Amicus Curiae Brief — James R. Rudisill, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

No. 22-888

IN THE

JAMES R. RUDISILL,

Petitioner,

v.

DENIS R. MCDONOUGH, SECRETARY OF

VETERANS AFFAIRS,

Respondent.

_______________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Federal Circuit

_______________

BRIEF OF 7 VETERANS AS AMICI CURIAE IN

SUPPORT OF PETITIONER

_______________

R. Andrew Austria

Timothy J. Whittle

MCGUIREWOODS LLP

888 16th Street N.W.

Suite 500

Washington, DC 20006

Matthew A. Fitzgerald

Counsel of Record

Vishwa B. Link

MCGUIREWOODS LLP

800 East Canal Street

Richmond, VA 23219

(804) 775-4716

mfitzgerald@mcguirewoods.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ..................................................... 2

ARGUMENT ................................................................ 3

I.

II.

The decision below harms veterans and

military families by cutting down their

benefits from 48 to 36 months. ......................... 3

A.

Steven Attaway ...................................... 4

B.

Robert F. Griggs ..................................... 5

C.

Scott Cone ............................................... 6

D.

Michael Petta ......................................... 7

E.

Byron Elliott ........................................... 8

F.

Elizabeth Lewis ...................................... 9

G.

Eric Richardson .................................... 10

H.

The pro-veteran canon ......................... 11

Transfers of education benefits within military

families are important and needlessly

hindered by the supposed 36-month cap. ...... 12

A.

The 36-month cap fails to fully serve

the Post-9/11 GI Bill’s objectives. ........ 13

B.

Veterans relied on being able to

transfer their full entitlement when

they incurred additional service

obligations. ........................................... 14

CONCLUSION .......................................................... 15

ii

TABLE OF AUTHORITIES

Cases

Boone v. Lightner,

319 U.S. 561 (1943) .............................................. 11

Brown v. Gardner,

513 U.S. 115 (1994) .............................................. 11

Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275 (1946) .............................................. 11

Statutes

38 U.S.C. § 3319 .................................................. 13, 14

38 U.S.C. § 3319(j)(3) (2019) ..................................... 13

38 U.S.C. § 3327 ........................................ 1, 2, 3, 4, 12

Other Authorities

154 Cong. Rec. 10,373 (2008) .............................. 12, 14

DEP’T OF DEF.,

2020 DEMOGRAPHICS PROFILE OF THE MILITARY

COMMUNITY (2020) ............................................... 12

GI Bill Comparison Tool, available at

https://www.va.gov/education/gi-bill-comparisontool/ ......................................................................... 2

iii

Post-9/11 GI Bill (Chapter 33) Payment Rates for

2021 Academic Year (August 1, 2021 - July 31,

2022), available at https://www.va.gov/

education/benefit-rates/post-9-11-gi-billrates/past-rates/ ..................................................... 2

Yellow Ribbon Program, available at

https://www.va.gov/education/about-gi-billbenefits/post-9-11/yellow-ribbon-program/#am-ieligible-for-the-yellow-r .......................................... 3

1

INTEREST OF AMICI CURIAE1

Steven Attaway, Robert F. Griggs, Scott Cone,

Michael Petta, Byron Elliott, Elizabeth Lewis, and

Eric Richardson are veterans whose education

benefits were reduced by the decision below.2

Like Petitioner, they earned benefits under the

Montgomery GI Bill (Montgomery) and the Post-9/11

GI Bill. Under a proper interpretation of the law, they

are entitled to both, subject only to a 48-month cap.

These veterans offer perspective on how the lower

court’s erroneous interpretation of 38 U.S.C. § 3327

hurts veterans and their families.

1 Under Rule 37.6, no party’s counsel authored this brief in part

or in whole. No party or party’s counsel contributed money to

fund preparing or submitting this brief. No person other than

Amici Curiae or their counsel contributed money that was

intended to fund preparing or submitting the brief. Counsel of

record for all parties were timely notified under Rule 37.2 of

Amici Curiae’s intent to file this brief.

2 This brief uses “veteran” to refer to both honorably discharged

and active servicemembers. Cone currently serves on active

duty. The views expressed in this amicus brief do not reflect the

official policy or position of the United States Government or any

branch of the military.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case presents an intricate statutory

interpretation question. But complex legal arguments

about how best to read 38 U.S.C. § 3327 should not

obscure the real-world effect on veterans and their

families.

As the Government admitted below, this case poses

an “important” issue to “the veterans community.”

