Amicus Curiae Brief — James R. Rudisill, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs
Supreme Court briefAug 17, 2023
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No. 22-888
IN THE
Supreme Court of the United States
_____
JAMES R. RUDISILL,
Petitioner,
v.
DENIS R. MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent.
_____
On Writ of Certiorari to the
United States Court of Appeals
for the Federal Circuit
_____
BRIEF OF IRAQ AND AFGHANISTAN
VETERANS OF AMERICA AS AMICUS CURIAE
IN SUPPORT OF PETITIONER
_____
TODD C. TORAL
JENNER & BLOCK LLP
633 West 5th Street
Suite 3600
Los Angeles, CA 90071
DANIEL W. BOBIER
JENNER & BLOCK LLP
353 N. Clark Street
Chicago, Illinois 60654
ADAM G. UNIKOWSKY
Counsel of Record
MICHELLE S. KALLEN
JENNER & BLOCK LLP
1099 New York Ave., NW
Suite 900
Washington, DC 20001
(202) 639-6000
aunikowsky@jenner.com
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................... iii
INTEREST OF AMICUS CURIAE.............................. 1
SUMMARY OF ARGUMENT ........................................ 2
ARGUMENT ...................................................................... 4
I.
II.
EDUCATION
BENEFITS
ARE
CRUCIAL TO TODAY’S ALLVOLUNTEER ARMED FORCES .................... 5
A.
The Armed Forces Face Historic
Challenges With Recruitment .................. 6
B.
Maintaining Robust Education
Benefits Is Critical To The
Military’s Ability To Recruit .................... 8
CONGRESS INTENDED THE POST9/11 GI BILL TO EXPAND, NOT
CONTRACT,
EDUCATION
BENEFITS ........................................................... 11
A.
The Montgomery GI Bill
Provided Limited Education
Benefits To Servicemembers.................. 11
B.
The
Post-9/11
GI
Bill
Dramatically Enhanced The
Education Benefits Available To
Servicemembers ....................................... 14
C.
ii
Congress Did Not Intend The
Post-9/11 Bill To Penalize
Servicemembers Who Volunteer
For Multiple Periods Of Service ............ 17
CONCLUSION ................................................................ 24
iii
TABLE OF AUTHORITIES
CASES
Boone v. Lightner, 319 U.S. 561 (1943) ................ 11, 23
Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428 (2011) .................................................. 17
United States v. Oregon, 366 U.S. 643
(1961) ........................................................................ 11
STATUTES
38 U.S.C. § 3001(1) ........................................................ 11
38 U.S.C. § 3001(4) ........................................................ 11
38 U.S.C. § 3011 ............................................................ 18
38 U.S.C. § 3011(a)(1)(i)(II) ......................................... 19
38 U.S.C. § 3301 note .................................................... 10
38 U.S.C. § 3311(b)........................................................ 18
38 U.S.C. § 3311(b)(1) ................................................... 19
38 U.S.C. § 3322(h).............................................18, 20-21
38 U.S.C. § 3327(d)(2)(A) ............................................. 19
38 U.S.C. § 3695(a) ........................................................ 20
Harry W. Colmery Veterans Educational
Assistance Act of 2017, Pub. L. No. 115–
48, 131 Stat 973........................................................ 16
Post– 9/11 Veterans Educational Assistance
Act of 2008, Pub. L. No. 110-252,
§ 5002(6), 122 Stat. 2323, 2358 ................... 14, 20, 23
OTHER AUTHORITIES
iv
38 C.F.R. § 21.9520 ....................................................... 19
38 C.F.R. § 21.9520(c)(2)(ii) ......................................... 18
$600 Montgomery GI Bill Buy-Up Program
Rates, U.S. Dep’t of Veterans Affairs,
https://bit.ly/3Oyk9vr (last updated Dec.
1, 2022) ...................................................................... 13
Lolita C. Baldor, Army Cuts Force Size
Amid
Unprecedented
Battle
for
Recruits, Associated Press (July 19,
2022), https://bit.ly/3DNMHMw ............................. 7
Barbara A. Bicksler & Lisa G. Nolan,
Recruiting an All-Volunteer Force: The
Need for Sustained Investment in
Recruiting
Resources-An
Update,
Strategic
Analysis
(Dec.
2009),
https://bit.ly/3QqfP3X .................................. 8, 12, 15
Cong. Budget Off., CBO55179, The Post9/11 GI Bill: Beneficiaries, Choices, and
Cost (May 2019), https://bit.ly/3Qq53e0 ......... 15, 17
Joe Davidson, Military Recruitment Lapses
Lead to ‘Challenges to National
Security’, Wash. Post (Apr. 21, 2023),
https://wapo.st/3qrsTLG.......................................... 7
Cassandria Dortch, Cong. Rsch. Serv.,
R42755, The Post-9/11 GI Bill: A Primer
(updated Sept. 23, 2021), https://bit.ly/
3Ys5gzl ..................................................... 8, 14, 19, 22
v
Jim Garamone, Vice Chiefs Talk Recruiting
Shortfalls, Readiness Issues, DOD
News (Apr. 20, 2023), https://bit.ly/
47l3Har ....................................................................... 7
Thomas Gates et al., Report of The
President’s Commission on an AllVolunteer Armed Force (Feb. 1970),
https://bit.ly/45quL6t ........................................... 4, 5
Getting a GI Bill Extension, U.S. Dep’t of
Veterans Affairs, https://bit.ly/3Yp
DC5W (last updated Feb. 14, 2023) ............... 14, 21
History of the GI Bill, MyNavy HR,
https://bit.ly/44QC2wp (last visited Aug.
