In the United States Court of Federal Claims

No. 15-358C

(E-Filed: January 7, 2021)

_________________________________

)

JENNIFER LANCLOS, ) 

Motion for Reconsideration;

RCFC 59; Summary Judgment; 

RCFC 56; Settlement 

Agreement; Annuities.

)

 Plaintiff, )

 )

v. )

 )

THE UNITED STATES, )

 )

 Defendant. )

_________________________________ )

Jeffrey E. Dahl, San Antonio, TX, for plaintiff.

Richard P. Schroeder, Trial Attorney, with whom were Ethan P. Davis,

1 Acting Assistant 

Attorney General, Robert E. Kirschman, Jr., Director, Deborah A. Bynum, Assistant 

Director, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, Washington, DC, for defendant.

OPINION

CAMPBELL-SMITH, Judge.

On May 21, 2020, defendant filed an amended motion for reconsideration of this 

court’s July 12, 2017 opinion in this matter pursuant to Rules 54(b) and 59(a)(1) of the 

Rules of the United States Court of Federal Claims (RCFC). See ECF No. 77. Plaintiff 

responded on June 23, 2020, see ECF No. 78, and defendant replied on July 23, 2020, see

ECF No. 81. For the reasons set forth below, defendant’s motion for reconsideration is 

GRANTED.

I. Background

Plaintiff filed her complaint in this matter in 2015, alleging that defendant 

breached a 1986 settlement agreement resolving claims against the United States Air

1 Joseph H. Hunt was listed as Assistant Attorney General on defendant’s amended motion 

for reconsideration, see ECF No. 77, but was replaced with Ethan P. Davis on defendant’s reply, 

see ECF No. 81.
2

Force. See ECF No. 1 (complaint). The settlement agreement included a provision in 

which plaintiff agreed to accept in “full satisfaction and final settlement” of her claims:

The purchase of an annuity which will provide the following: 

$1,500 per month – from commencement of payment for a period of five 

years

$2,000 per month – years 6-10

$2,500 per month – years 11-15

$3,000 per month – years 16-20

$3,500 per month – years 21-25

$4,000 per month – years 26-30

$4,500 per month – years 31-life

Id. at 8, 9. The agreement further provided that “[a]ll monthly payments above are 

guaranteed for 30 years or the life of [plaintiff], whichever is longer.” Id. at 8.

Defendant duly purchased the annuity from Executive Life Insurance Company of New 

York (ELNY), however, after financial difficulties, ELNY became unable to make the 

payments in full in 2013. See id. at 3. Plaintiff alleged that defendant guaranteed the 

payments in the settlement agreement and that it breached the agreement when it failed to 

ensure the full payment was made. See id. at 4-5. 

The parties filed cross motions for partial summary judgment as to liability, which 

the court decided on July 12, 2017. See ECF No. 38 (opinion and order). The court 

granted plaintiff’s motion, finding that “[t]he specific language of the agreement at issue 

in the present matter clearly and unambiguously indicates that the government agreed, by 

basic grammatical function of the terms in the agreement, to guarantee payments to 

plaintiff.” Id. at 7. 

Thereafter, defendant made several motions in fairly quick succession. It first 

moved for reconsideration of the court’s opinion on November 22, 2017. See ECF No. 

49. It then moved for summary judgment as to damages on January 19, 2018, see ECF 

No. 58, and on February 2, 2018, moved to stay proceedings in this case pending the 

resolution of several cases involving similar agreements and annuities before the United 

States Court of Appeals for the Federal Circuit, see ECF No. 59. 

The court granted defendant’s motion to stay on February 22, 2018, pending the 

resolution of Hendrickson v. United States, Case No. 17-1996 (Fed. Cir. filed May 9, 

2017), and Shaw v. United States, Case No. 17-2136 (Fed. Cir. filed June 8, 2017). See

ECF No. 64 (order). The court later granted defendant’s motion to continue the stay 

pending the resolution of Langkamp v. United States, Case No. 18-2052 (Fed. Cir. filed 

June 6, 2018). See ECF No. 70 (order). Upon resolution of all three cases at the Federal 

Circuit, the court lifted the stay in this matter, dismissed defendant’s motion for 
3

reconsideration and motion for summary judgment as moot, and directed defendant to file 

the amended motion for reconsideration now before the court. See ECF No. 74 (order).

II. Legal Standards 

A. Motion for Reconsideration

Rule 59(a) governs a motion for reconsideration. The rule provides that rehearing 

or reconsideration may be granted: “(A) for any reason for which a new trial has 

heretofore been granted in an action at law in federal court; (B) for any reason for which 

a rehearing has heretofore been granted in a suit in equity in federal court; or (C) upon 

the showing of satisfactory evidence, cumulative or otherwise, that any fraud, wrong, or 

injustice has been done to the United States.” RCFC 59(a)(1). Thus, the court, “in its 

discretion, ‘may grant a motion for reconsideration when there has been an intervening 

change in the controlling law, newly discovered evidence, or a need to correct clear 

factual or legal error or prevent manifest injustice.’” Biery v. United States, 818 F.3d 

704, 711 (Fed. Cir.), cert. denied, 137 S. Ct. 389 (2016) (quoting Young v. United States, 

94 Fed. Cl. 671, 674 (2010)). 

B. Motion for Summary Judgment

Summary judgment is appropriate “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

RCFC 56(a). “[A]ll evidence must be viewed in the light most favorable to the 

nonmoving party, and all reasonable factual inferences should be drawn in favor of the 

nonmoving party.” Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed. 

