five best to what years and what numbers are to be paid it doesn't necessarily relate to the manner of payment and i think that's bludgers by paragraph seven the discharge in this case was was set forth to be incremental what the term paragraph seven says is that the purchase of the annuity contracts in the lump sum payments as outlined in progress five and six and the payments they are under shell operate as a full and complete discharge and satisfaction payments that come through the unity contract those are the payments that are specified in paragraph five and then under paragraph three the government is obligated to make i think if you put all those things together it's clear what the intent of the parties was and that was for the government to be obligated trying to get us to ski through surrogates in this contract and if we do if we follow your logic exactly then and then that intent is shown but there are a whole bunch of other possibilities rather i i don't think you could have any clearer language than what's unfair or three that the united states will be obligated to make the future periodic payments i think the other provision in this case that you have to look at that could not possibly fit with the other  is the section of paragraph five the says the government has the absolute right to change the beneficiary of minucci if you if you read this contract to say that by purchasing the annuity the government is up is relieved of all of its obligations and then it has the absolute right to change the beneficiary of who gets those payments then the entire contract illusory the plaintiffs never had any right to collect any of the amounts that they that they were to collect so if you look at this case and look at the language that this court read those three provisions together and say that the government was relieved of its obligation to make the payments and deal with three with the statement in the red brief that that whether contracting authority  that the government has defaulted to after the not decision is that the usa only had one hundred thousand dollars of authority putting aside whether that's a separate issue to be addressed like the court of federal claims seem to treat it  or whether it is part of the overall contract interpretation i mean there are some basic principles of contract interpretation and if they the existence of the authority to contract is as the government authority in other words the contract says what it says so the question is was the a u s a authorized to sign the contract that says what it says and what they're trying to do is make a circular argument they're trying to say the contract c statement about the purchase of the annuity right there and so it's and the use of proton tow there's no reason to insert proton and again i get back to your honor if if just as in the nut case this court held that there were certain provisions that would make absolutely no sense under under a contrary interpretation of the contract the provision to allow the government to to make to change the beneficiary after buying the annuity makes no sense false argument because the only provision under the tepco they're required that protects the taxability is the ownership of the you know the plaintiff can not only annuity anyone else can only unity but the change of beneficiary is not anywhere in the tax be done a qualified assignment can be done with the with the permission of the plaintiff to say that the obligation is now going to the insurance companies out the geishas but that wasn't done here the government had a choice to do it and in the nut case the government did do it the government have to turn to saying that our interpretation is equally reasonable as the government's interposition and if we do that then the doctrine of of who drafted the agreement has to apply here just as because of our if there is that doctrine apply in the setting of a negotiated contract it does your honor and the only exceptions to it under negotiate a contract is if the if the m p u was terms can be shown were specifically negotiated so t point the cases cited by the government if two parties negotiate a particular term and there's evidence that they negotiated that term and then later the court to cert decides that specific term is ambiguous then the cut the th came to these agreements because they're also different but the point is that the only in the important terms that were negotiated with the amounts of money to be paid and who was going to pay them and when they were going to be paid the other language was provided explicitly by the government and the only merely that the government has to make up the shortfall that resulted from the financial problems of e l o are the government's plan here it is is corporation and then they were going to fix assigned their obligation under the agreement to pay the plaintiffs to that insurance company and that did happen and there is evidence in the record that that agreement was sent forward what that that's called an absolute assignment document and that is simply a document that a transfer the ownership of the unity to first executive corporation and you talk about the document then when you say the side of assumption the one to eighty seven obligated to make certain future payments to the point house and their assigning that obligation to first executive corporation and first executive corporation was paid a thousand dollars to do that and also the then the the absolute assignment the fuzzy documented three zero seven was signed to to turn over the ownership of the the annuity to first executives now they'll think about your honor if there was no obligation of the united states to pay the future payments and there was no obligation ever for first executive corporation to make the payments to the plaintiffs then then how could the government have just turned