Sec’y En Banc Br. 16. This brief presents the stories

of seven veterans, including one war widow, most of

whom have 20 or more years of service. All are

rightfully entitled to 48 months of education benefits.

The decision below, by wrongly interpreting 38 U.S.C.

§ 3327(d), has cut them down to 36 months. As a

result, these veterans (and their children) each stand

to lose tens of thousands of dollars in education

benefits.3

3 Twelve months of education benefits can be worth $65,000 or

more. The maximum tuition and fee reimbursement per

academic year under the Post-9/11 GI Bill is $26,042.81. See

Post-9/11 GI Bill (Chapter 33) Payment Rates for 2021 Academic

Year (August 1, 2021 - July 31, 2022), available at

https://www.va.gov/education/benefit-rates/post-9-11-gi-billrates/past-rates/. This equates to $34,723.75 for 12 months of

benefits. Benefits also include an annual $1,000 stipend for

books and supplies, and a monthly housing stipend that varies

based on location. Id. For example, the monthly housing stipend

for the University of Maryland at College Park, is $2,388 per

month.

See GI Bill Comparison Tool, available at

https://www.va.gov/education/gi-bill-comparison-tool/.

The

Yellow Ribbon Program may also provide Post-9/11 GI Bill

3

Veterans Steven Attaway, Robert F. Griggs, Scott

Cone, Michael Petta, Byron Elliott, Elizabeth Lewis,

and Eric Richardson respectfully urge this Court to

grant review and reverse.

ARGUMENT

I.

The decision below harms veterans and

military families by cutting down their

benefits from 48 to 36 months.

The Federal Circuit held that “Section 3327(d)(2)

unambiguously limits the ‘number of months of

entitlement’ for [individuals with multiple periods of

service] to ‘the number of months of unused

entitlement of the individual under [the Montgomery

program].’” Pet. App. 15a.

That interpretation of 38 U.S.C. § 3327(d)

shortchanges veterans out of at least twelve months of

Post-9/11 GI Bill benefits by subjecting them to a

supposed 36-month cap. Both the Court of Appeals for

Veterans Claims and a panel of the Federal Circuit

recognized this error and injustice. This Court should

do the same.

Veterans Steven Attaway, Robert F. Griggs, Scott

Cone, Michael Petta, Byron Elliott, Elizabeth Lewis,

and Eric Richardson have each suffered because of

this 36-month cap. These are their stories and how

recipients with additional thousands of dollars to pay for tuition

and fees not covered by the Post-9/11 GI Bill. See Yellow Ribbon

Program, available at https://www.va.gov/education/about-gibill-benefits/post-9-11/yellow-ribbon-program/#am-i-eligible-forthe-yellow-r.

4

each stand to regain their earned benefits if this Court

grants review and reverses.

A.

Steven Attaway

Steven Attaway is an Air Force veteran and a firstgeneration college graduate. His father and brother

also served in the U.S. Air Force.

In 1989, Attaway enlisted in the U.S. Air Force and

served as a weapons loader and gunner for 8 years.

Attaway then received an honorable discharge.

Afterward, Attaway enrolled at the University of

North Texas. To help pay for his college degree,

Attaway used 13 months and 27 days of his

Montgomery benefits.

After graduating in 2001, Attaway was

commissioned as an officer and served 13 more years

as an aircraft maintenance officer. While on active

duty, Attaway served in the Middle East and deployed

to Afghanistan, Kuwait, and Saudi Arabia in support

of Operation Enduring Freedom.

In 2010, Attaway agreed to serve four more years

in order to transfer his remaining education benefits

to his daughter. At the end of that service obligation,

Attaway retired with an honorable discharge as a

Major/O-4.

In preparation for his daughter to attend Texas

A&M University in the fall of 2022, Attaway obtained

a certificate of eligibility from the VA. Based on its

erroneous interpretation of § 3327(d)(2), the VA

decided that Attaway could only transfer 22 months

and 3 days of Post-9/11 GI Bill benefits to his

5

daughter. If this Court reverses, Attaway’s daughter

would receive 34 months of education benefits, not 22.

B.

Robert F. Griggs

Dr. Robert F. Griggs is a decorated U.S. Army

combat veteran and a retired Lieutenant Colonel/O-5.

Inspired by his father’s service in Vietnam and South

Korea, Griggs enlisted in the United States Army and

served in the 82nd Airborne Division.

Griggs first served in the Army from 1988 to 1991,

including combat in Panama. He then received an

Army Green to Gold Scholarship for college. Griggs

enrolled in Campbell University, where he had to

separate from the Army and join Army ROTC in order

to use his scholarship. He graduated in 1994 and was

commissioned as an officer.

