Rudisill v. Mcdonough
Oral argument transcript · No. 22-888 · October Term 2023 · argued November 8, 2023 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Misha Tseytlin, Chicago, Illinois, for the petitioner
- Vivek Suri, Assistant to the Solicitor General, for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We'll hear argument this morning in Case 22-888, Rudisill versus McDonough, the Secretary of Veterans Affairs. Mr. Tseytlin. ORAL ARGUMENT OF MISHA TSEYTLIN ON BEHALF OF THE PETITIONER
Misha Tseytlin: Mr. Chief Justice, and may it please the Court: In Section 3311 of the Post-9/11 GI Bill, Congress awarded veterans who served after the September 11th attacks with an entitlement to wartime benefits befitting their wartime service. In Section 3327 of the same Act, Congress created a generous benefits coordination regime wherein veterans who had earned peacetime Montgomery veteran -- benefits with post-9/11 service could trade the unused portion of those Montgomery benefits for Post-9/11 benefits. My client has no interest in trading his Montgomery benefits for his Post-9/11 benefits, so he has no use for the three -- 3327 Official 1 election regime. Rather, Petitioner is invoking his statutory entitlement under 3311 to cash in his second period of service for Post-9/11 benefits. That second period of service is only eligible for Post-9/11 benefits. It's not eligible for Montgomery benefits. So there's nothing for my client to coordinate. Now the VA concedes that my client has, in fact, earned a statutory entitlement under 3311 to cash in his second period of service for wartime benefits. But he takes the -- but the VA takes the position that Section 3327's "may elect" clause revoked that entitlement until he uses up or exhausts the -- the Montgomery benefits he earned from his first period of service. But, with all respect, a "may elect" clause is simply now -- not how Congress revokes clear statutory entitlements and certainly not in the Byzantine manner that the VA suggests. Further, the exhaustion requirement that is a linch -- the linchpin of the VA's interpretation finds no ground in the statutory text and produces absurd results, such as punishing veterans with less wartime benefits for simply Official 1 having served the nation longer. Finally, the VA's effort to turn a regime plainly designed to help a category of veterans into a punitive regime punishing long-serving veterans has numerous contextual problems, including making 3322's concurrent -- concurrent usage bar surplusage. I welcome the Court's questions.
Justice Thomas: You make it seem as though the election mechanism doesn't play much of a role in -- in determining whether or not Petitioner is able to get the second set of benefits under -- the 9/11 benefits. I thought that the -- 33 -- what is it -- 3327 requires election, but it also has limitations. You also seem to agree in your brief that you cannot -- you're limited by the concurrent -- you could not have the 9/11 benefits and the Montgomery benefits simultaneously, right?
Misha Tseytlin: That's correct, Your Honor.
Justice Thomas: But you also -- you -- you seem not to think that the coordination provisions apply. So (a) applies, right? Official
Misha Tseytlin: Yeah. So 320 -- 332(a) applies because it says "shall elect" --
Justice Thomas: Okay.
Misha Tseytlin: -- it's mandatory.
Justice Thomas: But then you say (d) doesn't apply.
Misha Tseytlin: So the (d) says -- (d) says that coordination shall be governed. And our submission is that we are not coordinating. We're --
Justice Thomas: Well, so what are you? I mean -- -
Misha Tseytlin: We're --
Justice Thomas: -- you have a second set of benefits. I thought the whole point was to have the benefits if you -- if you qualify for two, it is coordinated.
Misha Tseytlin: No, Your Honor. We're just using. And though I think the -- my friends on the other side say we would not be coordinating if we first used our Montgomery benefits and then -- exhausted our Montgomery benefits and then thereafter used Post-9/11 benefits. I fail to understand how simply using Post-9/11 benefits is coordination. Official
Justice Thomas: I know, but you admit that you can't have them simultaneously. If you -- if you say you qualify for them and you have an -- a separate entitlement for them, then why can't you use them concurrently?
Misha Tseytlin: Because 3322(a) specifically says you can't use them concurrently. That's the --
Justice Thomas: So then why aren't you limited by 3322(d)?
Misha Tseytlin: Well, 3322(d) is not a limitation. All it is is a cross-referenced coordination provision. And my friend in the V -- at the VA admit that that provision itself doesn't act as a limitation. Further, that provision can't possibly do the work here. I mean, most of the -- most of the sections listed as needing to be coordinated under 3322(d) aren't even referenced in 3327.
Justice Thomas: Let me ask --
Misha Tseytlin: So it can't be doing --
Justice Thomas: -- one final question.
Misha Tseytlin: -- that kind of work. Official
Justice Thomas: You -- you say that you are entitled to separate benefits. What if, rather than Petitioner having separate tours in the military, he had one continuous tour for a decade or so? Would you still have the same argument?
Misha Tseytlin: Absolutely the same argument. And when I'm talking about separate periods of service, I mean a period long enough to qualify for Montgomery benefits, which -- which is two or three years, and if you have a -- a period thereafter that's after 9/11, then that gets you a 3311 entitlement.
Justice Jackson: Mr. Tseytlin, I've come up with an analogy that I am using in my own mind to think about your argument and the way that you're looking at the statute, and I hope you can tell me whether or not I'm right about this. All right. So the two benefit -- the two benefits programs, the Montgomery program and the Post-9/11 program, are like two different color baseball caps that service members can earn. The Montgomery benefits are a red hat that a service member is entitled to Official 1 receive for a qualifying period of service, and when they're ready, they can wear that hat for up to 36 months to get a certain level of education benefits. The Post-9/11 benefits are a blue hat that a qualifying service member is entitled to receive, and they can wear that hat -- hat to get a different level of benefits for up to 36 months. The law says that the member can earn more than one hat -- this is what you were just talking about with -- with Justice Thomas -- for separate periods of service, but the two hats can't be worn at the same time.
Misha Tseytlin: That's correct.
Justice Jackson: You have to do one or the other. And no matter how many hats the member has, he can only wear the hats and receive the corresponding benefits for a total of 48 months. Is that --
Misha Tseytlin: Absolutely.
Justice Jackson: -- so far so good.
Misha Tseytlin: Everything you said --
Justice Jackson: All right.
Misha Tseytlin: -- I agree with, Your Official 1 Honor.
Justice Jackson: So I think you're arguing that Rudisill is entitled to and has received both a red hat and a blue hat for the separate periods of qualifying service that he has. He had the red hat he earned under 3011 -- that's what you said at the beginning -- and the blue hat he earns under 3311 for his second or separate period of service. And so, at this point, he's worn the red hat for 25 months and 14 days and used those benefits for his undergraduate degree, and now what he'd like to do is pick up the blue hat and wear that for up to the total 48-month cap.
Misha Tseytlin: Yes.
Justice Jackson: Is that what you're saying?
Misha Tseytlin: Absolutely, Your Honor.
Justice Jackson: All right. So there's no coordination. He's not exchanging -- I mean, it seems to me that the 3322(d) and 3327 scenario is like a different situation. It's the service member who has a red hat during the period of time in which he could qualify for a blue hat and he needs an opportunity to exchange Official 1 it.
Misha Tseytlin: Absolutely. I agree with everything you said, Your Honor. And I think the fundamental problem with the VA -- what the VA has done here through this form and now they've defended through the courts is what you describe is exactly what Congress had in mind. And what the VA has attempted to do is they're trying to export this regime which is plainly designed for what you're talking about to a completely different scenario which Congress was not trying to deal with, and --
Justice Jackson: In that scenario, the -- the scenario comes up, right, because we have 9/11 happening in September of 2001, but the effective date for being able to get a blue hat doesn't happen until 2009. So you have people who are serving in that period of time who just have access to the red hat scenario. They don't -- they're not able to get the blue hat because it isn't effective yet.
Misha Tseytlin: Yeah.
Justice Jackson: And if they want to Official 1 ultimately change over their red hat to the blue hat, they have to have a mechanism to do it?
