[00:00:00] Speaker 04: Right, the next argued case is number 20-1637, Rutisill against Wilkie, Ms. [00:00:06] Speaker 04: Fomenkova. [00:00:09] Speaker 00: Good morning. [00:00:10] Speaker 00: May it please the court? [00:00:12] Speaker 00: There is no dispute that Mr. Rutisill used some but not all of his Montgomery GI benefits when he elected to use post-9-11 benefits. [00:00:22] Speaker 00: And the sole question that was before the VA, the Veterans Court, and now this court, [00:00:27] Speaker 00: is how many months of post-911 GI benefits can he now receive from the VA? [00:00:33] Speaker 00: Luckily, Congress envisioned exactly this situation and provided an answer precisely to this question. [00:00:41] Speaker 00: And that answer was provided in Section 3327, D2A, which was entitled, A Limitation on Entitlement for Certain Individuals. [00:00:51] Speaker 00: Namely, those individuals who had used some but not all of their Montgomery benefits like Mr. Rudasil. [00:00:58] Speaker 00: And in Section 3327, D2A, Congress stated that for those individuals, the number of months of entitlement to post-911 benefits shall be the number of months of unused entitlement under the Montgomery GI Bill. [00:01:16] Speaker 00: And that is what the VA originally granted Mr. Rudisill and there's no dispute about what the number of those months is. [00:01:24] Speaker 00: And therefore, in our view, Section 3327 clearly and ambiguously addresses the sole question that was before the Veterans Court. [00:01:33] Speaker 00: And the Veterans Court fundamentally erred by refusing to consider that statutory section at all. [00:01:41] Speaker 00: Now, the distinction that the Veterans Court drew [00:01:44] Speaker 00: and the distinction that Mr. Rudasill continues to advance on appeal is that Section 3327 does not apply to him because he had multiple periods of service as opposed to a single period of service. [00:01:57] Speaker 01: Counsel, let me ask you a question. [00:01:59] Speaker 01: Do we need to actually have to define periods of service? [00:02:03] Speaker 01: How would you define a period of service? [00:02:05] Speaker 01: What are we talking about? [00:02:08] Speaker 00: So, Your Honor, I think this court does not need to define a period of service in order to resolve this case. [00:02:13] Speaker 00: because the parties do not dispute that Mr. Rudisill, in fact, had multiple periods of service. [00:02:21] Speaker 00: I don't know that there is an explicit definition for that, for purposes of the distinction that the Veterans Court drew. [00:02:28] Speaker 00: The Veterans Court majority explicitly did not make a definition of that. [00:02:34] Speaker 00: I think that the VA in other contexts has relied on re-enlistment periods to define a period of service. [00:02:40] Speaker 00: But fundamentally, for the purposes of this case, [00:02:43] Speaker 00: That's sort of not in dispute because we agree that Mr. Rudasill had multiple periods of service. [00:02:51] Speaker 00: Where we disagree is that Section 3327 makes any distinction on that basis. [00:02:57] Speaker 00: And in fact, there is no language that either the Veterans Court or Mr. Rudasill has ever identified anywhere in Section 3327 that makes any mention of periods of service. [00:03:10] Speaker 00: draws any distinction based on the number of periods of service, or excludes veterans with multiple periods of service from its reach. [00:03:20] Speaker 03: And that's... Just back up for a moment. [00:03:24] Speaker 03: As I understand the statute the way it now reads, that if you have a, you have to have 36 months to qualify for educational benefits, am I right about that? [00:03:38] Speaker 00: So, Your Honor, it slightly depends on which active duty program is at issue. [00:03:47] Speaker 00: So, if you serve continuously for 36 months after 2001 under active duty in that voluntary service, then that theoretically can qualify you for either Montgomery benefits or post-9-11 benefits. [00:04:06] Speaker 00: There are further requirements. [00:04:08] Speaker 03: What we're talking about here is two classes of veterans. [00:04:13] Speaker 03: Those who have served a continuous period, let's say two 36-month periods, they've served continuously for 72 months. [00:04:24] Speaker 03: And then we're talking alternatively about a veteran who serves two 36-month periods, but they're not active, right? [00:04:35] Speaker 00: And so, Your Honor, I don't believe that the statute draws a distinction between those two groups of veterans. [00:04:41] Speaker 03: Wait, wait, wait. [00:04:44] Speaker 03: And then we have in 3322 I, a statement that a veteran who's only served 36 months can't get benefits under both