[00:00:01] Speaker 04:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

[00:00:10] Speaker 03:
Good morning, ladies and gentlemen.

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We have five cases on the calendar this morning.

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Three of them are being submitted on the briefs and will therefore not be argued.

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And we have two argued cases.

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The first one is Volano versus Tran, 2019, 2319, Mr. Carpenter.

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Thank you, Your Honor.

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May it please the Court, Kenneth Carpenter appearing on behalf of Mr. Villano.

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An issue in this appeal is whether or not under the correct interpretation of the provisions of 38 USC 3033A1, those provisions are applicable to this case.

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The interpretation relied upon by the Veterans Court to affirm the denial of Mr. Villano's appeal misinterpreted the plain language of that statute.

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The secretary in his brief insists that Mr. Villano has not correctly read the language of the statute.

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Mr. Carpenter, there are several provisions here that contain the word concurrently.

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One can't be paid benefits concurrently from two programs.

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That's correct.

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Mr. Villano has already been paid.

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And last I read of the record, I don't think I saw that he paid it back.

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The only benefits that Mr. Villano received were improperly given to him by the secretary.

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And those benefits were under Chapter 33.

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The key to this case is whether or not the statute

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prohibits duplicative payment of Chapter 30 benefits, which he has not yet received, although the VA has found that he was eligible for receipt of those benefits.

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Under the interpretation relied upon by the Veterans Court, the Veterans Court reads out the following language from Section 33A1 that an individual entitled to educational assistance

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under a program established by this chapter, who is also eligible for educational assistance under a program under Chapter 31, 32, 33, or 35 of this title.

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Well, Mr. Villano was determined to have been entitled, wasn't he?

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He received a certificate of eligibility from the secretary

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or both the Montgomery GI Bill, which is under Chapter 30, and never paid.

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And he was also determined eligible for Chapter 33 benefits.

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This statute only applies to Chapter 31, 32, and 35.

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It does not apply to the award of Chapter 30 benefits.

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In this case, the Secretary has acknowledged

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his administrative error and never having granted Mr. Villano benefits under Chapter 35.

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Therefore, he will not.

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Mr. Carpenter?

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Mr. Carpenter, this is Judge Hughes.

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Yes, Your Honor.

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Would you agree if Mr. Villano had been eligible for both Chapter 30 and Chapter 33 benefits

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that he could only have gotten one, that Congress intended him only to get one set of benefits?

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Your Honor, I'm not sure that I would agree with that as it relates to this statute.

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This is the only statute that the board and the court relied upon.

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Under this statute, that is not a correct statement.

[00:04:19] Speaker 02:
Wait, so let me understand because I don't understand this argument at all.

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Suppose he's eligible for the Montgomery, the Chapter 30 benefits and he's also eligible for the Chapter 33 benefits.

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There's no dispute that he's eligible for both.

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Doesn't this statute bar him from receiving concurrent benefits under both statutes at the same time?

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No, Your Honor, it does not.

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This, based upon the language that I just read to Judge Laurie, and is clear and unambiguous in the language used by Congress, Chapter 30 is not covered.

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Only Chapter 31, 32, 33, or 35.

[00:05:07] Speaker 02:
And Congress did prohibit anyone who was eligible for... I'm sorry, isn't subsection A part of Chapter 30?

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Isn't that what we're talking about?

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I'm confused as to what we're talking about.

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We're talking about the award of benefits and the language used in Chapter 30 that talks about being eligible for both programs.

[00:05:45] Speaker 02:
Well, okay, let me... Can we look at the plain language then?

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I have your brief on page 17.

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It says an individual entitled to assistance established by this chapter, which I think is chapter 30, who is also eligible for assistance under those other chapters, may not receive assistance under two or more programs concurrently.

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Doesn't that say if you're eligible under

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30 but also eligible under these others, you can't receive them concurrently.

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That is correct.

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I'm just trying to establish a baseline here before we even get to your case.

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And you don't even seem to agree that Congress has prohibited concurrent receipt of benefits from two programs.

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Is that right?

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But Your Honor, what I am trying to get across is that this statute

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requires the veteran to be eligible under both... Well, that's what I'm trying to ask you.

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I'm trying to ask you a hypothetical, not this case.

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If a person... Well, I said that three or four times.

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If a person is eligible under 30 and under 33, and there's no dispute of his eligibility, this statute prohibits concurrent receipt.

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Is that correct?

[00:07:05] Speaker 00:
That is correct, Your Honor.

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I apologize.

[00:07:07] Speaker 02:
Okay.

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It took an awful long time to get there.

