[00:00:05] Speaker 01:
We have four cases on the calendar this morning, two from the claims court and two patent cases, one from the PTAB and one from a district court.

[00:00:18] Speaker 01:
One of the claims cases being submitted on the briefs and will not be argued.

[00:00:24] Speaker 01:
And so we have three argued cases.

[00:00:28] Speaker 01:
The first one is Trevor Langkamp versus the United States, 2018-2052, Mr. Lister.

[00:00:59] Speaker 00:
Good morning, Your Honors.

[00:01:01] Speaker 00:
Jim Lister for Plaintiff, Appellant, Trevor Landcappen, may it please the Court.

[00:01:06] Speaker 00:
This case presents a circumstance this Court has not encountered before in its executive life of New York cases.

[00:01:13] Speaker 01:
One would think that we've come close to it at least three times.

[00:01:17] Speaker 00:
Yes, but not this case.

[00:01:18] Speaker 01:
The question is sorting out the cases.

[00:01:20] Speaker 00:
Yes.

[00:01:22] Speaker 00:
This is the first case where the tort settlement does not refer to a third party who will be making future settlement payments.

[00:01:29] Speaker 00:
The only party mentioned in the Federal Tort Claims Act settlement agreement as making payments is the government, which was the settling tort defendant.

[00:01:37] Speaker 00:
In the three previous cases this court has had, the settlement agreement said that the government will be purchasing or buying an annuity from an insurance company.

[00:01:48] Speaker 00:
which will make the future payments.

[00:01:49] Speaker 00:
Those cases therefore presented the issue of whether the insurance company referred to in the settlement agreement as making payments would be solely liable for making those payments or would instead be co-liable with the government for those payments.

[00:02:02] Speaker 00:
This case does not present that co-liability or sole liability issue.

[00:02:07] Speaker 00:
As the government is the only party mentioned in the settlement agreement as having payment liability, it is liable to make the payments.

[00:02:15] Speaker 00:
The court in Massey

[00:02:17] Speaker 00:
wrote, because the payments are mandatory, the government must be responsible for their payment.

[00:02:23] Speaker 00:
No one else is a party to this agreement.

[00:02:26] Speaker 02:
And that was, and if I remember right, Massey, even in Massey, the agreement said purchase an annuity and you don't even have, you don't, I mean, the agreement here doesn't even reach that threshold.

[00:02:38] Speaker 00:
No, it says, correct your honor, it says the United States dot dot dot will pay dot dot dot a structured settlement.

[00:02:47] Speaker 00:
In this case?

[00:02:48] Speaker 00:
In this case.

[00:02:48] Speaker 02:
And a structured settlement is just a sequence of payments made over time.

[00:02:52] Speaker 02:
It doesn't say that it has to be acquired from a commercial entity that's in the business of creating contracts to make that promise.

[00:02:59] Speaker 00:
Yes, those are the Stein and the Kornblum tradices.

[00:03:02] Speaker 00:
The Stein treatise was the one this court cited in Shaw for the conclusion that guarantee language if the plaintiff died young dealt with the heirs and not with who was responsible for payment.

[00:03:17] Speaker 00:
So those are authoritative treatises.

[00:03:19] Speaker 00:
They go on to not only define a structured settlement as simply payments over time from whatever source, but they further go on to say that the original defendant remains liable unless the plaintiff does something to release the original defendant, which could be an agreement by the plaintiff that all the government has to do is purchase an annuity, and then that completes the government's performance.

[00:03:42] Speaker 00:
But we don't have that here.

[00:03:45] Speaker 02:
What about the second piece, the piece about

[00:03:49] Speaker 02:
lack of authority of the Assistant US Attorney to enter into what you say the agreement provides?

[00:04:03] Speaker 00:
Yes, Your Honor.

[00:04:03] Speaker 00:
The US mounts that argument as a contract construction argument.

[00:04:08] Speaker 00:
In their brief, they specifically disclaim any argument that the settlement agreement is void for lack of authority.

[00:04:15] Speaker 00:
So we are dealing with contract construction.

[00:04:19] Speaker 00:
As with all canons of contract construction, you have the ability to influence the meaning of words within the permissible boundaries of those words.

[00:04:30] Speaker 00:
The construction that the government advocates must be a construction to which the words of the contract are fairly open.

[00:04:38] Speaker 00:
The words of this contract are not fairly open to the government's construction.

