Hambidge v. McDonough, Case Numbers 23-2589, decided March 13, 2024 involves a request for injunctive relief to prevent the Secretary from applying 38 CFR 21, 4020 to limit continued entitlement to post-9/11 GI Bill education benefits while the administrative appeal proceeded.
The veteran used Survivors and Dependents Education Assistance for which he was entitled to for his father’s service. After graduation, the veteran served for a decade and then upon discharge enrolled in an MBA program. Before enrolling in the MBA program, the veteran filed a claim for chapter 33 benefits based on his Army service. He was told he was entitled to the benefits, but only 7 months and 5 days of them. The veteran requested an audit detailing his use of chapter 35 benefits and was told by the VA that per 38 CFR 21.4020 the aggregate period for which a person may receive education benefits assistance under an y combination of VA education programs may not exceed 48 months. Because he had received 40 months and 25 days for his undergraduate degree, he only had the remaining 7 months and 25 days.
The veteran appealed to the Board and requested the claim be advanced due to the fact he would otherwise be graduated before the Board decided the claim. The veteran then filed for the injunction before the Court.
Next, the RO issued a new COE which notified the veteran “that he was "entitled to receive 100% of the benefits payable under the Post-9/11 GI Bill program for training offered by an institution of higher education" and therefore had 33 months and 15 days of full-time chapter 33 education benefits remaining.” Id. at *2. As a result, the VA argued the request for an injunction was moot.
The Court determined that the “VA's regulation is inconsistent with section 3695; the Secretary all but concedes as much in his response. See Secretary's June 26, 2023, Response at 8 ("while the RO erroneously withheld benefits originally"), ("the Veteran's Benefits Manual M22-4 instructs ROs to adjudicate education benefits based on the statutory entitlements, to include the 81-month limit for receiving assistance under Chapter 35 and other Chapters"), at 9 ("Indeed, the RO has corrected the error."), at 10 ("internal VA guidance is to administer educational benefits based on the statute, to include the 81-month limit for receiving assistance under Chapter 35 and other Chapters"). And the Secretary's actions in this case, namely having the RO issue a revised COE and granting Mr. Hambidge full entitlement to chapter 33 benefits by ignoring the regulation's 48-month cap, speak even louder. Like Mr. Hambidge, the Court is baffled by the Secretary's failure to revise § 21.4020 to reflect the changes that Congress made to section 3695 a dozen years ago.”
However, the Court then found the veteran was not entitled to a writ because he has adequate alternative means to obtain the relief he requested. The Court also downplayed any concern the updated COE would not be enforced and his benefits granted.
Still, the Court noted it was “troubled by VA's inaction on this issue. Most troubling has been its ongoing failure for more than a decade to revise § 21.4020 to reflect the changes to section 3695. As it stands, the regulation is flatly inconsistent with the statute. Remarkably, even as this petition brought that inconsistency front and center, there has been no formal notice by the Agency of its intention to amend § 21.4020 or even an informal representation to the Court that such efforts were underway. Mr. Hambidge's case demonstrates the dangers of VA's inaction on this legal issue. Nonfeasance is not too harsh a word to use in this context. The fact that Mr. Hambidge can challenge the regulation via his administrative appeal and will not suffer irreparable harm while he pursues that remedy suffice to make injunctive relief inappropriate here. But the Court strongly urges the Secretary to take corrective steps so that other veterans like Mr. Hambidge are not wrongly penalized by § 21.4020.” Id. at *6.
Judge Falvey wrote a concurrence explaining he narrowly views the Court’s jurisdiction as to writs.
Judge Jaquith wrote a dissenting opinion in which he argued a writ should be granted. Judge Jaquith’s first point is to refute Judge Falvey’s point, as he argues the All Writs Act allows writs to aid in a court’s prospective jurisdiction in the face of action that would frustrate such prospective appellate jurisdiction. He also argued mootness should not be a bar to the Court’s granting a writ. He then noted “I join the majority in "strongly urg[ing] the Secretary to take corrective steps so that other veterans like Mr. Hambidge are not wrongly penalized by § 21.4020." Id. But the circumstances here warrant more than concern and exhortation. I would grant Mr. Hambidge a preliminary injunction to preserve the status quo pending the resolution of his appeal.”
This is a decision relevant to a limited set of facts. However, it highlights the divide in the Veterans Court. It appears most judge are very reluctant to grant a writ even in the face of troubling action by the VA whereas some are more willing to grant such writs.
Decision by Judge Toth and joined in by Judge Falvey. Dissent by Judge Jaquith.
To know more about whether Thomas Andrews can help you, please visit my website.
