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

No. 22-888

In the Supreme Court of the United States

JAMES R. RUDISILL,

v.

Petitioner,

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 AMICI CURIAE

EDISON ELECTRIC INSTITUTE, CENTER FOR

ENERGY WORKFORCE DEVELOPMENT,

VETERANS IN ENERGY, THE AMERICAN

PUBLIC GAS ASSOCIATION, GAS AND OIL

ASSOCIATION OF WEST VIRGINIA, INC. AND

THE NUCLEAR ENERGY INSTITUTE

IN SUPPORT OF PETITIONER

------------------------------------------

Elbert Lin

Counsel of Record

David M. Parker

HUNTON ANDREWS KURTH LLP

951 East Byrd Street, East Tower

Richmond, Virginia 23219

Phone: (804) 788-8200

elin@HuntonAK.com

dparker@HuntonAK.com

Counsel for Amici Curiae

GibsonMoore Appellate Services, LLC

206 East Cary Street ♦ Richmond, VA 23219

804-249-7770 ♦ www.gibsonmoore.net

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................. i

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

INTRODUCTION AND INTEREST OF AMICI

CURIAE ...................................................................... 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT .............................................................. 4

I. Properly

trained

veterans

are

important to the energy industry. .................. 4

II. By depriving veterans of educational

benefits, the decision below thwarts

Congressional intent and harms the

energy industry................................................ 7

CONCLUSION ......................................................... 13

ii

TABLE OF AUTHORITIES

Page(s)

Other Authorities

154 Cong. Rec. H3891-03,

2008 WL 2067799 ....................................................... 8

154 Cong. Rec. H3905-03,

2008 WL 2067806 ....................................................... 8

154 Cong. Rec. S4714-01,

2008 WL 2151025 ....................................................... 8

Am. Petroleum Inst., Veterans and

Energy: Opportunities in the Oil and

Natural Gas Industry (2015) ..................................... 7

Burton Blatt Inst., Veterans in the

Workplace: Recruitment and Retention

(Apr. 2013) .................................................................. 7

CLR Skills Training Found., Chemical

Plant Operators - Skills and Abilities

(Feb. 13, 2019) ............................................................ 9

EEI, Issues & Policy: Workforce

Development ............................................................... 4

EEI, Saluting Service: Veterans’ Crucial

Roles in America's Electric Companies,

ELECTRIC PERSPECTIVES (Nov.-Dec.

2022) ......................................................................... 10

Forbes, What’s Needed to Close the

Skills Gap in the Power Industry

(Apr. 8, 2022) .............................................................. 9

Harvard Bus. Sch., Business &

Environment Alumni Travis Nels MBA

2013........................................................................... 11