Misha Tseytlin: Absolutely right. And it -- it's even more than that, Your Honor. They didn't -- but -- when they were serving and crediting their service to Montgomery by making those payments and, like my client, using up those benefits, the Post-9/11 program didn't even exist. They had no reason to know that they should use -- that they should save this period of service for -- for something else.
Justice Jackson: And 30 -- 3327(d) and the limitations that -- that Justice Thomas referenced are just making the common-sense point that if you're a service member who has worn the red hat for some period of time and then you'd like to exchange it, you don't get, with the new blue hat, a full 36-period -- month period. You just get the residual amount of time that's left on that red hat period, correct?
Misha Tseytlin: That -- that's -- that's exactly right. But it is also coordination because it's actually the one-to-one exchange that is laid out in -- in Official 1 3327(d) seems logical, but you couldn't intuit that from the regime without the 3327(d) because the way that Montgomery benefits are earned and the way that Post-9/11 benefits are earned are quite different. Montgomery benefits are earned basically on a per-month basis, which is that every additional month you serve in that Montgomery period of service, you get an extra month of Montgomery. When -- and Post-9/11 doesn't work like that at -- at all. If you serve at least 90 days post-9/11, you always get only 36 months. And if you serve less than 36 months, then you just get --
Justice Kavanaugh: Can I --
Misha Tseytlin: -- less benefits per month.
Justice Kavanaugh: -- can I take you back to the text of the statute?
Misha Tseytlin: Yes.
Justice Kavanaugh: Because the way I saw the Federal Circuit analyzing this was that 3322 -- let's start with that -- deals with a situation when you're entitled to benefits under Official 1 both programs. Is that correct so far?
Misha Tseytlin: Yes. The -- the -- the -- the overall regime is a bar on duplication, and then 3322(a) is -- prohibits one type of duplication.
Justice Kavanaugh: And then 3322(d), I think we've got to focus really carefully on the exact text.
Misha Tseytlin: Mm-hmm.
Justice Kavanaugh: It doesn't just say coordination of -- benefits. You've been really emphasizing a difference between entitlement and benefits. It says coordination of entitlement --
Misha Tseytlin: Mm-hmm.
Justice Kavanaugh: -- to educational assistance under this chapter on the one hand and such chapters or provisions on the other, namely, Montgomery and Post-9/11, shall, coordination of entitlements shall be governed by the provisions of 3327.
Misha Tseytlin: That -- that's right --
Justice Kavanaugh: So --
Misha Tseytlin: -- Your Honor, but it doesn't say that you shall coordinate. It says, Official 1 if you -- it says, if you want to coordinate, then look at 3327.
Justice Kavanaugh: It says coordination of the entitlement.
Misha Tseytlin: Right. But, if you don't want to coordinate your entitlement, you just want to use your entitlement. And my friends would concede that if we just did --
Justice Kavanaugh: Well, I don't think you can -- because there's a -- a bar on using both simultaneously, there has to be some coordination, is what the statute says, coordination of entitlement shall be governed.
Misha Tseytlin: Well, that's certainly not my friend's position. They say that if we first used our Montgomery benefits and then -- for 36 months and then used our Post-9/11 benefits --
Justice Kavanaugh: Because, at that point --
Misha Tseytlin: -- that wouldn't be coordinated.
Justice Kavanaugh: -- once you've used up your Montgomery benefits, they're totally used up, there's nothing to coordinate Official 1 at that point?
Misha Tseytlin: But wouldn't you be coordinating at the first step because, at that point, you would have been using -- you would have been using when you have two benefits. But I --
Justice Kavanaugh: They --
Misha Tseytlin: -- I also think that --
Justice Kavanaugh: -- they say that -- so they say you're funneled then into 3327 as necessarily and that if you get into 3327 and you still have some Montgomery benefits that are unused, you are bound by 3327(d)(2)(A) then.
Misha Tseytlin: Well, what they say is that the coordination provision is just suggestive. It just points you to 3327, and then you have to decide what 3327 means. And I think that must be right because it's just a cross-reference. And it also -- it just -- 3327 -- so 3322(d) can't be doing that much work in any event. I mean, as I mentioned earlier, most of the provisions mentioned -- and if -- I urge Your Honors to take a look at 3322(d) -- most of those provisions stating -- Official
Justice Kavanaugh: Yeah. No, I -- I looked at it.
Misha Tseytlin: -- to coordinate it aren't even mentioned in 3327, so at most, it's a suggestive cross-reference. And then, when you get to 3327, if you think the cross-reference takes you there, all you have is a "may elect" clause. And the superstructure of the statute then is you have a clear, unambiguous, plain-as-day entitlement under 3311. So the question for the Court is whether a "may elect" clause, which is, at best, an oblique way to say something --
Justice Kavanaugh: Well, the point is I think you have Montgomery. You're pointed -- you have entitlement to Montgomery. You have entitlement to Post-9/11. You're pointed to 3327 by 3322(d). Stay with me so far. I know you disagree with that.
Misha Tseytlin: That's fine.
Justice Kavanaugh: But, when you get to 3327, then you can elect to go Post-9/11, or you could stick just with your Montgomery.
Misha Tseytlin: With -- Official
Justice Kavanaugh: Those are your two options.
Misha Tseytlin: -- with respect, nothing in 3327 says that second thing. What it says is you may elect. And then it doesn't say any penalty for declining to elect. So what happens when you have a plain-as-day statutory entitlement under 3311, plain-as-day, but then you don't make an election under 3327, they must be saying that the "may elect" clause is an implicit revocation of your 3311 entitlement. And I would respectfully suggest that is just not a linguistically possible and certainly not -- not a natural way to revoke an entitlement. If you look at 33 --
Justice Kavanaugh: It's not a revocation of your entitlement. After you use up your Montgomery, the thing that caps you is the -- is the 48-month limit.
Misha Tseytlin: Right. And so what -- what 33 --
Justice Kavanaugh: Correct? So you still can get your Post-9/11 after using up Official 1 Montgomery.
Misha Tseytlin: What 3311 and 3312, which is the sister provision, say is that the entitlement in 3311 is subject to the 48 entitle -- 48-month entitlement. It does not say that that entitlement is subject to making a 3327 election. And -- and I urge Your Honors to look at 3312 for that. And so, again, the structure of our argument is as follows: If you have a plain-as-day statutory entitlement under 3311 and you have a voluntary "may elect" clause, it is just not a natural or sensible reading of a "may elect" clause, which doesn't impose a penalty for declining to elect, to say that that implicitly revokes a plain-as-day entitlement.
Chief Justice Roberts: It may make --
Justice Kavanaugh: One -- one --
Chief Justice Roberts: I'm sorry? I was just going to say it may make some sense into -- in what they probably envisioned was the normal situation, where you had the overlapping benefits on the basis of continuous service. But I'm not sure it makes much sense in the situation that you have, where Official 1 they -- the benefits are earned because of separate periods of service.
Misha Tseytlin: Because it --
Chief Justice Roberts: In that situation, I -- I -- I suppose you're saying you've got two completely distinct benefits and you can choose whichever one -- you've earned both of them. You can choose which one you want to collect benefits under.
Misha Tseytlin: Absolutely, Your Honor. It makes absolutely no sense. The -- the exhaustion requirement that Justice Kavanaugh was talking about is as absurd a requirement as you could ever imagine a statutory -- in a statutory scheme dealing with veterans. Think about it. When my -- when my client came to the VA and said I want to have about 23 months of Post-9/11 benefits, they said you can't have that because you still have a bunch of Montgomery bene- -- you have basically 10 months of Montgomery benefits left over.
Justice Kavanaugh: Which is what --
Misha Tseytlin: But --
Justice Kavanaugh: -- the statute says in 3327. Official
Misha Tseytlin: -- what -- but what --
Justice Jackson: Except I don't see an exhaustion clause in 3327.
Justice Kavanaugh: Yeah.
Misha Tseytlin: Right. But what if my client had served shorter in that first period of service, Your Honor? What if he had served and had gotten a hardship discharge such that he'd only earned 25 months of Montgomery, so he gave less time to the nation? Under the VA's position, we would be -- my client would be entitled to the whole 23 months of Post-9/11 benefits. It is hard to imagine a regime more absurd than that than a veteran --
Justice Kavanaugh: Well, I guess --
Misha Tseytlin: -- gets less benefits for serving more.
