This past Wednesday, the Supreme Court heard oral argument in Rudisill v. McDonough, a veterans case regarding educational benefits. In this case, the Supreme Court is considering whether “a veteran who has served two separate and distinct periods of qualifying service under the Montgomery GI Bill, . . . and under the Post-9/11 GI Bill, . . . is entitled to receive a total of 48 months of education benefits as between both programs, without first exhausting the Montgomery benefit in order to obtain the more generous Post-9/11 benefit.” This is our argument recap.
Misha Tseytlin presented Rudisill’s arguments.
Tseytlin argued his client “is invoking his statutory entitlement” to Post-9/11 GI Bill educational benefits, and so he “has nothing to coordinate” under the relevant statute related to Montogomery GI Bill educational benefits. According to Tseytlin, however, the government takes the position that the relevant statute revoked Rudisill’s entitlement to education benefits under the Post 9/11 GI Bill until he uses up or exhausts his education benefits under the Montgomery GI Bill. According to Tseytlin, this exhaustion requirement “finds no ground in the statutory text and produces absurd results.” In particular, the government’s interpretation, Tseytlin maintained, is “punishing veterans” by giving them “less wartime benefits for simply having served the nation longer.”
As part of his line of questioning, Justice Thomas asked whether the “coordination provisions apply.” In response Tseytlin asserted the statute “specifically says you can’t use [the benefits] concurrently.” Other than that, he pointed out, the government asserted Rudisill “would not be coordinating if” he “exhausted [his] Montgomery benefits and then thereafter used Post-9/11 benefits.” Tseytlin, though, said he “fail[ed] to understand how simply using Post-9/11 benefits is coordination.”
Justice Jackson presented an analogy where the benefit programs are “like two different color baseball caps that service members can earn.” Using this analogy, Justice Jackson explained, “the member can earn more than one hat. . . for separate periods of service, but the two hats can’t be worn at the same time.” Tseytlin agreed with this analogy and asserted the “fundamental problem” with the government’s argument is “they’re trying to export” the statutory regime “to a completely different scenario which Congress was not trying to deal with,” in particular where a servicemember seeks to use only his or her educational benefits under the Post 9/11 GI Bill.
Turning to the text of the statute, Justice Kavanaugh stated that, “when you get to [§] 3327, then you can elect . . . Post-9/11 [benefits] or you could stick just with your Montgomery [benefits].” In response, Tseytlin asserted the text of other provisions, § 3311 and § 3312, do not suggest “that entitlement is subject to making a 3327 election.” Thus, according to Tseytlin, given “a plain-as-day statutory entitlement under [§] 3311” and “a voluntary ‘may elect’ clause” under § 3327, there is no “penalty for declining to elect.” The government’s contrary approach “implicitly revokes a plain-as-day entitlement.”
As part of his line of questioning, Justice Gorsuch asked about how the “may elect” language in § 3327 “compare[s] with other statutory provisions where Congress did use ‘shall elect.’” In response, Tseytlin asserted, this “difference between ‘shall’ and ‘may’ is . . . critical.” According to Tseytlin, the use of “may” in the provision is “telling the veteran that you don’t have to elect, and it’s not giving any penalty for not electing.” Following up on this response, Justice Gorsuch asked whether there has been “[a]ny exhaustion requirements previously in history.” In response, Tseytlin asserted this exhaustion requirement is “entirely a figment of . . . the [government’s] imagination.”
Vivek Suri argued for the government. According to Suri, “the crucial question in this case is whether Mr. Rudisill was required to elect Post-9/11 benefits in order to receive them.” Suri argued a “person who is covered by two programs or more . . . does need to make an election” according to the “explicit . . . text of Section 3322(a).” Suri asserted that, “if you’re eligible for both Montgomery and Post-9/11 benefits, you must make a choice.”
Justice Thomas asked about where Suri “statutorily peg[s] the exhaustion requirement.” In response, Suri asserted, “it is a consequence of [§] 3322(a) and [§] 3322(d)” because “someone who is covered by only one program doesn’t need to make an election in the first place.” According to Suri, “[s]omeone who has exhausted his Montgomery benefits and has only Post-9/11 benefits remaining is covered by only one program and . . . wouldn’t need to make an election in the first place.”
Chief Justice Roberts and Justice Gorsuch sought to clarify the government’s interpretation of the “may elect” language in § 3327. Chief Justice Roberts reasoned that “the most natural way to read ‘may’ is ‘may’” and, therefore, “when they say ‘may elect,’ you do have a choice.” In response, Suri asserted under § 3322(a) the servicemember “must make a choice” between “either Montgomery or Post-9/11.” Turning to § 3327(a), Suri argued the servicemember “may elect Post-9/11” benefits under this provision, but he or she is not able to “receive Post-9/11 anyway without choosing it” under § 3322(a).
Justice Kagan asked about “why Congress could have written it this way” so that a “choice [is] put to the veteran.” Suri identified three potential reasons. According to Suri, “Congress was creating the Post-9/11 program and making it retroactive” and, therefore, may have “wanted to ensure that [veterans who had already used up all of their Montgomery benefits] get something.” Second, Suri argued, Congress may have written the provision this way given “the fact that the Post-9/11 bill was originally limited to college education and the Montgomery bill was designed to focus on vocational education.” Finally, Suri asserted, Congress may have wanted to “make a tradeoff” “for [servicemembers] who want more than 36 months” of benefits “to limit the overall cost of the program.”
Justice Kavanaugh asked about the “significance . . . that [§ 3322(d)] says ‘coordination of entitlement’ and not ‘coordination of benefits.’” Suri said this is a “very significant point” because it “suggests that this provision is meant to address specifically veterans who are entitled to both programs.” According to Suri, Congress intended for veterans to “[g]o look at [§] 3327 to determine how to coordinate those programs.”
In his rebuttal, Tseytlin asserted the government’s interpretation renders § “3322(a)’s use of a mandatory bar on concurrent usage superfluous because . . . concurrent usage would be impossible.” Tseytlin also argued “[§] 3327 is plainly a swapping mechanism, and every provision, every subsection of [§] 3327 points in that direction.” According to Tseytlin, “[§] 3311 gives you a plain-as-day entitlement” and “[§] 3327 is a voluntary swap mechanism.” As a result, it “does not limit that entitlement in any way.”
We’ll report more when the Court decides the case.