Petition for Writ of Certiorari — Simon A. Soto, Individually and on Behalf of All Others Similarly Situated, Petitioner v. United States

No. 24IN THE

Supreme Court of the United States

___________

SIMON A. SOTO,

v.

UNITED STATES,

___________

Petitioner,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Federal

Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

BARTON F. STICHMAN

ROCHELLE BOBROFF

RENEE BURBANK

NATIONAL VETERANS

LEGAL SERVICES

PROGRAM

1100 Wilson Blvd

Suite 900

Arlington, VA 22209

TACY F. FLINT*

J. SIMONE JONES

EMILY M. WEXLER

ANKUR SHINGAL

CAMILLE SANCHES

SIDLEY AUSTIN LLP

One South Dearborn

Chicago, IL 60603

(312) 853-7000

tflint@sidley.com

CHIKE B. CROSLIN

LAKEISHA F. MAYS

1501 K. Street, N.W.

Washington D.C., 20005

(202) 736-8000

Counsel for Petitioner

September 18, 2024

* Counsel of Record

i

QUESTION PRESENTED

This case determines whether thousands of medically retired combat veterans should receive all the

combat related special compensation (CRSC) that Congress specifically authorized for combat veterans. The

government has elected to calculate the period of retroactive compensation due using the procedure in the

Barring Act (31 U.S.C. § 3702) instead of the one in the

CRSC statute (10 U.S.C. § 1413a)—a maneuver that

allows the government to apply the Barring Act’s sixyear limitations period in order to pay the veterans

less. But the Barring Act is a default provision and

does not apply where “another law” provides a procedure for calculating the amount due—that is, for “settling” a demand for payment.

Although this Court’s precedent defines “settlement”

of demands for payment from the federal government

as “the administrative determination of the amount

due,” it has not decided the test for whether a statute

provides a settlement procedure that should apply in

place of the Barring Act. And agency practice more

broadly—which aligns with the test the District Court

articulated and is consistent with this Court’s definition of “settlement”—is irreconcilable with the novel

test that the Federal Circuit applied, although both

tests claim reliance on this Court’s definition of “settlement.”

The question presented is:

When a person makes a demand for money from the

federal government pursuant to federal statute, what

test should courts and agencies use to determine

whether that statute includes a settlement procedure

that displaces the default procedures and limitations

set forth in the Barring Act (31 U.S.C. § 3702)?

ii

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

Simon A. Soto is the Petitioner here and was the

Plaintiff-Appellee below.

The United States government is the Respondent

here and was the Defendant-Appellant below.

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

Simon A. Soto v. United States, No. 22-2011 (Fed.

Cir. order denying petition for rehearing en banc entered June 20, 2024)

Simon A. Soto v. United States, No. 22-2011 (Fed.

Cir. judgment entered February 12, 2024)

Simon A. Soto v. The United States of America, No.

1:17-cv-00051 (United States District Court for the

Southern District of Texas judgment entered December 16, 2021)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ...........................................

ii

STATEMENT OF RELATED PROCEEDINGS ...

ii

TABLE OF AUTHORITIES ................................

v

PETITION FOR A WRIT OF CERTIORARI ......

1

OPINIONS BELOW ............................................

1

JURISDICTION...................................................

1

CONSTITUTIONAL/STATUTORY

PROVISIONS INVOLVED ..........................................

1

STATEMENT OF THE CASE.............................

1

A. Statutory Background .............................

3

B. Factual Background.................................

4

C. The Proceedings Below ............................

6

REASONS FOR GRANTING THE PETITION ..

10

I. THE QUESTION PRESENTED IS VITALLY IMPORTANT BECAUSE THE

TEST FOR WHETHER A DEMAND FOR

PAYMENT MUST BE SETTLED UNDER

THE BARRING ACT OR ANOTHER STATUTE MERITS THIS COURT’S REVIEW....

10

A. The question is exceptionally important

because it determines the scope of a statute that provides remuneration for thousands of disabled combat veterans who

have made life-altering sacrifices for the

nation........................................................

10

(iii)

iv

B. The question is exceptionally important

because the Federal Circuit’s test alters

how and even whether the federal government settles its debts .........................