7, 2023) ...................................................................... 12
Increase in Maximum Tuition and Fee
Amounts Payable Under the Post-9/11
GI Bill, 88 Fed. Reg. 24,665 (Apr. 21,
2023) .......................................................................... 17
Ben Kesling, The Military Recruiting
Crisis: Even Veterans Don’t Want Their
Families to Join, Wall St. J. (June 30,
2023), https://on.wsj.com/47qWt4W ....................... 6
C. Todd Lopez, All-Volunteer Force Proves
Successful for U.S. Military, DOD News
(Mar. 2, 2023), https://bit.ly/47o42Jh ...................... 5
The Military Draft During the Vietnam
War,
Mich.
in
the
World,
https://bit.ly/3OObxkD (last visited Aug.
9, 2023) ........................................................................ 4
vi
Montgomery GI Bill Active Duty (Chapter
30) Rates, U.S. Dep’t of Veterans
Affairs, https://bit.ly/3OvCbOS (last
updated May 3, 2023)........................................ 12, 13
Montgomery GI Bill Active Duty (MGIBAD), U.S. Dep’t of Veterans Affairs,
https://bit.ly/3rXeRBT (last updated
July 18, 2023) ........................................................... 12
Pew Rsch. Ctr., The Military-Civilian Gap:
War and Sacrifice In The Post-9/11 Era
(Oct. 2011), https://pewrsr.ch/3qvd6vn .............. 6, 8
Dave Philipps, With Few Able and Fewer
Willing, U.S. Military Can’t Find
Recruits, N.Y. Times (July 14, 2022),
https://nyti.ms/3DPb50d .......................................... 6
Post-9/11 GI Bill (Chapter 33), U.S. Dep’t of
Veterans Affairs, https://bit.ly/3s2hthY
(last updated July 18, 2023) ................................... 16
Post-9/11 GI Bill: Transferability, U.S.
Dep’t of Veterans Affairs (updated Mar.
2023), https://bit.ly/3KuJO6Q ................................ 16
Bernard Rostker, I Want You!: The
Evolution of the All-Volunteer Force
(2006), https://bit.ly/3qq30vS .............................. 4, 5
Secretary’s M22-4 Manual at Pt. 3, available
at
https://perma.cc/XUY8-JZSN?
type=image ........................................................ 18, 19
vii
Tom Squitieri, Army Expanding ‘Stop Loss’
Order to Keep Soldiers from Leaving,
USA Today (updated Jan. 6, 2004),
https://bit.ly/3Kyomy5 ............................................. 7
STUDENT VETERANS: A Valuable
Asset to Higher Education, Syracuse
Univ.: Inst. for Veterans & Mil. Fams.
(Nov. 2019), https://bit.ly/3KK70y6........................ 9
Table 302.10. Recent High School
Completers and Their Enrollment in
College, by Sex and Level of Institution:
1960 through 2021, Nat’l Ctr. for Educ.
Stat. (Aug. 2022), https://bit.ly/3Q
vSTR0 ......................................................................... 9
Table 330.10. [CORRECTED] Average
Undergraduate Tuition, Fees, Room,
and Board Rates Charged for Full-Time
Students
in
Degree-granting
Postsecondary Institutions, by Level
and Control of Institution: Selected
Academic Years, 1963-64 Through 2021–
22, Nat’l Ctr. for Educ. Stat. (Dec. 2022),
https://bit.ly/3YofYH6 ............................................. 9
Table 330.50. Average and Percentiles of
Graduate Tuition and Required Fees in
Degree-Granting
Postsecondary
Institutions, by Control of Institution:
1989–90 Through 2020–21, Nat’l Ctr. for
Educ.
Stat.
(Feb.
2022),
https://bit.ly/3s8Sp8X ............................................. 10
viii
Transfer Your Post-9/11 GI Bill Benefits,
U.S. Dep’t of Veterans Affairs,
https://bit.ly/3OLGKF5 (last updated
Aug. 8, 2023) ............................................................ 16
U.S. Gov’t Accountability Off., GAO-23106551, DOD Active-Duty Recruitment
and Retention Challenges (2023),
https://bit.ly/3KuInW0 ............................................. 5
Amy Zipkin, The Military Draft Ended 50
Years Ago, Dividing a Generation,
Wash.
Post
(Jan.
27,
2023),
https://wapo.st/3rZKGdj .......................................... 5
Corri Zoli et al., Missing Perspectives:
Servicemembers’
Transition
from
Service to Civilian Life - Data-Driven
Research to Enact the Promise of the
Post-9/11 GI Bill, Syracuse Univ.: Inst.
for Veterans & Mil. Fams. (Nov. 2015),
https://bit.ly/3OQ1jkH.............................................. 8
INTEREST OF AMICUS CURIAE 1
Iraq and Afghanistan Veterans of America is a
nonprofit and nonpartisan organization dedicated to
improving the lives of Iraq and Afghanistan veterans
and their families. It is the first and largest national
veterans service organization dedicated exclusively to
current and former volunteer servicemembers. Its
membership comprises more than 425,000 active
veterans and civilian supporters across all 50 states.
From its founding in 2004, IAVA has worked
vigorously to support and expand veterans’ benefits and
to protect the GI Bills in particular. In 2007 and 2008,
IAVA was a leading voice among veterans service
organizations in the media and in Congress in support of
the Post-9/11 GI Bill then under debate. IAVA’s
research at the time—which IAVA published among
Congressional staffers and the public—indicated that, if
enacted, the Post-9/11 GI Bill’s enhanced education
benefits would provide a critical boost to the military’s
flagging recruitment efforts. Together with other
veterans service organizations and allies in Congress,
IAVA helped drive the bipartisan consensus that
propelled the Post-9/11 GI Bill into law.
