Last week, the Federal Circuit heard oral argument in Loomis v. Collins, a pro se veterans case we have been tracking because the court appointed counsel as amicus curiae. In this case, Loomis appeals a decision of the Court of Appeals for Veterans Claims. The case presents questions related to educational assistance benefits and the validity of a regulation issued by the Department of Veterans Affairs. Chief Judge Moore, Judge Cunningham, and Judge Arun Subramanian of the U.S. District Court for the Southern District of New York heard the oral argument. This is our argument recap.
Claire Fundakowski argued as amicus curiae on behalf of Loomis. She began by arguing that, when “Congress constructively approved certain flight courses,” it knew that an “Institution of Higher Learning” requirement “was not absolute.” Congress, she said, in particular knew that “the same flight courses were already approved and are already eligible for approval without having to be offered by an IHL.” She pointed to a particular provision that, she said, “eliminated the blanket IHL requirement for programs of education.”
Fundakowski argued that, in “holding that the IHL requirement nonetheless applied . . . , the Veterans Court made two principal errors.” She first claimed the Veterans Court “failed to recognize that Congress created a specific exception to [the] IHL requirement.” Second, she claimed, the Veterans Court “wrongly assumed that . . . the IHL requirement necessarily limited the scope of eligible flight courses.”
At this point, Chief Judge Moore interjected to ask whether the court should interpret the relevant “statutory sections to fit together such that the veteran needs to satisfy the requirements of both sections.” In response, Fundakowski argued that, while “there’s a way to do that, . . . it’s not the way that the Veterans Court did.” She explained “the Veterans Court tried to harmonize the two sections” using “a two-step process.” She said that two-step process “make[s] little sense.” She further questioned why Congress would “approve several flight training courses, knowing that the majority of individuals seeking approval for those courses would never get through that step two process.”
Judge Subramanian then asked whether it makes sense that an IHL school needs both “to be FAA approved and . . . be a certified pilot school.” In response, Fundakowski argued that, if “Congress intended that in order for a course itself to be approved that it had to be offered by an IHL, it would have included that language” in the relevant statutory section.
Borislav Kushnir argued on behalf of the government. Chief Judge Moore immediately interjected to clarify whether the “approval of a course versus approval of enrollment matters . . . in deciding this statutory interpretation question.” Kushnir responded that it “matters very much.” He claimed “the Veterans Court correctly held the approval of a course or a program of education and the approval of a particular veteran’s enrollment in a course or a program of education are two completely different requirements.”
Kushnir later explained that a “veteran can very easily go to an IHL . . . , take a flight course there as part of a degree program, and obtain educational assistance benefits that comply with” the relevant statutory sections. Judge Subramanian, however, questioned whether the government’s position that not all courses are eligible for benefits is contrary to a provision that “seems to specifically state that the course of flight training need not be given by the IHL itself, but can be given through another school or entity under contract.” In response, Kushnir claimed that, if that were true, that would mean a “prohibition that Congress chose to put” in the statute “would become entirely superfluous.”
In rebuttal, Fundakowski argued it “is clear” that “what Congress intended here is that the courses that it articulated . . . are approved, regardless of the IHL requirements.”
We will continue monitoring this case and report on developments.