[00:04:43] Speaker 00:
The United States will pay.

[00:04:46] Speaker 00:
not buy structured settlement.

[00:04:48] Speaker 00:
No mention of an insurance company, no mention of purchasing a new one.

[00:04:51] Speaker 01:
But the issue of authority is still there.

[00:04:55] Speaker 00:
I think the US has withdrawn the issue of whether the settlement agreement is void for lack of authority.

[00:05:01] Speaker 00:
This is the government's brief at page 45, note 9.

[00:05:05] Speaker 01:
I guess they'll tell us momentarily.

[00:05:08] Speaker 00:
Your Honor, I'm sorry.

[00:05:09] Speaker 00:
I simply didn't hear your question.

[00:05:11] Speaker 01:
They will confirm that presumably momentarily.

[00:05:14] Speaker 00:
Yes, I would hope so.

[00:05:17] Speaker 02:
Just so I understand, I thought that one of the arguments you were making about the authority question was this, that since the present value in 1984 of this stream of payments was in fact the $164,000 that when added to the immediate cash payment results in $400,000, this was in fact within the authority that they say the AUSA had.

[00:05:46] Speaker 00:
Exactly, Your Honor.

[00:05:47] Speaker 00:
The government has made the argument that we should construe the contract in a particular way.

[00:05:51] Speaker 00:
So of course, we respond with, no, this contract was within the authority of the government's attorney.

[00:05:59] Speaker 00:
This is a Federal Tort Claims Act settlement.

[00:06:03] Speaker 00:
The Federal Tort Claims Act has a number of provisions in it.

[00:06:06] Speaker 00:
One of it is USC 2677 and 72, which gives the US Attorney General the authority to settle these cases.

[00:06:16] Speaker 00:
Another of them is the related provision that limits the attorney's fees, contingent attorney fees, of the plaintiff's attorney to 25% of the sum.

[00:06:26] Speaker 00:
And then you have general principle support law that if a plaintiff suffers future injuries, the aggregate value of those injuries has to be reduced to present value.

[00:06:35] Speaker 00:
So those are three related principles.

[00:06:39] Speaker 00:
With the future injuries under the Hoskie case, you don't just award a judgment for the total raw value of the future injuries.

[00:06:47] Speaker 00:
You account for the time value of money, discount the present value.

[00:06:50] Speaker 02:
And that's how you apply it.

[00:06:51] Speaker 02:
And the offering on the market by Executive Life of this deal for $164,000 establishes conclusively that that was the present value of this set of promises.

[00:07:01] Speaker 00:
Yes.

[00:07:01] Speaker 00:
No one introduced any evidence to suggest it was not the present value.

[00:07:05] Speaker 00:
Similarly, with the 25% cap on attorney's fees, and this is the Wyatt case, you do not give the plaintiff's attorney 25% of the raw value, the raw sums of all those future payments.

[00:07:20] Speaker 00:
Instead, you discount them to present value.

[00:07:24] Speaker 00:
And it's 25% of the discounted present value.

[00:07:27] Speaker 00:
Here we're dealing with a third issue, which is the specific settlement of authority of the particular government's attorney.

[00:07:35] Speaker 00:
There was an internal memo within the government, which was not seen by the plaintiffs till 35 years later, which limited the assistant US attorney to using $400,000 of the granting attorney's $750,000 of authority.

[00:07:50] Speaker 00:
The memo authorized that US attorney to spend

[00:07:56] Speaker 00:
enough money to purchase the annuity, which is the present value of all those future payments.

[00:08:03] Speaker 00:
So again, the same concept as with the future damages and with the attorney's fees, the government attorney acted within her authority.

[00:08:12] Speaker 00:
She did not defy her authority by signing a settlement agreement, which simply has the government as the payer.

[00:08:19] Speaker 00:
She acted within her authority.

[00:08:20] Speaker 00:
Our construction of the settlement agreement and authority fits

[00:08:25] Speaker 00:
with the words of the contract.

[00:08:26] Speaker 00:
And frankly, the government's construction doesn't, because it requires you to change the word, pay a structure settlement, to buy an annuity from an insurance company, which is simply a separate part.

[00:08:38] Speaker 02:
What about the provisions of the contract that perhaps don't make this clear, and maybe that's your answer, but convey a sense that this contract ended the government's

[00:08:54] Speaker 02:
future responsibility, which in your view would, as a practical matter, not be true if the government is now liable for making the payments.

