Military veterans tapping the Post-9/11 GI Bill and Montgomery GI Bill for college can legally be granted fewer college benefits than they earned, the federal Department of Veterans Affairs argued Monday in a U.S. Supreme Court case that could affect as many as 1.7 million long-serving veterans.
The VA filed its argument in a case filed by in James Rudisill, who argues that the federal government is wrongly calculating college benefits, shortchanging veterans who’ve earned and used them under different versions of the GI Bill.
The VA’s argument puts it at odds with leading veterans’ rights organizations and senators and representatives in Congress including the Republican vice chair of the House Armed Services Committee.
Rudisill, a decorated Army veteran and FBI bomb technician, contends that the government shortchanged him out of 12 months of schooling and scuttled his dream of becoming an Army chaplain.
Rudisill, 43, of Virginia, is getting help from attorney Misha Tseytlin, a Chicago partner in the law firm Troutman Pepper who is set to participate in oral arguments Nov. 8.
He also has gotten legal support for his argument from Illinois Attorney General Kwame Raoul, who, with attorneys general from 38 other red and blue states and the District of Columbia, submitted a bipartisan friend-of-the-court brief in August.
Like many vets, Rudisill earned educational benefits by paying into the Montgomery GI Bill program, which provides fixed monthly payments typically used for tuition.
He also earned benefits under the more generous Post-9/11 GI Bill, which took effect in 2009 and is given automatically; it covers the cost of tuition and fees, housing and books and is worth considerably more.
By law, veterans who earn both are allowed to tap both plans up to a maximum of 48 months.
Rudisill had three separate periods of military service over a long career that included three tours of duty in Iraq and Afghanistan. He reached the rank of captain and his honors included the Bronze Star.
He used about 25 months of his Montgomery GI Bill benefits toward his bachelor’s degree in the early and mid-2000s, and with the 48-month cap he was counting on still having almost two years of Post-9/11 benefits left.
His plan: attend Yale University’s divinity school and re-enter the Army as an Episcopalian chaplain to help his fellow soldiers.
He hit a roadblock, though, when he discovered that the VA had calculated his remaining benefits more narrowly.
The VA said that because Rudisill elected to switch over to his more valuable Post-9/11 benefits, he could only get the number of months remaining on his Montgomery plan, converted to Post-9/11 benefits. That would leave him with about 10 months of Post-9/11 benefits, not the 22 months he was expecting.
Rudisill has been fighting the case since 2015 with help from volunteer attorneys Tim McHugh, David DePippo and now Tseytlin. He won twice in court but his most recent victory was overturned on appeal. Now the Supreme Court will decide.
Rudisill’s argument is that Congress’ intention when it created the Post-9/11 GI Bill was to expand benefits for an all-volunteer military serving during wartime — not give fewer benefits to these long-serving vets. They say that Rudisill’s multiple separate periods of service more than qualified him for the maximum number of 48 months under the law.
And they add that, if there’s a veteran-related law or rule that seems ambiguous, the scales must always tip to the veteran’s favor — thanks to what’s called the “pro-veteran canon,” the principle that judges should err on the side of vets who’ve risked their lives to serve.
Rudisill is backed by the American Legion, Veterans of Foreign Wars, Iraq and Afghanistan Veterans of America and other groups, and supported by Sen. Tim Kaine (D-Virginia) and a bipartisan group of 15 House and Senate members, who filed friend-of-the-court briefs.
The VA secretary’s brief filed Monday says its rules give vets a choice: either limit their benefits like what happened when Rudisill made the choice to switch plans, or stick with the cheaper Montgomery benefits until they run out and then get only 12 months of Post-9/11 benefits.
The government’s brief says that “a statute’s meaning turns on the enacted text, not on speculation about congressional intent.”
In their friend-of-the-court brief, Kaine and others in Congress called the VA’s interpretation “erroneous” and “perverse.”
Rudisill told the Sun-Times in June that though he’s aged out of the Army chaplain program that was his original goal, he’s fighting for his fellow vets because GI Bill benefits “can dramatically change the fortunes of a family.”