companies to develop a plan for how to
 respond” “in a fashion that would avoid harm to consum-
 ers.” See id. The resulting plan involved the tax credit pro-
 vision of section 1401 of the ACA.
     Under section 1401, the government is required to sub-
 sidize an amount equal to the lesser of (1) the monthly pre-
 mium for the applicable taxpayer’s plan and (2) the
 difference between the monthly premium for the “applica-
 ble second lowest cost silver plan [(the ‘benchmark plan’)]
 with respect to the taxpayer” and a statutorily-defined per-
 centage of the eligible taxpayer’s monthly household in-
 come.    26 U.S.C. § 36B(b)(2) (codifying ACA section
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 COMMUNITY HEALTH CHOICE    v. UNITED STATES                 7



 1401(b)(2)). This percentage generally varies from 2% to
 9.5% based on the eligible taxpayer’s income relative to the
 federal poverty line. Id. § 36B(b)(3)(A). These payments
 are guaranteed since, unlike the cost-sharing reduction
 payments situation, there is a permanent appropriation for
 premium tax credits. See Sanford, No. 19-1290, slip op. at
 8.
     In effect, if the insurers increased the monthly pre-
 mium for their benchmark silver plans, each insurer would
 receive an additional dollar-for-dollar increase in the
 amount of the premium tax credit for each applicable tax-
 payer under its silver plans, all while keeping the out-of-
 pocket premiums paid by each applicable taxpayer the
 same. See California, 267 F. Supp. 3d at 1134. But pre-
 mium increases for silver-level plans would have an effect
 on other plans as well: the insurers would also receive ad-
 ditional tax credits for applicable taxpayers that were en-
 rolled in bronze, gold, and platinum plans, whether or not
 the premiums for those plans were increased. Id. at 1135.
 Even if the insurers kept premiums the same for those
 other plans, they would receive additional tax credits. See
 id.
     Because of the government’s refusal to make cost-shar-
 ing reduction payments, most states agreed to allow insur-
 ers to raise premiums for silver-level health plans, but not
 for other plans. Cmty., 141 Fed. Cl. at 755; Me. Cmty.
 Health Options v. United States, 143 Fed. Cl. 381, 390
 (2019). “As a result, in these states, for everyone between
 100% and 400% of the federal poverty level who wishe[d] to
 purchase insurance on the exchanges, the available tax
 credits r[o]se substantially. Not just for people who pur-
 chase[d] the silver plans, but for people who purchase[d]
 other plans too.” Cmty., 141 Fed Cl. at 755 (quoting Cali-
 fornia, 267 F. Supp. 3d at 1135). And the insurers received
 “more money from the premium tax credit program, . . .
 mitigat[ing] the loss of the cost-sharing reduction
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 8               COMMUNITY HEALTH CHOICE      v. UNITED STATES



 payments.” Id. This practice was referred to as “silver
 loading.” Id.
      This was, however, not a perfect solution. The pre-
 mium tax credits could only offset premium increases for
 applicable taxpayers, i.e., insureds with a household in-
 come of between 100 percent and 400 percent of the federal
 poverty line. Thus, people having a higher household in-
 come would be paying significantly more in premiums for
 their silver-level plans since they did not receive premium
 tax credits. See California, 267 F. Supp. 3d at 1137. States
 took a varied approach to this issue. Although this does
 not appear to be the case in Texas or Maine, some states
 negotiated with insurers to offer off-exchange, silver-equiv-
 alent plans at the pre-silver-load premium rates. Id. Such
 off-exchange policies were not subject to the ACA’s pre-
 mium tax credits or cost-sharing reduction requirements.
 In other states, non-eligible individuals could still switch
 to bronze, gold, or platinum plans (which did not have pre-
 mium rate increases). Id.
                              III
     Community Health Choice, Inc. (“Community”) and
 Maine Community Health Options (“Maine Community”)
 are health insurance providers that sell qualified health
 plans in Texas and Maine, respectively. See Cmty., 141
 Fed. Cl. at 756; Me. Cmty., 143 Fed. Cl. at 391. 1 Both in-
 surers offered cost-sharing reductions, as required under
 section 1402, to insured individuals, 2 and “as with every



     1   Unless otherwise noted, the Claims Court’s deci-
 sions in Community and Maine Community contain identi-
 cal language. For convenience, we limit our citations to
 Community.
     2   For example, the record shows that “approximately
 58% of [Community]’s insured population—over 80,000
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 COMMUNITY HEALTH CHOICE    v. UNITED STATES                 9



 other insurer offering qualified health plans on the ex-
 changes, stopped receiving these payments effective Octo-
 ber 12, 2017.” Cmty., 141 Fed. Cl. at 756.
     The two insurers involved here filed separate actions
 in the Claims Court, asserting that they were entitled to
 recover the unpaid cost-sharing reduction reimbursements
 for 2017 and 2018. 3 The insurers asserted two theories of
 liability. 4 First, the insurers alleged that “in failing to



 individuals—received cost-sharing reductions.” Cmty., 141
 Fed. Cl. at 756.
     3    Community’s complaint also claimed damages re-
 lated to unpaid payments under the ACA’s risk corridors
 program for 2014, 2015, and 2016. Cmty., 141 Fed. Cl.
 at 756. Those claims were addressed by the Supreme
 Court’s decision in Maine Community Health Options v.
 United States, 140 S. Ct. 1308 (2020). Maine Community’s
 complaint in this case did not assert a claim under the risk
 corridors program.
     4    Community asserted a third theory of liability: that
 the government’s failure to pay cost-sharing reduction re-
 imbursements constituted a breach of so-called “Qualified
 Health Plan Issuer” agreements between Community and
 the government, which “require[d] [the government], as
 part of a monthly reconciliation process, to make payments
 to insurers that underestimated their cost-sharing obliga-
 tions and collect payments from insurers who overesti-
 mated their cost-sharing obligations.” Cmty., 141 Fed. Cl.
 at 764–65. The Claims Court held that the obligation to
 reconcile payments was different from the obligation to
 make cost-sharing reduction payments and that the insur-
 ers “ha[d] not established that the . . . [a]greements obli-
 gated the government to make cost-sharing reduction
 payments,” and dismissed Community’s claim for breach of
 an express contract. Id. at 765–66. Community does not
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 10               COMMUNITY HEALTH CHOICE     v. UNITED STATES



