[00:00:00] Speaker 00: Our next case is Soto versus United States, docket number 22-2011. [00:00:36] Speaker 00: Councilor Utrecht, did I pronounce that correctly? [00:00:38] Speaker 03: You did, yes, thank you. [00:00:39] Speaker 00: Utrecht, you have reserved five minutes of time for rebuttal? [00:00:43] Speaker 03: That's correct, Your Honor. [00:00:44] Speaker 00: Okay, looks like it will already. [00:00:46] Speaker 00: You may begin. [00:00:48] Speaker 03: Good morning, Your Honor. [00:00:48] Speaker 03: It's General Utrecht on behalf of the United States. [00:00:51] Speaker 03: An issuance appeal is a straightforward legal issue. [00:00:54] Speaker 03: Through the Barring Act 31 U.S.E. [00:00:56] Speaker 03: 3702, Congress reminded that all claims against the United States must be presented to the official responsible for making a final determination on the amount due within six years to the claims approval. [00:01:08] Speaker 03: So the only question in this case is whether a claim for back pay of combat-related special compensation is subject to the same six-year statute of limitations as every other form of voluntary compensation. [00:01:20] Speaker 03: The district court's ruling here granted extraordinary classified relief, holding not only that the six-year statute of limitations does not apply, but that no statute of limitations applies to this claim for back pay, combat-related special compensation, in order for the government to process these back pay claims, regardless of when they first occurred. [00:01:41] Speaker 03: That ruling finds no basis in the text of the statute the district court relied on, and for this reason we believe that that whole thing should be reversed. [00:01:48] Speaker 00: So one of the preliminary questions that I have is whether the CRSC statute specifically addresses settling a claim, as those terms are understood under the very next. [00:02:02] Speaker 03: It does not, Your Honor. [00:02:05] Speaker 03: If you look at the CRSC statute, section 1413A, it provides a couple of things. [00:02:10] Speaker 03: It says who is eligible for combat-related special compensation. [00:02:15] Speaker 03: It provides that the Department of Defense should establish procedures to make an determination about whether a retired military service member's disability is combat-related, which would make someone eligible. [00:02:27] Speaker 03: And it sells out the amount of pay that would be provided to those individuals. [00:02:32] Speaker 03: That's not the same thing as settling a claim. [00:02:35] Speaker 03: And I would urge Your Honors to look at all of the other forms of military compensation, including retired pay, you know, survivor annuities. [00:02:42] Speaker 03: All of them have those core features where they spell out who's eligible for the type of payment and then who isn't. [00:02:48] Speaker 00: Instead, what a settlement statute does... What I see, what the CRSC does, a statute, it provides the, it determines the validity of a claim, a process for determining the validity of a claim. [00:03:02] Speaker 00: the amount of money that's due, and then whether it covers the natural claim. [00:03:10] Speaker 00: Why is that not settling the claim? [00:03:13] Speaker 03: So, well, I think we need to make a distinction between an entitlement to pay and a statute that creates a settlement process. [00:03:24] Speaker 03: So a statute that creates a settlement process is going to have one of a few features. [00:03:28] Speaker 03: It's going to say who you submit the claim to, [00:03:31] Speaker 03: who makes the final determination about the administrative validity of the amount, and that includes not just are you eligible for this payment, but does it need to be offset by certain amounts such as, you know, if you look at the other permissions before and after the borrowing act sets forth the different kinds of offsets that will happen, you make these sorts of determinations. [00:03:51] Speaker 03: And you'll also see when the claim should be submitted. [00:03:55] Speaker 03: None of those features exist within 1413A. [00:03:58] Speaker 03: And that's important because when we've seen Congress displace the Bari Act, the examples provided in our brief include through the FLSA, which was discussed in the D.C. [00:04:08] Speaker 03: Circuit's case in that one versus Hinchman. [00:04:10] Speaker 03: We've seen them do that with respect to the Torrance Claims Act. [00:04:16] Speaker 03: Congress has been very explicit that they are either [00:04:19] Speaker 03: changing who is responsible for making the final determination about the amount due or when they must be submitted. [00:04:25] Speaker 03: Neither of those things exists in 1413A. [00:04:28] Speaker 03: And that silence is telling, because when Congress enacted section 1413A, it did so against the well-established