[00:09:10] Speaker 00:
Right.

[00:09:10] Speaker 00:
And to answer your honor's question,

[00:09:12] Speaker 00:
You consider both the settlement agreement, which is called a stipulation for compromise settlement, which is at Appendix 168, and then the related follow-up release document, which is at Appendix 165.

[00:09:24] Speaker 00:
In the settlement agreement, we have paragraphs 2, 3, and 4.

[00:09:32] Speaker 00:
Paragraph 2 defines what states the United States will pay a structured settlement.

[00:09:39] Speaker 00:
Paragraph 3 then says the aforesaid amount, the structured settlement, shall be paid as follows.

[00:09:44] Speaker 00:
And it lists out the payments.

[00:09:47] Speaker 00:
Paragraph 2 says that this settlement is in exchange for satisfaction of any and all claims plaintiff now or may have to have on account of the incident or circumstances giving rise to this suit.

[00:10:04] Speaker 00:
So the settlement is for release of the tort claim, the incident or circumstances giving rise to the suit.

[00:10:10] Speaker 00:
Paragraph 3 simply refers back to 2.

[00:10:12] Speaker 00:
And paragraph 4 repeats that the plaintiff agrees to set some in full satisfaction of claims regarding the incident or circumstances giving rise to the suit.

[00:10:25] Speaker 00:
Then to get to your honor's question, paragraph 6 is where the US hangs its hat.

[00:10:31] Speaker 00:
Paragraph 6 says that in exchange for the payments, the claimant releases all claims set forth in paragraphs 2, 3, and 4 above.

[00:10:42] Speaker 00:
So how the US interprets that is that the settlement agreement in paragraph 2, 3, and 4 creates rights.

[00:10:49] Speaker 00:
And then in the next breath, paragraph 6 takes away those rights.

[00:10:53] Speaker 00:
That's not an accurate interpretation, because paragraph two defines claim as claims arising from the incident or circumstances giving rise to the suit, as does paragraph four.

[00:11:05] Speaker 00:
Paragraph three refers back.

[00:11:07] Speaker 00:
So when paragraph six talks about a release of claims set forth in paragraph two, three, and four, it's using claims in the same sense as paragraphs two and four and three, which is claims arising from the tort.

[00:11:21] Speaker 00:
So what's being released is the tort

[00:11:23] Speaker 00:
and not the obligation to make the future payments, including the 2028 payment and all the other listed payments that are set forth in paragraph 3.

[00:11:32] Speaker 00:
How this is confirmed is in the release that was signed several weeks later by the land caps and was required by paragraph 6.

[00:11:41] Speaker 00:
The release was signed on December 7, 1984.

[00:11:44] Speaker 00:
On December 5, 1984, the government purchased the annuity.

[00:11:50] Speaker 00:
And it also, at about that date,

[00:11:52] Speaker 00:
delivered an upfront check to the LaneCap's parents, which was the $2.60, $2.35.

[00:12:00] Speaker 00:
So you walk through the release.

[00:12:02] Speaker 00:
If the proper interpretation of the deal was that by purchasing the annuity, the government completed its performance to Trevor LaneCap, we would have a release that said, the government has completed its performance.

[00:12:14] Speaker 00:
The government's payment is sufficient.

[00:12:18] Speaker 00:
The government is done.

[00:12:20] Speaker 00:
Instead, we don't have that.

[00:12:22] Speaker 00:
What we do have is a statement in the release that the government has paid the land cap's parents, the $239,000, the receipt of which is hereby acknowledged, first sentence of the release.

[00:12:37] Speaker 00:
So the government had paid the $239,000 to the parents.

[00:12:40] Speaker 00:
They required a release which said it's been paid.

[00:12:44] Speaker 00:
Now, the government had already, at this time, purchased an annuity.

[00:12:47] Speaker 00:
Did the government then say,

[00:12:50] Speaker 00:
in an exchange for the purchase of annuity, which has now been made and completing our obligations, the linkups give a release.

[00:12:57] Speaker 00:
No, it didn't.

[00:12:58] Speaker 00:
There's no mention in the release of the purchase of the annuity.

[00:13:02] Speaker 00:
Not at all.

[00:13:03] Speaker 00:
Instead, the release restates the future payments, the 2028 payment, the 2018 payment, the payments for life.

