please the court i represent the plaintiff appellants here who are victims of government negligence not once but twice first when a drunken army soldier drove his army truck across the double yellow line and had a head on collision with mr james not sr killing him you know behind a young widow and a two year old son the government correctly settled that case fairly quickly the second victimization of my clients of experience at the hands of the government was the breach of  this court has held many times you now speak ins with the four corners of the document you look at the language determine whether or not it's plain and unambiguous if it you are in that and your problem it seems to me is that unlike with the a language you're playing the game and that the government is not made to your client and then the insurance company and the lawyers was complete subtle that language is not honor that language that you just read speaks to payments being all the payments above which include the periodic payments that are expressed an expressman chill part of this contract so that includes the lump sums that you refer to it insurance company and while it doesn't say that there it doesn't say who the insurance company's going to be or how much they're going to pay the insurance company expressed terms of this contract in the contract is only between the government and the not family not the insurance company they're not part of this conference the contract says that they'll have standing to sue the insurance company that's right they would have standing to shoot soup it does not say the government's off the hook in other words it doesn't say you give up your rights to sue us here if they wanted that vicious said that they should have expressed that in the contract they didn't do that as the insurance companies the insurance companies out of business they liquidate it there's there's no there's no point in doing that they took all their funds and put it into  think approximately half a dozen times it says that the not family shall be paid it says the government and the new that they get will pay it doesn't tell the nazis or anybody that reads this contract what happens if the insurance company defaults other than they have a right to sue that insurance company that states would also be involved in this that's correct that's correct think they may have the ability to delegate but that doesn't remove their obligation if i could read just a quote from the  massey opinion judge mayor actually wrote it it was a great analysis that says we cannot agree with the government's interpretation and they're looking the court was looking at the interpretation of contract very very similar language here which is no surprise it's the same defendant in the same people that are writing these contracts and using the same broker and using the same annuity company and the court said the language specifying that the unity will result in just traditions we have in our case and at th paid we have that language in our case is on ambiguously mandatory and says under quickly that the masses must receive the payments we have that language in our contract the government urges an interpretation of these terms that is  odds with their plain meaning because the payments are mandatory the government must be responsible for their pain no one else is a party to the agreement all the government delegated to duties under the agreement to another entity such as executive life insurance company this delegation does not absolve it of its obligations i couldn't get any better that is exactly what we have here the language is substantially the same it shows a mandatory obligation if there is a lane ambigu our that's that is true your honor i think that you don't need to go that far i don't think you need to look at poor all of us here i think if you look at the plain meaning of the language here it's mandatory and obligatory exactly the same language on these particular terms was used in a massive decision the government in this case is trying to distinguish massey by saying well this is a federal tort claims act case there was in their military planes a case and there's a difference i don't i think it's a distinction without a difference the government came to this court in the massey case and argued the court didn't have jurisdiction because it was a military claims act case the court said we're not disagreeing with that but this is no longer a military claims act case this is now simply a breach of what we have here today it's no longer a federal court claims that case that claim was extinguished was a final judgment on it and now we have simply a breach of contract and i think you need look no further than the terms that were used the contract itself and the meaning certainly the intent even the government when are the intent was otherwise the intent was to make sure that she was guaranteed payments under the schedule that's expressed their it situated the contract that's certainly what the knot family of how they read it how the lawyer that represented the time read it and i think even how the government read what is unsaid here is what happens in the case of a default in terms of the government's obligations this court has already ruled on that in the massive decision because those terms  substantially the same the massy decision just binding on the government in the court below in this case i can address some of the other good government's arguments but i don't think we'll get to those we need that get to those unless the court tell you that i'm a little troubled by your brief because you cite a couple of cases for the proposition that under the federal tort claims act in cases involving settlements that it can't be paid in parties it also says that the congress is never an act of legislation permitting the routine imposition of structured i don't think you're addressing my point these cases say specifically that you can have a structured settlement with payment over time right they do with the government's obligations extinguished at the time of settlement or judgment and that's consistent with what the whole case now hold my whole which is nine seventy one federal register second to fourteen ninety nine they said we agree the courts cannot subject the government to ongoing obligations like the continuation of this case to say the government can agree to make payments over itself right they say what they stand for is that the court will not answer my question those cases say that the government can structure itself whereby the government is obligated to make payments over time right only if the obligation of the government is extinguished at the time judgment or settlement and that that it's just what  extinguish the federal tort claims act it's been interpreted by virtually every circuit in the country to say i think you understand my point i think that it was not appropriate for you to fail to recognize that those cases are potentially inconsistent with your position but go ahead with your my apologies your honor that was not our intent at the distinction in frankel the court held that unless congress authorizes a different type of award be only type of damages under money damages under section thirteen forty six can be a maximum lump sum payments that satisfy the maximum financial obligation to tell you all judgments about what you can enter to a settlement that provides for payment over time and that's all it is involved here you cannot because of section  across the country that the money damages in section thirteen forty six can only constitute damages that result in the maximum financial obligation of the government extinguishing a judgment a settlement now  about because the i mean they all say i just get a few examples again riley says congress is never an act of legislation permitting routine