[00:00:00] Speaker 03: We have 20-1637, Rudisill versus McDonough. [00:00:07] Speaker 03: Ms. [00:00:09] Speaker 03: Fomenkova? [00:00:11] Speaker 03: Ms. [00:00:11] Speaker 03: Fomenkova, please proceed. [00:00:13] Speaker 06: Good morning. [00:00:14] Speaker 06: May it please the court? [00:00:16] Speaker 06: This case is about one aspect of how Congress integrated the post-911 program of education benefits [00:00:24] Speaker 06: on top of the existing program of Montgomery education benefits. [00:00:29] Speaker 06: And specifically, the question before the court is how many months of post-9-11 benefits Congress gave to veterans who have used some but not all of their Montgomery benefits when they elected to switch to the post-9-11 program. [00:00:46] Speaker 06: And in statutory terms, [00:00:48] Speaker 06: That question comes down to, to whom does the limit in 3327D2 apply? [00:00:54] Speaker 06: And does the universe of certain individuals that are encompassed by that limit exclude veterans with multiple periods of qualifying service? [00:01:04] Speaker 06: And it does not. [00:01:06] Speaker 06: Section 3327 does not differentiate between veterans based on how they earned their dual entitlement to Montgomery and post-9-11 benefits. [00:01:17] Speaker 06: It doesn't say anything about periods of service. [00:01:20] Speaker 06: And therefore, the limitation in 3327D2 applies to all veterans who have used but retain unused Montgomery benefits when they elect to switch to the post-911 program, because they are then described in 3327A1A. [00:01:40] Speaker 06: And that is what 3327 D2 specifically refers to. [00:01:45] Speaker 05: What would Congress have had to say to ensure that your friend on the other side would receive benefit under these circumstances? [00:01:54] Speaker 05: I mean, Congress could have done it, right? [00:01:56] Speaker 05: You agreed Congress could have explicitly said it. [00:01:58] Speaker 05: What would it have said? [00:02:00] Speaker 06: Certainly, they could have included a specific limitation that the election in 3327 A1A [00:02:08] Speaker 06: is not just limited to veterans who have used but retained unused Montgomery benefits, but that also have that dual entitlement based on a single period of service. [00:02:20] Speaker 06: So we see, for example, Congress addressing specifically veterans with a single period of service in 3322H. [00:02:26] Speaker 06: And Congress could have included an express limitation [00:02:32] Speaker 06: in defining the universe of certain individuals by referring to the number of periods of service that they have. [00:02:40] Speaker 06: They just didn't do that here. [00:02:41] Speaker 06: The definition does not. [00:02:43] Speaker 01: Can I ask you this question? [00:02:45] Speaker 01: Because I'm trying to consider the following example, which is not too far off this, but is this. [00:02:52] Speaker 01: So suppose you have a veteran with 72 months of service, so independently qualifying [00:02:59] Speaker 01: periods of service, at least 36 months after September 11th, so qualifies for Chapter 33 as well as Chapter 30. [00:03:07] Speaker 01: Suppose on August 1st, 2009, that veteran has used all but 10 months of the Chapter 30 benefits. [00:03:19] Speaker 01: So the veteran comes out of service and then uses the 10 months of Montgomery and then applies for post-9-11. [00:03:31] Speaker 01: Does he get them? [00:03:32] Speaker 01: He does. [00:03:33] Speaker 01: Now, how is that possible under the language of 3327? [00:03:37] Speaker 01: He, on August 1, 2009, is a person covered by A1A. [00:03:46] Speaker 01: You can't change that fact by later developments. [00:03:50] Speaker 01: He was such a person, which means D2 would seem to apply, subject to something. [00:03:58] Speaker 01: And D2 says he gets zero, because the number of months of Montgomery that he has at the time of election, which is what D2 describes, is zero. [00:04:08] Speaker 01: Yet you say he can get the chapter 33. [00:04:10] Speaker 01: How? [00:04:12] Speaker 06: Well, because the election, in your hypothetical, happens at the time that he wants to use the post-911 benefits. [00:04:19] Speaker 06: So if he uses the remaining 10 months of Montgomery, and at that point in time elects to use post-911, then he is no longer described in A1A, because at the [00:04:30] Speaker 01: No, A1A is absolutely time specific. [00:04:34] Speaker 01: It says, as of August 1, 2009, he had some unused benefits. [00:04:39] Speaker 01: It doesn't matter, for purposes of that qualification, what he has at the time he makes the election. [00:04:47] Speaker 06: But 3327D2 limits it to the number of months of unused entitlement of the individual under chapter 30 of this title as of the date of the election. [00:04:58] Speaker 01: That would be zero. [00:05:02] Speaker 06: But he's been, at the time of the election, no longer described by A1A. [00:05:06] Speaker 01: That's just not true. [00:05:08] Speaker 01: A1A is absolutely fixed in time as to the description. [00:05:14] Speaker 01: So it seems to me that if, as I think you very much have repeatedly said and want to say, that the person can get the 12 months, it must be because the word elect doesn't apply. [00:05:26] Speaker 01: In which case, we're talking about looking for a meaning of elect [00:05:32] Speaker 01: more than just apply for, like exchange or convert or swap. [00:05:40] Speaker 01: That's what I'm focused on. [00:05:42] Speaker 06: So I think my main reaction to that question is that, [00:05:51] Speaker 06: If your honor is correct about what happens to that veteran, that that sort of changes. [00:05:56] Speaker 01: I know that you have a position about what happens to that veteran, which is he can still get 12 months. [00:06:01] Speaker 01: Yes. [00:06:02] Speaker 01: Of chapter 33. [00:06:03] Speaker 01: Right. [00:06:03] Speaker 06: And that's the way that the VA has interpreted this provision to allow that. [00:06:08] Speaker 01: And my point is, if that's true, I don't see a linguistic opening for that position in 3327, except to narrow the meaning of the word elect. [00:06:18] Speaker 06: So I think if the VA is wrong about that interpretation, that doesn't change what happens to Mr. Rudisill here. [00:06:30] Speaker 01: if you're wrong about the interpretation, but you press an interpretation that seems to have some implication for the term elect, which is the term that I think, necessarily, Mr. Rudazzo is pressing on to say it really applies only to a kind of exchange, a swap, a conversion. [00:06:49] Speaker 01: It doesn't apply to simply choosing [00:06:53] Speaker 01: to apply under 3323 in the normal course for chapter 33 benefits just because you happen to be one of those people listed in 3327A1A, because he's not doubly exploiting the same basis in service for the different benefits. [00:07:13] Speaker 06: I'll stop there. [00:07:15] Speaker 06: Oh, right. [00:07:19] Speaker 06: The VA is not relying on a narrower definition of the word elect. [00:07:23] Speaker 06: I think the way that the VA treats the veteran who exhausts the 36 months of Montgomery at the time of election is that they just no longer meet the terms of A1A and that that's why they get the additional 12 months of benefits. [00:07:38] Speaker 06: I think if the court is [00:07:42] Speaker 06: sort of views that differently in terms of the veteran who has exhausted their Montgomery benefits. [00:07:48] Speaker 06: That might be an argument that they also don't get the additional 12 months. [00:07:51] Speaker 06: But I don't think it changes the fact that 3327A1A here applies to Mr. Rudisill and covers Mr. Rudisill, because at the time of his election, he was described by A1A. [00:08:07] Speaker 06: It is that you apply to to use those benefits you elect to use the post-9-eleven program and and I don't [00:08:26] Speaker 06: I don't think it is limited to conversion. [00:08:29] Speaker 06: I think that 3327 generally is a provision that allows a veteran to switch from Montgomery benefits to post-9-11 benefits. [00:08:41] Speaker 11: Are you able to make a statutory argument looking at 3327A1 to explain why [00:08:55] Speaker 11: your response seems to be, well, this is the way we interpret it. [00:09:08] Speaker 06: But I'm having a hard time also seeing your interpretation and how it aligns with the point of language of the statute. [00:09:13] Speaker 06: Well, it's the fact that you can elect under 3327 A1A if you meet the parameters of A1A. [00:09:17] Speaker 06: The person who is taking their post-9-11 benefits when they're not covered by the subsets of [00:09:24] Speaker 06: A1, excuse me, A through F, they're