Opinion

Nutt v. United States

121 Fed. Cl. 579
2015 U.S. Claims LEXIS 698
2015 WL 3525191

Court: United States Court of Federal Claims
Filed: Jun 4, 2015
Status: Published
Author: Braden
On the bench: Susan G. Braden
Cited by: 2 cases
Authority: More cited than 51.1%

The opinion

In the United States Court of Federal Claims

No. 14-282 C

Filed: June 4, 2015

****************************************

CYNTHIA G. NUTT et al., *

* Breach of Contract;

Plaintiffs, * Federal Tort Claims Act,

* 28 U.S.C. § 2671 et seq.;

v. * Military Claims Act,

* 10 U.S.C. § 2731 et seq.;

THE UNITED STATES, * Summary Judgment,

* RCFC 56.

Defendant. *

****************************************

Andrew J. Maloney, III, Kriendler & Kriendler, LLP, New York, N.Y., Counsel for Plaintiffs.

Ryan M. Majerus, United States Department of Justice, Civil Division, Washington, D.C.,

Counsel for the Government.

MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge.

I. RELEVANT FACTUAL BACKGROUND.1

On September 27, 1983, James Nutt, Sr. was killed when his vehicle was struck by a

United States Army truck driven by a drunk Army employee. Am. Compl. ¶ 1. James Nutt, Sr.

was survived by his wife and son, Cynthia Nutt and James Nutt, Jr. Am. Compl. ¶ 3.

On February 23, 1984, Plaintiffs filed a Form 95 Notice Of Claim, “pursuant to the

Federal Tort Claims Act, 28 U.S.C. § 2671.” Am. Compl. ¶ 2; see also Pl. Ex. A.

The relevant facts discussed herein were derived from: the Exhibits attached to

Plaintiffs’ April 11, 2014 Complaint (“Pl. Exs. A–E”); Plaintiffs’ April 30, 2014 Amended

Complaint (“Am. Compl.”); Plaintiffs’ November 13, 2014 Motion For Partial Summary

Judgment On Liability (“Pl. Mot.”); and the Government’s December 9, 2014 Cross-Motion For

Partial Summary Judgment (“Gov’t Mot.”) and the Appendix attached thereto (“Gov’t App’x 1–

58”).

On June 28, 1985, Plaintiffs and the Government entered into a settlement agreement

(“Agreement”) that stated, in relevant part:

As soon as practicable after approval of this settlement, the United States agrees

to purchase annuities which will pay the following amounts:

[$60,000 per year] to Cynthia G. Nutt, her estate or designated beneficiary for as

long as [she] shall live or for thirty (30) years, whichever is later.

On each of the following anniversaries of the purchase of the annuity, the

following specified lump sum payments shall be paid to Cynthia G. Nutt, her

estate or designated beneficiary:

Anniversary Amount

Fifth $100,000.00

Tenth $125,000.00

Fifteenth $150,000.00

Twentieth $175,000.00

Twenty-fifth $200,000.00

Thirtieth $225,000.00

On each of the following anniversaries of the purchase of the annuity, the

following specified lump sum payments shall be paid to James N. Nutt, Jr., his

guardian, his estate or designated beneficiary.

Anniversary Amount

Thirteenth $25,000.00

Fourteenth $25,000.00

Fifteenth $25,000.00

Sixteenth $25,000.00

Seventeenth $40,000.00

Eighteenth $40,000.00

Nineteenth $40,000.00

Twentieth $100,000.00

Twenty-fifth $150,000.00

Thirtieth $150,000.00

Thirty-fifth $200,000.00

Fortieth $200,000.00

Forty-fifth $200,000.00

Fiftieth $1,000,000.00

Fifty-fifth $1,000,000.00

***

The payments by the United States set forth above shall operate as full and

complete discharge of all payments to be made to and of all claims which might

be asserted on behalf of [Plaintiffs], their heirs and personal representatives, and

any other persons whomsoever may assert a claim, provided, however, that if the

insurance company hereinaf[t]er referred to defaults in the performance of its

obligations under the annuity agreement with the United States, [Plaintiffs], their

heirs or personal representatives as third party beneficiary shall have standing to

sue the said insurance company for breach of contract. In such event, the United

States shall assist [Plaintiffs], their heirs or personal representatives, in the

prosecution of said suit to the extent permitted by applicable laws and regulations.