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Now my question is, do you think Congress would have intended duplicative benefit when the VA makes a mistake?

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I know you want to rely on a technical reading of the statute.

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I want to ask you about the intent behind this, and do you think Congress intended

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to essentially give a windfall to veterans when the VA makes a mistaken eligibility determination?

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Your Honor, I do not believe that this statute is clear on that question.

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What I do believe is is that by the Secretary's own concession of administrative error, they found correctly that Mr.

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Bolano was never eligible for Chapter 33 benefits.

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Can you answer my question about Congress's intent?

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I know you don't want to answer it, but do you think Congress... I know the statute is not clear in your view.

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I don't know that I agree, but do you think, again, let me just ask you one more time, if you don't want to answer, we move on, that given that Congress intended to bar duplicative benefits when you were eligible for both programs,

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that they would have intended to allow duplicative benefits when a mistaken eligibility determination is made.

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Since the statute does not address that question, Your Honor, I do not believe that that is a reasonable inference of the intent of Congress.

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This is Judge Chen.

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What about the title of Section 3033?

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It says barred the duplication of educational assistance benefits.

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Nobody's disputing here that Mr. Villano here, in fact, received educational assistance benefits under Chapter 33.

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He received it erroneously due to some administrative error by the VA.

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But he did, in fact, receive those educational assistance benefits under Chapter 33.

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He did, Your Honor.

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And he received those benefits because the Secretary specifically

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solicited his participation in that program.

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And he was never eligible under that program by the program's own terms.

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He was determined to be eligible by the VA, at least initially, right?

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Well, actually, in chronological order,

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His application was under the Montgomery Bill under Chapter 30, and he was found eligible, and they issued an eligibility certificate.

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The VA... I'm talking about for Chapter 33 benefits.

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Are you saying he was... the VA never recognized him as being eligible for Chapter 33 benefits at any point in time?

[00:10:11] Speaker 01:
No, they did, Your Honor, but they... Okay, that's what I was asking for.

[00:10:15] Speaker 00:
Okay.

[00:10:17] Speaker 01:
When I look at this overall provision 3033, I guess it seems like what the Veterans Court was thinking was is that when it uses the term eligible in the statute, it's talking about VA determinations of eligibility.

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When you look through the rest of the statute or provision, it says when an individual is eligible for more than one program of benefits, the veteran shall elect which program to receive educational assistance and may not receive assistance under two or more of such programs.

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And I'm just looking at the overall operational flow of the statute.

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And it does seem like the VA has to first determine which programs a veteran is eligible to receive benefits on in order for the veteran to elect which program under which he or she shall receive benefits.

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So there just seems to be some operational flow here.

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In order for the veteran to elect one of the two or more programs he's eligible for, the VA has got to figure out first which of those programs is he eligible for.

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And if I may, Your Honor, the record reflects at Appendix 233 that in November of 2005,

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the VA found him eligible for benefits under the Montgomery Bill, under Chapter 30.

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Four years later, on May 9, 2009, at Appendix 33 to 34, the Secretary also found him eligible for benefits under Chapter 33 for the post-911 GI Bill.

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Those benefits were not paid

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until some time later and the VA indicated to Mr. Villano that the post-9-11 benefits, which they had found him eligible for, paid him more and he did make that election to participate in the program that provided more benefits.

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After participating in that program and being paid in that program, the VA found that they had incorrectly determined his eligibility.

[00:13:17] Speaker 03:
But if that hadn't happened, if he was still found entitled to both, is it your view that he could have been paid both?

[00:13:31] Speaker 00:
No, Your Honor.

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It is my view that he can only be paid both when there is a finding, a determination made by the secretary himself that he made an error in finding him eligible and paying him benefits under Chapter 33 for which he was not eligible.

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That then negates the duplicative payment because the payment is predicated upon having been

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lawfully eligible for two programs.

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He was never lawfully eligible for two programs.

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The only program he has ever been lawfully eligible for is the Chapter 30 benefits.

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Could the VA have recouped the incorrect payment?

[00:14:21] Speaker 00:
No, Your Honor, they could not.

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And they did so voluntarily by informing him that because of their own administrative error, they would make no attempt to collect the monies that he was paid incorrectly under Chapter 33.

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But generally, I've seen in a lot of government pension cases that if a recipient receives money incorrectly,

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Obviously, through the error of the government, the recipient can be asked to repay it.

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But why not here?

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Because it was the secretary's concession of his own administrative error.

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As cited in the brief, there is a general counsel opinion that was binding on the board that said that if there was administrative error, then there could not be

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and overpayment and a collection of the monies incorrectly paid by the secretary.