 make the cost-sharing reduction payments . . . , the gov-
 ernment violated the statutory and regulatory mandate” of
 the ACA. Id. Second, the insurers alleged that the govern-
 ment’s nonpayment constituted a “breach[] [of] an implied-
 in-fact contract.” Id.
     On the insurers’ motions for summary judgment, the
 Claims Court “conclude[d] that the government’s failure to
 make cost-sharing reduction payments to [the insurers] vi-
 olate[d] 42 U.S.C. § 18071 [(codifying ACA section 1402)]
 and constitute[d] a breach of an implied-in fact contract.”
 Id. at 770. The Claims Court concluded that each insurer
 was entitled to recover as damages the full amount of un-
 paid cost-sharing reduction reimbursements for both 2017
 and 2018. The Claims Court was “unpersuaded by the
 [government]’s . . . contention that [the] insurers’ ability to
 increase premiums for their silver-level qualified health
 plans to obtain greater premium tax credit payments, and
 thus offset any losses from the government’s nonpayment
 of cost-sharing reduction reimbursements,” precluded or
 reduced the insurers’ damages. Id. at 760.
     The government appealed the Claims Court’s decisions
 to this court, challenging the decisions as to both liability
 and damages. We have jurisdiction under 28 U.S.C.
 § 1295(a)(3).
     On April 27, 2020, the Supreme Court issued its deci-
 sion in Maine Community Health Options v. United States,
 140 S. Ct. 1308 (2020), holding that section 1342 of the
 ACA (“[t]he Risk Corridors statute,” id. at 1329), which
 states that the government “shall pay” money to insurers
 offering “unprofitable plans” on the ACA exchanges, id. at
 1316, created a “money-mandating obligation requiring the
 Federal Government to make payments under



 cross-appeal the Claims Court’s dismissal, and we need not
 address it.
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 COMMUNITY HEALTH CHOICE    v. UNITED STATES               11



 [section] 1342’s formula,” id., at 1331, and that health in-
 surance providers were entitled to “seek to collect [such]
 payment through a damages action in the [Claims Court],”
 id.
     Today in Sanford, following the Supreme Court’s deci-
 sion in Maine Community, we hold that the government vi-
 olated its obligation to make cost-sharing reduction
 payments under section 1402; “that the cost-sharing-reduc-
 tion reimbursement provision imposes an unambiguous ob-
 ligation on the government to pay money[;] and that the
 obligation is enforceable through a damages action in the
 [Claims Court] under the Tucker Act.” Sanford, No. 19-
 1290, slip op. at 3.
                         DISCUSSION
                               I
     As noted, the government argues that section 1402 did
 not create a statutory obligation on the part of the govern-
 ment to pay cost-sharing reduction reimbursements and
 that its failure to make payments did not violate the stat-
 ute. Our decision in Sanford resolves these issues in favor
 of the insurers here. Sanford, No. 19-1290, slip op. at 18.
 Because we affirm the Claims Court’s decisions as to stat-
 utory liability, and the damages are the same under either
 theory of liability (as discussed below), we need not address
 the insurers’ implied-in-fact contract theory.
                              II
     The government nonetheless argues that, even if sec-
 tion 1402 created a statutory obligation, the insurers are
 not entitled to recover the full amount of the unpaid 2017
 and 2018 cost-sharing reduction payments as damages.
 We find no merit to the government’s argument that the
 insurers’ 2017 damages should be reduced. Like the insur-
 ers in Sanford, Community and Maine Community did not
 raise their silver-level plan premiums in 2017 or receive
 increased tax credits for that year from the elimination of
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 12               COMMUNITY HEALTH CHOICE       v. UNITED STATES



 the cost-sharing reduction payments. Here, as in Sanford,
 we see no basis for a 2017 damages offset and affirm the
 Claims Court’s award of 2017 damages. See Sanford, No.
 19-1290, slip op. at 9, 12.
                               III
      We turn to the 2018 cost-sharing payments. Neither
 the Supreme Court in Maine Community nor our decision
 in Sanford resolves this question. The government asserts
 that, beginning in 2018, both insurers raised the premiums
 for their silver-level plans “to account for the absence of di-
 rect reimbursement for cost-sharing reductions,” resulting
 in the receipt of increased premium tax credits. See Gov’t
 Suppl. Damages Br. 12–14. It argues that the Claims
 Court erred when it failed to credit the government with
 “economic benefits” flowing from the increased tax credits
 when awarding damages. Id. at 15.
      The government’s theory is based on an analogy to con-
 tract law—specifically, the rule that “a non-breaching
 party is not entitled, through the award of damages, to
 achieve a position superior to the one it would reasonably
 have occupied had the breach not occurred.” LaSalle Tal-
 man Bank, F.S.B. v. United States, 317 F.3d 1363, 1371
 (Fed. Cir. 2003). The government argues that silver load-
 ing was a direct result of the insurers’ mitigation efforts,
 i.e., increasing premiums for silver-level plans, and that
 the insurers’ recovery must be reduced by the additional
 payments the insurers received in the form of tax credits.
     The Claims Court rejected these arguments in both
 cases on the same ground, holding that there was no “stat-
 utory provision permitting the government to use premium
 tax credit payments to offset its cost-sharing reduction pay-
 ment obligation,” and that “[t]he increased amount of pre-
 mium tax credit payments that insurers receive[d]” was
 not a “substitute[]” for its “cost-sharing reduction pay-
 ments.” Cmty., 141 Fed. Cl. at 760. At oral argument, the
 parties agreed that the Claims Court’s decisions rejected
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 COMMUNITY HEALTH CHOICE     v. UNITED STATES               13