over the annuity to to the to the insurance company with no strings attached to it so obviously the  assumption agreement was was executed together with the absolute assignment which then transferred the obligation under the agreement in this case to make the future payments to the insurance company the key element there is the planets were not a party to that assignment that assignment could only be effective against inflators i mean i read that we decide whether it's signed or not but in looking at that just on its face it seemed to me i had read that document as a but the basic settlement agreement seems to say five or through the annuity arrangement because that's exactly what happened in massey in other words the government delegated its obligation it didn't eliminate its obligation it delegated its obligation already obligated itself to make these future payments now it's taking this agreement and then transferring and delegated that obligation to the insurance company the government make a claim on behalf of that hundred cents in connection with the winding down of the insurance company no the government hasn't taken any action at all than that that that amount is being held in escrow actually whatever the liquidation amount is from the the liquidation euro as being l than escrow pending the outcome of this case so but but here there's another to clear out of it owns a new it why wouldn't the government be the one that should be taking action with respect to that insurance company the government didn't first instance so before any court gets to whether or not there has or has been a breach of an agreement the plaintiff palance in this case have to prove that the agreement exists in the manner that they purport it exist so they have to prove a duty an obligation a promise arising from that duty of breach and in the instance of contracts of united states government that the united states representative should enter that contract had the actual authority to have done so and in th the first year or two with with these people just be completely out of luck they did so in the form of cash payments to the hundreds and at settlement attorneys fees which were under the f c c and limited to twenty five percent of the value of settlement in this case the hundreds and the chinese got two hundred twenty five thousand dollars which is twenty five agreement was that said that the annuity payments were guaranteed for fifteen years here this agreement says the annuity payments and guaranteed for forty years so that's the first ground so that puts you closer to massey with respect to that issue than it does not also we distinguish it on the grounds that the parties actually contemplated in the agreement in massey that that there would be i'm sorry contemplated here as opposed to the agreement and massey if not as opposed to agreement or massey that that there could be a problem with the insurance company and the government actually said that they would help sue the insurance company and help the parties so everybody was contemplating that this kind of circumstance could happen the court pointed out in massey that the government had retained the control of the you know what are your ownership of the new body so now we've got to who are important factors upon which we are not distinguished ma and both of those exist in this case why should that be enough to say all right massey where this the government was bound is really the controlling case not not as long questions  language to distinguish missing it relied on the guarantee language it relied on guarantee language but also yes but that's not to say that there are not additional reasons for the two agreements to carry you know but in that the court is looking to distinguish what were the critical phrases in the court's view and not from the critical phase of the massey all of these remains have insurance company they're just acting the sort of pages of the government so that the idea as opposed to the new type of thing that's cracked so in and not at the court is a guarantee well but that they're not disclaiming the that the fact of the reference to the payments being guaranteed is isn't relevant to the question of whether that the parties contemplated that the that they are not saying that the united states is the guarantor of someone else's obligations they're saying it was the united states is obligation but that the guarantee language helps support their argument that it was the united enter that agreement that is not the case in hundreds and hundreds and it was settled under the federal tort claims act as opposed to the military claims act and there are very specific statutes and regulations the delegate nicely basically rejected the notion that that the context of the united states government the government's argument at that stage of the proceeding that the federal tort claims act as a matter of law prohibits the government from entering into agreements that involve your future distribution of damages it was a sovereign immunity argument and on that grounds the federal circuit was not persuaded by the government's argument that the military claims act was was different in that regard i'm arguing something slightly different here in that actual authority so taking a step back this court found in not that the federal tort claims act does not prohibit the united states government from entering into compromises or settlements that involve the future distribution of money we argued otherwise the court disagreed that that holding is firm and not we understand that but whether or not the federal tort claims act as a general matter does not prohibit the united states government from entering into settlements that involve the future distribution of funds does not answer the second half of the inquiry whether or not that happened or ten happen in an individual case so even