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Therefore, we have a lack of technical eligibility and we have a waiver of the monies that were paid.

[00:15:33] Speaker 00:
The only program that Mr. Villano has been eligible for, he has never received benefits.

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What the lower court did was to project

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that because he was found entitled for the second time to these benefits under Chapter 30, that payment would result in a duplicative payment.

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But it cannot be a duplicative payment as a matter of law based upon the plain language of this statute.

[00:16:08] Speaker 03:
I have not heard the bell sound yet.

[00:16:12] Speaker 03:
You must be into your rebuttal time.

[00:16:15] Speaker 00:
Oh, OK.

[00:16:16] Speaker 00:
Well, then I will reserve the balance of my time, Your Honor.

[00:16:18] Speaker 00:
I did not hear the bell either.

[00:16:20] Speaker 03:
All right.

[00:16:21] Speaker 00:
But I will reserve the balance of my time.

[00:16:23] Speaker 03:
We will save it for you.

[00:16:27] Speaker 03:
Ms.

[00:16:28] Speaker 03:
Koenig, is it?

[00:16:30] Speaker 04:
Yes, Your Honor.

[00:16:31] Speaker 04:
Thank you.

[00:16:34] Speaker 04:
Good morning, Your Honors, and may it please the court.

[00:16:37] Speaker 04:
Mr. Villano's service entitled him to only $29,000 in Montgomery GI Bill benefits.

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However, instead, due to an administrative error, the VA paid Mr. Villano over $60,000 in post-9-11 GI Bill benefits.

[00:16:52] Speaker 03:
What is... Ms.

[00:16:52] Speaker 03:
Koenig, you sound like you're at a distance from the microphone.

[00:16:58] Speaker 04:
I apologize for that, Your Honor.

[00:16:59] Speaker 04:
Can you hear me better now?

[00:17:00] Speaker 03:
A little bit.

[00:17:04] Speaker 03:
Yeah, go ahead.

[00:17:05] Speaker 04:
Okay.

[00:17:07] Speaker 04:
On top of the 60,000 already received, Mr. Villano now seeks an additional 29,000 windfall for the same semesters of enrollment.

[00:17:16] Speaker 04:
But 38 USB 3033 prohibits such a duplication of benefits, and so we would ask the court to affirm the Veterans Court decision.

[00:17:24] Speaker 04:
As Your Honors were talking with Appellant's Council, the Statute 3033 clearly prohibits the receipt of

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of benefits under two or more programs concurrently.

[00:17:39] Speaker 04:
Those benefits being Chapter 33, the Montgomery GI Bill, and under Chapter 30, the Montgomery GI Bill, and Chapter 33, the Post-9-11 GI Bill.

[00:17:52] Speaker 04:
Mr. Villano here has been found, was found eligible for Chapter 33 benefits.

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He elected to receive Chapter 33 benefits.

[00:18:03] Speaker 03:
And he, in fact... He was found eligible, but he was not in law entitled, right?

[00:18:13] Speaker 04:
That is correct, Your Honor, but he was found eligible.

[00:18:16] Speaker 03:
But the statute reads entitled to.

[00:18:22] Speaker 04:
Well, Your Honor, actually the statute, section A1 of the statute states that an individual who is entitled

[00:18:29] Speaker 04:
to educational assistance under this chapter, aka Chapter 30, who is also eligible for assistance under Chapter 31, 32, 33, or 35, may not receive assistance under two or more of such programs concurrently.

[00:18:45] Speaker 04:
So it uses the term entitled to refer to Chapter 30 benefits, which he was entitled to, and uses the word eligible

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for entitlement or eligible for Chapter 33 as relevant here.

[00:19:02] Speaker 01:
And so Ms.

[00:19:03] Speaker 01:
Koenig, this is Judge Chen.

[00:19:04] Speaker 01:
I mean, this is really the rub of the case.

[00:19:07] Speaker 01:
How do we understand what the meaning of the word eligible is?

[00:19:11] Speaker 01:
This is what Mr. Villano's briefing zeroes in on.

[00:19:15] Speaker 01:
And your brief didn't really seem to engage with that question of how do we

[00:19:23] Speaker 01:
How are we supposed to think about the word eligible?

[00:19:26] Speaker 01:
Does it mean eligible in fact under the law?

[00:19:30] Speaker 01:
Or does it mean deemed eligible or found to be eligible by the VA?

[00:19:37] Speaker 01:
Either way, you can see I'm adding a few words into the statute under either competing interpretation.

[00:19:46] Speaker 01:
But if I was just parachuting in and someone said,

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you have to be eligible for educational assistance under Chapter 33, I would say, okay, what are those elements of eligibility to qualify for those?