12

II. THE FEDERAL CIRCUIT’S DECISION IS

WRONG AND REQUIRES CORRECTION

15

III. THIS CASE IS AN IDEAL VEHICLE FOR

RESOLVING THE QUESTION PRESENTED, AND NO FURTHER PERCOLATION IS POSSIBLE .....................................

16

CONCLUSION.....................................................

18

v

TABLE OF AUTHORITIES

CASES

Page

Hobbs v. McLean, 117 U.S. 567 (1886) ........

15

Ill. Surety Co. v. U.S. ex rel. Peeler, 240 U.S.

214 (1916) .................................................. 8, 15

Lee v. DOJ, 99 M.S.P.R. 256 (M.S.P.B. July

15, 2005) ....................................................

13

STATUTES

5 U.S.C. § 5596 ...........................................

13

§ 7513 ...........................................

13

10 U.S.C. §§ 1201–1222 ...............................

5

§ 1413a ......................................... 2, 3

§ 1413a(a) ..................................... 3, 4

§ 1413a(b)(3)B ..............................

5

§ 4712 ...........................................

13

§ 7712 ...........................................

13

28 U.S.C. § 1254(1) .......................................

1

§ 1295(a) .......................................

17

§ 1346(a) .......................................

17

§ 1491 ...........................................

17

31 U.S.C. § 3702 ........................................... 1, 2

§ 3702(a) .......................................

4

§ 3702(a)(1)–(3) ............................

14

§ 3702(a)(4) ..................................

14

§ 3702(b)(1) ..................................

4

38 U.S.C. § 4324(c) .......................................

13

§ 7292 ...........................................

17

General Accounting Office Act of 1996, Pub.

L. No. 104-316, 110 Stat. 3826 (1996) ......

14

National Defense Authorization Act for

Fiscal Year 2004, Pub. L. No. 108-136, 117

Stat. 1392 (2003) .......................................

3

vi

TABLE OF AUTHORITIES—Continued

National Defense Authorization Act for

Fiscal Year 2008, Pub. L. No. 110-181, 122

Stat. 3 ........................................................

Page

3

LEGISLATIVE MATERIALS

Cong. Rsch. Serv., RL34751, Military Retirement: Background and Recent Developments (June 3, 2024) .............................

K. Kamarck & M. Schwartz, Cong. Rsch.

Serv., R40589, Concurrent Receipt of

Military Retired Pay and Veteran

Disability: Background and Issues for

Congress (June 22, 2023) ..........................

U.S. Gov’t Accountability Off., GAO-08978SP, Principles of Federal Appropriations Law (3d ed. 2008) ............................

10

11

4

OTHER AUTHORITIES

File No. S001855.2, 1999 OPM Dec. LEXIS

338 (Off. of Pers. Mgmt. June 16, 1999)...

13

In re Transfer Claims Settlement and Related Advance Decisions, 97-1 Comp. Gen.

Proc. Dec. P123 (Mar. 17, 1997) ...............

14

U.S. Dep’t of Def., Compensation Elements

and Related Manpower Cost Items: Their

Purpose and Legislative Backgrounds (7th

ed. Nov. 2011) ............................................ 11, 12

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of certiorari to review the decision of the United States Court

of Appeals for the Federal Circuit.

OPINIONS BELOW

The Federal Circuit’s panel opinion reversing and remanding the decision of the District Court for the

Southern District of Texas is reported at 92 F.4th

1094, and reproduced at Pet.App.1a. The final judgment of the District Court for the Southern District of

Texas is unreported, but it is available at 2021 WL

7286022 and reproduced at Pet.App.38a.

JURISDICTION

The Federal Circuit entered its judgment on February 12, 2024, Pet.App.1a. The Federal Circuit panel

denied Soto’s timely petition for rehearing en banc on

June 20, 2024, Pet.App.40a. This Court has jurisdiction to review the Federal Circuit’s judgment under 28

U.S.C. § 1254(1).

CONSTITUTIONAL/STATUTORY PROVISIONS

INVOLVED

The relevant statutory and regulatory provisions are

reproduced at Pet.App.42a-47a. The Barring Act, 31

U.S.C. § 3702, is reproduced at Pet.App.45a. The Combat-Related Special Compensation Act, 10 U.S.C.

§ 1413a is reproduced at Pet.App.42a.