[00:13:13] Speaker 00:
And then what is being released?

[00:13:14] Speaker 00:
At the end of the release, it lists specifically what is released.

[00:13:18] Speaker 00:
And it is claims arising from injuries to Trevor Landcap, which occurred on April 19, 1980 at Fort Huachuca, Arizona, the burning accident, the scalding.

[00:13:29] Speaker 01:
Counsel, you're well into your rebuttal time.

[00:13:32] Speaker 01:
You want to save it or use it?

[00:13:33] Speaker 00:
I'll save it.

[00:13:34] Speaker 00:
Thank you.

[00:13:35] Speaker 01:
All right.

[00:13:41] Speaker 01:
Ms.

[00:13:42] Speaker 01:
Finan, is it?

[00:13:48] Speaker 03:
Morning.

[00:13:48] Speaker 03:
May it please the court, on behalf of the United States, we ask that this court affirm the decision of the trial court in finding that there's no liability on the party's cross motions for summary judgment below.

[00:13:58] Speaker 03:
The court appropriately found, and we submit this court should find as well, that the plain and unambiguous language of the settlement agreement did not obligate the United States government to any continuing liability.

[00:14:12] Speaker 03:
It simply obligated the US to, at settlement, make a cash upfront payment

[00:14:18] Speaker 03:
and to purchase structured settlement annuities, which it did.

[00:14:21] Speaker 03:
Performance is not suited.

[00:14:22] Speaker 02:
As you know, because you've been here the last 15 minutes, to me,

[00:14:27] Speaker 02:
quite large problem with that contention is that this contract, this settlement agreement, does not say purchase a structured settlement.

[00:14:37] Speaker 02:
It says pay a structured settlement, in contrast to, I think, all three of the earlier cases, but certainly the two that went in the government's favor.

[00:14:46] Speaker 03:
Yes.

[00:14:46] Speaker 02:
Why isn't that close to dispositive?

[00:14:50] Speaker 03:
Well, Your Honor, we have to read the reference to will pay structured settlement in paragraph two in concert with the rest of the agreement.

[00:14:58] Speaker 03:
It does the future periodic payments are then set forth in paragraph three that provides in that passive voice that the future payment shall be made, shall be paid in the prior cases that have come up to this court, that passive reference.

[00:15:12] Speaker 02:
I'm sorry, but the operative commitment to pay is in the active voice in paragraph one.

[00:15:19] Speaker 02:
The government will pay.

[00:15:21] Speaker 02:
the structured settlement.

[00:15:22] Speaker 02:
The next paragraph is a matter of timing, so you wouldn't expect any significance to be attributed to the choice of active or passive voice.

[00:15:31] Speaker 02:
It just says, when are these amounts going to be paid?

[00:15:34] Speaker 02:
But the operative commitment is an active voice the government shall pay.

[00:15:39] Speaker 03:
Shall pay a structured settlement, which...

[00:15:43] Speaker 02:
Even the two treatises that the Court of Federal Claims relied on for a definition of structured settlement does not say it's an annuity.

[00:15:54] Speaker 02:
It is simply a sequence of payments over time.

[00:15:58] Speaker 01:
And the agreement doesn't recite purchase of an annuity, does it?

[00:16:02] Speaker 03:
It does not recite purchase of annuity, but it does refer to structured settlement as a thing, as a tangible thing, and then defines that in paragraph three.

[00:16:09] Speaker 01:
And the other agreement and the other cases where

[00:16:13] Speaker 01:
liability was not found for the government, there was a recitation of a purchase of annuity.

[00:16:20] Speaker 01:
This is not the case here.

[00:16:22] Speaker 03:
There is not, but there is reference to structured settlement, which we would submit as a thing because why reference structured settlement at all, right?

[00:16:30] Speaker 01:
Well, structured settlement means it is structured.

[00:16:34] Speaker 01:
A lump sum payment and then a certain amount per month per year, that is the structure.

[00:16:41] Speaker 03:
Yes, Your Honor, but in the context of the whole agreement, we have paragraph six that is a release of not just paragraph two, but paragraphs two, three, and four.

[00:16:53] Speaker 03:
It is a release upon delivery of the, the only way to read the release of paragraph three is that upon delivery of the structured settlement, in this case an annuity contract, those future payments are released.