After 9/11, Griggs served combat tours in

Afghanistan and Iraq. In 2011, he agreed to another

service obligation so he could transfer his education

benefits to his son and daughter. Griggs then

returned to combat zones, serving a final tour in

Afghanistan before retiring in 2014.

In total, Griggs served six combat tours across

more than 23 years in the Army. He earned the

Ranger Tab, the Master Parachutist Badge with gold

star for five combat jumps, and the Combat

Infantryman Badge (twice awarded).

After

retirement, he completed a doctorate at Penn State

University.

6

Despite the strains on his family from his service,

Dr. Griggs’ children have excelled academically. He

should have 18 months of education benefits to

transfer to them under the obligation he undertook in

2011. But in 2021, the VA determined that Dr. Griggs

had only six months of benefits to transfer.

Dr. Griggs relied on the U.S. Army’s commitment

to support his children’s education, but their

opportunities for graduate school and decisions about

professional paths have been adversely impacted by

the lower court’s decision. For example, the VA’s

restriction of Dr. Griggs’s benefits harmed his son’s

eligibility for Yellow Ribbon Program benefits, which

would otherwise support the cost of attendance at the

University of Pennsylvania Carey Law School. If this

Court reverses, Dr. Griggs’ children would be entitled

to at least 18 months of education benefits, instead of

six.

C.

Scott Cone

Scott Cone currently serves on active duty as a

Captain/O-6 in the United States Navy. He has nearly

35 years of military service.

In 1988, with a G.E.D. and his parents’ permission,

Cone began his naval career at the age of 17. He

served 12 years as an enlisted Sailor, reaching the

rank of Chief/E-7. As an enlisted Sailor, Cone used

part of his Montgomery benefits to become a firstgeneration college graduate from the University of

Maryland at College Park (1997).

7

In August 2000, Cone was commissioned as an

officer. While on active duty, Cone flew as a naval

aircrewman, completed deployments on submarines

and with carrier strike groups, and served overseas in

multiple locations.

As an officer, Cone again used portions of his

Montgomery benefits to pay for a graduate degree in

public policy. In total, Cone used 24 months of

Montgomery benefits to obtain his undergraduate and

graduate degree, each of which was critical to further

promotions in the Navy.

In June 2013, Cone transferred his Post-9/11 GI

Bill benefits to his children. Based on the 36-month

cap, Cone is only entitled to 12 months of Post-9/11 GI

Bill benefits due to his prior use of Montgomery

benefits.

If this Court reverses, Cone’s children

would be entitled to at least 24 months of education

benefits.

D.

Michael Petta

Michael Petta recently retired as a Commander/O5 in the United States Coast Guard. Raised by a single

mother, Petta enlisted in the United States Navy in

1992, where he served as a submarine sonar

technician for many years.

After he missed the birth of his first child because

he was at sea on a ballistic missile submarine, Petta

dedicated himself to earning a college degree so he

could find a civilian profession to provide for his

family. After eight years of study during his service,

Petta earned a degree from Southern Illinois

8

University. After graduation, he left the service for a

civilian job.

When 9/11 came, Petta wanted to serve his country

again. He returned to active duty in the United States

Navy in October 2001, as a preliminary step toward

receiving a commission in the United States Coast

Guard. In 2006, the Coast Guard selected Petta to

attend law school. Petta used his Montgomery

benefits to help pay for law school, using a total of 33

months and 7 days of benefits.

In 2016, Petta sought to transfer his Post-9/11 GI

Bill to his two youngest children. But when he

submitted a claim in early 2022 for his son to use these

benefits, the VA stated that he had only two months

and 23 days of benefits eligible for transfer.

As a single father long focused on providing his

children with the best opportunities, Petta would have

chosen to use his Montgomery benefits differently in

2006 had he known the transfer of benefits to his sons

would be subject to this supposed 36-month cap. If

this Court reverses, Petta would have close to 15

months of earned Post-9/11 GI Bill benefits to transfer

to his children.

E.

Byron Elliott

Byron Elliott is a retired Lieutenant Colonel/O-5

and served in the United States Army and Army

Reserve. Raised by a single mother, he enlisted in the

Army in 1993. He left active duty in 1997 to attend

Regis University.

9

Elliott was a recipient of an Army Green to Gold

Scholarship and used some of his Montgomery

benefits to pay for school. He was later commissioned

as an officer, including deployments to Kosovo and

Iraq. In 2004, as a Company Commander, Elliott

enrolled in an MBA program at Colorado Christian

University, using a year of his Montgomery benefits.