Justice Kavanaugh: -- let's -- on the absurdity, the -- the -- the Congress establishes a generous -- more generous new program that you can switch into, but it's not infinitely generous in the sense that you get more monthly benefits, but if you had unused Montgomery, that you get more in monthly Official 1 benefits under the Post-9/11, but if you had unused Montgomery, you can only use the Post-9/11 up to the 36 months that you had --
Misha Tseytlin: But --
Justice Kavanaugh: -- originally.
Misha Tseytlin: -- but, Your Honor, I mean, that's just assuming you're always goings to have 36 months of Montgomery. It's possible to have 25 months of Montgomery. And the way their statutory regime works is, if you have less months of Montgomery because you serve less, you got a hardship discharge or whatever, you suddenly are entitled to more wartime benefits. And so it is a punitive penalty for giving more time to the nation. That -- I mean, it's hard to imagine a regime serving veterans trying to encourage longer service --
Justice Kavanaugh: No, I -- I don't think I agree with penalty. But let me ask one question. If we conclude that 3327 is the exclusive way for someone entitled to Montgomery to switch over to Post-9/11 benefits, okay, so I know you disagree with that, but if we conclude Official 1 that 3327's exclusive, do you then lose?
Misha Tseytlin: I mean -- I mean, that assumes the -- the entire argument away.
Justice Kavanaugh: Exactly. I -- I'm just making sure.
Misha Tseytlin: That -- that assumes --
Justice Kavanaugh: Okay. I understand that.
Misha Tseytlin: -- that a 3327 election is the only way that one can invoke their statutory entitlement in 3311, and absolutely nothing in the statute says that.
Justice Jackson: I mean, there seems to be an assumption that -- that you would have to switch in order to be able to get the 3311 benefits that you were separately entitled to because of your separate period of service. That's the part where I'm getting lost in the conversation that you had with Justice Kavanaugh. It seems to me, as I said at the original -- at the outset, that if you have two separate periods of service, you are entitled to two separate benefit packages. Isn't that historically the way it was in the GI Bill?
Misha Tseytlin: Absolutely, Your Honor. Official 1 And --
Justice Jackson: All right. And there was no historical circumstance that would, absent any specific language, say that you had to complete entirely all of one before you decided to invoke the other. They were entitlements that you had because of your service.
Misha Tseytlin: Absolutely right. And no -- it has never done that before. It wouldn't make any sense to. Why would Congress be enacting a regime where the -- wherein the statutory findings say those Montgomery benefits, they're outmoded, we want to reward wartime service with wartime benefits, and then, through these implications through a vague cross-reference to a coordination clause, say that no, no, what we really meant, in a bait and switch, is you've got to use up all 36 months of those benefits that we just said in our statutory findings are outmoded before you can get to the benefits that we're really enacting this bill to -- to -- to --
Justice Kagan: Mr. Tseytlin --
Justice Alito: Counsel -- Official
Justice Kagan: -- is your argument dependent on the idea that you're not coordinating entitlement?
Misha Tseytlin: It -- it is not dependent on that. All the coordination clause is is a cross-reference to 3327. Our superstructure of our argument is, as I've said a couple times, is that you have a plain-as-day entitlement under 3311 --
Justice Kagan: Well, I know that you have a plain-as-day entitlement in 3311, but if you're coordinating entitlement, I -- I mean, I guess, you -- you -- you know, at -- at certain points, I took you to be saying, well, we're just not coordinating entitlement, but if you are coordinating entitlement, shall be governed by 3327, 3327 doesn't make the kind of distinction that you're making between veterans with one period of service and veterans with multiple periods of service. So how you do you get out of that if not by saying what I took you to be saying at some points but I didn't realize -- I didn't take this from your brief, that you're not coordinating entitlement? Official
Misha Tseytlin: We are absolutely not coordinating entitlement. We're just using 30 --
Justice Kagan: Okay. So your argument does depend on that, the idea that you're not coordinating entitlement?
Misha Tseytlin: I do not believe that either side of this case has said that 3322(d) resolves this case. Certainly, if we win on the coordination, we win the case. But, even if Your Honors think that we lose on coordination, it's still the case that a "may elect" clause is not a natural or linguistically, I say, possible way to revoke a statutory entitlement.
Justice Kagan: I see. So you're saying that even if 3322 does direct people in your client's position to 3327, you still win because this is not a mandatory provision?
Misha Tseytlin: Yeah, and because it doesn't say it's revoking an entitlement. And I also think that --
Justice Gorsuch: How does that compare with other statutory provisions where Congress did use "shall elect"? And I think they did that in 3322(a) elsewhere and 3033(a). Official
Misha Tseytlin: Yeah, I mean, I think the difference between "shall" and "may" is -- is critical here. I mean, it's telling the veteran that you don't have to elect, and it's not giving any penalty for not electing.
Justice Gorsuch: What do you do in your interpretation with the fact the statute in -- both places references as of August 1st, 2009, I think?
Misha Tseytlin: Well, I think ourselves and the VA agree that that's just the effective date. It wouldn't --
Justice Gorsuch: Is that the effective date, or does that suggest something about what's being coordinated here, a single period of service?
Misha Tseytlin: Certainly, it could be suggestive of that. You know, in thinking through that interpretation, it does lead to some weird outcomes that are hard to -- hard to think Congress was intending to do, but, certainly, if Your Honors read it that way --
Justice Gorsuch: Well, it just seems to me awkward that we would read that out of the statute altogether rather than perhaps as a clue Official 1 that what Congress was up to was trying to deal with, as Justice Jackson said, those members who, as of that effective date, had some preexisting Montgomery benefits that they wished, that they chose to elect, may elect, to turn into 9/11 benefits.
Misha Tseytlin: Certainly, that reading would benefit my client. It is -- it is -- it is -- (Laughter.)
Misha Tseytlin: And it is a very sensible reading of the statute. I would be worried --
Justice Gorsuch: Well, of course, it is. (Laughter.)
Misha Tseytlin: No, but I would be worried -- I would be -- I would cautious the Court if the Court is going to rule for us invoking that rationale because it would have unfortunate collateral consequences for veterans who had those two periods of service after the effective date of the Post-9/11 --
Justice Kavanaugh: Yeah. That would be -- that would be -- Official
Justice Gorsuch: I -- I understand that, but --
Misha Tseytlin: -- that -- that would put them in quite a tough place.
Justice Kavanaugh: That would create negative consequences for a lot of people.
Justice Gorsuch: I -- I understand that.
Misha Tseytlin: It would -- that -- that particular --
Justice Gorsuch: My -- my --
Misha Tseytlin: -- reading would because of -- because then people would have to -- have to guess -- in ex-ante --
Justice Kavanaugh: Yeah.
Justice Gorsuch: Just one further --
Misha Tseytlin: -- whether they got --
Justice Gorsuch: -- one further question. There's some debate between the two of you about what -- what has happened in the past when there's overlapping periods of service, two -- two benefits available. Can you speak to that?
Misha Tseytlin: Yeah. I mean, the way that the -- the -- the GI Bills have always Official 1 worked is, when you have two periods of service, you can't use them at the same time, but you can credit the same period of service -- you can credit a single period of service to two types of benefits. I mean, the clearest way to see that with regard to the provisions here is -- is the Montgomery -- the traditional Montgomery program and the -- Montgomery Selected Reserves program. Under 3033(c), you can't get credit -- you can't get the Selected Reserves benefits and the traditional Montgomery benefits for the same period of service. So that is a prohibition against drawing upon a single period of service.
Justice Gorsuch: Any exhaustion requirements previously in history?
Misha Tseytlin: No, no, and none in -- none in -- in this provision either. It's entirely a figment of -- of the VA's imagination I would respectfully submit.
Justice Alito: Is there -- this is -- is there a statutory provision that specifies when the election under 3327(a) must be made?
