Case: 20-1637 Document: 56 Page: 1 Filed: 07/08/2021
United States Court of Appeals
for the Federal Circuit
______________________
JAMES R. RUDISILL,
Claimant-Appellee
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellant
______________________
2020-1637
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-4134, Chief Judge Margaret C.
Bartley, Judge Michael P. Allen, Senior Judge Mary J.
Schoelen.
______________________
Decided: July 8, 2021
______________________
TIMOTHY L. MCHUGH, Hunton Andrews Kurth LLP,
Richmond, VA, argued for claimant-appellee. Also repre-
sented by DAVID PARKER; DAVID JOSEPH DEPIPPO, Domin-
ion Resource Services Inc., Richmond, VA.
GALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellant. Also repre-
sented by JEFFREY B. CLARK, MARTIN F. HOCKEY, JR.,
ROBERT EDWARD KIRSCHMAN, JR.; Y. KEN LEE, BRYAN
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2 RUDISILL v. MCDONOUGH
THOMPSON, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
MICHAEL E. KENNEALLY, Morgan, Lewis & Bockius
LLP, Washington, DC, for amici curiae National Veterans
Legal Services Program and Veterans Education Success.
Also represented by JAMES D. NELSON.
______________________
Before NEWMAN, DYK, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge NEWMAN.
Opinion concurring in part and dissenting in part filed by
Circuit Judge DYK.
NEWMAN, Circuit Judge.
The United States Court of Appeals for Veterans
Claims (“Veterans Court”) held that a veteran with multi-
ple periods of qualifying military service is entitled to GI
Bill education benefits for each period of service, subject to
the legislated limit of a total of 48 aggregate months of ed-
ucation benefits. Applying this holding to veteran James
R. Rudisill, the Veterans Court held that he is not limited
to the total of 36 months of education benefits set by the
Montgomery GI Bill (“Montgomery” or “MGIB”) and appli-
cable to his first period of qualifying service, when he also
qualifies for later education benefits under a later bill—the
Post-9/11 GI Bill. 1 That is, he is entitled to the total of 48
months of aggregate benefits. The Secretary of Veterans
Affairs (“Secretary”) appeals. On appellate review, we af-
firm the decision of the Veterans Court.
1 BO v. Wilkie, 31 Vet. App. 321 (2019) (“Vet. Ct.
Op.”).
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RUDISILL v. MCDONOUGH 3
BACKGROUND
James R. Rudisill served three periods of active duty
military service, as follows: (1) from January 2000 to June
2002 in the Army (30 months); (2) from June 2004 to De-
cember 2005 in the Army National Guard (18 months);
and, (3) from November 2007 to August 2011 as a commis-
sioned officer in the Army (45 months). He applied for and
duly received 25 months and 14 days of education benefits
in accordance with the Montgomery GI Bill, 38 U.S.C.
§ 3011(a), for completion of his college degree.
After his third period of Army service, he applied for
education benefits under the Post-9/11 GI Bill, 38 U.S.C.
§ 3311, to attend the Yale Divinity School graduate pro-
gram. The Department of Veterans Affairs (“VA”) deter-
mined that he was entitled to the Post-9/11 benefits, but
only for the remaining 10 months and 16 days of the 36
months authorized for Montgomery benefits. The VA held
that he was not entitled to benefits beyond a total of 36
months.
Mr. Rudisill appealed to the Board of Veterans’ Ap-
peals (“BVA”), seeking education benefits up to the statu-
tory cap of 48 months for multiple terms of service. The
BVA sustained the VA’s ruling that Mr. Rudisill’s total
benefits were limited to the unused period of his 36-months
entitlement under the Montgomery GI Bill. No. 16-01 431,
2016 WL 4653284 (Bd. Vet. App. July 14, 2016) (“BVA
Op.”). The BVA held that his “election to use Post-9/11 ben-
efits in lieu of MGIB benefits was irrevocable and limited
his eligibility to the unused remainder of his MGIB entitle-
ment.” Sec’y Br. 12 (citing BVA Op. at *3).
