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?”
