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

Supreme Court briefSep 18, 2024

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APPENDIX

APPENDIX TABLE OF CONTENTS

APPENDIX A: Opinion, Soto v. United States, 92

F.4th 1094 (Fed. Cir. 2024) ...............................

Page

1a

APPENDIX B: Judgment, Soto v. United States,

No. 22-2011 (Fed. Cir. Feb. 12, 2024) ............... 20a

APPENDIX C: Order Granting Motion for Class

Certification, Soto v. United States, No. 1:17cv-00051, 2019 WL 2069601 (S.D. Tex. Feb. 11,

2019) ................................................................... 21a

APPENDIX D: Order Granting Plaintiff’s

Motion for Summary Judgment, Soto v. United

States, No. 1:17-cv-00051, 2021 WL 7286022

(S.D. Tex. Dec. 16, 2021) ................................... 32a

APPENDIX E: Final Judgment, Soto v. United

States, No. 1:17-cv-00051 (S.D. Tex. Dec. 16,

2021) ................................................................... 38a

APPENDIX F: Order Denying Rehearing, Soto v.

United States, No. 22-2011 (Fed. Cir. June 20,

2024) ................................................................... 40a

APPENDIX G: Federal Statutes .......................... 42a

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APPENDIX A

UNITED STATES COURT OF APPEALS,

FEDERAL CIRCUIT.

————

2022-2011

————

Simon A. SOTO, on Behalf of Himself and All Other

Individuals Similarly Situated,

Plaintiff-Appellee

v.

UNITED STATES,

Defendant-Appellant

————

Decided: February 12, 2024

————

Opinion

Dissenting opinion filed by Circuit Judge Reyna.

Opinion for the court filed by Circuit Judge Hughes.

The government appeals a decision from the United

States District Court for the Southern District of Texas

holding that the six-year statute of limitations in the

Barring Act, 31 U.S.C. § 3702, does not apply to claims

for unpaid combat-related special compensation governed by 10 U.S.C. § 1413a. Because we conclude that

the district court erred by holding that the Barring Act

did not apply to the settlement of those claims, we

reverse the district court’s grant of summary judgment and remand for further proceedings consistent

with this opinion.

2a

I

A

Under 38 U.S.C. §§ 5304–05, retired veterans

generally may not receive both their retired pay and

VA disability compensation and must waive a portion

of their military retired pay to receive disability pay.

However, retired veterans who establish that their

disability is attributable to a combat-related event

may receive additional compensation (combat-related

special compensation, or CRSC) up to the amount of

waived retired pay. 10 U.S.C. § 1413a (the CRSC statute).

Before January 1, 2008, CRSC was only available to

veterans who had completed at least twenty years of

military service. See National Defense Authorization

Act for Fiscal Year 2008, Pub. L. No. 110-181, div. A, tit.

VI, § 641, 122 Stat. 3, 156. But effective January 1,

2008, Congress expanded eligibility to retirees with

fewer than twenty years of military service if they

were medically retired under 10 U.S.C. §§ 1201–22. 10

U.S.C. § 1413a(b)(3)(B).

The CRSC statute directs the Secretary of Defense

to “prescribe procedures and criteria under which a

disabled uniformed services retiree may apply” for

CRSC. Id. § 1413a(d). As part of these procedures, a

service member must elect to receive CRSC, and the

appropriate military department will determine whether

the service member is eligible (which, generally, requires

being in retired status and having a combat-related

disability rated at least 10%). Department of Defense

Financial Management Regulation, DoD 7000.14-R,

vol. 7B, ch. 63, at 63-7. CRSC can be granted retroactively, and agency regulations state that retired

service members “may submit an application for CRSC

at any time” and CRSC will be paid “for any month

3a

after May 2003 for which all conditions of eligibility

were met, subject to any legal limitations.” Id. at 63-6

(emphasis added).

Section 3702 of title 31, known as the Barring Act,

provides a mechanism for settling 1 military-related

claims against the government that are not covered

in other statutory provisions. In particular, the

Secretary of Defense has authority to settle all “claims

involving uniformed service members’ pay, allowances,

travel, transportation, payments for unused accrued

leave, retired pay, and survivor benefits.” 31 U.S.C.

§ 3702(a)(1)(A) (emphasis added). As relevant here, the

Barring Act contains a six-year statute of limitations.

31 U.S.C. § 3702(b)(1) (providing that all claims falling

within the scope of the statute “must be received by

the official responsible ... within 6 years after the claim

accrues”). The Secretary of Defense can waive the

statute of limitations for claims not in excess of $25,000 as

long as a waiver is requested. 31 U.S.C. § 3702(e)(1),

(3); see also Procedures for Settling Personnel and

General Claims and Processing Advanced Decision

Requests, DoD Instruction 1340.21, enclosure 6, ¶ 6.4

(outlining procedure permitting a claimant to apply for

a waiver of the statutory time limit where a claim was

untimely).

“Settling” a claim “means to administratively determine the

validity of that claim.” See Adams v. Hinchman, 154 F.3d 420,

422 (D.C. Cir. 1998) (quoting U.S. General Accounting Office,

Principles of Federal Appropriations Law 11-6 (1982) and citing

Illinois Sur. Co. v. United States ex rel. Peeler, 240 U.S. 214, 219,

36 S.Ct. 321, 60 L.Ed. 609 (1916) (“The word ‘settlement,’ in

connection with public transactions and accounts, has been used

from the beginning to describe administrative determination of

the amount due.”)).

1

4a

B

With that background in mind, we turn to the facts

of this case. Simon A. Soto is a retired member of the

United States Marine Corps with a combat-related

disability rated at least 10%. He was medically retired

from active duty in April 2006 with less than twenty

years of military service. Although he was eligible for

CRSC as of June 2009 (when he received his disability

rating), he did not apply until June 2016. At that time,

the Navy informed Mr. Soto that his claim was limited

under the Barring Act, and as a result, he received six

years of retroactive CRSC payments, dating back to

roughly July 2010. Mr. Soto did not request a waiver of

the statutory time limit under § 3702(e)(1).

Mr. Soto filed a class action lawsuit 2 in the Southern

District of Texas under 28 U.S.C. § 1346(a)(2) (the

Little Tucker Act) on behalf of himself and others

similarly situated, arguing that the Barring Act does

not apply to settling claims for CRSC. Mr. Soto claimed

that, based on Congress’s expansion of CRSC to

veterans with less than twenty years of military

service, he was entitled to compensation dating back

to the effective date of the amended statute, or

January 1, 2008, rather than July 2010, six years prior

to his application for CRSC.

The government moved for judgment on the

pleadings, which the district court denied. In denying

the motion, the district court held that the Barring Act

did not apply to the settlement of CRSC claims

The other plaintiffs in this class are similarly situated: they

have all received six years of retroactive CRSC payments but

were eligible for CRSC for more than six years before they

applied. None of the class members applied for a waiver of the

statutory time limit.

2

5a

because the CRSC statute was a “specific” statute that

superseded the terms of the Barring Act. See Morton v.

Mancari, 417 U.S. 535, 550–51, 94 S.Ct. 2474, 41

L.Ed.2d 290 (1974) (“Where there is no clear intention

otherwise, a specific statute will not be controlled or

nullified by a general one, regardless of the priority of

enactment.”); Hernandez v. Dep’t of Air Force, 498 F.3d

1328, 1332 (Fed. Cir. 2007) (holding that the Barring

Act’s “general background provisions restricting recovery

against the government” were “inapplicable” because

of the more specific period of recovery in the Uniformed

Services Employment and Reemployment Rights Act).

The district court also applied the pro-veteran canon

of statutory interpretation to hold that the Barring Act

did not apply. See Brown v. Gardner, 513 U.S. 115, 117–

18, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) (“[I]nterpretive

doubt is to be resolved in the veteran’s favor.”). The

district court later granted summary judgment in

favor of the class for the same reasons.

The government appealed, asking us to consider

whether the six-year statute of limitations in the

Barring Act applies to settling claims for CRSC. We

have jurisdiction under 28 U.S.C. § 1295(a)(2).

