[00:00:07] Speaker 01:
Good afternoon and welcome to the Ninth Circuit Court of Appeals.

[00:00:10] Speaker 01:
My name is Morgan Kristen.

[00:00:11] Speaker 01:
I'm one of the judges on the circuit court.

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My chambers are in Anchorage, Alaska.

[00:00:16] Speaker 01:
It's much wider outside in Anchorage today than it is here.

[00:00:19] Speaker 01:
It almost looks springy.

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I'm joined this week by Judge Hurwitz, who's joining us from Phoenix.

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His chambers are there.

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And Judge Desai, who's here on the bench with me, whose chambers are also in Phoenix.

[00:00:31] Speaker 01:
I'll just start with a quick sound check.

[00:00:33] Speaker 01:
Judge Hurwitz, can you hear us OK?

[00:00:37] Speaker 01:
Yes, that was a yes.

[00:00:38] Speaker 01:
Okay, great.

[00:00:40] Speaker 01:
And Council, you can both see Judge Hurwitz, all right?

[00:00:43] Speaker 01:
Okay, perfect.

[00:00:45] Speaker 01:
Just a little housekeeping before we begin, please, because we've submitted three cases on the briefs and we will not hear argument in those.

[00:00:54] Speaker 01:
They are 21-70340 Diego Miguel versus Bondi, 24-6380 Vega Lopez versus Bondi, and 24-7219 Taylor versus Bisognano.

[00:01:10] Speaker 01:
The first case on the oral argument calendar is 24-7646 Capua versus United States of America.

[00:01:19] Speaker 01:
Council, we're ready for your argument when you are ready to present it.

[00:01:31] Speaker 02:
Good afternoon, judges.

[00:01:33] Speaker 02:
Good afternoon, counsel.

[00:01:34] Speaker 02:
May it please the court.

[00:01:36] Speaker 02:
My name is Doug Angel.

[00:01:37] Speaker 02:
I represent the appellant, John Capote, who is in the courtroom with us today.

[00:01:41] Speaker 02:
I'm honored to be here today, a longtime listener, first-time caller here.

[00:01:45] Speaker 01:
So we're here to watch our arguments on our channel.

[00:01:50] Speaker 02:
I do not.

[00:01:51] Speaker 02:
I guess long-time reader, I should say.

[00:01:53] Speaker 01:
Oh, reader.

[00:01:54] Speaker 01:
OK.

[00:01:54] Speaker 01:
Well, that's good, too.

[00:01:55] Speaker 02:
So we're here in de novo review and the district court to say that the district court does have subject matter jurisdiction and Therefore we request that that judgment be reversed This case presents a substantial legal issue, and that is what is a reasonable limit on claim splitting and

[00:02:14] Speaker 02:
That is how may a claimant go about claim splitting?

[00:02:18] Speaker 01:
Settling a property claim by preserving the injury claim normally this seems to me to be a pretty straightforward exercise because of form I'm going to call it a form 95 is used and we didn't have that with your first offer correct and so when you call it claim splitting I think that I have the first question for both of you I think there's no question about the offer the terms of the offer that your client first presented

[00:02:40] Speaker 01:
That all comes back to the government's response right correct, okay?

[00:02:43] Speaker 02:
So could you go to that so our offer was we will take?

[00:02:48] Speaker 02:
$675 for the property damage, but we pointed out that the injury claim was forthcoming And then the cases that have addressed this I don't think there's any question about that council.

[00:03:00] Speaker 01:
It's the question is and then the government responded With something that they say is a release of all claims yes, okay, they well

[00:03:07] Speaker 02:
Said two things one the first paragraph of that letter they sent was here's your property damage check to settle the property damage claim the second paragraph says the 2672 language and there is a case exactly like that where a voucher was actually signed by the claimant and the pre-printed 2672 language was in the form but above that the was printed

[00:03:38] Speaker 02:
a description of the property damage claim that was being settled.

[00:03:42] Speaker 04:
What case do you contend is exactly like it?

[00:03:46] Speaker 02:
That was in a district case from Illinois called Robinson versus United States.

[00:03:54] Speaker 04:
Okay, so it's not binding on us.

[00:03:57] Speaker 04:
We've read it.