 the government’s mitigation theory on the merits. On ap-
 peal, the insurers similarly argue that the “[g]overment
 cannot invoke deductions not set forth in the statute itself.”
 Appellees’ Suppl. Damages Br. 4–5.
                               A
     In addressing the mitigation issue, it is important to
 distinguish between two different types of statutes provid-
 ing for the grant of federal funds: those that impose an “af-
 firmative obligation[]” or “condition[]” in exchange for
 federal funding, and those that do not. Pennhurst State
 Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 24 (1981). The
 Supreme Court has previously “characterized . . . [the for-
 mer category of] Spending Clause legislation as ‘much in
 the nature of a contract: in return for federal funds, the
 [recipients] agree to comply with federally imposed condi-
 tions.” Barnes v. Gorman, 536 U.S. 181, 186 (2002) (third
 alteration in original) (quoting Pennhurst, 451 U.S. at 17).
 On the other hand, the latter category of statutes does not
 involve contract-like obligations. See id. at 186; Pennhurst,
 451 U.S. at 17; Sossamon v. Texas, 563 U.S. 277, 290
 (2011).
      Section 1402 belongs in the first category of Spending
 Clause legislation because it imposes contract-like obliga-
 tions: in exchange for federal funds, the insurers must
 “‘participat[e] in the healthcare exchanges’ under the stat-
 utorily specified conditions.” Sanford, No. 19-1290, slip op.
 at 18 (quoting Me. Cmty., 140 S. Ct. at 1320); see also Nat’l
 Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 576 (2012)
 (analyzing the Medicaid provisions of the ACA as Spending
 Clause legislation). Specifically, in exchange for “the [in-
 surer] . . . reduc[ing] the cost-sharing under [silver plans]
 in the manner specified in [section 1402(c)]” and “no-
 tify[ing] the Secretary of such reductions,” “the Secretary
 shall make periodic and timely payments to the issuer
 equal to the value of the reductions.”            42 U.S.C.
 §§ 18071(a)(2), (c)(3)(A); see also Cmty., 141 Fed. Cl. at 768
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 14               COMMUNITY HEALTH CHOICE      v. UNITED STATES



 (“[T]he cost-sharing reduction program is less of an incen-
 tive program and more of a quid pro quo.”).
      Under these contract-like Spending Clause statutes—
 where the statute itself does not provide a remedial frame-
 work—a contract-law “analogy applies . . . in determining
 the scope of damages remedies” in a suit by the government
 against the recipient of federal funds or by a third-party
 beneficiary standing in the government’s shoes. Barnes,
 536 U.S. at 186–87; see also Gebser v. Lago Vista Indep.
 Sch. Dist., 524 U.S. 274, 287 (1998) (“Title IX’s contractual
 nature has implications for our construction of the scope of
 available remedies.”). In Barnes, the Court considered the
 government’s damages remedies available under Title VI
 in a suit charging the federal funds recipient with failure
 to comply with its obligations. The Court explained that,
 when the statute “contains no express remedies, a recipient
 of federal funds is nevertheless subject to suit for compen-
 satory damages . . . and injunction . . . forms of relief tradi-
 tionally available in suits for breach of contract.” Barnes,
 536 U.S. at 187 (citations omitted). Thus, “[w]hen a fed-
 eral-funds recipient violates conditions of Spending Clause
 legislation, the wrong done is the failure to provide what
 the contractual obligation requires; and that wrong is
 ‘made good’ when the recipient compensates the Federal
 Government or a third-party beneficiary (as in this case)
 for the loss caused by that failure.” Id. at 189. On the other
 hand, forms of relief that are “generally not available for
 breach of contract,” such as punitive damages, are not
 available in suits under such Spending Clause legislation.
 Id. at 187–89. 5



      5  This contract-law analogy does not apply where the
 statute does not impose contract-like obligations. See, e.g.,
 Heinzelman v. Sec’y of HHS, 681 F.3d 1374, 1379–80 (Fed.
 Cir. 2012) (holding that, with respect to a damages award
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 COMMUNITY HEALTH CHOICE    v. UNITED STATES               15



     The same, we think, is true when an action for damages
 is brought against the government, under this type of
 Spending Clause legislation. The available remedy is de-
 fined by analogy to contract law where the statute does not
 provide its own remedies for government breach. 6 We have



 under the National Childhood Vaccine Injury Act, 42
 U.S.C. §§ 300aa-1–300aa-34, the government was not enti-
 tled to an offset due to Social Security Disability Insurance
 (“SSDI”) benefits because the Vaccine Act “provides for off-
 sets where compensation is made via one of the enumer-
 ated programs,” and SSDI was not identified in the
 statute); Modoc Lassen Indian Hous. Auth. v. United States
 HUD, 881 F.3d 1181, 1194 (10th Cir. 2017) (noting that
 “rules that traditionally govern contractual relationships
 don’t necessarily apply in the context of federal grant pro-
 grams” that do not impose contract-like obligations such as
 the Native American Housing Assistance and Self-Deter-
 mination Act, 25 U.S.C. § 4101 et seq.); Md. Dep’t of Hu-
 man Res. v. Dep’t of Health & Human Servs., 762 F.2d 406,
 408–09 (4th Cir. 1985) (declining to infer a “contractual”
 relationship in the Aid to Families with Dependent Chil-
 dren program, 42 U.S.C. § 601 et seq., a “grant in aid” pro-
 gram); Mem’l Hosp. v. Heckler, 706 F.2d 1130, 1136 (11th
 Cir. 1983) (noting that hospitals participating in the Medi-
 care program did not receive a “contractual right” because
 the statute did not “obligate the [government] to provide
 reimbursement for any particular expenses”); PAMC, Ltd.
 v. Sebelius, 747 F.3d 1214, 1221 (9th Cir. 2014) (citing
 Mem’l Hospital).
     6    The amicus argues that the insurers are not seek-
 ing “compensation for the failure to pay,” but are instead
 seeking “specific relief” under section 1402. Common
 Ground Healthcare Cooperative Suppl. Damages Amicus
 Br. 5. As the Supreme Court held in Bowen v. Massachu-
 setts, 487 U.S. 879 (1988), “the Court of Claims has no
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 16              COMMUNITY HEALTH CHOICE      v. UNITED STATES



 indeed previously applied the contract-law analogy to limit
 damages in suits against the government under the Back
 Pay Act, 5 U.S.C. § 5596, another money-mandating stat-
 ute. 7 Our predecessor court held that in suits brought for
 improper discharge for federal employment, damages had
 to be reduced by the amount earned by the federal em-
 ployee in the private sector under a mitigation theory. 8 See
 Craft v. United States, 589 F.2d 1057, 1068 (Ct. Cl. 1978)
 (“Unless there is a regulation or a statute that provides
 otherwise, cases in this court routinely require the deduc-
 tion of civilian earnings [from a back pay award] on an
 analogy to the principle of mitigation of damages.”); Lan-
 ingham v. United States, 5 Cl. Ct. 146, 158 (Ct. Cl. 1984)