Misha Tseytlin: Well, there -- there -- there is not, but, you know, our position is Official 1 that if somebody has credited their period of service -- their -- their period of service to Montgomery and they want to cash -- cash in that same period of service for Post-9/11, so then, when they want to cash in the -- the remaining Montgomery credits for the more generous life-changing Post-9/11 credits, then they need to make that election.
Justice Alito: Does the government disagree with you on that point as to timing?
Misha Tseytlin: My understanding is the government doesn't disagree with us on any way how the statutory regime works for somebody that -- for whom it was naturally designed, for someone who wants to trade their Montgomery for Post-9/11 benefits. It also doesn't disagree with us on how the statutory regime works for someone that's used up all their Montgomery benefits and just wants to draw on --
Justice Alito: Would the --
Misha Tseytlin: -- 12 months of Post-9/11.
Justice Alito: -- would the statute preclude the Secretary from saying that the election under 3327(a) must be made at a Official 1 particular point in time? Because, if you elect -- an individual may elect to receive Post-9/11 benefits. If the individual elects not to receive those benefits, that would be irrevocable, right?
Misha Tseytlin: Certainly, that -- declining to make the election is not some --
Justice Alito: I thought there's a provision that says it's irrevocable.
Misha Tseytlin: Yes. When you make the election, then you can't -- you can't unwind it. And our --
Justice Alito: Well, if it says you have to make the election one way or the other, then you can't -- if you elect not to get the 9/11 benefits, then you can't get the 9/11 benefits if it's irrevocable.
Misha Tseytlin: That's certainly not our position, Your Honor. Our position, Your Honor, is --
Justice Alito: I -- I know it's not your position, but why is that wrong?
Misha Tseytlin: Because the -- the -- -- the -- the provision that says that the election under (a) is irrevocable, I think, in Official 1 both sections of that, it's only irrevocable if you make the affirmative election. If you don't make an election, I don't think the VA -- and maybe my friend will correct me -- treats that as making any sort of election under 3327, but I could be wrong as to their position.
Chief Justice Roberts: Thank you, counsel. Just a couple questions to clarify my own understanding. Did I understand you to say that your position, your analysis of the statute and the consequence would be the same with respect to somebody who had no break in service? It was all continuous service? Or would it be --
Misha Tseytlin: Yes -- yes, Your Honor.
Chief Justice Roberts: -- or would it be different?
Misha Tseytlin: It would be the same.
Chief Justice Roberts: Okay. Thank you. Justice Thomas? Justice Alito? Justice Sotomayor? Justice Gorsuch? Justice Kavanaugh? Official
Justice Kavanaugh: Just on the "may elect" so I understand, when you get to a educational institution and you have some unused Montgomery and you're also entitled to Post-9/11, you presumably have to fill out a form to tell the educational institution which you're using, correct?
Misha Tseytlin: No. What you do is you fill out a form with the VA. And in -- in our -- in our circumstance, our client filled out a form that invoked only his second Post-9/11 eligible only period of service. Then the VA will issue you a certificate of eligibility, and you take that into the --
Justice Kavanaugh: Does the form have a choice between, okay, I'm showing up for graduate school, I'm going to use either Montgomery or Post-9/11 or other boxes potentially?
Misha Tseytlin: Yeah. I mean, my -- my client filled it out online, and you've got to select which -- which benefits.
Justice Kavanaugh: Is one of the boxes to select Montgomery?
Misha Tseytlin: Yes. Official
Justice Kavanaugh: So you may elect Montgomery?
Misha Tseytlin: Yeah, and that would be an election under 3322, which you have -- (a), which you have to make so that -- pursuant to the concurrent usage bar.
Justice Kavanaugh: Because, if you're going to claim veteran benefits, you're going to have to elect one or the other --
Misha Tseytlin: Yeah. Under --
Justice Kavanaugh: -- to get the school -- to get the benefits for the educational institution?
Misha Tseytlin: Right, and that election is mandatory under 3322(a). The 3327 election is not -- (a) is not mandatory.
Justice Kavanaugh: Mm-hmm. Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: I just have a clarifying question. You pointed out that no prior GI Bills have worked this way. Did any of the prior GI Bills deal with overlapping periods of entitlement -- Official
Misha Tseytlin: Well, certainly --
Justice Barrett: -- as this one does?
Misha Tseytlin: -- the -- the -- the Montgomery traditional -- and the Montgomery Select Reserve overlap, which is why you had 3033(c) that -- and nothing -- there was no exhaustion requirement or anything like that. There's also not GI Bills, but pre -- pre the original World War II era GI Bill there were benefits that -- that could be earned during the same period of service that then made you eligible for the more generous -- for original GI Bill benefits, and there was no exhaustion requirement there, no --
Justice Barrett: But this particular situation where you have, you know, these two, like the Montgomery and the Post-9/11, where you have an entitlement, your client's situation, are you saying that it arose before on this other Montgomery --
Misha Tseytlin: It -- it did not. But --
Justice Barrett: -- or is this a new --
Misha Tseytlin: -- but I would also say Official 1 that my client's first period of service largely was before the -- the -- the period after 9/11, and a lot of folks who are governed by their regime are --
Justice Barrett: Well, I -- I was just asking about the history of the way the prior GI Bills worked. Because you pointed out, it would be unusual for this one given that Congress didn't have this exhaust or forfeit requirement in the other regime. So I was just wondering how analogous this was, but I think you answered that.
Misha Tseytlin: For the main GI Bills, they're not overlapping, but for the subsidiary Reserve ones and other programs, certainly, there are overlapping. And there's never been a requirement that you use up the -- the meager benefits to get the good benefits.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: Yes. So, there were a couple of questions about coordination, and I thought the point of coordination was the swap. And I think that the -- the text sort of bears that out because, if you look at 3322(d), you're Official 1 beginning with a person who has Montgomery benefits or some other types of benefits. And it's as of August 1st, and I think -- take Justice Gorsuch's point that that might be relevant to identifying the people in this particular situation. Coordination of entitlement to assistance under this chapter, meaning the Post benefits -- Post-9/11 benefits, takes place under 32 -- 3322 -- or, sorry, 3327. And as you say, when you get there, you may elect. But I thought the sort of critical part was 3327(d)(1), which is where the swap is effected.
Misha Tseytlin: Mm-hmm.
Justice Jackson: You -- you -- if you're making an election under subsection (a), you shall be entitled to the Post-9/11 benefits instead of the benefits that you would have received in Montgomery. So the reason why you're coordinating, I thought, under the way the -- the statute reads is to effect the swap of the unused Montgomery benefits.
Misha Tseytlin: That's -- that's obviously what 3327 is designed to do. Every Official 1 textual indicia in 3327 is a trade-in regime. The -- the entire argument my friend's come up -- come up with is -- is fitting a square peg into a round hole or vice versa. It's a --
Justice Jackson: Because you don't need this to get your entitlement to the Post-9/11 benefits because you had those already at 3311.
Misha Tseytlin: Exactly right.
Justice Jackson: You're only coordinating to make a swap, right?
Misha Tseytlin: Exactly right, Your Honor.
Justice Jackson: All right.
Chief Justice Roberts: Thank you, counsel. Mr. Suri. ORAL ARGUMENT OF VIVEK SURI ON BEHALF OF THE RESPONDENT
Vivek Suri: Mr. Chief Justice, and may it please the Court: I think the crucial question in this case is whether Mr. Rudisill was required to elect Post-9/11 benefits in order to receive them. So I'd like to begin by discussing who Official 1 does and doesn't have to make an election in order to receive Post-9/11 benefits. A person who's entitled to benefits under only one program doesn't need to make an election. He can just apply for the benefits and receive those benefits. An election is a choice between multiple programs. And if you're covered only by one program, there's no choice that needs to be made. A person who is covered by two programs or more, however, does need to make an election. This is explicit in the text of Section 3322(a), which is on page 1A of our brief. I'll read the relevant portion aloud. "An individual entitled to educational assistance under this chapter" -- that's Post-9/11 -- "who is also eligible for educational assistance under Chapter 30" -- that's Montgomery -- then it goes on, "shall elect under which chapter or provisions to receive educational assistance." In other words, if you're eligible for both Montgomery and Post-9/11 benefits, you must make a choice. You can elect Post-9/11 benefits, or you can elect Montgomery benefits. Official 1 And if you elect Post-9/11 benefits, that election would be made under 3327, triggering all the consequences that 3327 specifies. 3322(d) reinforces that command. It states that entitlement must be -- shall be -- governed, coordination of entitlement shall be governed by 3327, and that makes it quite clear what 3327 is doing. It means that if you're eligible for both Montgomery benefits and Post-9/11 benefits, 3327 is the provision you go to to combine those two programs. And that's consistent with how the Federal Circuit applied this provision, and, therefore, its judgment should be affirmed.