iii

Office of Nuclear Energy, Advantages

and Challenges of Nuclear Energy

(March 29, 2021)......................................................... 5

Pew Rsch. Ctr., The American Veteran

Experience and the Post-9/11

Generation (Sept. 10, 2019)........................................ 7

Subcomm. on Educ. & Health, A CostBenefit Analysis of Government

Investment in Post-Secondary

Education Under the World War II GI

Bill (Dec. 14, 1988) ................................................... 12

Troops to Energy Jobs,

Explore Energy Careers ........................................... 5-6

Troops to Energy Jobs, Why Veterans

Ge Into Energy, Travis Nels, YOUTUBE

(May 23, 2023) .......................................................... 11

U.S. Bureau of Lab. Stat., Nuclear

Technicians (Sept. 8, 2022) ........................................ 8

U.S. Dept. of Energy, Clean Energy .......................... 5

U.S. Dept. of Energy, Economic Benefits

of Oil and Gas............................................................. 5

U.S. Dept. of Energy, Office of

Efficiency & Renewable Energy,

Career Map: Wind Technician .................................. 9

U.S. Dept. of Energy, Pathways to

Commercial Liftoff: Advanced Nuclear

(Mar. 2023) ............................................................... 10

U.S. Dept. of Energy, United States

Energy & Employment Report 2022

(June 2022) ................................................................. 4

iv

U.S. Dept. of Energy, Veterans Boost

America's Energy Workforce

(Nov. 17, 2020) ...................................................... 6, 10

U.S. Dept. Of Veterans Affairs, Post

9/11 GI Bill (Chapter 33) (Mar. 9, 2023) ................ 11

U.S. Nuclear Regul. Comm’n, Licensing

Process for Operators (June 23, 2023) ....................... 9

Univ. of Texas at Austin, Petroleum

Extension, Oilwell Drilling Primer

E-Course ..................................................................... 9

Veterans in Energy, Our History............................... 6

1

INTRODUCTION AND

INTEREST OF AMICI CURIAE1

The Edison Electric Institute (EEI) is the

national association of all U.S. investor-owned

electric companies. EEI members provide electricity

and related services for about 250 million Americans

and operate in all 50 States and the District of

Columbia.

The Center for Energy Workforce Development

(CEWD) is a non-profit consortium of energy

companies,

contractors,

associations,

unions,

educators, and business partners. CEWD’s goal is to

ensure a sufficient pipeline of skilled workers into

the energy industry. CEWD takes a particular

interest in skilled veterans—in 2010, it launched the

Troops to Energy Jobs Initiative, which provides

information, counseling, and other resources to

facilitate veterans’ transition to the energy sector.

Veterans in Energy (VIE) is a national

organization that provides transition, retention, and

professional development support to military

veterans working in energy. VIE advocates through

education and networking to improve the working

environment, career development, and quality of life

for military veterans in the energy industry.

The American Public Gas Association is the trade

association representing more than 730 communities

across the U.S. that own and operate their retail

This brief was not authored in whole or in part by counsel

for any party. A party or a party’s counsel did not contribute

money that was intended to fund preparing or submitting this

brief. No person, other than amici curiae, their members, or

their counsel, contributed money that was intended to fund

preparing or submitting this brief.

1

2

natural gas distribution entities. These include notfor-profit gas distribution systems owned by

municipalities and other local government entities,

all accountable to the citizens they serve.

The Gas and Oil Association of West Virginia,

Inc. is a non-profit corporation serving the entire oil

and natural gas industry in the State. Its members

include independent producers, fully integrated

energy companies, companies engaged in various

aspects of service and supply activities, and

consulting companies.

The Nuclear Energy Institute (NEI) is a policy

organization of the nuclear technologies industry,

based in Washington, D.C. NEI develops policy on

key legislative and regulatory issues affecting the

industry. Its members include companies that own

or operate nuclear power plants, reactor designers

and advanced technology companies, architect and

engineering firms, fuel suppliers and service

companies, consulting services and manufacturing

companies, companies involved in nuclear medicine

and nuclear industrial applications, radionuclide and

radiopharmaceutical companies, universities and

research laboratories, law firms, labor unions and

international electric utilities.

Amici submit this brief because of their interest

in providing employment to veterans with adequate

education and vocational training. As explained

further below, there are over 650,000 veterans in the

United States energy workforce, many of whom

occupy positions requiring higher education or

specialized training.

By depriving long-serving

veterans of educational benefits under the Post-9/11

GI-Bill, the decision below not only defies

3

congressional intent, but also harms Amici and the

energy industry as a whole in doing so.

SUMMARY OF ARGUMENT

Amici fully agree with Mr. Rudisill that the

decision below misconstrued the Post-9/11 GI Bill.

The relevant provisions do not require veterans to

exchange unused Montgomery benefits for Post-9/11

benefits; they merely provide the option for those

veterans who have already credited all of their

eligible service to the Montgomery GI Bill. Longserving veterans like Mr. Rudisill do not need that

option. Instead, they can obtain Post-9/11 benefits

by simply drawing on a separate period of service—

one that has not previously been credited towards

any other GI Bill. By turning the benefits-exchange

option into a requirement, the decision below

deprives those long-serving veterans of the

additional benefit that Congress rightly recognized

they had earned and deserved.