The United States represents to [Plaintiffs] that the insurance company it selects

for the purchase of the annuities will be one which is generally regarded as very

sound in the insurance industry and to be among the class or group of insurance

companies which are rated Excellent or better by Best’s Guide to Life Insurance

Companies, 1982 Edition, published by A. M. Best Company, Oldwick, New

Jersey 07830.

[Plaintiffs] agree by this Settlement Agreement to reimburse and/or indemnify

and hold harmless the United States, its agents, servants and employees from any

and all causes of action, claims, liens, rights or subrogated interests of whatever

nature arising from the incident noted above.

Pl. Ex. B at 1–3.

On July 2, 1985, the Probate Court of Miller County, Arkansas approved the Agreement.

Pl. Ex. C.

On July 12 1985, the Government purchased a structured annuity from Executive Life

Insurance Company of New York (“ELNY”) through a broker, JMW Settlements, Inc. Am.

Compl. ¶ 5; see also Gov’t App’x at 45.

On April 23, 1991, ELNY went into receivership. Am. Compl. ¶ 6.

On December 7, 2011, the New York State Liquidation Bureau sent Plaintiffs a letter

explaining the liquidation of ELNY receivership assets and stating, “[d]ue to the liquidation, at

this time it is anticipated that the amount of your benefit payments will ultimately be reduced.”

Pl. Ex. D at 1. Under ELNY’s liquidation and restructuring, Plaintiffs would receive an

estimated 45% of their expected benefits. Pl. Ex. E. But see Am. Compl. ¶ 6 (“Consequently[,]

Mrs. Nutt would receive only an estimated 45% of her remaining annuity[,] and her son James

Jr. would receive only 41% of his remaining annuity.”). Plaintiffs received full payments until

August 8, 2013. Am. Compl. ¶ 6.

In 2011, 2012, and 2013, “Plaintiffs contacted the U.S. Army tort claims personnel and

structured annuity division . . . to demand they cover any shortfalls. Neither the Army nor

Justice Department provided a meaningful response.” Am. Compl. ¶ 6.

On August 8, 2013, “[P]laintiff’s scheduled payments were cut to approximately 45%[.]”

Am. Compl. ¶ 6. “Mrs. Nutt has not received 59% of the monthly payments owed to her since

August 8, 2013[.]” Am. Compl. ¶ 7. “Plaintiffs have been advised that Ms. Nutt will not receive

the Thirtieth lump sum payment of $225,000 due to her on July 12, 2015.” Am. Compl. ¶ 8.

“Plaintiffs have further been advised that James N. Nutt, Jr. will not receive his [future lump sum

payments].” Am. Compl. ¶ 9.

II. PROCEDURAL HISTORY.

On April 11, 2014, Cynthia Nutt and James Nutt, Jr. (“Plaintiffs”) filed a Complaint in

the United States Court of Federal Claims (“Compl.”). On April 30, 2014, Plaintiffs filed an

Amended Complaint (“Am. Compl.”).

On August 8, 2014, the Government filed an Answer.

On November 13, 2014, Plaintiffs filed a Motion For Partial Summary Judgment On

Liability (“Pl. Mot.”). On December 9, 2014, the Government filed a Response & Cross-Motion

(“Gov’t Mot.”). On January 15, 2015, Plaintiffs filed a Reply & Response (“Pl. Reply”). On

February 12, 2015, the Government filed a Reply (“Gov’t Reply”).

On April 7, 2015, Plaintiff filed a Notice advising the court of an April 1, 2015 opinion

by another judge on the United States Court of Federal Claims in a similar case, Stathis v. United

States, No. 14-61, 2015 WL 1537542 (Fed. Cl. Apr. 1, 2015).

III. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28

U.S.C. § 1491, “to render judgment upon any claim against the United States founded either

upon the Constitution, or any Act of Congress or any regulation of an executive department, or

upon any express or implied contract with the United States, or for liquidated or unliquidated

damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is “a

jurisdictional statute; it does not create any substantive right enforceable against the United

States for money damages . . . . [T]he Act merely confers jurisdiction upon [the United States

Court of Federal Claims] whenever the substantive right exists.” United States v. Testan, 424

U.S. 392, 398 (1976).

To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an

independent contractual relationship, Constitutional provision, federal statute, and/or executive

agency regulation that provides a substantive right to money damages. See Todd v. United

States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (“[J]urisdiction under the Tucker Act requires the

litigant to identify a substantive right for money damages against the United States separate from

the Tucker Act[.]”); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en

banc) (“The Tucker Act . . . does not create a substantive cause of action; . . . a plaintiff must

identify a separate source of substantive law that creates the right to money damages. . . . [T]hat

source must be ‘money-mandating.’”). Specifically, a plaintiff must demonstrate that the source

of substantive law upon which he relies “can fairly be interpreted as mandating compensation by

the Federal Government[.]” Testan, 424 U.S. at 400. And, the plaintiff bears the burden of

establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force

Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) (“[O]nce the [trial] court’s subject matter

jurisdiction [is] put in question . . . . [the plaintiff] bears the burden of establishing subject matter

jurisdiction by a preponderance of the evidence.”).

“[W]hen viewed simply as a contract, a breach of a settlement agreement involving

damages of more than $10,000 is within the Tucker Act jurisdiction of the Court of Federal

Claims.” VanDesande v. United States, 673 F.3d 1342, 1346 (Fed. Cir. 2012). Here, Plaintiffs

allege violation of the Agreement involving damages over $10,000. See Am. Compl. ¶ 17.

Thus, the court has jurisdiction to adjudicate Plaintiffs’ claims.

B. Standing.

The United States Supreme Court has held that “the question of standing is whether the

litigant is entitled to have the court decide the merits of the dispute or of particular issues.”

Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing must be determined “as of the

commencement of suit.” Rothe Dev. Corp. v. Dep’t of Def., 413 F.3d 1327, 1334 (Fed. Cir.

2005). “The party invoking federal jurisdiction bears the burden of establishing [the three]

elements [of standing].” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Specifically,

“a plaintiff must show [that] it has suffered an ‘injury in fact’ that is . . . concrete and

particularized and . . . actual or imminent, not conjectural or hypothetical; . . . the injury is fairly

traceable to the challenged action of the defendant; and . . . it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth,

Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 180–81 (2000) (citations omitted).

The April 30, 2014 Amended Complaint alleges that Plaintiffs have suffered an “injury in

fact” that is concrete and particularized, actual, and fairly traceable to the Government’s failure

“to pay [P]laintiffs’ scheduled annuity payments” and refusal “to pay future periodic and lump

sum payments pursuant to the terms of the . . . Agreement.” Am. Compl. ¶ 16. Accordingly,

Plaintiffs have established standing to seek an adjudication of the claims alleged in the April 30,

2014 Amended Complaint.

C. Standard Of Review For Summary Judgment.

On a motion for summary judgment, the moving party must establish that there is no

genuine issue of material fact and that the moving party is entitled to judgment as a matter of

law. See Amergen Energy Co. ex rel. Exelon Generation Co. v. United States, 779 F.3d 1368,

1372 (Fed. Cir. 2015) (quoting Rule 56(c) of the Rules of the United States Court of Federal

Claims (“RCFC”)) (“Summary judgment is appropriate when, drawing all justifiable inferences

in the nonmovant’s favor, ‘there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.’”). Only genuine disputes of material fact that might

affect the outcome of the suit preclude entry of summary judgment. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986) (“As to materiality, the substantive law will identify which

facts are material. Only disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment. Factual disputes that are

irrelevant or unnecessary will not be counted.”). The “existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for summary

judgment.” Id. at 247–48 (emphasis in original). “[C]ourts are required to view the facts and

draw reasonable inferences ‘in the light most favorable to the party opposing the [summary

judgment] motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (quoting United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962)).