imposition of structured payments on the government obama whole again so the courts cannot subject the government to ongoing obligations and then  discussing the franco case which is in the seminal case you know in the slime they noted that you rationales were employed there and they adopted them the primary one being that the federal waiver of sovereign immunity quoting from the case under the f t c incorporates the traditional common law principle that awards and civil just suits must take the form of common law money judges so in terms of structuring payments down the road these cases that health yes there can be installment events but the government's obligation has to be and right he said you can agree to make installment payments payments by the government the obligation to make installment payments is not extinguished and then and they're done as a remedy to you know to do a system to wri payments periodically but that doesn't change the fact that under the f t c a government opposition has to be finished in time a settlement a judgment will accept where there's a settlement and then they can agree to make payments over time and if they don't they can be sued those cases recognize that explicitly here's the reason they don't because again twenty six seventy two says that settlements have to be treated the same way as judgments congress has explicitly all that is settled in congress given the attorney general cannot do remedies in addition are different than what a court can do in a judgment all of these courts of health know that the damages have to be finalized and discharged at the time of settlement or judgment and this is consistent with how they have to ca has been handled throughout history harmonized with section twenty four fourteen in order to you know say that settlements have to be treated like judgments but because judgments have to be ex you know the obligation for the government has to be extinguished the thought of some of this is that you can have a settlement with periodic payments and if the government doesn't make the payments it can be sued and they say that's exactly what's going on here in this case now you may say the language of the contract is different of the settlement agreement is different than it was in mass maybe maybe that's an argument but i do not see in the light of these authorities how you can say that the government can't enter into an agreement for payment over time and be sued if it reaches that agreement i don't understand how you can possibly say that and there's a critical distinction between those cases that i think the court should keep in mind this case involved the purchase of an annuity and this ties back to the terms of the settlement agreement the huge distinction between the f b i cia and the military claims act is that at the negotiati table if the parties don't want an annuity they can go to court and they can pursue a claim before a court the military claims act doesn't allow that at all if they don't receive money from the designated department of defense authority to resolve their case they have no remedy it's a critical distinction in this case because what happened here is the parties wanted to have an annuity that would make payments down the road but under the f t c a historically has always been the case if the government cannot agree to guarantee obligations down the road so we agreed to buy an annuity a low risk highly rated annuity at that would make the payments at the time nobody thought that the l n y would go under and it's very unfortunate that it did forever but the government could only agree to lump sum payments at the time of judgement and some of you say yes i just pointed out to you how the cases say you can enter into a settlement in which the government agrees heriot payments and that's exactly what they say happened here it was a settlement the government agreed to make periodic payments and it's liable and those cases say that's fine there's nothing wrong with that and then they you may dispute whether that's what the agreement says but if the agreement does say that there's nothing wrong with respect well your honor it's not with the case of say they all indicate clearly that congress has not authorized the government to guarantee payments down the road and i think that's the critical distinction here frankel beehives explicitly held that in courts you know like reilly and ask you a whole the whole have got to be creative in creating mechanisms to allow for installment payments but that doesn't change the fact that the government's obligation has to be extinguished at the time of settlement or judgment and that's entirely consistent with the terms of the agreement as  pointed out that the agreement says that the united states agrees to purchase a new g s which will provide the following says which is not that it notes that if the insurance company goes under that the plaintiff s or the appellant has standing to sue and of the government will sustain those efforts in educates the government will purchase a low risk annuity which cost the government more i mean if the government was a guarantor why would that provision be in there and then the most convincing provision in my mind if you look at page eight twenty seven in an amount sufficient to satisfy those obligations of the united states under the settlement agreement which are to be satisfied by the purchase of annuities under the opponent's interpretation these provisions are not sensible or just have no meaning and i respectfully are the government's taken inconsistent positions over the periodic payments they've asked for revision or trust the federal tort claims are clearly allows for it there is no case that they cited that says it doesn't so just commenting on that last point on the language of the contract itself with respect to the certificate of insurance or the purchase of there's no question that the contract lets everyone know that the government's going to be purchasing an annuity from a life insurance company that's that's in there and that's all that that is referring to there's an obligation of the government saying we're going to get you a good policy we're going to get one from an excellent or a plus company now if they didn't use an a plus or actually a company that would be a separate reach i suspect here that executive life was not that what it said it was but even if it was at the time that is an obligation of the government is saying we're going to take on that obligation they didn't involve the pla selection it was a unilateral decision by the government lawyers on who they're going to select and who they used and then went to their go to broker and go to life insurance company for a period of a few years in the one nine hundred eighty s and unfortunately  they did a poor job in their due diligence in selecting that company but now it shouldn't be the plaintiffs fault it shouldn't be an innocent parties who had nothing to do with selecting that life insurance company and there was just as an aside because i think this sort of touches on it in the government's recent talk about some for all evidence here and that is that there was a question about whether or not there should be insurance taken out on the life insurance agreement the plainest were allowed to do that because the policy was owned by the united states government only the government could take out a separate insurance on the life insurance policy not the plaintiffs so this is merely an instruction similar to what the court held in massive instruction to james w settlement seeing to make sure that they selected correctly just as we saw in the massive decision unless there's any further questions i conclude by saying if there's one party that should always make good on the promises it should be our government a government by the people and for the