Cir. 1994) (citations omitted). “A nonmoving party’s failure of proof concerning the 

existence of an element essential to its case on which the nonmoving party will bear the 

burden of proof at trial necessarily renders all other facts immaterial and entitles the 

moving party to summary judgment as a matter of law.” Id. (citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986)). A summary judgment motion is, therefore, properly 

granted against a party who fails to make a showing sufficient to establish the existence 

of an essential element to that party’s case and for which that party bears the burden of 

proof at trial. Id.

III. Analysis

A. New Federal Circuit Precedent Merits Reconsideration

Defendant argues that the court should reconsider its June 12, 2017 opinion 

granting plaintiff’s partial motion for summary judgment because the Federal Circuit has

now made clear that defendant did not guarantee the annuity payments in plaintiff’s

settlement agreement. See ECF No. 77 at 7. According to defendant, three newly 

decided Federal Circuit cases create “a more robust body of case law than existed when 
4

the Court granted summary judgment.” Id. at 6. And, defendant contends, those cases 

“now establish[], as a matter of law, that the Government did not guarantee the annuity 

payments and is not liable to [plaintiff].” Id. Defendant argues that the change in law 

thus merits reconsideration. See id. 

Plaintiff responds that the three new decisions do not “constitute a change in 

controlling law.” ECF No. 78 at 4. Instead, plaintiff contends, the cases “are 

interpretations of settlement agreements that are substantially and materially different 

than the Lanclos settlement agreement.” Id. Defendant replies that plaintiff’s “attempts 

to distinguish [the precedent] are unavailing.” ECF No. 81 at 3.

The court agrees with defendant that the recent Federal Circuit decisions constitute 

an intervening change in law that merits reconsideration of the court’s June 12, 2017 

opinion pursuant to RCFC 59(a)(1)(C). See Biery, 818 F.3d at 711. In its opinion, the 

court reviewed and relied upon two Federal Circuit cases—Massie v. United States, 166 

F.3d 1184 (Fed. Cir. 1999), and Nutt v. United States, 837 F.3d 1292 (Fed. Cir. 2016)—

which it characterized as having “divergent conclusions.” ECF No. 38 at 4-7. In the 

court’s view, the newly decided precedent clarifies the divergent conclusions in the case 

law and offers clear guidance in resolving plaintiff’s claim. Therefore, the court will 

reconsider its prior opinion.

B. Defendant Is Entitled to Judgment as a Matter of Law 

Defendant argues that the Federal Circuit cases, in particular Shaw v. United 

States, 900 F.3d 1379 (Fed. Cir. 2018), clearly establish that the government agreed 

merely to purchase annuities, not to guarantee the payments thereon. See ECF No. 77 at 

10. According to defendant, plaintiff’s settlement agreement and the agreement in Shaw

share material provisions, specifically the term requiring defendant to “purchase an 

annuity that would make specified periodic payments.” Id. Defendant further contends 

that, also like the agreement in Shaw, plaintiff’s settlement agreement “did not provide 

that [defendant] would make the annuity payments to [plaintiff],” but rather that the 

annuity would make those payments. Id. Therefore, defendant concludes that, like the 

Federal Circuit concluded in Shaw, plaintiff’s agreement did not make defendant 

guarantor of the payments and defendant does not have an obligation to make up for any

shortfall in payments. See id.

Defendant further contends that the guarantee language in plaintiff’s agreement is 

“essentially the same type of language” that the Federal Circuit addressed and interpreted

in Shaw. Id. at 12. That language, defendant argues, referred to the length of time the 

payments were to be made, not the amount of the payments. See id. According to 

defendant, the court’s explanation in Shaw that “in ‘the context of annuities [the term] 

“guaranteed” is generally used as a term of art to establish that an annuity that is 

measured by an annuitant’s life will continue to make payments in the event of death 

before the end of the guaranteed period,’” should apply in this case as well. Id. (quoting 
5

Shaw, 900 F.3d at 1383). Defendant also distinguishes the agreements in Massie and 

Langkamp from plaintiff’s agreement, arguing that unlike the agreements in those cases, 

plaintiff’s agreement contains no ongoing obligation on the part of defendant. See id. at 

13-15 (citing Massie, 166 F.3d at 1186, and Langkamp v. United States, 943 F.3d 1346,

1350 (2019)). Therefore, defendant argues, it is not responsible for any shortfall in 

plaintiff’s annuity payments. See id. at 17.

