Rudisill v. McDonough
| Decision Date | 15 December 2022 |
| Docket Number | 2020-1637 |
| Parties | James R. RUDISILL, Claimant-Appellee v. Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellant |
| Court | U.S. Court of Appeals — Federal Circuit |
Timothy L. McHugh, Troutman Pepper Hamilton Sanders LLP, Richmond, VA, argued for claimant-appellee. Also represented by Abbey M. Thornhill; David J. Depippo, Dominion Energy Services Inc., Richmond, VA.
Galina I. Fomenkova, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellant. Also represented by Brian M. Boynton, Martin F. Hockey, Jr., Patricia M. Mccarthy ; Y. Ken Lee, Bryan Thompson, Office of General Counsel, United States Department of Veterans, Washington, DC.
Michael E. Kenneally, Morgan, Lewis & Bockius LLP, Washington, DC, for amicus curiae National Veterans Legal Services Program. Also represented by James D. Nelson.
R. Andrew Austria, McGuireWoods LLP, Washington, DC, for amici curiae Steven Attaway, Scott Cone, Byron Elliott, Elizabeth Lewis, Michael Petta, Eric Richardson. Also represented by Matthew A. Fitzgerald, Richmond, VA.
Before Moore, Chief Judge, Newman, Lourie, Dyk, Prost, Reyna, Taranto, Chen, Hughes, Stoll, Cunningham, and Stark, Circuit Judges.*
This case involves two education programs enacted by Congress for the benefit of veterans—the Montgomery program and the Post-9/11 program. Section 3327(d)(2) of Title 38 limits "the number of months of entitlement ... to educational assistance" for veterans who switch from Montgomery program to Post-9/11 program benefits without first exhausting their Montgomery benefits. The Secretary of Veterans Affairs appeals from a Court of Appeals for Veterans Claims ("Veterans Court") decision that held that § 3327(d)(2) does not apply to veterans with multiple periods of service. BO v. Wilkie , 31 Vet. App. 321 (2019). Because we hold that the plain language of § 3327(d)(2) applies to veterans with multiple periods of service, we reverse.1
The United States has long offered education benefits to those that have served in the armed forces. In 1944, Congress enacted the "GI Bill" to provide education benefits to World War II veterans. See Servicemen's Readjustment Act of 1944, Pub. L. No. 78-346, 58 Stat. 284. Over the decades, Congress has offered education benefits to new generations of veterans.2 At issue in this case are two such programs—the Montgomery GI Bill and the Post-9/11 GI Bill.
Congress enacted the Montgomery GI Bill in 1984. See Veterans' Educational Assistance Act of 1984, Pub. L. No. 98-525, 98 Stat. 2492, 2553. Codified in Chapter 30 of Title 38, the Montgomery GI Bill provides education benefits for veterans who serve on active duty between July 1, 1985, and September 30, 2030. See 38 U.S.C. § 3011(a)(1)(A). Codified in Chapter 33, the Post-9/11 GI Bill was enacted in 2008 and provides education benefits for veterans who serve on active duty after September 11, 2001. See Post-9/11 Veterans Educational Assistance Act of 2008, Pub. L. No. 110-252, 122 Stat. 2323, 2357; 38 U.S.C. § 3311(b).
Under the Montgomery GI Bill, a veteran is entitled to a maximum of 36 months of benefits. This cap applies no matter how long the veteran has served or how many periods of service the veteran has provided. See 38 U.S.C. § 3013(a)(1). The same is true of the Post-9/11 program. The maximum period of benefits that a veteran may earn under the Post-9/11 program is 36 months. See id. § 3312(a).
Since both Montgomery and Post-9/11 benefits can be earned for the same period or periods of service, Congress continued and adopted various provisions to limit the benefits under the two programs. First, Congress had previously enacted a 48-month cap on benefits programs generally, 38 U.S.C. § 3695(a), and amended that section to include the Post-9/11 program. Pub. L. No. 110-252, § 5003(b)(1)(B), 122 Stat. 2323, 2375. Second, in enacting the Post-9/11 program, Congress provided that benefits under the two programs could not be received concurrently. See Pub. L. No. 110-252, § 5003(a)(1), 122 Stat. 2323, 2373 (codified at 38 U.S.C. § 3322(a) ). Third, in 2011, Congress enacted § 3322(h), which was designed to prevent a veteran with a single period of service from earning more than 36 months of benefits under the two programs combined. See Post-9/11 Veterans Educational Assistance Improvements Act of 2010, Pub. L. No. 111-377, § 111, 124 Stat. 4106, 4120–21 (2011); S. REP. 111-346, at 19 (2010).