Concerning the statutory cap of 48 months of aggregate
benefits, the BVA acknowledged that “[w]here an individ-
ual is eligible for two or more education programs, the ag-
gregate period for which any person may receive assistance
may not exceed 48 months.” BVA Op. at *3. But the BVA
held as to Mr. Rudisill that “[t]here is no provision
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4 RUDISILL v. MCDONOUGH
authorizing 12 additional months of entitlement under
Chapter 33 on top of 36 total months of combined benefits
under Chapter 30 and Chapter 33.” Id. The BVA reasoned
that the entitlement period for Chapter 33 benefits is lim-
ited by 38 C.F.R. § 21.9550(b)(1), stating as follows:
An individual who, as of August 1, 2009, has used
entitlement under 38 U.S.C. Chapter 30, but re-
tains unused entitlement under that chapter,
makes an irrevocable election to receive educa-
tional assistance under the provisions of Chapter
30, will be limited to one month (or partial month)
of entitlement under Chapter 33 for each month (or
partial month) of unused entitlement under Chap-
ter 30 (including any months of Chapter 30 entitle-
ment previously transferred to a dependent that
the individual has revoked). In short, if an individ-
ual is eligible for benefits under Chapter 30, and he
or she uses some of that entitlement before irrevo-
cably electing to receive Chapter 33 benefits in lieu
of benefits under Chapter 30, that individual may
be awarded the equivalent of the entitlement that
remained unused under Chapter 30. There is no
provision authorizing 12 additional months of enti-
tlement under Chapter 33 on top of 36 total months
of combined benefits under Chapter 30 and Chap-
ter 33.
BVA Op. at *3 (internal citation omitted).
On Mr. Rudisill’s appeal, the Veterans Court reversed
the BVA and held that the veteran is entitled to education
benefits for each of his periods of separately qualifying ser-
vice, and that he is entitled to the aggregate cap of 48
months of benefits. The Secretary appeals, stating that the
Veterans Court did not correctly interpret the GI Bill stat-
utes and regulations. As we shall discuss, we conclude that
the Veterans Court’s interpretation was in conformity with
law.
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RUDISILL v. MCDONOUGH 5
The “GI Bills” have a long and salutary history. The
original GI Bill was the Servicemen’s Readjustment Act of
1944, to provide education and other benefits for veterans
of World War II. The GI Bill provided payment of tuition
and designated expenses for college or trade school educa-
tion. Similar bills were enacted after successive periods of
conflict, again to provide education and other benefits for
veterans. See, e.g., Veterans’ Readjustment Assistance Act
of 1952, 66 Stat. 663 (“Korean War GI Bill”); Veterans’ Re-
adjustment Benefits Act of 1966, 80 Stat. 12 (“Cold War GI
Bill”); the Veterans’ Education and Employment Assis-
tance Act of 1976, 90 Stat. 2383 (“Post-Korean Conflict and
Vietnam Era GI Bill”); and Veterans’ Rehabilitation and
Education Amendments of 1980, 94 Stat. 2171 (“Post-Vi-
etnam Era Veterans Educational Assistance Program”).
The statutes relevant to this action are the Montgom-
ery GI Bill of 1985, codified at chapter 30 of title 38 United
States Code, and the Post-9/11 GI Bill of 2008, codified at
chapter 33 of title 38 United States Code. Following are
relevant provisions of these GI Bills:
The Montgomery GI Bill
The Montgomery GI Bill states the purposes of educa-
tion benefits for veterans in its opening section:
38 U.S.C. § 3001. The purposes of this chapter
are . . . to aid in the recruitment and retention of
highly qualified personnel for both the active and
reserve components of the Armed Forces . . . [and]
to enhance our Nation’s competitiveness through
the development of a more highly educated and
productive work force.
Section 3011(a) defines the veterans who are entitled to
Montgomery GI Bill benefits:
(a) Except as provided in subsection (c) of this sec-
tion, each individual—
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6 RUDISILL v. MCDONOUGH
(1) who—
(A) after June 30, 1985, first becomes a member of
the Armed Forces or first enters on active duty as
a member of the Armed Forces and—
(i) who (I) in the case of an individual whose obli-
gated period of active duty is three years or more,
serves at least three years of continuous active
duty in the Armed Forces, or (II) in the case of an
individual whose obligated period of active duty is
less than three years, serves at least two years of
continuous active duty in the Armed Forces.
