UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 16-4134

JAMES R. RUDISILL, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before BARTLEY, Chief Judge, ALLEN, Judge, and SCHOELEN1, Senior Judge.

O R D E R

ALLEN, Judge, filed the opinion of the Court. BARTLEY, Chief Judge, filed a concurring 

opinion.

ALLEN, Judge: Pending before us is appellant's opposed motion for an injunction pending 

appeal (Motion). After careful consideration, and for the reasons we will explain below, (1) we 

conclude we have jurisdiction to consider the Motion; (2) we conclude that though the Motion is 

not contemplated under our Rules of Practice and Procedure, we have the inherent authority to 

manage our own proceedings as circumstances require, including as relevant here, to enforce our 

judgments; and (3) we have analyzed the Motion on the merits, and we will grant appellant the 

relief he seeks.

We begin by reviewing the history of this matter's proceedings, which substantially affect

our analysis of the Motion. Though the parties are familiar with the course of proceedings, we 

want to ensure that everyone is on the same page. We then turn to questions of jurisdiction and the 

propriety of the Motion under our Rules and our inherent authority. Finally, we address the parties' 

arguments on the merits and explain why we will grant the Motion.

I. PROCEDURAL HISTORY

We need not exhaustively recite this case's history. A few key developments set the stage 

for our analysis and explanation of our grant of the Motion. 

On August 15, 2019, after pre-argument briefing, oral argument, and supplementalauthorities briefing postargument, the Court issued a split-panel precedential decision. As relevant 

to the Motion before us, and after extensive statutory and regulatory interpretation, the Court 

reversed the Board decision on appeal and remanded the matter, holding:

2

 

1

Judge Schoelen is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC.

ORDER 04-21 (Jan. 4, 2021). Judge Schoelen was assigned this panel case before she became a Senior Judge.

2 All the cited provisions of our August 2019 opinion appear in BO v. Wilkie, 31 Vet.App. 321 (2019). At the time of 

our earlier decision, the appellant's identity was sealed and the matter progressed under the designation "BO." We 
2

• Appellant, and others like him with two separate periods of qualifying service, may 

obtain the full benefits of both the Montgomery GI Bill education program (MGIB), 

chapter 30 of title 38 of the United States Code, and the Post-9/11 GI Bill education 

program (Post-9/11 GI Bill), chapter 33 of that title, subject to a 36-month cap on 

utilization of each of the two separate programs and a 48-month cap overall.

• Under statute, a veteran such as appellant 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. 

On October 7, 2019, the Secretary moved for reconsideration and, alternatively, en banc

review. That same day, the Secretary also moved to stay the precedential effect of our August 2019 

decision. On October 18, 2019, appellant responded to the motion to stay. 

On November 4, 2019, we denied the Secretary's motion for reconsideration and held the 

motion for en banc review in abeyance. On December 11, 2019, the full Court denied the 

Secretary's motion for en banc review.

And on January 7, 2020, we denied the Secretary's motion to stay the precedential effect 

of our August 2019 decision. We considered the motion under Rule 8 of our Rules of Practice and 

Procedure and the Ribaudo3factors. We denied it because we "conclude[d] that the Secretary ha[d]

not carried his burden of demonstrating that a stay of the precedential effect of our decision is 

warranted."4 We explained that, "[a]lthough the panel members disagree as to whether the 

Secretary has a strong likelihood of success on the merits of an appeal, we agree that the remaining 

factors weigh against granting a stay of precedential effect in this case."

5 That same day, we 

entered judgment.

On March 6, 2020, the Secretary filed his appeal to the Federal Circuit. That appeal remains 

pending. The Federal Circuit has received briefing and that court heard argument on December 9, 

2020.

On March 5, 2021, appellant filed the present Motion under Rule 8 of our Rules, as well 

as under the Federal Rules of Appellate Procedure, asking the Court to "direct the Secretary to 

provide him with the additional Post-9/11 GI Bill benefits called for by BO v. Wilkie, 31 Vet. App. 

