we're here today on the construction of the settlement agreement contract with traverses united states and neil diamond song said except for the names of a few other changes the stories the same one that happens to be the case with the shah case that i also have one just one small correction i noticed in reading i in my statutes i cited thirty two c f r five three six point six three excuse me point five three that's technically point six there were guarantees in both there was a guarantee for forty years in vastly as well to part of the part of it was a guarantee that would be paid later on some of the lump sums the fact is the use of the term guarantee is in these cases of analysis it's not the standard third party guarantee where you're not a party going to act in your grief somebody to guarantee somebody else's performance guarantee was referred to when you deal with insurance or particularly with the new it is as we do in structured governments that the guarantee is for a specified period of time meaning nothing more than should the child such as the mass a child or in my case the shot child die before that prescriptive period has expired those payments will continue and then they won't be guaranteed after that point in time but you know there that's really no different there's other language in here which cuts against you he you look at each but in most of the part for they refer to the shall or the will do things are referring to the annuity but really all of these are guarantees in the sense that if you're paying something for shall pay you for your life that's really a guarantee to if you really think of it you're guaranteeing that you're going to receive those payments until you die and then they'll stop that's really no different than a guarantee for twenty years as a prescriptive period that it will continue this guarantee is these payments will continue for that life period and then it will cease just says twenty year question is there is it definitely boils down to that and i would say when you look at all of the similarity in the language  massey settlement agreement and in shock that i think you have to come to a conclusion that they are very close and very similar though there is a little bit of difference in language and in fact a the language is these payments will be made on the messy reproaches that in place but massey also talks about i believe language in massey also is that the annuities will make certain payments as well not just the government or on behalf of the government i think that's that is referenced in one place but i  believe under background in massey one it's talking about the agreement states that the annuity will result in distributions on behalf of the united states that's talking about the annuity and the monthly payment shall be paid could so everything is on behalf of the government be it in massey because it said on behalf of the government but also in our case because they are the only defendant and that is my answer i think to your question that everything is on behalf of the united states and i would say that when you talk about the government trying to trap their argument that all they agreed to do was to buy an annuity that's the argument they've been making that massey really contradicted and just refused to buy because even our language is the government will purchase annuity but it's qualified the government will purchase an annuity that will do some things not just the government will purchase a nudie that might pay your clients some money down the road that may or may not continue to do it or that the government will just pay you an annuity buy you an annuity period with no if the government the and it will be for you that will make these pain meds over a certain schedule how do you do that without making itself liable for guaranteeing the payments i think if you the only way is to put in a specific clause yes i think so and the government because why isn't language that says the government and police to purchase an annuity just that that's their agreement their agreement is not to carry teeth any why shouldn't the argument actually be that in order to have a hearing teeth you have to point to specific language showing that the government here in t c you know i would agree that you do have to if you're talking about guaranteed grassley is talking about a say to resolve this we're going to purchase you in a new lady that makes these payments that's all we agree to do is to purchase the nudity how would that be written wouldn't it just say become an agrees to purchase an annuity them and instead not that the government should make the payments at the new edition like no but that's the kind but that's what the government is reading and implicit requirement that the government is guaranteeing those payments as much as you want to run away from the notion that you're whining  that's exactly what you're trying to do they bought a new lady that was on when it was bought was required to make these payments there was no there's no question right that they funded it properly you agree that if they  to infer something that we found plain in that city well i i beg to differ that that we are not because i think that everything that occurs in this is on behalf of the government whether it says that  project but the point is the government could have put language in there that says if there's a failure we are not going to be responsible for it we are just fine you could have put in language i said if there is a failure the government is responsible for it well you know i don't mean it sounds like you're asking us to infer something one way the government wants us out something term for something the other way all we can do is look at the plain language and it doesn't speak to that either some things about playing like the contract law as we're looking at what it intelligently reasonable person do under the prevailing circumstances at the time and at the time of the settlement you got a young couple with a profoundly disabled ultimately responsible should something happen to these they would have required like and maybe massey and you'll see in some of these other cases that there is a requirement that they have a high quality rated bar realty and the government has argued in all of these cases  not always successfully that gee if we really thought we were going to going to be responsible for this we just go out and buy the cheapest plan save some money that we care to pursue nudie that we can but because there's aaa language of the not agreement that was before the circuit didn't appear in the henderson agreement that was here last month and it doesn't appear in this agreement the shaw agreement either so just on the plain language alone we have that critical phrase that's missing in this agreement but in addition what the guarantee twice it did so in paragraph six and sixty a guarantee for twenty years to mr shaw to guarantee for twenty years to mr shaw that twenty years had come and gone long before suit was filed in the suit in this case the short falls that the shaws are now seeking for breach of alleged breach of the settlement agreement are pursuant to the other paragraphs of the settlement agreement in which there is no use of the word guarantee ma where it was the united states obligation to pay as in paragraph five that provision is very clearly stated so paragraph five provides the defendant united states of america will make the following payments right that's a that's an active verb it's a clear requirement the united states following that