Section 3013(a)(1) provides that veterans are entitled to
“36 months of educational assistance benefits under this
chapter.”
The Montgomery education benefits are provided as a
monthly stipend at a fixed rate, regardless of actual tuition
costs, and do not include payment for books or living ex-
penses. See 38 U.S.C. § 3015. This was the pattern of all
the preceding GI Bills.
The Post-9/11 GI Bill
The Post-9/11 GI Bill applies to education costs in-
curred, starting in 2011, by veterans with an aggregate of
at least 36 months of active duty service after September
11, 2001. This Bill “improve[s] educational assistance for
veterans who served in the Armed Forces after September
11, 2001.” 124 Stat. 4106 (approved Jan. 4, 2011). Section
3311 defines the veterans who are entitled to Post-9/11 GI
Bill benefits:
38 U.S.C. § 3311(b). Covered Individuals. . . . An
individual who—
(A) commencing on or after September 11, 2001,
serves an aggregate of at least 36 months on active
duty in the Armed Forces (including service on ac-
tive duty in entry level and skill training); and
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RUDISILL v. MCDONOUGH 7
(B) after completion of service described in subpar-
agraph (A)—
(i) continues on active duty; or
(ii) is discharged or released from active duty as de-
scribed in subsection (c).
Covered veterans may receive up to 36 months of Post-9/11
GI Bill benefits. 38 U.S.C. § 3312(a).
The Post-9/11 GI Bill provided broader benefits than
the prior bills, including payment of the actual amount of
tuition and fees plus a monthly housing stipend equal to
the basic military housing allowance in the area in which
the campus is located; plus a lump sum amount for books,
supplies, equipment, and other costs. 38 U.S.C.
§ 3313(c)(1)(B)(iv).
The Post-9/11 GI Bill includes provisions relevant to
multiple periods of service, and allows eligible veterans to
elect the education assistance under this Bill:
38 U.S.C. § 3322(h). Bar To Duplication of Eligibil-
ity Based on a Single Event or Period of Service.—
(1) Active-duty service.—
An individual with qualifying service in the Armed
Forces that establishes eligibility on the part of
such individual for educational assistance under
this chapter . . . shall elect (in such form and man-
ner as the Secretary may prescribe) under which
authority such service is to be credited.
***
§ 3327(a). Individuals Eligible To Elect Participa-
tion in Post-9/11 Educational Assistance.—
An individual may elect to receive educational as-
sistance under this chapter if such individual—(1)
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8 RUDISILL v. MCDONOUGH
as of August, 2009 . . . has used, but retains un-
used, entitlement under [the Montgomery GI Bill].
Section 3327(d)(2) authorizes veterans who were using pre-
viously available GI Bill benefits to switch to the more in-
clusive Post-9/11 benefits for “the number of months of
unused entitlement.” However, the Montgomery GI Bill
was not terminated and did not expire with enactment of
the Post-9/11 GI Bill. The following text of the Post-9/11
GI Bill produced the uncertainty reflected in the rulings of
the BVA and the Veterans Court that are the subject of this
appeal:
38 U.S.C. § 3327(d)(2). Limitation on entitlement
for certain individuals.— In the case of an individ-
ual making an election under subsection
(a) . . . , the number of months of entitlement of the
individual to educational assistance under this
chapter shall be the number of months equal to—
(A) the number of months of unused entitlement of
the individual under [the Montgomery GI Bill] as
of the date of the election[.]
The Post-9/11 GI Bill continued to recite, pursuant to §
3312(a), the aggregate period of 48 months of education as-
sistance for veterans with more than one period of qualify-
ing military service under § 3695:
38 U.S.C. § 3695. Limitation on period of assis-
tance under two or more programs.
(a) The aggregate period for which any person may
receive assistance under two or more of the provi-
sions of law listed below may not exceed 48 months
(or the part-time equivalent thereof).
[listing the eight GI Bills in effect, including the
Montgomery GI Bill and the Post-9/11 GI Bill].