In 2005, he transitioned from active duty to the United

States Army Reserves and completed his MBA.

After the Post-9/11 GI Bill, Elliott enrolled at

University of Denver, Sturm College of Law, under the

impression he could use his Post-9/11 GI Bill benefits

toward his law school education. The VA at first

confirmed his eligibility.

When Elliott returned for his second year of law

school, the VA informed him that he had only two

months of eligibility remaining. He had to either drop

out of law school or fund the rest of it with loans. He

chose the loans and completed law school in debt.

Because of the 36-month cap, Elliott—a 24-year

veteran—had to fund two and half years of law school

on his own. Today, he is concerned not only with the

financial burden of his student loans, but with the lack

of notice he received when he began law school. If this

Court reverses the lower court’s decision, Elliott

should get back 12 months of his earned Post-9/11 GI

Bill benefits.

F.

Elizabeth Lewis

Elizabeth Lewis enlisted in the United States

Army in 2002, serving four years as a track and wheel

10

mechanic. While serving in South Korea, she met her

husband. After they were married, Lewis’s husband

deployed to Afghanistan, where he was killed in

action.

Lewis had enrolled in nursing school to become an

operating room nurse, using her Montgomery benefits.

When her husband was killed in Afghanistan, she left

nursing school because it required her to encounter

life and death situations that triggered her own

trauma. She currently resides in San Antonio, Texas,

with her son and her parents. Lewis has not yet

received a college degree, and she is sustained by parttime employment and survivor benefits.

After extensive wrangling with the VA, it remains

the case that because of the 36-month cap and her own

service, Lewis cannot receive the full 48 months of

benefits she is entitled to through her various GI Bill

benefits and as a recipient of the Marine Gunnery

Sergeant John David Fry Scholarship for survivors of

Post-9/11 veterans killed in action. If this Court

reverses, Lewis should get at least 12 more months of

education benefits.

G.

Eric Richardson

Eric Richardson served in the United States Army

and is a retired Colonel/O-6. Richardson enlisted in

the Army and served five years, until he was

honorably discharged in 1996. During his enlisted

service, Richardson supervised and performed

maintenance on helicopters.

11

In 1996, Richardson was commissioned as an

officer and continued to serve as a reservist. After

9/11, Richardson was deployed several times,

including a year and a half in Afghanistan.

In December 2008, Richardson took classes at the

Florida Institute of Technology. He used some of his

Montgomery benefits to pay for seven months and 18

days of coursework.

In 2009, Richardson transferred 14-months and 6

days of benefits to each of his two children from his

first marriage, incurring another service obligation.

When he checked to see what entitlement he had

remaining for his stepchildren in August 2021,

Richardson learned that he had no remaining benefits.

If this Court reverses, Richardson’s stepchildren

would get 12 months of education benefits.

H.

The pro-veteran canon.

Under the pro-veteran canon, a statute providing

benefits to veterans “is always to be liberally

construed to protect those who have been obliged to

drop their own affairs to take up the burdens of the

nation.” Boone v. Lightner, 319 U.S. 561, 575 (1943);

see also Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275, 285 (1946) (holding that Selective

Training and Service Act of 1940 must be “liberally

construed for the benefit of those who left private life

to serve their country in its hour of great need”). If

other interpretive tools leave the meaning of a

provision unclear, under the canon, “interpretive

doubt is to be resolved in the veteran’s favor.” Brown

v. Gardner, 513 U.S. 115, 118 (1994).

12

At worst, § 3327 is ambiguous about the proper

cap. Amici agree with Petitioner that any ambiguity

in the statutes at issue must be resolved in veterans’

favor. See Sec’y En Banc Br. 31 n.7; Rudisill En Banc

Br. 63-69. This Court should apply the pro-veteran

canon to prevent the VA from stripping veterans of

their well-earned benefits. As Attaway, Griggs, Cone,

Petta, Elliott, Lewis, and Richardson’s stories show,

veterans and their families will only suffer if this

Court allows the erroneous interpretation to stand.

II.

Transfers of education benefits within

military families are important and

needlessly hindered by the supposed 36month cap.

“There is an old maxim in the military that while

you recruit the servicemember, you retain the family.”

154 Cong. Rec. 10,373 (2008) (remarks of Sen. Levin).

But under the VA’s interpretation of 38 U.S.C. §

3327(d)(2), many servicemembers with multiple

periods of qualifying service are unable to fully

transfer their Post-9/11 GI Bill benefits they earned to

their children. By restricting the total amount of

benefits to 36 months for veterans with multiple

periods of qualifying service, the VA erroneously

limits their ability to transfer their full entitlement to

their dependents.