opening phrase we have the that the disbursement of four point eight million dollars sum in cash at settlement to the parties and their attorneys and some to purchase the new witness that's a very clear provision the united states will make the following payments equal to four point eight million dollars which coincidentally is also compliments of the u s a s actual forty two settled ninety five moving on then comparing that paragraph five to paragraph sex we have in contrast purchased by the united states shall make the following payments and those are those future payments for said finnerty we also have to read paragraphs four and five four five and six in the context of the room as a whole so if we move forward to paragraph seven we have in all of these cases was the scope of the waiver of sovereign immunity under the federal tort claims act and we argued that the federal tort claims act did not as a statute permit the united states government to enter into obligations for the future contingent payment of damages that that argument which we put forth before this circuit was rejected by the circuit and it's now the law of the circuit in that this court held that the federal tort claims act does not prohibit united states government from entering into a settlement agreements that would involve the future disbursement of damages but the fact that this court found that as a general matter the federal tort claims act is not prohibit that kind of arrange nothing about whether or not in any one individual case the parties involved or the government representative specifically had the actual authority to do that right as a separate question with the subsidiary question of the not court never had to reach because it rejected our sovereign immunity argument in the world of the plain language but yes not held that the federal tort claims act is not prohibit the united states government from entering into settlement agreements that involve the future  interpretation the federal tort claims act yes theoretically the deputy attorney general or the attorney general who are the only individuals at that point in time who had sort of the authority about seven hundred fifty thousand could have authorized something different  agreement and the like and about whether this annuity would be guaranteed well we don't know that but it's also the memo that would have underlie that authority it's simply a recommendation to the the cover page setting forth the amount but didn't say one way or another about the specific terms we do that because it's my understanding this cover pages never really specifically go through the specific terms of the settlement agreement they're usually talking about the numbers for that's correct but a guarantee has a number attached to it it's a financial obligation it's not a it's not a timing obligation or something that's that's more qualitative a financial mail or that will make payments that it would actually have to you put that it will make those payments and in that order yes but i would also submit that there it needs and then a fervor phrase because we also have to read the federal tort claims act and settlement authority in the context of other laws so then we have the anti deficiency act and other requirements that have to be read together and the entire deficiency act precludes the united states government from entering into agreements for openended future well it depends on which schedule we're talking about so in massey massey recognized a guarantee that the guarantees in massey were finite amount there was a guarantee for fifteen years which one could put a schedule together and say you know the starting dollar amount plus the cost of living increase or whatever is the interest rate for fifteen years we have some cert of the maximum guarantee obligation for that right we can we can run that math out then we had also in massey deferred lump s payments three or four on the twenty second anniversary twenty fifth anniversary twenty seventh anniversary in some certainty so we could put those numbers together adam all together and know that if that's the difference between this case and well in this case what the shaws are seeking is for the united states government to have an open ended continuing guarantee obligation for payments that yes we can run out why how much worse and which was the same thing is a actually believe that the sharp bring in a stronger than the not agreement and that we have in paragraph seven a very explicit phrase that this compromise settlement is contingent on a total final cost of four point eight million which is about as clean and unambiguous on its face as the government could have hoped for in that regard if the panel has no further questions thank you just quickly regard to the settlement as a part is contingent upon there is evidence in the record that you'll see that shows that the purpose for the contingency was and the final amount not to exceed the speed because there  or would be a lap between the settlement agreement and the purchase of the annuity and annuity prices fluctuate literally on a daily basis and it was to allow the government and escape therefore if they had gotten a quote obviously for  actually paid under this way how at the time of the settlement the norm over the years over the years a lot of money more than zero point eight zero definitely definitely and in fact if scotty shaab were to die today there is about four point eight million dollars in the medical trust fund that has not been utilized and that would revert to the government so if scotty were to die today the government would have never paid anything for the gaudy scott it is the young child who's now thirty nine years of age on july the fourth of this year who is profoundly disabled richard scott john i'm sorry i've lived this case since i tried it with my partner's five lived it since he was born but we call him scotty so that was just a contingency to do that and the court is right that massey did not rely on the guarantee language at all the plaintiffs that argued that in the court mentioned evidence decision but the court also hung its hat even though the language about on behalf of his in in there they say that language specifying that the annuity quote will result in distributions quote and that the disbursements quote shall be paid quote is on ambiguously mandatory it doesn't they don't couch the fact that it was the language on behalf of and then i would also say if there's a question about massey one as reiterated exactly what massey one said and i think it's very pertinent of the my clothes they said that the purpose of the original settlement agreement was to guarantee the payment of a specified amount of money to provide for automat c it was not reasonable for the government to argue as it did that its obligations ended with the purchase of an annuity from a private entity while the trial court thought the agreement could be interpreted in several ways the law of this case is that the terms of the settlement imposed an unambiguous leave mandatory duty on the government to argue to the contrary it was not reasonable when the result would be to deprive the injured child of the benefits the government agreed she needed and for which it was responsible and i think when we look at that and you look at the policies that are human aged that we have brought out that the government is there and the purpose of the structured settlement to encourage and they are to ensure they use the word ensure that the payments that are necessary for the care of this child will