As one of the instigating forces behind passage of
the Post-9/11 GI Bill, and as the voice of more than
1
Pursuant to this Court’s Rule 37.6, counsel for amicus curiae
certifies that this brief was not authored in whole or in part by
counsel for any party and that no person or entity other than amicus
curiae, their members, or their counsel has made a monetary
contribution intended to fund the preparation or submission of this
brief.
2
3 million post-9/11 veterans, IAVA has a unique interest
in the scope of that bill’s education benefits—the central
issue in this case. As IAVA predicted before its
enactment, the Post-9/11 GI Bill has been key to the
armed forces’ ability to recruit and maintain today’s allvolunteer force. Preserving this recruitment asset
requires honoring the scope of benefits Congress
resolved to award the men and women who volunteer to
serve our Nation.
SUMMARY OF ARGUMENT
Volunteers are the lifeblood of the Nation’s
armed forces. Without a steady stream of eligible and
high-quality recruits, the United States military cannot
maintain readiness in service of the national defense.
Preserving that stream of recruits depends in large
measure on the education-benefit incentives provided by
the Post-9/11 GI Bill, which represents the greatest
education investment in veterans since World War II.
Education benefits are powerful motivation for
those considering service. Congress recognized as much
in passing the Post-9/11 Bill, which sought not only to
reward wartime service following the advent of the War
on Terror, but also to provide incentives for enlistment.
That bill’s benefits are the greatest ever offered to
servicemembers, far surpassing predecessor legislation
like the Montgomery GI Bill, which was designed for
peacetime service.
The importance of strong recruitment—and the
generous education benefits that support it—has only
grown in recent years. The Nation’s armed forces face
3
the most challenging recruitment landscape in decades.
At the same time, education benefits have become more
desirable. Today, more Americans seek higher
education, yet education costs have skyrocketed. The
opportunity to seek such education courtesy of GI Bill
benefits, and especially the generous Post-9/11 Bill, thus
has become an increasingly powerful motivator to
volunteer to serve. It is critical that the generous Post9/11 program that Congress established be preserved
and not contracted.
Importantly, when Congress passed the Post9/11 Bill in 2008, the Post-9/11 Bill was made retroactive
to service after September 11, 2001. This created a class
of servicemembers whose service had previously
entitled them only to benefits under the Montgomery GI
Bill and who, overnight, qualified for Post-9/11 benefits,
too. Recognizing that the newer program’s benefits
were far more generous, Congress crafted an upgrade
mechanism that permitted servicemembers to exchange
their unused Montgomery benefits to Post-9/11 benefits.
The en banc Federal Circuit decision below
transforms that simple upgrade mechanism—plainly
designed to permit servicemembers with a single
qualifying period of service to shift the benefits received
therefor from one program to the other—into a penalty
scheme for servicemembers who serve for multiple
periods. This punitive reading of the Post-9/11 Bill runs
counter to Congress’s intent. It penalizes, rather than
rewards, those who volunteer to serve, and it materially
erodes the “enhanced” benefits Congress provided in
this bill specifically to encourage recruitment.
4
The en banc decision of the Federal Circuit harms
veterans, weakens benefits, and damages the military’s
key recruitment tool. That decision should be reversed.
ARGUMENT
In 1968, Richard M. Nixon ran for president on
the promise to abolish the Selective Service. The draft
had become emblematic of inequity—believed to
liberally permit deferments only for young men of
higher socioeconomic standing—and the deep
unpopularity of the Vietnam War worsened public
sentiment. 2
After he was inaugurated, President Nixon
established a commission to study possible transitions to
an all-volunteer force. 3 That commission recommended
an all-volunteer force, “supported by an effective standby draft.” 4 The commission concluded that an allvolunteer force “will strengthen our freedoms, remove
an inequity now imposed on the expression of the
patriotism that has never been lacking among our youth,
promote the efficiency of the armed forces, and enhance
their dignity.” 5 To achieve such a force, the commission
recommended improving pay and conditions of service
2
The Military Draft During the Vietnam War, Mich. in the World,
https://bit.ly/3OObxkD (last visited Aug. 9, 2023).
3
Bernard Rostker, I Want You!: The Evolution of the AllVolunteer Force, 76-78 (2006), https://bit.ly/3qq30vS.
4
Thomas Gates et al., Report of The President’s Commission on an
All-Volunteer Armed Force, 5-6 (Feb. 1970), https://bit.ly/45quL6t.
5
Id.
5
sufficiently to encourage the necessary volunteers from
6
among eligible and qualified candidates.
Following these recommendations, President
Nixon successfully persuaded Congress to phase out the
draft, and induction authority ended on July 1, 1973. 7
Since then, more than 11 million men and women have
voluntarily joined active-duty service, 8 with more than
9
1.3 million serving today.
I.
EDUCATION BENEFITS ARE CRUCIAL
TO TODAY’S ALL-VOLUNTEER ARMED
FORCES
Without sufficient, high-quality volunteers, this
country’s armed forces cannot mount a national defense.
Yet maintaining an all-volunteer force has been a nearconstant challenge for the Nation. Today, the U.S.
military “is facing its most challenging recruitment
environment in 50 years.” 10 In this historically adverse
environment, the incentive provided by the Post-9/11
6
7
Id. at 7.
Rostker, supra note 3, at 96. Before that sunset date, Secretary of
Defense Melvin Laird announced that “the Armed Forces
henceforth will depend exclusively on volunteer soldiers, sailors,
airmen and Marines.” Amy Zipkin, The Military Draft Ended 50
Years Ago, Dividing a Generation, Wash. Post (Jan. 27, 2023),
https://wapo.st/3rZKGdj.