Fourth, in 2008 as part of the Post-9/11 program, Congress enacted 38 U.S.C. § 3327(d) —the provision at issue in this case.3 Section 3327(a) describes various classes of individuals "eligible to elect participation in post-9/11 educational assistance." One such class of individuals includes those who are "entitled to basic educational assistance under [the Montgomery program] and [have] used, but retain[ ] unused, entitlement under that [program]." 38 U.S.C. § 3327(a)(1)(A). Subsection (d) establishes a "[l]imitation on entitlement" for such individuals. Id. § 3327(d)(2). For those individuals, "the number of months of entitlement ... to educational assistance under [the Post-9/11 program] shall be the number of months equal to ... the number of months of unused entitlement of the individual under [the Montgomery program], as of the date of the election." Id. § 3327(d)(2)(A).4 The veteran here contends, and the Veterans Court concluded, that this limit does not apply to veterans with multiple periods of qualifying service and that he was entitled to a full 48 months of benefits. The court found that Mr. Rudisill had used 25 months and 14 days of Montgomery benefits and was likely entitled to an additional 22 months and 16 days of benefits, which he could take entirely as Post-9/11 benefits.
The facts of Mr. Rudisill's case are straightforward. Mr. Rudisill served three periods of active-duty service between January 2000 and August 2011, totaling nearly 8 years of active-duty service. Mr. Rudisill's first period of service, from January 2000 to June 2002, qualified him for Montgomery education benefits, which he began using for his undergraduate education in 2003. He served again while finishing his undergraduate degree, ultimately using 25 months and 14 days of Montgomery benefits for his undergraduate education.
After leaving military service in 2011, Mr. Rudisill was accepted into Yale Divinity School. Mr. Rudisill filed an application for Department of Veterans Affairs ("VA") education benefits (VA Form 22-1990) online. He applied for "Chapter 33 – Post-9/11 GI Bill" benefits, making a "Chapter 33 in Lieu of Chapter 30 [Montgomery program]" election. In filing the application, Mr. Rudisill acknowledged the following:
J.A. 585 (); see also J.A. 708–711 (paper form). Mr. Rudisill listed an effective date of March 18, 2015, and elected to receive "Chapter 33 – Post-9/11" benefits in lieu of "Chapter 30; MGIB." J.A. 583–85.
The VA issued Mr. Rudisill a certificate of eligibility for 10 months and 16 days of Post-9/11 benefits—an amount equal to Mr. Rudisill's remaining Montgomery entitlement. Mr. Rudisill appealed the decision to the Board of Veterans' Appeals ("the Board"), seeking the "full potential amount of education assistance benefits" available under the Post-9/11 program, "instead of being limited to his remaining time under [the Montgomery program]." J.A. 59. The Board denied the appeal, holding that "[a]dditional educational assistance benefits under [the Post-9/11 program] are not allowed because the Veteran made an irrevocable election to receive benefits under [the Post-9/11 program], in lieu of benefits under [the Montgomery program]." J.A. 64.
Mr. Rudisill appealed the Board's decision to the Veterans Court. A split panel agreed with Mr. Rudisill. The majority opinion found the statute ambiguous and held that "Congress's statutory scheme is best interpreted to provide that separate periods of qualifying service allow a veteran such as [Mr. Rudisill] to receive full benefits under both programs subject to an aggregate cap on all such benefits." J.A. 7. The majority implicitly concluded that 38 U.S.C. § 3327 only "applies to those individuals with a single period of service already positioned to use [Montgomery] benefits." J.A. 25. Then-Judge Bartley5 dissented. She concluded that 38 U.S.C. § 3327, including its limitation on entitlement for veterans who had used only part of their Montgomery benefits, unambiguously applied to Mr. Rudisill. Since Mr. Rudisill "voluntarily signed an irrevocable election to receive Post-9/11 education benefits ... section 3327 prescribes that his entitlement to Post-9/11 benefits is limited to 10 months and 16 days, which was the unused remainder of his [Montgomery] entitlement when he filed his section 3327 election." J.A. 30.
The Secretary appealed the Veterans Court's decision to our Court. Initially, a split panel affirmed. Rudisill v. McDonough , 4 F.4th 1297, 1299 (Fed. Cir. 2021). The Secretary petitioned for rehearing en banc . We granted the Secretary's petition and vacated the panel opinion. Rudisill v. McDonough , No. 2020-1637, 2022 WL 320680 (Fed. Cir. Feb....
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