concurring.
I concur in the holding that the United States Court of Federal Claims had jurisdiction over the complaint. On the merits, I would hold that the government must respond in damages for requiring appellants to bear the expenses of detention and maintenance of TWOV passengers except to the extent such costs are imposed on carriers by section 237 of the Immigration and Naturalization Act (INA) (8 U.S.C. § 1227 (1988)).
A
I agree that the carriers have stated Tucker Act claims within the jurisdiction of the Court of Federal Claims under 28 U.S.C. § 1491. Appellants each assert a claim for damages “against the United States founded ... upon ... any Act of Congress.”1
*1579As recognized in United States v. Testan, 424 U.S. 392, 401-402, 96 S.Ct. 948, 954-55, 47 L.Ed.2d 114 (1976), a Tucker Act claim for damages against the United States based upon a statute may take one of two forms: a claim under a money-mandating statute or a claim for money improperly exacted or retained.2 A claimant must rely either on a statute that mandates payment of money from the government to the claimant or on an illegal exaction, that is, a payment to the government by the claimant that is obtained without statutory authority. See Clapp v. United States, 127 Ct.Cl. 505, 117 F.Supp. 576 (1954). The first is founded on statutory authorization; the second on the absence of statutory authorization. One is the flip side of the other.
The difficulty in this ease is that the claimants paid third parties, hotels and the like, not the government directly. Nevertheless, 1 find the jurisdictional question here indistinguishable from that dealt with in Pan American v. United States, 129 Ct.Cl. 53, 122 F.Supp. 682 (1954), a precedential opinion of one of our predecessor courts. In Pan American, the INS took certain detainees into custodial detention and then demanded that the carrier reimburse the government for this expense. The carrier paid the government and sued for damages claiming an illegal exaction, ie., no statutory authority to place the financial burden on the carrier. The court held this stated a claim under the Tucker Act. I see no principled difference between INS paying the expenses and then ordering the carrier to reimburse the government or simply ordering the carrier to assume the expense in the first instance. Either way the government receives the same benefit. The issue in both instances is whether INS had statutory authority for its order.
It is, of course, true that all illegal orders to an entity to assume an expense do not create a claim under the Tucker Act. The government must order assumption of a government obligation. Thus, cases where the government itself had no financial obligation in the matter and receives no direct financial benefit are distinguishable, e.g., Clevenger Roofing & Sheet Metal Co. v. United States, 8 Cl.Ct. 346 (1985) (no jurisdiction under Tucker Act where government ordered payment of higher wages to workers by contractor).
I would hold that a statutory claim under 28 U.S.C. § 1491 is stated by the following allegations: (1) that the INS ordered the carriers to assume a government financial obligation of the Attorney General without statutory authorization; (2) that the carriers protested the imposition of this expense at the time they were ordered to do so; (3) that the carriers paid for maintenance during TWOV detention and thereby conferred a financial benefit directly on the government; and (4) that the carriers are thereby entitled to damages.
The government asserts that if the order to pay was beyond the statute, the claim ipso facto must be one sounding in tort. This argument is untenable. Every violation of a statute is not a tort. Wood v. United States, 961 F.2d 195, 198-99 (Fed.Cir.1992) (a violation of federal laws gives rise to a tort claim only if state law provides basis for liability, citing Art Metal-U.S.A., Inc. v. United States, 753 F.2d 1151, 1157 (D.C.Cir.1985)); Carriso, Inc. v. United States, 106 F.2d 707, 712 (9th Cir.1939) (rejecting argument that an action to collect monies exacted under a statute which had been repealed was a claim sounding in tort); Clapp, 117 F.Supp. at 581 (declining to consider the wrongful exaction of money under the Shipping Act a tort). Certainly this ease is not a tort case.3 The *1580claim is based on the allegedly erroneous interpretation of a statute by the agency.
B
The carriers are correct that the imposition on them of the detention expenses at issue here is not authorized. The INS, not the carriers, had responsibility for the detention expenses of a TWOV asylee under the statute, that is, a passenger who is permitted to enter under the asylum statute.
