Last Friday the Federal Circuit sua sponte vacated its June 30, 2021 panel decision in Taylor v. McDonough, a veterans case asking whether a veteran was entitled to an earlier effective date for his benefits due to restraints on his ability to disclose his participation in “chemical agent exposure studies at the Edgewood Arsenal in Edgewood, Maryland (Edgewood Program).” The Federal Circuit also granted en banc review of the case. According to Friday’s order, the en banc court will consider whether application of the doctrine of equitable estoppel to provide the veteran with the earlier effective date violates the Constitution’s Appropriations Clause and, conversely, whether denial of the earlier effective date violates the constitutional right-of-access doctrine. Here are the details.
In its original panel decision, the Federal Circuit addressed whether the appellant was entitled to equitable estoppel against the “Board of Veterans Claims’ denial of entitlement to an effective date earlier than February 28, 2007, for the award of service connected disability benefits for post-traumatic stress disorder.” The panel ultimately reversed the U.S. Court of Appeals for Veterans Claims’ affirmation of the Board’s decision, stating that “[appellant] is entitled to equitable estoppel against the Government.”
In last Friday’s order, however, the Federal Circuit requested that parties file new briefs addressing the following issues:
1. (i) “In view of precedents such as OPM v. Richmond, 496 U.S. 414 (1990), and McCay v. Brown, 106 F.3d 1577 (Fed. Cir. 1997), did the panel in Taylor v. McDonough, No. 2019-2211, 2021 WL 2672307, at *1 (Fed. Cir. June 30, 2021), correctly determine that under the doctrine of equitable estoppel the government is estopped from asserting 38 U.S.C. § 5110(a)(1) against Mr. Taylor’s claim for an earlier effective date?”
(ii) “Specifically, would granting Mr. Taylor’s claim of entitlement to an earlier effective date under the doctrine of equitable estoppel be contrary to statutory appropriations and thus barred by the Appropriations Clause? If not, does the doctrine require the VA to give Mr. Taylor his requested effective date for his disability benefits if the government prevented him from timely filing an adequate benefits claim?”
(iii) “If any precedents of this court, such as McCay, preclude Mr. Taylor from succeeding based on equitable estoppel, should they be overruled?
2. “If equitable estoppel does not afford Mr. Taylor the effective date he claims, does Mr. Taylor have a claim for denial of a constitutional right of access to VA processes for securing disability benefits for which he met the eligibility criteria, considering authorities such as Christopher v. Harbury, 536 U.S. 403 (2002), that address a constitutional right of access to courts and other government forums of redress?”
3. “If there is such a right of access, is the test for its violation whether the government has engaged in “active interference” that is “undue,” as suggested by Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011), and related cases? If not, what is the test?”
4. “Assuming the right exists, and applying the proper test, was the right of access violated here?”
(i) “Taken together, did the required promise of military secrecy, the threat of court martial, and the failure to provide a VA mechanism for the timely filing or adjudication of an adequate claim, as Mr. Taylor alleges, constitute an affirmative interference with a right of access?”
(ii) “Did the VA lack a sufficient justification for not providing a mechanism for the timely filing or adjudication of an adequate claim if it could have provided such a mechanism while protecting classified information? Has the VA done so in some circumstances? See U.S. Dep’t of Veterans Affs., Adjudication Procedures Manual M21-1, pt. IV, subpt. ii, ch. 1, sec. I (Developing Claims Related to Special Operations Incidents). Did the VA lack a sufficient justification for not even communicating to Mr. Taylor that he could file a minimal claim that would have to await adjudication indefinitely, until secrecy protections were lifted?”
5. “If the government violated Mr. Taylor’s right of access, what is the remedy?”
The court also invited amicus briefs:
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. Taylor’s position or supporting neither position must be filed within 14 days after service of Mr. Taylor’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).
The court also indicated that it will hold an en banc oral argument.
We will watch this case and report on developments.