Last week, the Federal Circuit issued its opinion in Taylor v. McDonough, a veterans case that the court reviewed en banc. As explained in Judge Taranto’s opinion, a “majority of the court (as reflected in this opinion and the concurrence) agree[d], and the court [held], that when a veteran has been determined to be entitled to benefits for one or more disabilities connected to participation in the Edgewood program at issue, the required effective date of such benefits is the date that the veteran would have had in the absence of the challenged government conduct—imposition of the secrecy oath with no VA route for claim presentation and proof to vindicate the benefits entitlement.” Notably, Judge Dyk filed an opinion concurring in the judgment, and Judge Hughes filed an opinion dissenting in part and dissenting from the judgment. One other thing to note: Judge Wallach participated in the court’s en banc consideration of the case, despite being a senior judge, because he was on the original panel, and as a result this case was decided by a thirteen-judge panel. This is our opinion summary.
Judge Taranto began by reciting the facts regarding the background of the case:
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.
In 2007, Mr. Taylor filed a claim for disability benefits, which VA granted. But VA granted the benefits only from the 2007 date of the claim because the governing statute, 38 U.S.C. § 5110, specifies that the earliest possible effective date (with some limited exceptions) is the date on which VA receives the veteran’s claim. On appeal from an adverse decision of the United States Court of Appeals for Veterans Claims (Veterans Court), . . . Mr. Taylor argues that he was entitled to a much earlier effective date, as far back as one day after the day that he was discharged in 1971, because it was the government’s threat of penalties for revealing information that for decades caused him not to file a claim to vindicate his legal entitlement to benefits.
Judge Taranto then described the relevant law. He noted that through “38 U.S.C. § 1110 (wartime service) and § 1131 (peacetime service), ‘[t]he law entitles veterans who have served on active duty in the United States military to receive benefits for disabilities caused or aggravated by their military service.’” He also highlighted the “effective-date provision, § 5110,” which is the focus of the case.
Judge Taranto addressed Taylor’s first argument that the doctrine of equitable estoppel enables him to “overcome the § 5110 limit.” He noted the court’s ultimate finding on this issue that the “application of [equitable estoppel] here is barred by [a] Supreme Court decision . . . , which held that courts may not rely on equitable estoppel to award money from the public fisc of the United States in violation of limitations established by statute.”
Judge Taranto then confronted Taylor’s second argument that 38 U.S.C. § 6303 supports “his request for an effective date earlier than the date allowed by § 5110.” Judge Taranto explained that “Section 6303, entitled ‘outreach services’” states that “VA ‘shall by letter advise each veteran at the time of the veteran’s discharge . . . from active military . . . service (or as soon as possible after such discharge . . . ) of all benefits and services under laws administered by [VA] for which the veteran may be eligible.’” He noted that the statute also provides that “VA ‘shall distribute full information to eligible veterans . . . regarding all benefits and services to which they may be entitled under laws administered by the Secretary’” and that “VA ‘shall provide, to the maximum extent possible, aid and assistance (including personal interviews) to . . . veterans . . . and in the preparation and presentation of claims under laws administered by [VA].’” The court held on this issue that, to “the extent that Mr. Taylor argues that equitable estoppel might apply based on § 6303 even if Congress did not make compliance with § 6303 a precondition to enforcing § 5110’s claim-filing effective-date requirements, he is incorrect.”
Despite the court rejecting Taylor’s equitable estoppel and statutory arguments, it agreed with “Taylor’s constitutional argument that the government violated his fundamental right of access to the exclusive adjudicatory forum for vindication of his legal entitlement to VA disability benefits.” Specifically, Judge Taranto noted that the en banc court found that “§ 5110 is unconstitutional as applied to Mr. Taylor to the extent that applying its provisions would deny Mr. Taylor the effective date of benefits that he would have had in the absence of the government’s unconstitutional interference with his access to the VA adjudicatory system for vindicating his entitlement.” Furthermore, Judge Taranto remarked that the court is “not persuaded by the dissent to conclude otherwise” on this issue.
In this case, a “majority of the court (as reflected in this opinion and the concurrence) agree[d], and the court [held], that when a veteran has been determined to be entitled to benefits for one or more disabilities connected to participation in the Edgewood program at issue, the required effective date of such benefits is the date that the veteran would have had in the absence of the challenged government conduct—imposition of the secrecy oath with no VA route for claim presentation and proof to vindicate the benefits entitlement.” As a result of its analysis, the court reversed “the decision of the Veterans Court and remand[ed] for expeditious proceedings to give Mr. Taylor relief pursuant to this holding.”
As mentioned, Judge Dyk filed an opinion concurring in the judgment. Judges Newman, Reyna and Wallach joined in the concurrence and Judge Stark joined the concurrence in part. Judge Dyk noted that “[w]e 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.” He further remarked that the court has “an obligation to avoid deciding constitutional questions when the case can be decided on other grounds” and that this “is such a case.” He explained that, in his view, 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.” He highlighted how an “equitable estoppel ground is narrow, while the plurality’s due process holding is of uncertain scope and future application.”
Asa mentioned, Judge Hughes filed an opinion dissenting in part and dissenting from the judgment. Judge Lourie joined in this dissent. Judge Hughes argued “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.” He agreed with the plurality that “equitable estoppel cannot be applied to overcome . . . § 5110 to grant Mr. Taylor an earlier effective date, and [that] there is no statutory remedy for Mr. Taylor under 38 U.S.C. § 6303.” He disagreed, however, with the plurality that there is “a right of access violation in Mr. Taylor’s case to construct a remedy.” He further argued “the plurality expands the right of access precedent in a way that infringes on the Executive’s broad national security powers.”