II

Because there are no disputed issues of fact and the

only question on appeal is the proper interpretations

of the Barring Act and the CRSC statute, we review

the district court’s grant of summary judgment de

novo. Massie v. United States, 166 F.3d 1184, 1187

(Fed. Cir. 1999).

III

The government argues that the district court erred

in holding that the Barring Act does not apply to the

settlement of CRSC claims because the CRSC statute

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does not contain its own settlement mechanism that

displaces the Barring Act. We agree.

The district court held that the CRSC statute

“provides 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 [prospective

claimants] to apply for CRSC.” J.A. 5. But establishing

eligibility for CRSC payments does not confer

settlement authority independent of the Barring Act.

See U.S. General Accounting Office (GAO), GAO-08978SP, Principles of Federal Appropriations Law 14-25

n.54 (2008) (GAO Red Book) (“While section 3702

provides an independent administrative claims handling

procedure, it does not provide an independent basis for

paying claims.”). To confer settlement authority and

displace the Barring Act, a statute must explicitly

grant an agency or entity the authority to settle

claims. See, e.g., Honorable Slade Gorton, B-215494,

1984 WL 46509, at *2 (Comp. Gen. Sept. 4, 1984)

(explaining that “[t]he head of the Federal agency or

department concerned is specifically authorized by

statute to settle administratively claims brought

under” the Military Claims Act or Federal Tort Claims

Act (emphasis added)); GAO Red Book 14-20–14-22

(describing claims settlement and listing specific

statutes that allow agencies to administratively settle

claims).

For example, settlement claims brought pursuant to

the FTCA are not subject to the Barring Act because

the FTCA explicitly provides that the heads of federal

agencies have the right to “consider, ascertain, adjust,

determine, compromise, and settle any claim for money

damages” falling within the scope of the statute. 28

U.S.C. § 2672 (emphasis added). The FTCA further

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allows agencies to use various means of adjudication,

such as arbitration or alternative dispute resolution,

to settle claims. Id. § 2672 (“Each Federal agency may

use arbitration, or other alternative means of dispute

resolution under the provisions of subchapter IV of

chapter 5 of title 5, to settle any tort claim against the

United States ....”). Similarly, the Military Claims Act

provides the Secretary of Defense the authority to

“settle, and pay in an amount not more than $100,000,

a claim against the United States” that falls within the

purview of that statute. 10 U.S.C. § 2733(a) (emphasis

added).

By contrast, the CRSC statute conveys no such

authority—it only establishes who may be eligible for

CRSC payments, not how claimants can have those

claims settled. See id. § 1413a (providing the Secretary

authority to, among other things, “pay to each eligible

combat-related disabled uniformed services retiree

who elects benefits” but not mentioning settlement

(emphasis added)); see also Illinois Sur. Co., 240 U.S. at

218–19, 36 S.Ct. 321 (“The pivotal words are not ‘final

payment,’ but ‘final settlement,’ and in view of the

significance of the latter term in administrative

practice, it is hardly likely that it would have been

used had it been intended to denote payment.”). A

statute setting out who is eligible for payment is not

the same as a statute establishing how eligible claims

may be settled. Without specific language authorizing

the Secretary of Defense to settle a claim—which will

typically be done by use of the term “settle”—the

CRSC statute cannot displace the Barring Act, unless

another statute provides a “specific” provision setting

out the period of recovery. See Hernandez, 498 F.3d at

1331–32. As we have explained, the CRSC statute does

not meet either of these requirements.

8a

The dissent focuses on our allegedly narrow understanding of a “claim” and “settlement.” Dissenting Op.

1102, 1103–04. The dissent would read the CRSC

statute to permit the Secretary to settle claims,

thereby displacing the Barring Act’s six-year statute of

limitations, because it defines which veterans are

eligible for CRSC (10 U.S.C. § 1413a(c)), provides that

the Secretary “shall pay” CRSC to eligible veterans (id.

§ 1413a(a)) in a certain amount (id. § 1413a(b)), and

designates the source of payments (id. § 1413a(h)).

Dissenting Op. 1102–03. But these provisions

establish a veteran’s substantive right to CRSC and

authorize its payment. They do not authorize the

Secretary to “administratively determine the validity”

of a claim. Adams, 154 F.3d at 422 (citation omitted).

The CRSC statute lacks the sort of clear language

authorizing the Secretary to settle CRSC claims

sufficient for an exception to the Barring Act. 3

Mr. Soto argues that the DoD’s Program Guidance

suffices to displace the Barring Act’s statute of

limitations because it explains that a veteran “may

submit an application for CRSC” and will be paid “for

any month after May 2003, for which all conditions of

eligibility were met.” Appellee’s Br. 24 (quoting the

Department of Defense’s 2004 Program Guidance).

But this program guidance cannot grant settlement

authority where, by statute, there is none. The

program guidance Mr. Soto cites does nothing more

than authorize the agency to grant retroactive

The dissent would also rely on the pro-veteran canon to

resolve what it views as interpretive doubt about the meaning of

the CRSC statute. Dissenting Op. 1103 n.4 (citing King v. St.

Vincent’s Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.Ed.2d 578

(1991)). We need not reach the pro-veteran canon because there

is no interpretative doubt to resolve.

3

9a

payments, which is already authorized in the CRSC

statute.

Mr. Soto also contends that the Barring Act should

not apply to the CRSC statute because 31 U.S.C.

§ 3702(a)(1) only applies to claims involving “retired

pay,” and paragraph (g) of the CRSC statute specifies

that “[p]ayments under this section are not retired

pay.” Appellee’s Br. 13. This is unpersuasive. The

Barring Act extends to claims involving retired pay—

there can be no dispute that the CRSC statute

“involves” retired pay, because the amount of

compensation awarded under the CRSC statute is

dependent upon the amount of retired pay a service

member may receive. 31 U.S.C. § 3702(a)(1)(A) (“The

Secretary of Defense shall settle ... claims involving

uniformed service members’ pay, allowances, travel,

transportation, payments for unused accrued leave,

retired pay, and survivor benefits.” (emphasis added));

10 U.S.C. § 1413a(b)(3)(B) (providing “the amount of

the payment under paragraph (1) for any month may

not, when combined with the amount of retired pay

payable to the retiree ... cause the total of such

combined payment to exceed the amount equal to the

retired pay percentage” (emphasis added)). And even if

the CRSC statute somehow did not “involve” retired

pay, paragraph (a)(1) of the Barring Act only sets forth

which agency is responsible for adjudicating claims:

subparagraph (a)(4) confers authority to the Office of

Management and Budget to settle all other claims not

covered by paragraphs (a)(1)–(3), meaning that, if Mr.

Soto’s argument is accepted, it would only change

which agency settles CRSC claims, not the applicable

statute of limitations. 31 U.S.C. § 3702(a).

Finally, Mr. Soto argues that the statute of

limitations in the Barring Act should be tolled because

10a

we have been continuously at war since 1990 and 31

U.S.C. § 3702(b)(2) provides that a claim brought by a

“member of the armed forces [which] accrues during

war or within 5 years before war begins” is tolled until

“5 years after peace is established.” This argument

lacks merit. The phrase “member of the armed forces”

in the current Barring Act replaced the phrase “person

serving in the military or naval forces of the United

States” in the prior version of the Barring Act. Pub. L.

No. 97-258, § 3, 96 Stat. 877, 970 (repealing the prior

version of the Barring Act, then codified at 31 U.S.C.

§ 71a, and recodifying the Act at 31 U.S.C. § 3702); see

also H.R. Rep. No. 97-651, at 131 (1982) (“In subsection

(b)(2), the words ‘member of the armed forces’ are

substituted for ‘person serving in the military or naval

forces of the United States’ for consistency with title

10.”). The now-operative enacted public law expressly

states that the recodification “may not be construed as

making a substantive change in the laws replaced.”

Pub. L. No. 97-258, § 4(a), 96 Stat. at 1067; see also id.