D. Plaintiffs’ Argument.

Plaintiffs argue that “[t]he sole issue on summary judgment is whether the Government

breached its contract with Plaintiffs by failing to make the future payments it promised to

Plaintiffs in exchange for settlement of their claims[.]” Pl. Mot. at 4. “[T]he Government was

not absolved from the terms of the . . . Agreement when it purchased the ENLY annuity.” Pl.

Mot. at 5. The “Agreement states that the future payments ‘shall be paid’ thereby rendering the

future payments mandatory[.]” Pl. Mot. at 5.

This case is analogous to Massie v. United States, 166 F.3d 1184 (Fed. Cir. 1999) and

Hendrickson v. United States, No. 83-CV-621, 2014 WL 2112575 (W.D.N.Y. May 20, 2014). In

Massie, the United States Court of Appeals for the Federal Circuit held:

The language specifying that the annuity “will result in distributions” and that the

disbursements “shall be paid” is unambiguously mandatory and says

unequivocally that the [plaintiffs] must receive the payments. . . . Because the

payments are mandatory, the [G]overnment must be responsible for their

payment; no one else is a party to the Agreement. Although the [G]overnment

may delegate its duties under the Agreement to another entity, such as [ELNY],

this delegation does not absolve it of its obligations.

Massie, 166 F.3d at 1190. This case mirrors Massie, because both cases involve the Military

Claims Act (“MCA”). Pl. Resp. at 3.

Similarly in Hendrickson, the United States District Court for the Western District of

New York determined that:

The Government agreed to settle this case by paying an initial lump sum, and

making future payments. It chose to fund those payments with the purchase of an

annuity. That ELNY, the provider of the annuity, can no longer make the total

payments owed by the defendant to the plaintiffs is not a burden to be borne by

the plaintiffs. It is the Government’s promise, and it is the Government’s

responsibility to meet that promise.

Hendrickson, 2014 WL 2112575, at *6.

Plaintiffs contend that “both [Massie and Hendrickson] dealt with tort settlements . . .

wherein the Government voluntarily agreed to make monthly payments along with larger

periodic payments as part of the individual settlements.” Pl. Mot. at 6. “To save money, the

Government purchased annuities from ELNY. However, once ELNY was no longer able to

make the promised payments[,] the courts held it was the Government’s responsibility to meet its

original obligation.” Pl. Mot. at 6.2

E. The Government’s Argument.

The Government responds that there are five reasons the Agreement only required the

Government to purchase the annuity, not to guarantee ELNY’s future payments.

First, “Plaintiffs’ interpretation of the [Agreement] cannot be correct because the . . .

Department of Justice official with authority at the time to settle this case . . . authorized a

structured settlement ‘not to exceed $1,601,978.00[.]’” Gov’t Mot. at 9; see also Gov’t App’x at

5 (June 25, 1985 Memorandum). If the Army’s representative had attempted to settle the case

for more than $1,601,978.00, the Agreement would have been unenforceable. See White v. Dep’t

of Interior, 639 F. Supp. 82, 88 (M.D. Pa. 1986) (holding that a settlement agreement was

unenforceable when it had not been authorized by a United States official with requisite

authority). Thus, adopting Plaintiffs’ interpretation renders the Agreement unenforceable. Gov’t

Mot. at 10.

Second, “[t]he [Federal Tort Claims Act (“FTCA”)] is a limited waiver of the

Government’s sovereign immunity” and only allows federal courts to award “money damages.”

Gov’t Mot. at 11 (citing 28 U.S.C. § 1346(b)(1)3). “Money damages” must be in “lump sum”

Plaintiffs also distinguish Linebarger v. United States, 927 F. Supp. 1280 (N.D. Cal.