 [general] power to grant equitable relief.” Id. at 905 (quot-
 ing Richardson v. Morris, 409 U.S. 464, 465 (1973) (per cu-
 riam)). Furthermore, the Supreme Court made clear that
 the type of relief that the insurers are seeking is best char-
 acterized as “specific sums, already calculated, past due,
 and designed to compensate for completed labors.” Me.
 Cmty., 140 S. Ct. at 1330–31.
     7   See Bowen, 487 U.S. at 905 n.42 (“To construe stat-
 utes such as the Back Pay Act . . . as ‘mandating compen-
 sation by the Federal Government for the damage
 sustained,’ . . . one must imply from the language of such
 statutes a cause of action.” (quoting Eastport S.S. Corp. v.
 United States, 372 F.2d 1002, 1009 (Ct. Cl. 1967))); Hamb-
 sch v. United States, 848 F.2d 1228, 1231 (Fed. Cir. 1988)
 (“By the Back Pay Act’s own terms, a tribunal must also
 look for an ‘applicable law, rule, regulation, or collective
 bargaining agreement’ as the source of an employee enti-
 tlement which an ‘unjustified or unwarranted personnel
 action’ has denied or impaired.”).
     8   The Back Pay Act was later amended to expressly
 provide for such offsets. See 5 U.S.C. § 5596(b)(1). That
 amendment to the statute, however, does not change the
 principles underlying the previous decisions.
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 COMMUNITY HEALTH CHOICE    v. UNITED STATES               17



 (“This rule has been utilized as an analog to the private
 contract law principle of mitigation of damages.”); see also
 Motto v. United States, 360 F.2d 643, 645 (Ct. Cl. 1966);
 Borak v. United States, 78 F. Supp. 123, 125 (Ct. Cl. 1948).
     Here the contract-law analogy applies because the stat-
 ute “contains no express remedies” at all with respect to
 the government’s obligation. Barnes, 536 U.S. at 187.
 While the ACA provides specific remedies for failure of the
 insurers or insured to comply with their obligations, see 42
 U.S.C. §§ 300gg-22, 18081(h), “the [ACA] did not establish
 a [statutory] remedial scheme” for the government’s non-
 compliance, Me. Cmty., 140 S. Ct. at 1330. Section 1402’s
 silence as to remedies in this respect suggests that “forms
 of relief traditionally available in suits for breach of con-
 tract” are appropriate. Barnes, 536 U.S. at 187; see also
 Me. Cmty., 140 S. Ct. at 1330. We therefore look to govern-
 ment contract law to determine the scope of the insurers’
 damages remedy.
     With respect to contract claims, the government is “to
 be held liable only within the same limits that any other
 defendant would be in any other court,” and “its rights and
 duties . . . are governed generally by the law applicable to
 contracts between private individuals.” United States v.
 Winstar Corp., 518 U.S. 839, 892, 895 (1996) (first quoting
 Horowitz v. United States, 267 U.S. 458, 461 (1925), and
 then quoting Lynch v. United States, 292 U.S. 571, 579
 (1934)).
                              B
     The traditional damages remedy under contract law is
 compensatory in nature. Restatement (Second) of Con-
 tracts § 347 (1981); Barnes v. Gorman, 536 U.S. at 187–90.
     The fundamental principle that underlies the
     availability of contract damages is that of compen-
     sation. That is, the disappointed promisee is gen-
     erally entitled to an award of money damages in an
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 18               COMMUNITY HEALTH CHOICE     v. UNITED STATES



      amount reasonably calculated to make him or her
      whole and neither more nor less; any greater sum
      operates to punish the breaching promisor and re-
      sults in an unwarranted windfall to the promisee,
      while any lesser sum rewards the promisor for his
      or her wrongful act in breaching the contract and
      fails to provide the promisee with the benefit of the
      bargain he or she made.
 24 Samuel Williston & Richard A. Lord, Williston on Con-
 tracts § 64:1 (4th ed. 2020); see also 11 Joseph M. Perillo &
 Helen Hadjiyannakis Bender, Corbin on Contracts § 55.3
 (2020) (“[I]t is a basic tenet of contract law that the ag-
 grieved party will not be placed in a better position than it
 would have occupied had the contract been fully per-
 formed.”).
     Thus, courts have uniformly held—as a matter of both
 state and federal law—that a plaintiff suing for breach of
 contract is not entitled to a windfall, i.e., the non-breaching
 party “[i]s not entitled to be put in a better position by the
 recovery than if the [breaching party] had fully performed
 the contract.” Miller v. Robertson, 266 U.S. 243, 260 (1924);
 Bluebonnet Sav. Bank, F.S.B. v. United States, 339 F.3d
 1341, 1345 (Fed. Cir. 2003) (“[T]he non-breaching party
 should not be placed in a better position through the award
 of damages than if there had been no breach.”); LaSalle,
 317 F.3d at 1372 (“[T]he non-breaching party is not enti-
 tled, through the award of damages, to achieve a position
 superior to the one it would reasonably have occupied had
 the breach not occurred.” (citing 3 E. Allan Farnsworth,
 Farnsworth on Contracts 193 (2d ed. 1998)). 9



      9  See, e.g., John Hancock Life Ins. Co. v. Abbott
 Labs., 863 F.3d 23, 44 (1st Cir. 2017) (same under Illinois
 law); VICI Racing, LLC v. T-Mobile USA, Inc., 763 F.3d
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 COMMUNITY HEALTH CHOICE    v. UNITED STATES               19