§ 1, 96 Stat. at 877 (“An Act [t]o revise, codify, and enact

without substantive change certain general and

permanent laws.”). Thus, the term “member of the

armed forces” in 31 U.S.C. § 3702(b)(2) still refers only

to service members who are on active duty during

times of war.

Indeed, the DoD has consistently interpreted that

language to apply only to service members who are on

active duty during times of war. See Charles V.

Waldron, 59 Comp. Gen. 463, 463 (1980) (“The

exception to the 6-year statute of limitations ... tolling

the running of the 6-year period for members of the

armed forces in wartime, is applicable only to members

on active duty.”); id. at 464 (“[I]f an individual serving

in the armed services had a claim which accrued

during war or his claim accrued and subsequently war

11a

broke out, such individual is granted additional time

following the establishment of peace to file a claim

because of the potential inability to file because of his

duties in wartime.” (emphasis added)). Plaintiffs offer

no persuasive reason why we should interpret the

Barring Act differently. If we were to accept Mr. Soto’s

argument here, that would mean that all claims for

any kind of military compensation, brought by any

service member, would be indefinitely tolled until the

Persian Gulf War is officially ended. We decline to

interpret the statute so broadly.

Accordingly, we hold that the Barring Act applies to

settlement claims regarding CRSC because the CRSC

statute does not explicitly provide its own settlement

mechanism and these claims are therefore subject to

the settlement mechanisms laid forth in the Barring

Act. And as relevant here, we hold that the six-year

statute of limitations contained in the Barring Act

applies to CRSC settlement claims.4

IV

We have considered the remainder of Mr. Soto’s

arguments and find them unpersuasive. Accordingly,

we reverse the district court’s grant of summary

judgment, and remand to the district court for further

proceedings consistent with this opinion.

REVERSED AND REMANDED

Costs

No costs.

12a

Reyna, Circuit Judge, dissenting.

Today, the majority holds that Mr. Soto and other

similarly-situated veterans injured as a result of

combat cannot recover more than six years of retroactive Combat-Related Special Compensation (CRSC).

I believe that the CRSC statute addresses the settlement of claims against the government and displaces

the Barring Act’s six-year statute of limitations. I

would affirm the lower court decision finding that the

Barring Act does not apply to CRSC claims.

I respectfully dissent.

By its own terms, the Barring Act and its six-year

statute of limitations can be superseded. The Barring

Act’s statute of limitations does not apply to limit the

available compensation if “another provision of law”

addresses how “claims of or against the United States

Government shall be settled.” 31 U.S.C. § 3702(a)(4);

see also id. § 3702(a); see, e.g., Hernandez v. Dep’t of Air

Force, 498 F.3d 1328, 1332 (Fed. Cir. 2007). As demonstrated below, the CRSC statute is another provision

of law that addresses how claims of or against the

United States government shall be settled.

In considering the limits on the Barring Act’s

applicability when settling a government claim, it is

important to address what it means to “settle” a

“claim” against the United States. As the district court

recognized, there is no dispute in this case regarding

what it means to “settle” such a claim. Soto v. United

States, No. 1:17-CV-00051, 2021 WL 7286022, at *2 &

n.2 (S.D. Tex. Dec. 16, 2021). “[T]o settle a claim means

to administratively determine the validity of that

claim.” Adams v. Hinchman, 154 F.3d 420, 422 (D.C.

Cir. 1998) (internal quotations omitted) (quoting U.S.

General Accounting Office (GAO), Principles of Federal

13a

Appropriations Law 11-6 (1982)); see also Illinois Sur.

Co. v. United States, 240 U.S. 214, 219, 36 S.Ct. 321, 60

L.Ed. 609 (1916) (defining “settlement” in the context

of public transactions).

The meaning of a “claim” itself has also been defined

in the federal appropriations context. In Hobbs v.

McLean, the Supreme Court describes a claim as “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 of claims.” 1 117 U.S.

567, 575, 6 S.Ct. 870, 29 L.Ed. 940 (1886); GAO,

Principles of Federal Appropriations Law 14-10 (2008).

“Settling a claim,” therefore, means administratively determining the validity of the demand for

money against the government and the amount of

money due. This definition contrasts with a use of the

term “settlement” to solely refer to resolving a conflict,

often one involving a lawsuit or anticipated lawsuit.

And this broader understanding of “settling a claim”

deserves more than just the footnote’s worth of

discussion rendered in the majority opinion. See Maj.

Op. 1097 n.1. Indeed, it must guide any analysis of

whether a statute supersedes the Barring Act’s sixyear statute of limitations.

Here, the CRSC statute permits the government to

administratively determine the validity of a veteran’s

demand for CRSC, as well as the amount of CRSC due

to the veteran in retroactive and future monthly

Mr. Soto and the class filed their case in district court under

the Little Tucker Act, 28 U.S.C. § 1346, which gives the district

courts concurrent jurisdiction with the Court of Federal Claims

to entertain certain types of monetary claims against the United

States for amounts not exceeding $10,000.

1

14a

compensation. In light of these provisions, the Barring

Act does not apply.

First, the CRSC statute defines eligible retirees, 2

including by clarifying what constitutes a “combatrelated disability.” 3 10 U.S.C. § 1413a(c), (e). Veterans

thus are informed whether they have a right to

demand money under the statute—that is, whether

they have a “claim.” See also id. § 1413a(d).

The CRSC statute defines eligible retirees in subsection (c),

which states:

2

(c) Eligible retirees. —For purposes of this section,

an eligible combat-related disabled uniformed services

retiree referred to in subsection (a) is a member of the

uniformed services who—

(1) is entitled to retired pay (other than by reason of

section 12731b of this title); and

(2) has a combat-related disability.

10 U.S.C. § 1413a(c).

A “combat-related disability” is defined in subsection (e) of the

CRSC statute:

3

(e) Combat-Related Disability.—In this section, the

term “combat-related disability” means a disability

that is compensable under the laws administered by

the Secretary of Veterans Affairs and that—

(1) is attributable to an injury for which the member

was awarded the Purple Heart; or

(2) was incurred (as determined under criteria

prescribed by the Secretary of Defense)—

(A) as a direct result of armed conflict;

(B) while engaged in hazardous service;

(C) in the performance of duty under conditions

simulating war; or

(D) through an instrumentality of war.

Id. § 1413a(e).

15a

Second, the CRSC statute specifically grants the

“Secretary concerned” authority to pay eligible retirees

“a monthly amount” for the combat-related disability

covered by the statute. Id. § 1413a(a) (emphasis

added). This grant of authority is not limited to future

monthly payments and is directed to more expansive

authority for the Secretary to determine an “amount”

due to an eligible veteran.

Third, the CRSC statute describes how the Secretary

must determine the “monthly amount to be paid.” Id.

§ 1413a(b)(1). In other words, it provides instructions

on the administrative calculation of the amount due to

satisfy an eligible veteran’s claim. See id. In this

regard, while the CRSC statute states that CRSC is

not “retired pay,” id. § 1413a(g), it allows the veteran

to maximize the amount of compensation she would

receive, including as a result of reductions in retired

pay for a particular month, id. § 1413a(b). See also id.

§ 1413a(f).

Finally, the CRSC statute specifies the “source of

payments” for CRSC. Id. § 1413a(h). The statute is

careful to specify that members of the Army, Navy, Air

Force, Marine Corps, and Space Force will be paid out

of the Department of Defense Military Retirement

Fund. Id. “[A]ny other member for any fiscal year shall

be paid out of funds appropriated for pay and

allowances payable by the Secretary concerned for

that fiscal year.” Id. These provisions give the

Secretary further guidance for administratively

providing a veteran with the “monthly amount” due to

her, no matter the year in question for which

compensation is owed.

By these common and plain terms, the CRSC statute

specifies the “settlement” of a “claim” against the

16a

government. It therefore takes precedence over the

Barring Act, such that a veteran eligible to receive

CRSC is not subject to the Barring Act’s six-year

statute of limitations. 31 U.S.C. § 3702(a), (a)(4).