Justice Thomas: Where do you statutorily peg the exhaustion requirement?
Vivek Suri: The exhaustion requirement arises from the fact that someone who is covered by only one program doesn't need to make an election in the first place. So it is a consequence of 3322(a) and 3322(d). Someone who has exhausted his Montgomery benefits and has only Post-9/11 benefits remaining is covered by only one program and, therefore, wouldn't need to make an Official 1 election in the first place.
Justice Jackson: Mr. Suri, I don't understand your reading of 3322(a). I mean, it seems that your argument is turning on the supposition and the proposition that a person who has two separate periods of service and is entitled under the statute -- and I assume you don't quibble with the entitlement to the Post-9/11 benefits under 3311, right? So he's entitled to both Montgomery and -- and Post-9/11. You say but he has to choose, as though he's not allowed to cash in or take advantage of both. So, first of all, is -- is that reading coming from 3322(a) as you've said?
Vivek Suri: Yes.
Justice Jackson: All right. But I didn't hear you necessarily to read the entire section, which seems to me to cast a different light. When you say "an individual is entitled to educational assistance under this chapter" -- this is the beginning of 3322(a) -- it goes on to say, "may not receive assistance under two or more such programs concurrently" --
Vivek Suri: Mm-hmm. Official
Justice Jackson: -- comma, "but shall elect in such form as the Secretary under which chapters to receive addition" -- "educational assistance." It seems to me the prior reference to "concurrently" is doing a substantial amount of work to explain that you can't get them at the same time, but you'll need to elect which one you want to get at which time. That is different than suggesting, I think, that you have to choose between them such that you can only have one ever.
Vivek Suri: I agree with everything you said --
Justice Jackson: Great.
Vivek Suri: -- Justice Jackson. But 3327 is the mechanism by which you elect, if you're eligible to vote, that you now want to receive Post-9/11 benefits. And we can look at the text of these two provisions to see why that's so. If you look at the last words of 3322(a), it says that you shall elect under which chapter to receive educational assistance. This is page 1A of our brief. Official 1 And then page 4A of our brief, 3327(a) states: "An individual may elect to receive educational assistance under this chapter...". So there's an exact parallelism. 3322(a) says you shall --
Justice Gorsuch: There's a sort of parallelism, I'll -- I'll grant you, but, as Justice Jackson pointed out, (a) on 3322 is about concurrent. You can't have concurrent. That's always been the law. No surprise Congress wants that to be the case here. "Shall elect." In other circumstances, Congress has used "shall elect" as well, 3033(a), I believe. Here, when we get to -- when you -- and -- and I think you agree in your brief that 3322 doesn't resolve the question presented before us, right?
Vivek Suri: The question presented has to be resolved by looking at both provisions together, not by one or the other alone. That's right.
Justice Gorsuch: Yeah, I -- I -- I think you said as much on --
Vivek Suri: Yes, we did. Official
Justice Gorsuch: -- page 14 of your brief. "The coordination clause does not resolve the specific question presented...," right?
Vivek Suri: Points to 3327.
Justice Gorsuch: Okay. So we've to go to 3327. When we get there, we don't have a "shall," we have a "may."
Vivek Suri: Absolutely. "May" implies --
Justice Gorsuch: So the parallelism is sort of parallel but not quite parallel.
Vivek Suri: "May" implies that you have multiple options. You can opt to elect Post-9/11 benefits, or you can opt to elect Montgomery benefits.
Justice Gorsuch: Doesn't it also possibly imply that you don't have to elect at all?
Vivek Suri: No, because 3322(a) says you shall elect.
Justice Gorsuch: Well, it says shall elect with respect to concurrent benefits. It doesn't speak to benefits otherwise.
Vivek Suri: But -- Official
Justice Gorsuch: Right?
Vivek Suri: I --
Justice Gorsuch: (a) is about concurrent benefits?
Vivek Suri: No. (a) has --
Justice Gorsuch: (a) is about concurrent benefits.
Vivek Suri: (a) has two distinct requirements. It first says "may not receive assistance under two or more such programs concurrently." And then it also says --
Justice Gorsuch: No, no.
Vivek Suri: -- shall --
Justice Gorsuch: It doesn't say also. It doesn't and also say. It says "but shall."
Vivek Suri: Yes.
Justice Gorsuch: Okay? So, instead of concurrent, you have to pick one. I get that. Suppose I'm right about that. Just spot me that, all right?
Vivek Suri: Very well.
Justice Gorsuch: I've got a "shall" here. I've got a "shall" in 30 -- 3033(a), which is again about coordinating between two different programs. But, when I get to 3327, I Official 1 have a "may." So why isn't it an option to a veteran simply not to elect at all?
Vivek Suri: The reason that doesn't work --
Justice Gorsuch: "May" usually means "may," doesn't it?
Vivek Suri: I agree that "may" means "may."
Justice Gorsuch: And "may" -- "may" implies normally that you don't have an obligation to do anything, right?
Vivek Suri: And it implies that here.
Justice Gorsuch: Right?
Vivek Suri: I'm entirely agreeing --
Justice Gorsuch: No, it -- it -- it --
Vivek Suri: -- with your reading of "may" in this provision. I'm just suggesting that the alternative to electing Post-9/11 benefits under this provision is not, as Petitioner suggests, not electing them but receiving them anyway. The alternative is electing Montgomery benefits or continuing with Montgomery benefits, Official 1 and that's the most natural way to read (a) itself.
Chief Justice Roberts: Well, I mean, just to follow up on Justice Gorsuch's point, the most natural way to read "may" is "may."
Vivek Suri: Yes.
Chief Justice Roberts: And that's very much compelled if a couple sections earlier you have the phrase "shall elect," which suggests that that's quite a different -- you don't have a choice there, but when they say "may elect," you do have a choice.
Vivek Suri: I agree, Mr. Chief Justice. And I would reconcile the two provisions in the following way: The first provision, 3322(a), says you must make a choice. You must choose either Montgomery or Post-9/11. And then 3327(a) says you may elect Post-9/11. Now that means the other choice that you have is you may elect Montgomery. It doesn't mean that the other choice you have is receive Post-9/11 anyway without choosing it.
Justice Kavanaugh: So you can't --
Chief Justice Roberts: Well, is -- am I -- I know there must be something wrong with Official 1 the way -- at least on -- on this point, because it -- it doesn't make any sense, but the reason that the Petitioner here has this particular difficulty is that he served an additional tour of duty after 9/11 in addition to what he had served before 9/11. Now, if you have somebody who just joined up after 9/11 for the same period as the Petitioner served, the Petitioner is getting less -- fewer benefits than the person who only served one tour of duty for the same length because, if he served just the -- the -- the Post-9/11 for, whatever, three years, he would get three years. But, because this Petitioner had served additionally beyond his period of Post-9/11, he gets -- he doesn't get the full benefit of the Post-9/11 benefits. So I'm -- there must be something wrong there because that would -- that would not make any sense.
Vivek Suri: The reason Petitioner isn't getting as much -- as many months of benefits as the other veteran in your hypothetical is not that he is being penalized for serving two tours of duty. The reason is he has already used 25 Official 1 months of benefits, a different type of benefits, I grant.
Chief Justice Roberts: The Montgomery benefits?