[00:17:07] Speaker 02:
It seems to me unless there's a reference to purchasing an annuity,

[00:17:11] Speaker 02:
then the delivery of the structured settlement doesn't end until 2028.

[00:17:15] Speaker 03:
If that were the case, Your Honor, then... It's the last of the dollar payments, right?

[00:17:23] Speaker 02:
I guess it maybe even doesn't end.

[00:17:25] Speaker 02:
Well, no.

[00:17:25] Speaker 02:
I'm sorry, it could go on even longer.

[00:17:26] Speaker 02:
Right.

[00:17:28] Speaker 02:
Right.

[00:17:28] Speaker 02:
It doesn't end until all the money promised is delivered.

[00:17:31] Speaker 03:
But then if that were a continuing obligation of the United States, why would paragraph 6 presuppose that the land camps will release liability for paragraph 3?

[00:17:43] Speaker 02:
It just means that they can't claim any more relief from the United States for the tort than this promises.

[00:17:52] Speaker 03:
Well, that would be a release

[00:17:54] Speaker 03:
of the tort claims, but it releases paragraph three.

[00:17:59] Speaker 03:
It releases the paragraph in which the future payments are scheduled.

[00:18:02] Speaker 03:
And to the extent there is any ambiguity with respect to the meaning of structured settlement in this agreement, I would point, Your Honors, to the record at two instances.

[00:18:14] Speaker 03:
Appendix 179, Plaintiff of Palin's counsel below argued, and this is a quote from their brief,

[00:18:22] Speaker 03:
Defendant converted its periodic payment obligation into a sum certain by purchasing an annuity from ELNY, further into the sentence, and brought the periodic payment provisions of the settlement agreement to fruition with the expenditure of approved funds and within the limits of the authority extended by the acting assistant attorney general to the extent this matter was before the trial court below.

[00:18:47] Speaker 03:
That standard for summary judgment as here is whether or not there's any genuine dispute of material fact with respect to the settlement agreement and the party's intent to the extent this court or the court below looks beyond those four corners.

[00:19:00] Speaker 01:
Do you line yourself up with any of the prior cases?

[00:19:05] Speaker 03:
Yes, your honor.

[00:19:06] Speaker 03:
So all of the cases that have come up to this court have been similar, but none have been identical.

[00:19:11] Speaker 03:
There are similarities between them.

[00:19:12] Speaker 03:
As your honors have noted, the prior agreements refer to the purchase of an annuity.

[00:19:16] Speaker 03:
This one just refers to a structured settlement.

[00:19:19] Speaker 03:
But other aspects of those settlement agreements are similar to the settlement agreement in this case.

[00:19:24] Speaker 03:
All of the settlement agreements are structured in the same way with an opening paragraph about what the government will pay in the second paragraph.

[00:19:31] Speaker 01:
And the others refer to purchasing an annuity.

[00:19:35] Speaker 01:
I'm sorry.

[00:19:35] Speaker 01:
The others refer to purchasing and annuity, not in Shaw.

[00:19:42] Speaker 03:
Yes.

[00:19:43] Speaker 03:
Yes, they do.

[00:19:44] Speaker 01:
You would say this is a Nutt case?

[00:19:48] Speaker 03:
I'm saying it's similar in other respects, right?

[00:19:50] Speaker 03:
They all provided a future payment stream that shall be paid.

[00:19:54] Speaker 03:
No, all of the provisions in Nutt, Shaw, or Hendrickson are not all equally present in Landcamp.

[00:19:59] Speaker 03:
That is correct.

[00:20:00] Speaker 01:
How do you distinguish the Massey case?

[00:20:02] Speaker 03:
So Massey is distinguishable on multiple grounds, as it was from Shaw, Knott, and Hendrickson that have come up to this court in the past.

[00:20:11] Speaker 03:
Massey was a settlement of also a claim arising from the bankruptcy of ELNY.

[00:20:18] Speaker 03:
But the underlying settlement was a Military Claims Act settlement, not a Federal Tort Claims Act settlement.

[00:20:24] Speaker 02:
But why would that make it?

[00:20:26] Speaker 03:
Well, it matters on a couple of bases.

[00:20:30] Speaker 03:
First off, take the plain language.

[00:20:31] Speaker 03:
It doesn't matter for plain language.

[00:20:32] Speaker 03:
For plain language, Massey is distinguishable because the Massey Court, in finding liability, had honed in on the fact that the Massey Settlement Agreement included the phrase that the future payments shall be made, quote, on behalf of the United States.