      This concern to limit contract damages to compensa-
 tory amounts is embodied, in part, in the doctrine of miti-
 gation, which ensures that the non-breaching party will not
 benefit from a breach. The mitigation doctrine has two as-
 pects. First, the non-breaching party is expected to take
 reasonable steps to mitigate his or her damages. Restate-
 ment (Second) of Contracts § 350 cmt. b (“Once a party has
 reason to know that performance by the other party will
 not be forthcoming, . . . he is expected to take such affirm-
 ative steps as are appropriate in the circumstances to avoid
 loss by making substitute arrangements or otherwise.”).
 Under common-law principles, the injured party may not
 recover damages for any “loss that the injured party could
 have avoided without undue risk, burden or humiliation.”
 Id. § 350(1); 3 Dan B. Dobbs, Law of Remedies § 12.6(1), at
 127 (2d ed. 1993) (“[T]he damage recovery is reduced to the
 extent that the plaintiff could reasonably have avoided
 damages he claims and is otherwise entitled to.”); Roehm
 v. Horst, 178 U.S. 1, 11 (1900) (explaining that a plaintiff
 for breach of contract is entitled to “damages as would have
 arisen from the nonperformance of the contract at the ap-
 pointed time, subject, however, to abatement in respect of
 any circumstances which may have afforded him the
 means of mitigating his loss” (quoting Frost v. Knight, L.R.
 7 Exch. 111 (1872))). We need not determine whether this
 first aspect of the mitigation doctrine applies here—such




 273, 303 (3d Cir. 2014) (same under Delaware law); Hess
 Mgmt. Firm, LLC v. Bankston (In re Bankston), 749 F.3d
 399, 403 (5th Cir. 2014) (same under Louisiana law);
 Westlake Petrochemicals, L.L.C. v. United Polychem, Inc.,
 688 F.3d 232, 243–44 (5th Cir. 2012) (same under the Uni-
 form Commercial Code); Ed S. Michelson, Inc. v. Neb. Tire
 & Rubber Co., 63 F.2d 597, 601 (8th Cir. 1933) (treating the
 issue as a general matter of contract law).
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 20               COMMUNITY HEALTH CHOICE     v. UNITED STATES



 that the insurers were obligated to increase premiums to
 secure increased premium credits.
     Rather, here we look to a second aspect of the mitiga-
 tion doctrine, which recognizes that there must be a reduc-
 tion in damages equal to the amount of benefit that
 resulted from the mitigation efforts that the non-breaching
 party in fact undertook. 10 Kansas Gas & Elec. Co. v.
 United States, 685 F.3d 1361, 1366 (Fed. Cir. 2012) (“[M]it-
 igation efforts may result in direct savings that reduce the
 damages claim.”); Restatement (Second) of Contracts § 350
 cmt. h (explaining that the calculation of mitigation should
 reflect “[a]ctual efforts to mitigate damages”); 11 Corbin on



      10  A related principle is that, when the non-breaching
 party indirectly benefits from the defendant’s breach, “in
 order to avoid overcompensating the promisee, any savings
 realized by the plaintiff as a result of the . . . breach . . .
 must be deducted from the recovery.” 24 Williston on Con-
 tracts § 64:3; 11 Corbin on Contracts § 57.10 (“A breach of
 contract may prevent a loss as well as cause one. In so far
 as it prevents loss, the amount will be credited in favor of
 the wrongdoer.”); Charles T. McCormick, Handbook on the
 Law of Damages 146 (1935) (“Where the defendant’s wrong
 or breach of contract has not only caused damage, but has
 also conferred a benefit upon [the] plaintiff . . . which he
 would not otherwise have reaped, the value of this benefit
 must be credited to [the] defendant in assessing the dam-
 ages.”); LaSalle, 317 F.3d at 1372 (citing McCormick); Kan-
 sas Gas & Elec., 685 F.3d at 1367 (same); Stern v. Satra
 Corp., 539 F.2d 1305, 1312 (2d Cir. 1976) (same); see also
 DPJ Co. P’ship v. F.D.I.C., 30 F.3d 247, 250 (1st Cir. 1994)
 (holding that, with respect to reliance damages for breach
 of contract, “a ‘deduction’ is appropriate ‘for any benefit re-
 ceived [by the claimant] for salvage or otherwise’” (altera-
 tion in original) (quoting A. Farnsworth, Contracts § 12.16
 (2d ed. 1990))).
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 COMMUNITY HEALTH CHOICE     v. UNITED STATES                21



 Contracts § 57.11 (explaining that, in the case of a buyer
 breaching a contract for the sale of goods, the rule
 “measures the seller’s damages by the contract price less
 the market price—the price actually obtained . . . by a new
 sale”).
     For example, in Kansas Gas and Electric, the govern-
 ment breached a contract to dispose of the plaintiff utility
 companies’ nuclear waste. Kansas Gas & Elec., 685 F.3d
 at 1364. Anticipating that the government would breach
 the contract, the utility companies began a “rerack project”
 to increase its storage capacity and mitigate the effects of
 a government breach. Id. We held that the plaintiffs were
 entitled to the costs of its rerack project taken in mitigation
 of the government’s breach. Id. at 1365, 1371. We also
 held, however, that the plaintiffs’ recovery was to be re-
 duced by the “real-world benefit” realized by the plaintiff’s
 rerack project. Id. at 1367–68. Namely, “[w]hile conduct-
 ing the rerack, the [plaintiffs] both . . . used racks that
 could support higher enrichment fuel assemblies,” which
 “allowed [them] to achieve the same energy output from
 [their] reactor with fewer fuel assemblies,” thereby increas-
 ing the efficiency of their plant. Id. at 1364.
      The plaintiffs argued that the efficiency benefits of the
 rerack project were “too remote and not directly related to
 the breach because the decision to ‘pursue more highly en-
 riched fresh nuclear fuel’ was an ‘independent business de-
 cision’ and influenced by . . . market price[s].” Id. at 1367.
 We rejected that argument, holding that the rerack project
 was “part and parcel of the [plaintiffs]’ mitigation efforts.”
 Id. We stated that “[t]he long-term benefit of fuel cost sav-
 ings [influenced by market forces] does not sever its con-
 nection to the [plaintiffs]’ mitigation efforts,” and that the
 appropriate inquiry was whether, “[b]y enhancing the
 racks to accommodate high-enrichment fuel assemblies,
 the [plaintiffs] mitigated the [g]overnment’s breach in a
 way that produced a benefit.” Id. at 1368. We concluded
 that the plaintiffs’ damages were correctly reduced “by the
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 22              COMMUNITY HEALTH CHOICE      v. UNITED STATES



