This morning, the Federal Circuit released a precedential en banc opinion in a veterans case. In the opinion, the court held “that the claim-filing effective-date provisions of [38 U.S.C.] § 5110 are unconstitutional” as applied to the appellant based on his “very rare set of circumstances.” Notably, Judge Dyk filed an opinion concurring in the judgment, and Judge Hughes filed an opinion dissenting in part and dissenting from the judgment. In addition, late yesterday and this morning the court also released two nonprecedential orders dismissing appeals. Here are the introductions to the opinions and links to the dismissals.

Taylor v. McDonough (Precedential)

During his service in the U.S. Army from 1969 to 1971, Bruce R. Taylor voluntarily participated as a test subject in a secret Army program, at the Edgewood Arsenal facility in Maryland, that assessed the effects of various dangerous substances, including chemical warfare agents. The government swore him to secrecy through an oath broadly requiring him not to reveal any information about the program to persons not authorized to receive it, without specifying who might be so authorized. Mr. Taylor suffered injuries from his participation in the program, resulting in disabilities. But as the government concedes, the secrecy oath, backed by the possibilities of court-martial and criminal penalties, caused Mr. Taylor to refrain, for more than three decades after his discharge from service, from pursuing the sole adjudicatory route to vindicate his statutory entitlement to disability compensation for those service connected disabilities. Specifically, he refrained from filing a claim with the Department of Veterans Affairs (VA) for compensation based on his Edgewood injuries until after the government, in 2006, released him and similarly situated veterans from their secrecy oaths.

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For those reasons, which reach what we would expect to be a very rare set of circumstances, we hold that the claim-filing effective-date provisions of § 5110 are unconstitutional as applied to Mr. Taylor. A veteran in Mr. Taylor’s position is entitled, under ordinary remedial principles, to receive benefits for service-connected disabilities from the effective date that the veteran would have had in the absence of the government’s challenged conduct. We reverse the Veterans Court’s decision and remand for expeditious proceedings to implement our holding.

DYK, Circuit Judge, concurring in judgment, with whom NEWMAN, REYNA, and WALLACH, Circuit Judges, join, and with whom STARK, Circuit Judge, joins as to Parts I, II, and V.

We agree with the result reached by the plurality but write separately because we think this case should properly be resolved on a non-constitutional ground of equitable estoppel. We have an obligation to avoid deciding constitutional questions when the case can be decided on other grounds. See Bond v. United States, 572 U.S. 844, 855 (2014). This is such a case. The government’s conduct equitably estops it from limiting Mr. Taylor’s recovery under 38 U.S.C. § 5110(a), and it is unnecessary to partially invalidate a federal statute to award relief to Mr. Taylor. This equitable estoppel ground is narrow, while the plurality’s due process holding is of uncertain scope and future application.

HUGHES, Circuit Judge, dissenting in part and dissenting from the judgment, with whom LOURIE, Circuit Judge, joins.

The government has treated Bruce Taylor and other Edgewood program volunteers unfairly, subjecting them to harmful experiments and then failing to provide the most basic form of redress for the harm that the government inflicted. Congress can provide, and should have immediately provided, a remedy to Mr. Taylor and the other Edgewood volunteers by passing a statute that, at a minimum, allows the Secretary to award Edgewood volunteers an effective date corresponding to each veteran’s date of discharge. I agree with and join Parts I–IV of Judge Taranto’s opinion. Those sections explain in detail why equitable estoppel cannot be applied to overcome 38 U.S.C. § 5110 to grant Mr. Taylor an earlier effective date, and why there is no statutory remedy for Mr. Taylor under 38 U.S.C. § 6303.

But having exhausted these first two theories, Part V of Judge Taranto’s opinion (“the plurality”) finds a right of access violation in Mr. Taylor’s case to construct a remedy. In doing so, the plurality expands the right of access precedent in a way that infringes on the Executive’s broad national security powers. Because the government did not violate Mr. Taylor’s right of access and because, even if it had, our court has no equitable or statutory authority to remedy such a violation, I respectfully dissent from Parts V–VI and from the judgment.