[00:20:06] Speaker 01:
And if I meet those elements, then I'm eligible.

[00:20:10] Speaker 01:
That is to say I'm eligible in fact.

[00:20:14] Speaker 01:
Why is it necessarily so that I shouldn't think of the word eligible as it's used in 3033 in that way?

[00:20:22] Speaker 01:
and think about it, I guess, in some other way that you prefer.

[00:20:27] Speaker 04:
Well, Your Honor, as the record demonstrates, the VA determined Mr. Villano to be eligible for the Chapter 33 benefits.

[00:20:41] Speaker 04:
But I think the important point here is that he actually then received Chapter 33 benefits.

[00:20:49] Speaker 04:
The driving force behind the statute is the prohibition of the receipt of duplicative benefits, or as the statute states it, that a veteran may not receive assistance under both programs.

[00:21:01] Speaker 04:
So the determination of eligibility that the VA made allowed him to, in fact, receive Chapter 33 benefits.

[00:21:09] Speaker 04:
And it's that receipt of benefits that prohibits him from receiving benefits under Chapter 30.

[00:21:17] Speaker 04:
And we think that is the clear reading of, the clear way to read chapter 3033A1.

[00:21:26] Speaker 04:
But the, I think if the court were inclined to find that the statute were ambiguous, which we don't think it is, but the regulations additionally reinforce the point that the driving force is the receipt of benefits.

[00:21:44] Speaker 04:
Chapter 38 CFR,

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Section 21.7143 also states, Section A of that regulation states, payment of educational assistance shall not be duplicated.

[00:21:57] Speaker 04:
And it really reinforces the intent of the statute, the spirit of the statute that the prohibition here is on the receipt of duplicative benefits.

[00:22:12] Speaker 04:
So the determination of eligibility that the VA made, albeit erroneously back in 2009, allowed for Mr. Rivlano to actually receive benefits here.

[00:22:23] Speaker 04:
And that is what prohibits him from receiving the Montgomery GI Bill benefits that he now seeks.

[00:22:30] Speaker 01:
Ms.

[00:22:30] Speaker 01:
Koenig, how often are educational benefits awarded erroneously?

[00:22:38] Speaker 01:
Do you have any idea?

[00:22:40] Speaker 01:
in such a way that it creates the situation that Mr. Villano is in?

[00:22:48] Speaker 04:
Your Honor, unfortunately, I am not sure if I could give you a percentage of the time or a number of occurrences in which it happened, but the statute... I am just trying to figure out if this is some unfortunate, bizarre glitch.

[00:23:05] Speaker 04:
or maybe not so unfortunate in this case because Mr. Villano actually benefited from the error, but... Your Honor, I'm inclined to believe, again, this isn't a definitive statement of fact, but I'm inclined to believe that it's a relatively rare occurrence.

[00:23:21] Speaker 04:
I think the confusion here with Mr. Villano's eligibility stems from the fact that

[00:23:27] Speaker 04:
He had served in post-911, but due to the fact that he had gone to the, I believe it was the Air Force Academy, that his service was actually required post-911 versus voluntary service, which would have paid him for the post-911 GI Bill.

[00:23:46] Speaker 01:
Here's another question I have.

[00:23:49] Speaker 01:
What if, when Mr. Villano was told that he'd qualify for these post-911

[00:23:58] Speaker 01:
GI benefits, he was told, we'll give you $60,000.

[00:24:04] Speaker 01:
So you can do this or you can do the other one, the Montgomery GI bill, and you'll get $30,000 for that one.

[00:24:16] Speaker 01:
And Mr. Villana says, okay, I'll go with the post-9-11 GI bill benefits.

[00:24:21] Speaker 01:
But then after that election, maybe

[00:24:26] Speaker 01:
Four weeks later, the VA comes back and says, oh, sorry.

[00:24:30] Speaker 01:
Under the post-9-11 bill, you, GI Bill, you only get $7,000.

[00:24:37] Speaker 01:
So here's $7,000.

[00:24:39] Speaker 01:
There you go.

[00:24:41] Speaker 01:
Good luck.

[00:24:44] Speaker 01:
Could Mr. Villano return that $7,000 and say, OK, I don't want this one anymore.

[00:24:53] Speaker 01:
I want the other one, Montgomery.

[00:24:56] Speaker 01:
and so I want to return this post 9-11 money and get the Montgomery money.

[00:25:06] Speaker 01:
Could Mr. Villano have done that under the statute in my hypothetical?

