Argument Preview / En Banc Activity

Next week, in an en banc session, the Federal Circuit will hear arguments in Rudisill v. McDonough, a veterans case. The court will consider the question of a veteran’s statutory entitlement to education benefits under the Montgomery GI Bill and the Post-9/11 GI Bill. In particular, the court will consider two related questions: (1) “for a veteran who qualifies for the Montgomery GI Bill and the Post-9/11 GI Bill under a separate period of qualifying service, what is the veteran’s statutory entitlement to education benefits;” and (2) “what is the relation between the 48-month entitlement in 38 U.S.C. § 3695(a), and the 36-month entitlement in § 3327(d)(2), as applied to veterans such as Mr. Rudisill with two or more periods of qualifying military service?” This is our argument preview.

VA argues in its opening brief that “the Veterans Court erred when it wrested veterans with multiple periods of service from the very coordination provisions—the ‘good’ and the ‘bad’—that Congress enacted to address the dual entitlement such additional service enables.” VA explains that the veterans statute “expressly and unambiguously limits the statutory entitlement to Post-9/11 benefits based on how the veteran chooses to use his or her dual entitlement, not on how he or she earned it.” VA further argues the “Veterans Court erred when it imposed a further ‘single period of service’ condition . . . and thereby expanded Mr. Rudisill’s entitlement to Post-9/11 benefits beyond the limits Congress explicitly imposed.”

In response, Rudisill argues in his en banc brief that “a veteran entitled to the Montgomery and Post-9/11 GI Bills based on separate periods of qualifying service is entitled to 36 months of benefits under each program, subject only to [38 U.S.C.] § 3695(a)’s 48-month aggregate cap.” Rudisill further contends that “the relationship between § 3695(a) and [38 U.S.C.] § 3327(d)(2) is that the former limits the total months of benefits a veteran can receive under all programs listed in § 3695(a)(1)-(7) to 48, regardless of how many periods of qualifying service the veteran has, while the latter limits the months of Post-9/11 benefits a veteran can obtain for any single period of qualifying service when a veteran exchanges previously established Montgomery benefits for Post-9/11 benefits.”

In its reply brief, VA argues that “Mr. Rudisill’s entitlement to Post-9/11 benefits is limited to the number of months of his unused Montgomery benefits precisely because Mr. Rudisill voluntarily elected to use Post-9/11 benefits having ‘used, but retain[ed] unused’ Montgomery benefits.” VA further contends that “[Rudisill’s] argument tries to limit [38 U.S.C.] § 3327 as existing only to undo the election Congress mandated in § 3322(h)(1).” Moreover, says the government, “[this] approach is unsupported by logic, history, practical reality, or the language of either provision.” Thus, VA argues, “[t]his Court should reject [Rudisill’s approach] in favor of the straightforward application of the terms of an unambiguous statute.”

Two amicus briefs were filed, both in support of Rudisill:

  • In the first amicus brief, the National Veterans Legal Services Program argues 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.”
  • In the second amicus brief, several veterans impacted by the decision argue that “VA’s interpretation of 38 U.S.C. § 3327(d) harms veterans and military families by cutting down their months of benefits from 48 to 36 months.”

Oral argument in this case will be heard next week on Thursday, October 6. We will keep track of the case and report on any developments.