not electing under this provision. [00:09:28] Speaker 06: They are electing to use post-911 benefits, but I don't think they're electing under the terms of 3327. [00:09:34] Speaker 06: And therefore, because they don't meet the parameters of who's allowed to elect under 3327. [00:09:40] Speaker 06: Which is why the VA allows that. [00:09:46] Speaker 01: I think you understand the point. [00:09:48] Speaker 01: The problem is that the qualification is day specific. [00:09:53] Speaker 01: Once you, as of August 1, 2009, fall under these descriptions, that will never change. [00:10:00] Speaker 01: It can't change. [00:10:01] Speaker 01: Not under the test. [00:10:06] Speaker 06: But again, I think I go back to the fact that you're making an election at that point in time under a different provision. [00:10:11] Speaker 06: You are still making an election to use plus 9-11 benefits, but you're no longer making an election under A1A at that point in time, because you're not, if you've exhausted your Montgomery benefits, you have not used but retained unused benefits. [00:10:27] Speaker 00: Whereas Mr. Rudisill. [00:10:28] Speaker 00: Is the veteran warned at the time? [00:10:31] Speaker 00: that if he takes this path, he's forfeiting the opportunity to have the additional 12 months of benefits? [00:10:39] Speaker 00: Is he warned explicitly that this is an election that you're making? [00:10:44] Speaker 06: Yes, Your Honor. [00:10:44] Speaker 06: And it appears at the top of the form that the veteran has to fill out in order to apply for benefits. [00:10:50] Speaker 06: And we see Mr. Rudasill's form in the appendix in this case here at pages 585. [00:10:58] Speaker 06: And at the very top, it sets out that you have to acknowledge that if you're by electing chapter 33 benefits, I acknowledge that I understand the following. [00:11:08] Speaker 06: And it includes the fact that if electing chapter 33 in lieu of chapter 30, my months of entitlement after chapter 33 will be limited to the number of months of entitlement remaining under chapter 30 on the effective date of my election. [00:11:23] Speaker 06: However, if I completely exhaust my entitlement under Chapter 30 before the effective date of my Chapter 33 election, I may receive up to 12 additional months of benefits under Chapter 33. [00:11:34] Speaker 00: So by that time, the veteran has re-enlisted and is now seeking the education benefits. [00:11:44] Speaker 00: Are they told at the time of the recruitment that we'd like you to re-enlist and you get 48 months of education benefits? [00:11:51] Speaker 00: And the general statements that we've all seen that accompany the pitch to re-enlist says, however, unless you're a lawyer and can read the fine print and understand the statutes and so on, you're not going to get the 48 months that we have promised you. [00:12:11] Speaker 06: So Your Honor, I'm not sure exactly what the recruitment office says at the time of recruitment. [00:12:16] Speaker 00: Not as I understand it. [00:12:18] Speaker 00: I'm not in that loop. [00:12:20] Speaker 00: But as I understand it, education benefits are announced as a significant benefit of re-enlisting. [00:12:29] Speaker 06: Certainly, I think education benefits do play a role in the recruitment and enlistment. [00:12:34] Speaker 06: I would note that I think the sort of clear default presumption by Congress, both in the Montgomery and in the post-9-11 statute, is that the exchange for active duty service is presumptively 36 months. [00:12:46] Speaker 06: We help you get a four-year college degree. [00:12:49] Speaker 06: And that 48 months is really sort of the exception to that rule under unique circumstances. [00:12:55] Speaker 00: It includes children and so on. [00:12:58] Speaker 00: All of this pitch of the total of 48 months has been, as I understand it, significantly enhanced. [00:13:06] Speaker 00: in order to encourage recruitment and that there's still a problem, we're still understaffed. [00:13:13] Speaker 06: So I'm not sure if the recruitment focuses on 48 months specifically. [00:13:16] Speaker 06: I think because the default presumption is 36 months, certainly I would agree that education benefits, I'm sure, feature in the recruitment process. [00:13:27] Speaker 06: But at the time that you apply for benefits, there's no question that the veteran is sort of explicitly and in plain English [00:13:36] Speaker 06: explained and sees at the forum how the VA interprets the statute and how the VA has consistently applied it. [00:13:43] Speaker 00: You made what they told is an irrevocable election. [00:13:47] Speaker 00: Can't turn the clock back. [00:13:48] Speaker 00: Can't fix it. [00:13:49] Speaker 06: You're stuck. [00:13:53] Speaker 06: I mean, yes, you are therefore, before you submit the form, you're warned at the top that the election that you're making here is irrevocable. [00:14:00] Speaker 06: If you proceed to nevertheless make that election, then the statute does make it irrevocable. [00:14:06] Speaker 09: Could I back you up a moment so that I understand better what's going on here? [00:14:11] Speaker 09: As I understand it, no matter how many periods of service you have, under the Montgomery program, you only earn 36 months of benefits. [00:14:19] Speaker 09: That's correct? [00:14:20] Speaker 09: That's correct. [00:14:21] Speaker 09: And the same thing is true of the 9-11 program no matter how many periods of service you have, you still earn only 36 months of benefits. [00:14:29] Speaker 09: Exactly. [00:14:30] Speaker 09: And now, in 2011, Congress enacted 3322H, which requires this election by someone who has a single period of service. [00:14:42] Speaker 09: That is, someone who has only served 36 months. [00:14:45] Speaker 09: So that person now has to elect one or the other, the goal being to prevent that person from getting more than 36 months of benefits, even though he or she only qualifies for both the Montgomery and 9-11 [00:14:59] Speaker 09: Correct. [00:15:00] Speaker 09: And so that person who has to elect either Montgomery or 9-11 isn't someone anymore who's covered by 3327D, right? [00:15:11] Speaker 09: Exactly. [00:15:13] Speaker 09: So 3327D has to be only applied to people with multiple periods of service. [00:15:20] Speaker 06: After 2011, that's true. [00:15:21] Speaker 06: Yes. [00:15:23] Speaker 07: Could you clarify why that's necessarily so? [00:15:26] Speaker 07: I mean, that reading of 3327 only applying to veterans with multiple periods of service seems to hinge on the idea that an election under 3322H is irrevocable. [00:15:42] Speaker 07: And I don't see that in the text of 3322. [00:15:45] Speaker 07: I mean, you look at 3327I, for example, [00:15:49] Speaker 07: That clearly informs us that Congress wanted a 3327 election to be irrevocable. [00:15:56] Speaker 07: But nothing in 3322 tells me that a 3322H election is irrevocable in the same way. [00:16:03] Speaker 07: And the inference there is clear that it's not irrevocable. [00:16:09] Speaker 06: So I disagree with that, Your Honor. [00:16:10] Speaker 06: I think it's irrevocable sort of by the inherent nature of what 3322H does, because it limits your eligibility. [00:16:19] Speaker 07: Does it tell me that I have to think of a 3322H election as irrevocable, in the same way that 3327I tells me expressly that a 3327 election is irrevocable? [00:16:33] Speaker 06: So it comes from two things, I would say, Your Honor. [00:16:36] Speaker 06: One is that 3322H1. [00:16:42] Speaker 06: requires you to elect under which authority the service should be credited that establishes eligibility. [00:16:50] Speaker 06: And so once you credit that service, it can no longer establish eligibility for another program. [00:16:56] Speaker 06: And so you just don't meet the entitlement terms for [00:17:00] Speaker 07: post-911 and you therefore are not Well, I think they're both irrevocable so Well 3327 a and [00:17:27] Speaker 06: 2 requires that at the date of the election, the veteran meet the requirements for entitlement to educational assistance under this chapter, i.e. [00:17:37] Speaker 06: under post-911. [00:17:38] Speaker 06: And if they've already credited their service under 3322H to Montgomery, [00:17:44] Speaker 06: then they no longer have service that meets the requirements for entitlement to post-911. [00:17:50] Speaker 09: Isn't the answer that 3322H was explicitly designed to prevent a veteran with a single period of service [00:17:59] Speaker 09: from getting more than 36 months of benefits. [00:18:02] Speaker 09: And that's why the election is irrevocable. [00:18:05] Speaker 09: You can take one program, get 36 months of