Veterans are an important part of the energy

industry, and are particularly well-represented

there. It is critical that these veterans receive the

education and specialized training required for many

energy-related careers. By depriving long-serving

veterans of hard-earned educational benefits, the

decision below not only harms millions of veterans,

but ultimately the energy industry and the United

States economy more broadly. Amici submit this

brief to highlight for the Court yet another of the

many sensible reasons Congress wrote the Post-9/11

GI Bill in a way that encourages more education, not

less, as the decision below and the government

contend.

4

ARGUMENT

I. Properly trained veterans are important to

the energy industry.

The energy industry is one of the largest and

most important sectors of the American economy.

The electricity, fuel, and other natural resources we

have all come to rely upon also support our enhanced

quality of life. And while the energy industry as a

whole is complex, one aspect is simple: the industry

could not function without a sufficient number of

workers, especially veterans.

Nearly eight million workers serve in the

country’s energy industry.2 These workers keep the

lights on in our homes and keep us warm during the

winter. And their duties are as varied as they are

important. Some climb poles to fix downed wires,

while others serve as engineers in nuclear power

plants or atmospheric scientists.

These workers also form an important part of the

United States economy. As a whole, the electric

power industry supports more than seven million

jobs in communities across the United States.3 The

Department of Energy recognizes that “[o]il and gas

production helps save American consumers an

estimated $200 billion annually,” and in 2019 helped

lower the United States trade deficit by $305

U.S. Dept. of Energy, United States Energy &

Employment

Report

2022

at

1

(June

2022),

https://www.energy.gov/media/275712 (“DOE Employment

Report”).

3

EEI, Issues & Policy: Workforce Development,

https://www.eei.org/en/issues-and-policy/workforce

(last

visited Aug. 16, 2023).

2

5

billion.4

Renewable energy, too, “generates

hundreds of billions in economic activity.”5 And

nuclear power “supports nearly half a million jobs in

the United States and contributes an estimated $60

billion to the U.S. gross domestic product each

year.”6

A large portion of energy workers are veterans of

the United States military. As of 2021, the industry

employed 650,000 veterans, comprising 9% of the

industry’s workforce.7

Per capita, the energy

industry employs veterans at a rate 50% higher than

the national average.8

Veterans are so well represented in this industry

because their service yields readily transferrable

skills. In Amici’s experience, veterans are easily

trained, and also possess the grit required to perform

difficult jobs under adverse conditions. Veterans are

also team players, and perform their work with a

heightened sense of purpose.

Other energy

employers point to veterans’ “leadership skills, team

orientation, ‘can do’ spirit, and work ethic.”9 And

4 U.S. Dept. of Energy, Economic Benefits of Oil and Gas,

https://www.energy.gov/articles/economic-impact-oil-and-gas

(last visited Aug. 16, 2023).

5

U.S.

Dept.

of

Energy,

Clean

Energy,

https://www.energy.gov/clean-energy (last visited Aug. 16,

2023).

6 Office of Nuclear Energy, Advantages and Challenges of

Nuclear

Energy

(Mar.

29,

2021),

https://www.energy.gov/ne/articles/advantages-andchallenges-nuclear-energy.

7 DOE Employment Report at 6, Table 2.

8 See id. (showing that veterans comprise 6% of the entire

American workforce).

9

Troops to Energy Jobs, Explore Energy Careers,

https://getintoenergy.org/veterans/ (last visited Aug. 16,

6

longer-serving veterans—like those affected by the

Federal Circuit’s decision below—accrue more of

these skills the longer they serve.

These are skills the energy industry needs.

Many, if not most, energy jobs require critical (and

quick) thinking, including the ability to diagnose and

resolve unexpected problems, some dangerous and

potentially life threatening. Every year, energy

workers handle power lines carrying hundreds of

thousands of volts, extract oil thousands of feet

underwater, climb wind turbines hundreds of feet

tall, and operate commercial nuclear reactors. These

projects often have many moving parts (both literally

and figuratively), and experience managing people,

duties, and deadlines is vital for success. And of

course, the energy industry relies heavily upon

workers with knowledge of science, technology,

engineering, and math (STEM).