 amount of the benefit received in mitigating the [g]overn-
 ment’s partial breach of the . . . [c]ontract.” Id.
      Here, each insurer mitigated the effects of the govern-
 ment’s breach by applying for increased premiums and, as
 a result, received additional premium tax credits in 2018
 as a direct result of the government’s nonpayment of cost-
 sharing reduction reimbursements. Notably, the govern-
 ment does not argue that it is entitled to offset the pre-
 mium increases in the damages calculation, but it does
 argue that it is entitled to offset the additional payments
 made by the government in the form of premium tax cred-
 its.
     The insurers appear not to dispute that if the elimina-
 tion of cost sharing-reduction payments directly triggered
 increased premium tax credits, an offset would be appro-
 priate under a contract theory. But they argue that the
 premium tax credits were not “direct benefits” of the breach
 because they depend on actions by the insurers—the deci-
 sion to pursue increased premiums. These payments were
 not, in the appellees’ phrasing, received in the “first step.”
 We think the relationship is no less direct because the in-
 sured’s tax credits did not automatically flow from the
 elimination of cost sharing reduction payments, and the in-
 surers played a role by securing the increased premiums
 that in turn resulted in the increased tax credits.
     There is thus a direct relationship between cost-shar-
 ing reductions and premiums, and between premiums and
 tax credits. The text of the ACA recognizes the relationship
 between premiums and cost-sharing reductions. Section
 1412 of the ACA provides for the “[a]dvance determination
 and payment of premium tax credits and cost-sharing re-
 ductions.” 42 U.S.C. § 18082 (codifying ACA section 1412).
 Section 1412(a)(3) states: “the Secretary of the Treasury
 makes advance payments of [premium tax] credits or [cost-
 sharing] reductions to the [insurers] . . . in order to reduce
 the premiums payable by individuals eligible for such
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 COMMUNITY HEALTH CHOICE    v. UNITED STATES                23



 credit.” Id. § 18082(a)(3). As we noted in Sanford, this sec-
 tion may be understood to indicate that the statute recog-
 nizes      that,    without      cost-sharing     reduction
 reimbursements, “insurers might otherwise seek higher
 premiums to enable them to pay healthcare providers the
 amounts enrollees are not paying due to cost-sharing re-
 ductions.” Sanford, No. 19-1290, slip op. at 22.
     The Claims Court’s findings show that the premium
 tax credits flowed directly from the insurers’ mitigation ef-
 forts. As the Claims Court found, the plaintiffs themselves
 recognized this connection. They negotiated for increased
 premiums (leading to the increased tax credits) in direct
 response to the cessation of cost-sharing reduction pay-
 ments:
     The Trump administration’s termination of cost-
     sharing reduction payments did not come as a sur-
     prise to insurers: “Anticipating that the Admin-
     istration would terminate [cost-sharing reduction]
     payments, most states began working with the in-
     surance companies to develop a plan for how to re-
     spond. . . . And the states came up with an idea:
     allow the insurers to make up the deficiency
     through premium increases . . . .” California, 267
     F. Supp. 3d at 1134–35 . . . . In other words, by
     raising premiums for silver-level qualified health
     plans, the insurers would obtain more money from
     the premium tax credit program, which would help
     mitigate the loss of the cost-sharing reduction pay-
     ments.
 Cmty., 141 Fed. Cl. at 754–55 (first alteration in original);
 id. at 755 n.10 (noting that “increasing silver-level quali-
 fied health plan premiums would not harm most consum-
 ers who qualify for the premium tax credit because the
 credit increases as the premium increases”).
    The practice of silver loading—and the resulting pre-
 mium tax credits received by each insurer—“was a direct
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 24              COMMUNITY HEALTH CHOICE     v. UNITED STATES



 consequence of the government’s breach” of its obligations,
 and “indeed was an extreme measure forced” by the gov-
 ernment’s nonpayment. LaSalle, 317 F.3d at 1372. The
 government’s payment of the premium tax credits is di-
 rectly traceable to the premium increase, and the premium
 increase is directly traceable to the government’s breach.
 The insurers “received a benefit as a direct result of their
 mitigation activity.” Kansas Gas & Elec., 685 F.3d at 1368.
 The argument for an offset is particularly strong here be-
 cause the insurers received direct payments (rather than
 indirect benefits, such as efficiency gains) from the govern-
 ment due to their mitigation efforts.
     The insurers argue, however, that there are two excep-
 tions to the mitigation principle that defeat the govern-
 ment’s claim to an offset: (1) the prohibition on so-called
 “pass-through” defenses and (2) the collateral source rule.
 As to the “pass-through” defense, the insurers argue that
 the government, as a breaching party, may not claim miti-
 gation of damages when the non-breaching party “passe[s]
 through” its losses to its customers. Appellees’ Suppl.
 Damages. Br. 15 (citing Hughes Commc’ns Galaxy, Inc. v.
 United States, 271 F.3d 1060, 1072 (Fed. Cir. 2001)). 11 The
 insurers assert that the cases stand for the proposition that
 mitigation may only be considered in the “first step,” and
 that “later-step” recoveries such as pass-through are “irrel-
 evant” to the calculation of damages. Id. at 10. But this is
 not a case where a third-party customer pays for the




      11 In addition to Hughes, the appellees also rely on
 cases arising under antitrust law, see Hanover Shoe, Inc. v.
 United Shoe Mach. Corp., 392 U.S. 481 (1968), RICO, see
 Carter v. Berger, 777 F.2d 1173 (7th Cir. 1985), and utility
 overcharges, see S. Pac. Co. v. Darnell-Taenzer Lumber Co.,
 245 U.S. 531 (1918).
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 COMMUNITY HEALTH CHOICE     v. UNITED STATES                 25



 insurers’ losses, as was the case in Hughes. 12 The complex-
 ity of the process cannot obscure the underlying economic
 reality that the government is paying at least some of the
 increased costs that the insurers incurred as a result of the
 government’s failure to make cost-sharing reduction pay-
 ments. See Gov’t Suppl. Damages Br. 24 (“[T]he govern-
 ment is not urging that [the] plaintiffs’ damages should be
 reduced merely because [the] plaintiffs passed on their
 cost-sharing reduction expenses to customers. The crucial
 point is that [the] plaintiffs . . . passed these expenses on to
 the government itself, which by virtue of the ACA’s struc-
 ture is paying the cost-sharing reduction expenses . . . in
 the form of higher premium tax credits.”).
     The government’s claim is not that damages should be
 reduced because the insurers passed on the increased costs
 to their customers, but that “the insurers . . . obtain[ed]
 more money from the premium tax credit program, which
 would help mitigate the loss of the cost-sharing reduction
 payments.” Cmty., 141 Fed. Cl. at 755 & n.10. The pass-
 through exception, to the extent that it is applicable to con-
 tract damages, does not apply here.
     Second, the insurers invoke the collateral source rule,
 arguing that the additional premium tax credits were col-
 lateral benefits that should not be credited against their
 damages. The collateral source rule is a generally recog-
 nized principle of tort law that “bars a tortfeasor from