Instead, an eligible veteran may seek retroactive

CRSC back to the original date that she first became

eligible for it. And because the majority opinion is

incorrect in its conclusion that the Barring Act and its

six-year statute of limitations applies, we need not

reach the question of whether the Barring Act’s

wartime exception might otherwise toll that Act’s

statute of limitations. 5 See id. § 3702(b)(2). Instead, it

4

The majority asserts that the pro-veteran canon has no

application because there is “no interpretive doubt.” Maj. Op.

1099 n.3. This statement, however, is belied by the majority’s

search for “clear language,” a requirement that I find to be an

expression of doubt. Id. at 1099–1100. Given this expression of

interpretive doubt as to whether there is “clear language” in the

statute under the proper definitions of “settling” and “claim,” the

pro-veteran canon applies and supports that the Barring Act does

not apply given the remedial nature of the CRSC statute. King v.

St. Vincent’s Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.Ed.2d

578 (1991).

4

Although I reach this conclusion, I note my concerns with the

majority’s analysis of the Barring Act’s wartime exception. There

is no dispute that the term “uniformed service member” in

subsection (a)(1)(A) of the Barring Act applies to both active and

retired military personnel. Indeed, the majority finds that this

subsection of the Barring Act applies to Mr. Soto’s claim for CRSC.

See Maj. Op. 1100. Yet the majority concludes that the similar

phrase “member of the armed forces” in subsection (b), the

wartime exception, only applies to “service members who are on

active duty during times of war.” Id. at 1100–01. It bases this

conclusion on a non-binding Comptroller General decision

interpreting a prior version of the Barring Act’s wartime

exception, as well as on a general statement in the legislative

history regarding omnibus amendments to a series of statutes,

including this provision of the Barring Act. This conclusion relies

on inapplicable authority and tenuous evidence that at most

5

17a

is here that the inquiry should end. See Paige v. United

States, 159 Fed. Cl. 383, 386–87 (2022); Soto, 2021 WL

7286022, at *3 n.3.

The majority opinion concludes that the CRSC

statute does not address the settlement of government

claims and that the Barring Act’s six-year statute of

limitations thus applies. See, e.g., Maj. Op. 1098–99. To

reach its decision, the majority applies an incorrect

interpretation of the phrase “settling a claim,” creates

new requirements for determining when a statute

settles a government claim, and ignores the plain

language of the CRSC statute itself.

Citing to the Federal Torts Claims Act (FTCA) and

the Military Claims Act (MCA), the majority praises

their use of the words “settle” and “claim” and faults

the CRSC statute for not “convey[ing]” the same

“authority.” Id. at 1098–99. The majority overlooks

that both the FTCA and the MCA involve circumstances where an individual believes that the government

or a government representative has injured or caused

harm to the individual or the individual’s property. 28

U.S.C. § 2672; 10 U.S.C. § 2733. These statutes specify

how the government can recompense the individual

for a “claim” of alleged harm caused by the

government, and thus resolve the conflict between the

government and the individual through, for example,

a “settlement.” They do not involve claims arising from

combat related disabilities. By finding fault with the

CRSC statute’s language compared to the language of

these statutes, the majority effectively turns to a

narrower definition of “settling” a “claim.” But “settling

support ambiguity in the meaning of the phrase “member” where,

again, the pro-veteran canon should play a role in its ultimate

interpretation.

18a

a claim” against the government can involve a more

general remediation of benefits that is not reflected in

these statutes or their use of the word “settle,” and the

CRSC statute is an example of a statute that provides

the Secretary with authority to do so.

The majority exacerbates its error by then asserting

that “specific language” is required for a statute to

settle a government claim: a statute should “typically”

use the word “settle.” Maj. Op. 1098–99. If it does not,

the majority contends that it can still settle a claim

only if it provides a “specific” provision setting out the

period of recovery. Id. But the long-understood

meaning of “settling” a “claim” against the government

includes no such limitations. Raising these new

requirements, the majority also raises the bar to a new

and unprecedented standard for what a statute must

state to supersede the Barring Act. Although a statute

involving resolution of conflict may “typically” use the

words “settle” and “claim,” the majority does not

explain why this phrasing should be “typical” for

statutes that involve a more general, remedial,

administrative determination of eligibility for money

from the government and the amount due. And the

majority’s alternative requirement—that a statute

state a “specific” period of recovery—requires a level of

specificity in statutory language that finds no support

in our canons of statutory interpretation.

The majority asserts that the CRSC statute only

establishes who may be eligible for CRSC, not how

eligible veterans’ claims are settled. Id. at 1098–99,

1099–1100. This is belied by the provisions of the

CRSC statute itself, which provide information

regarding eligibility for CRSC as well as how to

calculate the “monthly amount” of CRSC owed to the

veteran. But the majority similarly discounts these

19a

provisions, falling back on its demand for “clear

language” authorizing the Secretary to “settle” claims.

Id. at 1099–1100.

The majority’s decision today is contrary to both the

common meaning of “settling” a “claim” against the

government and to the CRSC statute itself. The

majority opinion reviews select language from unrelated

statutes and relies on that language to redefine these

terms and legislate its preferences. And in rendering

this decision, the majority denies benefits to a highlydeserving class of veterans seeking compensation

granted by statute for combat-related injuries incurred

in service to this country.

I would affirm the decision of the district court

concluding that the Barring Act’s six-year statute of

limitations does not apply to the CRSC statute and its

judgment holding the government liable to Mr. Soto

and the class for additional CRSC. I respectfully dissent.

20a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

————

2022-2011

————

SIMON A. SOTO, On Behalf Of Himself And

All Other Individuals Similarly Situated,

Plaintiff-Appellee

v.

UNITED STATES,

Defendant-Appellant

————

Appeal from the United States District Court for the

Southern District of Texas in No. 1:17-cv-00051,

Judge Rolando Olvera, Jr..

————

JUDGMENT

————

THIS CAUSE having been considered, it is

ORDERED AND ADJUDGED:

REVERSED AND REMANDED

February 12, 2024

Date

FOR THE COURT

/s/ Jarrett B. Perlow

Jarrett B. Perlow

Clerk of Court

21a

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

————

Civil Action No. 1:17-c-00051

————

SIMON A. SOTO, on behalf of himself and all

individuals similarly situated,

v.

Plaintiff,

UNITED STATES OF AMERICA,

Defendant.

————

ORDER GRANTING PLAINTIFF’S AMENDED

MOTION FOR CLASS CERTIFICATION

This case arises from Simon A. Soto’s (hereafter

“Plaintiff”) claim for retroactive Combat-Related Special

Compensation (hereafter “CRSC”). Plaintiff request

the Court rule the United States of America (hereafter

“Defendant”) unlawfully withheld CRSC from Plaintiff

and others similarly situated. Before the Court is

“Plaintiff’s Simon Soto’s Amended Motion for Class

Certification” (Docket No. 53) (hereafter “Plaintiff’s

Motion for Class Certification”). For the reasons set

forth herein, Plaintiff’s Motion for Class Certification

(Docket No. 53) is GRANTED.

22a

I. FACTUAL BACKGROUND 1

Plaintiff is a veteran of the United States Marine

Corps, serving between August 2000 and April 2006.

During his first deployment, Plaintiff was assigned to

“search for, recover, and process the remains” of war

casualties. Plaintiff began suffering from mental

health issues particularly post-traumatic stress disorder

(hereafter “PTSD”) and began receiving treatment for

PTSD on December 19, 2005. Plaintiff medically retired

from active duty April 28, 2006 and was placed on the

Temporary Disability Retirement List (hereafter

“TDRL”). Plaintiff was subsequently removed from the

TDRL and awarded a permanent medical disability

retirement.

In June 2016, Plaintiff applied for CRSC.

Entitlement to CRSC is set forth in 10 U.S.C. § 1413a,

which grants the relevant Secretary the authority to

pay an “eligible combat-related disabled uniformed

services retiree” a monthly amount of benefits for a

combat-related disability. 10 U.S.C. § 1413a(a). CRSC

payments are not considered “retired pay”. 10 U.S.C.