As I understand the governmental process, a statute must establish a program and, in addition, the program must be funded by an appropriation approved by Congress. The recent shutdown of federal agencies bears this out. Moreover, agencies may not secure funds from the public to carry on unfunded programs unless authorized by Congress to do so. As was recently observed by the Third Circuit in United States v. Rohm & Haas Co., 2 F.3d 1265, 1274 (3rd Cir.1993):
The budget and appropriation process gives executive agencies an incentive to operate efficiently and makes them accountable to the Congress. When an agency asserts the right to secure financing of its activities by assessing its costs against those whom it regulates, that incentive and accountability are lost. Moreover, in the present context, recognition of the authority EPA asserts could result in the funding for a substantial amount of EPA activity, undertaken under a variety of different statutes, being shifted away from general revenue to specific levies on certain private parties. While it is not the role of the judiciary to determine whether such a change constitutes wise public policy, it is our duty to ascertain congressional intent behind statutory language. We will not presume Congress to have intended a statute to create the dramatic and unusual effect of requiring regulated parties to pay a large share of the administrative costs incurred by the overseeing agency unless the statutory language clearly and unambiguously requires that result.
Simply stated, if Congress does not fund a program with public moneys, the program languishes in limbo unless an agency is specifically authorized to collect fees from the public therefor or otherwise transfer the costs to other entities.
Congress enacted the Refugee Act of 1980, 8 U.S.C. § 1151 et seq. in part to conform to certain treaty obligations. That Act provides, inter alia, that all aliens physically present in the United States can request asylum (8 U.S.C. § 1158(a)). At that time, a statute, INA § 233 (8 U.S.C. § 1223),4 had been on the books for some' time5 which authorized the Attorney General to impose on carriers the costs of maintenance of aliens ordered to be held under detention. In addition, INA § 237 (8 U.S.C. § 1227) imposed a more limited liability on carriers for the cost of certain excluded aliens who were not allowed into the country, either per se excluded *1581or excluded by order.6 In 1986, Congress repealed INA § 233, the general provision for carrier liability for detention expenses.7 The more limited liability provision of INA § 237 remained.
As part of the 1986 amendments, Congress set up a new plan for financing immigration costs. The plan contemplated that INS would receive a yearly appropriation to be used for the detention and maintenance of aliens and, in fact, Congress has made appropriations regularly. The yearly appropriation, however, is to be underwritten by a fund created from fees collected by carriers from passengers at the rate of $5 (now $6) for any passenger requiring immigration services. The carriers pay these fees to the Attorney General who turns them over to the Treasury for deposit in a fund. The statute further provides:
The Secretary of the Treasury shall refund out of the Immigration User Fee Account to any appropriation the amount paid out of such appropriation for expenses incurred by the Attorney General in providing immigration inspection and prein-speetion services for commercial aircraft or vessels and in—
(v) providing detention and deportation services for excludable aliens arriving on commercial aircraft and vessels.
8 U.S.C. § 1356(h)(2)(A) (emphasis added).
Thus, funds collected from passengers pursuant to the statute are credited against the appropriation for the above services to the extent of expenses “incurred by the Attorney General.” Adjustment in the fee is contemplated to make inspection and detention services supportable without expenditure from general Treasury funds, although nothing precludes the use of general funds up to the amount of an appropriation.
As stated in the 1986 Conference Report:
Sec. 205. Provides a general provision which authorizes the Immigration and Naturalization Service to impose a $5.00 fee for immigration inspection of airline and vessel passengers.... The fees shall be *1582placed in a special account in the general fund of the Treasury and shall be used to reimburse the INS appropriation for expenses incurred in carrying out certain inspection activities for commercial aircraft and vessels.... The Attorney General ... shall submit a report to the Congress concerning the status of the account, including any balances therein, and recommend any adjustment in the prescribed fee that may be required to ensure that the receipts collected from the fee charged for the succeeding two years equal, as closely as possible, the cost of providing these services....