321 (2019), pending final resolution of this case."6 The Secretary responded to the Motion on April 

2, 2021, urging the Court to deny it, citing both jurisdictional and merits concerns.7 On April 5, 

 

lifted the seal on appellant's motion after we issued our decision.

3 Ribaudo v. Nicholson (Ribaudo II), 21 Vet.App. 137, 140 (2007) (en banc) (per curiam).

4 Order 2, Rudisill v. Wilkie, No. 16-4134 (Jan. 7, 2020).

5

Id. (citation omitted).

6 Appellant's Motion (Mot.) at 1.

7 Sec'y's Response (Resp.) at 1-9.
3

2021, appellant sought leave to reply and the Secretary opposed. We granted leave to reply on 

April 13, 2021. 

For the reasons that follow, we conclude that we have jurisdiction to address the Motion. 

Moreover, though appellant's Motion is not contemplated under Rule 8, we conclude that we have 

the inherent authority to manage our own proceedings as circumstances require, so we will address 

the Motion on its merits. And, as to the merits, we conclude that appellant has made the showing 

necessary to justify extraordinary relief. So, we will grant the requested injunction.

II. JURISDICTION AND PROPRIETY UNDER THE RULES

We begin with our jurisdiction to consider appellant's Motion. The Secretary insists that 

we lack jurisdiction to consider the Motion. Up front, as the Secretary points out, we acknowledge 

that "[t]he filing of a notice of appeal is an event of jurisdictional significance—it confers 

jurisdiction on the court of appeals and divests the [lower] court of its control over those aspects 

of the case involved in the appeal."8

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.9 And he does 

not ask us to exercise "control over those aspects of the case involved in the appeal" currently 

pending at the Federal Circuit by, say, moving to vacate, alter, or amend the judgment.

10 Therefore, 

addressing appellant's Motion poses no "danger" that both we and the Federal Circuit "would be 

simultaneously analyzing the same judgment," which generally serves as the reason why filing a 

notice of appeal functions as an event of jurisdictional significance.11

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 

 

8 Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982).

9

See Burris v. Wilkie, 888 F.3d 1352, 1359 (Fed. Cir. 2018) (precluding only veterans from "obtain[ing], on equitable 

grounds, monetary relief that they are not otherwise eligible to receive under substantive statutory law" (emphasis 

added)). Therefore, the Appropriations Clause poses no issue here, until and unless the Federal Circuit reverses our 

decision on appeal. See U.S. CONST. art. I, § 9, cl. 7; OPM v. Richmond, 496 U.S. 414, 424 (1990). As for the 

Secretary's point about finality and 38 U.S.C. § 7291, we think our discussion about Tobler v. Derwinski, see infra

Section III.A, addresses the Secretary's concern. Nothing in section 7291 bars us from granting what is here the 

equivalent of a preliminary injunction pending the Federal Circuit's decision on appeal.

10 See Griggs, 459 U.S. at 58 (discussing those types of motions as the causes for concern regarding concurrent 

jurisdiction).

11 Id. at 58-59 (emphasis added).

12 Ribaudo II, 21 Vet.App. at 139-40 (emphasis added) (overruling "[a]ny panel opinion by this Court suggesting 

otherwise").
4

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.

But that conclusion does not end our inquiry. The Motion must also be appropriate under 

our Rules or some other authority. We conclude that our Rule 8, the vehicle appellant relies on to 

bring the Motion,13 does not authorize the Motion. There is a serious question (1) whether Rule 8 

contemplates a motion for an injunction to compel the Secretary to do something affirmatively,

and (2) even if does, whether Rule 8 contemplates a motion made after an appeal has been taken 

to the Federal Circuit.

14 We conclude that Rule 8 does not contemplate the type of motion that 

appellant makes here. But we also conclude that we have inherent authority to manage our own 

proceedings as circumstances require, including enforcing our judgments. So, we will consider the 

Motion to have been made under that authority.

