Rudisil: Motions Practice Before the Court, the Court's Inherent Authority

Rudisill v. McDonough, Opinion Number 16-4134, was decided May 7, 2021 and involves motion practice before the Court.

Substantively, the case dealt with the interplay of the Montgomery GI Bill (MGIB) and the Post-9/11 GI Bill Education program.  The Court had previously found veterans with two separate periods of qualifying service, may obtain the full benefits of both the MGIB and Post-9/11 GI Bill, subject to a 36-month cap on utilization of each of the two separate programs and a 48-month cap overall.   The Court also found a veteran with more than one period of separately qualifying service need not relinquish or exhaust entitlement under the MGIB program before receiving education benefits under the Post-9/11 GI Bill program.  Id. at *2.

The Secretary appealed the decision and requested the Veterans Court stay the effect of the decision until the Federal Circuit had ruled.  The Veterans Court denied the motion.  To this day the Federal Circuit appeal remains pending. 

Finally, the veteran filed a motion asking the Court to direct the BA to provide him his additional Post-9/11 GI Bill benefits pending final resolution of the case.  The Secretary urged denial and argued the Court did not have jurisdiction. 

The Court ruled it did have jurisdiction to address the issue and has the inherent authority to grant the motion.

As to jurisdiction, the Court noted “Because the Secretary has appealed the August 15, 2019, precedential decision, it might appear at first glance that we lack jurisdiction to consider appellant's Motion. But we do not. Appellant asks only for what we have already decided he is entitled to under statute.”  Id. at *3.

The Court elaborated:

Rather, here, we will do no more than comport with our clear precedent that "we retain jurisdiction over the enforcement of our decisions even after we no longer have jurisdiction over the merits of a case because it has been appealed to the Federal Circuit."12 Again, appellant moves only for what we have already decided he is entitled to under statute, pending the Federal Circuit's decision. In other words, he seeks to enforce our prior decision. His Motion does not change the merits questions currently pending the Federal Circuit's review. Therefore, despite the pendency of the Federal Circuit appeal, we conclude that we have jurisdiction to address appellant's Motion because it concerns the enforcement, not the merits, of our prior decision.

Id. at *3-4.

The Court then determined it had authority to grant the motion.  It initially determined Rule 8 of the Court rules did not have the Court such authority.  Id. at *4. 

As to its inherent authority, the Court noted its prior decision in Ribaudo v. Nicholson (Ribaudo I), 20 Vet. App. 552 (2007).  The Court then stated:

To determine whether we should grant appellant's motion for an injunction pending the Federal Circuit's decision, we consider four factors: (1) whether appellant is likely to succeed on the merits; (2) whether appellant is likely to suffer irreparable harm in the absence of injunctive relief; (3) whether the balance of equities tip in his favor; and (4) whether the injunction is in the public interest.

 

Id. at *7.  The Court noted the panel disagreed about the likelihood of success on the merits, but overall agreed the result was in favor of granting the motion.  The Court then ordered the Secretary to pay the veteran.

Chief Judge Bartley concurred and further addressed the likelihood of success on the merits.

This motion decision is indicative of the VA.  Even when a veteran wins and the Court says the effect of the decision is not stayed, the VA will still fight not to give what is due.  I am glad the Court intervened and granted the motion in this case.

Opinion by Judge Allen and joined by Judge Schoelen with a concurrence by C.J. Bartley.

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