STATEMENT OF THE CASE

In 2002, Congress passed a law to provide an incredibly deserving segment of the country’s military veterans—veterans both injured in combat or other

2

hazardous duty and who retired from the military because they served at least twenty years (longevity retirees)—with Combat-Related Special Compensation

(“CRSC”). 10 U.S.C. § 1413a. That law, which Congress amended in 2008 to include veterans whose disabilities prevented further service (medical retirees),

contains all the provisions needed for the relevant federal agency to “settle” a claim for CRSC; that is, to determine the amount due to a veteran who submits a

demand for payment. The Federal Circuit has ratified

the government’s choice to substitute a default statute

for that determination—the Barring Act (31 U.S.C. §

3702)—which applies only where another law does not

provide for settlement, and which, unlike the CRSC

statute, contains a six-year statute of limitations.

The Federal Circuit’s decision is wrong in light of

this Court’s precedent and has important and wideranging implications that require this Court’s intervention. This Court has defined settlement as “an administrative determination of the amount due” on a

demand for payment. Thus, in assessing whether another law displaces the Barring Act, this Court’s test

requires only a determination of whether that law provides a procedure for determining the amount due on

a demand for payment. The law need not specifically

use the word “settle” or equivalent language, and it

need not include a limitations provision—neither of

which determine whether the law contains the relevant procedure. In holding otherwise, the Federal Circuit leaves Petitioner—and thousands of other combat

veterans who rendered heroic service to our nation

that left them with long-term, life-altering disabilities—without the full measure of compensation the nation promised in return for their sacrifices. The Federal Circuit’s novel test, if left untouched, also raises

difficult questions about whether other statutes under

3

which agencies have been delegated the authority to

settle demands for payment in fact provide for that authority. This Court should grant the petition to address these exceptionally important matters.

A. Statutory Background

Congress enacted the CRSC program on December

2, 2002, to provide benefits to members of the uniformed services who have combat-related injuries. 10

U.S.C. § 1413a. In the years since its inception, CRSC

has been amended and expanded to provide benefits to

thousands of veterans. In 2003, the National Defense

Authorization Act (“NDAA”) authorized CRSC for certain military retirees with combat- or operations-related disabilities. Id. The 2003 Act provided CRSC to

retired service members with qualifying disabilities

rated at 60% or higher, and to those retirees with disabilities associated with the award of a Purple Heart

decoration. Id. As originally enacted, the substantive

entitlement to CRSC was payable only to longevity retirees (those who completed at least twenty years of

service). Pub. L. No. 108-136, 117 Stat. 1392.

Today’s iteration of CRSC was signed into law under

the NDAA adopted on January 28, 2008 (2008 NDAA).

Under it, CRSC eligibility was expanded to anyone

medically retired, including retirees with fewer than

twenty years of service, effective January 1, 2008. Pub.

L. No. 110-181, 122 Stat. 3.

The CRSC Statute provides that “[t]he Secretary

concerned shall pay . . . a monthly amount for the combat-related disability of the retiree determined under

subsection (b).” 10 U.S.C. § 1413a(a). The CRSC Statute goes on to establish how to determine the amount

of monthly payment due, the maximum amount payable, who is eligible, the status of the payments, who

can prescribe application procedures, and the source of

4

the payments. Id. By its own terms, the CRSC Statute

not only determines who is eligible, but also provides

the framework to administratively determine how

much CRSC is due to an eligible veteran and the procedure by which that determination should be made.

The Barring Act is an “independent administrative

claims handling procedure” See U.S. Gov’t Accountability Off., GAO-08-978SP, Principles of Federal Appropriations Law 14-25 n.54 (3d ed. 2008) (“GAO Red

Book”). The Barring Act provides for a six-year statute

of limitations. 31 U.S.C. § 3702(b)(1). Importantly,

however, the Barring Act makes clear that its limitations period does not apply where “another law” establishes how “claims” against the United States “shall be

settled.” Id. § 3702(a). In other words, if “another law”

includes its own settlement procedure, the Barring

Act—and its six-year limitations period—do not apply

to claims under that law.