Turning first to Rule 8, it provides as follows:

After an appeal or petition has been filed, a party seeking a Court order to 

suspend action by the Secretary or the Board or the precedential effect of 

a decision of this Court pending its appeal shall submit for filing with the 

Clerk a motion [to that effect].[15]

First we consider whether Rule 8 contemplates a motion for an injunction to compel the 

Secretary to do something affirmatively. We know that Rule 8 explicitly contemplates a motion 

by "a party seeking a Court order to suspend action by the Secretary or the Board."16 The Rule's 

 

13 Appellant also cited Rule 8 of the Federal Rules of Appellate Procedure. But those rules do not apply in this Court.

Bailey v. West, 160 F.3d 1360, 1367 (Fed. Cir. 1998) (stating that the Federal Rules of Appellate Procedure "govern 

appeals from Article III district courts and are inapplicable to the Court of Veterans Appeals, an Article I court"),

overruled on other grounds by Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009), rev'd and remanded sub nom. 

Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011). "The proceedings of the Court of Appeals for Veterans 

Claims shall be conducted in accordance with such rules of practice and procedure as the Court prescribes." 38 U.S.C.

§ 7264(a); see also Bailey, 160 F.3d at 1367 (quoting and citing § 7264(a)). 

To the extent that appellant cites Federal Rule of Appellate Procedure 8 for persuasive value and invokes

Ribaudo v. Nicholson (Ribaudo I), 20 Vet.App. 552 (2007) (en banc), to explain how we could consider a motion not 

contemplated by our Rules,see Appellant's Mot. at 1, 4, those arguments are addressed in more detail below. See infra 

p. 5.

14 The Court is not sure whether the Secretary intended to argue only the initial jurisdiction point we already discussed, 

supra Section I, or also the scope of Rule 8 as to the motion's timing. See Sec'y's Resp. at 2 (discussing appellant's 

citation to Rule 8 and "concurrent jurisdiction" in the same paragraph), 3 ("Rule 8 does not run contrary to the general 

prohibition on jurisdiction over the same matter not existing in two places at once."). So the Court acknowledges both 

arguments. To the extent that the Secretary argues that appellant's Motion is not proper in this Court because an appeal 

is pending at the Federal Circuit, this Court notes that, though the context is certainly different, at best the Secretary 

comes awfully close to advancing conflicting positions in this case and in Wolfe as to whether a motion filed after a 

party has appealed to the Federal Circuit falls under Rule 8's scope. See Sec'y's Resp. to Court's Mar. 10, 2021, Order, 

Wolfe v. Wilkie, No. 18-6091 (Mar. 22, 2021) (arguing that his Motion was proper under Rule 8 even though his appeal 

was pending at the Federal Circuit); see also Sec'y's Mot. to Suspend Secretarial Action, Wolfe v. Wilkie, No. 18-6091 

(Jan. 22, 2021). 

15 U.S. VET. APP.R. 8(a).

16 Id.
5

plain language does not say anything about a motion for an "injunction." Were we to try to 

shoehorn appellant's Motion into Rule 8, we suppose we could characterize the Motion as a motion 

seeking a Court order to suspend the Secretary's or the Board's withholding from appellant Post9/11 benefits that our precedential decision awarded him. But we don't think that characterization, 

though not an impossible construction of Rule 8, is a natural reading of its language. Therefore, 

we will afford the Rule its natural reading and hold that Rule 8 does not contemplate appellant's 

Motion. And given that, we need not address the timing question. Appellant cannot make his 

Motion under Rule 8.

But we may still consider appellant's Motion because we have inherent authority to manage 

our own proceedings as circumstances require, including with respect to the enforcement of 

judgments.17 In fact, this Court has already held en banc, in Ribaudo I, that we have inherent 

authority to hear a motion not contemplated by our Rules going to the enforcement of our 

judgments. There, faced with a situation not contemplated by our Rules, regarding a stay of 

precedential effect of a decision by this Court, the Court followed how "other Federal courts" 

handled such a situation and

[t]o that end . . . adopt[ed] the principle that underlies Rule 8(a) of the Federal Rules 

of Appellate Procedure and the adaptation of that rule by Federal Circuit Rule 8(a), 

namely "that the immediately subordinate tribunal has jurisdiction to act on a 

motion for a stay" even in a case where a Notice of Appeal has been filed seeking 

review in the Federal Circuit.[18]

