Last week the Federal Circuit heard oral argument in four cases that attracted amicus briefs. One of them was a veterans case, Rudisill v. Wilkie. In this case, the Secretary of Veterans Affairs appealed 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 recap.
Galina I. Fomenkova argued for the Secretary of Veterans Affairs. Fomenkova opened by asserting that is was undisputed Mr. Rudisill used some, but not all, of his Montgomery benefits. She posited that the sole question, before VA and now this court, is how many months of post-9-11 benefits Mr. Rudisill may now receive. Fomenkova asserted that Congress in § 3327(d) answered this precise question by stating that individuals who had used some, but not all, of their benefits “shall be” entitled to the number of unused months from their Montgomery benefits.
Judge Dyk asked a few questions clarifying that Fomenkova’s position was that § 3327(d) applied both to veterans who had served one continuous period of service and multiple periods of service. Fomenkova answered that that was correct, and in particular that § 3327(d) specifically addresses veterans who have used some, but not all, of their Montgomery benefits irrespective of whether they started using those benefits from a continuous period of service or multiple blocks of service.
Timothy L. McHugh argued for Rudisill. Before he could begin his argument, however, Judge Dyk asked what § 3327(d) means, stating that it seems explicit one must exhaust their Montgomery benefits before moving on to the 9-11 benefits. McHugh argued that § 3327(d) applies to a veteran who desires to convert his or her existing Montgomery benefits to post 9-11 benefits based on one block of qualifying service. He further asserted that § 3327 is a permissive section that was meant to expand veteran benefits, not limit them.
Judge Dyk asked if McHugh agreed that Rudisill made an election under subsection § 3327(a), then why he was not limited by § 3327(d), which applies to those who have elected to receive benefits under § 3327(a). McHugh argued that Rudisill was described by subsection (a), but did not make an election under subsection (a). He asserted that entitlement had already been established, and that Rudisill was locked into a program and trying to convert his benefits to a different program. McHugh argued that, since Rudisill did not make an election, he had not chosen to limit himself under § 3327(d).
Before closing, McHugh asserted that the Federal Circuit does not have jurisdiction over the case because the Solicitor General did not timely authorize the Secretary’s appeal. McHugh argued that without an express delegation from the Solicitor General, the Secretary did not have the authority to bring the appeal.
In rebuttal, Fomenkova argued that this case starts and stops with § 3327(d). She asserted that § 3327(d) applies to those veterans described under § 3327(a) and that Mr. McHugh had just conceded that Mr. Rudisill met the definition under § 3327(a). Thus, she argued, the court should reverse.
We will keep track of this case and report on its disposition.