§ 1413a(g). To be eligible for CRSC, a medically retired

veteran must be (1) entitled to retired pay, and (2) the

VA must determine the veteran has a combat-related

disability compensable under the VA laws. Id.

In October 2016, the Navy Council of Review Boards

(hereafter “Navy”) awarded CRSC to Plaintiff (effective July 1, 2010). However, the Navy limited said

award to six years of retroactive CRSC due to the

statute of limitations contained in 31 U.S.C. § 3702

(hereafter “Barring Act”). Docket No. 21-3.

The factual statements set forth herein were obtained from

the following documents: Docket Nos. 1 and 21.

1

23a

Central to this action is whether the Barring Act

applies to CRSC pay. The Court previously noted

CRSC is not listed in any of the categories applicable

to the Barring Act’s six-year statute of limitations as

set forth in § 3702. Docket No. 39 at 4. Thus, the Court

concluded the Barring Act falls within the definition of

a “general act” applicable to a multitude of uniformed

service members’ claims, while a CRSC claim falls

within the definition of a “specific act” statute outside

the jurisdiction of the Barring Act. Id. at 5.

II. PROCEDURAL HISTORY

On September 28, 2018, Plaintiff filed “Plaintiffs

Simon Soto’s Amended Motion for Class Certification”

(Docket No. 53) and “Memorandum of Law in Support

of Plaintiff Simon Soto’s Amended Motion for Class

Certification” (Docket No. 54). On November 19, 2018,

Defendant filed “Defendant’s Opposition to Plaintiff’s

Amended Motion for Class Certification” (Docket No.

57). On December 19, 2018, Plaintiff filed a “Reply

Memorandum In Support of Plaintiff Simon Soto’s

Amended Motion for Class Certification” (Docket No. 60).

III. LEGAL STANDARD

To obtain class certification, a party must first

establish the following prerequisites:

(1) the class is so numerous that joinder of all

members is impracticable;

(2) there are questions of law or fact common to

the class;

(3) the claims or defenses of the representative

parties are typical of the claims or defenses of

the class; and

(4) the representative parties will fairly and

adequately protect the interests of the class.

24a

Fed. R. Civ. P. 23(a). The Court must conduct a

“rigorous analysis” to ensure “the prerequisites of Rule

23(a) have been satisfied.” Comcast Corp. v. Behrend,

569 U.S. 27, 33 (2013). Furthermore, the Court must

also find that...:

(3) . . .the question of law or fact common to class

members predominates over any questions

affecting only individual members, and that a

class action is superior to other available

methods for fairly and efficiently adjudicating

the controversy.

Fed. R. Civ. P. 23(b)(3). The moving party must

establish that all Rule 23 requirements have been

satisfied. Berger v. Compaq Comput. Corp., 257 F.3d

475, 479-80 (5th Cir. 2001).

Defendant does not contest prerequisite Rule 23

(a)(4) is satisfied—the adequacy of Plaintiff’s proposed

class counsel: Sidley Austin LLP. 2 Therefore, the Court

must now determine whether Plaintiff has satisfied

the remaining prerequisites.

The Court has original jurisdiction over this action

pursuant to 28 U.S.C. § 1346(a)(2)—otherwise known

as the “Little Tucker Act”, which provides district

courts original jurisdiction over claims against the

federal government for less than $10,000. 28 U.S.C.

§ 1346(a)(2). A district court has broad discretion over

whether to certify a proposed class, but that discretion

must be exercised within the framework of Rule 23.

The Court notes that Plaintiff ’s proposed class counsel meets

the requirements under Fed. R. Civ. P. 23(g) (“Class Counsel”)

based on qualifications, experience, and willingness to competently

represent the class. See Docket Nos. 54 at 9-11; 54-8; 54-9; 54-10.

2

25a

Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir.

1996).

IV. DISCUSSION

Plaintiff seeks an order certifying this civil case as a

class action under Federal Rules of Civil Procedure

23(a), and (b)(3), on behalf of the following proposed

class:

“...all former service members of the Army, Navy,

Air Force, Marine Corps, and Coast Guard whose

CRSC applications under 10 U.S.C. § 1413a were

granted, but who were denied the full extent of

their retroactive CRSC payment as a result of

Defendant’s use of a Retroactive Payment Cap

that is inconsistent with and violates the law.”

Docket No. 54 at 4. Plaintiff’s proposed class is also

limited to members who have claims of less than

$10,000. Id. Moreover, Plaintiff seeks an order

appointing Plaintiff as “representative of the Class”

and appointing Sidley Austin LLP as “Class Counsel”.

Docket No. 53 at 1-3.

A. Fed. R. Civ. P. 23(a) Prerequisites

1) Numerosity

To establish numerosity, “a plaintiff must demonstrate some evidence or reasonable estimate of the

number of purported class members.” Pederson v. La.

State Univ., 213 F.3d 858, 868 (5th Cir. 2000). A class

action is appropriate when “the class is so numerous

that joinder of all members is impracticable.” Fed. R.

Civ. P. 23(a)(1). A class of 100 to 150 members usually

satisfies the numerosity requirement. Mullen v.

Treasure Chest Casino, LLC, 186 F.3d 620, 624-25 (5th

Cir. 1999). However, “[t]he number of members in a

proposed class is not determinative of whether joinder

26a

is impracticable.” Id. at 624. Other factors are

relevant—such as the geographical dispersion of the

class, the ease of identifying other class members, the

nature of the action, and the size of each plaintiff’s

claim. Zeidman v. J. Ray McDermott & Co., Inc., 651

F.2d 1030 (5th Cir. 1981).

Plaintiff and Defendant agree that there are at least

3,600 potential class members. Docket No. 54 at 7,

Docket No. 57 at 14. Despite the possibility of some

“false positives,” this estimate gives the Court

adequate assurance that the class is sufficiently large

as to make joinder impracticable. See Boles v. Codilis

LLP, 2012 WL 12861080, at *9 (W.D. Tex. Jan. 17,

2012). Further, other factors also support a finding of

numerosity: the potential class members live in all

fifty states and the District of Columbia, and all have

relatively small claims. Docket No. 54 at 6.

2. Commonality

Plaintiff must also show that “there are questions of

law or fact common to the class.” Fed. R. Civ. P. 23(a)(2).

The common question “must be of such a nature that

it is capable of classwide resolution—which means

that determination of its truth or falsity will resolve

an issue that is central to the validity of each one of

the claims in one stroke.” Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 350 (2011). Here, the common

question is whether the statute of limitations

contained in the Barring Act, 31 U.S.C. § 3702(b),

applies to retroactive payments of CRSC. Resolution of

this question is “central to the validity” of each

potential class member’s claim.

27a

3) Typicality

33

Plaintiff must also demonstrate that his claim is

“typical of the claims . . . of the class.” Fed. R. Civ. P.

23(a)(3). Plaintiff must show that his claims “have the

same essential characteristics of those of the putative

class.” James v. City of Dallas, 254 F.3d 551, 571 (5th

Cir. 2001). Plaintiff’s claims, like those of the

purported class, are subject to Defendant’s application

of the Barring Act to CRSC payments.

The Court therefore finds that the putative class

satisfies the four prerequisites for class certification

set forth in Rule 23(a).

B. Rule 23(b)(3)

In addition to the four prerequisites contained in

Rule 23(a), Plaintiff must show that the class is

maintainable pursuant to one of the four categories set

forth in Rule 23(b). Plaintiff submits that the proposed

class fits within Rule 23(b)(3). Docket No. 1 at 6. Rule

23(b)(3) states that a class action which meets the

prerequisites in Rule 23(a) may be maintained if:

“... [T]he court finds that the questions of law or

fact common to class members predominate over

any questions affecting only individual members;

and that a class action is superior to other

available methods for fairly and efficiently

adjudicating the controversy.”

The Court will address predominance and superiority

in turn.

The Court notes that “the commonality and typicality

requirements of Rule 23(a) tend to merge.” Wal-Mart Stores, Inc.,

564 U.S. at n.5. Nonetheless, in order to be fully transparent, the

Court will evaluate the two requirements separately.