Sec. 206. Provides language proposed by the Senate which would release scheduled passenger airlines and vessels from the responsibility to assume custody or financial responsibility for aliens who arrive by plane or commercial vessel in the U.S. without proper documentation.
H.R.Conf.Rep. No. 1005, 99th Cong., 2d Sess. 420-421 (1986).
After the enactment in 1986 of the fund legislation, the Attorney General proposed new regulations which recognized the legislative change from carrier responsibility to INS responsibility for the custody and detention of excludable aliens stating:
[The Act] places the responsibility for physical custody of excludable aliens pursuant to former section 233 of the Immigration and Nationality Act of 1952 ... on the INS.
53 Fed.Reg. 1791-92 (1988).
In 8 C.F.R. § 235.3(d) the proposed regulations read:
Service custody. The Service will assume custody of any alien subject to detention under § 235.3(b) [“aliens with no documentation or false documentation”] or (c) [“aliens with documents”] of this section.
53 Fed.Reg. 1792 (1988). However, when INS issued final regulations the following year, it appended to the foregoing section a significant limitation on the agency’s responsibility for costs of detention by adding the proviso:
... except in the case of an alien who is presented as a Transit Without Visa (TWOV) passenger.
54 Fed.Reg. 100, 101 (1989). The INS attributed the exception for TWOVs from its detention responsibility to the existence of its “Immediate and Continuous Transit Agreements” with carriers:
Although the issue of carrier responsibility for TWOV passengers may be a thorny one, the rules and regulations are very clear. Pub.L. 99-591 did not repeal section 238 of the Act; thus, contracts entered into pursuant to section 238, and in this particular instance we are concerned with carrier financial responsibility for detained TWOV passengers, are valid and enforceable. In sum, carriers are responsible for the detention expenses of detained TWOV passengers while in Service custody as well as having financial responsibility for return transportation of TWOV passengers point to [sic] embarkation following a deportation/exclusion order.
54 Fed.Reg. 101 (1989).
As far as I can determine, there is no statutory authorization at all for INS to impose on carriers the responsibility for expenses attributable to TWOV aliens who seek and are granted asylum. While INA § 237 may be invoked, a carrier’s liability extends thereunder only to aliens actually excluded by order or to those who do not seek asylum.8 Thus, while the carriers are not completely relieved of liability for detention expenses, their liability is limited to passengers who are ultimately excluded and the due diligence provision of section 1227 gives a reasonable measure of protection even for that class of aliens.
The contracting authority of INA § 238 (8 U.S.C. § 1228) is in line with the statutory scheme Congress had adopted for financing. This statute merely gives INS authority to enter contracts with carriers “to guarantee the passage through the United States in immediate and continuous transit of aliens destined to foreign countries.” 8 U.S.C. § 1228(d) (1988). Expenses for TWOV passengers who seek asylum do not fall within *1583this contracting authority. At most the authority relates to aliens stopping at the airport en route elsewhere. In any event, more explicit authority to transfer costs would be necessary to uphold INS’s action here. To permit this contracting authority to be used as a general fundraiser would permit the agency to sidestep the appropriation process.
Because the INS has no statutory authority to impose detention expenses on the airlines for TWOV passengers who seek asylum except in accordance with section 1227, the appellants prevail on the merits.
. I am mindful of the opinion of the Second Circuit in Linea Area Nacional de Chile S.A. v. Meissner, 65 F.3d 1034 (2d Cir.1995), that the claim of another carrier was properly brought under the APA and that the monetary award was in effect equitable restitution, the type of relief available under the APA, not damages. Contra Air Transport Assn v. Meissner, No. 92-0181, 1994 WL 896766 (D.D.C.1994) (Johnson, J.) (unpublished). However, some claims may be phrased legitimately in a way that would invoke either district court jurisdiction or jurisdiction of *1579the Court of Federal Claims. Cf. 28 U.S.C. § 1500.
