I had intended to write this one up all the way back on Veteran's Day, but ended up not getting the chance to - which is too bad because it would have fit the theme, as this is a Veteran's Benefits case!
Congress has long provided a variety of benefits to servicemembers through various iterations of what for short-hand purposes is often referred to as the "GI Bill." The specific benefits have varied over time, as have the qualification criteria for various parts of the programs available under the GI Bill. From 1984-2008 the active version of the bill was known as the "Montgomery GI Bill" after the Mississippi Congressman who pushed the changes that were implemented that year. Benefits accumulated under the program under the provisions of that iteration of the bill are often referred to as "Montgomery benefits." Congress revamped the bill again in the aftermath of 9/11 (although it took quite a few years to do so), creating a new set of entitlements referred to typically as "Post 9/11 benefits." A primary purpose of the benefits available in both programs was to assist veterans with transitioning out of military service and back into civilian life. The Post 9/11 benefits are generally more comprehensive and desirable than the Montgomery benefits.
In this case, a servicemember who served two non-consecutive stints in the military had earned both Montgomery benefits and post 9/11 benefits. While the statutory language clearly bars benefits from being used concurrently, this case arises from a disagreement between the Veteran and the Veteran's Affairs department over how to interpret how exactly the veteran is allowed to use those benefits. When the Veteran (Rudisill) applied to a college program, he informed the VA that he was using his Post 9/11 benefits, accrued during his second stint in the military, to do so.
Now, if Rudisill had never used any of his GI Bill benefits previously, this would be a simple case. He would be entitled to 36 months of benefits under the Post 9/11 Benefits scheme, and everyone would be on their merry way. However, Rudisill had already used 25 months and 14 days of benefits under the Montgomery program. There is an overarching limit of 48 months on the use of GI Bill programs, so Rudisill believed he was entitled to 22 months and 16 days of benefits under the post 9/11 program, allowing him to hit the 48 month benefit cap. The VA disagreed. Their interpretation of the statutory scheme - which includes a "coordination" section that deals with the interaction of the benefit schemes for veterans who are entitled to benefits through both programs - actually capped Rudisill to a combined 36 months. The VA paperwork signed by Rudisill in applying for aid explicitly said as much, and Rudisill signed the paperwork. This lawsuit involves a challenge to that VA interpretation.
The crux of the argument is whether the "coordination" provision includes a requirement to choose between the programs for veterans who have accrued benefits under both, or if a veteran can simply choose to use one or the other. The statutory language of the provision states the following:
The emphasis on "may elect" was added by me. After this portion the provision goes on to list all of the qualifications, but the argument in this case is really focused on that "may elect" language, and also on whether an election was necessary at all. Rudisill is arguing that there is nothing in any statute that requires him to elect between the two benefit schemes, and that the the VAs paperwork that forces is an election is setting up a false barrier to the use of the benefits. Instead, Rudisill argues that he has clearly become entitled to Post 9/11 benefits thanks to his second stint in the military, and all he wants to do is use those benefits. That doesn't implicate his previously earned Montgomery benefits at all, other than in the terms of an overall 48 month benefit cap that applies to all benefits generally regardless of what program they are being declared any. To argue that he can't do this suggests that the election provision here is actually stripping him of rights earned under the Post 9/11 GI Bill without any explicit statement that it is doing so.
Instead, Rudisill reads this as an exchange provision. Since you can't use the benefits concurrently, the Post 9/11 version of the bill allows someone to "swap" their Montgomery benefits for Post 9/11 benefits, and if they do so they are subject to the 36 month cap rather than the 48 month cap. That is what is meant by saying "may elect" - they have a choice to elect the program they want to use, and if they choose to use the post 9/11 program they are capped at 36 months (probably because that is the length of time the original Montgomery benefits - which they are now converting - is capped at). Once they make that election, the decision is irrevocable and moving forward they will be limited to Post 9/11 benefits. The fact that the statute says "may elect" is also significant because other provisions in the same law use "shall" suggesting a requirement.
Confused yet? Don't worry if you are, this gets a bit hard to hold onto in your head. The government argues against Rudisill in saying that you have to make an election to use benefits at all. The government position is that anyone who has accrued Montgomery benefits can start using Post 9/11 benefits only by virtue of making an election as contemplated by the statute. In other words, Rudisill was welcome to continue taking Montgomery benefits and receive his last 10 months and 16 days of service under the Montgomery provisions before maxing out his 36 months of Montgomery service, but if at any point he wanted to start using his accrued Post 9/11 benefits he could only do so by "electing" to receive Post 9/11 benefits instead of Montgomery benefits. The choice is inevitable by virtue of applying as you have to tell the VA which program you are using, and so Rudisill's theory that he is just "using his accrued Post 9/11 benefits" without making an election is simply logically inaccurate.