backdrop of all claims for military compensation in the settling of the procedures of the Bar and Act. [00:04:41] Speaker 01: The criteria that you just identified for distinguishing between just an entitlement to pay and settlement of a claim, that makes sense to me. [00:04:49] Speaker 01: And you cite a bunch of executive branch authorities that seem to support it. [00:04:53] Speaker 01: Is there any case law that would say those are the things we look to to determine what kind of statute we're looking at? [00:05:00] Speaker 03: There's very little, Your Honor. [00:05:02] Speaker 03: This issue doesn't seem to come up very often, in part because it is, at least in the military [00:05:12] Speaker 03: The Department of Defense has the responsibility for resolving and finally determining amount due when it comes to personnel claims. [00:05:18] Speaker 03: You know, the broad categories under 3702A1, military pay, retired pay, equivalent pay, all of those can be properly be sort of classified as personnel claims, claims arising out of someone's employment or former employment about the amount of money that's due to them. [00:05:34] Speaker 03: when that's displaced has not arisen that I'm aware of in part because it is very well established. [00:05:41] Speaker 03: And if Congress were to try to have a new regime and to make it a different, to have a different scheme of life, we'd do so expressly. [00:05:51] Speaker 03: The one thing that comes to mind to me, Your Honors, is in Eucerica, Congress made very clear that the apparent system [00:05:59] Speaker 03: protection board shall consider claims without regard to a negative proof. [00:06:03] Speaker 03: And this court, in the Hernandez decision, cited that as an example of the kind of language that would displace a broader or general statute of limitations like the one in the Barring Act. [00:06:13] Speaker 03: Again, there's nothing like that. [00:06:15] Speaker 01: The district court, I think, looked specifically at Hernandez, at least at the motion for judgment on the pleading stage, and said, [00:06:21] Speaker 01: it supports the plaintiffs here. [00:06:24] Speaker 01: Isn't that correct? [00:06:25] Speaker 03: The district court did say that. [00:06:26] Speaker 03: That's wrong for the following reason. [00:06:29] Speaker 03: So the district court was correct that this court in Fernando said a more specific statute can displace a more general statute. [00:06:36] Speaker 03: We don't disagree with that. [00:06:37] Speaker 03: The problem is there's no equivalent language in 1413A as the language of Lucera. [00:06:44] Speaker 03: Nothing in [00:06:46] Speaker 03: 1413A says the Department of Defense shall settle claims for back pay without regard to when they accrued. [00:06:52] Speaker 03: If that language were there, I don't think we would be here arguing that the six-year special litigation applies. [00:07:00] Speaker 03: I think that we have very clear congressional command to consider claims for back pay regardless of when they accrue. [00:07:04] Speaker 03: We don't have that language here. [00:07:06] Speaker 03: The district court went on to say, well, maybe we can infer from the Department of Defense's program guidance that there's no statute of limitations. [00:07:15] Speaker 03: There's a couple problems with that. [00:07:17] Speaker 03: One is that's not the Texas statute. [00:07:19] Speaker 03: Two is that program guidance was enacted pursuant to the Department of Defense's understanding that it's authority to resolve things for back pay comes from the Barring Act. [00:07:32] Speaker 02: Also on that point, if Congress could displace the Barring Act by just directing the agency to promulgate regulations, [00:07:43] Speaker 02: wouldn't that also mean the agency could establish whatever statute of limitation it wanted? [00:07:47] Speaker 03: That's another problem with the district court's reasoning here, Your Honor. [00:07:52] Speaker 02: Again, I... So, I mean, it seems to be a hole to me if Congress hasn't specified a statute of limitation, but yet this is read as specific enough to displace the Farring Act because [00:08:06] Speaker 02: it allows the agency to determine the procedures, then the agency could set the statute of limitations out one day or a hundred years, which seems, I mean, so illogical in our system of law that Congress couldn't have intended that. [00:08:19] Speaker 03: I agree, Your Honor, and I would also emphasize that Congress and the case law about the bar [00:08:26] Speaker 03: expressly provides that it can only be waived under its very terms. [00:08:30] Speaker 03: So if the Baring Act applies, the only time you can have a tolling of the special limitations or a waiver of the special limitations is under its expressed terms. [00:08:38] Speaker 03: So it would be very strange indeed to say that the