To be sure, we acknowledged that Federal Circuit Rule 8(a) speaks in terms of a "trial Court," 

which we are not.19 And we "[did] not presume to interpret the Federal Circuit's Rules for it."20

Nevertheless, "we [saw] no reason not to follow the universally accepted Federal practice that a 

motion for a stay or injunction pending appeal first be sought in the subordinate court."21 Those 

holdings make sense only as an articulation of the inherent power we possess as a court to enforce 

and regulate our judgments. To put it simply, because appellant's Motion concerns enforcement of 

our judgment, just as the Ribaudo I motion to stay did, Ribaudo I assures us that we can properly 

consider appellant's Motion, even if Rule 8 does not contemplate the Motion. So we will proceed 

to consider the merits of appellant's Motion.

 

17 See Monk v. Shulkin (Monk II), 855 F.3d 1312, 1318 (Fed. Cir. 2017) (holding that this Court has "authority to

certify and adjudicate class action cases" "under the All Writs Act, other statutory authority, and the Veterans Court's 

inherent powers"); see also Skaar v. Wilkie, 32 Vet.App. 156, 177-78 (2019) (citing Monk IIfor "our inherent authority 

. . . [and 38 U.S.C. § 7264(a) for] our ability to craft rules of practice and procedure"); Ribaudo I, 20 Vet.App. at 559-

60 (2007) (following "universally accepted Federal practice"), abrogated on other grounds by Martin v. O'Rourke, 

891 F.3d 1338 (Fed. Cir. 2018).

18 Ribaudo I, 20 Vet.App. at 559-60.

19 Id. at 560.

20 Id.

21 Id.
6

III. MERITS

A. Threshold Matter: Tobler's Applicability

Before we reach the heart of the merits, we will explain why we find unpersuasive the 

Secretary's argument that we should deny appellant's Motion outright under our decision in Tobler 

v. Derwinski because our August 15, 2019, decision is not final.

22 It is certainly true that Tobler

provides that when one of our precedential decisions is appealed to the Federal Circuit, VA must 

comply with that decision for all claimants other than the appellant in a given case even though 

VA need not afford the named claimant the relief he or she would be entitled to under the appealed 

decison.

23 But we do not read those rules from Tobler as immutable. Rather, in light of later 

precedent such as Ribaudo I, which held that a party may ask to change the status quo described 

in Tobler via a motion to stay the precedential effect of a decision by this Court,

24 Tobler is best 

read to set a default rule for how matters should proceed with respect to a precedential decision of 

this Court when a party appeals to the Federal Circuit: in the absence of any other action, when we 

issue a precedential decision, (1) the decision binds VA for all further adjudications at the Agency; 

but (2) until final it does not require implementation with respect to the named appellant.25 So, if 

nothing else happens, that is the state of the world. 

However, that default rule doesn't mean it is never appropriate to order compliance as to 

the appellant in a case appealed to the Federal Circuit. It could be appropriate, in a given case, 

under the right circumstances. Indeed, it is already well established that the default pending appeal 

can change. As we know, the Secretary moved to suspend the precedential effect of our decision. 26

To be sure, we denied that motion. But if the Secretary can request to change the status quo in a 

given case with respect to the effect of a precedential decision on all claimants other than the 

named appellant, we see no principled reason why an appellant cannot seek to change the status 

quo with respect to him or her. Either way, a change in status quo occurs; it is just a matter of 

direction. All Tobler establishes here is that, assuming he even could, appellant cannot change the 

status quo unilaterally, as VA did in Tobler.

27 So, Tobler does not, on its own, suggest the motion 

should be denied. Instead, what Tobler and Ribaudo I mean here is that appellant has to shoulder 

the inherently significant burden of seeking injunctive relief, to show that the status quo should 

change as to him pending the finality of the appeal. Now we proceed to the heart of the merits, 

explaining why he has satisfied that burden.

 

22 2 Vet.App. 8 (1991); Sec'y's Resp. at 5-6.