programs and has to elect one or the other. [00:04:58] Speaker 03: But that's not what we're concerned with here. [00:04:59] Speaker 03: We're concerned with whether 3327 [00:05:04] Speaker 03: appears to apply both to a veteran with a single period of service, say, 72 months, and with a veteran who has two separate 36-month periods. [00:05:19] Speaker 03: That's a way of looking at it, right? [00:05:22] Speaker 00: Yes. [00:05:23] Speaker 00: I would agree with that, Your Honor. [00:05:24] Speaker 00: That is the question. [00:05:26] Speaker 03: And your contention is that 3327D [00:05:32] Speaker 03: applies both to those who have earned the benefits by a single period of service and those who have earned the benefits by multiple periods of service, right? [00:05:41] Speaker 00: Correct, Your Honor. [00:05:42] Speaker 00: And specifically, it applies to the 3327D2A, which is where the limitation that is at issue is found, applies specifically to the group of veterans [00:05:58] Speaker 00: who had used some but not all of their Montgomery benefits. [00:06:02] Speaker 00: But irrespective of whether they sort of started using Montgomery benefits as a result of a single period of service or as a result of multiple periods of service. [00:06:14] Speaker 03: If you are a veteran. [00:06:16] Speaker 03: What the veteran is arguing here is that 3327D only applies to someone who's earned benefits through a single period of service. [00:06:26] Speaker 03: and not to people who've earned benefits by two periods of service, correct? [00:06:33] Speaker 00: That's correct. [00:06:34] Speaker 00: And that was the distinction that the Veterans Court majority also drew. [00:06:39] Speaker 00: But that distinction, neither the Veterans Court majority nor Mr. Rudisville has ever identified any language in 3327 itself that would make such a distinction. [00:06:51] Speaker 00: And that silence by Congress is telling in this context, particularly because that is a distinction that they have drawn elsewhere in the statute. [00:07:02] Speaker 00: And most explicitly in 3322H, which was added in 2011, a couple years after the post-911 bill was enacted. [00:07:14] Speaker 03: I think you're not right about that. [00:07:16] Speaker 03: I think that 3322H, [00:07:19] Speaker 03: H is dealing with an entirely different situation. [00:07:22] Speaker 03: And that is where a veteran has one 36-month period of service and is trying to get benefits under both programs. [00:07:30] Speaker 03: And Congress says you can't do that. [00:07:34] Speaker 00: And I agree with that, Your Honor. [00:07:35] Speaker 00: But the distinction that I wanted to make was that there, Congress explicitly drew a distinction between veterans that had a single period of service [00:07:46] Speaker 00: and multiple periods of service. [00:07:48] Speaker 00: And they did not correspondingly draw such a distinction in 3327. [00:07:53] Speaker 00: And therefore, I don't think that helps you. [00:07:57] Speaker 00: But go ahead. [00:07:59] Speaker 00: Fair enough, Your Honor. [00:08:00] Speaker 00: Regardless, 3327 does not say anything and does not have any language that would suggest that veterans with multiple periods of service would be excluded from the explicit limitation that Congress [00:08:15] Speaker 00: added in 3327 D2A. [00:08:19] Speaker 04: But the Council, there's no dispute here, is there, that no matter how many periods of service you have and no matter how lengthy each of those periods is still a maximum of 48 months of compensation. [00:08:38] Speaker 04: Isn't that right? [00:08:43] Speaker 00: I would disagree with that slightly. [00:08:45] Speaker 00: I think there is no dispute that the default that Congress envisioned for active duty service is 36 months of GI benefits. [00:08:55] Speaker 04: Talking about the combination now, if you have multiple periods of service, even if you have, let's say, two or three year periods of service, the maximum education benefit [00:09:10] Speaker 04: that you're entitled to is a total of 48 months. [00:09:15] Speaker 04: That seems to be what the statute says. [00:09:17] Speaker 04: Is that not accurate? [00:09:20] Speaker 00: Your Honor, I would disagree with that slightly. [00:09:23] Speaker 00: The 48 months here that comes from Section 3695 is a total aggregate limit on the receipt of education benefits. [00:09:31] Speaker 04: That's what I say, total aggregate limit no matter how many months of service you have. [00:09:37] Speaker 04: whether they're combined, separate, cumulative, or all one, that's the total aggregate limit, in which case, whether he had two 36-month enlistments or what, he could not exceed the 48 months, and I gather he's not