Plaintiffs in both Shaw and this case have argued that the language in their 

settlement agreements obligated the government to make up any shortfall in the 

enumerated payments. See Shaw, 900 F.3d at 1381; ECF No. 1 at 4. The agreement in 

Shaw provided for “the purchase of annuities that will provide the periodic or other 

payments set forth” in the agreement, ECF No. 78-2 at 5 (settlement document in Shaw, 

attached as an exhibit to plaintiff’s response). Similarly, plaintiff’s agreement at issue 

here provided for “the purchase of an annuity which will provide the following” 

payments set forth in the agreement. ECF No. 1 at 8. Moreover, the agreement in Shaw

provided that “these monthly payments are guaranteed for a period of twenty (20) years” 

regardless of the death of the beneficiary, ECF No. 78-2 at 5, and plaintiff’s agreement 

provided that “all monthly payments are guaranteed for 30 years or the life of [plaintiff] 

whichever is longer,” ECF No. 1 at 8. 

Seeking to distinguish these agreements, plaintiff argues that the settlement 

agreement at issue in her case is materially different than that in Shaw. See ECF No. 78 

at 4-5. Specifically, plaintiff contends that the agreement in Shaw “expressly limit[ed] 

the consideration for the release to lump sum payments and the purchase of annuities,” id.

at 4, while the consideration for release in plaintiff’s settlement included the guarantee of 

the monthly annuity payments. Id. at 4-5, 8-9. Additionally, plaintiff argues, the 

meaning of the guarantee in the Shaw settlement was “explained in detail within the 

settlement agreement,” id. at 5, and it was not in her settlement. See id. at 4-5, 10-11. 

Thus, according to plaintiff, the Federal Circuit precedent supports her position that the 

language in her settlement agreement amounted to “mandatory obligations of [defendant]

to pay in the event of default by the primary obligor.” Id. at 9 (citing Massie, 166 F.3d at 

1189); see also id. at 11. 

In the court’s view, the distinctions plaintiff raises are insufficient to overcome the 

language present in plaintiff’s agreement that the Federal Circuit construed in Shaw. The 

Circuit reviewed the guarantee language in the Shaw settlement and concluded that:

[R]elatively little significance can be given to this guarantee language. In 

the context of annuities, “guaranteed” is generally used as a term of art to 

establish that an annuity that is measured by an annuitant’s life will continue 

to make payments in the event of death before the end of the guaranteed 

period. In the Shaws’ agreement, the use of the term “guaranteed” indicates 

that the monthly payments will be made until 20 years have passed or until 

the death of the annuitant, whichever is later.
6

Shaw, 900 F.3d at 1383-84 (footnote omitted). The Federal Circuit set forth its view of 

the express language in the Shaw contract, and, contrary to plaintiff’s assertions, the court 

does not find that the absence of the precise language in the Shaw agreement from 

plaintiff’s agreement triggers a different interpretation. The court does not perceive, and 

plaintiff has not presented, any material difference between the language in plaintiff’s 

agreement and the language in the Shaw agreement. Without more, the presence of 

certain explanatory language in the Shaw agreement, that is not present in plaintiff’s 

agreement, is not sufficient to distinguish the controlling language that is present in both 

agreements. The court, therefore, must conclude that the Federal Circuit’s interpretation 

governs in this case, and the guarantee language applies to the term of the payments, 

rather than to the amount of the payments. See id.

In Shaw, the Federal Circuit also distinguished the agreement in Massie, noting 

that the agreement in that case “described the periodic payments as being made ‘on 

behalf of the United States’” and finding “no such language” in the Shaw settlement. Id.

at 1384 (quoting Massie v. United States, 40 Fed. Cl. 151, 155 (1997)). The Circuit

further stated that the Shaw agreement “did not provide that the payments made by the 

annuities would discharge the government’s obligations.” Id. 

Plaintiff has pointed to no language in the instant agreement that is similar to the 

language in Massie and which would indicate an ongoing obligation by defendant to 

make payments. See id. And, like in Shaw, the agreement here does not provide that the 

payments made by the annuities discharge defendant’s obligation; rather, the agreement

provides for the “purchase of an annuity,” and a lump sum payment, “in full satisfaction 

and final settlement” of plaintiff’s claims. ECF No. 1 at 8-9.

Because there is no dispute of material fact in this case, and because Federal 

Circuit precedent controls, defendant is entitled to judgment as a matter of law as to 

plaintiff’s claims.

IV. Conclusion

Accordingly, for the foregoing reasons, defendant’s motion for reconsideration, 

ECF No. 77, is GRANTED, and the court’s July 12, 2017 opinion, ECF No. 38, is 

VACATED. The clerk’s office is directed to DISMISS plaintiff’s complaint with 

prejudice and ENTER final judgment in defendant’s favor.

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith 

PATRICIA E. CAMPBELL-SMITH

Judge