     12   The antitrust, RICO, and utility cases too are dis-
 tinguishable because they concern situations where costs
 are passed to a third-party. See, e.g., S. Pac., 245 U.S. at
 534 (explaining that the pass-through doctrine is con-
 cerned with the lack of privity between the defendant rail-
 road company and the “consumer who . . . paid [the]
 increased price”); Adams v. Mills, 286 U.S. 397, 407 (1932)
 (similar); Hanover Shoe, 392 U.S. at 490 (similar in the an-
 titrust context).
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 26               COMMUNITY HEALTH CHOICE       v. UNITED STATES



 reducing the damages it owes to a plaintiff ‘by the amount
 of recovery the plaintiff receives from other sources of com-
 pensation that are independent of (or collateral to) the tort-
 feasor.’” Johnson v. Cenac Towing, Inc., 544 F.3d 296, 304
 (5th Cir. 2008) (quoting Davis v. Odeco, Inc., 18 F.3d 1237,
 1243 (5th Cir. 1994)); see, e.g., Chisholm v. UHP Projects,
 Inc., 205 F.3d 731, 737 (4th Cir. 2000); Fitzgerald v. Ex-
 pressway Sewerage Constr., Inc., 177 F.3d 71, 73 (1st Cir.
 1999). Thus, the collateral source rule bars a reduction of
 damages due to “insurance policies and other forms of pro-
 tection purchased by [the] plaintiff,” Johnson, 544 F.3d at
 305, or unemployment benefits in the case of a wrongful-
 discharge case, Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 83
 (3d Cir. 1983).
     As with the insurers’ pass-through argument, their col-
 lateral source rule argument fails. We are aware of no au-
 thority, and the insurers cite none, holding that the
 collateral source rule applies to contract damages, and the
 prevailing authority rejects any such limitation. See, e.g.,
 United States v. Twin Falls, 806 F.2d 862, 873 (9th Cir.
 1986) (“We have found no authority to support the applica-
 tion of the collateral source rule in the contracts field.” (col-
 lecting cases rejecting the application of the collateral
 source rule to contract-based damages)), overruled on other
 grounds as recognized by Ass’n of Flight Attendants v. Hori-
 zon Air Indus., Inc., 976 F.2d 541, 551–52 (9th Cir. 1992);
 Star Ins. Co. v. Sunwest Metals Inc., 691 F. App’x 358, 361
 (9th Cir. 2017) (noting that “California courts have de-
 clined to extend the collateral source rule to contract-based
 claims” and that contract damages rules are “[u]nlike”
 those in tort damages); LaSalle, 317 F.3d at 1372 (declin-
 ing to apply the collateral source rule to government con-
 tracts). In any event, even if that rule applied here, the
 “source of compensation” is the not “independent” of the
 government. The source is the government itself. See Phil-
 lips v. W. Co. of N. Am., 953 F.2d 923, 931 (5th Cir. 1992)
 (“The [collateral source] rule is intended to ensure that the
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 COMMUNITY HEALTH CHOICE    v. UNITED STATES               27



 availability of outside sources of income does not diminish
 the plaintiff’s recovery, not make the tortfeasor pay
 twice.”). The collateral source rule does not bar the reduc-
 tion in damages.
     We conclude that additional premium tax credits were
 received by Community and Maine Community in 2018 as
 a direct consequence of their mitigation efforts following
 the government’s nonpayment of 2018 cost-sharing reduc-
 tion reimbursements, and the Claims Court was required
 to credit the government with such tax credit payments in
 determining damages.
                              IV
       Determining the amount of premium tax credits paid
 to each insurer is necessarily a fact-intensive task. Be-
 cause the Claims Court rejected the government’s mitiga-
 tion theory on a limited summary judgment record, it did
 not address these calculation issues. And as the insurers
 conceded in their briefing before the Claims Court, to the
 extent that the insurers’ premium changes are “relevant
 . . . to [the] quantum,” they involve “factual questions that
 cannot be resolved on [the existing motion for summary
 judgment].” Community Reply in Supp. of Mot. for Summ.
 J. 15, Cmty. Health Choice, Inc. v. United States, No. 18-cv-
 00005, 141 Fed. Cl. 744, ECF No. 20 (Nov. 30, 2018); Maine
 Community Mot. for Summ. J. 1, Me. Cmty Health Options
 v. United States, No. 17-cv-02057, 143 Fed. Cl. 381, ECF
 No. 31 (Apr. 8, 2019) (adopting “all of the arguments re-
 garding benefit year 2018 raised by . . . Community . . . in
 [its] brief[]”). We therefore remand to the Claims Court for
 a determination of the amount of premium increases (and
 resultant premium tax credits) attributable to the govern-
 ment’s failure to make cost-sharing reduction payments.
 This will require either new summary judgment motions or
 a trial.
     We note that three principles will govern the remand
 proceedings.
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 28              COMMUNITY HEALTH CHOICE     v. UNITED STATES