8
C. Todd Lopez, All-Volunteer Force Proves Successful for U.S.
Military, DOD News (Mar. 2, 2023), https://bit.ly/47o42Jh.
9
U.S. Gov’t Accountability Off., GAO-23-106551, DOD Active-Duty
Recruitment
and
Retention
Challenges
(2023),
https://bit.ly/3KuInW0.
10
Id.
6
program is critical. Three quarters of veterans invoke
education benefits as an important reason to their
11
decision to enlist. If the Federal Circuit’s anti-veteran
view is affirmed, the Nation’s largest veterans’ benefits
program will be undermined, and its ability to attract
qualified personnel will be materially harmed.
A.
The Armed Forces Face
Challenges With Recruitment
Historic
To preserve military capabilities and readiness,
the armed forces depend upon a consistent inflow of
high-quality volunteers. Yet the population of interested
and eligible candidates is shrinking.
According to a Pentagon survey from 2022, only
9% of people ages 16 to 21 would consider military
service; this is down from 13% before the pandemic. 12
And less than a quarter of young American adults are
both physically fit and lack a disqualifying criminal
13
record. Those statistics help explain the now decadeslong recruitment challenges faced by the Nation’s
military. At times, the armed forces have had to take
extreme measures.
11
Pew Rsch. Ctr., The Military-Civilian Gap: War and Sacrifice In
The Post-9/11 Era (Oct. 2011), https://pewrsr.ch/3qvd6vn.
12
Ben Kesling, The Military Recruiting Crisis: Even Veterans
Don’t Want Their Families to Join, Wall St. J. (June 30, 2023),
https://on.wsj.com/47qWt4W.
13
Dave Philipps, With Few Able and Fewer Willing, U.S. Military
Can’t Find Recruits, N.Y. Times (July 14, 2022),
https://nyti.ms/3DPb50d.
7
At the height of the Iraq War, for example,
recruitment and retention rates were so poor the Army
imposed a “stop loss” order, requiring personnel to
extend their overseas deployments beyond the
14
expiration of their voluntary commitments. And in
recent months, the Army, rather than lower its
recruitment standards, cut its active-duty end strength
by about 10,000 servicemembers. 15
These challenges are not limited to one branch of
the armed forces. In April 2023, the Vice Chiefs of the
Army, Navy, and Air Force reported that each of their
branches expected to fall short of their yearly
16
recruitment targets. The Army and Air Force expect
to each fall short by 10,000 enlistees, and the Navy
expects to fall short by about 6,000. In the same period,
Reserve and National Guard units generally fell even
further behind: the Navy Reserve met only 67% of its
recruitment target, the Air Guard 57%, the Air Reserve
62%, and the Army Reserve 58%. Only the Army Guard
came close to target, with 90%. 17
14
Tom Squitieri, Army Expanding ‘Stop Loss’ Order to Keep
Soldiers from Leaving, USA Today (updated Jan. 6, 2004),
https://bit.ly/3Kyomy5.
15
Lolita C. Baldor, Army Cuts Force Size Amid Unprecedented
Battle for Recruits, Associated Press (July 19, 2022),
https://bit.ly/3DNMHMw.
16
Jim Garamone, Vice Chiefs Talk Recruiting Shortfalls, Readiness
Issues, DOD News (Apr. 20, 2023), https://bit.ly/47l3Har.
17
Joe Davidson, Military Recruitment Lapses Lead to ‘Challenges
to National Security’, Wash. Post (Apr. 21, 2023),
https://wapo.st/3qrsTLG.
B.
8
Maintaining Robust Education Benefits
Is Critical To The Military’s Ability To
Recruit
Education benefits offered by the GI Bills have
long been a core motivator for those volunteering for
service. In a 2011 study, 75% of veterans identified
education benefits as an “important reason” to
volunteer. 18 And education benefits enhance recruitment
among highly qualified, education-oriented youth, which
are “the target [recruitment] population for the
19
military.”
The availability of education benefits also
provides volunteers comfort that they will be able to
transition successfully back to civilian life when the time
comes. In a national survey, 92% of servicemembers
agreed or strongly agreed that higher education is
central to navigating the transition from military to
civilian life. 20 In each year between 2012 and 2022, the
Post-9/11 program benefitted over 600,000 individuals,
with some yearly totals reaching nearly 800,000. 21 By the
18
19
Pew Rsch. Ctr., supra note 11.
Barbara A. Bicksler & Lisa G. Nolan, Recruiting an AllVolunteer Force: The Need for Sustained Investment in Recruiting
Resources-An Update, Strategic Analysis, 30-31 (Dec. 2009),
https://bit.ly/3QqfP3X.
20
Corri Zoli et al., Missing Perspectives: Servicemembers’
Transition from Service to Civilian Life - Data-Driven Research to
Enact the Promise of the Post-9/11 GI Bill, Syracuse Univ.: Inst. for
Veterans & Mil. Fams. (Nov. 2015), https://bit.ly/3OQ1jkH.
21
Cassandria Dortch, Cong. Rsch. Serv., R42755, The Post-9/11 GI
Bill: A Primer, 26 (updated Sept. 23, 2021), https://bit.ly/3Ys5gzl
(2021 and 2022 figures are estimates).
