166 F.3d 1184 (Fed. Cir. 1999), 98-5051, Massie v. United States

Docket Nº:98-5051.
Citation:166 F.3d 1184
Party Name:Jill K. MASSIE, as mother and next friend of Autumn Massie, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
Case Date:January 29, 1999
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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166 F.3d 1184 (Fed. Cir. 1999)

Jill K. MASSIE, as mother and next friend of Autumn Massie,



UNITED STATES, Defendant-Appellee.

No. 98-5051.

United States Court of Appeals, Federal Circuit

January 29, 1999

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[Copyrighted Material Omitted]

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R. Gordon Pate, Pate, Lloyd, Fuston & Cochrun, LLP, Birmingham, Alabama, argued for plaintiffs-appellants.

Mark L. Josephs, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, argued for defendant-appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Anthony H. Anikeeff, Assistant Director.

Before MAYER, Chief Judge, MICHEL, and LOURIE, Circuit Judges.

MAYER, Chief Judge.

Jill K. Massie, as mother and next friend of Autumn Massie, appeals the judgment of the United States Court of Federal Claims, 40 Fed.Cl. 151, which granted the government's motion for summary judgment that it did not breach an agreement to pay a claim arising under the Military Claims Act, 10 U.S.C. §§ 2731-2738 (1994). We reverse and remand for entry of judgment in favor of Massie.


Autumn Massie suffered injuries during her birth at a naval hospital in 1983. The Massies filed a claim with the Department of the Navy pursuant to section 2733 of the Military Claims Act ("MCA"), alleging that Autumn's injuries were caused by medical malpractice. In 1986, the government agreed to pay the claim and entered into an agreement ("the Agreement"), [*] in which the Massies accepted monetary awards in "full satisfaction and final settlement of any and all claims, liens, rights, or subrogated interests" they had against the government for personal injuries alleged to have resulted from medical malpractice during Autumn's birth. These awards included cash payments to the family, a medical care trust fund, and the purchase of an annuity.

The Agreement states that the annuity "will result in distributions on behalf of the United States" in a certain manner. First, monthly payments in the amount of $2,500 "shall be paid to Autumn Massie or the guardian(s) of her life estate" until the twentieth year of the funding annuity, after which the monthly payments "shall be" $3,500 for the remainder of her life. The Agreement states that these monthly payments "are guaranteed for fifteen (15) years," and that if Autumn were to die before the fifteenth anniversary of the funding annuity, the monthly payments would be made to her estate. Second, the Agreement provides that lump sum payments of $100,000, $200,000, and $200,000 "shall be paid to Autumn Massie or the

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guardian(s) of her life estate" on the twenty-second, twenty-seventh, and thirty-second anniversaries of the funding annuity, respectively. These "deferred lump-sum payments ... are guaranteed" and if Autumn dies before receiving them, they "shall be paid to her estate." On the tenth and twentieth anniversaries of the funding annuity, a lump-sum payment of $100,000 "shall be paid into the Reversionary Medical Care Trust." Finally, the Agreement requires the government to purchase the annuity from an "insurance company rated A+ by A.M. Best" and does not place any restrictions on the parties' rights to enforce its terms.

Through JMW Settlements, Inc., the government purchased an annuity that satisfied the disbursement requirements from Executive Life Insurance Company, which had an A+ rating at the time of purchase, but subsequently went into conservatorship in 1991. In 1993, the insurance company's final rehabilitation plan was approved and the Massies were given the option to participate, which they did. The rehabilitation plan reduced the payments from the annuity significantly; Autumn now receives about 52% of the original amount and the medical care trust fund receives 59% of the original amount.

Massie brought suit in the Court of Federal Claims alleging that the government breached the Agreement because the annuity no longer disburses payments as the Agreement requires. She argued that the Agreement obligates the government to guarantee the annuity payments. The government filed a motion to dismiss, arguing that the court lacks jurisdiction over the claim because the MCA controls and the Agreement is not a contract to which the Tucker Act, 28 U.S.C. § 1491 (1994), applies. The court denied the motion, explaining that the Tucker Act applies to agreements formed after the allowance of an MCA claim.

In response to the parties' cross motions for summary judgment pertaining to the interpretation of the Agreement, however, the trial court held that the government did not agree to guarantee the annuity payments. The court found that the government discharged its obligations the moment it funded the annuity. The court also reasoned that the requirement that the government purchase the annuity from an "insurance company rated A+ by A.M. Best," which is the second highest possible rating, would be superfluous if it interpreted the Agreement as the Massies urged because "[i]f the government were obligated ... to guarantee the monthly annuity payments, ... the annuity could have been purchased from an insurance company offering a cheaper rate." Massie appeals.


We review the trial court's action on the motion to dismiss and the motions for summary judgment de novo because they involve no disputed issues of fact and concern the construction of the MCA, the Tucker Act, and the Agreement. See Barseback Kraft AB v. United States, 121 F.3d 1475, 1479 (Fed.Cir.1997) (reviewing the grant of summary judgment and questions of contract interpretation de novo ); James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1541 (Fed.Cir.1996) ("Jurisdiction is a question of law which we review de novo."); Gump v. United States, 86 F.3d 1126, 1127 (Fed.Cir.1996) ("We review the summary judgment of the Court of Federal Claims, as well as its interpretation and application of the governing law, de novo.").


We first address whether the court had jurisdiction over Massie's claim. In reviewing the decision to deny a motion to dismiss for lack of jurisdiction, we accept as true the complaint's undisputed factual allegations. See Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). "If these facts reveal any possible basis on which the non-movant might prevail," we must uphold the court's denial. W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988).

The Tucker Act grants the Court of Federal Claims jurisdiction over actions "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,

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or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491. An agreement to pay an MCA claim presumptively satisfies the Tucker Act because "any agreement can be a contract within the meaning of the Tucker Act, provided that it meets the requirements for a contract with the Government, specifically: mutual intent to contract including an offer and acceptance, consideration, and a Government representative who had actual authority to bind the Government." Trauma Serv. Group v. United States, 104 F.3d 1321, 1326 (Fed.Cir.1997). Nevertheless, a contract will not fall within the purview of the Tucker Act if Congress has placed jurisdiction over it elsewhere. See Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1367 (Fed.Cir.1998) ("There are, of...

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