Because veterans are such a good fit for the

energy industry, the industry affirmatively seeks

them out. One example is the Troops to Energy Jobs

Initiative, launched by CEWD in 2010.10

This

program provides information, counseling, and other

resources to facilitate veterans’ transition to the

energy sector. Another is the Veterans Energy

Pipeline, an online tool that matches particular

2023). See also U.S. Dept. of Energy, Veterans Boost America’s

Energy

Workforce

(Nov.

17,

2020),

https://tinyurl.com/jhv3brxv (veterans are “well-prepared” for

jobs in energy sector).

10

Veterans

in

Energy,

Our

History,

https://www.veteransinenergy.org/history (last visited Aug.

16, 2023).

7

military occupations with top jobs in the oil and gas

industry.11

While the energy industry has a particular

interest in hiring veterans, other employers

recognize their value too. When 100 American

businesses were asked why they retained and

advanced veterans, a majority of respondents cited

“strong leadership qualities” (73%), the “ability to

persevere in the face of obstacles” (68%), “flexibility

to work well in teams or independently” (67%), and

“the ability to learn new skills and concepts related

to the job” (65%).12

The American public agrees,

and sees veterans as more disciplined, loyal, and

hard-working than those without military service.13

II. By depriving veterans of educational

benefits, the decision below thwarts

Congressional intent and harms the energy

industry.

By misconstruing the Post-9/11 GI Bill and

depriving veterans of educational benefits, the

Federal Circuit’s decision harms Amici, and the

energy industry as a whole. And in doing so, the

decision also thwarts Congress’s intent. Congress

11

Am. Petroleum Inst., Veterans and Energy:

Opportunities in the Oil and Natural Gas Industry, at 4 (2015),

https://www.api.org/-/media/Files/Policy/Jobs/VeteransEnergy/Veterans-and-Energy-One-Pager.pdf.

12

Burton Blatt Inst., Veterans in the Workplace:

Recruitment

and

Retention,

at

24

(Apr.

2013),

https://www.va.gov/vetsinworkplace/docs/veterans_in_workpl

ace_final_report.pdf.

13 Pew Rsch. Ctr., The American Veteran Experience and the

Post-9/11

Generation,

at

4

(Sept.

10,

2019),

https://tinyurl.com/48vez3pf (“How veterans and the public

see each other and themselves”).

8

wanted the Post-9/11 GI Bill to reward long-serving

veterans, including those “who have served multiple

tours of duty and extended tours of duty.”14 And

Congress was also aware that “every dollar we spend

on education today will come back to bolster our

economy tomorrow,” because veterans would

“develop skills that will help improve our

economy.”15 The whole point of the Post-9/11 GI Bill

was to “greatly expand[]” educational benefits for

veterans.16

Achieving Congress’s goals requires

more benefits, not less.

Educational benefits are particularly important

for veterans transitioning to the energy industry,

because careers there often require higher education

and specialized training. Nuclear technicians must

have knowledge of nuclear science,17 and reactor

operators must qualify pursuant to extremely

14 154 Cong. Rec. H3905-03, H3940, 2008 WL 2067806. See

also 154 Cong. Rec. S4714-01, S4718, 2008 WL 2151025

(“[G]uardsmen and reservists who serve multiple tours of duty

do not receive one extra penny of educational benefits for their

added service because benefits are based on the single longest

deployment. Passage of this [Post-9/11 GI Bill] will make that

change.”)

15 154 Cong. Rec. H3905-03, H4040, 2008 WL 2067806.

16 154 Cong. Rec. H3891-03, H3895, 2008 WL 2067799. See

also id. (“I strongly support provisions to expand and improve

the GI Benefits for veterans education.”); id. at H3894 (“We will

have the opportunity to vote in support of greatly expanded

educational benefits for our military veterans.”); 154 Cong. Rec.