Now, this is a case that could prove to be a little deceptive in terms of oral argument, because a lot of the discussion centered on Justices (including, very uncharacteristically the Chief Justice) acting a lot more like advocates and policy makers than judges. Roberts, Jackson, Kagan, Sotomayor, and Gorsuch all talked about the unfairness of the government's proposed rule to Veteran's, and strongly suggested that they were more focused on the public policy of helping out veterans rather than interpreting the law. Don't get me wrong, from a public policy perspective I'm on board ... but that's actually pretty bad judging and goes beyond their mandate, or at least it goes beyond the mandate that most Justices would argue that they have. Roberts especially surprised me with his focus on pragmatic real-world consequences in this case. Because of those interactions, it seems like Rudisill has the better of the arguments going forward ... but I also think sober conservative minds might prevail as they calm down and get to writing.
I'm on the fence with how I would come down on this one, as I see merit to both arguments. However, while my heart is with Rudisill I tip slightly toward the government argument that an election does have to happen when you apply for benefits, and the use of "may" rather than "shall" in this context is simply acknowledging they have the freedom to choose one or the other, not that the have the freedom to deny a choice. Only if they fully exhaust their Montgomery benefits do they have the opportunity to use Post 9/11 benefits without a choice, because there's nothing left to choose between. Otherwise, any attempt to "use" Post 9/11 benefits really does represent a choice. The language might seem to allow a choice, but it really doesn't represent one - it just is an acknowledgement that one or another, using any benefits indicates a choice was necessarily made. I would probably be forced to come down in that direction if I was on the Court. Since I'm not, I'll stick with predicting though ... and I think this is going to end up a 6-3 win for Rudisill over the government. I think there is enough anti-VA feeling on this bill on the Court that they'll be able hold a workable majority effectively granting a large number of veterans some additional benefits. I definitely won't complain if I'm right, even if I would be compelled to rule differently if I somehow ended up as a member of the Court.
Congress has long provided a variety of benefits to servicemembers through various iterations of what for short-hand purposes is often referred to as the "GI Bill." The specific benefits have varied over time, as have the qualification criteria for various parts of the programs available under the GI Bill. From 1984-2008 the active version of the bill was known as the "Montgomery GI Bill" after the Mississippi Congressman who pushed the changes that were implemented that year. Benefits accumulated under the program under the provisions of that iteration of the bill are often referred to as "Montgomery benefits." Congress revamped the bill again in the aftermath of 9/11 (although it took quite a few years to do so), creating a new set of entitlements referred to typically as "Post 9/11 benefits." A primary purpose of the benefits available in both programs was to assist veterans with transitioning out of military service and back into civilian life. The Post 9/11 benefits are generally more comprehensive and desirable than the Montgomery benefits.
In this case, a servicemember who served two non-consecutive stints in the military had earned both Montgomery benefits and post 9/11 benefits. While the statutory language clearly bars benefits from being used concurrently, this case arises from a disagreement between the Veteran and the Veteran's Affairs department over how to interpret how exactly the veteran is allowed to use those benefits. When the Veteran (Rudisill) applied to a college program, he informed the VA that he was using his Post 9/11 benefits, accrued during his second stint in the military, to do so.
Now, if Rudisill had never used any of his GI Bill benefits previously, this would be a simple case. He would be entitled to 36 months of benefits under the Post 9/11 Benefits scheme, and everyone would be on their merry way. However, Rudisill had already used 25 months and 14 days of benefits under the Montgomery program. There is an overarching limit of 48 months on the use of GI Bill programs, so Rudisill believed he was entitled to 22 months and 16 days of benefits under the post 9/11 program, allowing him to hit the 48 month benefit cap. The VA disagreed. Their interpretation of the statutory scheme - which includes a "coordination" section that deals with the interaction of the benefit schemes for veterans who are entitled to benefits through both programs - actually capped Rudisill to a combined 36 months. The VA paperwork signed by Rudisill in applying for aid explicitly said as much, and Rudisill signed the paperwork. This lawsuit involves a challenge to that VA interpretation.