agency could overcome that through regulation. [00:08:42] Speaker 02: Can I ask you another hypothetical, which is there's some argument that the Baring Act doesn't apply not because of the displacement, but on its terms because it talks about retired pay. [00:08:54] Speaker 02: I understand your arguments on that, that it doesn't have to be actually retired pay, it has to be related to retired pay. [00:09:00] Speaker 02: But here's what I want to ask you. [00:09:01] Speaker 02: If we agreed with your friends that the Barring Act doesn't apply because this doesn't deal with retired pay, but we agreed with you that this statute does not specifically give settlement authority, [00:09:14] Speaker 02: Where would we be for these claims? [00:09:17] Speaker 03: So, as I think, as we try to explain in our briefs, the question of whether this is retired care or not really isn't outcome determinative. [00:09:24] Speaker 03: I would point your honors to the very first sentence of 3702A, which says that all claims against the United States shall be settled as follows. [00:09:33] Speaker 03: So the six-year statute of limitations applies to all claims except this provided under another law. [00:09:38] Speaker 02: So the question then is really not [00:09:41] Speaker 02: whether the barring act applies to all claims, it would just be a determination of which agency under those, or which entity, and so maybe there might be an argument that it's not DOD because it's not retired pay, but it has to be decided by one of them. [00:09:58] Speaker 03: A1 through A4 detail who is the official responsible for making the final determination of specific types of claims. [00:10:06] Speaker 02: So let me take it one further step. [00:10:08] Speaker 02: Let's just assume for purposes that we agree that all claims is further defined by all of those subcategories, and that we decide this doesn't fit in any of those subcategories. [00:10:19] Speaker 02: But yet, I know this is pushing it to the limits of the logic, but I'm a little curious about what would happen here. [00:10:25] Speaker 02: So the Varring Act doesn't apply. [00:10:27] Speaker 02: because it doesn't fit within any of these categories, but we also agree with you that this is not self-executing. [00:10:34] Speaker 02: What happens if they don't get the money they think they deserve? [00:10:37] Speaker 02: Can they just file in a Tucker Act claim based upon this being a money-mandating statute? [00:10:44] Speaker 02: So, I mean, it doesn't seem to be a money mandating statute either. [00:10:48] Speaker 03: Two responses, Your Honor. [00:10:50] Speaker 03: The first is, I understand the premise of the question is to push back against our framing of this, but I just want to emphasize that the last subsection A4 says, [00:11:00] Speaker 03: All other claims are not otherwise provided for, so it's a catch-all provision. [00:11:05] Speaker 03: So there isn't really going to be a world in which no official has responsibility. [00:11:08] Speaker 02: The barring act has to apply. [00:11:10] Speaker 02: If it's a claim against the United States that is not otherwise provided for by a more specific statute, then the barring act has to apply. [00:11:19] Speaker 03: So we would never be faced with a situation where no official has the ability to settle a claim against the United States. [00:11:24] Speaker 03: There's always going to be someone [00:11:25] Speaker 03: And as we've explained in our briefs, even if you think this isn't the kind of claim involving retirement that would be covered under 8-1, it's still a claim against the United States that the Office of Management and Budget has delegated to the Department of Defense to settle anyway. [00:11:41] Speaker 02: So if we agree that the compensation statute is not specific enough to be a displacement, [00:11:48] Speaker 02: then the Varring Act has to apply in this discussion about whether it fits into retired pay or not. [00:11:54] Speaker 03: That's why the only question really is whether 1413A is enough to displace the Varring Act. [00:11:59] Speaker 03: The second point I wanted to raise was, and I think this underscores the flaws in the district court's analysis here, [00:12:07] Speaker 03: Because there's nothing in 1413A that talks about back player pay or how much back pay or how far back back pay goes, it would be difficult to imagine that it mandates the department to consider claims no matter how far back that they go. [00:12:21] Speaker 03: And I see a cut in time at bottle time. [00:12:23] Speaker 03: I'm happy to continue answering questions if you have any otherwise I'd like to observe the remainder of my time. [00:12:38] Speaker 00: Councilor Jones, correct? [00:12:45] Speaker 04: Good morning, Your Honor. [00:12:47] Speaker 04: I'm Simone Jones, here on behalf of a class of incredibly deserving