. In Testan, 424 U.S. at 401, 96 S.Ct. at 955, the Court stated:
"Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim whether it be the Constitution, a statute, or a regulation docs not create a cause of action for money damages unless as the Court of Claims has stated, that basis 'in itself ... can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” Eastport S.S. Corp. v. United States, 372 F.2d at 1008, 1009, 178 Ct.Cl., at 607.
. It is also not one based on the exercise of the power of eminent domain. Without an exercise of lawful authority, no taking claim can be made out.
. Specifically, 8 U.S.C. § 1223 (INA § 233) provided:
(a) Upon the arrival at a port of the United States of any ... aircraft bringing aliens ... the immigration officers may order a temporary removal of such aliens for examination and inspection at a designated time and place, but such temporary removal shall not be considered a landing, nor shall it relieve the ... owners ... of the ... aircraft upon which such aliens arc brought to any port of the United States from any of the obligations which, in case such aliens remain on board, would under the provisions of this subsection (b) of this section and such ... owners of responsibility for the safekeeping of such aliens: Provided, That such ... owners ... may with the approval of the Attorney General assume responsibility for the safekeeping of such aliens during their removal to a designated place for examination and inspection, in which event, such removal need not be made by an immigration officer.
(b) Whenever a temporary removal of aliens is made under this section, the ... owners ... of the vessel, aircraft, or transportation line upon which they arrived shall pay all expenses of such removal [of an alien] to a designated place for examination and inspection or other place of detention and all expenses arising during subsequent detention, pending a decision on the aliens’ eligibility to enter the United States and until they arc either allowed to land or returned to the care of the transportation line or to the vessel or aircraft which brought them. Such expenses shall include maintenance, medical treatment in hospital or elsewhere, burial, in the event of death and transfer to the vessel, aircraft, or transportation line in the event of deportation....
. Predecessor was section 151.
. The section provides:
(a) Maintenance expenses. (1) Any alien (other than an alien crewman) arriving in the United States who is excluded under this Act, shall be immediately deported, in accommodations of the same class in which he arrived, unless the Attorney General, in an individual case, in his discretion, concludes that immediate deportation is not practicable or proper. Deportation shall be to the country in which the alien boarded the vessel or aircraft on which he arrived in the United States, unless the alien boarded such vessel or aircraft in foreign territory contiguous to the United States or in any island adjacent thereto or adjacent to the United States and the alien is not a native, citizen, subject, or national of, or does not have a residence in, such foreign contiguous territory or adjacent island, in which case the deportation shall instead be to the country in which is located the port at which the alien embarked for such foreign contiguous territory or adjacent island. The cost of maintenance including detention expenses and expenses incident to detention of any such alien while he is being detained shall be borne by the owner or owners of the vessel or aircraft on which he arrived, except that cost of maintenance (including detention expenses and expenses incident to detention while the alien is being detained prior to the time he is offered for deportation to the transportation line which brought him to the United States) shall not be assessed against the owner or owners of such vessel or aircraft if (A) the alien was in possession of a valid, unexpired immigrant visa, or (B) the alien (other than an alien crewman) was in possession of a valid, unexpired nonimmigrant visa or other document authorizing such alien to apply for temporary admission to the United States or an unexpired reentry permit issued to him, and (i) such application was made within one hundred and twenty days of the date of issuance of the visa or other document, or in the case of an alien in possession of a reentry permit, within one hundred and twenty days of the date on which the alien was last examined and admitted by the Service, or (ii) in the event the application was made later than one hundred and twenty days of the date of issuance of the visa or other document or such examination and admission, if the owner or owners of such vessel or aircraft established to the satisfaction of the Attorney General that the ground of exclusion could not have been ascertained by the exercise of due diligence prior to the alien's embarkation, or (C) the person claimed United States nationality or citizenship and ' was in possession of an unexpired United States passport issued to him by competent authority.
. Similarly, Congress eliminated section 101(b) which had imposed the costs for caring for diseased aliens on the carriers.
. Even stowaways — once per se excluded — may now seek asylum.