benefits, but you can't switch to the other program and get more than 36 months. [00:18:12] Speaker 09: That's exactly what the legislative history says. [00:18:15] Speaker 06: Yes, exactly, Your Honor. [00:18:17] Speaker 06: Congress sort of explicitly set up precisely that example and then said- The whole point of the amendment was to make sure [00:18:31] Speaker 07: You can't double dip in the sense you exhaust 36 months of Montgomery and then come back on the same period of service and then ask for more benefits under 9-11, even though it's technically qualified for 9-11. [00:18:43] Speaker 07: I understand that. [00:18:44] Speaker 07: But that doesn't tell me anything about why 33-22-H bars a veteran midstream from switching over, say, the first 12 months starting with Montgomery and then switching over the last 24 into 9-11. [00:18:59] Speaker 07: That still ends up. [00:19:01] Speaker 07: with a total of 36 months and that's the 36 month cap that was intended as I understand from the amendment to create 32.2. [00:19:12] Speaker 06: So I think the [00:19:15] Speaker 06: I mean, I think 3322H does address both. [00:19:18] Speaker 06: And the legislative history suggests that Congress intended it to be not just that you can't go beyond 36 months, but that your one period of service gets you one program. [00:19:29] Speaker 01: Can I just ask you about a textual matter, which maybe I've just misread it. [00:19:36] Speaker 01: Well, I think that a paragraph in the Senate report from 3322H is really quite clear about what it's getting at. [00:19:44] Speaker 01: Doesn't the text actually say that this applies only to people who have three eligibility, not two? [00:19:53] Speaker 01: It says you have to have Chapter 30, either 30 or 32, and [00:20:01] Speaker 01: Title X, 1606, or 1607, which is about reservists. [00:20:07] Speaker 01: Is that just a textual mistake? [00:20:09] Speaker 01: Because and means and. [00:20:12] Speaker 06: Well, I think this is why Oxford commas are sometimes important, but also commas are sometimes. [00:20:19] Speaker 01: This isn't an Oxford comma problem. [00:20:21] Speaker 06: Well, because I think the and there is that it is setting up what you have chapter 33. [00:20:27] Speaker 01: Elsewhere, Congress was really quite clear when it wanted just to hit a dual overlap. [00:20:38] Speaker 01: Look, I suspect that this is just a mistake. [00:20:41] Speaker 01: But it's not, then, a textual argument you're making. [00:20:45] Speaker 01: You're making a point about what the Senate report, the legislative history, let's call it context, makes clear Congress was up to, unless I've missed something about the text. [00:20:57] Speaker 06: I think the text cover envisions a situation where it does include all three, but you don't have to be eligible for all three in order to have to make the election. [00:21:07] Speaker 06: So if you have Chapter 33 and Chapter 30, you have to credit. [00:21:12] Speaker 06: Or if you have Chapter 33 and the 1607, then you have to credit those. [00:21:17] Speaker 06: The point is that if you have a single period of service, even if it could go to one of these three programs, [00:21:23] Speaker 06: You have to pick one. [00:21:25] Speaker 06: And you can pick whichever one you want of the three, but you have to pick one. [00:21:30] Speaker 01: And so I think that's the- You also said something in your brief, which intrigued me, and I couldn't quite figure out what a word meant. [00:21:38] Speaker 01: You said that if 3327 was limited to, let's call them single period of service veterans, so 36 month service veterans, [00:21:48] Speaker 01: that that would make 3322H virtually superfluous. [00:21:54] Speaker 01: You seem to have something in mind, some concrete example where there wouldn't be a superfluousness and I couldn't figure out what it was. [00:22:04] Speaker 06: Yes, so 3322H is only effective as of August 1, 2011. [00:22:09] Speaker 06: So if your single period of service comes before August 1, 2011, then you are allowed to double credit it and get both Montgomery and post-911 benefits. [00:22:20] Speaker 06: So because 3322H was enacted two years after the post-911 program went to effect, there's a universe of veterans to whom it doesn't apply. [00:22:31] Speaker 06: So that is where it virtually comes from. [00:22:33] Speaker 07: If I were to agree that 3327 applies to all veterans, regardless of whether they have a single period of service or a multiple period of service, is 3322H your interpretation of it necessary for you to prevail in this case? [00:22:54] Speaker 06: I don't think the court needs to reach 3322H in order to interpret 3327. [00:22:58] Speaker 06: Yeah, that's what I'm trying to understand is, [00:23:03] Speaker 07: Is there something about your reading of 3322H that you need in order to prevail? [00:23:10] Speaker 06: No, Your Honor. [00:23:11] Speaker 06: I think in our view, [00:23:13] Speaker 06: Certainly, 3322H was the subject of a lot of focus from Mr. Rudasol, and we think he misinterprets that provision. [00:23:21] Speaker 06: But the court does not need to reach 3322H at all in order to reverse the Veterans Court and adopt what we say submit as the plain reading of 3327. [00:23:31] Speaker 07: Because there's just no textual hook in 3327 or anywhere else that restricts the application of 3327 to veterans with multiple periods of service? [00:23:44] Speaker 06: Exactly, Your Honor. [00:23:45] Speaker 06: Or the reverse, I think, is what they actually want it to be. [00:23:48] Speaker 06: But there's no textual hook that would differentiate between veterans based on their number of periods of service in 3327. [00:23:56] Speaker 04: Looking at the history of the various GI Bill programs that Congress has passed, it seems to me, and I wonder if you would agree, that those programs are progressive in nature. [00:24:11] Speaker 04: And they've extended. [00:24:14] Speaker 04: benefits and created new benefits over time as opposed to creating limits and here we're looking for the first time unless you can point to something else similar to this where a veteran has earned [00:24:30] Speaker 04: through peer-to-service, which is demonstrated, earned eligibility in different programs. [00:24:37] Speaker 04: But yet, the participation in that program is curtailed, is limited. [00:24:43] Speaker 04: Am I correct that we're looking at a unique situation here? [00:24:48] Speaker 06: So I would say two things, Your Honor. [00:24:51] Speaker 06: I do agree that I don't think 3327 has a historical analog because we have not in the past had sort of two ongoing parallel programs for active duty service. [00:25:03] Speaker 06: But in terms of sort of what is the direction that the history of VA benefits tracks, I don't think we can make that statement. [00:25:10] Speaker 04: There's been overlapping programs before, right? [00:25:14] Speaker 04: I mean, the Korean War and the regular GI Bill, the Montgomery Bill, there's veterans. [00:25:19] Speaker 04: There's overlapping there between those programs. [00:25:22] Speaker 06: So the programs themselves are not overlapping. [00:25:24] Speaker 06: The periods of service that would count for the GI Bill and would count for Korea were distinct. [00:25:30] Speaker 06: And the GI Bill, I think, was sunset. [00:25:32] Speaker 04: There was no need to create a limitation with respect to those programs. [00:25:38] Speaker 04: But here, the limitation has come in because there's an overlap. [00:25:42] Speaker 06: Right. [00:25:43] Speaker 04: It's a unique situation with the fact that the post-9-11 program and the- Isn't that on its face contrary to what Congress has proposed and the purpose of Congress passing the GIA bills? [00:25:58] Speaker 04: Isn't that on its face contrary to that purpose? [00:26:01] Speaker 04: This limitation? [00:26:02] Speaker 04: I mean, it may not be fair or it may be unjust, but the limitation's there, correct? [00:26:10] Speaker 06: The limitation is there, and I don't think it's contrary to Congress's purpose in passing these statutes. [00:26:16] Speaker 06: I think when we look at Montgomery in post-911, it's clear that sort of the presumptive trade that Congress envisioned. [00:26:22] Speaker 04: When you review these regulations for the first time and only you get this case, it does cause you to think, doesn't it? [00:26:31] Speaker 04: It does cause you to pause and wonder, why here do we have this limitation? [00:26:36] Speaker 04: Is it a limitation? [00:26:37] Speaker 04: To what extent? [00:26:38] Speaker 06: I think it reflects the fact that the presumptive trade is that you get 36 months of benefits for active duty