military veterans that brought this case. [00:12:54] Speaker 04: These are veterans who were both injured in combat and who retired from the military service, either because their disabilities prevented further military service or they had served at least 20 years. [00:13:07] Speaker 04: Defendant found that these veterans are in fact entitled to combat related special compensation, also known as CRSC. [00:13:14] Speaker 02: What specific language in 1413 or anywhere in the statute tells us who is to decide these claims? [00:13:24] Speaker 04: Sure. [00:13:24] Speaker 04: So if you go to 1413A, it specifically says that [00:13:31] Speaker 04: And just to level set, Your Honor, and I think you raised this in the... No, can you just go on what you were saying? [00:13:39] Speaker 02: What is the language that says, this entity shall decide claims under this section? [00:13:45] Speaker 04: Sure. [00:13:46] Speaker 04: So the CRNC statute provides in Section 1413A, the opening, that the Secretary of Defense shall pay to each eligible... No, no, no, no, no. [00:13:56] Speaker 02: That's not what I'm asking for. [00:13:57] Speaker 02: I'm not asking for work. [00:13:59] Speaker 02: the eligibility or that the secretaries would pay, the specific language on who has the authority to settle a claim. [00:14:08] Speaker 04: So the case law provides that to settle a claim means to make an administrative determination regarding the validity of that claim. [00:14:15] Speaker 04: And which language says the secretary... So 1438 says that, expressly states that the CRSC benefits are determined under subsection B of the statute. [00:14:26] Speaker 04: And if you walk through subsection B of the statute, it provides the ways that are instructed on determining the administrative validity of those claims. [00:14:37] Speaker 04: So you have, for example, subsection B, which provides the parameters for determining the amount of monthly benefits. [00:14:44] Speaker 02: Does any of that language say the Secretary of Defense shall make a final decision on the claims or the Secretary of Defense has the authority to adjudicate these claims or anything like that? [00:14:56] Speaker 04: The language says that it provides that the Secretary of Defense can use those parameters to make determinations on CRSC claims. [00:15:07] Speaker 02: How is that specific enough to displace the Barring Act? [00:15:10] Speaker 04: Well, given that the Barring Act says that, given that the Barring Act only applies if there's no other law, that... But that other law has to have specific authority to adjudicate or otherwise settle a claim. [00:15:25] Speaker 02: And I don't, I think, I mean, I've asked you, I know, I know, you're doing your best to point to the language you think supports you. [00:15:32] Speaker 02: I think there is no language that states it in the way I'm asking it for it to be stated, correct? [00:15:38] Speaker 02: There's no language that says the Secretary of Defense has the authority to adjudicate these claims. [00:15:44] Speaker 02: Otherwise, administrators settle these claims, make a final decision, or anything like that. [00:15:49] Speaker 04: There is that language. [00:15:53] Speaker 02: You can disagree that that's what's required, but is there any language that contains any of those kind of three terms I've used about settle, issue a final decision, adjudicate? [00:16:04] Speaker 04: So there is language in the CRSC statute that provides the secretary that deals with procedures and that deals with the exact [00:16:15] Speaker 04: specifics that you're asking about here. [00:16:19] Speaker 04: And it directs, and when you look at the guidance, so the 2004- I don't want to talk about the guidance. [00:16:23] Speaker 02: I don't think that Congress can waive sovereign immunity and get you out of the Barring Act by telling the agency to promulgate regulations. [00:16:31] Speaker 02: You can disagree about that, but that's not what I'm interested in. [00:16:33] Speaker 02: I'm interested in the specific language of the statute that provides the authority that would displace the Barring Act. [00:16:41] Speaker 00: Counselor, let's take a look at 10 USC 1413A. [00:16:45] Speaker 00: Yes, Your Honor. [00:16:47] Speaker 00: And this is a CRNC statute. [00:16:50] Speaker 04: Yes. [00:16:50] Speaker 00: And it starts off by saying the secretary shall pay to each eligible and then it goes on into other provisions saying that the secretary will determine the amount, set the maximum amount, what it can exceed, what not, what type of reductions, retired pay that's applicable. [00:17:07] Speaker 00: When the term secretary is used, who is that referring to? [00:17:12] Speaker 00: The secretary of what? [00:17:13] Speaker 04: The Secretary of the Department of Defense. [00:17:16] Speaker 00: Okay. [00:17:17] Speaker 00: Then