[00:20:46] Speaker 03:
That phrase in the Massey Settlement Agreement, the Massey Court found, Your Honor found, that it was dispositive of a continuing obligation, a delegation of responsibility, but not

[00:20:59] Speaker 03:
not a release or transfer of responsibility.

[00:21:02] Speaker 03:
That phrase, on behalf of the United States, is not present in Shaw, not Hendrickson, or in Land Camp.

[00:21:09] Speaker 03:
The fact that the Military Claims Act settlement in Massey was a Military Claims Act settlement is relevant for other reasons.

[00:21:18] Speaker 03:
There was no evidence or argument in that context about authority.

[00:21:24] Speaker 03:
We don't know what the military claims

[00:21:27] Speaker 03:
Secretary's authority was with respect to continuing liability.

[00:21:31] Speaker 03:
We do know in all of the rest of these FTCA cases what the bounds of authority were by regulation and what they actually were for the AUSA to have entered settlement.

[00:21:43] Speaker 03:
So authority was not taken up or considered in the Massey case.

[00:21:46] Speaker 03:
That's one critically distinguishing factor.

[00:21:48] Speaker 02:
There was some discussion with Mr. Lister about your position on

[00:21:54] Speaker 02:
contract interpretation versus contract validity or something else with respect to authority.

[00:22:02] Speaker 02:
Can you clarify that?

[00:22:03] Speaker 03:
Yes.

[00:22:05] Speaker 03:
Mr. Langkamp's attorney has argued that we have dropped, waived, or otherwise abandoned our argument that there was no authority to contract with respect to this settlement agreement.

[00:22:16] Speaker 03:
He misconstrues our position before the trial court in all of the briefing and in all of the briefing before this court.

[00:22:24] Speaker 03:
has been that authority is a central threshold issue for contract interpretation.

[00:22:29] Speaker 03:
That's what distinguishes a contract with the government from a contract with other parties.

[00:22:35] Speaker 03:
A contract with the government requires offer, acceptance, consideration, and evidence that the government representative to have settled under the settlement or to have ratified the settlement have actual authority to have done so.

[00:22:49] Speaker 03:
We would submit that in this case, that is a

[00:22:54] Speaker 03:
central element of contract formation, as the trial court also found.

[00:22:58] Speaker 02:
But why is Mr. Lister's view of the contract a view that would put it outside the boundaries of the AUSA's authority?

[00:23:09] Speaker 02:
Yes.

[00:23:09] Speaker 02:
Since what I said before, there's the $239,000 payment to the parents and then 160 plus change for the market value of the set of these promises.

[00:23:23] Speaker 02:
That adds to 400.

[00:23:25] Speaker 02:
That's all he's asking for.

[00:23:29] Speaker 03:
Well, that's not all he's asking for.

[00:23:31] Speaker 03:
That's not all that we understood he was asking for, right?

[00:23:35] Speaker 03:
We have argued.

[00:23:36] Speaker 02:
It surely must be assessed at the time of the entry, the present value.

[00:23:41] Speaker 02:
Obviously, the present value is going to be of a promise to do something over the course of 40 or 50 years is going to be a much smaller, with contingencies, in fact.

[00:23:51] Speaker 02:
a much smaller number than the sum total of payments that are made over the course of the period covered, particularly if the contingencies pan out in his favor.

[00:24:04] Speaker 03:
Understood, Your Honor, but authority is a question of fact that exists at the time of settlement.

[00:24:11] Speaker 02:
The best factual resolution that you have is A.A.G.

[00:24:17] Speaker 02:
Willard gave the AUSA $400,000 in authority.

[00:24:21] Speaker 02:
Yes.

[00:24:23] Speaker 02:
It doesn't seem to me that his interpretation of the contract exceeds that.

[00:24:28] Speaker 03:
Well, Your Honor, his interpretation of the agreement presupposes that the United States was not on the hook for just expending the $400,000 that it did, in fact, expend at settlement, but instead that it was a direct payer liability for the future settlement sums in paragraph 3 of the settlement agreement.

[00:24:49] Speaker 03:
To date, this is 30 years later, that's already well in excess of a million dollars.

[00:24:55] Speaker 03:
If Mr. Landcamp should live another couple decades, it will be another several million dollars.