9
end of 2019, more than 2 million distinct beneficiaries
had used that program’s education benefits. 22
The primacy of education benefits to the decision
to enlist is not surprising. Since the passage of the
Montgomery GI Bill in 1984, the number of recent high
school graduates seeking four-year college degrees has
leapt from 35.8% in 1984 to 43.3% in 2021. 23 With evergreater numbers of Americans seeking higher
education, the price tag for that education has
skyrocketed. Students enrolling in a four-year program
at a public institution in the 1984–1985 academic year
paid, on average, $3,274 for tuition and fees and a total
24
of $9,087 for tuition, fees, room, and board. By the 2021–
2022 academic year, those figures had ballooned to
$9,596 and $19,920, respectively—increases of about
193% and 119%. 25 Students enrolling in private programs
have experienced similar dramatic shifts in costs.
Enrollment at a four-year program at a private, nonprofit institution in the 1999–2000 academic year—the
22
STUDENT VETERANS: A Valuable Asset to Higher Education,
Syracuse Univ.: Inst. for Veterans & Mil. Fams., 9 (Nov. 2019),
https://bit.ly/3KK70y6.
23
Table 302.10. Recent High School Completers and Their
Enrollment in College, by Sex and Level of Institution: 1960
through 2021, Nat’l Ctr. for Educ. Stat. (Aug. 2022),
https://bit.ly/3QvSTR0.
24
All amounts in this paragraph are stated in 2021-2022 dollars.
Table 330.10. [CORRECTED] Average Undergraduate Tuition,
Fees, Room, and Board Rates Charged for Full-Time Students in
Degree-granting Postsecondary Institutions, by Level and Control
of Institution: Selected Academic Years, 1963-64 Through 2021–22,
Nat’l Ctr. for Educ. Stat. (Dec. 2022), https://bit.ly/3YofYH6.
25
Id.
10
earliest year for which data is available from the
National Center for Education Statistics—cost $25,208
for tuition and fees and $34,966 including room and
board. Just two decades later, students in these
programs paid $37,222 for tuition and fees and $51,047
including room and board—both increases of over 45%.
The costs of graduate school programs have experienced
26
similar increases.
As more Americans seek an increasingly
expensive post-secondary education, the benefits
offered by the GI Bills—and particularly the “enhanced
… benefits” available under the Post-9/11 Bill 27—have
become increasingly meaningful to those considering
volunteering for service. Eroding those benefits, which
Congress enacted particularly to reward service to this
Nation and to encourage volunteers, runs counter to
congressional intent and will no doubt harm the critical
recruitment efforts on which the U.S. military depends.
26
Table 330.50. Average and Percentiles of Graduate Tuition and
Required Fees in Degree-Granting Postsecondary Institutions, by
Control of Institution: 1989–90 Through 2020–21, Nat’l Ctr. for
Educ. Stat. (Feb. 2022), https://bit.ly/3s8Sp8X (In 2020–2021
dollars: at a public institution, median of $5,653 for tuition and fees
in the 1999–2000 school year and $11,666 in 2020–2021; at a private,
non-profit institution, average of $21,953 for tuition and fees in the
1999–2000 school year and $28,445 in 2020–2021.)
27
38 U.S.C. § 3301 note.
II.
11
CONGRESS INTENDED THE POST-9/11 GI
BILL TO EXPAND, NOT CONTRACT,
EDUCATION BENEFITS
“The solicitude of Congress for veterans is of long
standing.” United States v. Oregon, 366 U.S. 643, 647
(1961). Recognizing the wartime service that followed
9/11, Congress enacted the Post-9/11 GI Bill in 2008,
effective retroactively. As with other laws that support
the Nation’s veterans, the benefits of the Post-9/11 GI
Bill should 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). Petitioner’s reading of the Post-9/11 GI
Bill aligns with this Court’s instruction and with
Congress’s goals.
A.
The Montgomery GI
Limited
Education
Servicemembers
Bill Provided
Benefits
To
The Montgomery GI Bill program began as a test
program in 1984 and was made permanent in June 1987.
As a peacetime bill, its core purposes included providing
educational assistance to aid in the readjustment of
servicemembers to civilian life and providing an
incentive for recruitment of qualified personnel for the
armed forces. 28
That program provides education benefits to
servicemembers that can be applied to traditional
colleges, as well as to technical and vocational training,
28
38 U.S.C. § 3001(1), (4).
12
flight training, and apprenticeship or on-the-job
29
training. To qualify for those benefits, servicemembers
must meet one of four different categories of criteria.
Those criteria generally require the servicemember to
have actively and continuously served for two to three
years and have a high school diploma, GED, or 12 hours
of college credit. 30 With rare exception, active-duty
personnel also must contribute $1,200 from their
paychecks to the Montgomery program to qualify for
any benefits. Reservists can receive reduced benefits
without making that contribution. 31
The amount each beneficiary can receive depends
on their length of service, the type of education or
training program they select, and under which of the
four eligibility categories they qualify. 32
From October 1, 2022, to September 30, 2023,
qualifying servicemembers could receive up to $2,210
per month for up to 36 months for full-time study at
colleges, universities, or trade or vocational schools. 33 In
total, Montgomery program beneficiaries can receive
about $79,500.
29
30
Bicksler & Nolan, supra note 19, at 30 n.35.
Montgomery GI Bill Active Duty (MGIB-AD), U.S. Dep’t of
Veterans Affairs, https://bit.ly/3rXeRBT (last updated July 18,
2023).
31
History of the GI Bill, MyNavy HR, https://bit.ly/44QC2wp (last
visited Aug. 7, 2023).
32
33
Montgomery GI Bill Active Duty, supra note 30.
Montgomery GI Bill Active Duty (Chapter 30) Rates, U.S. Dep’t
of Veterans Affairs, https://bit.ly/3OvCbOS (last updated May 3,
2023).
13
The Montgomery program also covers training
outside of colleges and universities, but at lower rates.
