United States Court of Appeals for the Federal Circuit ______________________

SIMON A. SOTO, ON BEHALF OF HIMSELF AND ALL OTHER INDIVIDUALS SIMILARLY SITU- ATED, Plaintiff-Appellee

v.

UNITED STATES, Defendant-Appellant ______________________

2022-2011 ______________________

Appeal from the United States District Court for the Southern District of Texas in No. 1:17-cv-00051, Judge Rolando Olvera, Jr. ______________________

Decided: February 12, 2024 ______________________

JOHNNET SIMONE JONES, Sidley Austin LLP, Washing- ton, DC, argued for plaintiff-appellee. Also represented by ANKUR SHINGAL, EMILY MILY WEXLER, Chicago, IL; RO- CHELLE BOBROFF, RENEE A. BURBANK, BARTON FRANK STICHMAN, I, National Veterans Legal Services Pro- gram, Arlington, VA.

JENNIFER UTRECHT, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, Case: 22-2011 Document: 41 Page: 2 Filed: 02/12/2024

2 SOTO v. US

argued for defendant-appellant. Also represented by BRIAN M. BOYNTON, CHARLES W. SCARBOROUGH. ______________________

Before REYNA, HUGHES, and STARK, Circuit Judges. Opinion for the court filed by Circuit Judge HUGHES. Dissenting opinion filed by Circuit Judge REYNA. 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 Bar- ring Act, 31 U.S.C. § 3702, does not apply to claims for un- paid 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 pro- ceedings consistent with this opinion. I A Under 38 U.S.C. §§ 5304–05, retired veterans gener- ally may not receive both their retired pay and VA disabil- ity compensation and must waive a portion of their military retired pay to receive disability pay. However, retired vet- erans who establish that their disability is attributable to a combat-related event may receive additional compensa- tion (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 mili- tary 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 Case: 22-2011 Document: 41 Page: 3 Filed: 02/12/2024

SOTO v. US 3

years of military service if they were medically retired un- der 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 Regula- tion, DoD 7000.14-R, vol. 7B, ch. 63, at 63-7. CRSC can be granted retroactively, and agency regulations state that re- tired service members “may submit an application for CRSC at any time” a