service. [00:26:45] Speaker 06: And that's what this limitation continues. [00:26:49] Speaker 06: And so if you serve on active duty, we help you get a four-year degree. [00:26:53] Speaker 04: If that's the case, then we begin this whole process with the understanding that we're looking at a limitation of benefits. [00:27:04] Speaker 04: And in this case, we need to keep in mind [00:27:07] Speaker 04: that the veteran here, we're not giving him anything free. [00:27:12] Speaker 04: He's not looking for an award or damages. [00:27:16] Speaker 04: They're his. [00:27:16] Speaker 04: He's earned it. [00:27:17] Speaker 04: He's paid his dues. [00:27:18] Speaker 04: It's a period of service. [00:27:20] Speaker 04: He's paid his dues. [00:27:21] Speaker 04: Why wouldn't we not start that interpretation of this [00:27:26] Speaker 04: of these statutes and regulation by saying that we need to look at this in favor of the veteran. [00:27:33] Speaker 04: We need to take a position that's going to preserve the benefits as opposed to limit them. [00:27:41] Speaker 06: So Your Honor, I mean, a couple of things. [00:27:43] Speaker 06: I think that we have to start with the language of the statute as Congress enacted it. [00:27:49] Speaker 06: And all benefits that Congress provides are inherently limited. [00:27:53] Speaker 06: And in this case, what is good for one veteran may not be good for another veteran. [00:27:58] Speaker 04: They're not limited if you've earned them. [00:28:02] Speaker 04: I mean, once you prove eligibility, they're not limited. [00:28:06] Speaker 06: They are absolutely limited. [00:28:07] Speaker 06: The program only gives you, under Montgomery or post-9-11, you only get 36 months of benefits no matter how long you serve. [00:28:15] Speaker 07: So if you serve two periods of service, then you get to enjoy up to 48 months of educational assistance [00:28:22] Speaker 07: And that's, I think, ultimately, I have the same question as Judge Breina. [00:28:27] Speaker 07: Is this just an unfortunate, unintended consequence of the way the statute is written? [00:28:34] Speaker 07: Or do you really think Congress intended to cut off a veteran with multiple periods of assistance opportunity to enjoy 48 months of educational assistance if they happen to switch over midstream between Montgomery [00:28:50] Speaker 07: and over to 9-11 benefits. [00:28:52] Speaker 07: It seems a little strange that they would purposely seek out cutting off that veteran from enjoying a full 48 months, that he's entitled. [00:29:04] Speaker 06: So I don't think Congress is cutting them off. [00:29:05] Speaker 06: I think veterans still have the option of getting 48 months. [00:29:08] Speaker 06: What 3327 recognizes is that different veterans have different priorities. [00:29:13] Speaker 06: And some people are, because it does provide extra money, for example, per month for veterans who make the election under 3327A. [00:29:21] Speaker 06: And that some veterans might prefer that. [00:29:25] Speaker 06: And so the election itself is voluntary. [00:29:27] Speaker 06: It preserves the flexibility to the veteran as to what they would prefer. [00:29:32] Speaker 06: And I see I'm almost out of time. [00:29:34] Speaker 02: Do you agree though that the statute certainly doesn't expressly say your position? [00:29:38] Speaker 02: That is that if you decide, if the veteran decides to continue to have the Montgomery benefits, then they would be able to have a full 48 months if they exhaust their Montgomery benefits. [00:29:50] Speaker 06: I think because you then fall outside of the... I think it doesn't preclude it, and therefore the VA has interpreted to allow that. [00:30:05] Speaker 04: I share this concern. [00:30:06] Speaker 04: Show me where it says that the veteran needs to exhaust. [00:30:10] Speaker 04: What is the word exhaust in these statutes? [00:30:14] Speaker 06: The veteran's not required to exhaust. [00:30:15] Speaker 06: The veteran has the option to exhaust. [00:30:17] Speaker 06: If the veteran does not exhaust, then he meets the terms of A1A. [00:30:20] Speaker 04: That's what we've done to the veteran's head. [00:30:22] Speaker 04: If they don't exhaust, then they don't get to move on with their education or utilizing their benefits. [00:30:31] Speaker 06: I disagree with that. [00:30:32] Speaker 06: They can use their benefits. [00:30:33] Speaker 06: It's just that they are limited to the express limitation that Congress imposed. [00:30:38] Speaker 06: And I see that I'm out of time, so I will take there no other questions. [00:30:42] Speaker 03: Thank you, Mr. Musoma. [00:30:43] Speaker 03: Mr. McHugh. [00:30:45] Speaker 08: May it please the court? [00:30:47] Speaker 08: This case, I'll disagree with my friend across the aisle. [00:30:50] Speaker 08: This case is about whether Congress imposed a revoke or exhaustion requirement in the post-9-11 program for veterans with a separate period of qualifying service. [00:30:58] Speaker 09: Do you agree that no matter how many periods of service you have, you can't earn more than 36 months under the Montgomery program, and you can't earn more than 36 months under the 9-11 program? [00:31:11] Speaker 08: Yes, we agree with that, Your Honor. [00:31:12] Speaker 08: Absolutely. [00:31:14] Speaker 08: Yes, that is true. [00:31:16] Speaker 08: And here the government admits that Mr. Rudisill has that separately qualifying service, and that entitles him to a separate benefit under the post-911 GI Bill. [00:31:25] Speaker 08: It's the government's burden to point to an express requirement of the statute that imposes this ultimate limiting factor on his entitlement. [00:31:32] Speaker 09: All they can point to, however, is a pregnant silence that they find in the statutory scheme under the benefit exchange election provisions, which are- Do you contend that if 3327D applies to people with multiple periods of service, [00:31:47] Speaker 09: Would you agree that you would lose under those circumstances? [00:31:51] Speaker 08: No, Your Honor. [00:31:52] Speaker 08: We would only lose under that circumstance if Mr. Rudisill was obligated to engage in a benefit exchange election, which was not because he has separate qualifying service that he can point to the post-9-11 program to establish his entitlement independently. [00:32:06] Speaker 08: The benefit exchange election provisions mean harmonizing. [00:32:09] Speaker 08: That's what the Veterans Court defined coordination to mean. [00:32:12] Speaker 08: It's what every court that has ever looked at the word coordination in a statute or other written instrument has understood it to mean, including this court's predecessor in 1958 in the application of right. [00:32:21] Speaker 09: I'm sorry. [00:32:22] Speaker 09: I don't understand what you're saying. [00:32:23] Speaker 09: How is it that if 3327 applies to veterans with multiple periods of service that it doesn't impose the limitation [00:32:35] Speaker 09: getting more than 36 months if you switch from Montgomery to 9-11. [00:32:41] Speaker 09: What language suggests that the statute doesn't apply under those circumstances? [00:32:48] Speaker 08: Your Honor, the statute applies to a veteran when they are trying to establish their post-9-11 entitlement based on the same period of service. [00:32:56] Speaker 08: that establish their Montgomery entitlement. [00:32:59] Speaker 08: And the language that I would point to specifically is in the benefit exchange election provisions itself. [00:33:04] Speaker 08: It talks about coordination of entitlement. [00:33:07] Speaker 08: Entitlement is indisputably based on a specific period of service that the veteran has used to establish the prior entitlement, to vest that entitlement under the Montgomery program. [00:33:16] Speaker 08: And if a veteran only has, for example, that one period of service, and they're already locked into the Montgomery program, they can engage in a benefit exchange election to convert to the post-9-11 program. [00:33:26] Speaker 01: Can you address 3322H? [00:33:28] Speaker 01: It seemed to me that one of the important stumbling blocks for your argument, maybe the most important, is the idea that [00:33:42] Speaker 01: 3322H would be rendered superfluous or 3327 would be rendered superfluous under the view that 3327 applies only to conversion, exchange, trade, swapping, whatever it is of entitlement based on the very same period of service. [00:34:07] Speaker 01: Well, Your Honor, I disagree that- Is it not superfluous, or do you say it's superfluous, but don't worry about that for the following jurisprudential reason? [00:34:18] Speaker 08: No, Your Honor, we don't think that is