Servicemembers can receive $1,657.50 per month for onthe-job training and apprenticeships (with graduated,
lower payments after the first six months); 55% of the
cost of lessons completed by mail, online, or by other
“correspondence”; and 60% of the approved charges for
34
flight training. Servicemembers who served for less
than three continuous years and/or enroll less than full
time will receive lower monthly payments to cover study
at colleges, universities, or trade or vocational schools. 35
Eligible servicemembers also can participate in a
“Buy-Up” program that allows them to contribute up to
an additional $600 (over and above the $1,200 generally
required to receive any benefits) and receive
commensurately higher pay-outs for their education
expenses. 36
Benefits available under the Montgomery GI Bill
generally expire 10 years after the servicemember
separates from the military. Extensions are available in
limited circumstances, such as if the servicemember
reenlists for a later period of active duty of 90
consecutive days or more, experiences an illness or
disability that prevented them from attending school, or
34
35
36
Id.
Id.
$600 Montgomery GI Bill Buy-Up Program Rates, U.S. Dep’t of
Veterans Affairs, https://bit.ly/3Oyk9vr (last updated Dec. 1, 2022).
14
was held by a foreign power after their release from
37
active duty.
B.
The Post-9/11 GI Bill Dramatically
Enhanced The Education Benefits
Available To Servicemembers
Congress passed the Post-9/11 GI Bill as a
reaction to the “especially arduous” service required of
enlistees after September 11, 2001, and in recognition of
the need for an educational assistance program that
provided “enhanced educational assistance benefits . . .
worthy of such service.” 38 These enhanced benefits were
also designed to facilitate military recruitment and
39
retention. Indeed, during debate over the Bill, many
members of Congress expressed hope that the enhanced
benefits available under the Post-9/11 Bill would
“ameliorate the [Nation’s] military recruiting
challenges” and improve the unemployment rate among
younger veterans. 40
37
Getting a GI Bill Extension, U.S. Dep’t of Veterans Affairs,
https://bit.ly/3YpDC5W (last updated Feb. 14, 2023).
38
Post–9/11 Veterans Educational Assistance Act of 2008, Pub. L.
No. 110-252, § 5002(6), 122 Stat. 2323, 2358.
39
Sec. 5002 of title V of the Supplemental Appropriations Act, 2008,
Pub. L. No. 110-252, 122 Stat. 2323, 2358 (GI Bill education benefits
have a “positive effect on recruitment”).
40
Dortch, supra note 21, at 1 (citing Pending Montgomery GI Bill
Legislation: Hearing Before Subcomm. on Econ. Opportunity of the
H. Comm. on Veterans’ Affairs, 110th Cong. 3, 6, 9, 10, 14 (2008);
Hearing on Pending Benefits Legislation: Hearing Before S.
Comm. on Veterans’ Affairs, 110th Cong. 15, 21, 34, 49 (2008)).
15
The Post-9/11 Veterans Educational Assistance
Act of 2008 became effective on August 1, 2009,
retroactive to service occurring on or after September
11, 2001, and “approximately double[d] the size of the
41
[education] benefit” available to servicemembers. It
represents the “most comprehensive educational benefit
package ever offered by the federal government.” 42
Beneficiaries are eligible for up to 36 months of
postsecondary education, including full tuition and fees
at public colleges and universities, or up to $27,120.05 for
tuition and fees for the 2022–2023 academic year at
private schools. The Post-9/11 Bill also covers related
expenses, like books and supplies, as well as a housing
allowance for students attending classes more than halftime. 43 Congress later expanded the law to permit
application of these benefits to nondegree and
44
apprenticeship programs.
The Post-9/11 Bill thus enhanced the benefits
available under the Montgomery Bill in four key
respects.
First, the Post-9/11 Bill eliminated the monetarycontribution requirement. So, while participants under
41
42
Bicksler & Nolan, supra note 19, at 31.
Cong. Budget Off., CBO55179, The Post-9/11 GI Bill:
Beneficiaries,
Choices,
and
Cost,
15
(May
2019),
https://bit.ly/3Qq53e0; accord id. at 1 (the Post-9/11 Bill provides
“more extensive benefits than have ever been offered” to
servicemembers).
43
44
Id. at 4.
Id.
16
the Montgomery Bill must contribute $1,200 to be
eligible for benefits, Post-9/11 Bill participants do not
have to contribute anything.
Second, the Post-9/11 Bill extended the eligibility
period for drawing down benefits. Initially, beneficiaries
could draw upon Post-9/11 Bill benefits up to 15 years
after leaving the service (compared to the 10-year
expiration on benefits under the Montgomery Bill). With
the passage of the “Forever GI Bill” in August 2017,
however, Post-9/11 benefits now no longer expire for
servicemembers who leave the military after January 1,
45
2013. Those who left the military before that date still
can use their benefits within 15 years.
Third, the Post-9/11 Bill allows certain
servicemembers—those who have served at least six
years and commit to serving an additional four of active
duty or in the Selected Reserve—to transfer their
benefits in whole or in part to immediate family
members. 46 Qualifying dependents can receive benefits
via transfer for up to 36 months, covering tuition,
housing, books and supplies, fees for national
standardized tests, and fees for licensing and
certifications. 47
This
transferability
allows
45
Post-9/11 GI Bill (Chapter 33), U.S. Dep’t of Veterans Affairs,
https://bit.ly/3s2hthY (last updated July 18, 2023); Harry W.
Colmery Veterans Educational Assistance Act of 2017, Pub. L. No.
115–48, 131 Stat 973.
46
Post-9/11 GI Bill: Transferability, U.S. Dep’t of Veterans Affairs
(updated Mar. 2023), https://bit.ly/3KuJO6Q.