     First, as the insurers argue, some of the silver-level
 premium increases (and resulting tax credits) may be
 caused by other factors, such as market forces or increased
 medical costs. To the extent that this is the case, the gov-
 ernment’s liability is not reduced by the tax credits at-
 tributable to these other factors.
     Second, as previously mentioned, increasing the pre-
 mium rates for silver plans resulted in an increase in pre-
 mium tax credits for all plans on the exchange. In some
 states, state regulators have also allowed insurers to re-
 coup part of their lost cost-sharing reduction reimburse-
 ments by increasing premiums for other, non-silver plans
 on the exchange. In these circumstances, the tax credits
 for these other plans (attributable to the silver plan pre-
 mium increase) are still caused by the elimination of cost-
 sharing reduction payments and will, of course, reduce the
 government’s liability. But we do not address whether in
 situations where, as here, there have been no premium in-
 creases for other plans, the government’s liability should
 be reduced for the increased tax credit payments with re-
 spect to other plans. We leave that issue to the Claims
 Court in the first instance.
     Finally, the insurers will bear the burden of persuasion
 with respect to the amount of the tax-credit increase at-
 tributable to the loss of cost-sharing reduction reimburse-
 ments. Other circuit courts and state courts applying state
 law are inconsistent as to which party bears the burden of
 persuasion with respect to the amount of mitigation. 13 But


      13 Compare VICI Racing, LLC v. T-Mobile USA, Inc.,
 763 F.3d 273, 301 (3d Cir. 2014) (holding that, under Dela-
 ware law, “[a] defendant need not provide an accounting of
 the costs a plaintiff should have avoided, but the burden is
 properly on a defendant to articulate the actions that would
 have been reasonable under the circumstances to mitigate
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 COMMUNITY HEALTH CHOICE    v. UNITED STATES                 29



 in the federal context the rule is clear. The plaintiffs bear
 the burden of proof:
     [A] non-breaching plaintiff bears the burden of per-
     suasion to establish both the costs that it incurred
     and the costs that it avoided as a result of a breach
     of contract. The breaching party may be responsi-
     ble for affirmatively pointing out costs that were
     avoided, but once such costs have been identified,
     the plaintiff must incorporate them into a plausible
     model of the damages that it would have incurred
     absent the breach.
 Bos. Edison Co. v. United States, 658 F.3d 1361, 1369 (Fed.
 Cir. 2011) (citing S. Nuclear Operating Co. v. United
 States, 637 F.3d 1297, 1304 (Fed. Cir. 2011)); see also Sys.
 Fuels, Inc. v. United States, 666 F.3d 1306, 1312 (Fed. Cir.
 2012) (collecting cases). Here, the government has affirm-
 atively pointed out the insurers’ avoided costs (due to in-
 creased premium tax credits). Therefore, it was the
 insurers burden to incorporate those benefits into their
 damages calculations. Energy Nw. v. United States, 641
 F.3d 1300, 1309 (Fed. Cir. 2011) (explaining that, to estab-
 lish damages, “a plaintiff [must] show what it would have


 loss”), with John Morrell & Co. v. Local Union 304A of
 United Food & Commercial Workers, AFL-CIO, 913 F.2d
 544, 557 (8th Cir. 1990) (“[T]he breaching party[] ha[s] the
 burden of proving that ‘the breach resulted in a direct and
 immediate savings to the plaintiff,’ . . . . [T]he defendant
 must prove the amount of the offset with reasonable cer-
 tainty.”); Amigo Broad., LP v. Spanish Broad. Sys., Inc.,
 521 F.3d 472, 486 (5th Cir. 2008) (holding that, under
 Texas law, “it is the burden of [the defendants], not [the
 plaintiff], to show that [the plaintiff] received a benefit
 from its expenditures that reduce or offset the amount of
 reliance damages to which [the plaintiff] claims it is enti-
 tled”).
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 30              COMMUNITY HEALTH CHOICE     v. UNITED STATES



 done in the non-breach world, and what it did post-
 breach”). We think that this allocation of the burden of
 proof is particularly appropriate here because the insurers
 were already required by section 1003 of the ACA to pro-
 vide “justification[s]” for premium rate increases. 42
 U.S.C. § 300gg-94(a)(2). Thus, Community and Maine
 Community—having previously justified their silver-level
 premium increases—are “in the best position to adduce and
 establish such proof.” S. Nuclear, 637 F.3d at 1304 (quot-
 ing 11 Corbin on Contracts § 57.10 n.15 (2005)).
     According to the insurers, they cannot be expected to
 bear this burden of proof by comparing “each insurer’s fi-
 nancial picture now in relation to what it hypothetically
 might have been if [the cost-sharing reduction reimburse-
 ments] had been timely paid.” Appellees’ Suppl. Damages
 Br. 9. Specifically, the insurers argue that they cannot
 “submit a hypothetical model establishing what their costs
 would have been in the absence of breach.” Id. at n.9 (quot-
 ing Gov’t Suppl. Damages Br. 8). Given the explicit argu-
 ments that the insurers here have made for rate increases,
 we doubt that proof will be as difficult as the insurers’
 claim. In any event, as we have discussed, our cases make
 clear that the plaintiff seeking to recover damages must
 “prov[e] causation by comparing a hypothetical ‘but for’
 world to a plaintiff’s actual costs.” Energy Nw., 641 F.3d at
 1306 (quoting Yankee Atomic Elec. Co. v. United States, 536
 F.3d 1268, 1273–74 (Fed. Cir. 2008)). The insurers here
 cannot avoid their burden to prove damages.
                              V
     Although we do not address the Claims Court’s holding
 with respect to the insurers’ implied-in-fact contract the-
 ory, the same damages analysis would apply to that claim
 as well, since, as the Claims Court recognized, a claim for
 breach of an implied-in-fact contract is subject to the same
 damages limitations as an ordinary contract. See Cmty.,
 141 Fed Cl. at 767–70 (analyzing damages for breach of an
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 COMMUNITY HEALTH CHOICE     v. UNITED STATES                31



 implied-in-fact contract under “[t]he general rule in com-
 mon law breach of contract cases” (quoting Estate of Berg
 v. United States, 687 F.2d 377, 379 (Ct. Cl. 1982)); see, e.g.,
 Lindquist Ford, Inc. v. Middleton Motors, Inc., 557 F.3d
 469, 481 (7th Cir. 2009), as amended (Mar. 18, 2009) (“[A]n
 implied-in-fact contract is governed by general contract
 principles.”); Hill v. Waxberg, 237 F.2d 936, 939 (9th Cir.
 1956) (explaining that “the general contract theory of com-
 pensatory damages should be applied” in an action for
 breach of an implied-in-fact contract). There is thus no
 need on remand to separately address the insurers’ im-
 plied-in-fact contract claim.
        AFFIRMED IN PART, REVERSED AND
              REMANDED IN PART
                             COSTS
     No costs.