superfluous. [00:34:20] Speaker 08: I think that, and it came out in the questions from the bench in the opening argument, nothing in 3322H1 says that an election under that provision is irrevocable. [00:34:29] Speaker 08: Congress has specified in other contexts, including under 3327, when an election is irrevocable. [00:34:36] Speaker 08: So based on the plain language of H1, a veteran can take service that on its face could qualify for one or another benefit. [00:34:44] Speaker 01: I think the Governance Council made a point that I guess I'll put it this way. [00:34:49] Speaker 01: 3322H, assuming it does apply to just dual as opposed to triple eligibility, [00:34:57] Speaker 01: says you have to credit service for a particular program. [00:35:03] Speaker 01: And once you say you have a 36 month veteran and that the chapter 30, the Montgomery program requires 36 months of service to get anything. [00:35:14] Speaker 01: Once you credit it, that's what got you any Montgomery benefits at all. [00:35:20] Speaker 01: It doesn't matter. [00:35:22] Speaker 01: You don't get to use 12 months of that to get 12 months of Montgomery benefits. [00:35:28] Speaker 01: You needed to use all 36 months of your service to get any Montgomery benefits. [00:35:34] Speaker 01: And once you've credited that, you can't recredit it, or you would have been getting whatever Montgomery benefits midstream you use illegitimately. [00:35:47] Speaker 08: Well, Your Honor, I'm not quite sure how the Secretary gets to that point when the plain language of the statutes clearly allow someone to make a second election once they've credited service to one program. [00:35:57] Speaker 08: The legislative history bears out a very specific hypothetical situation of a veteran using the same service to then, after exhausting Montgomery entitlement, establish entitlement to the post-911 GI Bill. [00:36:08] Speaker 08: But 3322H1 nor 3322D or 3327 are so limited. [00:36:14] Speaker 08: They say that a veteran can first point service to the Montgomery program, and then under D and 3327, that same veteran plainly can engage in a benefit exchange election for whatever reason if they want to choose to switch later. [00:36:27] Speaker 09: So under that interpretation of 3322H, you can get more than 36 months of benefits. [00:36:34] Speaker 09: Because by switching from one program to the other, you're no longer limited in the 36 months of each of the programs separately. [00:36:43] Speaker 08: Respectfully, Your Honor, I would disagree. [00:36:45] Speaker 08: If you make that switch, if you engage in a benefit exchange election and have used some of your Montgomery entitlement, or not at all, and you still have the full 36 months of Montgomery, when you engage in the benefit exchange election according to the procedures of 3327, 3327D2 applies. [00:37:00] Speaker 08: So I'm not understanding what you're saying. [00:37:04] Speaker 09: How is it that 3322H? [00:37:07] Speaker 09: limits the single period of service veteran to 36 months if he or she is allowed to switch programs. [00:37:15] Speaker 08: It is based on the formula in 3327D2, which provides that for a veteran who's making a benefit exchange election, if they've used some of their Montgomery entitlement, they can only get the equivalent amount of remittance. [00:37:28] Speaker 09: 3327D2 doesn't accomplish the congressional purpose that's reflected in 3322H. [00:37:33] Speaker 09: It doesn't prevent a single period of service veteran from getting more than 36 months of benefits. [00:37:40] Speaker 08: Well, Your Honor, I think, again, we don't read 3322H in exactly that way. [00:37:45] Speaker 08: It simply says that any qualifying service, which is the language that the statute uses, can only be used to establish entitlement to one benefit. [00:37:54] Speaker 08: However, that has to be read together with the clear benefit exchange election provision. [00:37:58] Speaker 09: So in your view, under 3322H doesn't really limit you to 36 months. [00:38:04] Speaker 09: If you elect to switch programs, you can get more than 36 months. [00:38:09] Speaker 08: No, Your Honor. [00:38:10] Speaker 08: If you switch programs, you are limited to the amount of benefits that you are converting into the post-9-11 program. [00:38:17] Speaker 00: But just to be clear, when we're talking the statute, we're talking about multiple periods of service. [00:38:24] Speaker 00: Isn't that right? [00:38:25] Speaker 00: Not what you're entitled to for a single period or what you're entitled to when there's only a single statute, such as Montgomery. [00:38:35] Speaker 00: Yes, Your Honor. [00:38:36] Speaker 00: We're talking about re-enlistment, multiple periods of service, such that in the ordinary course, if we didn't have these overlaps, there would be a fresh period of entitlement to education benefits. [00:38:53] Speaker 00: And that what Congress did, and I thought that all that they did, was to say, yes, that's right. [00:38:58] Speaker 00: But a total of 48 months is all you get. [00:39:01] Speaker 00: And that ends it. [00:39:03] Speaker 00: And the rest of this, of what happens if you're under a single statute and so on, is not an issue in this case. [00:39:12] Speaker 00: It may be unresolved in the statute, but it hadn't come up because it's not this case. [00:39:18] Speaker 00: We're talking about multiple periods with a gap, with a re-enlistment. [00:39:25] Speaker 00: And as it turns out here, there are also enhanced benefits for the period of re-enlistments. [00:39:34] Speaker 00: and you're entitled to those enhanced benefits seem to me to be the congressional purpose, but no more than a total of 48 months. [00:39:43] Speaker 00: of education benefits total. [00:39:46] Speaker 00: Is that an oversimplification, or is that what Congress thought it was doing? [00:39:51] Speaker 08: I do not think that's an oversimplification, Your Honor. [00:39:53] Speaker 08: I think you're exactly right. [00:39:55] Speaker 08: Mr. Rudisill has, as the Secretary concedes, has very clear separate periods of qualifying service. [00:40:01] Speaker 08: It's notable that his Montgomery entitlement is based on service that predates 9-11. [00:40:06] Speaker 08: It is not eligible under the post-9-11 program at all. [00:40:09] Speaker 08: He has established entitlement to the Montgomery program based on that service. [00:40:13] Speaker 08: Some of which does overlap after post-911, but regardless, a lot of it is pre-911. [00:40:19] Speaker 08: And then he has several years that are totally separate in the post-911 era that establishes his post-911 entitlement, and that's what he seeks to do here. [00:40:28] Speaker 08: Congress included multiple statutory indicators, which are mirror images of similar provisions in all the other GI Bill programs that tell you that it fully understood and expected that veterans with separately qualifying periods of service would be able to have consecutive, would be able to separately establish that entitlement and then use those benefits consecutively. [00:40:47] Speaker 08: That's under 3311 and 3312, where it set the default presumption that for a period of qualifying service under the post-911 program, that the veteran would be, is entitled to, as the statute says, 36 months of benefits. [00:41:01] Speaker 08: And separately, under H1 and 3322C, it required crediting of service to, whether reserve service or active duty service, that could qualify for multiple benefits to one program or another. [00:41:12] Speaker 08: Under the Montgomery program and the programs before that, the VA and Congress have always understood that that recognizes that a veteran who has other service can credit it to another program. [00:41:21] Speaker 01: So let me do this. [00:41:23] Speaker 01: I guess this is pursuing, I think, what Judge Dyke was focusing on. [00:41:28] Speaker 01: So if you have the 36-month service veteran, [00:41:33] Speaker 01: who has earned Montgomery and credited all the 36 months of service to get Montgomery, and then uses 10 months or something of Montgomery. [00:41:44] Speaker 01: And then along come, then the veteran decides, I want to recredit what my remaining, the 26 months to chapter 33. [00:42:02] Speaker 01: What happens to that veteran? [00:42:04] Speaker 01: So that veteran is under 3327 D2. [00:42:09] Speaker 08: Right. [00:42:09] Speaker 08: And this is a veteran with a single period of service in their hypothetical young. [00:42:12] Speaker 01: Right. [00:42:12] Speaker 01: So Congress has allowed that recrediting and kind of the counting of even the 10 months that haven't been recredited. [00:42:21] Speaker 01: But that veteran can't then