1996). Pl. Mot. at 7. In Linebarger, “the Government did not retain ownership of the

[plaintiff’s] annuity after its purchase”; thus, the Government was not obligated to guarantee

future payments. Pl. Mot. at 7. But, in this case, the Government did retain ownership of the

annuity; thus, it is obligated to guarantee future payments. Pl. Mot. at 7; see also Hendrickson,

2014 WL 2112575, at *7 (“Linebarger, however, is significantly different from [Hendrickson] in

that . . . the Settlement Agreement specifically provided that the United States retained

ownership of the annuity[.]”). The plaintiffs in Linebarger “were free to negotiate the terms of

the agreement including the choice of an annuity company,” but Plaintiffs in this case “were

forced to use ELNY.” Pl. Mot. at 8. Finally, Plaintiffs contend that Linebarger

“misapprehended the law completely on the Government’s ability to enter into an agreement

with bargained for future payments,” even though “the Government routinely enters into

structured settlements.” Pl. Mot. at 8.

Section 1346(b)(1) provides:

Subject to the provisions of chapter 171 of this title, the district courts . . . shall

have exclusive jurisdiction of civil actions on claims against the United States, for

money damages, accruing on and after January 1, 1945, for injury or loss of

property, or personal injury or death caused by the negligent or wrongful act or

omission of any employee of the Government while acting within the scope of his

form. Gov’t Mot. at 11 (citing Frankel v. Heym, 466 F.2d 1226, 1228–29 (3d Cir. 1972) (“[A]

district court should not make other than lump-sum money judgments unless and until Congress

shall authorize a different type of award.”)). “As a result, no court has jurisdiction to order the

United States to pay future damages by way of periodic payments or to order the United States to

purchase annuities to pay future periodic payments absent specific statutory authority.” Gov’t

Mot. at 11. The FTCA requires settlements to “be final and conclusive and be paid only in a

matter similar to judgments in like causes.” Gov’t Mot. at 12 (citing 28 U.S.C. § 26724).

Executive agencies are bound by congressional oversight of appropriated funds, including FTCA

settlements; therefore, agencies cannot agree to unfixed or unascertained settlements. See 28

U.S.C. § 2672; see also B-162924, 1967 WL 2339, at *1 (Comp. Gen. Dec. 22, 1967) (“We find

no reason to object to any manner of compromise settlement . . . in a fixed reasonable amount.”).

“Thus, because of the restrictions placed on the [Government] in FTCA actions, it does not and

cannot act as the guarantor for future, periodic annuity payments under the terms of the

[Agreement].” Gov’t Mot. at 16 (citing Hercules Inc. v. United States, 516 U.S. 417, 426–27

(1996) (holding that the contracting officer did not and would not have agreed to open-ended

indemnification)).

Third, “the terms of the . . . [A]greement . . . are consistent with the limitations on the

United States’ authority regarding FTCA settlements.” Gov’t Mot. at 17. The Agreement

“states that the ‘United States of America agrees to purchase annuities which will pay’ future

sums[.]” Gov’t Mot. at 17 (quoting Gov’t App’x at 1 (Agreement)). Plaintiffs focus on the

office or employment, under circumstances where the United States, if a private

person, would be liable to the claimant in accordance with the law of the place

where the act or omission occurred.

28 U.S.C. § 1346(b)(1).

Section 2672, in relevant part, provides:

Subject to the provisions of this title relating to civil actions on tort claims against

the United States, any such award, compromise, settlement, or determination shall

be final and conclusive on all officers of the Government, except when procured

by means of fraud.

Any award, compromise, or settlement in an amount of $2,500 or less made

pursuant to this section shall be paid by the head of the Federal agency concerned

out of appropriations available to that agency. Payment of any award,

compromise, or settlement in an amount in excess of $2,500 made pursuant to this

section or made by the Attorney General in any amount pursuant to section 2677

of this title shall be paid in a manner similar to judgments and compromises in

like causes and appropriations or funds available for the payment of such

judgments and compromises are hereby made available for the payment of

awards, compromises, or settlements under this chapter.

28 U.S.C. § 2672.

language of the Agreement stating that “[t]he payments by the United States set forth above shall

operate as a full and complete discharge[.]” Gov’t App’x at 3. But, “[t]he only reasonable

interpretation of this provision is that the ‘payments’ that will ‘operate as full and complete

discharge’ are those payments made to purchase the annuity, which upon purchase, satisfied the

Government’s obligation to all payments that the [A]greement expressly provided would ‘be

satisfied[.]’” Gov’t Mot. at 18 (emphasis in original). The Agreement provided that “[t]he

United States will furnish to [Plaintiffs] . . . evidence of the purchase by the United States of

annuities in an amount sufficient to satisfy those obligations of the United States under th[e] . . .

