United States Court of Appeals 

for the Federal Circuit ______________________ 

JAMES R. RUDISILL,

Claimant-Appellee

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellant

______________________ 

2020-1637

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 16-4134, Senior Judge Mary J. 

Schoelen, Chief Judge Margaret C. Bartley, Judge Michael 

P. Allen.

______________________ 

ON PETITION FOR PANEL REHEARING AND 

REHEARING EN BANC 

______________________ 

TIMOTHY L. MCHUGH, Troutman Pepper Hamilton 

Sanders LLP, Richmond, VA, filed a response to the petition for claimant-appellee. Also represented by DAVID 

JOSEPH DEPIPPO, Dominion Resource Services Inc., Richmond, VA. 

 GALINA I. FOMENKOVA, Commercial Litigation Brnach, 

Civil Division, United States Department of Justice, Washington, DC, filed a petition for panel rehearing and rehearing en banc for respondent-appellant Denis McDonough. 

Case: 20-1637 Document: 69 Page: 1 Filed: 02/03/2022
2 RUDISILL v. MCDONOUGH

Also represented by BRIAN M. BOYNTON, MARTIN F.

HOCKEY, JR; Y. KEN LEE, BRYAN THOMPSON, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. 

 ______________________ 

Before MOORE, Chief Judge, NEWMAN, LOURIE, DYK, 

PROST, O’MALLEY, REYNA, TARANTO, CHEN, HUGHES, 

STOLL, and CUNNINGHAM, Circuit Judges.

PER CURIAM. 

ORDER

Appellee, the Secretary of Veterans Affairs (“Secretary”), filed a Combined Petition for Panel Rehearing and 

Rehearing en banc. A response to the petition was invited 

by the court and filed by Appellant James R. Rudisill. The 

petition and response were considered by the panel that 

heard the appeal and thereafter referred to the circuit 

judges in regular active service. A poll was requested and 

taken, and the court decided that the appeal warrants en 

banc consideration. 

Accordingly,

IT IS ORDERED THAT:

(1) The petition for panel rehearing is denied.

(2) The petition for rehearing en banc is granted. 

(3) The panel opinion in Rudisill v. McDonough, 4 

F.4th 1297 (Fed. Cir. 2021) is vacated, and the appeal is reinstated. 

(4) The parties are requested to file new briefs. The 

briefs should address the following questions: 

a. For a veteran who qualifies for the Montgomery GI Bill and the Post-9/11 GI Bill under a 

separate period of qualifying service, what is 

the veteran’s statutory entitlement to education benefits? 

Case: 20-1637 Document: 69 Page: 2 Filed: 02/03/2022
RUDISILL v. MCDONOUGH 3

b. What is the relation between the 48-month 

entitlement in 38 U.S.C. § 3695(a), and the 

36-month entitlement in § 3327(d)(2), as applied to veterans such as Mr. Rudisill with 

two or more periods of qualifying military 

service? 

(5) The Secretary’s en banc opening brief is due 60 

days from the date of this order. Mr. Rudisill’s en 

banc response brief is due within 45 days of service 

of the Secretary’s en banc opening brief, and the 

Secretary’s reply brief within 30 days of service of 

the response brief. The court requires 30 paper 

copies of all briefs and appendices provided by the 

filer within 5 business days from the date of electronic filing of the document. The parties’ briefs 

must comply with Fed. Cir. R. 32(b)(1). 

(6) The court invites the views of amici curiae. Any 

amicus brief may be filed without consent and 

leave of court. Any amicus brief supporting Mr. 

Rudisill’s position or supporting neither position 

must be filed within 14 days after service of Mr. 

Rudisill’s en banc opening brief. Any amicus brief 

supporting the Secretary’s position must be filed 

within 14 days after service of the Secretary’s en 

banc response brief. Amicus briefs must comply 

with Fed. Cir. R. 29(b). 

(7) Oral argument will be held at a time and date to be 

announced later.

February 3, 2022

 Date

FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

Case: 20-1637 Document: 69 Page: 3 Filed: 02/03/2022