B. Factual Background

The pertinent facts are not in dispute. Mr. Soto enlisted in the United States Marine Corps in August

2000. Pet.App.22a. During his first two tours in Operation Iraqi Freedom, he served in Mortuary Affairs

and was assigned to “search for, recover, and process

the remains” of war casualties.” Id. He began experiencing, inter alia, suicidal thoughts, vivid nightmares,

and difficulty concentrating as a result of his experiences in Mortuary Affairs, including one mission in

which he and other service members retrieved “over

300 pieces of five or seven soldiers” who had been

killed. Complaint ¶ 55, Soto v. United States, No. 1:17cv-51 (S.D. Tex. Mar. 2, 2017), ECF No. 1. He began

being treated for his afflictions in December 2005. Id.

¶ 57. His physicians at that time documented the correlation between his distressing combat experiences in

5

Iraq and his later diagnosis of post-traumatic stress

disorder (“PTSD”).

After serving in the Marine Corps, Mr. Soto was

medically retired from active duty on April 28, 2006.

Pet.App.22a. Due to the lasting effects of his service,

he was then placed on the Temporary Disability Retirement List (“TDRL”), which entitled him to military

retirement pay. Id. Subsequently, the Secretary of the

U.S. Navy (the “Secretary”) removed Mr. Soto from the

TDRL and gave him permanent disability retirement,

which continued his entitlement to military retirement pay. Id.

Later, Mr. Soto sought service-connected disability

benefits from the Department of Veterans Affairs (the

“VA”) based on his PTSD. Complaint ¶ 59. In June

2009, the VA issued a rating decision awarding him

disability rating of 50 percent for his PTSD (effective

April 26, 2006), followed by a rating of 30 percent (effective November 1, 2006), and then a rating of 100

percent (effective December 31, 2009). Id.

In June 2016, Mr. Soto submitted an application to

the Navy seeking CRSC due to his PTSD. Pet.App.22a.

In October 2016, the Navy found that his PTSD was a

combat-related disability and awarded him CRSC. Id.

The Navy assigned a CRSC effective date of July 2010,

Pet.App.4a, notwithstanding the fact that Mr. Soto

met all of the CRSC enrollment criteria on January 1,

2008—the effective date of the law that extended the

CRSC entitled to medical retirees such as Mr. Soto.

Complaint ¶ 61. See 10 U.S.C. §§ 1201—1222; id.

§ 1413a(b)(3)B). As a result of the Navy’s assignment

of Mr. Soto’s CRSC effective July 2010, the Secretary

awarded Mr. Soto only six years of retroactive CRSC

payments—carrying from July 2010 to June 2016—

even though he is entitled to approximately eight-andone-half years of retroactive CRSC payments—from

6

January 2008 until June 2016. Complaint ¶ 61. Documentation recording the Secretary’s decision provided:

CRSC is subject to the 6-year statute of limitations [United States Code (U.S.C. 31, Section

3702(b)]. In order to receive the full retroactive

CRSC entitlement, you must file your CRSC claim

within 6 years of any VA rating decision that

could potentially make you eligible for CRSC or

the date you became entitled to retired pay,

whichever is most recent. If you file your claim

more than 6 years after the initial eligibility, you

will be restricted to 6 years of any retroactive entitlement.

Id. ¶ 35. Defendant has used this six-year statute of

limitations policy to pay no more than six years of retroactive CRSC to thousands of other deserving United

States military combat veterans.

C. The Proceedings Below

On March 2, 2017, Mr. Soto filed a putative class action in the U.S. District Court for the Southern District

of Texas asserting a single claim pursuant to 10 U.S.C.

§ 1413a (the “CRSC Statute”) based on Defendant’s

“nationwide and unlawful policy to pay no more than

six years of retroactive CRSC” (the “Retroactive Payment Cap”). Complaint at 1. The putative nationwide

class consisted of:

former service members of the United States

Army, Navy, Marine Corps, Air Force, or Coast

Guard whose CRSC applications under 10 U.S.C.

§ 1413a were granted, but whose amount of CRSC

payment was limited by Defendant’s application

of the statute of limitations contained in 31 U.S.C.

§ 3702 and have a claim less than $10,000.

7

Pet.App.31a. After denying Defendant’s Motion for

Judgment on the Pleadings, see Pet.App.32a, the District Court certified the proposed class on February 11,

2019. Pet.App.31a. In response to discovery requests,

the government identified 9,108 former service members whose CRSC had been limited by its application

of the Barring Act. 1 Joint Statement of Stipulated

Facts ¶ 3, Soto v. United States, No. 1:17-cv-51 (S.D.