Vivek Suri: The Montgomery benefits, but a program that is designed to do a similar thing to the Post-9/11 program.
Chief Justice Roberts: Well, but that still doesn't make all that much sense because he's getting those other benefits because he had an additional -- a couple additional tours of duty. So maybe, you know, he's entitled to both of them, but because of this other provision there, he can't get both at the same time, but it seems to me to be a pretty raw deal to say you're going to lose -- you're entitled -- if you hadn't done anything other than the 9/11, you would be entitled to this, but because you served additional period of time, you don't get the whole 9/11. You've got to exhaust this other less generous plan first.
Vivek Suri: Mr. Chief Justice, the reason he is not getting the additional benefits, again, is not that he served an additional period of duty. It's that he already Official 1 went to college using some benefits that the government has provided. That makes --
Chief Justice Roberts: Yeah, but he was fully entitled -- fully entitled to those benefits because of his additional tour of duty. Fine.
Vivek Suri: Yes.
Chief Justice Roberts: But, if you take him and somebody else that didn't have an additional tour of duty and that person has the same length Post-9/11, the person who didn't serve as long gets the full Post-9/11 benefits, but the Petitioner does not, which -- and -- and you say, well, but he's getting other benefits under another program. Well, that's because he earned those benefits under -- because of his other service.
Vivek Suri: But, Mr. Chief Justice, everyone who is going to be using this election provision in 3327 is going to be entitled to both sets of benefits. And this follows from the text of 3327(a)(1) and (a)(2). (a)(2) states that in order to use this election mechanism, you must meet the requirements for entitlement to educational assistance under this Official 1 chapter, that is, under the Post-9/11 Bill.
Chief Justice Roberts: So but now, if I understand that answer, it's that, look -- look, you can only go to college so -- so many years, and -- and we're paying for additional -- for -- for years of college for the people who got Montgomery benefits, and even though you get additional benefits under Post-9/11, you know, we're not going to pay for eight years of college.
Vivek Suri: Let -- let me try a different way of explaining why --
Chief Justice Roberts: Well, but is that -- is that a good, reasonable way of looking at it?
Vivek Suri: That is the consequence of what Congress has wrote. And let me take a stab at explaining why Congress might have designed the statute this way. The purpose or one purpose of the GI Bill is to enable someone who has served in the military to transition back into civilian life. That's why the first GI Bill was called the Servicemen's Readjustment Act. It was about readjustment. And Congress could conclude that Official 1 in order to readjust, you need 36 months of benefits. That's four years of college, nine months per academic year. And it could say that whether you get these 36 months through one program or through two programs is not of much concern to us because these two programs are close substitutes for each other.
Justice Jackson: But how do you --
Chief Justice Roberts: And --
Justice Jackson: -- reconcile that with the 48-month cap? I mean, there's -- there's something in the statute that Congress has made clear that you get up to 48 months of benefits. So how -- how -- how is that consistent with your story about Congress having a purpose to limit people to 36 months?
Vivek Suri: In order to answer that question, I'll need to explain how the overlap between the Montgomery and Post-9/11 GI Bills differs from the overlap between previous bills.
Justice Jackson: But are you saying the 48 months doesn't apply? I mean, I thought they -- Congress chose a cap, right? Consistent with your story -- Official
Vivek Suri: Yes.
Justice Jackson: -- we have to let this in somewhere. You can't, you know, have every degree available on the government's dole. So 48 months. And I understand Mr. Rudisill to be saying what I'd like to do is take my separate periods of service and the benefits that I have accrued and are entitled to as a result of those and get 48 months' worth of benefits. And I'm not sure it makes sense to say the government is saying no, you can only have 36 because you used some of them before, which sounds like what you're saying.
Vivek Suri: What I'm saying is that he can only use 36 because the limitation clause, 3327(d), specifically says that. Now I'm trying to explain why it is that Congress might have done it that way, but --
Justice Jackson: And your answer is because they only wanted you to have 36 months, but then I point to the 48. So that can't be right. What's the other answer?
Vivek Suri: The -- the answer is Congress treated this overlap between these two Official 1 GI Bills differently from the overlap between other GI Bills. Other GI Bills apply to different wars. You could serve in Vietnam and also serve in Korea and that's how you'd get to 48 months. That's not what happens under Petitioner's view under this statute. Imagine a veteran serves six continuous years in one war, just the Iraq War. What Petitioner would allow that person to do is say: I'm going to apply the first three years of my Iraq War duty to the Montgomery program, apply the second three years to the -- to the Post-9/11 program, and get more than 36 months of benefits, even though I've served only in one war. And that's something Congress has never previously allowed.
Chief Justice Roberts: But you said --
Justice Kagan: But, if I --
Chief Justice Roberts: -- earlier that -- the purpose of this is because you're transitioning back to civilian life and this will allow you to get the degrees that you may have -- but, here, you have a -- a situation where, instead of transitioning after having Official 1 served the first time and transitioned, he doesn't get -- you're saying, well, you don't get another transition because instead of just, you know, whatever, you decided to go back to Iraq and Afghanistan and get a Bronze Star, so we don't have to worry about you transitioning to school.
Vivek Suri: Mr. Chief Justice, this is the consequence of the statute that Congress has written. If that statute creates hardship in particular cases, then Congress is free to amend the statute as it has done many times before. It is notable, however, that Congress was aware of the way the VA had been applying the statute in the 2011 amendments. The Senate report accompanying that shows that. And it chose not to change that interpretation.
Justice Kagan: If -- if -- if I understand the way this statute works -- and this goes to your explanation of why Congress could have written it this way -- but if I understand the way the statute works, suppose a veteran has 35 months that he's already covered, so he has one left. You're saying he has this choice. He can take the -- the 36-month under Official 1 Montgomery and, if he does that, he gets a full year extra under 9/11. Or he can swap out the Montgomery for the 9/11 for the single month left, and then he forfeits the additional year. So why would that choice be put to the veteran?
Vivek Suri: I can explain why Congress might have decided that those who have already exhausted their Montgomery benefits should still have the opportunity to get some additional Post-9/11 benefits. There are a few different reasons that might have explained it. We don't know, in fact, why Congress did it. The first possible reason is that Congress was creating the Post-9/11 program and making it retroactive. It knew that there would be some veterans who had served after 9/11 but before 2008, when the Post-9/11 bill was enacted, and who had already used up all of their Montgomery benefits. And Congress may have wanted to ensure that those veterans get something, and so the something it gave them was to allow them to get 12 additional months after exhaustion. That's one possibility. A second possibility is this may be an Official 1 artifact of the fact that the Post-9/11 bill was originally limited to college education and the Montgomery bill was designed to focus on vocational education. Congress may have decided that if you've used your 36 months of Post-9/11 benefits to go to college, you don't need additional benefits under the program that's geared toward vocational training. But, if you used your 36 months of benefits under the vocational program, then you might still want to go to college for a few years and, therefore, we'll leave open the option of getting the Post-9/11 college-related benefits. A third possibility is that Congress said: We're going to be extremely generous for those who want 36 months of benefits, you'll have this extremely helpful Post-9/11 program, but for those who want more than 36 months, we'll make a tradeoff. You can use the less expensive program for most of the time when you're going to college and then you use the more expensive Post-9/11 program when you're going to graduate school. This is a perfectly reasonable trade for Congress to make if it's trying to limit the overall cost of the program. Official
Justice Sotomayor: I -- the only problem with that answer, it doesn't really answer Justice Kagan's question. Her hypothetical suggested, I think, that it's irrational to think that Congress would say, if you wait and take the one month, you'll get 12, but if you decide to take the one -- not take the one month and switch over immediately, that you're going to lose those 12 months. That's what's basically, I think, the irrationality. Am I assuming --
Justice Kagan: It just seems utterly arbitrary.