wouldn't you say that the statute defines, first of all, the Secretary of Defense as the agency and the administrative authority that would settle these claims? [00:17:31] Speaker 04: Yes. [00:17:33] Speaker 00: Okay. [00:17:34] Speaker 02: But pay is not settled, right? [00:17:36] Speaker 02: The problem with your argument is it proves too much because there are pay statute littered throughout the United States code dealing with military people and with civilians that are still covered by the Warren Act, right? [00:17:50] Speaker 04: Respectfully, Your Honor, I don't think that this is pay. [00:17:53] Speaker 04: This is compensation. [00:17:54] Speaker 02: You didn't answer my question. [00:17:55] Speaker 02: This is a class compensation that the... Well, if you don't think it's pay, then how does the word shall pay give you enough settlement authority? [00:18:04] Speaker 02: If I don't think that it's paid, how does... All these other statutes talk about the secretary shall pay, you know, this annual salary. [00:18:18] Speaker 02: I'm just saying, there are hundreds of eligibility requirements or pay requirements or anything that use the word pay to determine eligibility. [00:18:30] Speaker 02: That has not ever been shown to be enough to displace the barring act, which requires a specific identification of who can actually adjudicate a claim. [00:18:43] Speaker 04: So again, I think that the CRS- Let me just ask you. [00:18:47] Speaker 02: And just please try to answer my hypothetical this time. [00:18:51] Speaker 02: I understand you disagree with my legal argument point, but if I'm correct that to displace the barring act, you need something more than shall pay an eligibility requirement, that you need a specific statement of who gets to adjudicate the claim. [00:19:09] Speaker 02: In those words, then we don't have this in the barring act, right? [00:19:17] Speaker 04: the specific words that you just said, correct. [00:19:22] Speaker 02: Okay. [00:19:22] Speaker 02: I appreciate your candor and answering a hypothetical. [00:19:26] Speaker 04: Sure. [00:19:26] Speaker 04: But again, I would disagree that those words are what are required in order for the CRSD statute to displace the barring act. [00:19:35] Speaker 02: Can you give us an example where the barring act has been displaced with less than those words? [00:19:41] Speaker 04: Well, so [00:19:45] Speaker 04: I admit that I'm not entirely versed on all of the military pay statutes that are out there. [00:19:53] Speaker 04: Or statutes that were displaced in the Barring Act. [00:19:55] Speaker 02: Do you have a case where any court has said the Barring Act is displaced with less than clear language about who can adjudicate? [00:20:04] Speaker 04: Well, I do have case law, because it seems like the government is focused on the absence of the word settlement. [00:20:11] Speaker 04: Because just looking at comparing the Barring Act and comparing the CRSC statute, there's really not much distance between those statutes. [00:20:19] Speaker 04: What's interesting here is that the government focuses its argument on this settlement language. [00:20:25] Speaker 04: The case law does say that settlement to settle... Can you get to the point? [00:20:30] Speaker 02: I ask you, do you have case law that suggests that something less than these formal words requiring adjudication, settlement, final decision, or the like are sufficient? [00:20:41] Speaker 04: Actually, I do have case law that says that the word settle is not required in order to displace the barring act. [00:20:50] Speaker 04: That's going to be the Hernandez case. [00:20:52] Speaker 02: But the Hernandez case doesn't help you because the Hernandez case specifically notes that the USERA statute gives the MSPB the authority to adjudicate these clients. [00:21:02] Speaker 02: It identifies the entity that's the adjudicator. [00:21:05] Speaker 04: There's also the Braun case, which relies on another law provision in the preamble of Section 3702, even though the other laws that created the right to action, those laws, namely the Social Security Act and the Privacy Act, did not contain the word 7. [00:21:23] Speaker 02: But did they otherwise identify who would adjudicate the claims? [00:21:32] Speaker 04: Then I would have to confirm. [00:21:34] Speaker 02: But the case law says... Well, I'm sure your friend on the other side will have an answer for that. [00:21:39] Speaker 02: I mean, that's the whole point of this line of cases is the Barring Act is displaced if another statute identifies another entity or another way to adjudicate claims. [00:21:51] Speaker 04: Right. [00:21:52] Speaker 02: And we would posit that the CRSC statute does provide those... But you don't have any cases that say you can do it by inference. [00:22:00] Speaker 02: when you just have words like shall pay