47
Transfer Your Post-9/11 GI Bill Benefits, U.S. Dep’t of Veterans
Affairs, https://bit.ly/3OLGKF5 (last updated Aug. 8, 2023).
17
servicemembers to use the benefit while on active duty.
Montgomery Bill benefits, in contrast, cannot be
transferred and are thus typically used by veterans only
after they leave the armed forces.
Fourth, the Bill generally eliminates the cap on
tuition and fees for programs at public institutions. 48 For
programs at private institutions, the benefit can cover
up to $27,120.05 in tuition and fees in the 2023–2024
49
academic year.
The wartime benefits Congress set forth in the
Post-9/11 Bill are much more generous than the
peacetime benefits in the Montgomery Bill.
C.
Congress Did Not Intend The Post-9/11
Bill To Penalize Servicemembers Who
Volunteer For Multiple Periods of
Service
When it comes to providing benefits to
servicemembers, Congress has sought to “place a thumb
on the scale in the veteran’s favor.” Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 440 (2011) (internal
quotation marks and citation omitted). The Post-9/11 Bill
should be no exception.
When a servicemember’s period of service meets
the criteria for benefits under a GI Bill program, they
must make a “period of service” election to access those
48
49
Cong. Budget Off., CBO55179, supra note 42, at 1.
Increase in Maximum Tuition and Fee Amounts Payable Under
the Post-9/11 GI Bill, 88 Fed. Reg. 24,665 (Apr. 21, 2023).
18
benefits. In so doing, the servicemember indicates that
they want to credit their period of service against that
specific GI Bill program.
50
Sometimes, a single period of service will meet
the criteria for benefits under multiple GI Bill programs.
Such is the case for the likely thousands of
servicemembers that served a qualifying three years
between September 11, 2001, and June 30, 2008. Their
service initially qualified them for benefits under the
Montgomery GI Bill; 51 then, when the Post-9/11 Bill was
enacted in 2008 and made retroactive to service after
September 11, 2001, their service also qualified them for
52
benefits under the later bill. Such servicemembers
must make an election for their period of service under
one bill or the other. They cannot “duplicat[e]”—that is,
double dip—their benefit entitlement for their single
period of service. 53
To address this situation, and recognizing that
the Post-9/11 benefits are decidedly more generous (in
amount, in time-to-use, and in transferability), Congress
crafted an upgrade mechanism. Sections 3322(d) and
3327 provide that servicemembers whose period of
service qualified for benefits under both bills can make
an “in lieu of election” to upgrade their Montgomery Bill
50
Secretary’s M22-4 Manual at Pt. 3, § 3.10, available at
https://perma.cc/XUY8-JZSN?type=image; accord 38 C.F.R.
§ 21.9520(c)(2)(ii).
51
52
53
38 U.S.C. § 3011.
38 U.S.C. § 3311(b).
See 38 U.S.C. § 3322(h) (imposing “[b]ar to duplication of eligibility
based on a single event or period of service”).
19
benefits to Post-9/11 Bill benefits. 54 This provision,
however, is not an exception to the rule against
“duplication,” so servicemembers that make an “in lieu
of” election upgrade their remaining benefit months
under the Montgomery Bill, but they do not receive
additional benefit months. 55
The situation is different for servicemembers
who have multiple periods of service that independently
qualify for benefits under separate (or multiple)
programs. For example, an individual who served in the
Army from 2000 through 2002 would qualify for full
benefits under the Montgomery Bill. 56 If that individual
then re-enlisted for a second period from 2007 to 2011,
that second period of service would entitle him to full
benefits under the Post-9/11 Bill. 57 This servicemember
54
Accord 38 C.F.R. § 21.9520 (“An individual may establish
eligibility for educational assistance under [the Post-9/11 Bill] based
on active duty service after September 10, 2001, if he or she …
meet[s] minimum service requirements [of that Bill and] …[makes
an] election to receive benefits under [that Bill] in lieu of benefits”
under the Montgomery GI Bill); accord Secretary’s M22-4 Manual,
supra note 50, at Pt. 3, § 3.10 (describing “[i]n lieu of” elections);
Dortch, supra note 21, at 6, 24 (Post-9/11 GI Bill-eligible individuals
“with a single qualifying active duty service period” can choose to
make an irrevocable election to convert their Montgomery Bill
benefits into the more generous Post-9/11 Bill benefits).
55
38 U.S.C. § 3327(d)(2)(A) (“[T]he number of months entitlement
of the individual to educational assistance under [the Post-9/11
program] shall be the number of months equal to” “the number of
months of unused entitlement of the individual under [Montgomery
program].”).
56
57
38 U.S.C. § 3011(a)(1)(i)(II).
38 U.S.C. § 3311(b)(1). These are materially the facts of
Petitioner’s service. Petitioner also served an additional period in
20
could receive benefits under both programs subject only
58
to a longstanding 48-month, aggregate cap.
Thus, the operation of the Post-9/11 Bill aligns
with Congress’s express intent to recognize and reward
service with “enhanced . . . benefits.” 59 A servicemember
serving a single period that qualified originally for
Montgomery benefits and then retroactively for Post9/11 benefits can upgrade the former for the latter. And
a servicemember serving multiple periods that
independently entitle him to benefits under both bills
(up to the 48-month cap) can take advantage of both.
The contrary view adopted by the decision below
is that no servicemember may access his Post-9/11
benefits without first sacrificing certain benefits in one
of two ways. First, the veteran could forfeit both his
remaining Montgomery benefits and any months of
Post-9/11 benefits exceeding his remaining entitlement
under the Montgomery program. 60 Second, the veteran
could exhaust his Montgomery benefits and then take
advantage of the more generous benefits under the
other bill. 61 This interpretation of the Post-9/11 program
between the two described here, as an activated member of the
Army National Guard deployed to Iraq from June 2004 to December
2005. Pet. App. 81a-82a.
58
59
60
61
38 U.S.C. § 3695(a).
Pub. L. No. 110-252, § 5002(6), 122 Stat. 2358.