Tex. Aug. 13, 2021), ECF No. 87. The Claims Administrator mailed the potential class members notices

which advised them that they had until July 5, 2021

to opt out of the Class. At the conclusion of the notification process, 11 of the 9,108 service members opted

out of the Class.

After four years of litigation, the District Court

granted summary judgment to Mr. Soto on December

16, 2021. Pet.App.39a. In its order, the court held that

the CRSC Statute has its own settlement mechanism

“because it defines eligibility for CRSC, helps explain

the amount of benefits and instructs the Secretary of

Defense to prescribe procedures and criteria for individuals to apply for CRSC.” Pet.App.35a-36a. Based on

that conclusion, the District Court held that the CRSC

Statute is a “another law,” placing it outside the reach

of the Barring Act and—by extension—its six-year

statute of limitations. Pet.App.35a. The court entered

final judgment in favor of Mr. Soto and the Class, finding that Defendant is liable to the veterans for compensation that Defendant withheld when applying its

Retroactive Payment Cap. Pet.App.38a.

1 The number of class members described above is based on information provided by the government that was current as of

2021. The number of affected veterans has likely increased in the

three years since that information was collected.

8

Defendant appealed the District Court’s final judgment to the U.S. Court of Appeals for the Federal Circuit on October 12, 2022. Pet.App.5a.

The Federal Circuit reversed the District Court’s

grant of summary judgment to Mr. Soto and the Class

in a split decision. Pet.App.11a. A majority of the Federal Circuit panel held that that the Barring Act’s sixyear statute of limitations applies because the CRSC

Statute does not contain its own settlement mechanism. Id. The majority agreed with the District Court

that the CRSC Statute established eligibility for CRSC

payments, and did not contest that the statute “helps

explain the amount of benefits.” Pet.App.6a. But it

went on to hold that establishing eligibility was different from “confer[ring] settlement authority independent of the Barring Act”—and did not specifically analyze the statute’s provisions governing the amount of

benefits owed. Id. The majority explained that a statute “must explicitly grant an agency or entity the authority to settle claims” using “specific language,”

which the majority stated “will typically be done by use

of the term ‘settle.’” Pet.App.6a-7a (emphases added).

It also held that “[w]ithout specific language,” the

CRSC statute would need to “provide[] a ‘specific’ provision setting out the period of recovery.” Pet.App.7a

(cleaned up). Because the CRSC Statute did not meet

either requirement, the majority held that it did not

qualify as a “another law.” Id. (“As we have explained,

the CRSC statute does not meet either of these requirements.”). Id.

Notably, the majority did not square its disjunctive

test with this Court’s teaching that the term “settlement” is used to “describe administrative determination of the amount due.” Ill. Sur. Co. v. United States

ex rel. Peeler, 240 U.S. 214, 219 (1916). Nor is it otherwise clear how the majority’s newly created test is

9

derivable from that decision, which nowhere discusses

or suggests either requirement when defining the term

“settlement.”

Judge Reyna dissented. Pet.App.12a. He opined that

the “CRSC statute addresses the settlement of claims

against the government and displaces the Barring

Act’s six-year statute of limitations.” Id. After citing

Ill. Surety and other authority regarding the definitions of “settle” and “claim,” Judge Reyna concluded

that “‘[s]ettling a claim,’ therefore, means administratively determining the validity of the demand for

money against the government and the amount of

money due.” Pet.App.13a. He then undertook a comprehensive review the CRSC Statute, finding that it

defined eligibility; granted the “Secretary concerned”

the authority to determine an amount due to an eligible veteran; described how to determine the monthly

amount due to be paid; and identified the source of the

CRSC payments. Pet.App.15a. Following from that

analysis, he concluded that the CRSC Statute provides

a settlement mechanism and displaces the Barring

Act. Pet.App.12a. Pertinent here, Judge Reyna criticized the majority’s creation of “new requirements for

determining when a statute settles a government

claim,” including the majority’s undue focus on the

word “settle,” even in contexts where the use of that

word is not required, i.e., in situations involving “more

general, remedial, and administrative determination

of [the] eligibility for money from the government and

the amount due.” Pet.App.12a, 18a.