After his third period of military service Mr. Rudisill
sought further education, and applied for Post-9/11 GI Bill
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RUDISILL v. MCDONOUGH 9
benefits. He had previously received 25 months and 14
days of Montgomery benefits, and in view of the cap of 48
months, he requested 22 months and 16 days of Post-9/11
benefits. He submitted VA Form 22-1990, “Application for
VA Educational Benefits,” and in the field “education ben-
efit being applied for” he selected “Chapter 33 [Post-9/11]
in Lieu of Chapter 30 [Montgomery].” J.A. 541.
The VA determined that he was entitled to only 10
months and 16 days of benefits, measured as the unused
remainder of his 36-month Montgomery entitlement. The
VA held that no additional entitlement arose, and that the
48-month statutory cap for veterans with multiple periods
of service did not apply. The VA explained:
Under the regulations which govern the Post 9/11
GI Bill, a client who elects to receive benefit under
the Post 9/11 GI Bill and who is eligible for the
Montgomery GI Bill (Chapter 30) benefit is re-
quired to make an irrevocable election to relinquish
his Chapter 30 benefits when claiming the Post
9/11 GI Bill. The law further states that entitle-
ment to the Post 9/11 GI Bill will be equal to the
client’s remaining entitlement under Chapter 30
on the effective date of the client’s irrevocable elec-
tion. . . . Based on [Mr. Rudisill’s] election, the law
dictates that the VA grants entitlement under the
Post-9/11 GI Bill not to exceed his remaining Chap-
ter 30 entitlement.
J.A. 521 (Decision, denying Mr. Rudisill’s request for addi-
tional entitlement under the Post-9/11 GI Bill).
Mr. Rudisill appealed to the BVA, arguing that the 48-
month total applies by statute to veterans with separate
qualifying tours of military service. The BVA rejected that
argument, stating that Mr. Rudisill’s election (on Form 22-
1990) to use Post-9/11 benefits in lieu of Montgomery ben-
efits limited his total eligibility to the unused remainder of
his Montgomery 36-month entitlement. BVA Op. at *4
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10 RUDISILL v. MCDONOUGH
(“[T]he Veteran’s completed online application via VA
Form 22-1990 in March 2015 was very clear that he did
elect Chapter 33 in lieu of Chapter 30 benefits, that this
election was irrevocable and could not be changed, and that
his benefits under Chapter 33 would be limited to the time
remaining under his Chapter 30 benefits unless he first
used all of the benefits under Chapter 30 before electing
Chapter 33.”).
The Veterans Court reversed the BVA’s decision. The
Veterans Court held that a veteran with multiple periods
of service who uses but does not exhaust Montgomery edu-
cation benefits, and then applies for Post-9/11 benefits af-
ter a separate period of service, is not limited to the total of
36 months provided for the Montgomery program. The
Veterans Court explained that “section 3327 does not apply
in this case,” i.e. in cases of “individuals with dual entitle-
ment based on multiple periods of service,” but rather, ap-
plies only in cases of “individuals with dual entitlement
based on a single period of service.” Vet. Ct. Op. at 332–34
(emphases in original). The Veterans Court held that Mr.
Rudisill’s third period of service separately entitled him to
a full term of education benefits under the Post-9/11 GI
Bill, subject to the 48-month aggregate cap.
On this appeal, the Secretary argues that the Veterans
Court misinterpreted the statute. The Secretary states
that Ҥ 3327(a)(1)(A) authorizes veterans who have used
some, but not all, of their [Montgomery] benefits to switch
to using Post-9/11 benefits. However, § 3327(d)(2)(A) lim-
its the entitlement to Post-9/11 benefits for that particular
subset of veterans to ‘the number of months of unused en-
titlement of the individual under’ MGIB ‘as of the date of
the election.’” Sec’y Br. 9.
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RUDISILL v. MCDONOUGH 11
DISCUSSION
I
Jurisdiction
Mr. Rudisill supports the decision of the Veterans
Court, but challenges our jurisdiction to receive this ap-
peal, based on the Solicitor General’s tardy approval of the
appeal filing as required by 28 C.F.R. § 0.20(b). Mr.
Rudisill states that the appeal was not timely filed.
Federal Circuit jurisdiction of decisions of the Veterans
Court is assigned by 38 U.S.C. § 7292(a), which authorizes
our review of the “validity of a decision of the [Veterans]
Court on a rule of law or of any statute or regulation . . . or
any interpretation thereof.” The notice of appeal must be
filed within 60 days of the final judgment. Id.; 28 U.S.C.