and the eligibility criteria and like. [00:22:05] Speaker 02: The cases that I'm aware of all have some indication of this specific entity, this agency, this court forum has the right or that's how you adjudicate the claims, right? [00:22:19] Speaker 02: That's what all those cases that I've read say. [00:22:22] Speaker 04: Right, and the cases that I've read have defined, have said that to settle a claim means to administrative determine the validity of that claim. [00:22:30] Speaker 04: That's what settlement means. [00:22:31] Speaker 04: And the CRSC statute allows for that. [00:22:34] Speaker 04: And it's interesting, because when you look at the CRSC statute, and compare it to even the Barring Act, well, let me take a step back. [00:22:43] Speaker 04: It seems like the defendant, and at the district court level, I think defendant agreed with that definition that I just provided regarding settlement, that the case law provides. [00:22:54] Speaker 04: Defendant now seems to be taking this position that [00:22:59] Speaker 04: defendant now seems to be taking this position that in order for there to be sufficient settlement authority for a statute to have the mechanisms to settle, you have to have these calculations or these equations to get to the precise amount of benefits to which [00:23:24] Speaker 04: to which a veteran is owed. [00:23:26] Speaker 04: But again, in making that argument, the defendant wholly ignores the Adams v. Hinchman case, which provided the definition of settlement that I provided here today. [00:23:36] Speaker 04: In addition, the defendant's own position is internally inconsistent. [00:23:43] Speaker 04: The Barring Act doesn't include even mathematical equations. [00:23:47] Speaker 04: Counsel for the defendant referenced how the statute would need to include, and the defendant discusses this in its brief as well, how the statute would need to include calculations sufficient to [00:23:58] Speaker 04: regarding alimony and chalice of court, and ways to calculate offsets for other debts owed to the United States. [00:24:06] Speaker 04: But that argument is absurd, particularly when you look at the statutes that the defendant itself cites, including the federal torts claim act. [00:24:16] Speaker 04: That level of detail is not even there, and it's not in the bar. [00:24:19] Speaker 02: Well, I understand that. [00:24:21] Speaker 02: But the problem I'm still having is, [00:24:24] Speaker 02: that there are an awful lot of statutes that look like this statute. [00:24:30] Speaker 04: Including the Barring Act? [00:24:31] Speaker 02: No, no, no, no. [00:24:32] Speaker 02: The Barring Act doesn't establish eligibility criteria for entitlement to something. [00:24:39] Speaker 02: The Barring Act just says who gets to settle them and what the rules are. [00:24:45] Speaker 02: What I'm saying is there are hundreds and hundreds of statutes that establish eligibility for payments from the United States. [00:24:54] Speaker 02: And the logic of your argument is if those statutes say an agency official can determine how much is to be paid under this eligibility criteria, then the barring act is displaced and there will be no statute of limitations. [00:25:09] Speaker 02: This opens up the United States to lawsuits under almost every kind of compensation statute [00:25:17] Speaker 02: without statute of limitations. [00:25:19] Speaker 02: And that reading of this statute, it would just create absurd results if we don't apply the Barring Act, which is the commonly understood statute of limitations, unless it's otherwise specified. [00:25:32] Speaker 04: Right, and I think that the Barring Act and its six-year statute of limitations was enacted in 1997. [00:25:40] Speaker 04: The CRSC statute came around six years later, in 2003. [00:25:45] Speaker 04: Had Congress intended to limit the time period that these particular well-deserving veterans had to follow their claims, Congress could have done so. [00:25:56] Speaker 02: I mean, isn't the opposite actually true? [00:25:58] Speaker 02: I mean, Congress understands generally that statute of limitations applies to claims against the government. [00:26:04] Speaker 02: So if they intend a statute of elimination not to apply, they say it like they did in Hernandez, that they say it's [00:26:13] Speaker 02: you know, without regard to when the claim was filed. [00:26:17] Speaker 02: I think it's the opposite presumption to say that Congress didn't intend a statute of limitations to apply unless they said it. [00:26:26] Speaker 04: Yeah, and I respectfully disagree on that point, Your Honor. [00:26:30] Speaker 04: I think that CRSC benefits are a special type of benefits. [00:26:35] Speaker 04: They're awarded to a special category of veterans. [00:26:39] Speaker 01: Can I ask you, you had a whole other argument, I think, at the district