Vivek Suri: I -- I -- I'll add two points in response to that. One -- one further possibility is that that is an unintended consequence of how these coordination provisions were written. Coordination of benefits is a very complicated enterprise, and it may be that this is just an unintended consequence of what Congress wrote. A final possibility is that we're wrong about the exhaustion rule. It may be that once you've exhausted the Montgomery benefits, you don't get additional Post-9/11 benefits. Official 1 But that's not the question before the Court today. The only question that's presented here is how many months of benefits Mr. Rudisill is entitled to.
Justice Sotomayor: That -- that -- that seems odd, doesn't it, that Congress is going to penalize a veteran who, as the other side pointed out, has served the country for a longer period of time, put himself at risk in not one war but two wars, and now we're going to deprive him of access -- of any access to the more fulsome benefits.
Vivek Suri: Justice Sotomayor, no one is being made worse off. Before Mr. Rudisill went into his third period of service in 2007, he had no expectation of receiving Post-9/11 benefits because that program didn't exist yet.
Justice Sotomayor: No, but one -- the -- the very purpose of the 9/11 program was to ensure that he did serve. He could have retired, but he chose to stay. And there should be a benefit, which is what Congress made available to him.
Vivek Suri: It -- it -- it -- it is not the statutory scheme that the more periods of Official 1 service you have, the more benefits you obtain. Someone could serve three years, five years, or 10 years and still get only 36 months of Montgomery benefits. Only --
Justice Sotomayor: All right. Can I move on from that answer for a second? 3327(h)(1).
Vivek Suri: Yes.
Justice Sotomayor: It's an amendment that's happened more recently. Is that amendment intended to take care of the hypothetical that Justice Kagan and I are saying is a bit irrational or suggesting might be irrational?
Vivek Suri: No, that takes care of a different problem. It --
Justice Sotomayor: Okay.
Vivek Suri: And --
Justice Sotomayor: Go ahead.
Vivek Suri: And it is a crucial piece of context in interpreting 3327 because, on Petitioner's view, 3327 becomes potentially rather superfluous. 3322(h) states that you can't use the same period of service to establish entitlement Official 1 to two different programs. You've got to credit it to one program or the other. But 3327 says that in order to make an election, you must be entitled to both Montgomery benefits and Post-9/11 benefits. So you have to have eligibility for both programs. And this provision, (h), is telling you, you can't be eligible for both programs based on a single period of service. If you put those two things together, on Petitioner's view, 3327 does no work at all. It doesn't apply to people with multiple periods of service because that's his theory. And it doesn't apply to people with a single period of service because (h) says you can't be eligible for both programs based on a single --
Justice Sotomayor: So what --
Vivek Suri: -- period of service.
Justice Sotomayor: -- what does (h) mean? What can the Secretary waive? Which election?
Vivek Suri: I -- I'm sorry, I -- I thought you were referring to 3322(h).
Justice Sotomayor: No.
Vivek Suri: But you're referring -- Official
Justice Sotomayor: I said 3327(h)(1).
Vivek Suri: (h) states that if a veteran makes a choice that the Secretary determines is not in his best interests, the Secretary --
Justice Sotomayor: When would that occur?
Vivek Suri: That would occur as soon as the Secretary receives the election. I will note that provision does not apply to this case because it refers to elections made from 2017 onward. And this particular election was made before 2017.
Justice Jackson: What is your response to your counterpart's contention that the work of 3327 is to effect the swap and that insofar as Mr. Rudisill is not seeking to swap, it doesn't apply to him?
Vivek Suri: I appreciate the chance to answer that question. I -- I'd give a few answers to that. The first is the text of 3327(a), again, page 4A of our brief, says an individual may elect to receive. It's talking about receiving benefits, not converting benefits or Official 1 swapping benefits. The second point is a structural one.
Justice Jackson: No, go on to (d). Right, (d), "subject to paragraph 2 and except as provided in (e), an individual making an election under (a)," which is what you just referenced, right, "shall be entitled to benefits under this chapter instead of." So is that not doing the work of saying the reason why you're in 3327 at all is because, if you're an (a) person who has made an election, you are seeking to convert?
Vivek Suri: I -- I appreciate the force of the point with respect to (d) if you look at that provision alone, but if you go back up to (a), it says that in order to make an election, you have to both be entitled to Montgomery benefits, that's (a)(1), and be entitled to Post-9/11 benefits.
Justice Gorsuch: Yeah, I --
Vivek Suri: That's (a)(2).
Justice Gorsuch: -- I -- I take that point. But just to follow up on my colleague's observation, (d) tells us what the effect of an election under (a) is, right? Official
Vivek Suri: Yes.
Justice Gorsuch: And that is swapping one benefit for the other, right, "instead of"?
Vivek Suri: (d) says that you will be eligible for the one and you will no longer be eligible for the other. I entirely agree with that.
Justice Gorsuch: You swap one for the other, right?
Vivek Suri: But --
Justice Gorsuch: Right?
Vivek Suri: Yes, I accept that.
Justice Gorsuch: And that's the point of -- of -- that's the effect of an election under (a)?
Vivek Suri: Yes. But we must also look at who can make an election under (a) in the first place, and you have to be entitled to Post-9/11 benefits.
Justice Gorsuch: No. I -- I take your point.
Justice Jackson: And you're entitled if you serve in the relevant period. I mean, this is where the overlap is coming that I think he's identifying. This is a person who has one Official 1 period of service, but that period of service is happening at a time in which only Montgomery benefits are available to him because Post-9/11 has not yet been in effect, but he's earning Post-9/11 because he's serving after 9/11. And the question is, will he be relegated to just having Montgomery because that was all that was available to him during his period of service, or is there some mechanism that allows him to get the Post-9/11 benefits that he's entitled to because of his period of service? And I read 3327 as doing that.
Vivek Suri: Exactly right. 3327 is the mechanism for someone who is entitled to both programs to start receiving Post-9/11 benefits.
Justice Jackson: Yeah, but not because of separate periods of service. Mr. Rudisill says, I'm not entitled in the same way. I'm entitled to these separately because I have two periods of service, not the one that is falling in the overlap. I have two, he says.
Vivek Suri: And -- and my response to that is there's no statutory text whatsoever that draws a distinction between one period of service and two in 3327 or in 3322(d), the Official 1 provision that points to 3327.
Justice Jackson: (a), you pointed to two periods of service in 3322(a).
Vivek Suri: (a) doesn't say anything about periods of service either. And it's notable that Petitioner says that many provisions in this statute that have -- that say nothing about periods of service apply to him. For example, 3322(a) says you can't use two different programs concurrently. He says that applies to him. He doesn't say that doesn't apply to people with multiple periods of service. So he seems to be reading in a multiple-period-of-service limitation to 3327 but not to these other provisions, and he doesn't explain the justification for that, other than, potentially, it would be a fairer or more sensible scheme. And he may be right about that, but this is not the forum for that debate.
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito?
Justice Alito: Do you know how many Official 1 veterans are affected by this question?
Vivek Suri: The -- we don't know exactly. The best estimate that we have is that it could be up to 30,000 veterans who potentially would be affected, that is, individuals who fall into the same multiple periods of service and have already used some Montgomery benefits category. That doesn't mean, however, that all of them have plans to go to graduate school or all of them would use the benefits that would be available.
Justice Alito: When a veteran enrolls in a college program and fills out the form to get benefits from the VA, if that veteran asks for Montgomery benefits, does that constitute an election not to receive the 9/11 benefits?
Vivek Suri: That constitutes an election to receive Montgomery rather than Post-9/11 benefits. But, to respond to a question that you posed to Mr. Tseytlin earlier if I may, that election is not irrevocable. The only election that's irrevocable is the election of Post-9/11 benefits, and that follows from the text of 3327(i). Official
Justice Alito: Okay. Thank you.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: A follow-on to that last question. I -- the way I understand your reading of the statute, someone who qualifies for Montgomery and Post-9/11 benefits under separate periods of service could not use their 36 months of Post-9/11 benefits first and then get 12 of Montgomery?
Vivek Suri: That is prevented by a different provision that we haven't talked about yet, which is 3327(d)(1), which states that once you've elected Post-9/11 benefits, you're no longer eligible for the Montgomery benefits.