§ 2107(b). When the United States is the appellant, 28
U.S.C. § 518(a) provides that “the Attorney General and
the Solicitor General shall conduct and argue suits and ap-
peals in . . . the United States Court of Appeals for the Fed-
eral Circuit” unless “the Attorney General in a particular
case directs otherwise.”
In turn, the Solicitor General is responsible for “[d]eter-
mining whether, and to what extent, appeals will be taken
by the Government to all appellate courts.” 28 C.F.R.
§ 0.20(b). The filing of a notice of appeal is deemed to be a
determination “whether” an appeal will be taken, which
the Solicitor General is required to approve. Id.
Here the Veterans Court entered its final judgment on
January 7, 2020. Fifty-nine days later, on March 6, 2020,
the Secretary filed a Notice of Appeal, represented by the
Attorney General. On May 27, 2020, the Solicitor General
filed the requisite approval of the filing of the appeal. This
led to a Motion for Extension of Time; see Sec’y Reply in
Supp. of Mot. for Extension of Time, at 3 (ECF No. 19)
(“[T]he Solicitor General has completed his review. On
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12 RUDISILL v. MCDONOUGH
May 27, 2020 undersigned counsel received official author-
ization to proceed with this appeal.”).
Mr. Rudisill argues that this appeal was not timely
filed. He states that Federal Election Commission v. NRA
Political Victory Fund, 513 U.S. 88 (1994) (“FEC”) requires
this result, for the Supreme Court held that the agency’s
petition for certiorari was untimely because it was not au-
thorized by the Solicitor General until after the time for
filing the petition had expired, although the petition was
filed within the statutory period. The Court applied 28
C.F.R. § 0.20(a), the Supreme Court counterpart of 28
C.F.R. § 0.20(b), and concluded: “[T]he FEC is not author-
ized to petition for certiorari in this Court on its own, and
that the effort of the Solicitor General to authorize the
FEC’s petition after the time for filing it had expired did
not breathe life into it.” Id. at 90.
The Secretary responds by distinguishing FEC on the
facts thereof, where the initial filing was not by the Attor-
ney General but by the FEC in its own name. The Secre-
tary cites several circuit court decisions where the Attorney
General filed a Notice of Appeal within the statutory period
and the Solicitor General’s authorization was permitted to
be filed later. For example, in Hogg v. United States, 428
F.2d 274 (6th Cir. 1970), Hogg argued that “the Govern-
ment’s timely notice of appeal . . . is fatally defective be-
cause it was filed by the United States Attorney at a time
when the Solicitor General had not authorized the appeal.”
Id. at 277. The Sixth Circuit rejected this theory, reason-
ing that the “Attorney General has plenary power over the
conduct of litigation to which the United States is a party”
and a “regulation defining the jurisdiction of the Solicitor
General” does not “foreclose[] the Attorney General from
directing that a notice of appeal be filed,” id. at 278,
thereby meeting the jurisdictional requirements.
In United States v. Hill, 19 F.3d 984 (5th Cir. 1994), the
Fifth Circuit applied the reasoning in Hogg to the current
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RUDISILL v. MCDONOUGH 13
version of 28 C.F.R. § 0.20(b), and ruled that any delay in
approval by the Solicitor General does not negate the time-
liness of a Notice of Appeal filed by the Attorney General,
and they have authority to file protective notices of appeal
pending the Solicitor General’s decision whether to author-
ize the appeal.
We discern no reason to depart from this rationale.
The Secretary explains: “given the extensive and time-con-
suming process the Government follows in order to pursue
affirmative appeals, it is not uncommon for so-called ‘pro-
tective’ notices of appeal to be filed, pending a final decision
from the Solicitor General.” Sec’y Reply Br. 2 (internal ci-
tation omitted). This practice is “routine and consistent
with the Solicitor General’s role in authorizing appeals.”
