Last week the Federal Circuit issued its opinion in Rudisill v. McDonough, a veterans case we have been following because it attracted an amicus brief. In this case, the Federal Circuit quoted the Court of Appeals for Veterans Claims as explaining that “‘the precise question the Court must answer in this appeal is: how does the law treat a veteran who qualifies for the Montgomery GI Bill under one period of service and the Post-9/11 GI Bill under an entirely separate qualifying period or periods of service?’” At the Federal Circuit, Judge Newman authored a majority opinion affirming the decision of the United States Court of Appeals for Veterans Claims, which disagreed with the Board of Veterans Appeals on this question. The panel held that “each period of service earns education benefits, subject to its cap of 48 aggregate months of benefits.” Judge Dyk concurred in part and dissented in part, disagreeing with the panel’s holding regarding education benefits. This is our opinion summary.
The appellant in this case was the Secretary of Veterans Affairs. The Secretary argued that “the Veterans Court’s decision [in Mr. Rudisill’s favor] 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.” On the other side of the case, the appellee, Rudisill, argued first that the court lacked jurisdiction because the Secretary received the Solicitor General’s authorization of this appeal after the notice-of-appeal deadline. Second, on the merits, Rudisill contended that “[t]he plain language of the statutory scheme and the Secretary’s own implementing regulations support the Veterans Court’s interpretation.” Rudisill argued, moreover, that “the Secretary’s interpretation leads to absurd, inequitable, veteran-unfriendly results, indicating it cannot be what Congress intended.”
As mentioned, Judge Newman wrote the opinion for the panel, which affirmed the Court of Appeals for Veterans Claims and ruled in favor of Rudisill. Judge Newman summarized the relevant facts as follows:
James R. Rudisill served three periods of active duty military service. . . . He applied for and duly received 25 months and 14 days of education benefits in accordance with the Montgomery GI Bill, 38 U.S.C. § 3011(a), for completion of his college degree.
After his third period of Army service, he applied for education benefits under the Post-9/11 GI Bill, 38 U.S.C. § 3311. . . . The Department of Veterans Affairs (“VA”) determined that he was entitled to the Post-9/11 benefits, but only for the remaining 10 months and 16 days of the 36 months authorized for Montgomery benefits. The VA held that he was not entitled to benefits beyond a total of 36 months.
Mr. Rudisill appealed to the Board of Veterans’ Appeals (“BVA”), seeking education benefits up to the statutory cap of 48 months for multiple terms of service. The BVA sustained the VA’s ruling that Mr. Rudisill’s total benefits were limited to the unused period of his 36-months entitlement under the Montgomery GI Bill.
Concerning the statutory cap of 48 months of aggregate benefits, the BVA acknowledged that “[w]here an individual is eligible for two or more education programs, the aggregate period for which any person may receive assistance may not exceed 48 months.” But the BVA held as to Mr. Rudisill that “[t]here is no provision authorizing 12 additional months of entitlement under [38 U.S.C.] Chapter 33 on top of 36 total months of combined benefits under [38 U.S.C.] Chapter 30 and Chapter 33. . . .
On Mr. Rudisill’s appeal, the Veterans Court reversed the BVA and held that the veteran is entitled to education benefits for each of his periods of separately qualifying service, and that he is entitled to the aggregate cap of 48 months of benefits.
The panel’s opinion first addressed the issue of jurisdiction, and then it addressed the merits.
First, the Federal Circuit found “that the jurisdictional requirement for filing this appeal was met by the filing of the notice of appeal by the Attorney General within 60 days, and its subsequent approval by the Solicitor General.” For support, the court cited a Sixth Circuit case, Hogg v. United States, where the court reasoned “‘that the “Attorney General has plenary power over the conduct of litigation to which the United States is a party’ and a ‘regulation defining the jurisdiction of the Solicitor General’ does not ‘foreclose the Attorney General from directing that a notice of appeal be filed,’ thereby meeting the jurisdictional requirements.” The Federal Circuit concluded that it “discern[ed] no reason to depart from this rationale.”
Second, on the merits, the Federal Circuit considered numerous statutory provisions. The Secretary cited 38 US.C. § 3327(d)(2), which states that “the number of months of entitlement of the individual to educational assistance under this chapter shall be the number of months equal to—(A) the number of months of unused entitlement of the individual under [the Montgomery GI Bill] as of the date of the election.” The court, however, determined that “legislation explicitly provides additional benefits to veterans with multiple periods of qualifying service.” The court referred to 38 U.S.C. § 3695(a), which states that “[t]he aggregate period for which any person may receive assistance under two or more of the provisions of law listed below may not exceed 48 months.” Based on this latter provision, the panel held that “the Veterans Court correctly held that each period of service earns education benefits, subject to its cap of 48 aggregate months of benefits.”
In his concurring/dissenting opinion, Judge Dyk agreed with the majority’s determination that it had jurisdiction. He, however, dissented from the majority’s findings on the merits, contending them to be “directly contradictory to the statute.” According to Judge Dyk, “§ 3327 unambiguously limits the educational benefits available to all veterans.” But, he said, here “the majority construes § 3327(d)(2) as applying only to veterans with dual eligibility based on a single period of service, and not to veterans like Mr. Rudisill who have earned benefits for multiple periods of service.” According to Judge Dyk, “nothing in the language or history of the relevant statutes remotely justifies such an interpretation, and the majority indeed applies little effort to justify its interpretation.” He complained that “it is not our job to rewrite the statute to achieve a supposedly fair result.”