asking to exceed the total of 48 months. [00:10:02] Speaker 04: Is that not what this case says? [00:10:06] Speaker 00: So, Your Honor, that limit is separate from the entitlement, because that applies not only to active duty service, it applies to all GI Bill education benefits, no matter sort of where they come from, including other programs that are not based on active duty service at all. [00:10:26] Speaker 00: The Chapter 36 is not itself a source of benefits. [00:10:30] Speaker 00: It is not an entitlement to benefits. [00:10:32] Speaker 03: I don't understand what you're arguing. [00:10:33] Speaker 03: I mean, obviously, the 48-month is an overall limit. [00:10:36] Speaker 03: But the point is, it's not the only limit. [00:10:39] Speaker 03: There's also the limit in 33-27. [00:10:41] Speaker 00: Exactly, Your Honor. [00:10:44] Speaker 00: Therefore, in this case, because Mr. Rudasill falls within the explicit limitation that's in 33-27, that sort of [00:10:54] Speaker 00: is an additional limit in addition to the 48 months. [00:10:57] Speaker 00: And so, given the posture that he was in, he never reaches the 48-month question because his entitlement is directly and more specifically addressed by 3327 D2A, which says that given the posture in which he applied for post-911 benefits, having used some but not all of his Montgomery benefits, he is entitled to post-911 benefits [00:11:20] Speaker 00: just for the period, the number of months that is his unused Montgomery entitlement. [00:11:27] Speaker 00: And so that is a more specific statute that Congress drafted that specifically addresses this particular situation and that controls in this case and sort of unambiguously resolves the question of how many months of post-9-11 benefits he could receive. [00:11:46] Speaker 00: And therefore, we never really need to get to Section 3695 at all because Congress addressed the question in 3327 G2A. [00:11:56] Speaker 00: And I see I've run out of my initial time. [00:12:00] Speaker 00: So if there are no more questions, I will reserve the remainder for rebuttal. [00:12:05] Speaker 04: So anything else for Ms. [00:12:06] Speaker 04: Fomenkova at the moment? [00:12:09] Speaker 04: All right, thank you. [00:12:10] Speaker 04: Save your rebuttal time and we'll hear from Mr. McHugh. [00:12:17] Speaker 02: May I please the court? [00:12:18] Speaker 02: This is Timothy McHugh for the claimant appellee, FBI Special Agent James Rudisill. [00:12:23] Speaker 02: This case is about whether Congress intended to prohibit post-911 veterans from crediting separately qualifying service to establish their post-911 GI Bill entitlement. [00:12:33] Speaker 03: What does 3327 mean? [00:12:35] Speaker 03: It seems to be pretty explicit that you have to exhaust your Montgomery benefits before you can go on to the 911 benefits. [00:12:47] Speaker 03: So how do you deal with the plain language of the statute? [00:12:51] Speaker 02: Your Honor, the plain language of 3322D and 3327 dictate that they are a mechanism for coordination of entitlement, a pre-existing established entitlement to a benefit like the Montgomery GI Bill. [00:13:05] Speaker 02: and coordinating that into entitlement for the post-911 GI Bill. [00:13:09] Speaker 03: Please answer my question directly. [00:13:11] Speaker 03: We have the language of 3327D, which seems to be explicit. [00:13:19] Speaker 03: To whom does that limitation apply? [00:13:22] Speaker 03: Why doesn't it apply to the veteran in this case? [00:13:28] Speaker 02: Your Honor, it applies to a veteran who wants to convert [00:13:32] Speaker 02: their existing entitlement based on one block of qualifying service and opt in under the permissive language of 3327, opt in to converting that to... It only applies to a veteran who's earned benefits by a single period of service and not somebody who's earned benefits by multiple periods of service? [00:13:54] Speaker 02: Your Honor, our view is that it applies to everyone. [00:13:57] Speaker 03: Tell me, is that correct or not correct? [00:14:00] Speaker 02: Your Honor, that's not entirely correct. [00:14:02] Speaker 02: Our view is that the provisions apply to any veteran who wants to convert an existing entitlement, regardless of how many periods of service they have, and use one of those periods to convert from MGIB, for example, into post-911 entitlement. [00:14:18] Speaker 02: But it's a permissive mechanism. [00:14:20] Speaker 02: It was designed as an expansion of GI Bill entitlement because veterans who had already credited their qualifying service to other benefits [00:14:29] Speaker 02: would have been unable to participate in the post 9-11 program because they had tithers. [00:14:34] Speaker 