Id. at 3. The Department of Justice Directive 1-15, § 6, at
28 C.F.R. Pt. 0, Subpt. Y., App. states: “Until the Solicitor
General has made a decision whether an appeal will be
taken, the Government attorney handling the case must
take all necessary procedural actions to preserve the Gov-
ernment’s right to take an appeal, including filing a protec-
tive notice of appeal when the time to file a notice of appeal
is about to expire and the Solicitor General has not yet
made a decision.”
We conclude that the jurisdictional requirement for fil-
ing this appeal was met by the filing of the notice of appeal
by the Attorney General within 60 days, and its subsequent
approval by the Solicitor General.
II
Statutory Interpretation: Veterans With Mul-
tiple Periods of Qualifying Service
The Veterans Court stated: “The precise question the
Court must answer in this appeal is: how does the law treat
a veteran who qualifies for the Montgomery GI Bill under
one period of service and the Post-9/11 GI Bill under an en-
tirely separate qualifying period or periods of service?”
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14 RUDISILL v. MCDONOUGH
Vet. Ct. Op. at 9. The government’s position is that, for
veterans with multiple periods of service, Ҥ 3327(a)(1)(A)
authorizes veterans who have used some, but not all, of
their MGIB benefits to switch to using Post-9/11 benefits.
However, § 327(d)(2)(A) limits the entitlement to Post-9/11
benefits for that particular subset of veterans to ‘the num-
ber of months of unused entitlement of the individual un-
der’ MGIB ‘as of the date of the election.’” Sec’y Br. 9
(quoting § 3327(d)(2)(A)). That was the ruling of the BVA.
The Veterans Court did not agree. The court reviewed
the history and legislative intent of the GI Bills, and con-
cluded that the correct interpretation of § 3327(d)(2)(A) is
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.”
Vet. Ct. Op. at 328. The statute states:
[T]he number of months of entitlement of the indi-
vidual to educational assistance under this chapter
shall be the number of months equal to— (A) the
number of months of unused entitlement of the in-
dividual under [the Montgomery GI Bill] as of the
date of the election.
38 US.C. § 3327(d)(2). The Veterans Court held that § 3327
does not apply to veterans having periods of intermittent
qualifying service; rather, those veterans are subject to the
48-month aggregate cap.
Again on this appeal, the Secretary states that since
Mr. Rudisill drew on his first two periods of active service
for Montgomery GI Bill benefits, and used 25 months 14
days thereof, he was entitled to only the remaining period
of 10 months 16 days for the Post-9/11 GI Bill benefits he
elected based on his subsequent qualifying service. The
Secretary thus argues that the applicable cap for Mr.
Rudisill is the period of entitlement for Montgomery bene-
fits, that is, 36 months. Sec’y Br. 28 (“Mr. Rudisill’s
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RUDISILL v. MCDONOUGH 15
entitlement to Post-9/11 benefits [is] limited to his period
of unused [Montgomery] entitlement.”).
The Veterans Court did not share the Secretary’s stat-
utory interpretation, and we agree. The legislation explic-
itly provides additional benefits to veterans with multiple
periods of qualifying service, whereby each period of ser-
vice qualifies for education benefits, with the limit that:
“The aggregate period for which any person may receive
assistance under two or more of the provisions of law listed
below may not exceed 48 months (or the part-time equiva-
lent thereof),” codified at 38 U.S.C. § 3695(a). This provi-
sion has been in each GI Bill since at least 1968. See Finley
v. United States, 490 U.S. 545, 554 (1989) (“Under estab-
lished canons of statutory construction, ‘it will not be in-
ferred that Congress, in revising and consolidating the
laws, intended to change their effect unless such intention
is clearly expressed.’” (quoting Anderson v. Pac. Coast S.S.
Co., 225 U.S. 187, 199 (1912)).
The statutory pattern does not support the interpreta-
tion urged by the Secretary whereby veterans with multi-
ple periods of qualifying service would be limited to the cap
applicable to the initial period. The Veterans Court cor-
rectly held that each period of service earns education ben-
efits, subject to its cap of 48 aggregate months of benefits.
CONCLUSION
Mr. Rudisill is entitled to Post-9/11 GI Bill benefits for
his graduate education, subject to the cap of 48 aggregate
months of benefits including the period for which he re-
ceived Montgomery benefits.