See Pet. App. 14a-17a.
See Pet. App. 14a-17a. The Federal Circuit’s decision shoehorns
all dually-entitled veterans into the “coordination” provisions of
Sections 3322(d) and 3327, despite those provisions’ clear design to
preclude double-dipping on a single period of service. See 38 U.S.C.
21
represents a contraction, not an enhancement, of the
benefits Congress made available.
For one, this interpretation needlessly cuts the
flexibility afforded to qualifying servicemembers to
choose how and when to use the benefits they earn.
Petitioner, for example, used only 25 months and 14 days
of his 36-month allotment under the Montgomery
62
program to attend college. He should be permitted to
keep the balance of those benefits (earned via a period of
service from 2000 to 2002) and use them later if he
chooses. 63 When Petitioner was admitted to Yale
Divinity School in 2015 with plans to become a chaplain
in the Army, he sought to draw upon not his leftover
Montgomery benefits but his Post-9/11 benefits (earned
via a separate period of service, from 2007 to 2011). 64 In
the Federal Circuit’s view, there is no way for Petitioner
to attend Yale when he wanted and receive the more
generous Post-9/11 benefits to which he was entitled
unless he forfeited the Montgomery program benefits
that he had earned and that were his to use at a later
time, for a later program.
Moreover, the Federal Circuit’s decision robs
servicemembers not just of the flexibility regarding how
and when to use their Post-9/11 benefits, but of the
§ 3322(h) (imposing “[b]ar to duplication of eligibility based on a
single event or period of service”). As Petitioner shows, this
crabbed interpretation is contradicted by the text of the statute.
62
63
Pet. App. 82a-83a.
Subject only to that program’s 10-year deadline. Getting a GI Bill
Extension, supra note 37.
64
Pet. App. 82a–83a.
22
benefits themselves. In the Federal Circuit’s view, any
servicemember that has used some of their Montgomery
benefits cannot possibly take advantage of their full 36
months of Post-9/11 benefits. Instead, they must: (a)
make an “in lieu of election,” thus capping their Post-9/11
benefits at the number of months—necessarily fewer
than the maximum 36—remaining to them under the
Montgomery program; or (b) exhaust their Montgomery
benefits first, in which case they will be limited to 12
months of Post-9/11 benefits (by effect of the 48-month
aggregate cap).
The problems do not end there. The decision
below also materially constrains a servicemember’s
ability to transfer his Post-9/11 benefits to dependents
while still in active service. Congress specifically added
this transferability to encourage servicemembers to
65
remain in the service; else—and as with benefits under
the Montgomery Bill—servicemembers generally would
have to leave the military and enroll in school to take
advantage of benefits. The Federal Circuit’s decision,
however, pushes servicemembers out of the military. A
servicemember hoping to transfer his Post-9/11 benefits
to his dependent must either continue to serve, but
forfeit his Montgomery program benefits or else leave
the military, attend school and exhaust his Montgomery
program benefits and only then—perhaps years later—
transfer his Post-9/11 benefits.
65
Dortch, supra note 21, at 2 (during pre-enactment debate over the
Post-9/11 Bill, the Department of Defense “considered the ability to
transfer benefits to dependents critical to retention”).
23
The Federal Circuit’s interpretation of the Post9/11 Bill thus penalizes servicemembers who invoke the
marquee transfer mechanism by cutting down their
ability—and, likely in many cases, their entitlement—to
use the benefits they have rightly earned. Forcing
servicemembers to give up benefits they have earned
unless those benefits are accessed in a specific, and often
inefficient, sequence (that might not align with the
servicemember’s educational goals) renders Post-9/11
benefits needlessly inflexible; it harms retention and
undermines the armed force’s mission-critical ability to
recruit. Congress could not have intended to so
disadvantage those with multiple periods of service.
Construing the Post-9/11 Bill to provide a
disadvantage for those with multiple periods of service
runs counter to Congress’s purpose to reward service
66
with “enhanced . . . benefits.” Absent some reason to
conclude that Congress intended to disadvantage
veterans with multiple periods of service—and there
would be no reason for Congress to wish to do so—those
with multiple periods of service should not be denied the
full wartime benefits Congress created specifically for
those who served after 9/11. The decision below
disregards this Court’s instruction to “liberally
construe[]” benefits to servicemembers. Boone, 319 U.S.
at 575.
*
66
*
*
Pub. L. No. 110-252, § 5002(6), 122 Stat. 2358 (emphasis added).
24
Few actions convey more about our Nation and
its values than the way we treat the men and women
who voluntarily risk their lives to protect this country.
Those who choose to serve and then serve again should
be rewarded, not punished, for multiple periods of
service—as Congress intended.
CONCLUSION
The en banc decision of the Federal Circuit should
be reversed.
August 17, 2023
Respectfully submitted,
TODD C. TORAL
JENNER & BLOCK LLP
633 West 5th Street
Suite 3600
Los Angeles, CA 90071
ADAM G. UNIKOWSKY
Counsel of Record
MICHELLE S. KALLEN
JENNER & BLOCK LLP
1099 New York Ave., NW
Suite 900
Washington, DC 20001
(202) 639-6000
aunikowsky@jenner.com
DANIEL W. BOBIER
JENNER & BLOCK LLP
353 N. Clark Street
Chicago, Illinois 60654
Counsel for Amicus Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.