Case: 20-1637    Document: 69     Page: 1    Filed: 02/03/2022




   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 peti-
 tion for claimant-appellee. Also represented by DAVID
 JOSEPH DEPIPPO, Dominion Resource Services Inc., Rich-
 mond, VA.

     GALINA I. FOMENKOVA, Commercial Litigation Brnach,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, filed a petition for panel rehearing and rehear-
 ing en banc for respondent-appellant Denis McDonough.
Case: 20-1637     Document: 69     Page: 2   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 Gen-
 eral Counsel, United States Department of Veterans Af-
 fairs, 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 (“Secre-
 tary”), 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, 

 (Fed. Cir. 2021) is vacated, and the ap-
          peal 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 Montgom-
               ery GI Bill and the Post-9/11 GI Bill under a
               separate period of qualifying service, what is
               the veteran’s statutory entitlement to educa-
               tion benefits?
Case: 20-1637     Document: 69    Page: 3    Filed: 02/03/2022




 RUDISILL   v. MCDONOUGH                                   3

             b. What is the relation between the 48-month
                entitlement in 

(a), and the
                36-month entitlement in § 3327(d)(2), as ap-
                plied 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 elec-
         tronic 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.

                                    FOR THE COURT
  February 3, 2022
        Date                        /s/ Peter R. Marksteiner
                                    Peter R. Marksteiner
                                    Clerk of Court