Next week, in an en banc session, the Federal Circuit will hear arguments in Taylor v. McDonough, a veterans case. The court will consider whether equitable estoppel may be used against the government with respect to establishing the effective date of an award pursuant to 38 U.S.C. § 5110. In particular, the court will consider several related questions: (1) whether “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;” (2) if equitable estoppel does not apply, whether Taylor has a claim for “denial of a constitutional right of access to [Veterans Affairs] processes for securing disability benefits for which he met the eligibility criteria;” and (3) if a right of access exists, whether the right of access was violated here and what the remedy is. This is our argument preview.
Taylor argues in his en banc brief that this case hinges on the question whether a court can equitably estop the executive when the executive has “used threats of criminal prosecution and dishonorable discharge to prevent Mr. Taylor from receiving benefits Congress appropriated for him and others like him.” According to Taylor, the executive, “having engaged in affirmative misconduct that materially prejudiced [him], . . . should be estopped from arguing that 38 U.S.C. § 5110(a)(1) prevents Mr. Taylor from seeking an earlier effective date” for his award of benefits. Furthermore, he argues, the “executive’s egregious misconduct violated Mr. Taylor’s fundamental right of access to courts and the VA processes that are prerequisite to that right.”
Taylor explains that “the Army subjected him to a separate series of psychological tests and required him to sign a secrecy oath.” He goes on to say that he was exposed to deadly chemicals including “a nerve agent similar to sarin and VX gas” and “a tear gas agent.” Exposure to these agents, he continues, caused “the classic symptoms of undiagnosed” post traumatic stress disorder. In 2007, he explains, the VA granted him disability benefits, but concluded “that pursuant to 38 U.S.C. § 5110(a)(1), Mr. Taylor was only entitled to benefits effective as of February 28, 2007, the date of his initial application”. He notes that the VA “did so notwithstanding the fact that executive branch had affirmatively prevented [him] from even applying for benefits until 2006.” Taylor argues that “[t]he executive branch cannot make the courts an instrument to its affirmative misconduct by asking it to endorse the use of secretive policies to thwart congressional intent.” Indeed, he argues, “the law grants courts equitable powers to stop such abuse.” Moreover, he says, “[c]ourt intervention here restores rather than interferes with the Constitution’s careful separation of powers.”
The government asserts in its en banc brief that “although Mr. Taylor’s appeal is sympathetic, neither the Executive nor Judicial branches can resolve Mr. Taylor’s predicament because it involves the payment of appropriated funds not authorized by statute,” As a result, the government argues, “[r]elief for Mr. Taylor thus lies only with Congress.” According to the government, “Congress has not authorized the payment of appropriated funds for periods that predate a claimant’s application for benefits, even for sympathetic claimants, and an order directing payment of such funds here based upon equitable estoppel would violate the separation of powers.” The government further argues that “granting Mr. Taylor’s claim of entitlement to an earlier effective date under the doctrine of equitable estoppel is contrary to Congress’s explicit, statutory restrictions on payment of appropriated funds and thus is barred by the Appropriations Clause.” The government also contends that “a plaintiff alleging denial of access . . . must establish that Government action caused them to be shut out of court, and the record here does not indicate that the secrecy oath entirely foreclosed Mr. Taylor from applying for benefits or rendered such a claim futile.” In fact, says the government, “other veterans did so before declassification in 2006.”
In his en banc reply brief, Taylor argues that separation of powers does not “prevent this Court from correcting executive misconduct.” Rather, he maintains, “[a]pplying estoppel to this case . . . vindicates” separation of powers. He also argues that the government “invents a legal standard that would effectively insulate any deprivation of the right” of access. He contends that the court “can and should remedy this violation by declaring 38 U.S.C. § 5110(a) unconstitutional as applied to this case.”
Five amicus briefs were filed, all in support of Taylor.
- In the first amicus brief, the American Legion argues that “the Appropriations Clause does not bar equitable estoppel in this case” since “the Appropriations Clause is not an independent barrier to payment in situations where Congress has waived immunity through statute.”
- In the second amicus brief, Military-Veterans Advocacy Inc. argues that principles of equitable estoppel “afford Mr. Taylor a 1971 effective date for his benefits” and that “Mr. Taylor has an actionable claim under the standard described in Christopher v. Harbury, 536 U.S. 403 (2002).”
- In the third amicus brief, the National Law School Veterans Clinic Consortium argues “only the Veterans Court can cure the injustice here because the Secretary’s equitable authority” provides no remedy and “Article I courts have the power to apply the doctrine of equitable estoppel against the government in cases over which they have jurisdiction.”
- In the fourth amicus brief, National Veterans Legal Services Program argues “the constitutional right of judicial access extends to a right to adequately and meaningfully submit claims to the VA for benefits.”
- In the fifth amicus brief, the American Civil Liberties Union argues “access to the courts is a fundamental constitutional right” and “threatening a person with punishment for accessing the courts, erecting insurmountable barriers, or covering up evidence all violate the right to access courts.”
Oral argument in this case will be heard next week on Thursday, February 10. We will keep track of the case and report any developments.