[00:25:14] Speaker 04:
Your Honor, I believe that the statute addresses the situation or at least the regulation

[00:25:24] Speaker 04:
allows for the veteran to choose under which program they want to receive benefits, again, during the particular period in which the education or training is to be pursued.

[00:25:39] Speaker 04:
And the individual may choose to elect one program or the other, not more than once per

[00:25:53] Speaker 04:
term, quarter, or semester.

[00:25:54] Speaker 04:
So in your hypothetical, I believe that he may be able to change his election in a different semester, although I don't believe the statute allows for a veteran to change back and forth from one to the other.

[00:26:15] Speaker 01:
And I believe that... Even if it was, even if the desire to change

[00:26:20] Speaker 01:
change election is due to a VA administrative error.

[00:26:25] Speaker 01:
Because in my hypothetical, the VA informed Mr. Villano, well, we'll give you 60,000 for this post-11 GI bill benefits, but then a few weeks later said, sorry, we made a mistake.

[00:26:39] Speaker 01:
I know you've elected for this and you expected 60,000, but you're only getting seven.

[00:26:43] Speaker 01:
Here you go.

[00:26:46] Speaker 01:
You're saying he would be bound by that election.

[00:26:50] Speaker 04:
Your Honor, in the event of an administrative error, I don't know that Mr. Villano would be bound by the election in that case.

[00:26:58] Speaker 04:
I think the election issue may implicate some other statutes in this chapter, in these chapters, such as was raised in the Boe versus Loki case that was recently argued in this court.

[00:27:18] Speaker 04:
But I don't think that that case addresses the question that you're asking here about election due to an administrative error.

[00:27:26] Speaker 04:
In this case, again, it's not the election that's the driving force behind which benefits Mr. Villano was eligible for or received.

[00:27:36] Speaker 04:
It was actually, you know, again, the receipt of benefits that now prohibit him from receiving benefits.

[00:27:43] Speaker 04:
And so I apologize if I haven't answered your hypothetical sufficiently.

[00:27:48] Speaker 04:
But as is the case here, it isn't Mr. Villano's election, per se, that is the driving force behind the prohibition now on Chapter 30 benefits.

[00:28:06] Speaker 04:
Mr. Villano's reading of the statute here would essentially require the VA to compound this original end mistake by forcing it to

[00:28:17] Speaker 04:
double pay or we pay Mr. Bolano under both chapter 30 and chapter 33.

[00:28:25] Speaker 04:
And in our reading this would lead to an absurd result where simply due to an error the veteran would be allowed to receive benefits under both programs.

[00:28:39] Speaker 04:
And Judge Hughes I believe was asking the appellant about the intent of Congress and I don't think

[00:28:47] Speaker 04:
In fact, Bo states that when the reading would lead to an absurd result, we should be suspicious that that was Congress's intent.

[00:29:00] Speaker 04:
And I don't think it's reasonably read to be Congress's intent here to duplicatively pay solely due to an administrative error.

[00:29:08] Speaker 03:
Anything further, Council?

[00:29:16] Speaker 04:
Unless your honors have any further questions, no, I will rest on my briefs and arguments made here today.

[00:29:25] Speaker 03:
Thank you.

[00:29:26] Speaker 03:
Mr. Coppenter, you have five minutes if you need them.

[00:29:30] Speaker 00:
Thank you very much, Your Honor.

[00:29:32] Speaker 00:
May it please the Court, the government attempts to equate the terms used in the statute of entitlement and eligibility

[00:29:43] Speaker 00:
as somehow having different meanings.

[00:29:49] Speaker 00:
The prohibition under the statute is when there is an eligibility under both programs that the entitlement to payment is to only one of those payments.

[00:30:03] Speaker 00:
Mr. Villano is entitled to payment under chapter 30.

[00:30:09] Speaker 00:
He was never entitled to payment under chapter 33.

[00:30:14] Speaker 00:
Therefore, the statute should be read to have the single purpose of prohibiting duplicitous payments when there is an eligibility under both programs and there was never eligibility under chapters 33 by the secretary's own concession of administrative error.

[00:30:40] Speaker 00:
In other words, they made a mistake.

[00:30:42] Speaker 00:
There is no discussion in the statute about receipt, and the Secretary cannot rely upon his own regulation to infer that receipt is the standard when the standard outlined in the statute by Congress is one of entitlement to which there was only entitlement to one of these programs.

[00:31:06] Speaker 00:
Unless there are further questions, I'm happy to submit the matter.

[00:31:11] Speaker 03:
Thank you, Mr. Carpenter.

[00:31:12] Speaker 03:
We appreciate the arguments of both counsel and the cases submitted.

[00:31:17] Speaker 00:
Thank you, Your Honor.