[00:25:00] Speaker 03:
If this court were to accept Mr. Landcamp's proffered interpretation of the agreement, the AUSA to have entered the settlement

[00:25:08] Speaker 03:
or anyone to have ratified it back in 1984, would have had to have had actual authority to have entered into a settlement that could result in millions of dollars of additional liability.

[00:25:20] Speaker 03:
And that's simply not, there's just no evidence of that at all.

[00:25:25] Speaker 03:
Mr. Lancamp on post-judgment reconsideration has tried to raise institutional individual ratification arguments.

[00:25:33] Speaker 03:
We submit that the lower court's denial of that motion for reconsideration, which Your Honor's review for abuse of discretion, was not an abuse of discretion.

[00:25:42] Speaker 03:
He didn't meet the thresholds for excusable neglect.

[00:25:45] Speaker 03:
But even if he did, he has not pointed to any evidence that anyone had any actual authority, actual constructive knowledge that this agreement was for millions of dollars of additional liability.

[00:26:00] Speaker 03:
or had actual authority to have entered or ratified that kind of agreement.

[00:26:07] Speaker 03:
If that is the interpretation that this court should adopt, or if on remand after fact finding on an ambiguity, the trial court should adopt, that would render this agreement void and unenforceable.

[00:26:19] Speaker 03:
The Supreme Court has been clear that when a court is faced with interpreting a settlement agreement, and there is one reasonable interpretation

[00:26:29] Speaker 03:
that reasonable interpretation is entitled to meaning.

[00:26:33] Speaker 03:
If there are more than one interpretation, and one interpretation should render the agreement legal and enforceable, and the other interpretation should render it illegal and unenforceable, well, then obviously, the court is to assume that the party is meant to enter a legally enforceable agreement.

[00:26:51] Speaker 03:
And the one interpretation that would render the agreement legal and enforceable is that which carries the day.

[00:26:56] Speaker 03:
And so we would submit.

[00:26:57] Speaker 02:
And does that principle, I'm not sure in the end it matters, but does that principle govern even when the question of legality is one that required information that certainly Langenkamp's didn't have at the time and maybe could not have gotten or maybe they could have gotten about what Willard authorized?

[00:27:18] Speaker 03:
Your honor, so

[00:27:19] Speaker 03:
So we don't actually know what the Landcamps knew or didn't know, because there is no evidence in the record at all to substantiate that this was their contemporaneous interpretation of the agreement.

[00:27:32] Speaker 03:
Notably in that regard, the only extrinsic evidence of contemporary intent is that set forth in a declaration of Mr. Landcamps' attorney from the early 1980s.

[00:27:46] Speaker 03:
And that's at Appendix 73.

[00:27:47] Speaker 03:
And in paragraph 8, he very carefully, we would submit, phrases a simple statement that the settlement and release do not refer to an annuity.

[00:27:59] Speaker 03:
He makes no assertions regarding his contemporaneous intent or his client's contemporaneous intent from 1982.

[00:28:07] Speaker 03:
He, as the attorney at the time, would have been in the perfect position to now declare under penalty of perjury that

[00:28:15] Speaker 03:
His client's intent and his intent was that the government remain liable as direct pay or for however long Mr. Landcamp should live, or that they didn't know that the value of the settlement was $400,000, or that they didn't know that the government was intending to purchase an annuity and satisfy its obligations.

[00:28:34] Speaker 03:
None of that is in Mr. Ford's declaration, and that's the only evidence in the record of contemporaneous intent.

[00:28:40] Speaker 03:
What Mr. Landcamp proffers now is an interpretation 30 years after the settlement agreement.

[00:28:46] Speaker 03:
to the extent this court should find that structured settlement, that missing word annuity, creates some kind of ambiguity with respect to what a structure is.

[00:28:55] Speaker 02:
But that's not the only word that's missing.

[00:28:57] Speaker 02:
The word purchase is missing.

[00:28:59] Speaker 03:
Yes, the word purchase is missing.

[00:29:02] Speaker 03:
But Your Honor, to the extent that creates some heartburn or pause for the court, the next step would be to look beyond those four corners

[00:29:14] Speaker 03:
to the rest of the record to extrinsic evidence to what the parties intended.

[00:29:20] Speaker 03:
We would submit that in this instance, the undisputed record evidence is at a minimum that the United States then intended that its purchase of annuities would discharge its liability.

