Veteranclaims’s Blog

February 3, 2022

FedCir Order; Rudisill v. McDonough; 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?; What is the relation between the 48-month entitlement in 38 U.S.C. § 3695(a), and the 36-month entitlement in § 3327(d)(2), as applied to veterans such as Mr. Rudisill with two or more periods of qualifying military service?;

United States Court of Appeals for the Federal Circuit


JAMES R. RUDISILL,
Claimant-Appellee
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellant


2020-1637


Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-4134, Senior Judge Mary J.
Schoelen, Chief Judge Margaret C. Bartley, Judge Michael
P. Allen.


ON PETITION FOR PANEL REHEARING AND
REHEARING EN BANC


TIMOTHY L. MCHUGH, Troutman Pepper Hamilton
Sanders LLP, Richmond, VA, filed a response to the petition
for claimant-appellee. Also represented by DAVID
JOSEPH DEPIPPO, Dominion Resource Services Inc., Richmond,
VA.
GALINA I. FOMENKOVA, Commercial Litigation Brnach,
Civil Division, United States Department of Justice, Washington,
DC, filed a petition for panel rehearing and rehearing
en banc for respondent-appellant Denis McDonough.
Case: 20-1637 Document: 69 Page: 1 Filed: 02/03/2022
2 RUDISILL v. MCDONOUGH
Also represented by BRIAN M. BOYNTON, MARTIN F.
HOCKEY, JR; Y. KEN LEE, BRYAN THOMPSON, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.


United States Court of Appeals
for the Federal Circuit


JAMES R. RUDISILL,
Claimant-Appellee
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellant


2020-1637


Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-4134, Senior Judge Mary J.
Schoelen, Chief Judge Margaret C. Bartley, Judge Michael
P. Allen.


ON PETITION FOR PANEL REHEARING AND
REHEARING EN BANC


TIMOTHY L. MCHUGH, Troutman Pepper Hamilton
Sanders LLP, Richmond, VA, filed a response to the petition
for claimant-appellee. Also represented by DAVID
JOSEPH DEPIPPO, Dominion Resource Services Inc., Richmond,
VA.
GALINA I. FOMENKOVA, Commercial Litigation Brnach,
Civil Division, United States Department of Justice, Washington,
DC, filed a petition for panel rehearing and rehearing
en banc for respondent-appellant Denis McDonough.
Case: 20-1637 Document: 69 Page: 1 Filed: 02/03/2022
2 RUDISILL v. MCDONOUGH
Also represented by BRIAN M. BOYNTON, MARTIN F.
HOCKEY, JR; Y. KEN LEE, BRYAN THOMPSON, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.


Before MOORE, Chief Judge, NEWMAN, LOURIE, DYK,
PROST, O’MALLEY, REYNA, TARANTO, CHEN, HUGHES,
STOLL, and CUNNINGHAM, Circuit Judges.
PER CURIAM.
ORDER
Appellee, the Secretary of Veterans Affairs (“Secretary”),
filed a Combined Petition for Panel Rehearing and
Rehearing en banc. A response to the petition was invited
by the court and filed by Appellant James R. Rudisill. The
petition and response were considered by the panel that
heard the appeal and thereafter referred to the circuit
judges in regular active service. A poll was requested and
taken, and the court decided that the appeal warrants en
banc consideration.
Accordingly,
IT IS ORDERED THAT:
(1) The petition for panel rehearing is denied.
(2) The petition for rehearing en banc is granted.
(3) The panel opinion in Rudisill v. McDonough, 4
F.4th 1297 (Fed. Cir. 2021) is vacated, and the appeal
is reinstated.
(4) The parties are requested to file new briefs. The
briefs should address the following questions:
a. 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?
Case: 20-1637 Document: 69 Page: 2 Filed: 02/03/2022
RUDISILL v. MCDONOUGH 3
b. What is the relation between the 48-month
entitlement in 38 U.S.C. § 3695(a), and the
36-month entitlement in § 3327(d)(2), as applied
to veterans such as Mr. Rudisill with
two or more periods of qualifying military
service?
(5) The Secretary’s en banc opening brief is due 60
days from the date of this order. Mr. Rudisill’s en
banc response brief is due within 45 days of service
of the Secretary’s en banc opening brief, and the
Secretary’s reply brief within 30 days of service of
the response brief. The court requires 30 paper
copies of all briefs and appendices provided by the
filer within 5 business days from the date of electronic
filing of the document. The parties’ briefs
must comply with Fed. Cir. R. 32(b)(1).
(6) The court invites the views of amici curiae. Any
amicus brief may be filed without consent and
leave of court. Any amicus brief supporting Mr.
Rudisill’s position or supporting neither position
must be filed within 14 days after service of Mr.
Rudisill’s en banc opening brief. Any amicus brief
supporting the Secretary’s position must be filed
within 14 days after service of the Secretary’s en
banc response brief. Amicus briefs must comply
with Fed. Cir. R. 29(b).
(7) Oral argument will be held at a time and date to be
announced later.
February 3, 2022
Date
FOR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
Case: 20-1637 Document: 69 Page: 3 Filed: 02/03/2022

Before MOORE, Chief Judge, NEWMAN, LOURIE, DYK,
PROST, O’MALLEY, REYNA, TARANTO, CHEN, HUGHES,
STOLL, and CUNNINGHAM, Circuit Judges.
PER CURIAM.
ORDER
Appellee, the Secretary of Veterans Affairs (“Secretary”),
filed a Combined Petition for Panel Rehearing and
Rehearing en banc. A response to the petition was invited
by the court and filed by Appellant James R. Rudisill. The
petition and response were considered by the panel that
heard the appeal and thereafter referred to the circuit
judges in regular active service. A poll was requested and
taken, and the court decided that the appeal warrants en
banc consideration.
Accordingly,
IT IS ORDERED THAT:
(1) The petition for panel rehearing is denied.
(2) The petition for rehearing en banc is granted.
(3) The panel opinion in Rudisill v. McDonough, 4
F.4th 1297 (Fed. Cir. 2021) is vacated, and the appeal
is reinstated.
(4) The parties are requested to file new briefs. The
briefs should address the following questions:
a. 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?
Case: 20-1637 Document: 69 Page: 2 Filed: 02/03/2022
RUDISILL v. MCDONOUGH 3
b. What is the relation between the 48-month
entitlement in 38 U.S.C. § 3695(a), and the
36-month entitlement in § 3327(d)(2), as applied
to veterans such as Mr. Rudisill with
two or more periods of qualifying military
service?
(5) The Secretary’s en banc opening brief is due 60
days from the date of this order. Mr. Rudisill’s en
banc response brief is due within 45 days of service
of the Secretary’s en banc opening brief, and the
Secretary’s reply brief within 30 days of service of
the response brief. The court requires 30 paper
copies of all briefs and appendices provided by the
filer within 5 business days from the date of electronic
filing of the document. The parties’ briefs
must comply with Fed. Cir. R. 32(b)(1).
(6) The court invites the views of amici curiae. Any
amicus brief may be filed without consent and
leave of court. Any amicus brief supporting Mr.
Rudisill’s position or supporting neither position
must be filed within 14 days after service of Mr.
Rudisill’s en banc opening brief. Any amicus brief
supporting the Secretary’s position must be filed
within 14 days after service of the Secretary’s en
banc response brief. Amicus briefs must comply
with Fed. Cir. R. 29(b).
(7) Oral argument will be held at a time and date to be
announced later.
February 3, 2022
Date
FOR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
Case: 20-1637 Document: 69 Page: 3 Filed: 02/03/2022

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