H3905-03, H3950, 2008 WL 2067806 (“[W]e’re passing a new

expanded GI Bill that will provide important educational

benefits for our veterans.”); id. at H4030 (“[T]he amended bill

includes provisions designed to expand the educational benefits

for men and women who have served in the armed forces . . . .”).

17 U.S. Bureau of Lab. Stat., Nuclear Technicians (Sept. 8,

2022),

https://www.bls.gov/ooh/life-physical-and-socialscience/nuclear-technicians.htm.

9

stringent testing administered by the Nuclear

Regulatory Commission.18 Chemical plant operators

must have knowledge of chemistry.19 Oilwell drillers

must have knowledge of petroleum geology and the

mechanics of drilling systems.20

Wind turbine

technicians must have knowledge of “all systems of

the wind turbine including structural, mechanical,

electrical, controls, communications, electronic

components, hydraulic systems, and environmental

safety and health systems.”21 And utilities are

increasingly needing workers with skills in “datadriven management, data science, analytics and

modeling, environmental impact and efficiency and

strategic planning.”22 John D. Rockefeller once said

he “would rather hire a man with enthusiasm, than

a man who knows everything,” but even he would

have to agree that education and training are vital

for achieving success in the energy industry.

Accordingly, veterans with these qualifications

are in high demand. As the Department of Energy

recently wrote, it “cannot carry out [its] mission for

18 U.S. Nuclear Regul. Comm’n, Licensing Process for

Operators

(June

23,

2023),

https://www.nrc.gov/reactors/operator-licensing/licensingprocess.html.

19 CLR Skills Training Found., Chemical Plant Operators –

Skills

and

Abilities

(Feb.

13,

2019),

https://tinyurl.com/4d7w4drf.

20 Univ. of Texas at Austin, Petroleum Extension, Oilwell

Drilling Primer E-Course, https://tinyurl.com/yp5pm8hs (last

visited Aug. 16, 2023).

21 U.S. Dept. of Energy, Office of Efficiency & Renewable

Energy,

Career

Map:

Wind

Technician,

https://www.energy.gov/eere/wind/career-map-windtechnician (last visited Aug. 16, 2023).

22 Forbes, What’s Needed to Close the Skills Gap in the

Power Industry (Apr. 8, 2022), https://tinyurl.com/3uyfw55p.

10

energy, environment, and national security” without

a “well-educated, prepared workforce” that “includes

highly-skilled veterans.”23

The need for well-educated and highly-skilled

veterans is of particular importance in the nuclear

energy industry, where veterans account for about

20 percent of the work force.24 The demand for

veterans is expected to grow further still in the

coming decades. The Department of Energy has

projected the need for at least 200 gigawatts-electric

of new advanced nuclear power capacity by 2050 to

meet the nation’s clean energy generation needs.25

It estimates that the U.S. would need approximately

375,000 additional workers by 2025 to build and

operate advanced reactors at that scale.26 The

Department pointedly recommends “outreach to

military veterans” to help meet that projected

need.27

The Post-9/11 GI Bill helps veterans obtain the

kind of education and training the energy industry

demands. It provides many eligible veterans up to

36 months of education benefits that expire either 15

23 U.S. Dept. of Energy, Veterans Boost America’s Energy

Workforce (Nov. 17, 2020), https://tinyurl.com/jhv3brxv.

24 EEI, Saluting Service: Veterans’ Crucial Roles in

America’s Electric Companies, ELECTRIC PERSPECTIVES (Nov.Dec.

2022),

https://www.eei.org//media/Project/EEI/Documents/Resources-andMedia/EP_22_ND_Veterans_SpecialPreview.pdf.

25 U.S. Dept. of Energy, Pathways to Commercial Liftoff:

Advanced

Nuclear,

at

7

(Mar.

2023),

https://liftoff.energy.gov/wpcontent/uploads/2023/05/20230320-Liftoff-AdvancedNuclear-vPUB-0329-Update.pdf.