10

REASONS FOR GRANTING THE PETITION

I. THE QUESTION PRESENTED IS VITALLY

IMPORTANT BECAUSE THE TEST FOR

WHETHER A DEMAND FOR PAYMENT

MUST BE SETTLED UNDER THE BARRING

ACT OR ANOTHER STATUTE MERITS THIS

COURT’S REVIEW.

Whether thousands of combat veterans now and into

the future lose all or part of the special compensation

they earned through service to and sacrifice for our nation is an exceptionally important question that merits

this Court’s review. That is so for two independent reasons.

A. The question is exceptionally important

because it determines the scope of a statute that provides remuneration for thousands of disabled combat veterans who

have made life-altering sacrifices for the

nation.

1. The military retirement system accomplishes at

least two core goals: it ensures fairness by rewarding

the service and sacrifices of veterans, and it makes a

career in the Armed Forces more competitive with opportunities with private employers and the federal

Civil Service. Both goals support recruitment and retention efforts and thereby protect national security.

See Cong. Rsch. Serv., RL34751, Military Retirement:

Background and Recent Developments 1 (June 3, 2024)

(outlining fundamental purposes of the military retirement system). CRSC—and questions affecting its

scope and reliability—are particularly important to

these goals, for two interrelated reasons.

First, CRSC focuses specifically on exceptionally

worthy beneficiaries: Purple Heart recipients and others who were injured in combat or particularly

11

hazardous service. Example duties include those associated with confronting hostile forces, diving, parachuting, and using explosives or other dangerous materials. Example injuries include those sustained at

the hands of a hostile force, munitions explosions, inhalation of toxic gases, or those resulting from use of

military vehicles, ships, or aircraft. See K. Kamarck &

M. Schwartz, Cong. Rsch. Serv., R40589, Concurrent

Receipt of Military Retired Pay and Veteran Disability:

Background and Issues for Congress 6 (June 22, 2023).

As of 2021, the CRSC program provided economic support for over 95,000 veterans injured in these ways,

over half of whom were between 90 and 100 percent

disabled. See id. at 7 (reporting number of recipients

by disability rating). Nearly half of them—45,000—

were 100 percent disabled. See id. In other words,

CRSC beneficiaries are among those living veterans

who have risked the most and sacrificed the most—a

population highly deserving of support.

Second, CRSC is landmark legislation in the veterans community. It is the result of over a decade of advocacy among veterans, veterans’ advocacy organizations, and members of Congress, and is the first form

of “concurrent receipt”—simultaneous receipt of VA

disability and military retired pay—that Congress authorized since prohibiting the practice in 1892. See id.

at 1 & n.2. As originally conceived in the House and

Senate, the program had a much broader scope; CRSC

as it exists is a compromise forged in the shadow of a

veto threat, the linchpin of which is fairness to those

whose service and sacrifice was especially significant.

See U.S. Dep’t of Def., Compensation Elements and

Related Manpower Cost Items: Their Purpose and

Legislative Backgrounds 619 (7th ed. Nov. 2011) (describing legislative history and fundamental purpose

of CRSC). For these reasons, CRSC has symbolic

12

importance in veterans’ circles as a particularly crystallized example of the nation’s commitment to equity

in rewarding service and sacrifice.

2. That commitment and its contribution to national

security are at stake in this case. As the Department

of Defense has observed, “[f]ew things are more important for morale than that service members believe

they are being treated as fairly as possible, and, conversely, few things undermine morale more than a

sense of unfair treatment.” Id. at 3. This class action

exists because thousands of deserving veterans have

that sense of unfair treatment. The Question Presented will determine whether those veterans receive

the full CRSC benefits that they indisputably earned,

or whether an interpretation of the word “settlement”

that is inconsistent with this Court’s definition of that

term will provide an extrinsic limit on the CRSC program’s landmark commitment. The answer has implications for the legitimacy that the promises of a grateful nation will have among veterans and prospective

military members, and so for the country’s military

readiness. For that reason alone, this case is exceptionally important.

B. The question is exceptionally important

because the Federal Circuit’s test alters

how and even whether the federal government settles its debts.