3

28a

1) Predominance

“The Rule 23(b)(3) predominance inquiry tests

whether proposed classes are sufficiently cohesive to

warrant adjudication by representation.” Amchem

Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997).

Plaintiff bears the burden to show that “individualized

inquiries will not cast a shadow over those issues

common to the entire class.” Torres v. S.G.E. Mgmt.,

LLC, 838 F.3d 629, 650 (5th Cir. 2016).

“Relatively few motions to certify a class fail because

of disparities in the damages suffered by class

members.” Bell Atlantic Corp. v. AT&T Corp., 339 F.3d

294, 306 (5th Cir. 2003). “Where virtually every issue

prior to damages is a common issue,” the need to

individually calculate damages does not preclude class

certification under Rule 23(b)(3). Bertulli v. Indep.

Ass’n of Cont’l Pilots, 242 F.3d 290, 298 (5th Cir. 2001).

“The predominance inquiry can still be satisfied under

Rule 23(b)(3) if the proceedings are structured to

establish liability on a class-wide basis, with separate

hearings to determine—if liability is established—the

damages of individual class members.” In Re

Deepwater Horizon, 739 F.3d 790, 817 (5th Cir. 2014).

Here, resolution of the common legal issue will

establish Defendant’s liability to every legitimate

member of the proposed class. Defendant is the only

party alleged to be responsible for the conduct in

question, and all claimed damages arise out of the

same scheme. See Mullen 186 F.3d at 626 (affirming

district court’s holding that common issues predominated because the class members “claim injury from

the same defective ventilation system over the same

general period of time[.]”). Further, should liability be

established, the calculation of each plaintiff’s damages

is not likely to require much subjective evaluation or

29a

legal skill, but can be done mostly through clerical

work or objective calculations. See Docket No. 57-4 at

6 (“Note that the CRSC award letter already includes

the CRSC effective date. If the CRSC board determined that the Barring Act limited the claim, then the

CRSC Board will reflect that limitation in the award

letter . . . DFAS uses the CRSC award letter to

establish his CRSC records and then compute retroactive amounts of CRSC due.”); Bell Atlantic Corp., 339

F.3d at 306. Thus, the risk of “mini-trials” to determine

each individual’s damages does not “cast a shadow”

over the legal issue common to the entire class. See

Torres, 838 F.3d at 650.

2) Superiority

The superiority requirement under Rule 23(b)(3)

“necessarily suggests a comparative process” between

methods of adjudication. In Re TWL Corp., 712 F.3d

886, 896 (5th Cir. 2013). “The superiority analysis is

fact-specific and will vary depending on the circumstances of any given case.” Robertson v. Monsanto Co.,

287 F. App’x 354, 361 (5th Cir. 2008).

Plaintiff’s purported class currently contains

approximately 3,600 members in all fifty states and

the District of Columbia. Rather than force all

members to pursue 3,600 individual claims in courts

across the country, it is far more efficient to concentrate the litigation in one forum. See Fed. R. Civ. P.

23(b)(3)(C) (stating that “the desirability or undesirability of concentrating the litigation of the claims in

the particular forum” is a pertinent matter under Rule

23(b)(3)). Additionally, due to the jurisdictional limits

of the Little Tucker Act, each claim may only assert a

relatively modest amount of damages—thereby reducing

the chance that a plaintiff would choose to proceed

individually. See Amchem Prods., Inc., 521 U.S. at 617

30a

(quoting Mace v. Van Ru Credit Corp., 109 F.3d 338,

344 (7th Cir. 1997)) (“[t]he policy at the very core of the

class action mechanism is to overcome the problem

that small recoveries do not provide the incentive for

any individual to bring a solo action[.]”). For these

reasons, Plaintiff has met his burden to demonstrate

that a class action before the Court is the best way to

adjudicate all claims.

C. Venue in the Southern District of Texas

Lastly, Defendant argues certification should be

restricted only to plaintiffs residing within the

Southern District of Texas. Docket No. 57 at 16-20.

Defendant did not object to venue in its “Answer”

(Docket No. 20) nor in its “Defendant’s Motion for

Judgment on the Pleadings” (Docket No. 21). In these

documents, Defendant asserted multiple defenses

under Fed. R. Civ. P. 12. Docket No. 20 at 11, Docket No

21 at 1. By not asserting a defense of improper venue

at that time, Defendant waived its right to contest

venue. See Fed. R. Civ. P. 12(g)(2) (“[A] party that

makes a motion under [Rule 12] must not make

another motion under this rule raising a defense or

objection that was available to the party but omitted

from its earlier motion.”).

Further, the Little Tucker Act does not prohibit

nationwide classes. It is sufficient that the named

plaintiff, Mr. Soto, resides within the Southern District

of Texas. Abrams Shell v. Shell Oil Co., 343 F.3d 482,

490 (5th Cir. 2003) (“[d]istrict courts in the Fifth

Circuit have consistently held that all named plaintiffs

to a class action must satisfy the venue requirements”);

Bywaters v. United States, 196 F.R.D. 458, 464

(E.D.T.X. Aug. 25, 2000) (“[e]xcluding plaintiff class

members on venue grounds when those plaintiffs may

not even be required to appear would defeat rather

31a

than advance the convenience and appearanceoriented purposes of venue.”).

V. CONCLUSION

For the foregoing reasons, the Court finds that

Plaintiff has satisfied the requirements for class

certification pursuant to Rules 23(a) and (b)(3). It is

hereby ORDERED that Plaintiff’s Motion for Class

Certification (Docket No. 53) is GRANTED. The

following class is hereby certified:

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 of less than $10,000.

It is further ORDERED that Plaintiff shall submit

to the Court a proposed notice to class members and

Plaintiff’s plan for providing notice to all potential

class members for the Court’s approval within thirty

(30) days. Defendant shall then submit any objections

within fourteen (14) days.

Signed on this 11th day of February, 2019.

/s/ Rolando Olvera

Rolando Olvera

United States District Judge

32a

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

————

Civil Action No. 1:17-cv-0051

————

SIMON A. SOTO, on behalf of himself and all

individuals similarly situated,

v.

“Plaintiff,”

UNITED STATES OF AMERICA,

“Defendant.”

————

ORDER GRANTING PLAINTIFF’S MOTION

FOR SUMMARY JUDGMENT AND DENYING

DEFENDANT’S CROSS-MOTION FOR

SUMMARY JUDGMENT

Before the Court are these pleadings: “Plaintiff

Simon Soto’s Motion for Summary Judgment”

(“Plaintiff’s MSJ”) (Dkt. No. 88) and “Memorandum of

Law in Support of Plaintiff Simon Soto’s Motion for

Summary Judgment” (Dkt. No 89), “Defendant’s

Response and Cross-Motion for Summary Judgment”)

(“Defendant’s Cross-MSJ”) (Dkt. No. 91), and “Plaintiff

Simon Soto’s Response and Reply in Support of

His Motion for Summary Judgment” (Dkt. No. 95).

For these reasons, Plaintiff’s MSJ (Dkt. No. 88) is

GRANTED and Defendant’s Cross-MSJ (Dkt. No. 91)

is DENIED.

33a

I.

BACKGROUND

1

Plaintiff is a veteran of the United States Marine

Corp and receives Combat-Related Special Compensation

(“CRSC”) under 10 U.S.C. § 1413a (“CRSC statute”).

The United States Department of the Navy approved

his CRSC application in 2016, and retroactively provided

six years of benefits. But if the six-year retroactive

payment cap (“Retroactive Payment Cap”) in 31 U.S.C.

§ 3702 (“Barring Act”) had not been applied, Plaintiff

would have been entitled to move benefits.

This Court denied Defendant’s motion for judgment

on the pleadings, see Dkt. No. 39, and certified the

following class: “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 of less than $10,000” (“Class Members”).

Dkt. No. 61 at 7.

Plaintiff argues the Barring Act does not apply to

the CRSC Statute, because CRSC is not “retired pay.”