03: I'm not understanding what you're saying. [00:14:35] Speaker 03: It's permissive. [00:14:36] Speaker 03: I mean, it says that a veteran can only receive 9-11 benefits once he or she has exhausted the Montgomery benefits. [00:14:49] Speaker 03: What's unclear about that? [00:14:51] Speaker 02: Well, Your Honor, 3327 nor 3322D ever say anything about exhausting entitlement. [00:14:57] Speaker 02: They don't provide for that. [00:14:59] Speaker 02: And instead, all they provide for, and I'm looking at 3327A in particular right now, it says an individual may elect to receive educational assistance under this chapter. [00:15:08] Speaker 02: And then under D1 of 3327, it says when that election is made, that permissive choice is made, then the veteran shall be entitled to educational assistance under this chapter [00:15:22] Speaker 02: in accordance with the provisions of this chapter instead of basic educational systems under Chapter 30 and the other possible programs. [00:15:30] Speaker 02: It's a choice. [00:15:30] Speaker 03: It's the number of months you get. [00:15:31] Speaker 03: It says if you're entitled to both that the number of months you get under the 9-11 thing is the same number of months [00:15:46] Speaker 03: the 36 months that you would get originally unless you've exhausted your Montgomery benefits, in which case you get more months. [00:15:55] Speaker 03: What's wrong with that? [00:15:56] Speaker 03: I mean, it's right on the face of it. [00:15:58] Speaker 02: Well, Your Honor, the conversion ratio and the limitation there on months of benefits under the post-911 program makes sense when you visualize this as a conversion of existing entitlement. [00:16:09] Speaker 02: Existing entitlement, which is established based on a specific [00:16:13] Speaker 02: period of qualifying service that the veteran has already locked into entitlement to say the Montgomery program. [00:16:19] Speaker 02: If they've started using that entitlement and have less than 36 months of benefits available remaining to them under the Montgomery program, they are converting that into post-911 entitlement. [00:16:29] Speaker 02: They're redeeming what they have left for that period of service and saying, I want now instead. [00:16:34] Speaker 03: I am not understanding what you're saying. [00:16:37] Speaker 03: Is your client described in 3327A1? [00:16:43] Speaker 03: A, he as of August 20 is entitled to basic educational benefits under Montgomery and has used but retains unused entitlement. [00:16:55] Speaker 03: He's covered by that. [00:16:56] Speaker 03: He's described there, right? [00:16:59] Speaker 02: Yes, Your Honor. [00:16:59] Speaker 02: He does meet that definition, that provision. [00:17:02] Speaker 03: However, doesn't D then tell us that he's limited to 30? [00:17:11] Speaker 03: Your Honor, it's. [00:17:13] Speaker 03: unless he's exhausted his Montgomery benefits? [00:17:17] Speaker 02: Your Honor, no, it does not tell us that. [00:17:20] Speaker 02: What 3327D and the rest of its provisions provide is that for a veteran who wants to make that conversion, who wants to coordinate their existing entitlement into post-911 entitlement, they would be so limited. [00:17:33] Speaker 02: Mr. Rudisill chose a different path. [00:17:35] Speaker 02: When he applied for benefits, he identified service [00:17:38] Speaker 02: that had never been used for establishing his Montgomery entitlement. [00:17:41] Speaker 02: He was seeking to meet the criteria of 38 USC 3311, which defines what qualifying service is. [00:17:48] Speaker 02: And to answer a question that came out in opening argument, it defines what periods of service are. [00:17:53] Speaker 02: It provides for what the qualifying service is that establishes entitlement to post-911 benefits. [00:17:59] Speaker 02: And he was trying to credit that service under 3322H1 by saying, I have a block of qualifying service [00:18:06] Speaker 02: that could entitle me to Montgomery benefits or post-911 benefits, and I'm choosing to put those into the post-911 program, thereby locking them in and establishing my entitlement. [00:18:16] Speaker 03: I really do not understand what you're saying. [00:18:18] Speaker 03: You agree that your client is describing 3327A1. [00:18:22] Speaker 03: Now, if you go to D2, we say in the case of an individual making an election under subsection A who's described in paragraph 1A of that section, that's your client, isn't it? [00:18:37] Speaker 02: Yes, Your Honor, I mean, he is described by that, but he is not choosing, he is not making an election. [00:18:43] Speaker 02: Even though he had retained or had unused Montgomery entitlement, he was not making an election under 