Argument Preview / Panel Activity

This week we are previewing four cases being argued next week at the Federal Circuit that attracted amicus briefs. Today we highlight a veterans case, Rudisill v. Wilkie. In this case, the Secretary of Veterans Affairs appeals a decision of the Court of Appeals for Veterans Claims, arguing it “misinterpreted the plain language of 38 U.S.C. §§ 3322 and 3327 in holding that the election provisions expressly contained therein [related to educational assistance benefits] do not apply to Mr. Rudisill because he had multiple periods of qualifying service.” This is our argument preview.

In his opening brief, the Secretary of Veterans Affairs argues that, “[i]n this case, the Veterans Court’s decision is predicated on its misinterpretation of 38 U.S.C. § 3322 and erroneous disregard of 38 U.S.C. § 3327, statutes which govern the coordination of education benefits under multiple programs, including specifically the Montgomery GI Bill (MGIB) and the Post-9/11 GI Bill (Post-9/11) that are at issue in this case.”

In particular, the Secretary contends that the “only question that is and has ever been at issue is how many months of Post-9/11 education benefits Mr. Rudisill is eligible to use.” The Secretary maintains that Congress answered this question in 38 U.S.C. § 3327(d)(2)(A) by stating that “the number of months of entitlement of the individual to educational assistance under [Post-9/11] shall be the number of months equal to the number of months of unused entitlement of the individual under [MGIB], as of the date of the election.” However, “the Veterans Court did not follow Congress’s explicit directive; indeed, the majority ‘never g[o]t to’ this language or § 3327 at all.”

In his response brief, Rudisill argues first that the court lacks jurisdiction because the Secretary received the Solicitor General’s authorization of this appeal after the notice-of-appeal deadline. On the merits, he contends “[t]he plain language of the statutory scheme and the Secretary’s own implementing regulations support the Veterans Court’s interpretation.” Further, he argues, “the Secretary’s interpretation leads to absurd, inequitable, veteran-unfriendly results, indicating it cannot be what Congress intended.”

In reply, the Secretary asserts that all of the statutory elements for jurisdiction have been met. On the merits, the Secretary maintains that “Mr. Rudisill does not dispute that §3327(d)(2)(A) unambiguously limits ‘the number of months of entitlement’ to Post-9/11 benefits for individuals who have ‘used, but retain[] unused’ MGIB benefits when they elect to use Post-9/11 benefits, to ‘the number of months of unused entitlement of the individual under’ MGIB.”

National Veterans Legal Services Program and Veterans Education Success filed an amicus brief in support of Rudisill. In it, they argue that “the history and purposes of the many GI Bill programs established by Congress, dating back to World War II, support veterans’ right to dual earned benefits, as does the fundamental canon that requires construing legislation in favor of veterans’ interests.”

Oral arguments will be heard Wednesday, December 9. We will keep track of this case and report on any developments.