The Federal Circuit held that a statute can only provide a settlement mechanism that displaces the Barring Act if it (1) uses “specific language” that will “typically” involve the term “settle” or (2) specifically sets

out a period of recovery. Pet.App.18a (Reyna, J., dissenting). But other statutes that agencies and courts

have long regarded as providing their own settlement

mechanism do not meet one or both of these requirements—meaning that the Federal Circuit’s test, if left

13

in place by this Court, would cause a sea change. See,

e.g., Lee v. DOJ, 99 M.S.P.R. 256, 265 (M.S.P.B. July

15, 2005) (noting that predecessor to Section 3702 did

not prevent MSPB from awarding back pay because 5

U.S.C. § 5596(b)(1) constituted “another law” that displaced the Barring Act, and reviewing caselaw); 5

U.S.C. § 5596 (authorizing the MSPB to determine eligibility for and award backpay, providing guidance for

calculation of amount due, but not using the word “settle” or similar language)2; File No. S001855.2, 1999

OPM Dec. LEXIS 338 (Off. of Pers. Mgmt. June 16,

1999) (concluding that Office of Personnel Management lacked jurisdiction under Section 3702(a) to settle claim relating to “lawfulness of a separation based

on the expiration of a temporary appointment” because the MSPB was “authorized by [5 U.S.C. §

7513(d)] to review” such matters); 5 U.S.C. § 7513 (authorizing appeal to the MSPB in subsection (d), but nowhere using the word “settle” or similar language).

The case of 10 U.S.C. § 7712 is particularly instructive. That statute, formerly codified at 10 U.S.C. §

4712, addresses claims for the proceeds of effects of

persons who pass away in locations under Army jurisdiction. A prior version of that statute included a subsection (g), which used the word “settlement” to vest

authority in the GAO to address claims. See 10 U.S.C.

The government suggested in its response to the Petition for Rehearing before the Federal Circuit that Petitioner’s discussion of

claims for back pay under 5 U.S.C. § 5596 referred to the Uniformed Services Employment and Reemployment Rights Act

(USERRA). Response at 12, Soto v. United States, No. 22-2011

(Fed. Cir. May 5, 2024). That is wrong. USERRA is codified at 38

U.S.C. § 4324(c), was not discussed in the Petition for Rehearing,

and is not discussed here. 5 U.S.C. § 5596 codifies the Back Pay

Act—a wholly separate statute that includes neither the word

“settle” nor any limitations period.

2

14

§ 4712 amended by General Accounting Office Act of

1996, Pub. L. No. 104-316, 110 Stat. 3826 (1996) (current version at 10 U.S.C. § 7712). Congress struck that

subsection with the intent to transfer that authority

from GAO to the Department of Defense (DoD). See

110 Stat. at 3842, §§ 201, 202(g) (noting that “[t]he

purpose of this title is to amend provisions of law to

reflect, update, and enact transfers and subsequent

delegations of functions . . . as in effect immediately

before this title takes effect,” and striking subsection

(g)); In re Transfer Claims Settlement and Related Advance Decisions, 97-1 Comp. Gen. Proc. Dec. P123, at

*9 (Mar. 17, 1997) (acknowledging that 110 Stat. 3826

transferred settlement authority for claims under 10

U.S.C. § 4712 to DoD).

The result of Congress’s amendment is a statute that

neither uses the word “settle” nor anything similar,

and which does not contain a specific limitations period. Before the Federal Circuit’s decision in Soto, that

did not matter. But under the majority’s novel test,

Congress’s transfer must be understood as removing

settlement authority from Section 7712 altogether,

leaving claims under it subject to Section 3702. Section

3702(a)’s language specifically addresses particular

kinds of claims in its subsections, see 31 U.S.C. §

3702(a)(1)–(3), and assigns any claims it does not specifically address to the Office of Management and

Budget. See id. § 3702(a)(4). And since claims for proceeds of personal effects are not specifically discussed

in Section 3702(a), they would presumably fall under

the authority of the Office of Management and Budget

pursuant to Section 3702(a)(4)—notwithstanding Congress’s plain intent to leave them in the hands of DoD.

In sum, the potentially expansive implications of the

Federal Circuit’s decision—one that would upend existing congressional delegations of claims and cause

15

courts and agencies alike to revisit the settlement authority of numerous statutes—further support the exceptional importance of this petition.

II. THE FEDERAL CIRCUIT’S DECISION IS

WRONG AND REQUIRES CORRECTION.