3327. [00:18:50] Speaker 02: He had no need to. [00:18:51] Speaker 02: He was trying to take full advantage of benefits under both programs subject to the 48-month cap as 3311 provides, as 3312 provides, and granting him 36 months of benefits if he's able to. [00:19:04] Speaker 02: established that he has qualifying service not used for other benefits programs. [00:19:09] Speaker 02: That's what he's trying to do. [00:19:10] Speaker 02: And the VA has forced him into the 3327 trap by setting up its form to require anyone applying for post-9-11 benefits, regardless of what their qualifying service is, to make the election that is provided for in 3327 for some veterans. [00:19:30] Speaker 02: Mr. Rudofill is not one of those veterans. [00:19:32] Speaker 02: He does not need to make that choice, and he was not trying to make that choice. [00:19:37] Speaker 02: 3322D and 3327 provide a benefit to veterans. [00:19:42] Speaker 02: They are a permissive way for veterans who did not previously have the choice to credit their qualifications. [00:19:48] Speaker 03: Don't you have to get benefits under this chapter, the 9-11 chapter? [00:19:52] Speaker 03: Don't you have to make an election to get the benefits? [00:19:56] Speaker 02: You don't, Your Honor, you have to make an election of where to, either where to credit service that has not been previously used, that would be a period of service election under 3322H1, or after an election has already been made, such as under H1, and you've credited service to, say, the Montgomery program, but change your mind later and want to switch that over to the post-911 program, then you coordinate that existing entitlement, that property interest, that right that you have, [00:20:25] Speaker 02: and you coordinated under 3322D and 3327 and choose, you elect to say I want now post 9-11 benefits instead of the pre-existing entitlement to Montgomery benefits. [00:20:40] Speaker 02: Under that view, this creates, this allows all veterans who have qualifying service to have the freedom of choice into how they are going to use their benefits. [00:20:51] Speaker 02: If they meet the qualifying service criteria of only [00:20:53] Speaker 02: although they only have enough service, excuse me, qualifying service to only obtain benefits under one program, they have to pick and choose. [00:21:00] Speaker 02: And if they are going to convert to post-911 benefits and have already been using Montgomery, they're limited, understandably. [00:21:06] Speaker 02: Congress was not creating a windfall here and letting folks who had minimal service get two very generous benefits. [00:21:14] Speaker 02: But if they are able to separately qualify for both programs, consistent with historical practice and all other indications in the statutory and regulatory scheme, [00:21:22] Speaker 02: they are allowed to establish those entitlements and use them separately up to the 48-month aggregate cap. [00:21:32] Speaker 02: So ultimately, the distinctions made under the statutory scheme in 3322H1, there it is talking about potential entitlement. [00:21:41] Speaker 02: It's talking about eligibility, qualifying service that may make you eligible for one program or another. [00:21:46] Speaker 02: That dictates a primary choice to establish entitlement in the first place. [00:21:50] Speaker 02: 3322D and 3327 are talking about entitlement. [00:21:54] Speaker 02: That's the plain language hook that we're talking about here that tells you that this is about something that has already been established. [00:22:02] Speaker 02: That entitlement is based on very specific dates, very specific qualifying service that the veteran had to identify and they have locked into an existing program. [00:22:11] Speaker 02: They want to convert that entitlement to something else. [00:22:16] Speaker 02: Ultimately, there's no indication [00:22:18] Speaker 02: in the statutes or in the legislative history or elsewhere that Congress intended anything like what the Secretary is providing for here. [00:22:26] Speaker 02: The Secretary's own regulations don't provide for it. [00:22:28] Speaker 02: They provide for a scheme exactly like what we argue for and what the Veterans Court held. [00:22:34] Speaker 02: It's simply the form that contains a mistake and requires Veterans to abandon established entitlements to obtain post-9-11 entitlement. [00:22:44] Speaker 02: that dictates this and hence the VA. [00:22:48] Speaker 03: 3327 doesn't apply to anybody, either a veteran with multiple periods of service or a veteran with a single period of service that exceeds 2036 months. [00:23:00] Speaker 03: It doesn't apply to anybody unless they elect to be under this section. [00:23:04] Speaker 03: Is that it? [00:23:05] Speaker 02: Your Honor, slightly different way to word it. [00:23:08] Speaker 02: Our view is that it applies to everyone. [00:23:13] Speaker 02: If they want to choose to convert existing entitlement, they have to follow 3327. [00:23:20] Speaker 03: So if they have, let's say, four years of service only and they... It only applies to the people who choose to be limited by the section? [00:23:30] Speaker 02: That's correct. [00:23:31] Speaker 02: But if that person, say, only has 36 months of service, there is not a scenario in which they could get post-9-11 benefits if they've already credited that service to Montgomery benefits. [00:23:41] Speaker 02: So they would have to, if they want to take advantage of a post-911 GI bill, they have to convert. [00:23:45] Speaker 02: They have to go through 3322D and 3327. [00:23:50] Speaker 02: It's an option. [00:23:50] Speaker 02: It's a choice available to folks that Congress created for those folks that want to convert after they've made a decision already for whatever reason. [00:23:59] Speaker 02: But that's not our client. [00:24:01] Speaker 02: Our client is not in that situation as the Veterans Court identifies. [00:24:06] Speaker 02: There's no need for him to make that choice. [00:24:08] Speaker 02: It would be against his interest to make that choice because he can separately credit his remaining qualifying service to the Post-911 program and independently establish that entitlement and use it to its maximum. [00:24:20] Speaker 01: Counsel, real quickly, could you address the jurisdiction issue? [00:24:24] Speaker 02: Yes, Your Honor. [00:24:25] Speaker 02: Our view is that the court does not have jurisdiction here. [00:24:29] Speaker 02: The Solicitor General has the authority to make all decisions on appeals. [00:24:33] Speaker 02: Others have specific authority to take protective notices of appeals in enumerated cases. [00:24:38] Speaker 02: This is not one of those cases, however. [00:24:40] Speaker 02: The Solicitor General has explained the general rule in the Flynn case, which we cited in our 28J letter. [00:24:46] Speaker 02: There, the Solicitor General stated, and I quote, entities in the federal government generally must obtain authorization from the Solicitor General before filing appeals. [00:24:56] Speaker 02: Here in the motions practiced before this court, the Secretary conceded that he did not have the Solicitor General's authorization. [00:25:03] Speaker 02: And that didn't come until 79 days after the running of the statutory limitations period. [00:25:09] Speaker 02: In response, in its reply brief, the secretary has only cited DOJ Directive 1-15. [00:25:15] Speaker 02: On its face, Section 6 of that directive applies only to what are explained or described as direct reference or delegated cases. [00:25:24] Speaker 01: Those are cases where a US attorney... Why shouldn't we look at that and say that's just an internal governmental directive? [00:25:34] Speaker 01: And yet, it doesn't affect the jurisdiction of the court as a whole under the jurisdictional statutes of the court. [00:25:45] Speaker 02: Well, Your Honor, I think that the Supreme Court's decision in FEC explains why that is important, why the court must look at this. [00:25:52] Speaker 02: It's not the case that a government entity without authority can't file a notice of appeal in any situation. [00:25:58] Speaker 02: However, if they didn't have the adequate authority to do so in the first place, that authority must be provided within the statutory limitations period. [00:26:06] Speaker 02: Otherwise, the Solicitor General, for example, could extend jurisdictional time limits to days, weeks, or months later exactly as happened here. [00:26:13] Speaker 02: The Solicitor General and the Attorney General have established their internal scheme for good reasons, I assume, and do not want cases like, for example, in Flynn where [00:26:24] Speaker 02: A district court judge sought petition for rehearing en banc without the Solicitor General's authority for approval. [00:26:30] Speaker 02: The Solicitor General and the Attorney General have consolidated litigation authority into the Solicitor General's office except for in specific cases. [00:26:38] Speaker 02: And it's simply not one of these cases. [00:26:40] Speaker 02: The DOJ directive on its face does not apply to this situation. [00:26:43] Speaker 02: And that's what the government is pointed to as its authority. [00:26:49] Speaker 02: The directive in section four describes the types of cases that are covered by section six and this is not one of those. [00:26:56] Speaker 02: There's no provision for the secretary who is represented himself