23 Tobler, 2 Vet.App. at 9, 13.

24 Ribaudo I, 20 Vet.App. at 559-60.

25 Tobler, 2 Vet.App. at 9, 13.

26 U.S. VET. APP.R. 8(a); see also Ribaudo I, 20 Vet.App. at 559-60.

27 Tobler, 2 Vet.App. at 10.
7

B. Legal Standard and Application

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.28

Here, appellant has demonstrated entitlement to his requested relief. Although the panel 

members disagree as to whether appellant is likely to succeed on the merits of the appeal, we agree 

that the remaining factors weigh in his favor.

Though the panel members disagree about appellant's likelihood of success, we point out 

that appellant was already successful before this Court, which applied well-established rules of 

statutory interpretation; the en banc Court denied rehearing; and we denied the Secretary's motion 

to suspend the precedential effect of the decision, which required us to consider his likelihood of 

success on appeal.

29 In short, appellant actually succeeded on his appeal before the panel when we 

issued our precendential decision. We then considered whether we were likely wrong when, in

considering the Secretary's motion to suspend the precedential effect of the decision, we 

considered whether the Secretary was likely to prevail on his appeal. We thought it was not likely 

that we were wrong. We see no reason to change our position as to this factor.

Second, based on the specific facts we have here, we think appellant would be irreparably 

harmed were we to deny the injunctive relief he seeks. "As its name implies, the irreparable harm 

inquiry seeks to measure harms that no damages payment, however great, could address."30 The 

harms that appellant alleges regarding timing and structuring of his life go beyond the dollar 

amount of the benefits. In his brief, appellant explained that he will exhaust his current benefits on 

May 21, 2021, and that if he does not receive the additional benefits to which he is entitled, he will 

be forced to terminate his seminary program effective May 21, 2021.31 He also explains how and 

why he is unable to take out loans or secure aid to replace his remaining benefits. 32 And, he says, 

"[e]ven if he could, he has no adequate remedy at law to recover such expenses if he ultimately 

wins his case. For example, there is no provision of the Post-9/11 program that obviously compels 

the Secretary to reimburse him."33 What's more, if appellant cannot resume his classes in 2022, "it 

is entirely possible he will never be able to do so again, as that is solely within the discretion of 

the seminary's provost and faculty to approve or deny." 34 Further, appellant described how 

 

28 See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); cf. Malik, 22 Vet.App. at 185-86 (applying similar 

factors in analysis of a Rule 8 motion); Ribaudo II, 21 Vet.App. at 140 (applying similar factors in analysis of a 

precedential stay motion).

29 Order, Rudisill v. Wilkie, No. 16-4134 (Jan. 7, 2020).

30 Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012).

31 Appellant's Mot. at 7.

32 Id. at 4.

33 Id. at 8.

34 Id.
8

disruption to his academic plan could negatively affect his FBI career.35 Finally, appellant points 

out that, even if he eventually prevailed in his litigation, he could run up against his 2026 Post9/11 benefits delimiting date.36 All in all, appellant describes imminent harms that would result if 

we did not grant his request for benefits, harms that an eventual award of benefits could not 

remedy. And the Secretary does not undermine these harms in his brief.37 So we conclude that 

appellant has shown irreparable harm such that the second factor weighs in his favor.

Third (and fourth here38), appellant argues that if the Court were to grant an injunction, no 

substantial harm would result to the Secretary or the public. And we see no harm of note that would 

result to the Secretary, or to the public, from this one claim. After all, the Secretary already must 

apply our precedential decision to every claimant other than appellant. In countering that he would 

suffer harm, the Secretary did not address that point. Nor did he explain how this case differs from 

any other statutory interpretation case that we have decided, and he submitted no evidence to 

support his assertions of irreparable harm.39 In any event, any harm to the Secretary or public is 

reparable. Unlike appellant, the Secretary has a remedy at law; he can recoup any valid debt, as 

appellant points out.