AFFIRMED
Case: 20-1637 Document: 56 Page: 16 Filed: 07/08/2021
United States Court of Appeals
for the Federal Circuit
______________________
JAMES R. RUDISILL,
Claimant-Appellee
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellant
______________________
2020-1637
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-4134, Chief Judge Margaret C.
Bartley, Judge Michael P. Allen, Senior Judge Mary J.
Schoelen.
______________________
DYK, Circuit Judge, concurring in part and dissenting in
part.
The majority holds that the Secretary of Veterans Af-
fairs timely filed the notice of appeal in this case. Maj.
Op. 13. I agree and join Part I of the majority’s opinion.
In Part II, the majority also holds that all “veterans
with multiple periods of qualifying service” are entitled to
“additional benefits” up to “48 aggregate months of bene-
fits.” Maj. Op. 15. This seems to me to be directly contra-
dictory to the statute (38 U.S.C. § 3327), as the government
argues. Section 3327 unambiguously limits the educa-
tional benefits available to all veterans who switch from
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2 RUDISILL v. MCDONOUGH
using the Montgomery GI Bill (“Montgomery”) to the Post-
9/11 GI Bill (“Post-9/11”), and who have not exhausted
their Montgomery eligibility, to the remaining period of el-
igibility for Montgomery benefits, which here is less than
what the majority allows.
The statute defines the scope of veteran educational as-
sistance. Depending on their service, veterans may be eli-
gible for educational assistance under multiple programs
at the same time, including the Montgomery and Post-9/11
programs. By statute, there is an overall 48-month limit
on the receipt of educational assistance. 38 U.S.C.
§ 3695(a). According to the majority, this is the only limit
that applies here. However, a second and additional stat-
utory limit also applies when a veteran initially elects to
receive assistance under the Montgomery program, but
later elects to switch to Post-9/11 assistance while retain-
ing unused entitlement under the Montgomery program.
Id. § 3327(a)(1)(A). Under this circumstance,
the number of months of entitlement of the individ-
ual to educational assistance under [the chapter
governing Post-9/11 entitlement] shall be the num-
ber of months equal to . . . the number of months
of unused entitlement of the individual under chap-
ter 30 of this title [governing Montgomery bene-
fits], as of the date of the election.
Id. § 3327(d)(2)(A). 1
Here, Mr. Rudisill is an “individual” entitled to
Post-9/11 benefits because “on or after September 11,
2001,” he “serve[d] an aggregate of at least 36 months on
1 The statute provides for an exception, not at issue
here, equal to “the number of months, if any, of entitlement
revoked by the individual under subsection (c)(1),” which
relates to the transfer of basic educational assistance to
family members. 38 U.S.C. § 3327(d)(2)(B).
Case: 20-1637 Document: 56 Page: 18 Filed: 07/08/2021
RUDISILL v. MCDONOUGH 3
active duty” and was later honorably discharged from ac-
tive duty. Id. § 3311(b)(1)(A), (c)(1). He is additionally an
“individual” entitled to Montgomery benefits because “dur-
ing the period beginning July 1, 1985, and ending Septem-
ber 30, 2030,” he “first enter[ed] on active duty as a
member of the Armed Forces” and “serve[d] at least three
years of continuous active duty,” “complete[d] the require-
ments of a secondary school diploma . . . before applying for
benefits,” and was later “discharged from active duty with
an honorable discharge.” Id. § 3011(a). Finally,
Mr. Rudisill made the election described in § 3327(a)(1)(A),
switching from the Montgomery program to the Post-9/11
program while he had 10 months and 16 days of unused
Montgomery entitlement remaining. The VA correctly de-
termined that under the explicit language of the statute,
Mr. Rudisill was limited to 10 months and 16 days of Post-
9/11 benefits and not to the 22 months and 16 days he
would be allowed if only the 48-month cap applied.
The majority construes § 3327(d)(2) as applying only to
veterans with dual eligibility based on a single period of
service, and not to veterans like Mr. Rudisill who have
earned benefits for multiple periods of service.
Maj. Op. 15. However, nothing in the language or history
of the relevant statutes remotely justifies such an interpre-
tation, and the majority indeed applies little effort to jus-
tify its interpretation. It is not our job to rewrite the
statute to achieve a supposedly fair result. I respectfully
dissent.