Dkt. No. 89 at 5-8; 31 U.S.C. § 3702(a)(1)(A). Defendant

agrees CRSC is not retired pay, but argues it falls

under the broader category of pay under the Barring

Act. Dkt. No. 91 at 8. Defendant also argues the CRSC

Statute is subject to the Barring Act because the CRSC

Statute does not provide a mechanism for settling

CRSC claims, rather they are settled through the

Director of the Office of Management and Budget

(“OMB”) as provided for under the Barring Act. Id. at

12-15; see 31 U.S.C. § 3702(a)(4). Plaintiff disputes both

Unless otherwise noted, all facts were obtained from parties’

“Joint Statement of Stipulated Facts” (Dkt. No. 87).

1

34a

arguments, and further argues the Barring Act does

not apply because the CRSC Statute has a separate

settlement mechanism. Dkt. No. 95 at 3-7, 11-13; see

31 U.S.C. §§ 3702(a), 3702(a)(4). Plaintiff also argues

that applying the Barring Act to CRSC is unlawful

because the Barring Act is tolled during times of war.

Dkt. No. 95 at 13-16.

II. LEGAL STANDARD

Summary judgment is proper when “the movant

shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). The moving

party must show “there is an absence of evidence to

support the nonmoving party’s case.” Celotex Corp. v.

Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554 (1986).

The burden then shifts to the nonmoving party, who

must “go beyond the pleadings and... designate specific

facts showing that there is a genuine issue for trial.”

Id. at 324 (internal citations omitted).

This Court has jurisdiction under the “Little Tucker

Act,” 28 U.S.C. § 1346(a)(2). See Heisig v. United States,

719 F.2d 1153, 1158 (Fed. Cir. 1983). Because the

Federal Circuit has jurisdiction of appeals of district

court decisions under the Little Tucker Act, see 28

U.S.C. § 1295(a)(2), the law of the Federal Circuit

applies. Heisig, 719 F.2d at 1156.

III. DISCUSSION

The Barring Act provides:

(a) Except as provided in this chapter or another

law, all claims of or against the United States

Government shall be settled as follows:

(1) The Secretary of Defense shall settle—

35a

(A) claims involving uniformed service members’

pay, allowances, travel, transportation, payments for unused accrued leave, retired pay,

and survivor benefits; and

[…]

(4) The Director of the Office of Management

and Budget shall settle claims not otherwise

provided for by this subsection or another

provision of law.

31 U.S.C. § 3702(a).

Claims against the U.S. Government are settled

under the Barring Act, “[e]xcept as provided in...

another law.” 31 U.S.C. § 3702(a). Thus, the six-year

Retroactive Payment Cap does not apply if the CRSC

Statute is “another law” with its own settlement

mechanism. See id. § 3702(b)(1).

Under the Barring Act, “to settle a claim means to

administratively determine the validity of that

claim.” 2 Adams v. Hinchman, 332 U.S. App. D.C. 98,

154 F.3d 420, 422 (1998), citing Ill. Sur. Co. v. United

States, 240 U.S. 214, 219 (1916) (“The word ‘settlement’

in connection with public transactions and accounts

has been used from the beginning to describe

administrative determination of the amount due.”).

The CRSC Statute provides its own settlement

mechanism because it defines eligibility for CRSC,

helps explain the amount of benefits and instructs the

Defendant appears to agree with this definition of “settle,”

stating in Defendant’s Cross-MSJ that “[t]he term ‘settle’ as used

in the Barring Act refers to [the Department of Defense’s]

authority to make an ‘administrative determination of the

amount due’; that is, establishing the actual dollar amount due.”

Dkt. No. 91 at 15 n.14.

2

36a

Secretary of Defense to prescribe procedures and

criteria for individuals to apply for CRSC. 10 U.S.C.

§ 1413a(b)-(e); see also Combat-Related Special

Compensation (CRSC) Section 1413a, Title 10, United

States Code, As Amended Revised Program Guidance

January 2004 (Apr. 27, 2004) (“2004 Program Guidance”).

The 2004 Program Guidance sets forth the monthly

amount of CRSC, including applicable reductions and

limitations, id. at 10-11, and establishes procedures for

processing applications and appeals, id. at 8-10. These

are procedures for an “administrative determination of

the amount [of CRSC] due,” Ill. Sur. Co., 240 U.S. at

219, and thus constitute a settlement mechanism.

Because the CRSC Statute has its own settlement

mechanism, it is “another law” and the Barring Act

does not apply. Cf. Chaney v. VA, 906 F.2d 697, 698 n.1

(Fed. Cir. 1990) (affirming the Merit Systems

Protection Board’s (“MSPB”) dismissal of an action not

covered by the statute permitting appeal to the MSPB,

and noting the action instead falls under the Barring

Act because there was not “another law” providing for

settlement of claims); see also Hernandez v. Dept of the

Air Force, 498 F.3d 1328, 1332 (Fed. Cir. 2007)

(“[V]eterans’ benefits statutes are liberally construed

in favor of the veteran.”).

It follows, then, that the CRSC Statute’s settlement

mechanism does not fall under the Barring Act’s

specific categories of claims, 3 including 31 U.S.C.

The Court found CRSC was not “retired pay” under 31 U.S.C.

§ 3702(a)(1)(A). Dkt. No. 39 at 4. The Court need not revisit this

issue, nor the argument that CRSC is in the Barring Act’s

category of “pay”. The Court finds that the Barring Act is

inapplicable to CRSC because the CRSC statute has its own

settlement mechanism. See 31 U.S.C. § 3702(a). Similarly, the

Court need not address Plaintiff ’s argument that applying the

3

37a

§ 3702(a)(4). The OMB delegated the settlement of

certain claims to the Department of Defense “Office of

General Counsel, Defense Office of Hearings and

Appeals” (“DOHA”). See Comptroller General of the

United States, Memorandum B-275605, “Transfer of

Claims Settlement and Related Advance Decisions,

Waivers, and Other Functions” (March 17, 1997). But

DOHA is not involved in the settlement of CRSC

claims. 4 See 2004 Program Guidance at 13-14 (noting

the Department of Defense offices having CRSC

responsibilities without mentioning DOHA).

The CRSC Statute is “another law” with its own

settlement mechanism, 31 U.S.C. § 3702(a), excluding

it from the Barring Act. Thus, summary judgment for

Plaintiff and the class is appropriate.

IV. CONCLUSION

For these reasons, Plaintiff’s MSJ (Dkt. No. 88) is

GRANTED and Defendant’s Cross-MSJ (Dkt. No. 91)

is DENIED. Under Federal Rule of Civil Procedure

58(b)(2)(B), final judgment is set forth in a separate

document.

Signed on this 16th day of December, 2021.

/s/ Rolando Olvera

Rolando Olvera

United States District Judge

Barring Act to CRSC is unlawful because the Barring Act is tolled

during times of war. Dkt. No. 95 at 13-16.

Plaintiff also notes differences in the settlement of claims by

the CRSC Boards and DOHA, including a different burden of

proof: “preponderance of available documentary information” in

CRSC claims, 2004 Program Guidance at 9, compared to “clear

and convincing evidence” for claims before DOHA, Depaitment of

Defense Instruction 1340.21 (May 12, 2004), Enclosure 5.7, 6.14.

4

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APPENDIX E

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

————

Civil Action No. 1:17-cv-00051

————

SIMON A. SOTO, on behalf of himself and all

individuals similarly situated,

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant

————

FINAL JUDGMENT

Plaintiff Simon Soto and the following class:

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 of less than $10,000

(“Class”),

sued the United States. This Court granted “Plaintiff

Simon Soto’s Motion for Summary Judgment”

(“Plaintiff’s MSJ”) (Dkt. No 88). Thus the Court rules

as follows:

Final Judgment is entered in favor of Plaintiff

Simon Soto and the Class. The United States is liable

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to Plaintiff Simon Soto and each member of the Class

in Combat-Related Special Compensation under 10

U.S.C. § 1413a withheld following the United States’

application of the retroactive payment cap in 31 U.S.C.

§ 3702. The district clerk is ordered to close this case.

Signed on this 16th day of December, 2021.