court level about the wartime exception. [00:26:46] Speaker 01: I think the district court didn't reach it. [00:26:48] Speaker 01: The government has responded to it. [00:26:50] Speaker 01: Are you persuaded by them, or is that still an alternative basis you're arguing for affirmance here? [00:26:55] Speaker 04: Yes, Your Honor. [00:26:56] Speaker 04: We are still arguing that argument. [00:26:59] Speaker 04: I hear defendants and I read defendants' argument, but at the end of the day, the statute says what the statute says, and the statute here says members of our armed forces. [00:27:11] Speaker 04: to the extent that there is any discrepancy with that language, then that has to be, pursuant to the case law, resolved in favor, interpreting that language, resolved in favor of veterans. [00:27:24] Speaker 04: The pro-veteran. [00:27:25] Speaker 01: The pro-veteran case. [00:27:26] Speaker 01: Are there any cases that analyze what the language you disappointed from the statute means in this context? [00:27:34] Speaker 04: There is one case. [00:27:44] Speaker 04: There's an Armstrong versus Archer ladder case where the court said on his face [00:27:56] Speaker 04: Subsection B2 was enacted to protect service members at war whose planes might otherwise be compromised by their military service. [00:28:04] Speaker 04: For this reason, war veterans were and are given additional time to file any claim against the United States after the secession of hostilities. [00:28:14] Speaker 04: So I think that a war veteran would not be considered to be active military. [00:28:21] Speaker 00: Counselor, you run out of time. [00:28:22] Speaker 00: Do you want to conclude? [00:28:24] Speaker 04: Sure. [00:28:25] Speaker 04: So, as I indicated, CRSC benefits are a special form of compensation that Congress has decided to award to particularly deserving veterans. [00:28:39] Speaker 04: These are veterans, these are men and women who were injured in combat defending this country. [00:28:46] Speaker 04: In that regard, the country owes these combat disabled veterans the highest debt [00:28:52] Speaker 04: It therefore is not surprising that Congress chose not to limit the time period that these veterans have to bring their claims, particularly given their circumstances and the types of conditions that they're suffering from. [00:29:13] Speaker 04: The defendant has fought this case for more than six and a half years. [00:29:17] Speaker 04: at every turn, even after the district court denied the defendant's motion for summary judgment on the pleadings, after finding that the Barring Act does not apply to CRS and claims, and even though the district court correctly granted summary judgment in favor of a plaintiff for that very reason. [00:29:38] Speaker 04: Throughout this case, the defendant has changed its positions. [00:29:42] Speaker 04: It's gone from saying that the CRSC, it initially argued, in the face of language to the contrary, the CRSC benefits are a retired, are in fact, retired pay. [00:29:57] Speaker 04: The defendant has morphed its argument, and now it's falling back on this another law provision. [00:30:02] Speaker 04: But notwithstanding the mental gymnastics that the defendant asks this court to jump through, to find in its favor, the fact still remains, and the law supports, [00:30:12] Speaker 04: that the Barth Act and it by extension it's six year statute of limitations does not apply to CRC claims. [00:30:19] Speaker 00: Okay, thank you very much. [00:30:29] Speaker 00: We're going to restore you back to the five minutes of time. [00:30:33] Speaker 03: Thank you, Your Honor. [00:30:34] Speaker 02: Can you just respond directly to the point that the statute says the secretary shall pay and sets out the conditions and procedures for paying it? [00:30:46] Speaker 02: Why isn't that enough? [00:30:47] Speaker 03: Well, Your Honor, as I think Councilor Featherstein has agreed with us, that pay is different from an administrative determination of the up-do. [00:30:56] Speaker 03: The words shall pay establish that [00:30:59] Speaker 03: eligible combat-related disabled veterans have entitlement to pay on a recurring basis once it has been determined that they have a disability, that the disability is combat-related. [00:31:11] Speaker 03: But it doesn't tell us what matters regarding that purpose, which is [00:31:16] Speaker 03: who is responsible for adjudicating the amount that is owed to them, making a final administrative determination that that amount is valid. [00:31:24] Speaker 00: Why is it not that the Department of Defense manual, as we refer to it, the Financial Management Regulation Manual, doesn't that set out a pretty straightforward procedure on how a member is going to be paid? [00:31:46] Speaker 03: The financial – I was probably sure that we're talking about the same