It is indisputable that this Court’s definition of settlement in the context of public transactions and accounts—the “administrative determination of the

amount due” on a claim, 3 240 U.S. at 219—must form

the basis of any test to determine whether a law provides its own settlement mechanism. Nevertheless,

both prongs of the Federal Circuit’s test—that a statute must either (1) use “specific language” that will

“typically” involve the term “settle” or (2) specifically

set out a period of recovery, Pet.App.18a—ignore and

conflict with this Court’s long-established definition of

the term “settlement.” That is improper.

The first prong is so formalistic as to make the substance of this Court’s definition irrelevant. A statute

without the word “settle” or similar would fail that

prong of the test even if it included all the necessary

features to allow an agency to make an “administrative determination of the amount due.” See supra Section I.B. Conversely, a statute would pass that test

even if the statute provided no detail whatsoever on

“how eligible claims may be settled,” Pet.App.7a, so

long as the word “settle” or similar appeared in its text.

Either way, the substance of this Court’s definition has

no apparent role in the inquiry.

3 The word “claim” in this context also has a longstanding defini-

tion. See Hobbs v. McLean, 117 U.S. 567, 575 (1886) (“What is a

claim against the United States is well understood. It is a right to

demand money from the United States . . . which can be presented

by the claimant to some department or officer of the United States

for payment, or may be prosecuted in the court[s].”).

16

The second prong simply replaces this Court’s definition of settlement directly. The question of whether

a statute contains a limitations period has nothing to

do with whether it contains a procedure for administratively determining amounts due. While a limitations period could reduce the total due for payment

that results from executing such a procedure, it is

merely an input into the calculation—not the procedure itself. The Federal Circuit offers nothing to support that a limitations period must be included for statute to confer settlement authority, or that this prong

of its test is in any way derivable from this Court’s definition of settlement.

A test that does derive from this Court’s definition of

settlement would directly account for a statute’s substance, asking whether its provisions allow for an administrative determination of the amount due on a demand for payment. And where a statute establishes

how to determine the amount of a monthly payment

due, the maximum amount payable, who is eligible,

the status of the payments, who can prescribe application procedures, and the source of the relevant payments—as 10 U.S.C. § 1413a indisputably does—that

test is satisfied.

This Court should grant the petition to decide as

much, and to correct the Federal Circuit’s decision to

the contrary.

III. THIS CASE IS AN IDEAL VEHICLE FOR RESOLVING THE QUESTION PRESENTED,

AND NO FURTHER PERCOLATION IS POSSIBLE.

This case neatly presents a purely legal issue regarding statutory interpretation and fidelity to this Court’s

precedent. There are no facts in dispute. The proper

test for determining whether the Barring Act governs

17

settlement was the core focus of the Federal Circuit’s

decision, and that issue was specifically decided in a

precedential opinion that was outcome-determinative

for the parties. The case involves no procedural complications, and is representative of how the issue

would arise in the context of demands for payment under other statutes.

Moreover, no further percolation of this issue is possible. The Federal Circuit enjoys exclusive appellate

jurisdiction over cases involving demands for payment

from the federal government, see 28 U.S.C. §§ 1491,

1346(a), 1295(a)(2), (a)(3) (explaining that Tucker Act

and “Little” Tucker Act authorize demands for payment totaling less or more than $10,000 respectively,

and noting Federal Circuit’s exclusive appellate jurisdiction in either case), as well as over veterans’ matters, see 38 U.S.C. § 7292. The split panel decision, and

the decision not to review en banc, are the final word

on whether deserving veterans receive the benefits

that they are rightfully due—unless this Court intervenes.

18

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

BARTON F. STICHMAN

ROCHELLE BOBROFF

RENEE BURBANK

NATIONAL VETERANS

LEGAL SERVICES

PROGRAM

1100 Wilson Blvd

Suite 900

Arlington, VA 22209

TACY F. FLINT*

J. SIMONE JONES

EMILY M. WEXLER

ANKUR SHINGAL

CAMILLE SANCHES

SIDLEY AUSTIN LLP

One South Dearborn

Chicago, IL 60603

(312) 853-7000

tflint@sidley.com

CHIKE B. CROSLIN

LAKEISHA F. MAYS

1501 K. STREET, N.W.

Washington D.C., 20005

(202) 736-8000

Counsel for Petitioner

September 18, 2024

* Counsel of Record