Last week, the Federal Circuit heard oral argument in Rudisill v. McDonough, an en banc veterans benefits case. In it, VA appeals the Court of Appeals for Veterans Claims determination that Rudisill qualified for Post-9/11 benefits under both the Montgomery and Post-9/11 GI Bills. The en banc court agreed to 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 recap.
Galina Fomenkova argued for the government. She began by asserting that the relevant statute’s plain language expressly limits statutory entitlement to Post-9/11 benefits based on how the veteran chooses to make his or her election. One judge asked what Congress would have had to say for veterans to qualify for both benefits. Fomenkova responded that Congress could have included an exception saying that veterans have dual entitlement, but Congress addressed only a single period of service, not two.
One of the judges asked if veterans are warned prior to elections that they might be forfeiting one set of benefits in favor of the other. Fomenkova responded by highlighting that, when veterans fill out the required form, the form warns them that by electing certain benefits they may be limiting others. Moreover, she stated, that election is irrevocable.
The questioning then transitioned from statutory interpretation to precedent regarding veterans’ participation in overlapping programs. Fomenkova asserted that the Montgomery and Post-9/11 programs are distinct, not overlapping, and thus this case presents a unique situation. One judge countered that preventing Rudisill from obtaining benefits from both programs is contrary to the purpose of the GI Bills because he has paid his dues via his service. In response, Fomenkova argued that the court should look to the language of the statute and asserted that all benefits are inherently limited by having the 36-month cap. Further, she emphasized that Rudisill’s election was voluntary.
Timothy McHugh appeared for Rudisill. McHugh began by arguing that veterans lose benefits only if they voluntarily exchange them for others, which Rudisill did not. One judge asked if 38 U.S.C. § 3327 applies only to conversion or exchange of entitlement based on the same period of service. McHugh responded that the plain language of the statute permits veterans to use the same service in both programs after they have exhausted one program. Moreover, he asserted, the statute does not say that an election is irrevocable.
One of the judges then asked what would happen to a veteran with a single period of service who used 10 months of benefits and sought to use Montgomery benefits. In response, McHugh argued that if a veteran has unused entitlement, that veteran can use the remaining balance for other benefits. Moreover, he said, Rudisill had separate, unused service that he could credit towards the Post-9/11 benefits. The judge then voiced a concern for veterans with multiple services applying for different benefit programs because of the difficulty in coordination under different chapters of the statute. McHugh argued in response that, absent any indication whether the benefit program applies to single or multiple periods of service, the different chapters help inform veterans whether they are entitled to different benefit programs. Along the same lines, McHugh argued that another indication that veterans should be permitted separately established entitlements is Congress’s longstanding practice for allowing separate entitlements. Moreover, he said, nothing in the language of the statute indicates that the government’s proposed limitation is present.
One judge then asked why Rudisill elected to receive Montgomery benefits before applying for the Post-9/11 benefits. In response, McHugh indicated that Rudisill believed that he would get more months than he actually received.
Finally, McHugh argued that the court should dismiss for lack of jurisdiction.
In rebuttal, Fomenkova asserted that 38 U.S.C. § 3327 is not an entitlement provision, but rather a provision for coordinating existing entitlements. Moreover, she said, once a veteran has qualified for benefits, that period of service does not establish a basis for another entitlement.
We will continue monitoring this case and report on developments.