/s/ Rolando Olvera

Rolando Olvera

United States District Judge

40a

APPENDIX F

NOTE: This order is nonprecedential.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

————

2022-2011

————

SIMON A. SOTO, on behalf of himself and all other

individuals similarly situated,

Plaintiff-Appellee

v.

UNITED STATES,

Defendant-Appellant

————

Appeal from the United States District Court for the

Southern District of Texas in No. 1:17-cv-00051,

Judge Rolando Olvera, Jr.

————

ON PETITION FOR PANEL REHEARING AND

REHEARING EN BANC

————

Before MOORE, Chief Judge, LOURIE, DYK, PROST,

REYNA, TARANTO, CHEN, HUGHES, STOLL,

CUNNINGHAM, and STARK, Circuit Judges. 1

PER CURIAM.

1

Circuit Judge Newman did not participate.

41a

ORDER

Simon A. Soto filed a combined petition for panel

rehearing and rehearing en banc. The petition was

referred to the panel that heard the appeal, and

thereafter the petition was referred to the circuit

judges who are in regular active service.

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue June 27, 2024.

June 20, 2024

Date

FOR THE COURT

/s/ Jarrett B. Perlow

Clerk of Court

42a

APPENDIX G

10 U.S.C. § 1413a

Combat-related special compensation

(a) Authority.–The Secretary concerned shall pay to

each eligible combat-related disabled uniformed services retiree who elects benefits under this section a

monthly amount for the combat-related disability of

the retiree determined under subsection (b).

(b) Amount.–

(1) Determination of monthly amount.–Subject

to paragraphs (2) and (3), the monthly amount to be

paid an eligible combat-related disabled uniformed

services retiree under subsection (a) for any month

is the amount of compensation to which the retiree

is entitled under title 38 for that month, determined

without regard to any disability of the retiree that is

not a combat-related disability.

(2) Maximum amount.–The amount paid to an

eligible combat-related disabled uniformed services

retiree for any month under paragraph (1) may not

exceed the amount of the reduction in retired pay

that is applicable to the retiree for that month under

sections 5304 and 5305 of title 38.

(3) Special rules for chapter 61 disability

retirees.–

(A) General rule.–In the case of an eligible

combat-related disabled uniformed services retiree

who is retired under chapter 61 of this title, the

amount of the payment under paragraph (1) for

any month may not, when combined with the

amount of retired pay payable to the retiree after

any such reduction under sections 5304 and 5305

43a

of title 38, cause the total of such combined

payment to exceed the amount of retired pay to

which the member would have been entitled

under any other provision of law based upon the

member's service in the uniformed services if the

member had not been retired under chapter 61 of

this title.

(B) Special rule for retirees with fewer than

20 years of service.–In the case of an eligible

combat-related disabled uniformed services

retiree who is retired under chapter 61 of this title

with fewer than 20 years of creditable service, the

amount of the payment under paragraph (1) for

any month may not, when combined with the

amount of retired pay payable to the retiree after

any such reduction under sections 5304 and 5305

of title 38, cause the total of such combined

payment to exceed the amount equal to the retired

pay percentage (determined for the member under

section 1409(b) of this title) of the member's years

of creditable service multiplied by the member's

retired pay base under section 1406(b)(1) or 1407

of this title, whichever is applicable to the

member.

(c) Eligible retirees.–For purposes of this section,

an eligible combat-related disabled uniformed services

retiree referred to in subsection (a) is a member of the

uniformed services who–

(1) is entitled to retired pay (other than by reason

of section 12731b of this title); and

(2) has a combat-related disability.

(d) Procedures.–The Secretary of Defense shall

prescribe procedures and criteria under which a

disabled uniformed services retiree may apply to the

44a

Secretary of a military department to be considered to

be an eligible combat-related disabled uniformed

services retiree. Such procedures shall apply uniformly

throughout the Department of Defense.

(e) Combat-related disability.–In this section, the

term “combat-related disability” means a disability

that is compensable under the laws administered by

the Secretary of Veterans Affairs and that–

(1) is attributable to an injury for which the

member was awarded the Purple Heart; or

(2) was incurred (as determined under criteria

prescribed by the Secretary of Defense)–

(A) as a direct result of armed conflict

(B) while engaged in hazardous service;

(C) in the performance of duty under conditions

simulating war; or

(D) through an instrumentality of war.

(f) Coordination with concurrent receipt

provision.–Subsection (d) of section 1414 of this title

provides for coordination between benefits under that

section and under this section.

(g) Status of payments.–Payments under this

section are not retired pay.

(h) Source of payments.–Payments under this

section for a member of the Army, Navy, Air Force,

Marine Corps, or Space Force shall be paid from the

De-partment of Defense Military Retirement Fund.

Payments under this section for any other member for

any fiscal year shall be paid out of funds appropriated

for pay and allowances payable by the Secretary

concerned for that fiscal year.

45a

(i) Other definitions.–In this section:

(1) The term “service-connected” has the meaning

given such term in section 101 of title 38.

(2) The term “retired pay” includes retainer pay,

emergency officers’ retirement pay, and naval

pension.

31 U.S.C. § 3702

Authority to settle claims

(a) Except as provided in this chapter or another law,

all claims of or against the United States Government

shall be settled as follows:

(1) The Secretary of Defense shall settle–

(A) claims involving uniformed service members'

pay, allowances, travel, transportation, payments

for unused accrued leave, retired pay, and survivor

benefits; and

(B) claims by transportation carriers involving

amounts collected from them for loss or damage

incurred to property incident to shipment at

Government expense.

(2) The Director of the Office of Personnel

Management shall settle claims involving Federal

civilian employees' compensation and leave.

(3) The Administrator of General Services shall

settle claims involving expenses incurred by Federal

civilian employees for official travel and transportation, and for relocation expenses incident to

transfers of official duty station.

(4) The Director of the Office of Management and

Budget shall settle claims not otherwise provided for

by this subsection or another provision of law.

46a

(b)(1) A claim against the Government presented

under this section must contain the signature and

address of the claimant or an authorized representative.

The claim must be received by the official responsible

under subsection (a) for settling the claim or by the

agency that conducts the activity from which the claim

arises within 6 years after the claim accrues except–

(A) as provided in this chapter or another law; or

(B) a claim of a State, the District of Columbia, or

a territory or possession of the United States.

(2) When the claim of a member of the armed forces

accrues during war or within 5 years before war

begins, the claim must be received within 5 years

after peace is established or within the period

provided in paragraph (1) of this subsection,

whichever is later.

(3) A claim that is not received in the time required

under this subsection shall be returned with a copy

of this subsection, and no further communication is

required.

(c) One-year limit for check claims.–(1) Any claim on

account of a Treasury check shall be barred unless it

is presented to the agency that authorized the

issuance of such check within 1 year after the date of

issuance of the check or the effective date of this

subsection, whichever is later.

(2) Nothing in this subsection affects the underlying

obligation of the United States, or any agency

thereof, for which a Treasury check was issued.

(d) The official responsible under subsection (a) for

settling the claim shall report to Congress on a claim

against the Government that is timely presented

under this section that may not be adjusted by using

47a

an existing appropriation, and that the official believes

Congress should consider for legal or equitable

reasons. The report shall include recommendations of

the official.

(e)(1) The Secretary of Defense may waive the time

limitations set forth in subsection (b) or (c) in the case

of a claim referred to in subsection (a)(1)(A). In the

case of a claim by or with respect to a member of the

uniformed services who is not under the jurisdiction of

the Secretary of a military department, such a waiver

may be made only upon the request of the Secretary

concerned (as defined in section 101 of title 37).

(2) Payment of a claim settled under subsection

(a)(1)(A) shall be made from an appropriation that

is available, for the fiscal year in which the payment

is made, for the same purpose as the appropriation

to which the obligation claimed would have been

charged if the obligation had been timely paid,

except that in the case of a claim for retired pay or

survivor benefits, if the obligation claimed would have

been paid from a trust fund if timely paid, the payment

of the claim shall be made from that trust fund.

(3) This subsection does not apply to a claim in

excess of $25,000.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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