taking the nuts general proposition that these sort of  settlement agreements with structured settlements are not prohibited by the f t c if we then look to an individual case to determine whether or not it happened in that case and so in not the court yes found that as a general matter interpretation of protons is not only consistent with the plain language of the definition of the latin term but also consistent with the rest of paragraph seven as well as the rest of the agreement as a whole and that would be what the government offer not pro tanto specifically that meaning is is clear unclear i don't think it changes the unambiguous meaning of the agreement as a whole when you read all of those provisions together right that we've got consistent with not the same phrasing lump sum payments as outlined in paragraph five of the future payments shall be in a total combined song not to exceed five hundred twenty three thousand two hundred seventeen dollars so even one were to read the agreement to in some manner suggest that there was a future expectation of payment that future expectation of payment was satisfied by the united states government's expenditure of nine hundred thousand in total or judge had no personal knowledge of any of the internal deliberations of the party as all he did was enter a dismissed all even before c and he spent pages talking about the fact that he and that would involve a future payment of money but that the united states obligation would be kept on one hundred thousand and so to the extent the district court judge thirty years later entered an opinion that he said he felt that government can we not get on one page and draft an annuity agreement that that does what the government thinks it wants to do and does not have confusing language yes or no so i'm outside the record here but about i can explain to the extent i now that the the use a structured settlements in these tort summoned agreements was was a new thing in the early one nine hundred eighty s right this was this was the first time united states government and parties were starting to use the structured settlement vehicle as a way to facilitate settlements of these claims so in that sense i don't know that the the drafting of these agreements had quite caught up to a universal standard or that people were as for mill your with structured usas in different districts across the country in different years occasionally if the amount of the settlement the authorized amount of the settlement reached a certain dollar amount the torts division was contacted in with that settlement but if it if it didn't reach whatever was that tipping point dollar amount they were settled more locally at the a with it level and so that would be what accounts for some of these differences in terminology ok thank you i will give you two minute i think you are as you pointed out these significant factors in not the distinguished massy in this court's view were both the provision in the agreement which said specifically that in the event of default government would participate and assist the plaintiff since only insurance company there is no such provision in this agreement in fact the opposite is true because the government can retain complete control and the ability to change the  beneficiary in this court in not said that such a nonsensical it would be nonsensical for the government to be required to continue to make the payments if they were there's a specific provision that says they're going to cooperate with the plan of to sue the insurance company the event of the fall so clearly under the nut agreement the risk of the fault fell on the plaintiff and that was clear based upon that that term what's equally clear is that the risk of the fall off in our agreement falls on the government because of the explicit language that the government is required to make the future payments as well as the fact that there's no analogous language to not it says that the government or the plaintiffs have any right the government's going to cooperate with the planets to sue the insurance company what negotiations occurred at the assistant attorney general level in washington the a u s a provided was provided this agreement by washington and he was authorized to sign it in his cover letter sending that agreement on a along with the assignment assumption agreement he says on the thirtieth already has been obtained so the question is not whether that he had immediate ninety thousand dollars of authority to spend the question is whether he had authority to bind the government under the agreement as it's written and the government seems to argue now that that even if it says what it says that they're obligated to make payments it can't be true because you had no authority to do that but he has authority to sign the agreement there's no there's no contrary evidence that he didn't have authority to sign the agreement in the government has  ninety one yes and in the end there it says that documents are going to be drafted which are going to to execute the agreement and the document that was drafted after that statement is the agreement that was was was signed in the parties  then signed that agreement and the judge then approved it by signature so the point is that there's a statutory scheme that basically says that any agreement by the attorney general or his designee to pay money for a penalty or claims that case has an appropriation it's automatically appropriated and in an indefinite appropriation and that's what that's what the law is and the settlement act the judgment act actually also puts that into play authority was to spend nine hundred thousand dollars immediately and to execute this agreement which had a contingency possibility that it could pay more in the future and as long as that agreement stays what it says then you can't bootstrap your argument to