by his office of general counsel in the veterans court to hold the federal government to taking an appeal to this court without the solicitor general's approval. [00:27:09] Speaker 02: There's no directive that provides for that. [00:27:13] Speaker 03: So the hog case and the cases that are followed are all wrong? [00:27:18] Speaker 02: Your Honor, they're not wrong, ultimately. [00:27:21] Speaker 02: They were examples of cases where there was specific authority for someone else to take the appeal. [00:27:28] Speaker 03: In Hogg, there was... I'm not understanding what the difference is between this case and Hogg. [00:27:33] Speaker 02: What's the difference? [00:27:36] Speaker 02: Your Honor, I see him nearly out of time. [00:27:38] Speaker 04: Please answer the question. [00:27:41] Speaker 02: Your Honor, the difference here is that Hogg did involve a policy, a directive, a direction, what have you, [00:27:48] Speaker 02: from an official with authority to file the notice of appeal. [00:27:52] Speaker 02: So there was no issue there. [00:27:53] Speaker 02: There was an exception to the Solicitor General's exclusive authority, which applied. [00:27:58] Speaker 02: Here, there is no such exception. [00:28:00] Speaker 02: The only source of authority the government has cited is the directive, which applies to cases handled by US attorneys at the trial level or the lower court level, not cases where the secretary has represented himself and the federal government hasn't decided yet whether it wants to press that appeal and those arguments on appeal. [00:28:23] Speaker 02: Without an expressed delegation from the Solicitor General or some other exception to the regulation that best the authority in the Solicitor General's office, there's no jurisdiction here for the court because the Secretary did not have adequate authority to file his appeal. [00:28:39] Speaker 02: And unless the court has any other questions, we would respectfully request that the court affirm the Veterans Court and allow veterans like Mr. Russel and all others to use the full amount of entitlement that Congress has provided them. [00:28:50] Speaker 04: Okay, any more questions for Mr. McHugh? [00:28:54] Speaker 04: Hearing none, all right, we'll hear a rebuttal from Ms. [00:28:57] Speaker 04: Fomenkova. [00:29:00] Speaker 00: Yes, Your Honor. [00:29:01] Speaker 00: In our view, this case starts, stops, and is fully resolved by Section 3327 D2A. [00:29:09] Speaker 00: That section specifically states that the limitation that it imposes applies to the group of veterans that is defined by subsection A1A [00:29:22] Speaker 00: And we just heard from Mr. Rutasill's counsel that they do not dispute that Mr. Rutasill meets the definition in A1A. [00:29:29] Speaker 00: And in our view, that fully resolves this case. [00:29:33] Speaker 00: And Congress explicitly says what happens to those veterans and how many months of post-911 benefits they can receive and limits that to the number of unused Montgomery benefits. [00:29:47] Speaker 00: Now, as I understood the argument today, [00:29:51] Speaker 00: from Mr. Rudolph's counsel is that they view Section 3327 as essentially undoing the election that is required in Section 3322H. [00:30:02] Speaker 00: And I respectfully submit that there is no evidence that that is what Congress intended. [00:30:10] Speaker 00: There's no language in 3327 to suggest that that is how it was intended to apply. [00:30:16] Speaker 00: There's no language in 3322H, frankly, that suggests that that is an undoable election in any event. [00:30:24] Speaker 00: And therefore, there is really no dispute anymore as to what Section 3327D2 does or that the explicit definition of to whom it applies covers Mr. Rudasill. [00:30:42] Speaker 00: And therefore, the Veterans Court fundamentally erred by refusing to consider the language in Section 3327 at all, and therefore erred in deciding that it does not apply to Mr. Rudisill when he plainly meets the terms that are established there. [00:30:59] Speaker 00: And therefore, this Court should reverse that error and apply the plain and unambiguous limitation found in 3327 D2A to Mr. Rudisill, who plainly falls within [00:31:11] Speaker 00: the definition of those individuals covered. [00:31:17] Speaker 00: The court has no other questions. [00:31:22] Speaker 04: Any more questions for counsel? [00:31:27] Speaker 04: Okay. [00:31:28] Speaker 04: Thank you. [00:31:29] Speaker 04: Thanks to both counsels. [00:31:30] Speaker 04: The case is taken under submission. [00:31:32] Speaker 04: That concludes the argued cases for this panel this morning. [00:31:39] Speaker 00: The honorable court is adjourned until tomorrow morning at 7 a.m.