By Leo Shane III • Feb 8, 02:10 PM
Another federal panel will review arguments later this year on whether veterans should be allowed to use both the Post-9/11 GI Bill and Montgomery GI Bill to get a college degree, the latest legal twist in a years-long fight over the education benefits.
But a final decision on the issues likely still rests several semesters away.
Last week, members of the U.S. Court of Appeals for the Federal Circuit ordered attorneys to provide new briefs for a full panel hearing on the issue, following an appeal request from the Department of Veterans Affairs.
The move comes roughly six months after a three-judge panel of the court ruled against VA lawyers’ assertion that veterans can use either one of the two GI Bill programs, but not both.
The case, Rudsill vs. McDonough, has been pending in federal courts for more than six years.
Attorneys for Jim Rudisill, an Army veteran wounded in a roadside bomb attack in Iraq in 2005, have argued that department officials miread the law when they put in place a policy forcing veterans to choose between the programs, rather than allowing them to collect money from both.
Several lower courts have agreed with that position, instructing VA officials to give Rudisill another year of GI Bill benefits.
Outside advocates have speculated that the ruling could apply to as many as 2 million veterans who have used up their post-9/11 GI Bill benefits but also paid into the Montgomery GI Bill program while they were in the ranks.
The new court hearing will focus not just on Rudisill’s case but a broader question posed by the court: “For a veteran who qualifies for the Montgomery GI Bill and the Post-9/11 GI Bill under a separate period of qualifying service, what is the veteran’s statutory entitlement to education benefits?”
Under the Post-9/11 GI Bill education benefits program, eligible veterans receive 36 months of tuition payouts, housing stipends and other financial assistance.
The Montgomery GI Bill benefits program offers far less money, but still has several thousands of dollars annually to offer veterans for tuition costs if they paid into the program at the start of their military service. It is expected to be completely phased out in the next decade.
Given the choice between the two programs, most veterans would opt for the more financially generous Post-9/11 GI Bill program. But outside advocates say the court decisions in this case could open the door for another year of lesser education stipend payouts for veterans who can’t complete their degrees in 36 months.
Attorneys said the broader scope of the latest court move could indicate that the judges on the panel are looking at that potential impact on veterans across the country.
“I take this to be the court saying that is extremely important, and that the whole court needs to decide it because it’s just that far reaching,” said Tim McHugh, an associate at the law firm of Troutman Pepper, who has been representing Rudisill in the case for years.
“It has been a recent trend in this court to have full consideration for significant veterans cases. I think it means that this court realizes that it needs to provide some certainty and clarity to veterans and the government on these far reaching issues.”
Briefs are due back to the court by the end of May, with the possibility of a hearing sometime this summer. The court has also asked for outside groups supporting either side to submit their views, to help evaluate interest and impact of the ruling.
VA officials declined comment on the case. McHugh said he is hopeful that veterans groups who have contacted him in the past for information on the case will submit briefs in support of his client’s position.
If a hearing takes place early this summer, a decision could come later that season or sometime in the fall. By then, however, most individuals who could benefit from changes would have already missed deadlines for the fall 2022 college semester.
And either side could still appeal the federal panel’s ruling after a decision is rendered.
Still, McHugh said he and Rudisill are optimistic that the next hearing could be the one that finally leads to closure and clarity on the benefits issue for millions of veterans.
“We can’t predict what the court will do, but it’s all up for discussion now,” he said.