914
Breyer, J., concurring
clearly contemplated the award of damages for breach against the Government in some contexts where the Government's promises are far from "unmistakable" as the Government defines that term. While in this case, the lower courts found the promises to be "express," this Court has in other cases interpreted § 1491(a)(1) to permit claims for relief based on an "implied in fact" promise, which can be a promise "founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding." Baltimore & Ohio R. Co. v. United States, 261 U. S. 592, 597 (1923); see Hercules, Inc. v. United States, 516 U. S. 417, 424 (1996). These interpretations, as well as the statutory language, lend further support to the view that ordinary government contracts are typically governed by the rules applicable to contracts between private parties.
There are, moreover, at least two good reasons to think that the cases containing special language of "unmistakability" do not, as the Government suggests, impose an additional "clear-statement" rule, see Brief for United States 19, that shields the Government from liability here. First, it is not clear that the "unmistakability" language was determinative of the outcome in those cases. In two of the three cases in which that language appears (and several of the older cases from which it is derived), the private parties claimed that the sovereign had effectively promised not to change the law in an area of law not mentioned in the contract at issue. In Merrion v. Jicarilla Apache Tribe, 455 U. S., at 148, for example, the contracts were leases by a sovereign Indian Tribe to private parties of rights to extract oil and gas from tribal lands. The private party claimed that the leases contained an implicit waiver of the power to impose a severance tax on the oil and gas. The Court pointed out that the leases said nothing about taxes, thereby requiring an inference of intent from "silence." Ibid. Though the
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