Legal Docket: Veterans benefits and a grammar dispute

NICK EICHER, HOST: It’s The World and Everything in It for this 27th day of November, 2023. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

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EICHER: Speaking of resources, we do devote (and by “we,” Mary, I mean you and your team of legal experts. I’m just along for the ride) but we do devote significant resources to helping you understand our constitutional legal system. So let’s get at that straight away, because it’s time for Legal Docket, where we cover every single oral argument heard by the U.S. Supreme Court.

The justices are back on the bench today after a two week break. Seven arguments are scheduled for this next part of the session. That includes addressing the opioid crisis. The Court is tackling a high-profile bankruptcy case involving the makers of OxyContin, Purdue Pharma. Additionally, it’s addressing the scope and meaning of the government’s power to tax given in the 16th Amendment in a tax case we’ll be telling you about.

But today, we’ll cover two oral arguments heard by the U.S. Supreme Court this month.

The first one is titled Rudisill v McDonough.

RIEHCARD: James Rudisill is a decorated U.S. Army veteran who served three different times, starting before the 9/11 terrorist attacks through 2011.

As such, Rudisill is entitled to a benefit program enacted in 1984, called the Montgomery GI Bill.

Another more generous benefit enacted in 2008 is called the Post 9/11 Bill.

Each offers “x” number of months of education benefits and Rudisill wants to access both up to a four-year maximum.

EICHER: But the federal government argues Rudisill must choose one or the other. Not both at the same time.

In legal parlance, he must make an “election” between the two. Here’s government lawyer Vivek Suri:

VIVEK SURI: This is explicit in the text of Section 3322(a). 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.”

REICHARD: Seems straightforward enough. And the government says Rudisill would need to “exhaust” the first program benefit before he could claim the second one.

But Rudisill’s lawyer Misha Tsytlin says the government is shortchanging veterans. He points to other language within the same law requiring a different analysis:

TSYTLIN: Congress awarded veterans who served after the September 11th attacks with an entitlement to wartime benefits befitting their wartime service.

With all respect, a “may elect” clause is simply not—not how Congress revokes clear statutory entitlements and certainly not in the Byzantine manner that the VA suggests. Further, the exhaustion requirement that is—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 having served the nation longer.

REICHARD: The crux of the problem comes down to what Congress meant by the words “may” and “shall” in this and other statutes on the books.

Listen to this exchange between Justice Neil Gorsuch and government lawyer Suri. Parts of the law say “may” and other parts say “shall:”

GORSUCH: So why isn’t it an option to a veteran simply not to elect at all?

SURI: The reason that doesn’t work—

GORSUCH: “May” usually means “may,” doesn’t it?

SURI: I agree that “may” means “may.”

GORSUCH: And “may”—“may” implies normally that you don’t have an obligation to do anything, right?

EICHER: Chief Justice John Roberts seemed to think the government’s argument didn’t pass the smell test.

ROBERTS: Well, but that still doesn’t make all that much sense because he’s getting those other benefits because he had—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, 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.

Justice Brett Kavanaugh pointed out that benefits can’t be unlimited. But his colleagues seemed more worried about harming a veteran. Justice Elena Kagan put it this way:

KAGAN: It just seems utterly arbitrary.

REICHARD: I think the government is going to take a haircut on this one. If so, nearly two million veterans could access more taxpayer-provided tuition money for college.

We’re covering two cases, so here’s our last one for today, dealing with credit reports. The question this case presents is whether the federal government can be sued for violating the federal law that governs credit reports.

Here are the facts: Reginald Kirtz says he’s paid off loans he had from the U.S. Department of Agriculture. But his credit report reflected that he had loans that were past due.

Kirtz notified the credit report company TransUnion, which as required by law notified the federal agency. But he got no response, and meantime his credit score stayed low.

EICHER: If this had been a private lender, Kirtz could sue in federal court. He’d have that right under the Fair Credit Reporting Act. It regulates credit reporting and protects consumer privacy. But Kirtz wants to sue a government agency lender.

The government claims sovereign immunity, and therefore immune from any lawsuit to force compliance with the law.

Lawyer Nandan Joshi represents Kirtz:

JOSHI: The Fair Credit Reporting Act imposes civil liability on any person that negligently or willfully fails to comply with FCRA's requirements. It expressly defines "person" to include any government agency. The term "person" is equivalent to its definition, and when FCRA's definition of "person" is plugged into FCRA's civil liability provisions, those provisions create causes of action against federal agencies that are clear and specific enough to waive sovereign immunity.

But lawyer Benjamin Snyder for the government framed the question differently:

SNYDER: The question in this case is whether Congress unambiguously waived the sovereign immunity of the United States when it amended the Fair Credit Reporting Act in 1996 to provide that any person who violates FCRA's requirements is liable for money damages. The answer to that question is no.

REICHARD: Going on to say we know Congress didn’t waive sovereign immunity because there are no “overwhelming implications” to justify it.

Maybe so, but Justice Clarence Thomas went back to basics:

THOMAS: Mr. Snyder, the -- putting aside sovereign immunity, the statute refers to -- defines a person as any individual, et cetera, and any government or governmental subdivision or agency. Putting aside the issue of sovereign immunity, wouldn't that suggest that it applies to the -- the U.S. Government?

SNYDER: So we accept that that's a plausible reading.

A plausible reading, but not the correct reading. Snyder argued what’s needed is something explicit. For example, the statute saying, “The United States is not immune from liability.”

Yet Justice Elena Kagan wasn’t buying it:

KAGAN: You know, it’s statutory interpretation 101 that we take a defined term, we plug the definition in, and that’s what the meaning of the statute is. So that’s what the meaning of the statute is.

SNYDER: So, Justice Kagan, if the question here were just what the meaning of the words in the cause of action were, I—I would agree with you.

But, here, you’re not asking just what do the words mean; you’re asking about the necessary logical implication of what Congress has done.

KAGAN: Well, the—the necessary logical implication of what Congress has done is authorize a suit against people, persons, as defined in the definitions section. Then you go to the definitions section, and then you discover that what Congress has done is authorize a suit against natural persons, enterprises, and governments.

EICHER: Snydner’s argument for sovereign immunity gained some traction with Justice Samuel Alito. Listen:

ALITO: This may be a frolic and a detour, but have there been real cases in which the United States has criminally prosecuted itself?

SNYDER: I am not aware of any.

ALITO: I mean, if—if such a case came here, what would—it’s Monday morning. (Laughter.) I’m having trouble getting a grasp on this. How would this work? You would be arguing on one side and one of your colleagues would be on the other side, and you’d be arguing against each other?

REICHARD: And Chief Justice Roberts questioned the consequence of that in this exchange with Joshi for the aggrieved Kirtz:

ROBERTS: I think it’s an unavoidable consequence of your interpretation that the statute authorizes criminal prosecution of the United States. Now, if there were such a prosecution and the United States were convicted, what would the pre-sentencing report look like? (Laughter)

I’ll not venture a guess on how this one’ll turn out. It could literally go either way. Good arguments on both sides.

And that’s this week’s Legal Docket!

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