The Department of Veterans Affairs (VA) is shortchanging military veterans seeking education benefits, the Supreme Court heard on Nov. 8.
If the court rules in favor of the veteran who brought the case, 1.7 million post-9/11 veterans could become eligible for additional education benefits potentially worth billions of dollars. The government disputes the 1.7 million figure, saying that it’s closer to 30,000 veterans.
The case is about whether a veteran who qualifies for education benefits under multiple GI Bill programs is required to use up or abandon the benefits of one program in order to take advantage of benefits under another.
“Never once has Congress required a veteran who qualified for multiple GI Bill programs, based on separate and distinct periods of qualifying service, to first forfeit or exhaust one benefit in order to obtain another,” according to the veteran’s petition.
The court heard highly technical oral arguments in the extensively litigated case, Rudisill v. McDonough (court file 22-888), on Nov. 8.
The petitioner is FBI Special Agent James Rudisill, a decorated U.S. Army veteran who was reportedly wounded in Iraq in a roadside bomb attack in 2005. The respondent is U.S. Secretary of Veterans Affairs Denis McDonough, who’s being sued in his official capacity. Mr. McDonough was previously the White House chief of staff in President Barack Obama’s second term.
The case centers on the VA’s interpretation of administrative provisions of the Post-9/11 Veterans Educational Assistance Act, also known as the Post-9/11 GI Bill, which President George W. Bush signed into law on June 30, 2008.
The legislation expanded the GI Bill and made it “easier for our troops to transfer unused education benefits to their spouses and children. It will help us to recruit and reward the best military on the face of the Earth. It will help us to meet our responsibilities to those who support our troops every day—America’s great military families,” President Bush said at the time.
The law was enacted to provide enhanced educational benefits that were more generous than the then-prevailing peacetime Montgomery GI Bill, a Korean War-era law that permits veterans to use benefits from any individual programs or a combination of them for up to 48 months. Congress reportedly approved the Post-9/11 measure in recognition of the difficult wartime service required of veterans since the Sept. 11, 2001, terrorist attacks.
After enlisting in 2000, Mr. Rudisill spent almost eight aggregate years in the Army over three separate tours, including service in Iraq and Afghanistan. After his discharge in 2002, he studied for an undergraduate degree using a portion of the 36 months of Montgomery benefits he had accumulated, according to his petition.
He enlisted a second time while in college and resumed his studies after receiving a second honorable discharge, using up about 25 1/2 months of Montgomery benefits, which left him with 10 1/2 months under that program.
Mr. Rudisill became an officer in the Army and served from 2007 to 2011. After a third honorable discharge, he began to work as an agent in the FBI’s domestic terrorism unit. He has also served since 2019 as an ensign in the Navy Reserve.
Mr. Rudisill wanted to serve a fourth time, this time as an Army chaplain, and got into Yale Divinity School, believing that he could take advantage of Post-9/11 benefits earned during his second and third tours to cover the high cost of attending the school. He understood that he had earned 36 months of Post-9/11 benefits but that he could use only 22 1/2 months because he had previously used Montgomery benefits, which are subject to a cap.
Mr. Rudisill applied in 2015 to the VA for the Post-9/11 benefits, but instead of giving him the 22 1/2 months, the agency determined that he was entitled to only 10 1/2 months of Montgomery benefits because he hadn’t “completely exhausted” those benefits. The VA informed him that he had to forfeit the 10 1/2 months of Montgomery benefits for an equivalent amount of Post-9/11 benefits, even though his entitlement “to Post-9/11 benefits stems from periods of service that are separate and distinct from the period of service establishing his entitlement to Montgomery,” the petition states.
The VA wouldn’t allow Mr. Rudisill to claim his entire Post-9/11 entitlement, “subject to the 48-month aggregate cap based upon his prior usage, and required him to give up his remaining Montgomery entitlement if he wanted to receive Post-9/11 benefits before exhausting his Montgomery benefits, simply because he had first received some Montgomery benefits,” the petition states.
Mr. Rudisill appealed to the Board of Veterans’ Appeals and lost. He appealed that adverse decision to the U.S. Court of Appeals for Veterans Claims and won. That court found that the law should be interpreted to allow him to receive benefits under both programs, subject to the prescribed cap.
The government appealed, and a three-judge panel of the U.S. Court of Appeals for the Federal Circuit sided with Mr. Rudisill. The government appealed again, and this time the full Federal Circuit ruled in favor of the VA, a ruling the petition calls a “nonsensical, anti-veteran result.”
Mr. Rudisill’s attorney, Misha Tseytlin, argued his client’s case before the justices.
“In section 3311 of the Post-9/11 GI Bill, Congress awarded veterans who served after the Sept. 11 attacks with an entitlement to wartime benefits befitting their wartime service,” the lawyer said.
“In section 3327 of the same Act, Congress created a generous benefit coordination regime wherein veterans who had earned peacetime Montgomery veterans benefits with post-9/11 service could trade the unused portion of those Montgomery benefits for post-9/11 benefits.
“My client has no interest in trading his Montgomery benefits for his post-9/11 benefits, so he has no use for the 3327 election regime. Rather, petitioner is invoking his statutory entitlement under 3311 to cash in his second period of service for post-9/11 benefits. The second period of service is only eligible for post-9/11 benefits—it’s not eligible for Montgomery benefits—so there’s nothing for my client to coordinate.”
U.S. Department of Justice attorney Vivek Suri weighed in for the government.
“I think the crucial question in this case is whether Mr. Rudisill was required to elect post-9/11 benefits in order to receive them,” he said.
“A person who’s entitled to benefits under only one program doesn’t need to make an election—he can just apply for the benefits and receive those benefits. An election is a choice between multiple programs. And if you’re covered only by one program, there’s no choice that needs to be made. A person who is covered by two programs or more, however, does need to make an election.”
Justice Ketanji Brown Jackson told Mr. Suri that she didn’t understand his reading of Section 3322(a) of the legislation.
“He’s entitled to both Montgomery and post-9/11, you say, but he has to choose as though he’s not allowed to cash in or take advantage of both,” she said.
“Yes,” Mr. Suri replied.
Chief Justice John Roberts said that the government is arguing that “you could only go to college for so many years. ... and we’re paying ... for four years of college for the people who got Montgomery benefits. And even though you get additional benefits under the post-9/11 ... we’re not going to pay for eight years of college.”
Mr. Suri answered: “That is the consequence of what Congress has wrote [sic].
“And let me take a stab at explaining why Congress might have designed the statute this way.
“The purpose, or one purpose, of the GI Bill is to enable someone who has served in the military to transition back into civilian life. That’s why the first GI Bill was called the Servicemen’s Readjustment Act [which] is about readjustment, and Congress could conclude that in order to readjust, you need 36 months of benefits—that’s four years of college, nine months per academic year.
“And it could say that whether you get these 36 months through one program, or through two programs is not as much a concern to us, because these two programs are close substitutes for each other.”
After the hearing, Mr. Tseytlin told The Epoch Times, “The VA’s position really doesn’t make a whole lot of sense.”
“The VA tried to take a situation for which the statute wasn’t intended,” he said in an interview.
“When Congress draws statutes to help out ... veterans,” the statute should be read in “a pro-veteran manner,” not in a way that has “punitive unintended consequences.”
The Supreme Court is expected to rule in the case by June 2024.
