En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit. Since our last update, the en banc court decided a veterans case law week, addressing the question of 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. Here are the details.

En Banc Case

In an en banc veterans case, Taylor v. McDonough, the court issued a plurality opinion along with a concurring opinion and a dissenting opinion. In the plurality opinion, the court concluded 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.” The plurality, however, also concluded that, “[f]or decades, the government denied Mr. Taylor his fundamental constitutional right of access to the adjudication system of VA, the exclusive forum for securing his legal entitlement to the benefits at issue.” As a result, the plurality decided, 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.”

The concurring opinion argued “this case should properly be resolved on a non-constitutional ground of equitable estoppel.” More specifically, these judges would have found 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.”

The dissenting opinion 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.” These judges, however, disagreed with the plurality that there is “a right of access violation in Mr. Taylor’s case to construct a remedy.” The dissent argued “the plurality expands the right of access precedent in a way that infringes on the Executive’s broad national security powers.”

For an in depth summary of the court’s three opinions in this case, see our opinion summary.