apply under 3311, 3312 to get additional chapter 33 benefits. [00:42:31] Speaker 01: Is that right? [00:42:32] Speaker 01: Because that veteran [00:42:33] Speaker 01: can't use the uncredited, unrecredited or something benefits for something additional, is that? [00:42:43] Speaker 08: Mostly, Your Honor. [00:42:44] Speaker 08: I mean, how I would characterize it is, in your hypothetical, there's a veteran with a single period of service who has used 10 months of Montgomery benefits, correct? [00:42:52] Speaker 08: That's your hypothetical. [00:42:53] Speaker 01: So under 3327... And if that was on August 1st, 2009, that's in 3327A1A veteran. [00:43:00] Speaker 08: Right. [00:43:00] Speaker 08: So the veteran has used the 10 months of benefits and now is seeking to [00:43:04] Speaker 08: to take their period of service that established the Montgomery program entitlement and switch it over to post-911. [00:43:09] Speaker 08: That person would be described in 3327A1A, is entitled to and has used but retains unused entitlement under this chapter. [00:43:20] Speaker 08: He then, when making a benefit exchange election, would be subject to 3327D1 and 2, which imposes a limitation on how many months of benefits that person can get under the post-911 program. [00:43:32] Speaker 08: So they have used 10-1s in Montgomery and get the balance. [00:43:35] Speaker 01: And Mr. Rudolphill is different because he can apply under 33-11 for Chapter 33 benefits, the post-9-11, without any regard to anything credited or recredited that he used for Montgomery. [00:43:51] Speaker 08: That's exactly right, Your Honor. [00:43:53] Speaker 08: That's our position. [00:43:53] Speaker 08: Because he has that separately qualified service, and he noted on his application form that he was using service that was different than the service that established his entitlement to Montgomery benefits. [00:44:02] Speaker 08: He cites his 2004 to 2011 service, which was not the basis for his Montgomery entitlement. [00:44:07] Speaker 08: So under 3322H1, that service could, on its face, qualify for Montgomery Post-911, his 2004 to 2011 service. [00:44:15] Speaker 08: And he chose to credit it to, in 2015, after H1 is in existence, he chooses to credit it to Post-911 directly, establishing his entitlement to that program. [00:44:25] Speaker 07: The concern I have with that view of a veteran with multiple periods of service being able to just go back to 3311 is that 3322 [00:44:34] Speaker 07: tells us what to do without restriction as to single period service veterans or multiple service period veterans, how to coordinate between programs for a veteran that qualifies under all these various chapters, chapter 30 and this particular chapter 33. [00:44:51] Speaker 07: And 3322D tells us, and tells the VA, to go look at 3327. [00:44:57] Speaker 07: And then when we look at 3327, nothing in the text of 3327 restricts its application to a veteran with just a single period of service. [00:45:08] Speaker 07: And so it seems like it would apply to all veterans, regardless of how many service periods they have. [00:45:15] Speaker 07: And so why doesn't 3322 funnel us to 3327 when it comes to a veteran, regardless of whether they have [00:45:24] Speaker 07: one period of service or multiple periods of service into getting channeled into 3327 according to 3322D? [00:45:34] Speaker 08: Your Honor, I think that the absence of any indication as to whether the benefit exchange election provisions apply to a single or multiple periods of service actually helps inform its meaning when read together with the rest of 3322. [00:45:47] Speaker 08: If the secretary is correct that 3322D and 3327 require anyone with Montgomery entitlement to revoke or exhaust that before establishing post-911 entitlement, much of 3322A would be mere surplusage. [00:46:04] Speaker 01: I'm sorry. [00:46:05] Speaker 01: That's not the government's position. [00:46:07] Speaker 01: The government's position is that if you are one of the A1A people, [00:46:13] Speaker 01: and you choose, before you're done with Montgomery, to take 33 instead, then D2 says you've lost the otherwise fuller entitlement to chapter 33. [00:46:29] Speaker 01: Governor's position is not mandatory choice. [00:46:32] Speaker 01: Just here's the consequence of the choice you make. [00:46:35] Speaker 08: That's correct, Your Honor. [00:46:36] Speaker 08: But effectively, I mean, in practice, their view is that the only way for a veteran [00:46:41] Speaker 08: in that scenario to be able to tap into their post-9-11 benefits is to make the supposedly voluntary choice that they're noting or exhaust their Montgomery entitlement and then ultimately only be able to get 12 months of post-9-11 benefits under the 48-month cap. [00:46:55] Speaker 08: So their view is that if you are a veteran, no matter how long you've served, if you happen to have Montgomery entitlement, which [00:47:01] Speaker 08: in essence, is every veteran who served in the post-911 era, they sign up for Montgomery when they enlist, they start establishing that entitlement. [00:47:07] Speaker 08: So they have entitlement to Montgomery benefits. [00:47:10] Speaker 08: All of those veterans would have to first revoke that Montgomery entitlement or exhaust it, even if they have separately qualified service. [00:47:16] Speaker 08: And if that's true, then 3322A, which talks about, which separately bans or prohibits the concurrent use of Chapter 30, Chapter 33, and a host of other GI Bill programs that are also subject to 3327, [00:47:30] Speaker 08: All those provisions would be meaningless. [00:47:32] Speaker 08: Why would 3322A separately say, you can't use these benefits concurrently if 3322D and 3327 had that same net effect? [00:47:41] Speaker 08: They would never let anybody use the benefits concurrently because they would have to, it forces you to revoke or exhaust that entitlement effectively, preventing separately established entitlements in that sense. [00:47:54] Speaker 04: Counselor, help me understand something. [00:47:57] Speaker 04: So in 3322H, the bar to duplication eligibility based on single period or period of service, [00:48:04] Speaker 04: Towards the very end, it says, shall I elect under which authority such services to be accredited? [00:48:10] Speaker 04: What does authority mean? [00:48:14] Speaker 04: The remainder of the statute talks about programs and chapters and provisions and things of that nature. [00:48:22] Speaker 04: And here, Congress tells us to use the word authority. [00:48:26] Speaker 04: the election is to the authority. [00:48:28] Speaker 04: What does that mean? [00:48:30] Speaker 08: Your Honor, I believe that refers to the benefits educational programs themselves under which statutory authority to receive educational assistance. [00:48:39] Speaker 08: I think that's what I would say. [00:48:42] Speaker 04: And they elect that by appointing to a particular provision or to a particular section or subsection of the act? [00:48:53] Speaker 08: I think fundamentally would be to point their qualifying service to the entitlement criteria of a program. [00:48:59] Speaker 08: So under Chapter 30, it would be to say, I'm taking my 36 months of post-911 service. [00:49:05] Speaker 08: That is described in 3311. [00:49:07] Speaker 08: And saying that is what I'm using to establish my entitlement to post-911 benefits. [00:49:11] Speaker 08: And the same for Montgomery or the same for any of the other programs. [00:49:15] Speaker 08: But I think, to answer your question, the authority is a program as a whole to say, this is what I'm basing my entitlement on. [00:49:25] Speaker 08: So the additional indicator in the statute that Congress fully expected and understood that veterans would be able to have these separately established entitlements is the inclusion of Chapter 30 and Chapter 33 side by side under Section 3695, which is Congress's longstanding aggregate cap on the combined uses of separately established entitlements. [00:49:45] Speaker 08: It historically has been understood to recognize that there are going to be veterans who have these separate entitlements. [00:49:51] Speaker 08: And it's just an additional indicator that Congress was fully aware this would be possible. [00:49:56] Speaker 08: And again, nothing that the Secretary points to actually expressly says what he argues is what obviously Congress intended. [00:50:02] Speaker 08: There is no language in 3322D or 3327 that either make it mandatory to follow those procedures or say that it is the only way to establish entitlement to post-911 benefits. [00:50:15] Speaker 08: The balance of the statutory scheme clearly contemplates