26 Id. at 4, 31, 45.

27 Id. at 46.

11

years after active service ended or not at all.28

Benefits can be used for a variety of purposes,

including undergraduate and graduate degrees,

vocational and technical training, and on-the-job

apprenticeships.29

Major Travis Nels, for example, used the Post9/11 GI Bill to transition from the active-duty Air

Force to the energy industry. The Post-9/11 GI Bill

enabled Major Nels to enroll in a two-year program

at Harvard business school.30 And because of that

degree, he is now leading the corporate financial

planning and analysis team at AES Corporation, a

global Fortune-200 energy company.31

The benefits at issue could help millions of other

veterans, too. As Petitioner observes, over 5.2

million veterans will be eligible for Post-9/11 benefits

by September 2023, and roughly a third (1.7 million)

will be impacted by the decision below, as they have

enough service to fully qualify for benefits under

both the Montgomery and Post-9/11 GI Bills.

Rudisill Pet. for Writ of Cert. at 18-19 n.3 (Mar. 13,

2023). Accordingly, the decision below will affect

more than double the number of veterans as are

currently employed in the entire energy industry.

U.S. Dept. Of Veterans Affairs, Post 9/11 GI Bill

(Chapter 33) (Mar. 9, 2023), https://tinyurl.com/mvdw954j.

29 See id.

30 Troops to Energy Jobs, Why Veterans Ge Into Energy,

(May

23,

2023),

Travis

Nels,

YOUTUBE

https://www.youtube.com/watch?v=aveUnN9cRy0&t=36s.

31 Harvard Bus. Sch., Business & Environment Alumni

Travis

Nels

MBA

2013,

https://www.hbs.edu/environment/for-alumni/Pages/alumniprofile-details.aspx?profile=tnels (last visited Aug. 16, 2023).

28

12

Those benefits could also pay sizeable dividends

to the American economy.

One Congressional

subcommittee found that “for every dollar the

government invested in education” under the

original, post-World War II GI Bill, “the nation

received at least $5 of benefits and as much as

$12.50 of benefits.”32 This was “far above the

returns earned by most other forms of investment,

either government or private.”33

Yet veterans with sufficient education and

training are still in short supply. Energy employers

consistently rank a lack of “certifications or

education” as one of the top three reasons for

difficulties hiring.34 These difficulties persist across

many careers in the industry, from electric power

generation to energy efficiency.35

The decision below exacerbates this challenge by

denying educational benefits to long-serving

veterans, and thus reducing the number of qualified

workers trained to meet the evolving demands of the

energy industry. The consequences are far-reaching.

For the energy industry, it means less efficiency, less

production, and ultimately less growth and success.

For the average American, it means greater demand,

higher costs, and diminished financial freedom.

Reversing the erroneous decision below would not

only provide educational benefits to deserving, long32 Subcomm. on Educ. & Health, A Cost-Benefit Analysis of

Government Investment in Post-Secondary Education Under the

World War II GI Bill (Dec. 14, 1988), page 13 of pdf,

https://files.eric.ed.gov/fulltext/ED338323.pdf.

33 Id.

34 DOE Employment Report at 16-17, 72-73, 84, 137, 145.

35 Id.

13

serving veterans, it would also increase the number

of qualified veterans for hire, thus positively

influencing employment trends and overall industry

productivity. Given the importance of the energy

industry to the American economy and our nation’s

way of life, enabling more qualified veterans to join

the energy sector will lead to broader benefits for the

United States as a whole.

CONCLUSION

For these reasons, Amici respectfully request that

the Court reverse the en banc decision of the Federal

Circuit.

August 17, 2023

Respectfully submitted,

/s/ Elbert Lin

Elbert Lin

Counsel of Record

David M. Parker

HUNTON ANDREWS KURTH LLP

951 East Byrd Street, East Tower

Richmond, Virginia 23219

Phone: (804) 788-8200

elin@HuntonAK.com

Counsel for Amici Curiae