The crux of the argument is whether the "coordination" provision includes a requirement to choose between the programs for veterans who have accrued benefits under both, or if a veteran can simply choose to use one or the other. The statutory language of the provision states the following:
The emphasis on "may elect" was added by me. After this portion the provision goes on to list all of the qualifications, but the argument in this case is really focused on that "may elect" language, and also on whether an election was necessary at all. Rudisill is arguing that there is nothing in any statute that requires him to elect between the two benefit schemes, and that the the VAs paperwork that forces is an election is setting up a false barrier to the use of the benefits. Instead, Rudisill argues that he has clearly become entitled to Post 9/11 benefits thanks to his second stint in the military, and all he wants to do is use those benefits. That doesn't implicate his previously earned Montgomery benefits at all, other than in the terms of an overall 48 month benefit cap that applies to all benefits generally regardless of what program they are being declared any. To argue that he can't do this suggests that the election provision here is actually stripping him of rights earned under the Post 9/11 GI Bill without any explicit statement that it is doing so.
Instead, Rudisill reads this as an exchange provision. Since you can't use the benefits concurrently, the Post 9/11 version of the bill allows someone to "swap" their Montgomery benefits for Post 9/11 benefits, and if they do so they are subject to the 36 month cap rather than the 48 month cap. That is what is meant by saying "may elect" - they have a choice to elect the program they want to use, and if they choose to use the post 9/11 program they are capped at 36 months (probably because that is the length of time the original Montgomery benefits - which they are now converting - is capped at). Once they make that election, the decision is irrevocable and moving forward they will be limited to Post 9/11 benefits. The fact that the statute says "may elect" is also significant because other provisions in the same law use "shall" suggesting a requirement.
Confused yet? Don't worry if you are, this gets a bit hard to hold onto in your head. The government argues against Rudisill in saying that you have to make an election to use benefits at all. The government position is that anyone who has accrued Montgomery benefits can start using Post 9/11 benefits only by virtue of making an election as contemplated by the statute. In other words, Rudisill was welcome to continue taking Montgomery benefits and receive his last 10 months and 16 days of service under the Montgomery provisions before maxing out his 36 months of Montgomery service, but if at any point he wanted to start using his accrued Post 9/11 benefits he could only do so by "electing" to receive Post 9/11 benefits instead of Montgomery benefits. The choice is inevitable by virtue of applying as you have to tell the VA which program you are using, and so Rudisill's theory that he is just "using his accrued Post 9/11 benefits" without making an election is simply logically inaccurate.
Now, this is a case that could prove to be a little deceptive in terms of oral argument, because a lot of the discussion centered on Justices (including, very uncharacteristically the Chief Justice) acting a lot more like advocates and policy makers than judges. Roberts, Jackson, Kagan, Sotomayor, and Gorsuch all talked about the unfairness of the government's proposed rule to Veteran's, and strongly suggested that they were more focused on the public policy of helping out veterans rather than interpreting the law. Don't get me wrong, from a public policy perspective I'm on board ... but that's actually pretty bad judging and goes beyond their mandate, or at least it goes beyond the mandate that most Justices would argue that they have. Roberts especially surprised me with his focus on pragmatic real-world consequences in this case. Because of those interactions, it seems like Rudisill has the better of the arguments going forward ... but I also think sober conservative minds might prevail as they calm down and get to writing.
I'm on the fence with how I would come down on this one, as I see merit to both arguments. However, while my heart is with Rudisill I tip slightly toward the government argument that an election does have to happen when you apply for benefits, and the use of "may" rather than "shall" in this context is simply acknowledging they have the freedom to choose one or the other, not that the have the freedom to deny a choice. Only if they fully exhaust their Montgomery benefits do they have the opportunity to use Post 9/11 benefits without a choice, because there's nothing left to choose between. Otherwise, any attempt to "use" Post 9/11 benefits really does represent a choice. The language might seem to allow a choice, but it really doesn't represent one - it just is an acknowledgement that one or another, using any benefits indicates a choice was necessarily made. I would probably be forced to come down in that direction if I was on the Court. Since I'm not, I'll stick with predicting though ... and I think this is going to end up a 6-3 win for Rudisill over the government. I think there is enough anti-VA feeling on this bill on the Court that they'll be able hold a workable majority effectively granting a large number of veterans some additional benefits. I definitely won't complain if I'm right, even if I would be compelled to rule differently if I somehow ended up as a member of the Court.