consecutive usage of benefits subject to other regulation, such as the concurrent use of them and up to an aggregate cap, and not being able to double dip in the sense of using the same service to establish the separate entitlements. [00:50:31] Speaker 01: And the secretary has simply--" Can I just ask? [00:50:33] Speaker 01: You may have said this already, but say it again, if this is a repetition. [00:50:40] Speaker 01: What work does 3322D do, in your view? [00:50:45] Speaker 08: 3322D informs the secretary and veterans that if they want to coordinate an entitlement, an existing entitlement, if they want to harmonize that, it tells them what procedures to follow in that event. [00:50:58] Speaker 08: It is a form of a bar to duplication of benefits under Section 3322. [00:51:04] Speaker 01: I understand, I think, what work it would have done between August 1, 2009 and the effective date in 2011, I guess, of the addition of 3322H. [00:51:15] Speaker 01: What work, if any, does 3322D do once 3322H is added to the statute? [00:51:25] Speaker 08: Your Honor, I think that 3322D continues to operate in the same way. [00:51:30] Speaker 08: We don't view the effective date of H1 as being the point from which it applies to service. [00:51:37] Speaker 08: That's just when it went into effect. [00:51:39] Speaker 08: It stands alone in the statutory scheme. [00:51:42] Speaker 08: It has no limiting date on its face to H1. [00:51:46] Speaker 08: Congress knew when to put in dates to make programs or statutory provisions effective, such as in 3327. [00:51:51] Speaker 08: It's not actually in the statute of H1. [00:51:55] Speaker 08: So H1, again, today would require a veteran to credit service to one program or another. [00:52:00] Speaker 08: And if down the road they want to switch that decision or switch that election, they can under the benefit exchange election provisions of 3322D and 3327. [00:52:09] Speaker 08: They can convert later. [00:52:10] Speaker 04: Counselor, does the pro-veteran standard of statutory interpretation apply here in this case, and if so, at what point? [00:52:17] Speaker 08: Yes, Your Honor, absolutely. [00:52:18] Speaker 08: Our position is that it applies at the outset. [00:52:22] Speaker 08: I mean, one, there's no controlling regulatory interpretation by the VA. [00:52:26] Speaker 08: So there's not a Chevron question here or anything of that nature. [00:52:29] Speaker 08: We certainly believe that Congress approaches these statutory schemes in a pro veteran manner. [00:52:37] Speaker 08: And it should be interpreted in that way from the outset by the court to try to make sense of what is going on here at all. [00:52:42] Speaker 03: But Counselor, your interpretation of 3327 [00:52:46] Speaker 03: would render 3327F and 3327G inapplicable to Mr. Ruedesil, is that correct? [00:52:54] Speaker 08: It would make it, Your Honor, would make it applicable to him in this instance because he's not trying to coordinate his benefits. [00:52:59] Speaker 03: And applicable to him and other veterans. [00:53:01] Speaker 03: So you're suggesting that the pro-veteran interpretation is your interpretation. [00:53:06] Speaker 03: But for other dissimilarly situated veterans, for example, those which have used very little of their Montgomery benefits and do decide to elect under 33-27, they would get the 9-11 benefits plus the additional benefits of F and G. [00:53:21] Speaker 03: So your interpretation would read out and eliminate entitlement to those additional benefits by veterans. [00:53:28] Speaker 03: How is that definitively the pro-veteran position? [00:53:31] Speaker 08: Well, Your Honor, our interpretation would not read that out for those veterans. [00:53:35] Speaker 08: If there's a veteran who wants to coordinate their benefits to be able to take advantage under the post-911 program of the incentives offered under 3327 F&G that would carry it over from the Montgomery program, [00:53:47] Speaker 08: One, under our view, there's no reason they can't do that. [00:53:50] Speaker 08: It's just, again, Mr. Rudersil was not trying to do that here. [00:53:52] Speaker 08: He was trying to preserve his Montgomery entitlement and establish more benefits under the post-9-11 program than a benefit exchange election would have allowed him. [00:54:00] Speaker 08: But secondly, the very similar provisions are organically under the post-911 program itself. [00:54:06] Speaker 08: I believe it's 3319. [00:54:09] Speaker 08: It creates the critical skills, benefits, and incentives and whatnot that the military can use to retain high skilled veterans and service members that are what are described [00:54:19] Speaker 08: under 3327 F&G. [00:54:21] Speaker 08: So there is a way for veterans to continue to get those benefits under the post-911 program, if that's what they want, if that's what they're trying to do. [00:54:29] Speaker 03: I have a strange factual question. [00:54:31] Speaker 03: I've been curious all this time, why did Mr. Rudisill elect the way he did, when the form clearly told him, and I understand you don't think he should have finished only two choices. [00:54:42] Speaker 03: But he was pursuing a three-year divinity program master's at Yale. [00:54:47] Speaker 03: And the government laid out two choices for him. [00:54:49] Speaker 03: You can elect to forego your 10 months of Montgomery benefits and get 10 months of 9-11 benefits. [00:54:55] Speaker 03: Or you can use your 10 months of Montgomery benefits and then get an additional 12 months of 9-11 benefits on top of that. [00:55:03] Speaker 03: I'm curious. [00:55:04] Speaker 03: Why did he make the election he did, which clearly seems disadvantageous to him? [00:55:10] Speaker 03: And it was laid out in those very clear terms at the top of page 541, which was his election sheet. [00:55:16] Speaker 03: It's a single sheet. [00:55:17] Speaker 03: It's right there. [00:55:18] Speaker 03: So why? [00:55:19] Speaker 03: What was the advantage to Mr. Rudisill of electing the way he did? [00:55:23] Speaker 03: Why did he do that? [00:55:24] Speaker 08: Well, Your Honor, I think the record reflects that he did not appreciate that that would be the interpretation that VA would apply to him. [00:55:31] Speaker 08: I recognize the form says what it says, but there is no way for a veteran who wants to get their full... Okay. [00:55:38] Speaker 03: I guess what I was trying to say, is there something I'm missing about why 10 months of 9-11 was somehow more advantageous than 10 months of Montgomery plus 12 months of 9-11? [00:55:47] Speaker 03: Is there anything I'm missing in that? [00:55:48] Speaker 03: That was just a mistake on Mr. Rudisill's part in failing to appreciate what the form said? [00:55:52] Speaker 08: It's slightly different, actually, Your Honor. [00:55:54] Speaker 08: So what he was trying to get was 25 months and 15 days under the post-911 bill. [00:56:00] Speaker 03: Yes, I understand what he was trying to get. [00:56:02] Speaker 03: The form laid out two options for him according to the government's view, right? [00:56:06] Speaker 03: Right. [00:56:06] Speaker 03: And he elected one of those two options on this form. [00:56:09] Speaker 03: He filled out the form and elected it. [00:56:11] Speaker 03: And that option left him with far fewer benefits than the other option on the form clearly articulated. [00:56:17] Speaker 03: And I'm wondering, did it leave him with fewer benefits? [00:56:19] Speaker 03: Am I missing something about how these operate? [00:56:22] Speaker 03: Is there something I don't understand that would explain why Mr. Rudisill chose 10 months of one, which is what the form gave him, over 10 months of one plus 12 months of the other? [00:56:32] Speaker 08: Well, Your Honor, I mean, this is obviously a highly factual question that was not resolved by the Veterans Court. [00:56:37] Speaker 08: But I would submit to you that he did not understand that he would only be getting 10 months of benefits, notwithstanding what the form says. [00:56:43] Speaker 08: He thought that he would be getting the balance of what he could get under the post-sign-up program. [00:56:47] Speaker 03: OK, I understand. [00:56:47] Speaker 03: That goes to his mental state. [00:56:48] Speaker 03: I guess what I'm wondering, I think the answer to my question is no, Your Honor. [00:56:52] Speaker 03: There's no logical reason that given these two alternatives, one would pick one over the other. [00:56:56] Speaker 03: Is that right? [00:56:57] Speaker 08: Is there a logical reason? [00:56:59] Speaker 03: Is there some additional benefit that I'm unaware of that he was entitled to by making the choice he