thing. [00:31:49] Speaker 00: I mean, it starts off by identifying that it's the – the Secretary is the Secretary of the Department of Defense. [00:31:56] Speaker 00: And then it says, shall prescribe procedures. [00:31:59] Speaker 00: And here's a whole slew of procedures in the manual on how this system is going to work. [00:32:06] Speaker 03: So I think it's important for us to separate two questions, both of which are relevant here. [00:32:12] Speaker 03: One is the question of whether someone is eligible for CRSC. [00:32:16] Speaker 03: That's a yes or no determination. [00:32:18] Speaker 03: Congress provided a 1413 AED. [00:32:21] Speaker 03: The Secretary of Defense shall make procedures to make that determination. [00:32:25] Speaker 03: Putting it, there are a lot of veterans, there are a lot of veterans with disabilities. [00:32:28] Speaker 03: Someone has to make the first determination about whether those disabilities are combat related or not. [00:32:33] Speaker 03: Congress provided the Secretary of Defense to make procedures to make that determination. [00:32:37] Speaker 03: The second question, and this is all we're fighting about here, because of course we agree that everyone in this class is a combat-related eligible veteran. [00:32:46] Speaker 03: The second question is how much is owed to each of these individual people? [00:32:51] Speaker 03: Not just on a recurring basis, how much needs to be paid pursuant to applying the 1413A standards for pay, but how far back do we go? [00:32:59] Speaker 03: What's the amount that's offset for that? [00:33:01] Speaker 03: You know, is it valid? [00:33:03] Speaker 03: Do they elect other sorts of benefits that would be a dual compensation problem? [00:33:08] Speaker 03: There are all sorts of compensation calculations that go into this determination, and the Bar and Act provides the authority to adjudicate that and make the final determination. [00:33:18] Speaker 00: You're making a lot of policy argument. [00:33:21] Speaker 03: I'm actually just trying to explain how this works in the ordinary course. [00:33:24] Speaker 00: You want me to decide the case on the size of the administrative burden that the agency would be taking on if we went this way or that way? [00:33:33] Speaker 03: That's not... I was actually just trying to explain how this works in the ordinary course, because if plaintiffs here are correct, that merely by saying shall pay, [00:33:43] Speaker 03: the following individuals. [00:33:46] Speaker 03: That would be, that would displace the barring act with respect to every form of compensation that exists. [00:33:52] Speaker 03: And that's obviously not what Congress intended because it expressly provided these kinds of compensations as being the sorts of things that are covered in the barring act. [00:34:00] Speaker 02: Are you aware of any cases where any court has found the barring act displaced by something like shall pay with criteria? [00:34:10] Speaker 03: I am not. [00:34:13] Speaker 03: Yeah, I'm not aware of any case that would sound like the Barring Act displaced by Shalke. [00:34:21] Speaker 03: The few cases that I'm aware of actually refer specifically to a different statute of limitations or a different adjudicator. [00:34:28] Speaker 03: So earlier, the Social Security Act was mentioned. [00:34:31] Speaker 03: One of the things that makes the Social Security Act is separate from the statute is it spells out [00:34:38] Speaker 03: that claims go to administrative law judges, and then the appeals. [00:34:41] Speaker 03: And there's a final determination from those appeals by the secretary of HHS. [00:34:47] Speaker 03: And that is a very specific procedure of how would you make a final determination. [00:34:52] Speaker 01: Just one other question. [00:34:53] Speaker 01: You repeatedly say in your briefs that the members of the class have an administrative process where they could have brought these claims rather than go to district court. [00:35:01] Speaker 01: Is there any legal relevance to that point? [00:35:06] Speaker 03: The legal relevance to that point is the process that applies for appeals to claims for CRSE is the same process that applies to other forms of compensation. [00:35:18] Speaker 03: And if you look to 32 CFR parts 281 and 282, that is the claim settlement process that the Department [00:35:30] Speaker 03: And so the fact that there is this appeals process at least shows that we've always, from the start, understood combat-related compensation claims are authority to settle those claims, are authority to pay back, and to come from the Barring Act and Dr. 1413A itself. [00:35:44] Speaker 03: Thank you. [00:35:46] Speaker 03: Thank you, Your Honor. [00:35:47] Speaker 00: Thank you very much. [00:35:49] Speaker 00: We thank the parties for their arguments, and we'll take this case under advisement.