En Banc Activity / Opinions

Last week, the Federal Circuit decided Rudisill v. McDonough, a veterans case we have been following since the court scheduled an en banc hearing. The case presents the question of the relationship between the education benefits in the Montgomery GI Bill and the Post-9/11 GI Bill, and in particular whether veterans such as Mr. Rudisill with two or more periods of qualifying military service are entitled to 48 months of benefits. The court issued a majority opinion reversing the Court of Appeals for Veterans Claims, which had held that veterans are entitled to 48 months of benefits when they have multiple periods of qualifying service. According to the Federal Circuit, these veterans are entitled to a maximum of 36 months of benefits. Two judges, however, issued dissenting opinions agreeing with the Court of Appeals for Veterans Claims. Here is our summary of the court’s opinions.

The majority concluded that 38 U.S.C. § 3327 “applies to Mr. Rudisill and limits his Post 9/11 benefits to 10 months and 16 days, the amount of his unused Montgomery entitlement.” In other words, the court held that veterans such as Mr. Rudisill with two or more periods of qualifying military service are limited to 36 months of education benefits.

Judge Dyk, joined by Chief Judge Moore and Judges Lourie, Prost, Taranto, Chen, Hughes, Stoll, Cunningham, and Stark, wrote the majority opinion. He began by addressing the Rudisill’s argument that the court “lacks jurisdiction to consider this appeal because the government’s appeal was not properly authorized by the Solicitor General before the jurisdictional deadline.” According to Judge Dyk, “the Solicitor General is tasked with ‘conduct[ing], handl[ing], or supervis[ing]’ the determination of whether the government will appeal adverse decisions,” and “that supervision does not preclude the Assistant Attorney General from filing protective appeals pursuant to his broad grant of authority to conduct civil litigation on behalf of the government.” Thus, Judge Dyk concluded, “the Assistant Attorney General for the Civil Division, pursuant to delegated authority, has properly filed a protective notice of appeal pending Solicitor General approval.”

Proceeding to the merits of the case, Jude Dyk first noted that, by “its plain language, § 3327(d)(2) applies to Mr. Rudisill,” and it “establishes a limit on education benefits for an individual who ‘mak[es] an election under subsection (a) who is described by paragraph (1)(A) of that subsection.'” In particular, “Section 3327(d)(2) unambiguously limits the ‘number of months of entitlement’ for such an individual to ‘“’the number of months of unused entitlement of the individual under [the Montgomery program].’”

Judge Dyk rejected Rudisill’s argument that § 3327(d)(2) does not apply to him because “he chose to forgo his Montgomery benefits and instead seeks Post-9/11 benefits.” According to Judge Dyk, Rudisill “falls under Paragraph (1)(A) as an individual who both ‘elect[s] to receive educational assistance under [the Post-9/11 program]’ and who ‘(1) as of August 1, 2009—(A) is entitled to basic educational assistance under [the Montgomery program] and has used, but retains unused, entitlement under [the Montgomery program.]’” Consequently, ‘Section 3327(d)(2) unambiguously limits the “number of months of entitlement’” for Rudisill.

Judge Dyk likewise dismissed Rudisill’s argument that “§ 3327(d) only applies to individuals with a single period of service.” Judge Dyk indicated that “there is no such limit in the language of the provision, nor any suggestion in its legislative history that the section is so limited.” Moreover, this interpretation, he explained, would deny benefits to “veterans with multiple periods of service”

Judge Dyk also dismissed Rudisill’s argument that “the 48-month limitation on education benefits under 38 U.S.C. § 3695(a) is the only limit that should apply here.” Judge Dyk found that this provision is “an additional limitation on a veteran’s use of education benefits from multiple programs” and that “there is nothing unusual about having multiple benefit limitations in a single statute.”

Finally, Judge Dyk rejected Rudisill’s contention that “the pro-veteran canon of interpretation supports the result he favors.” Judge Dyk stated that this canon has “no role where the language of the statute is unambiguous,” and he said it is not the task of the court to “rewrite the statute to make it more favorable to veterans.”

Judge Newman wrote a dissenting opinion. In it, she indicated her view that the “holding is contrary to statute, regulation, and policy.” She began by noting that Rudisill “earned 36 months of education benefits for each period of service and is entitled to benefits for all periods subject to the aggregate cap of 48 months” under 38 U.S.C. § 3695(a). Furthermore, she said, “[t]he Post-9/11 Bill was made retroactively applicable to veterans serving after September 11, 2001; such veterans with unused prior benefits were authorized to elect to receive Post-9/11 benefits in place of their prior benefits.” Thus, she agreed with the Veterans Court that Rudisill is “entitled to the requested total of 22 months and 16 days of Post-9/11 benefits, that is, the unused 10 months and 16 days from his first period of service plus 12 months of benefits from his re-enlistment, thus meeting the aggregate cap of 48 months.”

Judge Newman found “no statute support[ing]” the majority’s reversal. She argued the majority opinion “erroneously states that 38 U.S.C. § 3322(d) and § 3327 support the present ruling.” In her view, these sections are “concerned with prohibiting concurrent benefits provided under different programs.” She also stated that “[s]ections 3322(e) and (g) do not provide that conversion to Post-9/11 benefits results in loss of access to additional months of Post-9/11 benefits.” Finally, she rejected the majority’s application of Section 3327 because “this section authorizes election of Post-9/11 benefits to replace unused Montgomery benefits, without even remotely suggesting that such election will forfeit access to additional Post-9/11 benefits based on a separate period of military service.”

Judge Reyna wrote a second dissenting opinion. Ultimately, he disagreed with the “majority’s interpretation that 38 U.S.C. § 3327 limits Mr. Rudisill’s Post-9/11 benefits to 10 months and 16 days, the amount of his unused Montgomery entitlement.”

Judge Reyna also disagreed “with the majority’s cursory, legally unsupported conclusion that the pro-veteran canon ‘plays no role’ when there is no ambiguity.” He elaborated, explaining that “the canon is simply what its name implies: it is a tool used in the interpretation of veterans’ benefits law that mandates favoring the interest of the veteran.” He rejected the majority’s declaration that the “Veteran’s Canon has no application in this case because the statue is unambiguous.” He disagreed because: (1) “the near entirety of the majority opinion is devoted to classic statutory interpretation,” (2) “the question before the court has a rich history of litigation, ” (3) “the case has garnered the attention of numerous amici,” (4) “the majority overturns the judgement of the Court of Appeals for Veterans Claims,” and (5) “the majority expresses no principled reason why the canon does not apply to the ambiguity question or in its statutory interpretation analysis.” Judge Reyna elaborated that the majority “ignores the Supreme Court’s recent instruction that courts should exhaust all traditional tools of construction before concluding [text] is ambiguous,” which would require the court to “fully employ the pro-veteran canon along with other canons . . . to reach the ‘best and fairest reading of the law.'”

Judge Reyna would have applied the canon in this case. And, he concluded, “[w]hen viewed in favor of the veteran, the statutory framework makes clear that Mr. Rudisill is entitled to the full benefits subject only to the ‘cap’ of 38 U.S.C. § 3695.”