The negative impact will touch many military

families.

Today, there are 1.6 million military

children. DEP’T OF DEF., 2020 DEMOGRAPHICS PROFILE

OF THE MILITARY COMMUNITY 100 (2020). Many of

these children stand to lose if the VA’s 36-month cap

stands.

13

A.

The 36-month cap fails to fully serve

the Post-9/11 GI Bill’s objectives.

Under 38 U.S.C. § 3319(b)–(c), a servicemember

who has completed “six years of service in the Armed

Forces and enters into an agreement to serve at least

four more years as a member of the uniformed

services” may transfer their Post-9/11 GI Bill benefits

to their dependents. In enacting the transferability

provision, Congress intended “to promote recruitment

and retention in the uniformed services.” 38 U.S.C. §

3319(a)(2).

Transferability of Post-9/11 GI Bill

benefits is an important recruitment and retention

tool.

Recently, Congress amended 38 U.S.C. § 3319 to

prevent the Secretary of Defense from making any

regulation that would limit transferability “based on a

maximum number of years of service in the Armed

Forces.” 38 U.S.C. § 3319(j)(3) (2019) (“The Secretary

of Defense may not prescribe any regulation that

would provide for a limitation on eligibility to transfer

unused education benefits to family members based on

a maximum number of years of service in the Armed

Forces.”).

This recent amendment ensures that

servicemembers are able to transfer their benefits to

their dependents so long as they have met the

prerequisite years of service.

The amendment

underscores Congress’s intent that Post-9/11 GI Bill

benefits serve as an important retention and

recruitment tool.

Congress’s purpose in enacting the Post-9/11 GI

Bill was to promote military recruitment and

retention by providing additional benefits to

14

servicemembers and permitting these benefits to be

transferred to their dependents. See 38 U.S.C. § 3319.

In doing so, Congress sought to “recruit the

servicemember [and] retain the family.” 154 Cong.

Rec. 10,373 (2008) (remarks of Sen. Levin).

But the 36-month cap impedes this Congressional

purpose by erroneously capping the amount of benefits

a servicemember with multiple periods of qualifying

service can receive. In turn, the 36-month cap thereby

caps the benefits a servicemember can transfer to

dependents under the Post-9/11 GI Bill. By limiting

the amount of benefits servicemembers can transfer to

their dependents under the Post-9/11 GI Bill, the 36month cap conflicts with the Congress’s objectives and

diminishes the incentive Congress enacted to recruit

and retain servicemembers.

B.

Veterans relied on being able to

transfer their full entitlement when

they incurred additional service

obligations.

Thousands of veterans have served their country

honorably in order to receive GI Bill benefits to put

themselves or their children through college. Many of

these veterans incurred more service obligations and

spent extended time away from their families in order

to transfer their Post-9/11 GI Bill benefits to their

dependents. But when these veterans sought to use

those benefits, they were retroactively told that their

entitlement under the Post-9/11 GI Bill would be

limited to the amount of entitlement remaining under

their Montgomery benefits. The VA failed to inform

15

veterans of the supposed 36-month limit when they

elected to serve longer.

The stories of Captain Scott Cone, Lieutenant

Colonel Robert F. Griggs, Colonel Eric Richardson,

Commander Michael Petta, and Major Steven

Attaway each illustrate real-world consequences for

those who detrimentally relied on the ability to

transfer their benefits to their dependents. For

example, Colonel Richardson consulted several VA

education counselors on his entitlements right after

the Post-9/11 GI Bill was enacted. He knew that he

would not be allowed to draw benefits simultaneously

from both. But he was never informed of any 36month cap. Likewise, Captain Cone, Lieutenant

Colonel Elliot, and Major Attaway also did not receive

notice of any 36-month cap. Only when they sought to

use their benefits did they first learn of the 36-month

cap. The VA shortchanged these veterans, as well as

countless others similarly situated, of 12 months of

Post-9/11 GI Bill benefits meant for their children.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Matthew A. Fitzgerald

Counsel of Record

Vishwa B. Link

MCGUIREWOODS LLP

800 East Canal Street

Richmond, VA 23219

16

(804) 775-4716

mfitzgerald

@mcguirewoods.com

R. Andrew Austria

Timothy J. Whittle

MCGUIREWOODS LLP

888 16th Street N.W.

Suite 500

Washington, DC 20006

APRIL 14, 2023

Counsel for Amici