Supreme Court justices seemed keenly interested Wednesday in the history of the GI Bill and whether Congress intended to extend military education benefits past 36 months when it introduced the Post-9/11 GI Bill for wartime veterans in 2008.
The court heard oral arguments in a case, Rudisill v. McDonough, that will determine whether some veterans who qualified for the Montgomery GI Bill, or MGIB, and the Post-9/11 GI Bill should receive benefits under both programs for up to four years.
In the case, the federal government has argued that a veteran eligible for the MGIB who later was eligible for the more generous Post-9/11 GI Bill when it was introduced had to make a decision and, in doing so, agreed to combine the two programs for 36 months of eligibility -- the maximum allowed under each separately.
Attorneys for James Rudisill, the plaintiff, pointed to a historic precedent under a Korean War-era law that allowed veterans to use benefits from a combination of programs for up to 48 months.
During arguments Wednesday, at least five justices asked about past history of overlap in GI Bill programs, the process for electing the benefit, and whether troops had a choice if they had used some or most of their MGIB benefits.
According to the law, service members aren't permitted to use GI Bill programs concurrently -- they must use one or the other. But in the decade after Sept. 11, 2001, millions of service members were eligible for the Montgomery GI Bill when the Post-9/11 GI Bill was introduced, an extended period of overlap, and Congress allowed those who served after 9/11 but before the law passed to opt into the Post-9/11 GI Bill.
The legislation was intended to be a boost to those serving in an intense operational tempo and also keep them in the service -- to qualify for the Post-9/11 GI Bill, troops had to commit to four additional years of service.
The Rudisill case was further complicated in that the plaintiff had split time in the service, first as an enlisted soldier and later as an Army officer. He used 25 of 36 months of his MGIB eligibility as a soldier to go to college, then returned to the Army and signed up for the Post-9/11 GI Bill, which he never used while on active duty.
When Rudisill left the Army, he applied to Yale Divinity School, intending to pay for it with Post-9/11 benefits, thinking he had 23 months remaining of additional education benefits. But the Department of Veterans Affairs said he only had 11 months eligibility under the program.
Several of the justices appeared sympathetic to Rudisill's argument, given past history and his commitment to long-term service in the U.S. military.
"I was asking you about the history of the way the prior GI Bills were, as it would be unusual for this one, given that Congress didn't have this exhaustive forfeit requirement with [the others]," Justice Amy Coney Barrett said.
"It seems to me ... that if you have two separate periods of service, you are entitled to two separate benefit packages," Justice Ketanji Brown Jackson said.
Referring to the portion of the law that prevents service members from using different GI Bill programs at the same time, Justices Brett Kavanaugh and Clarence Thomas asked Misha Tseytlin, Rudisill's attorney, pointed questions about the stipulation, noting that in his argument, Rudisill is factoring in coordination of benefits from both programs to argue that he deserves up to 48 months of school.
"If you qualify for two, it is coordinated," Thomas said.
"Because there is a bar on using both simultaneously, there has to be some coordination, is what the statue says," Kavanaugh said.
Two attorneys with the law firm Jenner & Block who weren't involved with the arguments but filed a brief to the Supreme Court supporting Rudisill said Monday that several of the justices appeared to recognize that the current interpretation of the law by the VA "shortchanges veterans."
Former Solicitor General of Virginia Michelle Kallen and Todd Toral, a veterans advocate and former Marine, noted that in cases involving veterans, Congress tends to side on providing more, not fewer, benefits, undermining the VA's case.
"Congress has made it very clear that when it comes to providing benefits to service members, statutes should be interpreted to put a thumb on the scale in favor of veterans. This is known as the ‘veterans canon.’ That means, if the statute can be read fairly in two different ways, the Court's decision should favor the veteran," Kallen and Toral said in a statement provided to Military.com.
In questioning the attorney representing the government, Vivek Suri, Chief Justice John Roberts appeared to agree, saying that some points of the government's arguments "didn't make sense."
"If you have somebody who just joined up after 9/11 for the same period as the petitioner served, the petitioner is getting fewer benefits than the person who only served one tour of duty for the same length," Roberts said. "But because this petitioner had served beyond his period of Post/-9/11, he doesn't get the full benefit ... so there must be something wrong there."
The case has the potential to affect thousands, if not millions, of veterans, depending largely on the Supreme Court's interpretation of the law.
Rudisill's legal team previously told Military.com it could affect up to 1.7 million veterans.
On Monday, Suri said the number could be fewer than 30,000 who "fall into the same multiple periods of service and have already used some benefits."
He added that not all would likely be seeking to get their degrees.
Tseytlin, an attorney with the national law firm Troutman Pepper, called the VA's interpretation of the statute and the requirement that the benefits expire at 36 months "byzantine" and having no "grounding in statutory text."
"[It] produces absurd results such as punishing veterans with less wartime benefits for simply having served the nation longer," Tseytlin said.
Suri said that one of the purposes of the GI Bill is to provide a pathway for service members to transition to civilian life, and Congress agreed on 36 months of benefits, or a full four years of an undergraduate degree, which is one of the reasons the government maintains that the 36-month cap is appropriate.
He added that the government believes Congress was clear in the law and the explanatory report that accompanied the legislation.
"[It] suggests that this provision is meant to address specifically veterans who are entitled to both programs. Congress thought about veterans who have multiple types of entitlement, and it wrote this provision, saying, 'Go look at [it] to determine how to coordinate those programs,’" Suri said.
In the last ruling on the suit by the U.S. Court of Appeals, which favored the VA, the judges agreed, writing that the statute was "unambiguous."
The justices are expected to release their opinion on the case early next year.
-- Patricia Kime can be reached at Patricia.Kime@Military.com. Follow her on Twitter @patriciakime