chose? [00:57:07] Speaker 08: Not in your specific situation, Your Honor, that you're describing. [00:57:10] Speaker 08: His specific situation. [00:57:11] Speaker 08: But he believed he was getting far more benefits than anything that you've described. [00:57:15] Speaker 08: He thought he was getting 25 months. [00:57:16] Speaker 03: Yes, but the form says what it does. [00:57:18] Speaker 03: And under the language of the form, I'm wondering, would there be any reason somebody in Mr. Rudisill's position would chose as he did? [00:57:28] Speaker 08: It would be hard to describe, I think, Your Honor. [00:57:31] Speaker 08: I mean, I guess the only, there would be a practical benefit perhaps for some to go ahead and get their post-9-11 benefits sooner. [00:57:38] Speaker 00: Well, we could look from the record as if he was told that he needed to exhaust his Montgomery benefits first after he went back to school and had an additional entitlement. [00:57:50] Speaker 00: So he did that. [00:57:52] Speaker 00: So he went up to 36 months of Montgomery benefits and then sought the rest [00:57:58] Speaker 00: of the 48 months from the new statute under 9-11. [00:58:02] Speaker 00: At least, that's what it looked like before the Veterans Court. [00:58:09] Speaker 00: And all of these, I'll call them nuances, but whatever it is, complications that we're talking about here were too complicated. [00:58:18] Speaker 00: You use up what you've already earned, and then you go to the next one. [00:58:22] Speaker 00: And the only limitation is no more than 48 months altogether. [00:58:27] Speaker 00: That seems to be how it was presented in the Veterans Court. [00:58:31] Speaker 00: Does that match your understanding? [00:58:35] Speaker 08: If I follow you correctly, Your Honor, yes. [00:58:37] Speaker 08: Wait, yes? [00:58:38] Speaker 08: Really? [00:58:40] Speaker 08: I'm slightly hard of hearing, so I'm not quite. [00:58:43] Speaker 08: I was going to restate the hypothetical. [00:58:47] Speaker 08: Generally speaking, the statutory scheme would let you exhaust one benefit and then go and apply for another benefit and receive the balance under the other program, subject to the 48-month cap. [00:58:56] Speaker 08: So if that's what you describe. [00:58:58] Speaker 03: That is not what Mr. Rudasill sought to do, nor what he did in this case, is it, counsel? [00:59:02] Speaker 08: That's exactly right, Your Honor, because the form does not let him do that. [00:59:05] Speaker 08: He was, to expand on my answer earlier, Your Honor, he, again, believed that he would be getting more post-911 benefits because they're far more valuable than Montgomery benefits. [00:59:15] Speaker 08: He was trying to go to Yale Divinity School, which would cost far more than the Montgomery program would have paid. [00:59:20] Speaker 08: So when he thought that effort, lining everything up, getting admitted to Yale, getting approval from the army to come back, [00:59:26] Speaker 08: to go through Yale and become a chaplain. [00:59:27] Speaker 08: He thought that he was getting a significant amount of post-911 benefits, which would pay for his schooling, give him a housing stipend to support his family so that he could do that. [00:59:39] Speaker 08: Your Honor, he completed the form, yes, voluntarily, in the sense that that's how you apply for benefits. [00:59:46] Speaker 08: He had to do that. [00:59:48] Speaker 08: It's the way that the VA form and the electronic system is set up, absolutely. [00:59:54] Speaker 01: And would another way of stating, I think, what you've been saying is that he thinks that the form was contrary to the statute in confining his choices. [01:00:09] Speaker 08: That's right, Your Honor. [01:00:09] Speaker 08: If you look at the form on page 711 in the appendix, that is a blank form. [01:00:15] Speaker 08: But it is the form on one sheet. [01:00:17] Speaker 08: So you can actually look at it. [01:00:19] Speaker 08: They all represent to the court that it's identical to how the electronic system is set up. [01:00:23] Speaker 08: If you say that you are seeking post-911 benefits, it forces you to then identify whether you have Montgomery entitlement, and if so, to revoke it. [01:00:31] Speaker 08: And that was the only way for him, when he submitted an electronic application, to proceed and to try to get the benefits from the VA. [01:00:39] Speaker 08: But he also separately identified that he was using a different period of service to establish that post-911 entitlement. [01:00:45] Speaker 08: So on balance, that's what he thought he was doing and not going to be subject to this benefit exchange election. [01:00:51] Speaker 08: There's also correspondence in the record between Mr. Rudisill and Senator Kaine's office, contemporaneously with these decisions and application where he reflects that he did not believe that he was engaging in a benefit exchange election. [01:01:03] Speaker 08: That's on the record at 534. [01:01:06] Speaker 08: I see I'm very nearly out of time, so unless the court has any questions. [01:01:09] Speaker 03: You're actually beyond time. [01:01:10] Speaker 03: Thank you very much, Mr. McHugh. [01:01:11] Speaker 08: Absolutely. [01:01:11] Speaker 08: Thank you very much. [01:01:12] Speaker 08: And I'd just like to note that we obviously have objected to the court's jurisdiction, so we would request that the court dismiss the appeal for lack of jurisdiction, but if it reaches their merits, to affirm. [01:01:21] Speaker 08: Thank you. [01:01:23] Speaker 03: Ms. [01:01:24] Speaker 03: Fomenkova, I'll give you three minutes of rebuttal time. [01:01:26] Speaker 03: If people ask questions, you can stay up longer, but you may not bring your pen with you this time. [01:01:35] Speaker 03: If that wasn't to handicap you, it was to help you. [01:01:38] Speaker 03: I appreciate that, Your Honor. [01:01:41] Speaker 06: I would like to respond to a couple of things that Mr. McHugh noted. [01:01:46] Speaker 06: One is that 3327 is not an entitlement provision. [01:01:51] Speaker 06: It is a provision that coordinates existing entitlement. [01:01:54] Speaker 06: The entitlement comes from somewhere else. [01:01:56] Speaker 06: And I think Mr. Rudisill explicitly agrees with that in his briefing. [01:02:01] Speaker 06: And so the discussion about sort of the impact of 3322H and that once you credit that service, 3327 doesn't talk about recrediting. [01:02:12] Speaker 06: It talks about having an existing entitlement and how you can elect between existing entitlements. [01:02:19] Speaker 06: And so there is, once you have credited under 3322H, [01:02:25] Speaker 06: that period of service no longer establishes an entitlement to a post-911. [01:02:30] Speaker 06: And so you no longer meet the terms of A2, which is a requirement for 3327. [01:02:37] Speaker 06: I will also make a factual correction. [01:02:43] Speaker 06: Mr. McEwen mentioned that 3327-F [01:02:48] Speaker 06: that there is a parallel provision under Post-911. [01:02:51] Speaker 06: That is not the case. [01:02:52] Speaker 06: It can't be the case. [01:02:54] Speaker 06: 3327F returns to the veteran the portion of his contribution to Montgomery that was unused. [01:03:03] Speaker 06: Because the Post-911 program does not have a contribution requirement, there would be no contribution to return. [01:03:11] Speaker 06: But the fact that Congress allowed [01:03:15] Speaker 06: The VA to return that portion of the contribution that only works [01:03:20] Speaker 06: if the election is irrevocable, if we know what your unused portion of Montgomery is. [01:03:27] Speaker 06: And so under his interpretation, when you can switch back to Montgomery, use some post-9-11 benefits, and then freely switch back to Montgomery, we actually then cannot pay you that additional bonus on top of your post-9-11 stipend because we can't calculate it. [01:03:42] Speaker 06: We don't know what the unused portion of your Montgomery benefits would be. [01:03:47] Speaker 06: And so then under his interpretation, those veterans would be missing out potentially on that additional financial assistance that they could otherwise get under 3327. [01:03:59] Speaker 06: But at bottom, our position is that the language in 3327 is clear. [01:04:03] Speaker 06: It applies and describes Mr. Rudasill on its face and does not draw the kind of distinction between veterans based on the number of periods of service that the Veterans Court drew and therefore [01:04:17] Speaker 06: this court should reverse the Veterans Court's interpretation. [01:04:22] Speaker 03: Thank you Ms. [01:04:23] Speaker 03: Fomenkova. [01:04:24] Speaker 03: The case is taken for submission.