Justice Sotomayor: That one I'll have to look at. Okay. Thank you.
Chief Justice Roberts: Justice Kagan? Justice Gorsuch? Justice Kavanaugh?
Justice Kavanaugh: I just want to make sure of one thing first, that you said you can't receive Post-9/11 benefits unless you elect to receive them?
Vivek Suri: For an individual who's Official 1 covered by multiple programs, that's correct, Justice Kavanaugh.
Justice Kavanaugh: Okay. So there has to be an election. And your point is the only way to make an election is under 3327?
Vivek Suri: That's correct.
Justice Kavanaugh: Okay. Second, I think you had been asked about the other side's point that 3327 is best read as a swap or trade-in provision, and you said you appreciated the opportunity to answer the question, but I don't think you were able to get the answer. So I'm giving you a full opportunity to answer that question.
Vivek Suri: Thank you, Justice Kavanaugh. The first answer is the textual point, which is 3327(a) says an individual may elect to receive educational assistance under this chapter. That echoes the language of 3322(a), which says "shall elect" under which chapter to receive educational assistance. That's a clue that this provision is one of the options that is on the table under 3322(a). 3322(a) is saying you must pick either Chapter 30, Montgomery, or Chapter 33, Official 1 Post-9/11. And this provision is saying here's how you pick Post-9/11. That's one answer. The second answer is the structure of 3327(a). It -- it applies only to individuals who are eligible for both programs, so that precludes the idea that it's meant to allow someone who is eligible for one program to trade in benefits in order to obtain the other program. You have to already have Post-9/11 benefits in order to make this election in the first place. And that's in the text of 3327(a)(2). The third answer is going back to 3322(d), a provision that was discussed earlier during Mr. Tseytlin's argument. It states that the -- it -- it tells us what 3327 is designed to do. It states that an individual must coordinate entitlement under 3327. It doesn't say that an individual can convert entitlement under 3327. It's notable that in Mr. Tseytlin's brief, he resorts to phrases such as the veteran has no need to "coordinate" Montgomery benefits into Post-9/11 benefits. That's not a normal usage of the word "coordinate." You coordinate Official 1 one program with another program. You don't coordinate or convert one program into another program. So those are the textual reasons that -- the most important textual reasons that 3327 can't be about swapping.
Justice Kavanaugh: How much significance, if any, is there that it says "coordination of entitlement" and not "coordination of benefits"?
Vivek Suri: That is a very significant point, Justice Kavanaugh, because that too 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 3327 to determine how to coordinate those programs.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: No.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So just on that very Official 1 last point, you've repeatedly emphasized that this is about veterans who already have entitlements to both programs, right? What I don't see in 32 -- 3327(a)(2) is language that supports that. If you look at that actual provision, it says -- it's talking about an individual who may elect to receive if they are, as of August 1st, under these certain categories. That's (a)(1).
Vivek Suri: Yes.
Justice Jackson: And then, as of the date of the individual's election, meets the requirements for entitlement to educational assistance under this chapter.
Vivek Suri: Yes.
Justice Jackson: That -- so the language there is not "is entitled" or "already has been entitled." It seems to be suggesting that if you're one of these people who meets the entitlement, then you can go on, as Justice Gorsuch points out, to (d), which tells us what happens, that you can exchange -- I mean, do you -- do you dispute that (d) has sort of an exchange quality to it?
Vivek Suri: I -- I don't dispute that. Official
Justice Jackson: So what's it doing if -- if not the swap?
Vivek Suri: I'll -- I'll say a couple of points in response to that. The first is the only way to be entitled to Post-9/11 benefits is to meet the requirements for entitlement.
Justice Jackson: No, I appreciate, but Congress doesn't use superfluous words. When we interpret a statute, if it says "meets the requirements," it's doing something different, presumably, than "you are entitled," which is the way you're reading it.
Vivek Suri: I think that's giving the drafters of this statute a little too much credit, Justice Jackson.
Justice Jackson: All right. So what is (d) doing if not the swap?
Vivek Suri: (d) is providing two things. (d)(1) is stating that you cease to be entitled to one form of benefit and you -- you can start using the other form of benefit.
Justice Jackson: But why? I thought you said they were entitled to both. And what -- what -- why would a person do this? Or maybe the -- Official
Vivek Suri: Because Congress said this is the provision that must be used to coordinate.
Justice Jackson: I see. All right.
Vivek Suri: And -- and one last point if I may, Justice Jackson. It's notable that 3327(a)(1) also refers to individuals who don't have any Montgomery benefits in the first place. So this is in 3327(a)(1)(F), is a member of the armed forces who is not entitled to Montgomery benefits. So --
Justice Jackson: Right. Because a lot of people were -- were shuttled to this, right, from 3322(d)? There were lots of people, not only the Montgomery benefit people, but others get there.
Vivek Suri: I -- I think that defeats the conversion idea. These people have no benefits to convert, and yet they're covered by 3327.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Rebuttal, Mr. Tseytlin? Official 1 REBUTTAL ARGUMENT OF MISHA TSEYTLIN ON BEHALF OF THE PETITIONER
Misha Tseytlin: Thank you, Your Honor. My friend started with 3322(a). I think it's pretty remarkable that they appear to be basing their argument based on this provision that the -- the election in 3322(a) is a mandatory election, which is clearly in service of the concurrent usage bar, is -- doing completely different work than 3327. It is identical to the -- to the election mechanism in 33 -- in -- in 3033(a), and my friend doesn't say that that somehow shuttles somebody into 3327. In fact, the -- that provision strongly supports our position in two respects. One is the suggested difference between "may" and "shall"; and second is that their interpretation renders 3327 -- 3322(a)'s use of a mandatory bar on concurrent usage super -- superfluous because, under their reading of -- under -- of 3327, a veteran who's entitled to Montgomery and Post-9/11 either has to use up all their Montgomery benefits and -- to get to Post-9/11 or give up their Montgomery benefits Official 1 to use Post-9/11. Either way, concurrent usage would be impossible, which means that this entire provision would be superfluous. Second, 30 -- 3327 is plainly a swapping mechanism, and every provision, every subsection of 3327 points in that direction. We talk about (a). That's the voluntary election mechanism. My -- I heard my friend mention (a)(1)(F). That provision serves absolutely no function under his exhaustion view because that person has no Montgomery benefits to exhaust. With regard to (b), that -- that lets you stop paying. With regard to (c), that lets you revoke the transfer of Montgomery benefits because now they're so much more beneficial because you can trade them for Post-9/11 benefits. (d) is plain as day a swap. (f) lets you get your Montgomery payments back pro rata. Every single indication is that Congress was creating a swap mechanism, not an exclusive mechanism to invoke your 3311 entitlement, unless you've exhausted your -- your Montgomery benefits. Three, the number of veterans Official 1 impacted, my -- my friend says 30,000. That's just plain wrong. It's north of a million, and that's because their interpretation doesn't just cover those that are on 3327(d)(2), it also covers those that would be spit into 37 -- 37 -- to 3327(d)(1), which is how you get over -- over a million. You -- you heard my friend attempt to do back flips to try to get around how the exhaustion requirement makes any sense whatsoever, an unprecedented exhaustion requirement. And then, when he kind of hit a brick wall, he said, well, maybe the exhaustion requirement doesn't -- doesn't have to exist. Well, that just would put the VA into even more absurd land, where veterans who served before 9/11 used up all of their benefits, Montgomery benefits before 9/11, then felt the call after the September 11th attacks, would be entitled to no Post-9/11 benefits whatsoever? That's even more absurd than the absurd exhaustion concept. And then I will close on the following. All of these kind of back flips and whatnot are entirely unnecessary. The statute Official 1 should be read as what it says: 3311 gives you a plain-as-day entitlement. 3327 is a voluntary swap mechanism, does not limit that entitlement in any way. Read in that way, the statute has no superfluity, has no problems in it, and it plainly achieves the pro-veteran purposes for which Congress enacted the Post-9/11 GI Bill. Thank you, Your Honors.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:14 a.m., the case was submitted.)