[00:29:33] Speaker 03:
We have pages and pages of letters between the AUSA and the Torts Division of the Department of Justice and the AUSA and the General Accounting Office at the time.

[00:29:44] Speaker 03:
in which only $400,000 was appropriated for settlement.

[00:29:50] Speaker 03:
We have a letter written on behalf of then Assistant Attorney General.

[00:29:53] Speaker 02:
Does any of that evidence actually refer to, let's call it the black swan possibility that the annuity issuer will go belly up?

[00:30:05] Speaker 03:
There's nothing like that in the record.

[00:30:07] Speaker 02:
And if there's no reference to that,

[00:30:11] Speaker 02:
Is it really an unreasonable assumption to say that people were just counting on the fact that this insurance company was going to be around?

[00:30:20] Speaker 02:
And therefore, to say we can buy this on the market, we're done is, in fact, an assumption that we really are done without specifically addressing the possibility that, goodness, this particular insurance company is going to go under.

[00:30:37] Speaker 03:
I don't know what the party's assumed with regards to that.

[00:30:39] Speaker 02:
But there's no reference to any of that.

[00:30:41] Speaker 03:
Right.

[00:30:41] Speaker 03:
No, there's no reference.

[00:30:42] Speaker 03:
But there is, importantly, many references to the government's liability not exceeding $400,000.

[00:30:50] Speaker 03:
And I'll point you to Appendix 136, starting at 136.

[00:30:55] Speaker 01:
Very quickly, counsel, as you've well exceeded your time.

[00:31:01] Speaker 03:
Yes, Your Honor.

[00:31:01] Speaker 01:
Do you want to quickly point us?

[00:31:03] Speaker 03:
Oh, sure.

[00:31:04] Speaker 03:
So the letters of contemporaneous intent of the United States government are at appendix 136 through 143, and then again at 162.

[00:31:14] Speaker 03:
Specifically, 162, the acting Assistant Attorney General's letter to US Attorney for the Western District of Maryland says the sum of settlement shall, quote, not to exceed $400,000.

[00:31:24] Speaker 03:
Thank you, Counsel.

[00:31:28] Speaker 01:
Thank you.

[00:31:29] Speaker 01:
Mr. Blister has a little rebuttal time.

[00:31:36] Speaker 00:
On whether the government is arguing here that the contract is void for lack of authority, I cited their brief, page 45, footnote 9.

[00:31:48] Speaker 00:
What the government said there was, we have not alleged that the plain and unambiguous agreement is a nullity.

[00:31:56] Speaker 02:
Sorry, 45 footnote 9?

[00:31:58] Speaker 02:
My red brief 45 doesn't have a footnote 9.

[00:32:02] Speaker 00:
What am I missing?

[00:32:05] Speaker 00:
22119, document 25, page 56, government's brief.

[00:32:16] Speaker 00:
OK.

[00:32:17] Speaker 00:
Go ahead.

[00:32:17] Speaker 00:
OK.

[00:32:18] Speaker 00:
Yeah.

[00:32:18] Speaker 00:
So we have not alleged that the plain and unambiguous agreement is a nullity based on lack of authority.

[00:32:25] Speaker 00:
So I relaxed somewhat after seeing that one.

[00:32:28] Speaker 00:
We're here on contract interpretation.

[00:32:32] Speaker 00:
There was a mention of no one higher up in the government knowing what the terms of the settlement agreement are.

[00:32:38] Speaker 00:
Maybe I misheard, but that's what I heard.

[00:32:40] Speaker 00:
Appendix 162, where the Assistant Attorney General, the head of the Civil Division, said, send me the text of the agreement.

[00:32:47] Speaker 00:
He wanted the stipulation of dismissal to which the settlement agreement was a attachment, and he wanted the release.

[00:32:53] Speaker 00:
So he had all that.

[00:32:56] Speaker 00:
language with him.

[00:32:57] Speaker 00:
All the documents the government refers to are documents from the government's old file.

[00:33:03] Speaker 00:
They pulled them out of their own file.

[00:33:04] Speaker 00:
They do not go to mutual intent, which is the question and contract formation.

[00:33:08] Speaker 00:
Unless Your Honors have further questions, we ask that the Court reverse the summary judgment granted to the United States and will, as a matter of law, that the United States is liable.

[00:33:18] Speaker 01:
Thank you, Counsel.

[00:33:19] Speaker 01:
The case is submitted.