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
1a
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
6a
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
7a
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
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§ 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
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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.
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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
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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
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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
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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.
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(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.
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