Agreement which are to be satisfied by the purchase of the annuities.” Gov’t App’x at 3. The

Agreement does not provide that the Government would guarantee future payments. Gov’t Mot.

at 18. Plaintiffs understood this to be the case, because correspondence between the parties’

counsel in 1985 and 1986 “indicates that the [P]laintiffs’ counsel intended to ‘reinsure’ the

annuity contracts”—an unnecessary step if the Government guaranteed the payments. Gov’t

Mot. at 18; see also Gov’t App’x at 55–56 (September 6, 1985 and February 3, 1986

correspondence from Plaintiffs’ counsel to JMW Settlements, Inc.).

The Agreement also provides that, if the insurance company fails to make annuity

payments, Plaintiffs have standing to sue the insurance company “for breach of contract,” and

that “the [Government] shall assist [Plaintiffs], their heirs or personal representatives, in the

prosecution of said suit[.]” Gov’t App’x at 3. “This provision would be nonsensical if, in fact,

the Government itself served as guarantor of all payments.” Gov’t Mot. at 19. Moreover, the

Agreement requires the Government to select an insurance company that is “generally regarded

as very sound in the insurance industry” and “rated Excellent or better[.]” Gov’t App’x at 3. “If

the [Government were] responsible for ensuring the amount of the periodic distributions, there

would have been no need for the agreement to specify that the company providing the annuity be

of a particular quality.” Gov’t Mot. at 20.

Fourth, “Plaintiffs take the words ‘shall’ and ‘will’ out of context in the [Agreement].”

Gov’t Mot. at 21. In their proper context, these words “simply describe the annuity to be

purchased[.]” Gov’t Mot. at 21. The same is true of the phrase “shall be paid”: “the United

States is not even mentioned in the paragraphs in which these words appear.” Gov’t Mot. at 22

(citing Gov’t App’x at 1–3). Adopting Plaintiffs’ interpretation “would fundamentally alter the

benefit of the bargain . . . and add a term requiring the Government to insure or guarantee the

solvency of the annuity issuer, a term to which the [Government] plainly did not (and could not)

agree.” Gov’t Mot. at 22–23; see also Linebarger, 927 F. Supp. 1280, 1282 (N.D. Cal. 1996)

(“Under the FTCA the United States could not have entered an agreement in which it was

required to make periodic payments over twenty years. . . . Plaintiff essentially argues that,

under the terms of the settlement agreement, the [G]overnment was required to see that each

payment was made and if not pay that amount itself. . . . Such an agreement is plainly prohibited

under the FTCA.”).5

The Government also argues that, “[c]ontrary to [P]laintiffs’ assertions, the district court

in Linebarger did not rely on [the] lack of [the Government’s] ownership [of the annuity] as the

reason why the Government was not obligated to guarantee future payments. Rather, the court

correctly held that the Government cannot guarantee to make future, periodic payments under the

FTCA.” Gov’t Mot. at 24 n.6.

Fifth, “Massie is distinguishable because that case involved a claim filed pursuant to the

[MCA]. Thus, Massie did not address the limitations on the [Government] in FTCA

settlements[.]” Gov’t Mot. at 26. “The distinction between the MCA and the FTCA is crucial,

because the MCA, 10 U.S.C. §§ 2731–2739, is not a waiver of the Government’s sovereign

immunity.” Gov’t Mot. at 27 (citing Tobar v. United States, 639 F.3d 1191, 1196 (9th Cir. 2011)

(“The [MCA] does not mention, and therefore does not waive, sovereign immunity.”)). “There

is also no ‘claim’ for a plaintiff to release in MCA cases because a claimant has no right to

litigate a MCA claim—the Secretary’s decision to pay is discretionary and not subject to

review.” Gov’t Mot. at 27. Massie does not control, because it adjudicated an MCA claim, not

an FTCA claim. Gov’t Mot. at 27–28.