[00:04:00] Speaker 04:
Here's my question as a matter of contract law.

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Put 2672 aside for a second.

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As Judge Kristen indicated, you offered to settle your property claim for a certain amount and said, but we don't want to settle our personal injury claim yet.

[00:04:20] Speaker 04:
The government responds with a letter that says, here's the money in settlement of your personal property claim.

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But if you cash this check, you have given up all claims.

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I don't think the second paragraph could be any clearer.

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and you cash the check.

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2672 aside, why haven't you accepted their offer by cashing the check?

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In Oregon, the ORS 42.240 says particular terms or specific terms

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prevail over general terms.

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And the first paragraph of that letter, and I don't know if I'm looking in the right spot here by looking at him.

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OK.

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I can see you.

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So the particular terms control over the general terms.

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And the first paragraph of the letter from the post office were the particular terms saying this is only for the property damage.

[00:05:20] Speaker 04:
Even assuming Oregon law applies, which I'm not sure it does, but let's assume it does.

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You've got a letter that says you made a claim for personal property damage.

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We're willing to pay you for that, but only if you accept this check.

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You've now given up all other claims too.

[00:05:42] Speaker 04:
It is perfectly clear to me what that letter says.

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You could have responded as the people in the third circuit case did that said, no, we're not going to give up our personal injury claims, but you signed the letter.

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So the difference.

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So whether or not we apply Oregon law or federal law or black letter contract law, I just don't see how you haven't given up the second claim by signing the check.

[00:06:13] Speaker 04:
So tell me why not?

[00:06:14] Speaker 02:
Well, because in that Macy case from the Third Circuit, the claimant signed the Form 95, and in that form, above their signature, it says, I agree to accept said amount in full satisfaction and final settlement of the claim.

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So the Macy claimant... But isn't it true in the Third Circuit they also reserved

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the personal, the plaintiff reserved in responding the personal injury claim.

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Correct.

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And that is, we did that ahead of time.

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You didn't do that.

[00:06:50] Speaker 04:
You didn't do that.

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You did it before you got the counter offer.

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So please, please focus on this as a matter of contract law.

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I just don't understand why if somebody says to you, I'll pay off your property damage claim, but only if, but if you signed the check, you've given up all other claims.

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You haven't accepted that offer by signing the check.

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Yeah, it is our position that the particular terms of that post office letter control over the general terms.

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of the 2672 language.

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So that is the contract.

[00:07:27] Speaker 01:
So because your contention is that Oregon law applies to the contract formation.

[00:07:30] Speaker 02:
Yeah, and the cases support that.

[00:07:32] Speaker 01:
I'll take yes for an answer.

[00:07:34] Speaker 01:
So I think, just if I could circle back to Judge Hurwitz's question.

[00:07:38] Speaker 02:
Sure.

[00:07:39] Speaker 01:
It seems like your interpretation, because Judge Hurwitz is calling your attention to the two paragraphs we're talking about.

[00:07:44] Speaker 02:
Right.

[00:07:44] Speaker 01:
Right.

[00:07:45] Speaker 01:
And you started by saying the first paragraph is what we're settling, and your position is we only intend to settle the property damage.

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that Hurwitz has called your attention to the second paragraph, and he thinks that's a complete release.

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So you have to be, I think, you have to be arguing that those have to be read together, those two paragraphs.

[00:08:04] Speaker 01:
They're actually two sentences, but have to be read together.

[00:08:06] Speaker 02:
They have to be read together, and you have to apply ORS 42.240.

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Oregon law controls the formation of the contract.

[00:08:19] Speaker 01:
Of the settlement agreement, a different question about what controls the release.

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A contract is our, that's a contract is our.

[00:08:26] Speaker 01:
Well now there's a settlement and there's a release.

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Those are two different things.

[00:08:29] Speaker 01:
So the contract formation had to do with, I mean you know this right, what the parties were agreeing to settle them for how much.

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But the release is what Judge Hurwitz is calling your attention to.

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The release language.

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And so why is he wrong when he says hey he thinks that this second paragraph, he said couldn't be clearer.

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That all, because he's viewing this as a counter offer essentially.

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Yeah and

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And our position is that that's a contract.

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The release is a contract.

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The second paragraph?

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The letter together is the contract, the entire letter.

[00:09:03] Speaker 01:
Okay.

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And so the particular terms of the contract control over the general terms.

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And the post office limited the scope of the settlement by their own words.

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This has been done in other cases

[00:09:18] Speaker 01:
Well, to the extent those cases involve Form 95, I think they're easily distinguishable right off the top.

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Do you have a case that doesn't involve a Form 95?

[00:09:28] Speaker 02:
Ours.

[00:09:30] Speaker 01:
Yeah.

[00:09:30] Speaker 01:
OK.

[00:09:31] Speaker 01:
We haven't let Judge Desai get in a word edgewise.

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And I don't know if you have questions for this.

[00:09:35] Speaker 01:
Judge Hurwitz, did you get the answers to your questions?

[00:09:37] Speaker 04:
Well, I got responses.

[00:09:39] Speaker 04:
But I want to focus again on what law controls the terms of the release.

[00:09:48] Speaker 04:
It seems to me that, at least in the only opinion we have, which is the Swarter case, we said that the interpretation of a 2672 settlement is a matter of federal law, not state law.

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And then we explained in great detail why, because we want to have a uniform system under 2672.

[00:10:11] Speaker 04:
So why do you think Oregon law controls

[00:10:16] Speaker 04:
the interpretation of the release.

[00:10:18] Speaker 02:
The shorter case said that state law controls whether there's liability or not.

[00:10:27] Speaker 02:
Right.

[00:10:28] Speaker 02:
Right.

[00:10:29] Speaker 02:
And other district court cases from around the country have all agreed that the state law, the law of the place, controls the contract.

[00:10:41] Speaker 04:
Once there's a contract... Help me with that, because I've read all the cases you've cited.

[00:10:46] Speaker 04:
Some of them do cite state law, but they don't say federal law doesn't control, and they don't say federal law and state law would be different.

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So I'm still focusing on the only time we've spoken about it, which says that we want a uniform national system.

[00:11:05] Speaker 04:
And if we were interpreting releases differently in every state, wouldn't that cut against what Schwartzer was about?

[00:11:11] Speaker 02:
I think the Supreme Court has said there was a case from the Ninth Circuit where there was an excessive force case, and the Supreme Court said, no, it's not a federal standard, it's a state standard.

[00:11:25] Speaker 04:
For the release or for measuring the liability?

[00:11:30] Speaker 02:
Liability.

[00:11:31] Speaker 04:
Yeah, and so I'm assuming that they're liable to you.

[00:11:34] Speaker 04:
That's why you're fighting.

[00:11:37] Speaker 04:
I'm just trying to figure out how to interpret the release.

[00:11:40] Speaker 02:
Yes.

[00:11:41] Speaker 02:
And what our position is that the various cases, the district court cases from around the country that have dived into the details of it, recite that state law controls whether a contract has been formed.

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And a contract is a release and a settlement.

[00:12:02] Speaker 02:
So without a contract,

[00:12:04] Speaker 01:
2672 doesn't apply to what extent Excuse me to what extent are you relying on your argument that you didn't sign anything the cashing the check wasn't enough That we did can you repeat that again, sorry I think that I May not be artfully paraphrasing, but I think your argument includes

[00:12:29] Speaker 01:
that you didn't sign anything by cashing the check.

[00:12:33] Speaker 01:
You didn't accept this if it were indeed a counter offer.

[00:12:36] Speaker 01:
Is that right?

[00:12:37] Speaker 02:
That's right.

[00:12:38] Speaker 02:
Yeah.

[00:12:38] Speaker 02:
And if we had, then we would have had to take the extra step, as in Macy, to say, no, no, I'm not done yet.

[00:12:46] Speaker 02:
I need to tell you that I have this personal injury claim.

[00:12:49] Speaker 02:
But we already had told the post office that we have a personal injury claim.

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Their letter to us says, yes, in fact, we're settling.

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And then they continued to chat with us.

[00:13:01] Speaker 01:
All right.

[00:13:02] Speaker 01:
I think we may be out of questions for the moment.

[00:13:04] Speaker 01:
Would you like to reserve your time?

[00:13:06] Speaker 02:
Yes.

[00:13:08] Speaker 02:
Thank you.

[00:13:09] Speaker 01:
You bet.

[00:13:22] Speaker 03:
Good afternoon.

[00:13:23] Speaker 03:
May it please the court, Ben Hickman for the United States.

[00:13:27] Speaker 03:
Section 2672 says that any claim that is settled by the claimant bars any further claim arising out of the subject matter that led to that claim.

[00:13:41] Speaker 01:
Do you think it's impossible to split a claim?

[00:13:44] Speaker 03:
I'm sorry, Your Honor?

[00:13:45] Speaker 01:
Do you think it's impossible to split a Federal Court Claims Act damages from property damage from personal injury, for example?

[00:13:52] Speaker 03:
Yes.

[00:13:53] Speaker 01:
Okay, so I've done that as a practitioner.

[00:13:55] Speaker 01:
I've had experience doing that back in the day when I was a lawyer.

[00:13:57] Speaker 01:
So just take another run at that question.

[00:14:01] Speaker 01:
Because of the statute, you think it's impossible to do this?

[00:14:04] Speaker 03:
Yes, because section 2672 speaks directly to it.

[00:14:08] Speaker 03:
And I'll read directly from it.

[00:14:12] Speaker 01:
We've all read the statute.

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And I think you've answered my question.

[00:14:16] Speaker 04:
So do you think Macy is incorrectly decided?

[00:14:20] Speaker 03:
I'm sorry, Judge Hurwitz.

[00:14:21] Speaker 03:
Could you repeat that one more time?

[00:14:22] Speaker 04:
Do you think the Third Circuit case is incorrectly decided?

[00:14:26] Speaker 04:
I mean, I'm not sure why you need to take this position, but you've taken it, so let me explore it.

[00:14:31] Speaker 04:
The Third Circuit, the plaintiff said, I'll take your check and I'll cash it for the property claim, but I'm reserving my personal injury claim.

[00:14:43] Speaker 04:
And the Third Circuit said, you did it.

[00:14:45] Speaker 04:
You did reserve it.

[00:14:46] Speaker 04:
So the Third Circuit must think you're wrong, correct?

[00:14:50] Speaker 03:
Yes, I think that, well, of course... Is there a good reason for us to create a split with the Third Circuit in this case?

[00:14:59] Speaker 03:
I think there is, and I think what happened... That's your best argument?

[00:15:02] Speaker 01:
No, no.

[00:15:02] Speaker 03:
Your best argument is we should create a split with the Third Circuit?

[00:15:05] Speaker 03:
Well, of course, there is just the factual distinction, which is that... Yes, there is a small factual distinction, so I'm not sure what you're leading with.

[00:15:14] Speaker 01:
So... We're not trying to give you a hard time, but we do have to understand the argument.

[00:15:20] Speaker 01:
strike me that you're taking a really hard line position that this sort of cannot be done.

[00:15:23] Speaker 01:
And I started by letting you know, I've done it.

[00:15:26] Speaker 01:
I think it is possible.

[00:15:29] Speaker 01:
But more importantly, to Judge Hurwitz's point, I don't think you need to take this position, or I don't think we need to answer that question to solve this case, do we?

[00:15:39] Speaker 03:
No and shorter certainly did not have to answer that question either.

[00:15:46] Speaker 03:
Shorter.

[00:15:47] Speaker 03:
Said that there are instances when state law might matter and in that case there there was a there was an issue as to whether the.

[00:15:56] Speaker 03:
claims by children of the decedent qualified as the same claims that were... Well, it's not just that state law might matter, it was controlling.

[00:16:06] Speaker 01:
They were trying to figure out whether under it was a California law, whether that claim existed by the decedent surviving children.

[00:16:12] Speaker 01:
So state law was critical.

[00:16:14] Speaker 01:
That's what the Federal Claims Act does, right?

[00:16:16] Speaker 01:
It puts the federal government in the same shoes as.

[00:16:19] Speaker 03:
Yes.

[00:16:20] Speaker 01:
Right, so it matters a lot.

[00:16:21] Speaker 01:
Can you help us tease out the part of this that is controlled by

[00:16:26] Speaker 01:
federal law on the part that's controlled by state law.

[00:16:29] Speaker 01:
I think Judge Hurwitz and I were both struggling with that.

[00:16:32] Speaker 03:
The part that is controlled by federal law is, of course, the face of the statute, which says that if there was a settlement of a claim, then that would bar future claims.

[00:16:45] Speaker 01:
Where state law... Can I just stop you?

[00:16:47] Speaker 01:
I think that's right.

[00:16:48] Speaker 01:
But doesn't that require that we figure out what the claim is?

[00:16:51] Speaker 01:
And isn't that a function of what the parties agreed to settle?

[00:16:54] Speaker 03:
Yes.

[00:16:56] Speaker 03:
And there is no question in this case that what the parties agreed to settle was the property damage claim.

[00:17:03] Speaker 01:
Right.

[00:17:03] Speaker 01:
So why can't he go forward and bring the other part of his claim?

[00:17:06] Speaker 03:
because Section 2672 says that any claim by reason of the same subject matter is barred thereafter.

[00:17:15] Speaker 01:
Right, but by baking in the term the claim, you see, then I think you've got a problem, because the first sentence says of what the claim is.

[00:17:24] Speaker 01:
And in this particular offer, he's defined his claim as a property damage claim.

[00:17:30] Speaker 01:
So it gets to be pretty circular.

[00:17:32] Speaker 03:
The way that I read section 2672 is that there does not have to be a match between the first claim settled and the second claim that is sought.

[00:17:42] Speaker 03:
So any claim means that the first claim settled could be a property damage claim.

[00:17:47] Speaker 03:
That means that any further claim, whether it's personal injury or for anything else, is forever blocked.

[00:17:54] Speaker 01:
The problem is that rolls you right back to the argument that I think you wisely tiptoed away from a minute ago.

[00:18:01] Speaker 01:
And that's the contention that

[00:18:03] Speaker 01:
that this necessarily has to be, you cannot split claims under the Federal Court Claims Act.

[00:18:09] Speaker 01:
But I want to make sure that Judge Hurwitz has a chance to follow up.

[00:18:12] Speaker 04:
Let me ask that question slightly differently.

[00:18:15] Speaker 04:
Let's assume that all we had here in the letter from the U.S.

[00:18:19] Speaker 04:
Postal Service was the first paragraph.

[00:18:23] Speaker 04:
Would this be a different case?

[00:18:29] Speaker 04:
If we're looking at common law contract law, I think it might be a different case because... So if we... It seems to me that the critical point here is that we have a second paragraph.

[00:18:45] Speaker 04:
And that paragraph, I don't think your colleague, your friend is saying, doesn't provide on its face for a total release.

[00:18:53] Speaker 04:
He just says you need to read it in context.

[00:18:57] Speaker 04:
So it seems to me the critical point here is we do have that second paragraph.

[00:19:03] Speaker 04:
And we're trying to figure out what the effect of that second paragraph is.

[00:19:09] Speaker 03:
Well, the second paragraph is a very close paraphrase of Section 2672.

[00:19:14] Speaker 03:
And it clearly says that any further claims are barred.

[00:19:20] Speaker 03:
Certainly, that second paragraph wouldn't be talking about another property damage claim.

[00:19:26] Speaker 03:
The bicycle was the only property damage claim.

[00:19:29] Speaker 03:
So it has to cover something else.

[00:19:31] Speaker 03:
And what else would it cover but the personal injury claim or anything else besides property?

[00:19:36] Speaker 01:
I don't think that's right.

[00:19:37] Speaker 01:
So the first paragraph tells us what's being settled, right?

[00:19:43] Speaker 01:
Property damage claim.

[00:19:45] Speaker 01:
Can you read the second paragraph as who is being released?

[00:19:49] Speaker 01:
Acceptance of this check operates as a complete and release and bars recovery against the United States United States post office and then any employees whose acts give rise to the claim Why can't it be read that way?

[00:20:02] Speaker 03:
I'm sorry judge Kristen.

[00:20:04] Speaker 01:
I just turned that paragraph again sure sure sure I'm just I'm just positing to play devil's advocate here the first paragraph Says we're settling a property damage claim.

[00:20:14] Speaker 01:
Yes for six hundred and seventy five dollars.

[00:20:16] Speaker 03:
Yes, I

[00:20:17] Speaker 01:
So in answer to Judge Hurwitz's question, you said that this second paragraph can only be read, and you said to refer to some other claim, it seems to me it can be read to be identifying who's being released.

[00:20:29] Speaker 01:
Acceptance of this check operates as a complete release of those three entities I just mentioned.

[00:20:34] Speaker 01:
Why is that wrong?

[00:20:39] Speaker 01:
The United States, the United States Postal Service, and any government employee whose acts gave rise to the claim.

[00:20:45] Speaker 01:
That begs the question of what is the claim?

[00:20:47] Speaker 01:
Why can't it be read that way?

[00:20:50] Speaker 03:
The prepositional phrase by reason of the same subject matter modifies any additional or future claims.

[00:20:59] Speaker 03:
So there are three things that are modifying any additional or future claims.

[00:21:03] Speaker 01:
I think that's right.

[00:21:04] Speaker 01:
I think the question is what modifies what in this last sentence?

[00:21:08] Speaker 01:
So could you slow down and tell me how you read it?

[00:21:12] Speaker 01:
You're looking at the last

[00:21:15] Speaker 01:
By reason of the same subject matter, you think that phrase modifies everything that comes before it?

[00:21:21] Speaker 03:
It modifies any additional or future claims.

[00:21:24] Speaker 03:
And then against the United States, the United States Postal Service, and any and or government employees, those also modify any additional or future claims.

[00:21:37] Speaker 03:
All those phrases modify any additional or future claims.

[00:21:45] Speaker 04:
Can I ask a question that you may not be able to answer?

[00:21:49] Speaker 04:
This seems unfair in a sort of a global sense.

[00:21:55] Speaker 04:
Nobody really thinks that Kapu meant to settle all of his claims.

[00:22:01] Speaker 04:
Somebody screwed up.

[00:22:03] Speaker 04:
I'm not blaming anybody at the moment.

[00:22:05] Speaker 04:
Is there some way to fix it?

[00:22:09] Speaker 03:
The letter responding to the personal injury claim expressed regret.

[00:22:17] Speaker 03:
That's an ER 41.

[00:22:19] Speaker 03:
And that letter also explained that the Postal Service was bound by federal statutes which restrict its authority.

[00:22:29] Speaker 03:
And so what we have to balance against

[00:22:31] Speaker 03:
Fairness for an individual claimant is the executive branches, of course.

[00:22:35] Speaker 04:
I'm asking I'm assuming for a moment that you you did what the statute requires.

[00:22:41] Speaker 04:
Is there the equivalent of a motion to reopen or rule 60 motion or something that the other side might be able to take advantage of?

[00:22:50] Speaker 03:
I'm not aware of anything.

[00:22:53] Speaker 03:
The postal service receives tens of thousands of personal injury claims every year.

[00:22:58] Speaker 03:
And what my agency clients told me when we were talking about this is that if the postal service were to have to go back and redo things like this all the time, it would

[00:23:11] Speaker 03:
actually be worse for all claimants because there wouldn't be enough resources to go around to as quickly process claims.

[00:23:18] Speaker 01:
But look at it this way.

[00:23:22] Speaker 01:
I think it's right, I haven't heard you correct me, that there's no question about or dispute about what plaintiff offered.

[00:23:32] Speaker 01:
Really, the Postal Service is treating this response as a counter offer.

[00:23:37] Speaker 03:
Yes.

[00:23:38] Speaker 01:
Right.

[00:23:38] Speaker 01:
But it doesn't say that.

[00:23:40] Speaker 01:
Would it be so burdensome for the Postal Service to have said in response to your offer, here's a counterproposal?

[00:23:44] Speaker 01:
So it would be clearer to everyone that this is a counterproposal?

[00:23:50] Speaker 01:
I think it's... Because your client's position is going to be if he signs the check, it's done.

[00:23:55] Speaker 03:
Right.

[00:23:56] Speaker 01:
But how would he have known that?

[00:23:57] Speaker 01:
Excuse me, Judge Desai.

[00:23:59] Speaker 01:
Please go right ahead.

[00:23:59] Speaker 01:
I didn't mean to talk over you.

[00:24:00] Speaker 01:
No, that's okay.

[00:24:03] Speaker 03:
Well, this claimant was represented by counsel.

[00:24:07] Speaker 03:
Lawyers are here to interpret language.

[00:24:10] Speaker 01:
We're staring at this thing with a microscope trying to figure out.

[00:24:13] Speaker 01:
What would tell him this is a counter offer?

[00:24:17] Speaker 01:
We're lawyers too.

[00:24:20] Speaker 03:
I am not seasoned myself in contract negotiations, but I will say that I'm aware of no authority that requires a counteroffer to expressly say this is a counteroffer.

[00:24:33] Speaker 00:
That's okay.

[00:24:34] Speaker 00:
I am trying to understand what your position is with respect to the hypothetical situation.

[00:24:40] Speaker 00:
If Mr. Kapua had in fact responded much like the individual in the Macy case from the Third Circuit, what would your argument be?

[00:24:50] Speaker 00:
So in this case, if there had been a statement that accompanied the cashing of the check that, you know, thank you for this check, I'm cashing it for the purpose of my property damage claim and we'll get back to you at some future time with my personal injury claim, much like he said at the very beginning, what would the agency's position be?

[00:25:13] Speaker 03:
In that situation, our position would be that that would not have effect under Section 2672.

[00:25:20] Speaker 00:
That's right.

[00:25:21] Speaker 00:
So your position, it doesn't really matter whether or not you indicated in some way that this is a counter offer because your position would be that the moment that the check was cashed, that would trigger the complete release.

[00:25:35] Speaker 03:
Yes, we believe the statute is clear.

[00:25:38] Speaker 03:
I've also argued that even if we use the state law method that the Third Circuit used, that there's still a factual distinction.

[00:25:46] Speaker 03:
But yes, Judge Desai, that is correct.

[00:25:52] Speaker 01:
Anything further, counsel?

[00:25:53] Speaker 03:
Nothing further.

[00:25:54] Speaker 01:
Before you go away, let me make sure.

[00:25:55] Speaker 01:
Judge Hurwitz, do you have any further questions?

[00:25:57] Speaker 01:
No.

[00:25:57] Speaker 01:
Thank you.

[00:25:57] Speaker 03:
Thank you.

[00:26:08] Speaker 02:
Thank you.

[00:26:10] Speaker 02:
So the Macy case said that caching a check by itself is not enough.

[00:26:15] Speaker 02:
We need something more.

[00:26:16] Speaker 02:
We need an agreement between the parties.

[00:26:19] Speaker 02:
In that case, the SF95 was signed.

[00:26:22] Speaker 02:
The claimant said, I agree that this language kills my claim.

[00:26:27] Speaker 02:
We did not do that.

[00:26:28] Speaker 02:
We said we have this property damage claim and we're pursuing the

[00:26:33] Speaker 02:
Injury claim later nothing else was required of us if we required more We could get into a huge back and forth between the post office and the claimant saying yes, I did no I didn't It applies it doesn't apply so we have to if the intent is clear from the claimants letter There is the and the post office agrees with that by their own language saying yes, we're paying you for your property damage and

[00:27:02] Speaker 02:
personal injury claim is preserved.

[00:27:04] Speaker 02:
It's important that we told the post office that the personal injury claim was coming.

[00:27:10] Speaker 02:
In these cases where the claimants have been cut off, they did not tell the post office that a personal injury claim was coming.

[00:27:17] Speaker 02:
They said either NA, they wrote in the SF95, or they described an injury but did not say, oh, by the way, we're going to come after you.

[00:27:27] Speaker 02:
So we did all that.

[00:27:29] Speaker 02:
We limited the scope of the agreement.

[00:27:33] Speaker 02:
The post office agreed with that.

[00:27:37] Speaker 02:
And we put them on notice that the injury claim was coming.

[00:27:41] Speaker 02:
And that is enough to have a meeting of the minds to form a contract in this situation.

[00:27:48] Speaker 02:
So, unless you have questions.

[00:27:51] Speaker 01:
Any further questions?

[00:27:53] Speaker 01:
I don't think there are further questions.

[00:27:54] Speaker 01:
Thank you both.

[00:27:55] Speaker 01:
Thank you very much.