40 But even that would likely be unnecessary, as appellant in his briefs 

"acknowledges that he would be obligated to repay any final, valid debt resulting from his receipt 

of benefits under an injunction order."41 The Secretary asserts that "according to [appellant's] own 

statements [about how '[s]tudent loans or aid are not options for [him]'

42], VA would be unable to 

recover any overpayment of Post-9/11 education benefits in this case."43 We do not follow that 

logic at all. The Secretary fails to explain how appellant's inability to get a loan has any effect on, 

for example, VA's ability to reach appellant's salary payments if necessary to recover an 

overpayment. We will not entertain an argument by the Secretary that seemingly relies on 

ignorance of his own regulations.44 So, on balance, we are inclined to rule in appellant's favor.

 

35 Id.

36 Id. at 9 (refusing to concede that this deadline could not be equitably tolled).

37 See Sec'y's Resp. at 8.

38 The third and fourth factors "merge when the Government is the opposing party." Nken v. Holder, 556 U.S. 418, 

435 (2009).

39 See Vazquez-Flores v. Peake, 22 Vet.App. 91, 94-95 (2008) (rejecting the Secretary's speculative, unsupported 

allegations of irreparable harm).

40 Appellant's Reply at 9 (citing 38 C.F.R. §§ 1.910 et seq. (providing standards for collection of claims, including 

installment plans), 1.980 (providing salary offset provisions applicable to Federal employees, such as appellant)).

41 Appellant's Mot. at 10; Appellant's Reply at 9.

42 Appellant's Mot. at 4.

43 Sec'y's Resp. at 9.

44 See id.(arguing that "[a]ppellant provides no solution in his motion as to how VA is to collect any overpayment of 

education benefits in this case"); 38 C.F.R. §§ 1.910 (providing standards for collection of claims, including 

installment plans), 1.980 (providing salary offset provisions applicable to Federal employees, such as appellant).
9

Upon consideration of the foregoing, it is 

ORDERED that appellant's motion for an injunction pending appeal is granted. And it is 

further

ORDERED that VA begin to pay Mr. Rudisill the statutory benefits to which he is entitled, 

unless and until the Federal Circuit renders a decision reversing or vacating this Court's August 

15, 2019, decision on appeal and remanding the matter.

DATED: May 7, 2021 PER CURIAM.

BARTLEY, Chief Judge, concurring: I join the majority in all respects, except that, for 

the reasons set forth in my dissent in this case, I disagree that the veteran has a strong likelihood 

of success on the merits of his appeal. See BO v. Wilkie, 31 Vet.App. 321, 346-54 (2019) (Bartley, 

J., dissenting); see also BO v. Wilkie, No. 16-4134, 2020 WL 62631, at *3 (Bartley, J., concurring 

in the denial of the Secretary's motion to stay the precedential effect of BO). Nevertheless, I agree 

with the majority that an injunction is warranted because, on balance, the remaining injunction 

factors weigh in the veteran's favor. See Al Otro Lado v. Wolf, 952 F.3d 999, 1007 (9th Cir. 2020)

(employing a "sliding scale" balancing test for injunctive relief, in which "a stronger showing of 

one element may offset a weaker showing of another" (internal quotation marks omitted)); Silfab 

Solar, Inc. v. United States, 892 F.3d 1340, 1345 (Fed. Cir. 2018) (currently adhering to a sliding 

scale approach); Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 

598 F.3d 30, 35-38 (2d Cir. 2010); Hoosier Energy Rural Elec. Coop. v. John Hancock Life Ins. 

Co., 582 F.3d 721, 725 (7th Cir. 2009); see also Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 

7, 51 (2008) (Ginsburg, J., dissenting) ("Consistent with equity's character, courts do not insist that 

litigants uniformly show a particular, predetermined quantum of probable success or injury before 

awarding equitable relief. Instead, courts have evaluated claims for equitable relief on a 'sliding 

scale' . . . ."). Given that the veteran has established that he will be irreparably harmed by further 

delay in payment of his Post-9/11 education benefits, that the Secretary has adequate means to 

recoup any erroneous benefit payments if he prevails on appeal, and that the public has a strong 

interest in veterans and their dependents promptly receiving the benefits that they have been 

adjudged to be entitled to, I would grant the veteran's motion for an injunction, despite my 

reservations about the likelihood of his success on the merits of his appeal.