F. The Court’s Resolution.

As an initial matter, the court must determine whether Massie controls this case. Massie

construed an MCA claim. See Massie, 166 F.3d at 1186 (“The [plaintiffs] filed a claim with the

Department of the Navy pursuant to section 2733 of the Military Claims Act[.]”). Here,

Plaintiffs assert that they filed an MCA claim. Pl. Reply at 3 (“[T]his is an MCA claim rather

than an FTCA case[.]”). But, this contradicts both Plaintiffs’ March 30, 2014 Complaint and

February 23, 1984 Form 95 Notice Of Claim. See Am. Compl. ¶ 2 (“A Form 95 Notice [O]f

Claim was filed pursuant to the Federal Torts Claims Act, 28 U.S.C. § 2671 et seq. against the

Department of the . . . Army of the United States on behalf of [P]laintiffs on February 23,

1984.”); see also Pl. Ex. A (Form 95 Notice Of Claim). Plaintiffs provide no evidence that their

claim falls under the MCA. Am. Compl. ¶ 2; Pl. Ex. A (Form 95 Notice Of Claim); Pl. Ex. C, at

1 (July 2, 1985 Probate Order approving “Wrongful Death Compromise Settlement with the

United States of America under the Federal Tort Claims Act”). Moreover, only the Secretary of

a department can settle an MCA claim; the Deputy Attorney General settles FTCA claims.

Compare 10 U.S.C. § 2733(a) (granting the Secretary and Judge Advocate General authority to

settle MCA claims), with 28 U.S.C. § 2672 (“The head of each Federal agency or his designee, in

accordance with regulations prescribed by the Attorney General, may . . . settle any claim [under

the FTCA.]”). In this case, the Deputy Attorney General settled Plaintiffs’ claim. See Gov’t

App’x at 5 (Memorandum to File). The record clearly indicates that Plaintiffs filed an FTCA—

not an MCA—claim. As such, Massie does not control.

As a matter of law, “[c]ontract terms are given their plain and ordinary meaning, unless

the provisions are ambiguous.” Precision Pine & Timber, Inc. v. United States, 596 F.3d 817,

824 (Fed. Cir. 2010). “A contract provision is only ambiguous if susceptible to more than one

reasonable meaning.” Barron Bancshares, Inc. v. United States, 366 F.3d 1360, 1375–76 (Fed.

Cir. 2004). “When the contractual language is unambiguous on its face, [the court’s] inquiry

ends and the plain language of the Agreement controls.” Coast Fed. Bank, FSB v. United States,

323 F.3d 1035, 1040–41 (Fed. Cir. 2003). “When interpreting the contract, the document must

be considered as a whole and interpreted so as to harmonize and give reasonable meaning to all

of its parts.” NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). “An

interpretation that gives meaning to all parts of the contract is to be preferred over one that leaves

a portion of the contract useless, inexplicable, void, or superfluous.” Id.

Thus, the court must determine whether the terms of the June 28, 1985 Agreement are

unambiguous, such that the court’s “inquiry ends at the plain language of the Agreement,” or

whether extrinsic evidence should be considered. See Coast Fed. Bank, 323 F.3d at 1040–41.

And, to make that determination, the court reads the contract “as a whole” with the intent to

“give . . . meaning to all parts of the contract.” NVT Techs., 370 F.3d at 1159. Here, the

Agreement provides that “the United States of America agrees to purchase annuities which will

pay [certain periodic amounts.]” Pl. Ex. B at 1. The fairest reading of this Agreement provision

is that the Government did not agree to pay future sums; it agreed to purchase annuities. The

annuities, in turn, “will pay” the future sums. Pl. Ex. B at 1. And, after listing the future sums to

be paid, the Agreement provides that “[t]he payments by the United States set forth above shall

operate as a full and complete discharge[.]” Pl. Ex. B at 3.

Plaintiffs argue that “payments by the United States” refers to the future sums. Pl. Mot.

at 5–6. The court must construe “payments by the United States” in context of the whole

Agreement—and certainly in context of the whole paragraph. See NVT Techs., 370 F.3d at 1159.

The provisions in the Agreement immediately following the “payments by the United States”

favor the Government. They read: