Taylor v. McDonough ( 2023 )

Case: 19-2211 Document: 104 Page: 1 Filed: 06/15/2023
United States Court of Appeals
for the Federal Circuit
______________________
BRUCE R. TAYLOR,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETER-
ANS AFFAIRS,
Respondent-Appellee
______________________
2019-2211
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-2390, Judge Joseph L. Falvey
Jr., Judge William S. Greenberg, Judge Amanda L. Mere-
dith.
______________________
Decided: June 15, 2023
______________________
CHARLES MCCLOUD, Williams & Connolly LLP, Wash-
ington, DC, argued for claimant-appellant. Also repre-
sented by DEBMALLO SHAYON GHOSH, ANNA JOHNS HROM,
LIAM JAMES MONTGOMERY, TIMOTHY M. PELLEGRINO; MARK
B. JONES, Mark B. Jones Attorney at Law, Sandpoint, ID.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, PATRICIA M.
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2 TAYLOR v. MCDONOUGH
MCCARTHY, LOREN MISHA PREHEIM; CHRISTOPHER O. ADE-
LOYE, BRIAN D. GRIFFIN, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
DROR LADIN, American Civil Liberties Union Founda-
tion, New York, NY, for amici curiae American Civil Liber-
ties Union, American Civil Liberties Union of the District
of Columbia. Also represented by BRETT MAX KAUFMAN;
SCOTT MICHELMAN, ARTHUR B. SPITZER, ACLU Foundation
of the District of Columbia, Washington, DC.
GLENN R. BERGMANN, Bergmann Moore, LLC, Be-
thesda, MD, for amicus curiae American Legion. Also rep-
resented by THOMAS POLSENO, JAMES DANIEL RIDGWAY.
MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe
LLP, for amicus curiae Military-Veterans Advocacy Inc.
Also represented by THOMAS MARK BONDY; ELIZABETH
MOULTON, San Francisco, CA; JOHN B. WELLS, Law Office
of John B. Wells, Slidell, LA.
ANGELA K. DRAKE, Veterans Clinic, University of Mis-
souri School of Law, Columbia, MO, for amicus curiae Na-
tional Law School Veterans Clinic Consortium.
JENNIFER SWAN, Dechert LLP, Palo Alto, CA, for amici
curiae National Veterans Legal Services Program, Swords
to Plowshares. Also represented by HOWARD W. LEVINE,
Washington, DC; RENEE A. BURBANK, National Veterans
Legal Services Program, Arlington, VA; EMILY WOODWARD
DEUTSCH, Washington, DC.
______________________
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TAYLOR v. MCDONOUGH 3
Before MOORE, Chief Judge, NEWMAN, LOURIE, DYK,
PROST, REYNA, WALLACH, TARANTO, CHEN, HUGHES,
STOLL, CUNNINGHAM, and STARK, Circuit Judges. 1
Opinion filed by Circuit Judge TARANTO, Parts I–IV of
which constitute an opinion for the court. Chief Judge
MOORE and Circuit Judges PROST, CHEN, STOLL, and
CUNNINGHAM join in full; Circuit Judges LOURIE and
HUGHES join Parts I–IV.
Opinion concurring in the judgment filed by Circuit Judge
DYK, which Circuit Judges NEWMAN, REYNA, and
WALLACH join in full and Parts I, II, and V of which
Circuit Judge STARK joins.
Opinion dissenting in part and dissenting from the
judgment filed by Circuit Judge HUGHES, which Circuit
Judge LOURIE joins.
TARANTO, Circuit Judge.
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 gov-
ernment swore him to secrecy through an oath broadly re-
quiring 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 crim-
inal penalties, caused Mr. Taylor to refrain, for more than
three decades after his discharge from service, from pursu-
ing the sole adjudicatory route to vindicate his statutory
1 Circuit Judge O’Malley retired on March 11, 2022.
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4 TAYLOR v. MCDONOUGH
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 situ-
ated 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 effec-
tive 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), Taylor v. Wilkie, 31 Vet.
App. 147 (2019) (Taylor CAVC 2019), 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.
Mr. Taylor relies first on the general doctrine of equi-
table estoppel to support his request. We conclude that ap-
plication of that doctrine here is barred by the Supreme
Court’s decision in Office of Personnel Management v. Rich-
mond, 496 U.S. 414 (1990), 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 estab-
lished by statute. That substantive limit on the doctrine
applies in any forum unless Congress has overridden Rich-
mond for a particular context by statutorily providing for
application of the general equitable estoppel principles to
claims for money from the public fisc. Congress has not
done so for the benefits setting here, so Richmond pre-
cludes reliance on equitable estoppel to override the claim-
filing effective-date limits of § 5110, as we held in McCay
v. Brown, 106 F.3d 1577 (Fed. Cir. 1997).
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TAYLOR v. MCDONOUGH 5
We also conclude that Mr. Taylor has not supported his
new argument for relief based on 38 U.S.C. § 6303, which
directs VA to provide certain information and assistance
regarding potential benefits to veterans even before they
file, or indicate an interest in filing, claims for benefits.
Nothing in § 6303 purports to displace the Richmond limit
on equitable estoppel. 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 precon-
dition to enforcing § 5110’s claim-filing effective-date re-
quirements, he is incorrect. Applying equitable estoppel in
those circumstances would violate Richmond because the
monetary award would violate statutory limits. To the ex-
tent that Mr. Taylor argues that Congress made compli-
ance with § 6303 a precondition to enforcing § 5110’s claim-
filing effective-date limits, he is also incorrect. That argu-
ment is contrary to precedent, see Andrews v. Principi, 351
F.3d 1134 (Fed. Cir. 2003); Rodriguez v. West, 189 F.3d
1351 (Fed. Cir. 1999), and Mr. Taylor has not asked us to
overrule that precedent and there are strong reasons not to
do so.
Although we thus find no equitable-doctrine or statu-
tory basis to support Mr. Taylor’s effort to obtain an effec-
tive date earlier than the date prescribed by § 5110, we
agree with Mr. Taylor in his alternative argument that he
is entitled under the Constitution to have the effective date
of his benefits determined notwithstanding § 5110’s claim-
filing limits on the effective date. For decades, the govern-
ment denied Mr. Taylor his fundamental constitutional
right of access to the adjudication system of VA, the exclu-
sive forum for securing his legal entitlement to the benefits
at issue. The government’s threat of court-martial or pros-
ecution—without an exception for claims made to VA—af-
firmatively foreclosed meaningful access to the exclusive
adjudicatory forum. And without questioning the strength
of the interest in military secrecy, we see no adequate jus-
tification for this denial of access. The government makes
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6 TAYLOR v. MCDONOUGH
only highly general assertions of national-security inter-
ests, but it acknowledges that VA has created and uses spe-
cial processes for adjudicating claims by former members
of the special forces for injuries incurred during military
operations whose existence remains classified, and the gov-
ernment has furnished no adequate reason that secrecy
could not have been similarly protected for Edgewood vet-
erans like Mr. Taylor.
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 uncon-
stitutional as applied to Mr. Taylor. A veteran in Mr. Tay-
lor’s position is entitled, under ordinary remedial
principles, to receive benefits for service-connected disabil-
ities 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.
I
A
Mr. Taylor served on active duty in the U.S. Army from
January 1969 to March 1971. During his service, he vol-
unteered to participate as a human subject in a testing pro-
gram conducted at a U.S. Army facility in Edgewood,
Maryland. The program—which was designed to study the
effects of chemical warfare agents on the “ability [of the
subjects] to function as soldiers,” S. Rep. No. 94-755, Book
I, at 412 (1976)—involved testing of “more than 250 differ-
ent agents” and “at least 6,700 ‘soldier volunteers’” from
1955 to 1975, En Banc J.A. 35 [hereafter, simply J.A.].
When Mr. Taylor arrived at the Edgewood Arsenal fa-
cility in August 1969, he signed a consent form confirming
that the experiment had been explained to him and that he
“voluntarily agree[d] to participate.” J.A. 31. Mr. Taylor
also signed an oath prohibiting him from disclosing
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TAYLOR v. MCDONOUGH 7
information about the program under penalty of court-mar-
tial. Although a copy of the piece of paper Mr. Taylor
signed is unavailable, the parties agree that Mr. Taylor
signed such an oath and also agree on the content of the
oath for purposes of this case. Sec’y En Banc Response Br.
at 2–3. The Veterans Court also determined: “[N]or is
there any dispute that [Mr. Taylor] signed an oath vowing
not to disclose his participation in or any information about
the study, under penalty of court[-]martial or prosecution.”
Taylor CAVC 2019, 31 Vet. App. at 149 (citing pages 10–11
of the record before the Veterans Court in 2019 (Vet. Ct.
Rec.)). The government has not disputed that determina-
tion in this court.
Both Mr. Taylor and the government point us to a sam-
ple oath released by a committee of the U.S. Senate in
1976. See Taylor En Banc Opening Br. at 8 (citing S. Rep.
No. 94-755, Book I, at 418); Sec’y En Banc Response Br. at
3 n.1 (citing same). The Board of Veterans’ Appeals found
that this sample oath was the oath that “most [Edgewood
program] participants were required to sign” and used the
sample oath in its analysis of Mr. Taylor’s claim. In re Tay-
lor, No. 08-13 206, 2017 WL 2498716, at *2, *4 (Bd. Vet.
App. Apr. 14, 2017) (Taylor BVA 2017). The sample oath
committed those who signed it “not [to] divulge or make
available any information related to U.S. Army Intelli-
gence Center interest or participation in the Department
of the Army Medical Research Volunteer Program to any
individual, nation, organization, business, association, or
other group or entity, not officially authorized to receive
such information.” S. Rep. No. 94-755, Book I, at 418. Sig-
natories also acknowledged that they “underst[oo]d that
any action contrary to the provisions of this statement
w[ould] render [them] liable to punishment under the pro-
visions of the Uniform Code of Military Justice.” Id.The Veterans Court, in an earlier decision, found that
Mr. Taylor was exposed at Edgewood to at least EA-3580
(an anticholinergic, a type of nerve agent that blocks the
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8 TAYLOR v. MCDONOUGH
transmission of the neurotransmitter acetylcholine), EA-
3547 (a tear gas agent), and scopolamine (also an anticho-
linergic). Taylor v. Shinseki, No. 11-0254, 2013 WL
3283487, at *1 & nn.2–3 (Vet. App. June 28, 2013) (Taylor
CAVC 2013) (citing Vet. Ct. Rec. at 134–35, 151, 438, 466,
469, 482–83); see also J.A. 31 (volunteer report memorial-
izing the administration of EA-3580A to Mr. Taylor); J.A.
40 (psychological report showing Mr. Taylor’s recall of hav-
ing been “injected with large doses of [s]copolamine”). Mr.
Taylor reported experiencing hallucinations after being ad-
ministered agents being tested, such as, when on the rifle
range, “thinking that he was killing people rather than
shooting at targets.” J.A. 57; see also J.A. 40 (reporting
same).
After leaving Edgewood, Mr. Taylor served two tours
in Vietnam, deploying in December 1969. Taylor CAVC
2013, 2013 WL 3283487, at *1 (citing Vet. Ct. Rec. at 438,
444). Mr. Taylor reported that, while in Vietnam, “he ex-
perienced flashbacks and insomnia, used marijuana and
alcohol extensively,” id. (citing Vet. Ct. Rec. at 384), and
was “suicidal at times,” J.A. 47. At one point, Mr. Taylor
described his conditions to his platoon sergeant, who re-
ferred him to a service psychiatric office, where, he said, he
“was treated like a liar and reprimanded.” J.A. 46; see also
J.A. 62. At another point, Mr. Taylor was reduced in rank
after being “accused of sleeping [on] Guard Duty,” J.A. 46–
47; although Mr. Taylor recalled that during that particu-
lar Guard Duty he experienced “a major flashback” that
prevented him from “hear[ing] anyone call [his] name,” J.A.
46, his Edgewood oath “prevented [him] . . . from showing
mitigating or extenuating circumstances during [the]
court-martial,” Taylor CAVC 2013, 2013 WL 3283487, at
*1 (citing Vet. Ct. Rec. at 402–03, 454–55).
Mr. Taylor was honorably discharged on September 6,
1971. After discharge, Mr. Taylor “isolated himself” and
“exhibit[ed] marked impairment in social and vocational
functioning.” J.A. 58, 62. He continued to experience
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TAYLOR v. MCDONOUGH 9
insomnia, nightmares, a depressed mood, and auditory hal-
lucinations, all of which became more pronounced around
2000. Eventually, he sought treatment but, he said, was
“turned away because the treating provider believed [that]
his story about being an experimental subject [was] a fab-
rication.” J.A. 58.
B
In 2006, the Department of Defense “declassified the
names of the servicemen and women who had volunteered
for the Edgewood Program.” Taylor CAVC 2019, 31 Vet.
App. at 149 (citing Vet. Ct. Rec. at 2695–97). On June 30
of that same year, VA sent letters to the Edgewood partic-
ipants—including Mr. Taylor, see Sec’y En Banc Response
Br. at 3—informing them that the Department of Defense
“had given [them] permission . . . to disclose to health care
providers information about their involvement in the Edge-
wood Program that affected their health,” Taylor CAVC
2019, 31 Vet. App. at 149 (citing Vet. Ct. Rec. at 2695–97).
“For example,” the letter said, “you may discuss what you
believe your exposure was at the time, reactions, treatment
you sought or received, and the general location and time
of the tests.” J.A. 32. The letter also offered a VA clinical
examination and advised: “[I]f you think that you suffer
from chronic health problems as a result of these tests [con-
ducted at Edgewood], contact VA . . . to speak to a VA rep-
resentative about filing a disability claim.” J.A. 33.
On February 22, 2007, Mr. Taylor filed a claim for ben-
efits for posttraumatic stress disorder (PTSD) “caused in
service in 1969 at the chemical research program at Edge-
wood.” J.A. 38. A VA clinical examiner diagnosed Mr. Tay-
lor with chronic PTSD and recurrent major depressive
disorder, both of which the examiner “considered to be a
cumulative response to [Mr. Taylor’s] participation as a hu-
man subject in the Edgewood . . . experiments and subse-
quent re-traumatization in Vietnam.” J.A. 62.
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10 TAYLOR v. MCDONOUGH
In July 2007, a VA regional office granted Mr. Taylor’s
benefits claim for PTSD and major depressive disorder, as-
signing a 70% rating and an effective date of February 28,
2007, the date that VA received Mr. Taylor’s benefits claim.
Later, in October of the same year, VA granted Mr. Taylor
entitlement to a total disability rating based on individual
unemployability, also with an effective date of February 28,
2007.
C
Mr. Taylor appealed to the Board of Veterans’ Appeals,
requesting “an effective date of September 7, 1971, the day
following [his] discharge,” because he “felt constrained
from filing for VA benefits by [the] secrecy agreement[] un-
til [he] received the VA letter” authorizing him to do so.
J.A. 77–78. The government does not dispute the effect of
Mr. Taylor’s oath. The government accepts that “[t]he con-
sequence of the oath was that Mr. Taylor refrained from
seeking benefits until 2007.” Sec’y En Banc Response Br.
at 28; see also id. at 26 (“[A]lthough Mr. Taylor refrained
from seeking benefits until 2007, his inaction was the con-
sequence of . . . the secrecy oath.”).
On July 20, 2010, the Board denied Mr. Taylor’s re-
quest for an earlier effective date. In re Taylor, No. 08-
13 206, 2010 WL 3537263 (Bd. Vet. App. July 20, 2010)
(Taylor BVA 2010). The Board explained that, for claims
like Mr. Taylor’s, the effective date of an award of disability
compensation is generally the later of the date that VA re-
ceives the claim or the date that entitlement arises—i.e.,
the date that the service-connected disability begins. Id. at
*1 (citing 38 U.S.C. § 5110; 38 C.F.R. § 3.400); see 38 U.S.C.
§ 5110(a)(1). Section 5110(b)(1), however, provides an ex-
ception: If VA receives the disability-compensation claim
within one year of the date that the veteran was dis-
charged, then the effective date is the day following the day
of discharge. 38 U.S.C. § 5110(b)(1); see 38 C.F.R.
§ 3.400(b)(2)(i). The Board reasoned that, because Mr.
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TAYLOR v. MCDONOUGH 11
Taylor first filed his benefits claim in February 2007, “more
than 30 years” after he was discharged, the § 5110(b)(1) ex-
ception does not apply, and the effective date cannot be ear-
lier than February 28, 2007, the date that VA received his
benefits application. Taylor BVA 2010, 2010 WL 3537263,
at *1–2. Although the Board “[was] sympathetic” to Mr.
Taylor’s situation, it said that “there was nothing stopping
[Mr. Taylor] from filing the claim with . . . VA earlier,” that
the Board was “bound by the law,” and that it was “without
authority to grant benefits on an equitable basis.” Id. at
*2–3.
Mr. Taylor appealed to the Veterans Court, arguing
among other things that VA “denied his right to due pro-
cess . . . by failing to have any process in place by which
[he] could make a claim for [benefits] . . . as a former par-
ticipant in the Edgewood program, prior to the 2006 partial
[declassification].” J.A. 104. Citing Christopher v. Har-
bury, 536 U.S. 403 (2002), Mr. Taylor asserted that VA
“must give [him] and all other Edgewood Veterans their
right to access the VA system.” J.A. 111. The Veterans
Court, in a single-judge decision on June 28, 2013, vacated
the Board’s decision, stating that the Board’s decision
“le[ft] the Court unable to discern whether [Mr. Taylor] re-
tained his eligibility to file for benefits while the oath was
active.” Taylor CAVC 2013, 2013 WL 3283487, at *2. The
Veterans Court remanded for the Board to “obtain and ac-
count for the language of the secrecy oath,” id., and the
Board in turn remanded to VA, In re Taylor, No. 08-13 206,
2014 WL 1417924 (Bd. Vet. App. Feb. 27, 2014).
VA “attempted to obtain [the oath] directly from . . .
Edgewood . . . but failed to receive a response.” Taylor BVA
2017, 2017 WL 2498716, at *2; see also Vietnam Veterans
of America v. Central Intelligence Agency, 288 F.R.D. 192,
198 (N.D. Cal. 2012) (“Defendants have been unable to lo-
cate written secrecy oaths administered during WWII or
the Cold War.”). Therefore, VA relied on the sample oath
we have quoted, which the Board also found was the oath
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12 TAYLOR v. MCDONOUGH
that “most [Edgewood] participants were required to sign,”
Taylor BVA 2017, 2017 WL 2498716, at *2, and which has
been accepted as Mr. Taylor’s oath throughout the remain-
ing litigation.
With that oath in hand, the Board again denied Mr.
Taylor’s request for an earlier effective date, identifying
three reasons for its decision. Id. at *3–6. First, Mr. Tay-
lor’s “diagnosis of PTSD is based on multiple stressors, in-
cluding witnessing the death of [a fellow soldier]” in
Vietnam, and “nothing prevented [Mr. Taylor] from filing
a claim for PTSD based on those [Vietnam] stressors with-
out having to divulge any information regarding the Edge-
wood experiments.” Id. at *4. Second, Mr. Taylor “appears
to have divulged information regarding the Edgewood ex-
periments despite the secrecy oath” during his attempts to
seek treatment, so he “cannot now claim that [the oath]
prevented him from filing a claim for benefits.” Id. at *5.
“Third, most importantly, and, in fact, dispositive to the
outcome of the instant case,” the Board said, “the governing
statute . . . [§ 5110] does not allow for equitable tolling.” Id.
See generally Arellano v. McDonough, 143 S. Ct. 543, 547
(2023) (explaining that equitable tolling “pauses the run-
ning of, or ‘tolls,’ a statute of limitations when a litigant
has pursued his rights diligently but some extraordinary
circumstance prevents him from bringing a timely action”).
Mr. Taylor again appealed to the Veterans Court, and
on April 5, 2019, a panel affirmed the Board’s decision over
the dissent of Judge Greenberg. Taylor CAVC 2019, 31
Vet. App. 147. The majority rejected Mr. Taylor’s proce-
dural due process argument, reasoning that he “cite[d] no
authority that establishes that a person has a property
right in disability benefits before a claim is filed.” Id. at
152. The majority also agreed with the Board that § 5110
is not subject to equitable tolling. Id. at 154–55 (citing,
among other authorities, Andrews, 351 F.3d at 1137–38,
and Rodriguez, 189 F.3d at 1355). The majority further
declined to apply the distinct doctrine of equitable estoppel
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TAYLOR v. MCDONOUGH 13
at least because this court in McCay, relying on the Su-
preme Court’s decision in Richmond, “held that [the Veter-
ans Court] cannot use equitable estoppel to authorize
payment outside of the requirements set out in section
5110.” Id. at 154 n.4 (citing 106 F.3d at 1581). The major-
ity concluded that § 5110 “is clear” in this case: “The effec-
tive date for the award of benefits is the date of the claim.”
Id. at 155.
Judge Greenberg, dissenting, would have reversed the
Board. Id. at 155–62. First, he said, “the Board’s finding
that the appellant could have filed for PTSD-related bene-
fits for his service in Vietnam without divulging infor-
mation related to the Edgewood experiments” is “error”
because “[t]he Board does not possess the medical expertise
to determine that a veteran is capable of untangling
stressor events, especially not when a medical examiner”
found that Mr. Taylor’s conditions are “a cumulative re-
sponse to his participation as a human subject in the Edge-
wood Arsenal experiments and subsequent re-
traumatization in Vietnam.” Id. at 157–58 (quoting Vet.
Ct. Rec. at 2311 (J.A. 62)). Second, Judge Greenberg con-
tinued, “the fact that [Mr. Taylor] divulged his [Edgewood]
participation for the purposes of treatment has no bearing”
on whether the oath prevented him from filing a disability
claim with VA because “[f]iling a claim for benefits with the
[g]overnment under a cloud of prosecution is a wholly dif-
ferent proposition from divulging information to a medical
provider.” Id. at 158. Third, Judge Greenberg concluded,
VA and the Board should be “equitably estopped from find-
ing that [Mr. Taylor] filed a claim after” September 7, 1971,
because the government “waited more than thirty years to
recognize [Mr. Taylor’s] participation” at Edgewood. Id.
161–62 (emphasis omitted).
D
Mr. Taylor timely appealed to this court, invoking our
jurisdiction under 38 U.S.C. § 7292. On June 30, 2021, a
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14 TAYLOR v. MCDONOUGH
panel reversed the Veterans Court’s decision, concluding
that the Veterans Court had the authority to equitably es-
top the government in this case and that Mr. Taylor is en-
titled, on this record, to have the government equitably
estopped “from asserting” the claim-filing effective-date
limitation of “38 U.S.C. § 5110(a)(1) against [his] claim.”
Taylor v. McDonough, 3 F.4th 1351, 1372–73 (Fed. Cir.
2021). We sua sponte vacated the panel opinion and or-
dered the case reheard en banc, with additional briefing on
equitable estoppel and on the constitutional right of access
to courts and other forums for redress. Taylor v.
McDonough, 4 F.4th 1381 (Fed. Cir. 2021) (en banc) (per
curiam). After receiving new briefs, the en banc court
heard oral argument on February 10, 2022. ECF No. 89.
Twelve days later, the Supreme Court granted a peti-
tion for a writ of certiorari in Arellano v. McDonough, 142
S. Ct. 1106 (2022), a case addressing whether equitable
tolling applies to § 5110(b)(1)—which provides that, if VA
receives a disability-benefits claim within one year of a vet-
eran’s discharge, the effective date for benefits is as early
as the day following the day of the veteran’s discharge. We
immediately stayed proceedings in this case pending the
Supreme Court’s disposition of the Arellano case. ECF No.
91.
On January 23, 2023, the Supreme Court held that
“§ 5110(b)(1) is not subject to equitable tolling.” Arellano,
143 S. Ct. at 552. The Supreme Court explained that its
decision in Arellano “resolve[s] only the applicability of eq-
uitable tolling to § 5110(b)(1). [It] do[es] not address the
applicability of other equitable doctrines, such as waiver,
forfeiture, and estoppel.” Id. at 552 n.3. We lifted the stay
and requested supplemental briefing on “the impact of the
Supreme Court’s decision in Arellano on this case.” ECF
No. 95, at 2. One concurrence, by Judge Dyk (joined by
Judges Reyna and Wallach), suggested that the parties in-
clude in their supplemental briefs a discussion of whether
equitable estoppel should be available based on 38 U.S.C.
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TAYLOR v. MCDONOUGH 15
§ 6303 (which originated in 1970 as § 241 and was codified
for many years as § 7722). Id. at 3–9 (Dyk, J., concurring).
A separate concurrence, by Chief Judge Moore (joined by
Judge Prost), cast doubt on the suggestion. Id. at 10–12
(Moore, C.J., concurring).
Mr. Taylor and the government filed their supple-
mental briefs on March 15, 2023, and March 29, 2023, re-
spectively. ECF Nos. 96, 101. We now decide the case.
II
The Supreme Court has described the features of the
statutory regime that frame the questions before us.
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 re-
ceive benefits for disabilities caused or aggravated by their
military service.” George v. McDonough, 142 S. Ct. 1953,
1957 (2022) (quoting Shinseki v. Sanders, 556 U.S. 396, 400
(2009)). “A veteran seeking such benefits must first file a
claim with . . . VA.” Id. (citing 38 U.S.C. § 5101(a)(1)(A)).
“A regional office of . . . VA then determines whether the
veteran satisfies all legal prerequisites, including the re-
quirement that military service caused or aggravated the
disability.” Id. (citing, among other authorities, 38 U.S.C.
§ 511(a)). “If the regional office grants the application, it
assigns an ‘effective date’ to the award, and payments
begin the month after that date.” Arellano, 143 S. Ct. at
546 (citing 38 U.S.C. §§ 5110(a)(1), 5111(a)(1)). 2
2 The 1970 counterparts of the cited provisions were
materially the same for present purposes. See 38 U.S.C.
§§ 310, 331 (1970) (counterparts of current §§ 1110, 1131);
id. § 3001 (1970) (counterpart of current § 5101); id.
§ 211(a) (1970) (counterpart of current § 511(a)); id. § 3010
(1970) (counterpart of current § 5110).
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16 TAYLOR v. MCDONOUGH
Procedurally, as relevant here, after applying statutory
standards, “the regional office issues an initial decision
granting or denying benefits.” George, 142 S. Ct. at 1957
(citing 38 U.S.C. §§ 511(a), 5104(a)). “A veteran dissatis-
fied with this decision may challenge it through several
layers of direct review,” starting with an appeal to “VA’s
Board of Veterans’ Appeals” under 38 U.S.C. §§ 7104(a)
and 7105(b)(1). Id. “If the Board also denies relief, the vet-
eran may seek further review outside the agency”—first, in
the Veterans Court, 38 U.S.C. §§ 7252(a), 7261(a), 7266(a),
then in this court, 38 U.S.C. § 7292, and then in the Su-
preme Court, 28 U.S.C. § 1254(1). See George, 142 S. Ct. at
1957. 3
The effective-date provision, § 5110, is the focus of the
present case. “If the effective date precedes the date on
which the VA received the claim, the veteran receives ret-
roactive benefits,” Arellano, 143 S. Ct. at 546, but such ret-
roactive benefits are the exception and are limited.
The default rule is that “the effective date of an
award . . . shall be fixed in accordance with the
facts found, but shall not be earlier than the date
of receipt of application therefor.” This rule applies
“[u]nless specifically provided otherwise in this
chapter.” Sixteen exceptions in § 5110 “provid[e]
otherwise,” including one specifying that “[t]he
3 The first-level and Board steps were materially
similar to the current steps, for present purposes, as far
back as 1970. See 38 U.S.C. §§ 210–212, 4001–4009 (1970).
Judicial review outside VA was generally unavailable until
1988, when Congress created the Veterans Court to review
VA decisions, with further review by this court. See 38
U.S.C. §§ 4051–4092 (1988) (establishing review of VA de-
cisions regarding benefits by the Veterans Court and then
by this court); Bates v. Nicholson, 398 F.3d 1355, 1362–64
(Fed. Cir. 2005) (recounting history).
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TAYLOR v. MCDONOUGH 17
effective date of an award of disability compensa-
tion to a veteran shall be the day following the date
of the veteran’s discharge or release if application
therefor is received within one year from such date
of discharge or release.”
Id. at 546–47 (alterations in original) (quoting 38 U.S.C.
§ 5110(a)(1), (b)(1)). Several of the specific exceptions, the
Court in Arellano explained, “reflect equitable considera-
tions” that provide for specified, limited departures from
the default rule for the specified circumstances. Id. at 549
& n.2.
The Court in Arellano explained the statute in the
course of addressing the availability of equitable tolling.
On that issue, the Court concluded: “Section 5110 contains
detailed instructions for when a veteran’s claim for benefits
may enjoy an effective date earlier than the one provided
by the default rule. It would be inconsistent with this com-
prehensive scheme for an adjudicator to extend effective
dates still further through the doctrine of equitable toll-
ing.” Id. at 548. The Court noted that it was not “ad-
dress[ing] the applicability of other equitable doctrines,
such as waiver, forfeiture, and estoppel.” Id. at 552 n.3.
Here, it is undisputed that, for Mr. Taylor, 38 U.S.C.
§ 5110 authorizes an effective date no earlier than Febru-
ary 28, 2007, the date that VA received Mr. Taylor’s bene-
fits claim. See Taylor Panel Opening Br. at 13 (“[Mr.
Taylor] could not obtain an [effective date] prior to Febru-
ary 2007 for his award of benefits based on the provisions
of 38 U.S.C. § 5110. This statute unequivocally precludes
an effective date for an award of VA benefits prior to the
date of [the] claim.”); Sec’y En Banc Response Br. at 30.
Mr. Taylor asserts two non-constitutional grounds for over-
riding § 5110’s claim-filing effective-date limit: first, the
general equitable doctrine of equitable estoppel, and sec-
ond, a statute, 38 U.S.C. § 6303, that directs VA to provide
certain outreach services to veterans—even before they file
Case: 19-2211 Document: 104 Page: 18 Filed: 06/15/2023
18 TAYLOR v. MCDONOUGH
claims with VA—concerning benefits for which they might
be eligible. He also asserts a constitutional ground,
namely, that the claim-filing effective-date limits of § 5110
are unconstitutional as applied, because the government,
for decades, denied him his constitutional right of access to
the exclusive adjudicatory forum for vindicating his benefit
entitlement.
These three contentions claim legal errors underlying
the Veterans Court’s rejection of his request for a pre-Feb-
ruary 2007 effective date for benefits. No objection has
been raised to our jurisdiction under 38 U.S.C. § 7292 to
consider any of the three grounds. We view each ground as
seeking a ruling on an issue of law that was either suffi-
ciently raised to or decided (expressly or implicitly) by the
Veterans Court. See Forshey v. Principi, 284 F.3d 1335,
1338 (Fed. Cir. 2002) (en banc), superseded in part by stat-
ute, Veterans Benefits Act of 2002, Pub. L. No. 107-330, tit.
IV, § 402(a), 116 Stat. 2820, 2832 (codified as amended at
38 U.S.C. § 7292), as recognized in Morgan v. Principi, 327
F.3d 1357, 1360–64 (Fed. Cir. 2003). The availability of
equitable estoppel was expressly rejected by the Veterans
Court. Taylor CAVC 2019, 31 Vet. App. at 154 n.4. The
constitutional-right-of-access argument was expressly
made to the Veterans Court, see J.A. 109–13 (Taylor Veter-
ans Court Br. at 14–18), which necessarily, albeit not ex-
plicitly, rejected it, see Taylor CAVC 2019, 31 Vet. App. at
151–52. And we view the Veterans Court as having neces-
sarily deemed § 6303 not to be a precondition to enforcing
the claim-filing effective-date limits of § 5110, though with-
out any § 6303-based argument from Mr. Taylor; the Vet-
erans Court, in discussing equitable tolling, relied on our
Andrews and Rodriguez precedents requiring that result.
Taylor CAVC 2019, 31 Vet. App. at 154–55.
III
Mr. Taylor first relies on equitable estoppel to try to
overcome the § 5110 limit. See Taylor En Banc Opening
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TAYLOR v. MCDONOUGH 19
Br. at 17, 20–49, 65. Equitable estoppel—a doctrine “in-
voked to avoid injustice,” Heckler v. Community Health
Services of Crawford County, Inc., 467 U.S. 51, 59 (1984)—
is rooted in “the maxim that no man may take advantage
of his own wrong,” Glus v. Brooklyn Eastern District Ter-
minal, 359 U.S. 231, 232 (1959). When equitable estoppel
is applied against the government, “some form of affirma-
tive misconduct must be shown in addition to the tradi-
tional requirements of estoppel.” Zacharin v. United
States, 213 F.3d 1366, 1371 (Fed. Cir. 2000) (citing Rich-
mond, 496 U.S. at 414, 421, 426; Immigration & Naturali-
zation Service v. Miranda, 459 U.S. 14, 19 (1982);
Schweiker v. Hansen, 450 U.S. 785, 788 (1981)); see also
Tefel v. Reno, 180 F.3d 1286, 1303 (11th Cir. 1999) (collect-
ing cases showing that every circuit has so held), super-
seded in part by statute, REAL ID Act of 2005, Pub. L. No.
109-13, div. B, 119 Stat. 231, as recognized in Rendon v.
U.S. Attorney General, 972 F.3d 1252, 1256 & n.1 (11th Cir.
2020).
For purposes of this case, we may assume—without de-
ciding—that the government action that caused Mr. Taylor
not to file a claim for decades would meet the standards for
equitable estoppel if that doctrine were available for the
money claim at issue in this case. See, e.g., R.H. Stearns
Co. v. United States, 291 U.S. 54, 61 (1934) (“He who pre-
vents a thing from being done may not avail himself of the
nonperformance which he has himself occasioned, for the
law says to him, in effect: ‘This is your own act, and there-
fore you are not damnified.’” (quoting Dolan v. Rodgers, 44
N.E. 167, 167 (N.Y. 1896); Imperator Realty Co. v. Tull, 127
N.E. 263, 266 (N.Y. 1920))). We also need not decide the
scope of equitable power possessed by the Veterans Court,
beyond noting one limit. Specifically, we may assume—
again, without deciding—that the Veterans Court has all
the equitable power that district courts have to apply equi-
table estoppel in the absence of a specific statutory provi-
sion conferring such power even when money is sought
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20 TAYLOR v. MCDONOUGH
from the public fisc. No one offers any basis for supposing
that the Veterans Court has more such power than that of
Article III courts. That limit is all that is needed to decide
the equitable-estoppel issue here.
On these premises, we hold that the Supreme Court’s
decision in Richmond, 496 U.S. 414, establishes a limit on
the availability of the doctrine of equitable estoppel that
precludes that doctrine’s application here. Richmond’s
limit on the doctrine’s application governs regardless of
whether the doctrine is invoked in a district court, in this
court, or in a non-Article III forum such as the Veterans
Court (or the Board). It applies wherever (as here) there is
no specific statutory provision turning the doctrine’s prin-
ciples into statutory standards so as to displace Richmond.
We reach this conclusion based on direct application of
Richmond, coming to the same conclusion that we reached
in McCay. 4
The Supreme Court in Richmond confined the availa-
bility of the doctrine of equitable estoppel against the fed-
eral government based on the Appropriations Clause of the
Constitution, which states, “No Money shall be drawn from
the Treasury, but in Consequence of Appropriations made
by Law.” U.S. Const. art. I, § 9, cl. 7. The Court held that
“judicial use of the equitable doctrine of estoppel cannot
grant . . . a money remedy that Congress has not author-
ized.” Richmond, 496 U.S. at 426 (citing Immigration &
Naturalization Service v. Pangilinan, 486 U.S. 875, 883
4 We do not invoke the force of McCay as precedent
regarding equitable estoppel. To the extent that the Su-
preme Court’s statement in Arellano that it was not ad-
dressing that doctrine, 143 S. Ct. at 552 n.3, invites us to
consider the applicability of equitable estoppel without
stare decisis reliance on our own earlier governing prece-
dent, we have done so. The Supreme Court did not invite
us to depart from Richmond.
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TAYLOR v. MCDONOUGH 21
(1988)); see also Salazar v. Ramah Navajo Chapter, 567
U.S. 182, 198 n.9 (2012). The doctrine therefore cannot be
invoked to grant Mr. Taylor the monetary award he seeks
if the “applicable statutes” do not authorize the requested
payment of money. McCay, 106 F.3d at 1581.
It is undisputed that Mr. Taylor qualifies for disability
benefits under the applicable basic-entitlement statute, 38
U.S.C. § 1110, which provides for “compensation as pro-
vided in this subchapter” to any disabled veteran who was
other than dishonorably discharged “[f]or disability result-
ing from personal injury suffered or disease contracted in
[the] line of duty . . . in the active military . . . service, dur-
ing a period of war.” But Mr. Taylor’s qualification for ben-
efits under that provision does not end the inquiry. What
is in dispute is how far back such benefits go, i.e., the effec-
tive date of such benefits, and that inquiry is controlled not
by § 1110 (or the subchapter of which it is a part) but by
§ 5110. Notably, the Supreme Court recently confirmed
that the provisions of § 5110 “do not operate simply as time
constraints, but also as substantive limitations on the
amount of recovery due.” Arellano, 143 S. Ct. at 549.
For essentially that reason, in McCay, we treated
§ 5110’s effective-date provisions as substantive limita-
tions on the amount of money that Congress has authorized
to be paid, and we held that Richmond prevents tribunals
from applying equitable estoppel to award “benefits retro-
active to a date” earlier than that authorized by § 5110—
i.e., “money [that] VA is not authorized to pay.” 106 F.3d
at 1581–82. That result, we reaffirm, follows from Rich-
mond. And it is further supported by the characterization
of § 5110’s limits in Arellano.
As we have noted, it is undisputed that § 5110 bars the
pre-February 28, 2007 effective date that Mr. Taylor seeks,
see Taylor Panel Opening Br. at 12–13; Sec’y En Banc Re-
sponse Br. at 30, because VA received his benefits claim on
February 28, 2007, more than one year after Mr. Taylor’s
Case: 19-2211 Document: 104 Page: 22 Filed: 06/15/2023
22 TAYLOR v. MCDONOUGH
date of discharge, September 6, 1971, J.A. 28, 38. The
§ 5110(b)(1) exception is inapplicable. No other § 5110 ex-
ception is invoked. And § 5110(a)(1)’s general rule—that
“the effective date of an award . . . of compensation . . . shall
not be earlier than the date of receipt of application there-
for”—therefore governs.
Mr. Taylor has not identified any provision (and we are
aware of none) in which Congress has turned equitable-es-
toppel standards into statutory standards that could alter
the results required by the § 5110 provisions for determin-
ing an effective date. No such authority appears in the
statutory provisions governing the decision of the regional
office (sometimes called the agency of original jurisdiction),
i.e., “the Secretary,” see, e.g., 38 U.S.C. § 511, §§ 5101–
5109; the provisions governing decisions by the Board, see,
e.g., id. §§ 7101–7113, especially § 7104; the provisions gov-
erning review in the Veterans Court, see, e.g., id. §§ 7251–
7269, especially §§ 7252 and 7261; or the provisions gov-
erning this court’s limited-scope review of the Veterans
Court’s decisions, see id. § 7292. See generally Burris v.
Wilkie, 888 F.3d 1352, 1356–61 (Fed. Cir. 2018) (describing
many of the statutes and explaining, in particular, the con-
trolling force of statutory standards, not to be altered by
equity, in the Veterans Court). Nothing in the statutes
that govern here supplies an authorization greater than do
the various statutory provisions applicable in the various
cases in which the Richmond bar on the use of equitable
estoppel was applied. 5
5 See, e.g., Richmond, 496 U.S. 414 (proceeding in an
appeal from Merit Systems Protection Board, involving 5
U.S.C. §§ 7701–7703); Affordable Bio Feedstock, Inc. v.
United States, 42 F.4th 1288 (11th Cir. 2022) (tax-refund
claim in district court, involving, e.g., 26 U.S.C. § 7422 and
28 U.S.C. § 1346); Kilgour v. Securities & Exchange
Case: 19-2211 Document: 104 Page: 23 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 23
Congress has separately granted the Secretary of Vet-
erans Affairs certain equity-based authority:
If the Secretary determines that benefits adminis-
tered by the Department have not been provided by
reason of administrative error on the part of the
Federal Government or any of its employees, the
Secretary may provide such relief on account of
such error as the Secretary determines equitable,
including the payment of moneys to any person
whom the Secretary determines is equitably enti-
tled to such moneys.
38 U.S.C. § 503(a); see 38 U.S.C. § 212(c)(2) (1970) (provid-
ing similar authority to the “Administrator,” at the time
the head of VA). That authority is “discretion[ary].”
Groves v. McDonough, 34 F.4th 1074, 1077 n.2 (Fed. Cir.
2022). At oral argument before the en banc court, the gov-
ernment expressed doubt that Mr. Taylor’s situation comes
within the “administrative error” language of § 503(a),
while noting that Mr. Taylor had not sought relief from the
Secretary under that provision, En Banc Oral Arg. at
1:02:50–1:03:50, and Mr. Taylor immediately “agree[d]”
that the provision does not apply to his situation, id. at
1:03:57–1:04:15. Regardless, no “equitable” language like
the language in § 503(a) appears in the provisions
Commission, 942 F.3d 113 (2d Cir. 2019) (whistleblower
claim, involving, e.g., 5 U.S.C. § 706 and 15 U.S.C. § 78u-
6(f)); Deaf Smith County Grain Processors, Inc. v. Glick-
man, 162 F.3d 1206 (D.C. Cir. 1998) (farm-subsidy and dis-
aster-relief claims, involving, e.g., 5 U.S.C. § 706 and 7
U.S.C. § 6999); Perez v. United States, 156 F.3d 1366 (Fed.
Cir. 1998) (money claims in Court of Federal Claims, in-
volving, e.g., 10 U.S.C. § 634 and 28 U.S.C. § 1491); Monon-
gahela Valley Hospital, Inc. v. Sullivan, 945 F.2d 576 (3d
Cir. 1991) (Medicare reimbursement claim, involving, e.g.,
5 U.S.C. § 706 and 42 U.S.C. § 1395oo(f) (1988)).
Case: 19-2211 Document: 104 Page: 24 Filed: 06/15/2023
24 TAYLOR v. MCDONOUGH
governing the VA–Board process involved in this appeal.
The contrast confirms that Congress has not made equita-
ble-estoppel standards statutory in this context so as to
make Richmond inapplicable. See, e.g., Keene Corp. v.
United States, 508 U.S. 200, 208 (1993) (“Where Congress
includes particular language in one section of a statute but
omits it in another, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion
or exclusion.” (cleaned up)).
We therefore hold that, under Richmond, equitable es-
toppel is not available to override the claim-filing effective-
date limits of § 5110.
IV
In the supplemental brief he submitted after the Su-
preme Court decided Arellano, Mr. Taylor invoked what is
now 38 U.S.C. § 6303 to support his request for an effective
date earlier than the date allowed by § 5110. Taylor En
Banc Supp. Br. at 4–7. Section 6303, entitled “outreach
services,” is part of a group of provisions for an “outreach
services program,” 38 U.S.C. §§ 6301–6308, constituting
chapter 63 of Title 38. That group begins, in § 6301, with
a general statement of purpose of the outreach services pro-
gram “authorized” in what follows—to ensure that all vet-
erans “are provided timely and appropriate assistance to
aid and encourage them in applying for and obtaining” VA
benefits and services and to “charg[e] [VA] with the affirm-
ative duty of seeking out eligible veterans and eligible de-
pendents and providing them with such services.” Id.
§ 6301(a). Mr. Taylor refers to § 6301, but if, as we con-
clude, even the directive of § 6303 cannot help him here,
Case: 19-2211 Document: 104 Page: 25 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 25
the mere statement of purpose cannot do so either, so we
limit our discussion to § 6303. 6
Section 6303(b) (originally § 241(1), later § 7722(b))
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.” 38 U.S.C. § 6303(b).
Subsection (c) (originally § 241(2), later § 7722(c)) provides
that VA “shall distribute full information to eligible veter-
ans . . . regarding all benefits and services to which they
may be entitled under laws administered by the Secretary.”
Id. § 6303(c)(1)(A). Subsection (d) (originally § 241(3), later
§ 7722(d)) states that VA “shall provide, to the maximum
extent possible, aid and assistance (including personal in-
terviews) to . . . veterans . . . with respect to subsections (b)
6 Congress enacted the outreach-services provisions
in 1970 as 38 U.S.C. §§ 240–244. Veterans Education and
Training Amendments Act of 1970, Pub. L. No. 91-219,
§ 214, 84 Stat. 76, 84–85 (enacting 38 U.S.C. §§ 240–244).
In 1991, Congress recodified the group of provisions as 38
U.S.C. §§ 7721–7726. Department of Veterans Affairs Cod-
ification Act, Pub. L. No. 102-83, § 2(b), 105 Stat. 378, 400–
02 (1991). In 2006, Congress again recodified the group of
provisions, which are now 38 U.S.C. §§ 6301–6308. Veter-
ans’ Housing Opportunity and Benefits Improvement Act
of 2006, Pub. L. No. 109-233, § 402, 120 Stat. 397–407. The
provisions Mr. Taylor has cited are what are now § 6301
(originally § 240, later § 7721) and § 6303 (originally § 241,
later § 7722). The parties have not suggested that any dif-
ferences in wording over the decades make a difference to
our consideration of these provisions, so for simplicity we
use the current provisions for our discussion, sometimes
with parenthetical notation of their predecessors.
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26 TAYLOR v. MCDONOUGH
and (c) and in the preparation and presentation of claims
under laws administered by [VA].” Id. § 6303(d).
Mr. Taylor might be making either or both of two pos-
sible arguments about § 6303. One is that the provision
justifies the application of equitable estoppel here even if
compliance with § 6303 is not a statutory precondition to
enforcing the claim-filing effective-date limits of § 5110.
The other is that § 6303 compliance is such a precondition,
so that the pair of statutes together mean that enforcing
the § 5110 limits would be contrary to statute if there is
noncompliance with § 6303 (making equitable estoppel and
hence Richmond beside the point). We decline to adopt ei-
ther proposition.
The first possible argument must be rejected for the
simple reason that it is contrary to Richmond. If § 6303 is
not a statutory precondition to enforcing the claim-filing
effective-date limits of § 5110, then Richmond squarely ap-
plies. Using the doctrine of equitable estoppel to disregard
the § 5110 limits would be awarding money contrary to
statutory authorization.
We decline to accept the second possible argument but
not because Richmond stands in the way. After all, where
one statutory provision imposes a duty on an agency, and
the agency’s compliance with that statutory duty is
properly understood to be a precondition to enforcing a ben-
efit restriction stated in another statutory provision, Rich-
mond does not prohibit awarding the benefit without
regard to the benefit restriction if the precondition duty is
not fulfilled. We have so held repeatedly. See, e.g., Brush
v. Office of Personnel Management, 982 F.2d 1554, 1561–
64 (Fed. Cir. 1992); Johnston v. Office of Personnel Man-
agement, 413 F.3d 1339, 1341–42 (Fed. Cir.), modified, 430
F.3d 1376 (Fed. Cir. 2005) (mem.) (per curiam);
Dachniwskyj v. Office of Personnel Management, 713 F.3d
99, 102–03 (Fed. Cir. 2013). In such a situation, the two
provisions together establish the statutory standard for a
Case: 19-2211 Document: 104 Page: 27 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 27
benefit award; and when the precondition provision has
been violated, it is enforcing (not failing to enforce) the re-
striction provision that would be contrary to statute, and
the proper result is to provide the claimant what would
have been paid had there been no precondition-provision
violation. See Pirkl v. Wilkie, 906 F.3d 1371, 1378 (Fed.
Cir. 2018) (“[T]he fundamental principle of corrective rem-
edies that is used throughout the law, though sometimes
with modifications” is that “[t]he injured party is to be
placed, as near as may be, in the situation he would have
occupied if the wrong had not been committed.” (quoting
Wicker v. Hoppock, 73 U.S. (6 Wall.) 94, 99 (1867), and cit-
ing, among other authorities, Missouri v. Jenkins, 515 U.S.
70, 87 (1995))). The basis for such an award is not the doc-
trine of equitable estoppel, which adds nothing to what is
simply a statutory-violation and remedy analysis. It is that
analysis, not equitable estoppel, on which Brush and simi-
lar cases rely. In such circumstances, Richmond is inap-
plicable because the doctrine of equitable estoppel (which
is what Richmond limits) is not the basis of decision.
The problem with Mr. Taylor’s second possible argu-
ment is instead with the merits of the contention that VA’s
compliance with § 6303 is a precondition to enforcing
§ 5110’s claim-filing effective-date limits. In fact, we have
twice held the opposite, i.e., that VA’s compliance with
§ 6303 is not a precondition to enforcing the “unequivocal
command” of § 5110. Rodriguez, 189 F.3d at 1355. In Ro-
driguez, we held that § 6303(d) (at the time § 7722(d)) does
not “create any enforceable rights” because the statute does
not “prescribe[] any remedy for breach.” Id. We concluded
instead that § 6303(d) is “hortatory” rather than a provi-
sion imposing “enforceable legal obligations upon the Sec-
retary” that condition enforcement of the § 5110 limits. Id.
Later, in Andrews, 351 F.3d 1134, we applied Rodriguez’s
reasoning to hold that § 6303(b) and (c) (at the time
§ 7722(b) and (c)) are likewise not preconditions to enforc-
ing the § 5110 limits, stating: “VA’s failure to notify under
Case: 19-2211 Document: 104 Page: 28 Filed: 06/15/2023
28 TAYLOR v. MCDONOUGH
§ [6303(b)] and (c)(1) may not serve as the basis for award-
ing an effective date in contravention of [§ 5110].” Id. at
1137.
The clarity of those binding precedents establishing
that compliance with § 6303 is not a precondition to en-
forcement of the claim-filing effective-date limits of § 5110
is why we do not hold that Mr. Taylor forfeited his current
argument for linking the two provisions by not presenting
such an argument to the Veterans Court or to the panel,
where the argument, which would require a sharp change
in the law that bound the Veterans Court and the panel,
would have been futile. See, e.g., In re Micron Technology,
Inc., 875 F.3d 1091, 1097–98 (Fed. Cir. 2017) (citing au-
thorities that recognize the futility of an argument requir-
ing a departure from clear, binding precedent as a reason
not to find forfeiture from the non-raising of an issue); In
re Montreal Maine & Atlantic Railway, Ltd., 953 F.3d 29,
38 n.2 (1st Cir. 2020). To conclude now that § 6303 compli-
ance is a precondition to enforcement of the § 5110 limits
at issue, we would have to overcome the force of stare deci-
sis and overrule Andrews and Rodriguez. See Robert
Bosch, LLC v. Pylon Manufacturing Corp., 719 F.3d 1305,
1316–17 (Fed. Cir. 2013) (en banc) (recognizing the force of
stare decisis when the en banc court considers adopting a
position contrary to longstanding panel precedent). Statu-
tory rulings carry particular stare decisis force because
Congress can change them. Id. at 1317 (citing John R.
Sand & Gravel Co. v. United States, 552 U.S. 130, 139
(2008)); see Kimble v. Marvel Entertainment, LLC, 576 U.S.
446, 456 (2015) (statutory precedents carry “enhanced
force”); see also Gamble v. United States, 139 S. Ct. 1960,
1969 (2019) (“special justification” required to overrule
even a constitutional precedent); Arizona v. Rumsey, 467
U.S. 203, 212 (1984) (same).
Mr. Taylor conspicuously declines to even ask us to
overrule Andrews or Rodriguez, and he makes no argument
for doing so. He merely points out differences in facts
Case: 19-2211 Document: 104 Page: 29 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 29
between his case and the facts of those cases, stating that
this case involves more than “ordinary negligence” and
that “[t]here is no dispute that the VA’s ordinary negli-
gence in failing to provide a form or reach an individual
veteran with notice of the availability of benefits as pro-
vided in § 241 and its successor statutes [§ 7722, now
§ 6303] does not extend the effective date provision of 38
U.S.C. § 5110(b)(1).” Taylor En Banc Supp. Br. at 5. But
stare decisis covers the clearly, twice-stated legal principle
that was the rationale of the decisions—that § 6303 com-
pliance is not a precondition to enforcing the § 5110 lim-
its—not just the conclusion on the particular facts. See,
e.g., Bucklew v. Precythe, 139 S. Ct. 1112, 1126 (2019); Sem-
inole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996);
Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1305 (Fed.
Cir. 2020).
At least in the absence of a request to overrule Andrews
and Rodriguez, let alone a developed argument for doing
so, we decline to overrule them or, therefore, to disturb the
conclusion on which they rely. There are in fact strong ob-
stacles to any such overruling. And we have not been pre-
sented with any meaningful argument for overcoming
them.
For one thing, the Andrews and Rodriguez precedents,
which reject the link that Mr. Taylor’s argument requires,
are perfectly consistent with the text of the statutes. Nei-
ther § 5110 nor § 6303 refers to the other. And while
§ 6303 imposes certain notice and aid obligations, it says
nothing about the distinct issue of relevance here—what
consequence must follow failure to fulfill those obligations.
In particular, it says nothing to the effect that any claim-
filing effective-date limit of § 5110 becomes unenforceable
as a result of such a failure. Nor has Mr. Taylor indicated
why there is anything surprising about an “outreach ser-
vices” obligation not being linked to the claim-deciding
rules. Moreover, the absence of the link Mr. Taylor re-
quires is bolstered by the placement of the provisions in
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30 TAYLOR v. MCDONOUGH
distinct chapters of Title 38: Section 5110 is part of chapter
51 (“Claims, Effective Dates, and Payments”), whereas
§ 6303 is part of chapter 63 (“Outreach Activities”). 7
The precedents are two decades old. See Gamble, 139
S. Ct. at 1969 (explaining that the strength of the argu-
ment for adhering to particular precedents “grows in pro-
portion to their ‘antiquity’” (quoting Montejo v. Louisiana,
556 U.S. 778, 792 (2009))). Congress has reenacted the pro-
visions now codified at 38 U.S.C. § 6303 since then. See,
e.g., Dames & Moore v. Regan, 453 U.S. 654, 680–81 (1981)
(noting that Congress having “frequently amended the In-
ternational Claims Settlement Act . . . demonstrat[ed] Con-
gress’[s] continuing acceptance” of the “practice of claim
settlement by executive agreement”). It reenacted the
1991-enacted § 7722 as § 6303 in 2006. See supra n.6 (de-
tailing the history of § 6303). And in the past three years,
Congress has reenacted § 6303 twice more. See William M.
(Mac) Thornberry National Defense Authorization Act for
Fiscal Year 2021, Pub. L. No. 116-283, § 926(a)(59), 134
Stat. 3388, 3830 (2021); Solid Start Act of 2022, Pub. L. No.
117-205, § 2(b)(2), 136 Stat. 2232, 2233. No reenactment,
despite making some changes to the provisions, has dis-
turbed this court’s holding in Andrews and Rodriguez that
enforcement of the claim-filing effective-date limits of
§ 5110 is not conditioned on fulfillment of the outreach
7 The chapter separation was a feature of the prede-
cessor provisions as well. The 1970 provisions, §§ 240–244,
were in chapter 3 (“Veterans’ Administration; Officers and
Employees”), while the predecessor of current § 5110,
namely, § 3010, was in chapter 51 (“Applications, Effective
Dates, and Payments”). See 38 U.S.C. Table of Contents
(1976). The 1991 provisions, §§ 7721–7726, were in chap-
ter 77 (“Veterans Benefits Administration”), while § 5110
was in chapter 51 (“Claims, Effective Dates, and Pay-
ments”). See 38 U.S.C. Table of Contents (1994).
Case: 19-2211 Document: 104 Page: 31 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 31
duties of § 6303. We give weight to this fact without the
need to make it dispositive.
Recognizing such a link now, moreover, would raise a
serious issue of possible inconsistency with the congres-
sional judgment that has long limited to claimants (in con-
trast to the broad class of mere potential future claimants)
the enforceable duty to assist stated in 38 U.S.C. § 5103A.
That provision requires VA to, among other things, “make
reasonable efforts to assist a claimant in obtaining evi-
dence necessary to substantiate the claimant’s claim for a
benefit under a law administered by the Secretary.” 38
U.S.C. § 5103A(a)(1). It traces back to the 1988 enactment
of 38 U.S.C. § 3007(a) (1988) (“The Administrator shall as-
sist such a claimant in developing the facts pertinent to the
claim.”), see Veterans’ Judicial Review Act, Pub. L. No. 100-
687, div. A, tit. I, § 103(a), 101 Stat. 4105, 4106–07 (1988),
which “codif[ied]” an earlier regulatory duty, Hayre v. West,
188 F.3d 1327, 1331 (Fed. Cir. 1999), overruled on other
grounds by Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002)
(en banc). The “claimant” limitation has persisted through
amendments and recodifications, 8 with Congress in 2022
providing an express definition for chapter 51: “The term
‘claimant’ means any individual applying for, or submitting
a claim for, any benefit under the laws administered by the
Secretary.” Sergeant First Class Heath Robison Honoring
Our Promise to Address Comprehensive Topics Act of 2022,
8 See Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, § 3(a), 114 Stat. 2096, 2097–98; Honoring
America’s Veterans and Caring for Camp Lejeune Families
Act of 2012, Pub. L. No. 112-154, tit. V, § 505(a), 126 Stat.
1165, 1192–93; Veterans Appeals Improvement and Mod-
ernization Act of 2017, Pub. L. No. 115-55, § 2(c), (d), 131
Stat. 1105, 1105–06; William M. (Mac) Thornberry Na-
tional Defense Authorization Act for Fiscal Year 2021
§ 926(a)(51), 134 Stat. at 3830.
Case: 19-2211 Document: 104 Page: 32 Filed: 06/15/2023
32 TAYLOR v. MCDONOUGH
Pub. L. No. 117-168, tit. VIII, § 807(a)(1), 136 Stat. 1759,
1805 (codified at 38 U.S.C. § 5100(1)).
The enforceable assistance duty in chapter 51, which
does not attach until claiming, fits closely with the claim-
filing effective-date limits of § 5110. Making those limits
unenforceable for noncompliance with § 6303, which ap-
plies to notice and aid to veterans for what may be many
years before claiming, would have a large potential disrup-
tive effect on the claim-filing effective-date limits of benefit
awards. Such “practical consequences” seem out of keeping
with the longstanding, repeated congressional actions just
described. Stoneridge Investment Partners, LLC v. Scien-
tific-Atlanta, Inc., 552 U.S. 148, 163 (2008); see Whitman v.
American Trucking Associations, 531 U.S. 457, 468 (2001)
(“Congress . . . does not, one might say, hide elephants in
mouseholes.”).
Mr. Taylor proposes that a link between § 6303 and
§ 5110 can be limited to the type of affirmative secrecy-oath
action that deters claim filing that is at issue here. Taylor
En Banc Supp. Br. at 5–6. But there is no language in
§ 6303 that would support such a limit. The duties imposed
are not in any way confined to avoidance of such action;
they are duties of affirmative notice and aid. Moreover, the
contours of those duties are uncertain, not having been
part of benefits litigation for at least two decades (perhaps
back to the enactment of the outreach duties), and there is
a high potential for injecting new issues without straight-
forward answers into benefits litigation if the effective date
of benefits were now to depend on fulfillment of those du-
ties. The potential consequences of adopting Mr. Taylor’s
§ 6303 argument thus appear to be considerably greater
than the consequences of reaching the narrow conclusion
on the constitutional right of access discussed (and
adopted) next, which is confined to the affirmative secrecy-
oath action, with adjudication-foreclosing and claim-deter-
ring effects, involved in this matter.
Case: 19-2211 Document: 104 Page: 33 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 33
In short, “the practical problems” identified here “are
too serious, too extensive, and too likely to come about for
us to dismiss them as insignificant.” Kirtsaeng v. John
Wiley & Sons, Inc., 568 U.S. 519, 545 (2013). For that rea-
son and the others that we have set forth, we are not pre-
pared to overrule Andrews or Rodriguez. We therefore
decline to disturb our precedent under which VA’s compli-
ance with § 6303 is not a precondition to enforcing § 5110’s
claim-filing effective-date limits.
V
We next consider Mr. Taylor’s constitutional argument
that the government violated his fundamental right of ac-
cess to the exclusive adjudicatory forum for vindication of
his legal entitlement to VA disability benefits. See Taylor
En Banc Opening Br. at 18–19, 49–65. The government
makes no suggestion that Mr. Taylor forfeited this argu-
ment in this litigation or that he waived the constitutional
right by taking the secrecy oath. We hold that Mr. Taylor
succeeds on this ground.
A
1
“The Supreme Court has long recognized that citizens
have a right of access to the courts.” Broudy v. Mather, 460
F.3d 106, 117 (D.C. Cir. 2006). Having explained early on
that “[t]he very essence of civil liberty certainly consists in
the right of every individual to claim the protection of the
laws,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163
(1803), the Supreme Court elaborated in 1907:
The right to sue and defend in the courts is the al-
ternative of force. In an organized society it is the
right conservative of all other rights, and lies at the
foundation of orderly government. It is one of the
highest and most essential privileges of citizenship,
and must be allowed by [the government] . . . .
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34 TAYLOR v. MCDONOUGH
Chambers v. Baltimore & Ohio Railroad Co., 207 U.S. 142,
148 (1907). The Supreme Court has reaffirmed the right of
access several times, see, e.g., Lewis v. Casey, 518 U.S. 343,
350 (1996) (“The right that [we] acknowledged was the (al-
ready well-established) right of access to the courts.” (em-
phasis omitted)); Bounds v. Smith, 430 U.S. 817, 824 (1977)
(“[O]ur decisions have consistently required States to
shoulder affirmative obligations to assure all prisoners
meaningful access to the courts.”), and it has explained
that the right embraces access to executive agencies in
suitable circumstances as well as to the courts, see Borough
of Duryea v. Guarnieri, 564 U.S. 379, 394 (2011) (explain-
ing that the First Amendment’s “Petition Clause protects
the right of individuals to appeal to courts and other fo-
rums established by the government for resolution of legal
disputes”); California Motor Transport Co. v. Trucking Un-
limited, 404 U.S. 508, 513 (1972) (applying the right of ac-
cess to an executive agency).
In Christopher v. Harbury, the Court observed that it
has “grounded the right of access” in various constitutional
provisions—“the Article IV Privileges and Immunities
Clause, the First Amendment Petition Clause, the Fifth
Amendment Due Process Clause, and the Fourteenth
Amendment Equal Protection and Due Process Clauses.”
536 U.S. at 415 n.12 (citations omitted) (collecting cases).
Those multiple roots reflect the Chambers-recognized foun-
dational character of the right in our legal system. See,
e.g., 1 William Blackstone, Commentaries, *141 (noting
that the common law of England granted the right “of ap-
plying to the courts of justice for redress of injuries”). For
such reasons, the Supreme Court has characterized the
right of access as a “fundamental right.” Tennessee v. Lane,
541 U.S. 509, 533 (2004); see id. at 533–34 (recognizing con-
gressional power under Section 5 of the Fourteenth
Amendment to enforce “the fundamental right of access to
the courts”); Lewis, 518 U.S. at 346 (discussing what “the
fundamental constitutional right of access to the courts
Case: 19-2211 Document: 104 Page: 35 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 35
requires” (quoting Bounds, 430 U.S. at 828)); see also, e.g.,
Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057,
1061 (9th Cir. 2014) (“The right of access to the courts is a
fundamental right protected by the Constitution.” (cleaned
up)); Swekel v. City of River Rouge, 119 F.3d 1259, 1261
(6th Cir. 1997) (“It is beyond dispute that the right of access
to the courts is a fundamental right protected by the Con-
stitution.” (cleaned up)).
The Court in Christopher noted that a claim of denial
of the access right necessarily refers to an underlying enti-
tlement and opportunity to litigate that entitlement and
can take either of two perspectives regarding that oppor-
tunity. It can be forward-looking, in the sense that it com-
plains of current frustration of still-available access to a
forum for vindicating an underlying entitlement and seeks
that access now; or it can be backward-looking, in the sense
that it complains of past frustration of such access where
that access is no longer available. 536 U.S. at 413–14. In
both categories, “the ultimate justification . . . is the same”:
“Whether an access claim turns on a litigating opportunity
yet to be gained or an opportunity already lost, the very
point of recognizing any access claim is to provide some ef-
fective vindication for a separate and distinct right to seek
judicial relief for some wrong.” Id. at 414–15. The right of
access is thus “ancillary to the underlying claim, without
which a plaintiff cannot have suffered injury by being shut
out of court.” Id. at 415. And “when the access claim . . .
looks backward,” the one asserting a right-of-access viola-
tion “must identify a remedy that may be awarded as rec-
ompense but not otherwise available in some suit that may
yet be brought.” Id.2
The government here accepts that there is a constitu-
tional right of access to adjudicatory forums and that it ap-
plies to access to the VA benefits adjudicatory system.
Sec’y En Banc Response Br. at 47 (“[A] veteran such as Mr.
Case: 19-2211 Document: 104 Page: 36 Filed: 06/15/2023
36 TAYLOR v. MCDONOUGH
Taylor could assert a constitutional right of access to the
VA benefits system . . . .”); id. at 42–47. The government
does not suggest that a different standard applies because
the initial adjudicator is an agency, rather than an Article
III court, in this matter. Nor does the government dispute
that the requirement at the heart of the Supreme Court’s
decision in Christopher—the existence of an underlying le-
gal entitlement to which a right of access applies, 536 U.S.
at 413–18—is clearly met here. Mr. Taylor has a legal en-
titlement: “The 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 ser-
vice.” George, 142 S. Ct. at 1957 (quoting Sanders, 556 U.S.
at 400). Under 38 U.S.C. § 5110, that entitlement includes
the entitlement to benefits for particular periods but only
if it is claimed on time. The government has cited no con-
gressional elimination or modification of the explicit legal
entitlement, so this case involves executive action asserted
to deprive a claimant of access to an adjudicatory forum to
vindicate a statutory entitlement.
The government also accepts that the VA adjudicatory
process involved in this case is the exclusive means of vin-
dicating that entitlement—assertedly more than three dec-
ades’ worth of compensation for service-connected
disabilities—as a nondiscretionary matter. 9 It points to no
other possible route to securing the compensation to which
the statute grants an entitlement. The government further
accepts that the penalty-backed secrecy oath, with no ex-
ception for VA adjudicatory processes, in fact caused Mr.
Taylor to refrain from filing a claim before 2007, stating:
9 As noted above, 38 U.S.C. § 503(a) grants the Sec-
retary certain authority to award benefits, but that author-
ity is discretionary, and the government has indicated—
and Mr. Taylor has asserted—that the provision is inappli-
cable here. See supra pp. 23–24.
Case: 19-2211 Document: 104 Page: 37 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 37
“[T]he consequence of the oath was that Mr. Taylor re-
frained from seeking benefits until 2007.” Sec’y En Banc
Response Br. at 28; see id. at 26, 33. Accordingly, this case
involves “official acts” that “caused . . . the loss of an oppor-
tunity to seek some particular order or relief”—which is the
definition of the category of backward-looking right-of-ac-
cess claims recognized in Christopher, 536 U.S. at 414.
The government accepts as proper the formulation for
assessing right-of-access claims of this type—given an un-
disputed underlying legal entitlement—stated by the
Ninth Circuit in Silva v. Di Vittorio, which speaks of “ac-
tive interference” that is “undue.” 658 F.3d 1090, 1103 (9th
Cir. 2011); see Sec’y En Banc Response Br. at 46 (“[T]he
‘active interference’ that is labeled ‘undue’ test from Silva
is consistent with Christopher v. Harbury and is an appro-
priate alternative test for right of access to the court
claims.”); id. at 9. As applied to an exclusive adjudicatory
forum, this approach asks whether the government has, by
affirmative conduct, unduly interfered with the individ-
ual’s access to the adjudication offered by the forum. See
also Snyder v. Nolen, 380 F.3d 279 (7th Cir. 2004) (per cu-
riam) (applying a similar test). The government notes that,
in Christopher, “[t]he Supreme Court did not explicitly
adopt or establish a test for the denial of a right of access,”
Sec’y En Banc Response Br. at 45, and the government does
not elsewhere identify a general test specifying further de-
tails of the constitutional standard, including what levels
of interference suffice and how the government might jus-
tify actions that do interfere with access. We follow the
Silva formulation, applied in light of the fundamental
character of the right at issue.
B
In this case, as noted, the government took the affirm-
ative act of securing a secrecy oath backed by court-martial
and prosecution threats, with no exception for VA adjudi-
catory processes. That act, which would naturally be
Case: 19-2211 Document: 104 Page: 38 Filed: 06/15/2023
38 TAYLOR v. MCDONOUGH
understood as foreclosing the ability to support an essen-
tial element of the standard for benefits, actually caused
Mr. Taylor to refrain from filing the claim at issue to vin-
dicate his legal entitlement for a period of up to three and
a half decades—until the government generally lifted the
secrecy restriction. Under § 5110, the absence of an earlier
claim foreclosed pre-filing benefits to which Mr. Taylor was
entitled. And there is an evident “remedy that may be
awarded as recompense but not otherwise available in
some suit that may yet be brought,” Christopher, 536 U.S.
at 415—namely, determining the effective date for benefits
by disregarding the statutory limits that are unconstitu-
tional as applied.
The government makes essentially three arguments
for nevertheless rejecting Mr. Taylor’s request for relief on
this constitutional ground. First, it contends that the in-
terference was not severe enough. Sec’y En Banc Response
Br. at 47–52. Second, it contends that the governmental
interest in secrecy made the interference justified (and
hence not “undue”). Id. at 52–54. Third, it contends that,
even if there was sufficiently active and undue interfer-
ence, “Mr. Taylor cannot identify an available remedy.” Id.
at 42, 54–56. We reject these arguments.
1
The secrecy oath, backed by the possibility of court-
martial or prosecution, was ample affirmative interference
with the right of access at issue—access to meaningful ad-
judicatory processes in the exclusive forum in which Mr.
Taylor could have vindicated the entitlement at issue. The
oath undisputedly did cause Mr. Taylor not to file a claim.
This was its natural, predictable effect. The oath did not
state an exception for VA processes, and both Mr. Taylor
and the government must have known that the standard
for vindicating the entitlement—establishment of service
connection of the disability, 38 U.S.C. § 310 (1970) (now
§ 1110)—could not be met without information about the
Case: 19-2211 Document: 104 Page: 39 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 39
Edgewood program that was squarely within the secrecy
oath. And the government has not identified any commu-
nication from the Executive that would have informed Mr.
Taylor that VA on its own would secure all information
needed for the adjudication of this essential element. At
least in the absence of such a communication making clear
how Mr. Taylor could file a claim and obtain a meaningful
adjudication, the penalty-backed oath readily counts as a
barrier to access of the VA adjudicatory system for vindica-
tion of the benefit entitlement.
The government itself states: “[T]he Secretary does not
mean to suggest that a veteran should have to risk prose-
cution in order to apply for benefits.” Sec’y En Banc Re-
sponse Br. at 51. The Supreme Court has elsewhere
recognized the common-sense point that a threat of prose-
cution can operate as an effective barrier to court access.
See, e.g., Ex parte Young, 209 U.S. 123, 148 (1908) (“[T]o
impose upon a party interested the burden of obtaining a
judicial decision of such a question (no prior hearing having
ever been given) only upon the condition that, if unsuccess-
ful, he must suffer imprisonment and pay fines, as pro-
vided in these acts, is, in effect, to close up all approaches
to the courts . . . .”); see also Steffel v. Thompson, 415 U.S.
452, 459 (1974) (“[I]t is not necessary that petitioner first
expose himself to actual arrest or prosecution to be entitled
to challenge a statute that he claims deters the exercise of
his constitutional rights.”); MedImmune, Inc. v. Genentech,
Inc., 549 U.S. 118, 128–29 (2007) (“[W]here threatened ac-
tion by government is concerned, we do not require a plain-
tiff to expose himself to liability before bringing suit to
challenge the basis for the threat . . . .”). The government
points to no authority to support a conclusion that a threat
of court-martial or prosecution covering disclosure of claim-
ant-possessed reliable information relevant and necessary
to a desired adjudication, with no known avenue for pro-
ceeding without such disclosure, is insufficient to consti-
tute active interference for purposes of the constitutional
Case: 19-2211 Document: 104 Page: 40 Filed: 06/15/2023
40 TAYLOR v. MCDONOUGH
right of access. Mr. Taylor, we conclude, was “shut out of
court” and “completely foreclosed” from obtaining an adju-
dication, so that his filing a claim would have been “fu-
tile”—to use the language the government quotes from the
Supreme Court’s Christopher v. Harbury decision, 536 U.S.
at 415, and the D.C. Circuit’s opinion in Harbury v. Deutch,
244 F.3d 956, 957 (D.C. Cir. 2001). Sec’y En Banc Response
Br. at 43, 45, 47–48. We do not address any other circum-
stance. 10
The government asserts that two or three veterans
cited the Edgewood program in seeking benefits before the
partial declassification in 2006. See Sec’y En Banc Re-
sponse Br. at 49–50. 11 The existence of a few such risk-
10 Neither the Supreme Court nor the D.C. Circuit
used that language to declare a minimum requirement;
both were simply discussing the plaintiff’s own characteri-
zation of her situation—which the D.C. Circuit held the
plaintiff should have an opportunity to prove, and which
the Supreme Court assumed in the course of reversing on
other grounds (the absence of a threshold identification
and determination of the underlying entitlement and cause
of action for redress lost by virtue of the challenged govern-
ment action). In fact, the Supreme Court elsewhere used
the language of “frustrating” access. Christopher, 536 U.S.
at 413. We have no occasion to address any facts showing
an impairment of access to an adjudication less severe than
present in this case.
11 The government cites Hospedale v. Shulkin, No.
16-3360, 2018 WL 794875 (Vet. App. Feb. 9, 2018), Forrest
v. McDonald, No. 14-1572, 2015 WL 3453892 (Vet. App.
June 1, 2015), and DiAngelis v. McDonough, No. 19-8769,
2021 WL 1901184 (Vet. App. May 12, 2021). In Forrest, it
appears that the veteran first filed an Edgewood-related
claim for benefits after 2006, though he sought treatment
from the VA earlier. Forrest, 2015 WL 3453892, at *2.
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TAYLOR v. MCDONOUGH 41
takers does not undermine the general conclusion. That is
especially so because of how little the government has
shown about the three veterans’ cases it cites. We have not
been told whether any of those veterans were prosecuted
and if not, why not; e.g., perhaps the information disclosed
was too slight or there were case-specific reasons underly-
ing prosecutorial exercise of discretion. The government
also does not assert, and the opinions do not suggest, that
any of those veterans (or others, for that matter) actually
succeeded before 2006 on an Edgewood claim, which may
mean that even these veterans did not feel free to disclose
information needed to prove service connection. Thus,
these few matters do not even show the non-futility of seek-
ing Edgewood-based benefits before 2006. Regardless, they
do not support treating the penalty-backed oath as less
than an interference with access to the needed adjudicatory
process for constitutional purposes.
Relatedly, the government asserts that the oath “does
not contain an explicit prohibition on discussing the Edge-
wood [p]rogram with [f]ederal agencies such as . . . VA.” Id.
at 49. But as noted above, the government acknowledges
that the oath did actually cause Mr. Taylor not to file an
Edgewood-based benefits claim before 2007, see id. at 26,
28, and no “explicit” reference to VA, by name, was needed
for the oath to be reasonably and predictably read by vet-
erans as reaching VA. Nothing in the oath informed its
signers that VA was something other than an “organization
. . . or other group or entity[] not officially authorized to re-
ceive such information.” S. Rep. No. 94-755, Book I, at 418.
It seems to us an unsound application of the right of access
to hold that a former servicemember loses the right by “in-
terpret[ing] the oath in the way most beneficial to the gov-
ernment” rather than testing its limits without
authorization—a choice one might expect and even com-
mend. Taylor En Banc Reply Br. at 26; see En Banc Oral
Arg. at 42:40–43:15 (The court: “Are you saying that the
government has a compelling interest in having their
Case: 19-2211 Document: 104 Page: 42 Filed: 06/15/2023
42 TAYLOR v. MCDONOUGH
soldiers interpret their secrecy oaths narrowly? . . . I think
you would want . . . those secrecy oaths to be interpreted as
broadly as possible.” The government: “The Secretary rec-
ognizes that there are holes in our oath interpretation ar-
gument.”).
The reasonableness of Mr. Taylor’s view of the oath is
confirmed by the 2006 letter that VA sent to him and other
Edgewood veterans. The letter stated that the Department
of Defense had granted limited permission for Edgewood
veterans “to disclose to health care providers information
about their involvement in the Edgewood Program that af-
fected their health,” Taylor CAVC 2019, 31 Vet. App. at 149
(citing Vet. Ct. Rec. at 2695–97), but warned “not [to] dis-
cuss anything that relates to operational information that
might reveal chemical or biological warfare vulnerabilities
or capabilities,” J.A. 32. This letter indicates that Edge-
wood veterans were not authorized to provide details about
Edgewood to VA (which provides health care to many vet-
erans) before the 2006 partial declassification—and that
the government considered the oath to be enforceable after
discharge.
The government further argues that it did not “en-
tirely,” Sec’y En Banc Response Br. at 9, and “completely
foreclose[]” Mr. Taylor from accessing VA because, the gov-
ernment maintains, he could have filed a “minimal claim
before 2006 without divulging classified information,” id.
at 48. The government acknowledges, however, that such
“a minimal claim likely would have been insufficient for
Mr. Taylor to obtain service connection.” Id. The govern-
ment’s suggestion about the role of a minimal claim is, ra-
ther, that if the claim had been filed and denied for want of
crucial information, it would have served as a placeholder
for the time when, decades later in 2006, secrecy was lifted
and the Secretary adopted a regulation that permitted re-
opening, with retroactive effect as far back as the date of
the original filing, if the new and material evidence justi-
fying reopening consists of “[d]eclassified records that
Case: 19-2211 Document: 104 Page: 43 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 43
could not have been obtained because the records were
classified when VA decided the [original] claim.” 38 C.F.R.
§ 3.156(c)(1)(iii); see also id. § 3.156(c)(3); New and Mate-
rial Evidence, 71 Fed. Reg. 52,455, 52,457 (Sept. 6, 2006). 12
We reject this argument. The government does not
even now explain what a “minimal” claim would have
looked like such that it would have truly eliminated the
risk of penalties for disclosures, and it certainly points to
no communication from the government that would have
so informed Mr. Taylor before 2006. More fundamentally,
the government’s placeholder scenario is not enough to
mean that the constitutionally required “meaningful ac-
cess,” the “touchstone” of the constitutional right at issue,
Lewis, 518 U.S. at 351 (quoting Bounds, 430 U.S. at 823),
was actually present all along. Meaningful access is not
merely an empty opportunity to submit a piece of paper
that the government forbids to be filled out or later sup-
ported as needed to vindicate the entitlement, thereby ren-
dering a filing futile. To say otherwise is to ignore the
purpose of the constitutionally guaranteed access—to ob-
tain an adjudication. Of course, under the Silva right-of-
access formulation, under which government interference
might not be “undue” because it was justified, a govern-
ment action that precludes an adjudication might not in
the end be unconstitutional. But that conclusion would be
12 Although the government suggested at oral argu-
ment that VA’s amendment of § 3.156 in 2006 was simply
a codification of prior practice, En Banc Oral Arg. at 43:38–
44:49; cf. 71 Fed. Reg. at 52,456 (“[T]he purpose of this rule
is to clarify longstanding VA rules . . . .”), the government
submitted a post-argument letter stating that “VA has un-
dertaken [a] search and has been unable to locate any man-
ual or other publication that addresses” a “pre-existing
policy that was clarified in 38 C.F.R. § 3.156(c) (2006).”
ECF No. 90, at 1.
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44 TAYLOR v. MCDONOUGH
based on the adequacy of the justification, not on any sound
conclusion that meaningful access had actually been avail-
able. (The justification issue is discussed in the next sec-
tion, V.B.2, of this opinion.)
In any event, even if it could be said that meaningful
access is present in some situations where the government
tells prospective claimants that they can file claims that
will assuredly be denied for now because support is barred,
such a conclusion could not be justified here. The govern-
ment relies on what was a mere possibility of future
changes to reopening rules and government secrecy policy,
not imminent or on the horizon or communicated to Mr.
Taylor and other Edgewood veterans. At least some Edge-
wood veterans presumably did not live long enough to see
those possibilities mature into actual changes, after dec-
ades. Those veterans, as well as those who did survive,
were denied the sole forum to vindicate their entitlements
to compensation meant to support veterans in living their
lives, limited by disability incurred in service of the Nation.
During all the intervening years, those veterans were de-
nied meaningful access, and that denial existed inde-
pendently of the fact that secrecy was ultimately lifted.
Finally, the government contends that it cannot have
actively interfered with Mr. Taylor’s efforts to pursue his
legal claim because the “oath was not designed”—and the
government did not “intend[]”—to target Mr. Taylor’s or
any Edgewood veteran’s access to VA. Sec’y En Banc Re-
sponse Br. at 52, 54. The right-of-access case law does not
support this purported scienter requirement, at least if the
government means it to go beyond what is indisputably
present here. See, e.g., Lewis, 518 U.S. at 350–51; Silva,
658 F.3d at 1101–04; Snyder, 380 F.3d at 289–91. It was
entirely foreseeable that a servicemember participating in
the Edgewood program would suffer injury that would be
disabling after discharge. The availability of and require-
ments for post-service disability compensation are perva-
sively known to those in the service, and those who
Case: 19-2211 Document: 104 Page: 45 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 45
organized the Edgewood program can be attributed
knowledge of the consequence of the oath for access to such
compensation.
We therefore conclude that the government actively in-
terfered with Mr. Taylor’s access to the exclusive adjudica-
tory forum for vindication of his legal entitlement to
disability benefits.
2
We also reject the government’s contention that it has
justified the interference with Mr. Taylor’s access to the VA
adjudicatory forum. That contention rests on the public in-
terest in secrecy tied to military matters. We do not ques-
tion the strength of that interest. See also Taylor En Banc
Opening Br. at 59 (“No one disputes that the government
has an interest in maintaining the confidentiality of cer-
tain government programs.”). But we conclude that the
government has not shown that its interference with Mr.
Taylor’s right of access was adequately tailored to serve
that interest.
Neither party points to a right-of-access Supreme
Court precedent that specifically states a standard for as-
sessing an asserted justification. But two sources point to
a sensible standard here—a requirement of narrow tailor-
ing to the secrecy interest invoked (which we accept as com-
pelling), which demands a showing that less adjudication-
foreclosing alternatives could not have protected the inter-
est.
First: A fundamental constitutional right (such as the
right of access) is often governed by strict scrutiny, which
requires, for justification, that the government conduct be
narrowly tailored to serve a compelling state interest. See,
e.g., Reno v. Flores, 507 U.S. 292, 301–02 (1993) (explaining
that due process “forbids the government to infringe cer-
tain ‘fundamental’ liberty interests at all . . . unless the in-
fringement is narrowly tailored to serve a compelling state
Case: 19-2211 Document: 104 Page: 46 Filed: 06/15/2023
46 TAYLOR v. MCDONOUGH
interest” (emphasis omitted)); id. at 305 (“[N]arrow tailor-
ing is required only when fundamental rights are in-
volved.”); Fulton v. City of Philadelphia, 141 S. Ct. 1868,
1881 (2021) (similar in First Amendment religion context);
Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir. 1983) (ap-
plying strict scrutiny to a constitutional right-of-access
claim); cf. Lane, 541 U.S. at 529 (explaining that the situ-
ation before the Court involved “basic rights, including the
right of access to the courts . . . , that call for a standard of
judicial review at least as searching, and in some cases
more searching, than the standard that applies to sex-
based classifications”). 13
A narrow-tailoring standard commonly requires the
government to address concretely the possibility of less
right-denying measures because, “so long as the govern-
ment can achieve its interests in a manner that does not
burden [the fundamental right at issue], it must do so.”
Fulton, 141 S. Ct. at 1881; see Grutter v. Bollinger, 539 U.S.
306, 336, 339 (2003) (holding, in the context of an equal-
protection challenge to a “race-conscious admissions pro-
gram,” narrow tailoring, while not requiring “exhaustion of
every conceivable race-neutral alternative,” “does, how-
ever, require serious, good faith consideration of workable
race-neutral alternatives that will achieve the diversity the
university seeks”); Fisher v. University of Texas at Austin,
570 U.S. 297, 312 (2013) (similar); McCullen v. Coakley,
573 U.S. 464, 495 (2014) (explaining in a First Amendment
case: “To meet the requirement of narrow tailoring, the
government must demonstrate that alternative measures
that burden substantially less speech would fail to achieve
the government’s interests, not simply that the chosen
route is easier.”); Americans for Prosperity Foundation v.
13Mr. Taylor invoked strict scrutiny in his opening en
banc brief. Taylor En Banc Opening Br. at 58–61. The
government, in its response brief, did not disagree.
Case: 19-2211 Document: 104 Page: 47 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 47
Bonta, 141 S. Ct. 2373, 2385, 2386 (2021) (similar, in right-
of-association case).
Second: The Supreme Court has made a comparable
point in the closely analogous context of deciding whether
government military-secrecy interests preclude the
maintenance or continuation of litigation. Specifically, in
General Dynamics Corp. v. United States, the Court con-
cluded that the government’s military-secrecy interests
should not bar a proceeding to vindicate a legal entitlement
except as a “last resort” and only “when full litigation . . .
‘would inevitably lead to the disclosure of’ [the] secrets.”
563 U.S. 478, 486, 492 (2011) (citing Totten v. United
States, 92 U.S. 105, 107 (1876)). At least as far as the pre-
sent case is concerned, this standard aligns with all that
we need to borrow from the just-described narrow-tailoring
requirement to decide this case, which is a demand not for
perfect tailoring but for a concrete government explanation
of the inability to protect the secrecy interest, while afford-
ing access, by measures the government itself has used in
a closely related context.
The government has not met that standard. It pre-
sents generalizations about military secrecy, an interest
whose strength we do not question, but it has not given
concrete reasons that this interest could not have been pro-
tected while giving Edgewood veterans an adjudication.
For example, it has not addressed the possibility of a spe-
cial office within VA (perhaps with a special role played by
Department of Defense personnel) that could have carried
out the Secretary’s first-level adjudication—where the
great bulk of veterans’ benefits claims are resolved—with
information on a benefits claim form notifying a claimant
of when and how to invoke the special process. For the sub-
set of claimants for whom appeal to the Board was rele-
vant, the government has not addressed the possibility of
having channeled Board review of secrecy-constrained
Case: 19-2211 Document: 104 Page: 48 Filed: 06/15/2023
48 TAYLOR v. MCDONOUGH
matters to a specially designated panel of the Board. 14
Further review was generally not available beyond the
Board until 1988, see supra n.3, but even considering to-
day’s review regime, the government has not addressed the
ability of the reviewing tribunals outside VA, starting with
the Veterans Court, to employ secrecy-protection measures
that are commonly used in courts. Nor, finally, has the
government addressed the possibility that some portions of
the multi-level review system might be made available
even if others cannot be.
These possibilities are anything but theoretical. As the
government here acknowledges, VA has in fact established
just such a special mechanism for processing claims from
veterans who served in the special forces—i.e., a system for
processing claims based on injuries from service activities
whose very existence must remain secret. See Sec’y En
Banc Response Br. at 52–53 (citing U.S. Department of
Veterans Affairs, Adjudication Procedures Manual, M21-1,
Part VIII, Subpart iv, Chapter 9, Section A—Claims Based
on Participation in Special Operations Incidents (last up-
dated Dec. 27, 2021)). The government called attention to
this process during its oral argument to the Supreme Court
in Arellano. It explained that the special process—“for at
least the cases of special operations”—begins with VA sub-
mitting “what’s called a classified research request to the
. . . central military records organization, which will then
14 Today, the statute provides that members may be
appointed by the Secretary, with presidential approval, on
recommendation of the Board Chairman. 38 U.S.C.
§§ 7101A (appointments), 7102(a) (assignment of matters).
In 1970, the statute was similar: Members were appointed
by the Administrator with presidential approval. 38 U.S.C.
§ 4001(b) (1970); see also Exec. Order No. 6230, reprinted
in 38 U.S.C. § 723, at 1696–68 (1934) (establishing the
Board).
Case: 19-2211 Document: 104 Page: 49 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 49
run that research request and then send back to the re-
gional office, okay, there is credible evidence supporting
the claim or not.” Transcript of Oral Argument at 28–29,
Arellano, 143 S. Ct. 543 (No. 21-432).
The government has not adequately justified a conclu-
sion that it could not have established a similar procedure
for Edgewood veterans. And when the government sug-
gests that Mr. Taylor’s oath might not have actually barred
claim-supporting communication with VA, see, e.g., Sec’y
En Banc Response Br. at 49, it gives some support to the
idea that the government’s interest in maintaining the se-
crecy of Edgewood might well have been accommodated by
such a procedure. In these circumstances, we conclude that
the government has provided no meaningful showing that
the oath was adequately tailored to achieve the govern-
ment’s military-secrecy interest, and so the interference
with Mr. Taylor’s right of access to VA for adjudication to
vindicate his legal entitlement was undue. 15
15 The government quotes Justice Thomas’s state-
ment in concurrence in Christopher v. Harbury that he
found “no basis in the Constitution for a ‘right of access to
courts’ that effectively imposes an affirmative duty on
[g]overnment officials either to disclose matters concerning
national security or to provide information in response to
informal requests.” Sec’y En Banc Response Br. at 59
(quoting 536 U.S. at 422 (Thomas, J., concurring in the
judgment)). Here, however, we conclude that the govern-
ment has not shown that the right of access to the sole ad-
judicatory system for vindicating the entitlement at issue
would actually require disclosure of matters concerning na-
tional security (or providing information in response to in-
formal requests).
Case: 19-2211 Document: 104 Page: 50 Filed: 06/15/2023
50 TAYLOR v. MCDONOUGH
3
The government is mistaken in its final argument as
well. The foregoing analysis means that it would be uncon-
stitutional to apply § 5110’s claim-filing effective-date lim-
its to deny otherwise-awardable benefits for the period
during which the government unconstitutionally denied
Mr. Taylor access to the VA adjudicatory forum. Contrary
to the government’s suggestion, the denial of his constitu-
tional right of access for up to three and a half decades is
remediable: Mr. Taylor has “identif[ied] a remedy that may
be awarded as recompense here and not otherwise availa-
ble in some suit that may yet be brought.” Christopher, 536
U.S. at 415. This court and the Veterans Court are statu-
torily authorized, if the claim-filing effective-date limits of
§ 5110 are unconstitutional as applied here, to require de-
termination of the effective date without regard to those
limits. The normal remedial principle would give Mr. Tay-
lor the effective date he would have had if no unconstitu-
tional denial of access had occurred.
a
Two well-established principles apply here. First, “[i]f
an as-applied challenge is successful, the statute may not
be applied to the challenger, but is otherwise enforceable.”
Turtle Island Foods, SPC v. Thompson, 992 F.3d 694, 700
n.5 (8th Cir. 2021); see Fisher v. King, 232 F.3d 391, 395
n.4 (4th Cir. 2000) (same) (citing City of Lakewood v. Plain
Dealer Publishing Co., 486 U.S. 750, 758–59 (1988)); see
also Ayotte v. Planned Parenthood of Northern New Eng-
land, 546 U.S. 320, 329 (2006) (“It is axiomatic that a ‘stat-
ute may be invalid as applied to one state of facts and yet
valid as applied to another.’” (quoting Dahnke-Walker Mill-
ing Co. v. Bondurant, 257 U.S. 282, 289 (1921))); Troxel v.
Granville, 530 U.S. 57, 73 (2000) (holding statute unconsti-
tutional as applied); Palmer v. City of Euclid, 402 U.S. 544,
545 (1971) (same); U.S. Shoe Corp. v. United States, 114
F.3d 1564, 1577 (Fed. Cir. 1997) (holding statute
Case: 19-2211 Document: 104 Page: 51 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 51
unconstitutional under the Export Clause “to the extent it
applies to exports”); International Business Machines Corp.
v. United States, 59 F.3d 1234, 1239 (Fed. Cir. 1995) (hold-
ing statute unconstitutional as applied). Second, “[t]he in-
jured party is to be placed, as near as may be, in the
situation he would have occupied if the wrong had not been
committed.” Wicker, 73 U.S. at 99; see also United States
v. Virginia, 518 U.S. 515, 547 (1996) (“A remedial decree
. . . must be shaped to place persons unconstitutionally de-
nied [a right] in ‘the position they would have occupied in
the absence of [that constitutional violation].’” (quoting
Milliken v. Bradley, 433 U.S. 267, 280 (1977))); Jenkins,
515 U.S. at 87 (noting that “all remedies” are designed “to
restore the victims of [wrongful] conduct to the position
they would have occupied in the absence of such conduct”
(quoting Milliken v. Bradley, 418 U.S. 717, 746 (1974))); see
Pirkl, 906 F.3d at 1378.
Those principles require that Mr. Taylor be given the
effective date for his benefits, without regard to the claim-
filing effective-date limits of § 5110, that he would have
had in the absence of the government’s unconstitutional in-
terference with his access to the VA adjudicatory system.
This means that Mr. Taylor’s effective date should be the
date that he met the substantive requirements for benefits,
back as far as the date that he would have filed a claim for
such benefits in the absence of the unconstitutional inter-
ference (plus any further back-dating allowed by § 5110).
This effective date might be as far back as September 7,
1971, the day after his discharge, under 38 U.S.C.
§ 5110(b)(1). And different periods prior to 2007 might call
for different ratings if Mr. Taylor’s disability changed dur-
ing that period in such a way that different ratings would
have been applied over time had the government not
Case: 19-2211 Document: 104 Page: 52 Filed: 06/15/2023
52 TAYLOR v. MCDONOUGH
unconstitutionally interfered with his access to the adjudi-
catory system. 16
b
Both this court and the Veterans Court have statutory
authority to order such a remedy. It is “the very essence of
judicial duty” that, “if both [a] law and the [C]onstitution
apply to a particular case,” the court decides the case “con-
formably to the [C]onstitution, disregarding the law.” Mar-
bury, 5 U.S. (1 Cranch) at 178. “This approach derives from
the Judiciary’s ‘negative power to disregard an unconstitu-
tional enactment’ in resolving a legal dispute.” United
States v. Arthrex, 141 S. Ct. 1970, 1986 (2021) (quoting
Massachusetts v. Mellon, 262 U.S. 447, 488 (1923)).
This court is authorized “to review and decide any chal-
lenge to the validity of any statute,” 38 U.S.C. § 7292(c),
and to “decide all relevant questions of law, including in-
terpreting constitutional and statutory provisions,” id.§ 7292(d)(1); see also id. § 7292(d)(2) (providing that
“[e]xcept to the extent that an appeal under this chapter pre-
sents a constitutional issue,” this court “may not review . . .
a challenge to a law or regulation as applied to the facts of
a particular case” (emphasis added)). Those provisions, as
the government agrees, empower “this court [to] find some-
thing unconstitutional as applied.” En Banc Oral Arg. at
55:05–:15. And this court is empowered, if a Veterans
Court decision “is not in accordance with law, to modify or
reverse the decision of the [Veterans Court] or to remand
the matter, as appropriate.” § 7292(e)(1). That power must
include the power to state the remedial principles needed
to give effect to an unconstitutionality ruling and the power
16 The government has not argued, based on laches or
otherwise, that Mr. Taylor delayed unduly in filing for ben-
efits after getting a green light in 2006. He filed for bene-
fits promptly, on February 22, 2007.
Case: 19-2211 Document: 104 Page: 53 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 53
to require the Veterans Court to apply those principles,
with any necessary aid from the Board.
The Veterans Court, for its part, has been granted the
power, among others, to “hold unlawful and set aside deci-
sions, findings . . . , conclusions, rules, and regulations is-
sued or adopted by the Secretary [or by] the Board . . .
found to be . . . contrary to constitutional right.” 38 U.S.C.
§ 7261(a)(3)(B). This power readily encompasses the au-
thority to adjudge that the statute applied by the Secretary
or Board, in this case § 5110, is unconstitutional as applied.
See Oklahoma v. U.S. Civil Service Commission, 330 U.S.
127, 138 n.13 (1947) (stating that the Administrative Pro-
cedure Act’s (APA’s) judicial review provision codified at 5
U.S.C. § 706—which contains the identical phrase “con-
trary to constitutional right” found in § 7261—includes “is-
sues of the constitutionality of [the] enactments and action
thereunder”). And as the government recently explained
to the Supreme Court in discussing the materially identical
provisions of the APA, see 5 U.S.C. § 706(2)(B), “set aside,”
in an ordinary meaning, is what court do when they
properly “disregard unconstitutional statutes when decid-
ing the cases before them.” Brief for Petitioner United
States at 41, United States v. Texas, No. 22-58 (U.S. Sept.
12, 2022), 2022 WL 4278395. 17
Thus, 38 U.S.C. § 7292 and the principles traceable to
Marbury empower this court to hold § 5110 unconstitu-
tional as applied and to disregard that statute in construct-
ing a remedy. Likewise, § 7261(a)(3)(B) empowers the
Veterans Court, for the reasons that we have explained, to
carry out our remedy—i.e., to compel VA to disregard
17 That authority is independent of whether, as the
government argued in Texas, the APA provision is limited
so that it does not extend to vacating a regulation, a matter
not at issue in the present case.
Case: 19-2211 Document: 104 Page: 54 Filed: 06/15/2023
54 TAYLOR v. MCDONOUGH
§ 5110 in determining the effective date of Mr. Taylor’s
benefits.
c
The government makes an unelaborated suggestion
that separation-of-powers (seemingly to include Appropri-
ations Clause) considerations stand in the way of awarding
benefits contrary to § 5110’s limits even when such limits
are unconstitutional as applied. Sec’y En Banc Response
Br. at 9, 42, 55, 57. It cites no support for that suggestion
but merely refers back to the Richmond decision. And we
reject the suggestion.
Richmond addressed only the use of a non-constitu-
tional doctrine to override statutory limits on expenditures.
It did not involve or address a context in which “a court
orders expenditures for constitutional reasons.” Rochester
Pure Waters District v. Environmental Protection Agency,
960 F.2d 180, 184 & n.2 (D.C. Cir. 1992) (per curiam). The
basis for a distinction is evident: The Constitution prevails
over a conflicting statute, see Marbury, 5 U.S. (1 Cranch)
at 178, whereas Richmond involved the quite different
principle that the non-constitutional judicial doctrine of eq-
uitable estoppel does not prevail over a constitutional stat-
ute limiting payments from the public fisc.
The government points to no authority for the notion
that a court is constitutionally forbidden to order the fed-
eral government to pay benefits to individuals, as a rem-
edy, after finding unconstitutional a statutory limitation
on payment of those benefits to those individuals. And the
Supreme Court has approved of just such remedies, with-
out suggesting a constitutional impediment. See, e.g., Ses-
sions v. Morales-Santana, 582 U.S. 47, 74 (2017); Califano
v. Westcott, 443 U.S. 76, 89–93 (1979); Califano v. Goldfarb,
430 U.S. 199, 202–04 (1977) (plurality opinion); Jimenez v.
Weinberger, 417 U.S. 628, 637–38 (1974); U.S. Department
of Agriculture v. Moreno, 413 U.S. 528, 529, 537–38 (1973);
Frontiero v. Richardson, 411 U.S. 677, 690–91 (1973)
Case: 19-2211 Document: 104 Page: 55 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 55
(plurality opinion). In particular, when a federal benefits
statute is unconstitutionally underinclusive—i.e., the stat-
ute’s provisions appropriate benefits to certain recipients
but not to others in violation of the Constitution—“there
exist two remedial alternatives: a court may either declare
[the statute] a nullity [by] order[ing] that its benefits not
extend to the class that the legislature intended to benefit,
or it may extend the coverage of the statute to include those
who are aggrieved by the exclusion.” Westcott, 443 U.S. at
89 (quoting Welsh v. United States, 398 U.S. 333, 361
(1970) (Harlan, J., concurring)). And the Court has made
clear that extension is in fact the preferred course: “Ordi-
narily, we have reiterated, ‘extension, rather than nullifi-
cation, is the proper course.’” Sessions, 582 U.S. at 74
(quoting Westcott, 443 U.S. at 89); see also Barr v. American
Association of Political Consultants, Inc., 140 S. Ct. 2335,
2354 (2020) (plurality opinion) (“The Court’s precedents re-
flect th[e] preference for extension rather than nullifica-
tion.” (collecting cases)). If the extension is proper under
established remedial principles, 18 then there is no consti-
tutional obstacle to ordering monetary payments contrary
to an unconstitutional statutory limit.
C
For the foregoing reasons, we conclude 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 ac-
cess to the VA adjudicatory system for vindicating his
18 The Court’s inquiry into what “the legislature
would have willed had it been apprised of the constitu-
tional infirmity,” Levin v. Commerce Energy, Inc., 560 U.S.
413, 427 (2010); see Sessions, 582 U.S. at 73, fits the gen-
eral remedial inquiry into what the claimant’s position
would have been had there been no violation.
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56 TAYLOR v. MCDONOUGH
entitlement. We are not persuaded by the dissent to con-
clude otherwise.
The dissent suggests that there is or should be a cate-
gorical exclusion of national-security government actions
from the constitutional right of access. Dissent at 3–6. We
see no logical or doctrinal basis for such an exclusion, for
which the government has not presented any argument.
The Supreme Court’s decision in Christopher points the
other way. As discussed above, although that case itself
involved national-security government action, the Court
applied right-of-access standards rather than declare the
right categorically unavailable. And the Supreme Court
has elsewhere indicated that government action involving
national security is subject to legal standards protecting
access to courts. See supra p. 47 (discussing General Dy-
namics).
What is required in this area is not categorical exclu-
sion but application of the doctrinally required standards
with the caution specifically required when national-secu-
rity actions are at issue, as indicated in the authorities dis-
cussed in the dissent at 11–12. We have exercised that
caution. But the government has fallen far short under
those standards. The government has effectively done
nothing more than make an unelaborated invocation of na-
tional security, and it has provided no meaningful explana-
tion of why it could not have provided a secrecy-preserving
VA route for veterans like Mr. Taylor when it has provided
such a route in a closely related context where military se-
crecy is at stake. All we conclude is that this is not enough.
The dissent also suggests that there is or should be a
categorical exclusion from the right of access for govern-
ment actions that leave any forward-looking cause of action
available even if the actions unjustifiably deprive the indi-
vidual of a legal entitlement for an extended period—here,
Case: 19-2211 Document: 104 Page: 57 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 57
up to roughly 35 years’ worth of benefits. Dissent at 7–8;
id. at 15 (relying on the same point in reasoning that we
and the Veterans Court lack remedial authority here). We
see no logical or doctrinal basis for such an exclusion, for
which the government has not presented any argument.
And the Supreme Court’s decision in Christopher points
the other way: The Court there defined the backward-look-
ing category of right-of-access violations to cover govern-
ment actions that “caused . . . the loss of an opportunity to
seek some particular order or relief.” 536 U.S. at 414 (em-
phasis added).
Seemingly with reference to military-secrecy oaths in
general and standing alone, the dissent states that we have
reached our conclusion “without any explanation that such
an oath is ‘undue.’” Dissent at 10. But the subject of this
case is the particular oath demanded without accompani-
ment of a VA route for claim presentation and proof to vin-
dicate an undisputed legal entitlement (based on readily
foreseeable harm). We explain why the resulting interfer-
ence with access is undue: The government has not pro-
vided any meaningful justification for the access
foreclosure in the face of VA’s provision of a VA route for
claim presentation and proof in facially comparable cir-
cumstances involving national-security secrecy.
Two final points. Contrary to the expression of concern
in the dissent at 4 n.2, we do not suggest, what would be
topsy turvy, that the eventual declassification of the Edge-
wood program is itself part of the unconstitutional denial
of access. See supra p. 44 (stating that the access “denial
existed independently of the fact that secrecy was ulti-
mately lifted”). And the dissent is contrary to the basic hi-
erarchy of legal authority to the extent that it suggests that
the Constitution is inapplicable if a substantive equitable
doctrine is also inapplicable. Dissent at 17.
Case: 19-2211 Document: 104 Page: 58 Filed: 06/15/2023
58 TAYLOR v. MCDONOUGH
VI
A majority of the court (as reflected in this opinion and
the concurrence) agree, and the court holds, 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—im-
position of the secrecy oath with no VA route for claim
presentation and proof to vindicate the benefits entitle-
ment. We reverse the decision of the Veterans Court and
remand for expeditious proceedings to give Mr. Taylor re-
lief pursuant to this holding.
Costs to Mr. Taylor.
REVERSED AND REMANDED
Case: 19-2211 Document: 104 Page: 59 Filed: 06/15/2023
United States Court of Appeals
for the Federal Circuit
______________________
BRUCE R. TAYLOR,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2019-2211
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-2390, Judge Joseph L. Falvey
Jr., Judge William S. Greenberg, Judge Amanda L.
Meredith.
______________________
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. 1 We have an obligation to avoid
1 We refer to the portion of Judge Taranto’s opinion
that rejects the approach of this concurrence as a majority
Case: 19-2211 Document: 104 Page: 60 Filed: 06/15/2023
TAYLOR v. MCDONOUGH
2
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.
I
As the majority describes, Mr. Taylor participated as a
volunteer in a U.S. military program at the Edgewood
Arsenal during September and October 1969 to test
chemical weapons, 2 and as a result suffered service-
connected disabilities that entitled him to veterans’
benefits. Although discharged on September 6, 1971,
suffering from disabilities and entitled to benefits as of that
date, he did not apply for benefits until February 2007. Mr.
Taylor waited to apply because his secrecy oath precluded
him from providing information about his participation in
the Edgewood program, and he apparently believed those
disclosures were necessary to apply for benefits. Indeed, as
discussed below, the application form for disability benefits
at the time of his discharge required disclosure of the
opinion. We refer to the portion of Judge Taranto’s opinion
for a plurality of the court addressing the due process right
of access as the plurality.
2 The substance or substances to which Mr. Taylor
was exposed appear to have been nerve agents. Their use
in wartime was unquestionably illegal under existing
international law in 1968 (e.g., the 1925 Geneva Gas
Protocol). For a comprehensive history and analysis of
these weapons, see Evan J. Wallach, A Tiny Problem with
Huge Implications—Nanotech Agents as Enablers or
Substitutes for Banned Chemical Weapons: Is a New Treaty
Needed?, 33 Fordham Int’l L.J. 858 (2009).
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TAYLOR v. MCDONOUGH
3
nature of his disability despite the government’s contention
that Mr. Taylor could have filed a skeletal claim without
disclosing confidential information. In June 2006, the
government informed Mr. Taylor that he was free to
disclose his Edgewood-related disabilities, and then in
February 2007 he did so.
The Board of Veterans Appeals (“Board”) found that
under the statute he could not receive benefits before 2007
because § 5110(a)(1) provides that “the effective date of an
award based on an initial claim, or a supplemental claim,
of compensation . . . shall be fixed in accordance with the
facts found, but shall not be earlier than the date of receipt
of application therefor.” Under that provision, the Board
concluded that Mr. Taylor’s benefits were limited to the
date of the receipt of his application in February 2007.
II
Before the en banc court, Mr. Taylor contended that the
government could not assert the time bar of § 5110(a) to
prevent an earlier effective date under theories of equitable
estoppel, equitable tolling, and constitutional due process.
In a related case, Arellano v. McDonough, the Supreme
Court held that equitable tolling was not available for
§ 5110, but left open the possibility that “other equitable
doctrines, such as waiver, forfeiture, and estoppel” apply to
the provision. 143 S. Ct. 543, 552 n.3 (2023). The Supreme
Court did not mention a theory of constitutional due
process.
Following Arellano, Mr. Taylor continued to argue for
an earlier effective date based on equitable estoppel.
Case: 19-2211 Document: 104 Page: 62 Filed: 06/15/2023
TAYLOR v. MCDONOUGH
4
A
The doctrine of equitable estoppel “forms a very
essential element in fair dealing, and rebuke of all
fraudulent misrepresentation, which it is the boast of
courts of equity constantly to promote.” CIGNA Corp. v.
Amara, 563 U.S. 421, 441 (2011) (ellipses omitted) (quoting
2 J. Story, Commentaries on Equity Jurisprudence § 1533
(12th ed. 1877)). “He who prevents a thing from being done
may not avail himself of the nonperformance which he has
himself occasioned, for the law says to him, in effect: ‘This
is your own act, and therefore you are not damnified.’” R.H.
Stearns Co. v. United States, 291 U.S. 54, 61 (1934)
((quoting Dolan v. Rodgers, 44 N.E. 167, 167 (N.Y. 1896);
Imperator Realty Co. v. Tull, 127 N.E. 263, 266 (N.Y.
1920)). In Heckler v. Community Health Services of
Crawford County, Inc., the Supreme Court, while rejecting
a claim of equitable estoppel in that case, made clear that
equitable estoppel is in federal cases based on “traditional
elements of an estoppel.” 467 U.S. 51, 61 (1984). The
Supreme Court adopted the approach to equitable estoppel
of the Restatement (Second) of Torts. See id. at 59.
Under the Restatement standard, estoppel can provide
relief when “one person makes a definite
misrepresentation of fact to another person,” id. (quoting
Restatement (Second) of Torts § 894(1) (1974)), that other
person “relied on its adversary’s conduct in such a manner
as to change [its] position for the worse[,] and that reliance
[was] reasonable in that the party claiming the estoppel did
not know nor should it have known that its adversary’s
conduct was misleading.” Id. (internal quotation marks
and footnotes omitted). “[E]stoppel is appropriate even
where ‘the one making the representation believes that his
statement is true.’” Minard v. ITC Deltacom Commc’ns,
Inc., 447 F.3d 352, 359 (5th Cir. 2006) (quoting
Restatement (Second) of Torts § 894(1) cmt. b (Am. L. Inst.
1979)).
Case: 19-2211 Document: 104 Page: 63 Filed: 06/15/2023
TAYLOR v. MCDONOUGH
5
The traditional requirements for estoppel are
uncontestably present. The government (both the Army
and the Department of Veterans Affairs (“VA”)) prevented
Mr. Taylor from applying for veterans benefits by imposing
a secrecy oath and by insisting that he could not file for
benefits without the secret information. The Army also
misleadingly advised him that medical benefits would be
provided, Viet. Veterans of Am. v. Cent. Intel. Agency, No. C
09-0037 CW, 2013 WL 6092031, at *2 (N.D. Cal. Nov. 19,
2013) (noting that a 1953 Army memorandum provided
that “[m]edical treatment and hospitalization will be
provided for all casualties of the experimentation.”
(citation omitted)). The VA misled him by inaccurately
advising him that he could not file a benefits claim without
disclosing the nature of the injury and the date it began,
when the government now contends that he could file a
skeletal claim without disclosing confidential information.
Mr. Taylor reasonably relied on the government’s “conduct
in such a manner as to change his position for the worse,”
Heckler, 467 U.S. at 59 (internal quotation marks and
footnote omitted), both in participating in the program and
in foregoing filing a claim before 2007.
The government does not appear to contest the fact
that Mr. Taylor was prejudiced by the government’s
actions. In fact, the government appears not to dispute
that equitable estoppel would apply in this situation save
the bar presented by OPM v. Richmond, 496 U.S. 414(1990). 3 The majority does not dispute this either. See Maj.
Op. 19 (“For purposes of this case, we may assume—
without deciding—that the government action that caused
Mr. Taylor not to file a claim for decades would meet the
3 To the extent that the government suggests that Mr.
Taylor has not shown affirmative misconduct on the part
of the government, it is clear that in this case there was
affirmative misconduct.
Case: 19-2211 Document: 104 Page: 64 Filed: 06/15/2023
TAYLOR v. MCDONOUGH
6
standards for equitable estoppel if that doctrine were
available for the money claim at issue in this case.”).
B
The government primarily argues that under
Richmond, estoppel cannot apply against the government
when a claimant seeks money from the Treasury. In
Richmond, the Supreme Court held that “judicial use of the
equitable doctrine of estoppel cannot grant . . . a money
remedy that Congress has not authorized.” 496 U.S. at
426. In that case, a government employee gave a federal
retiree misinformation, including an outdated form, about
his eligibility for a disability annuity, leading the retiree to
earn too much money to receive the annuity for a six-month
period. Id. at 417–18. The statute was clear that the
retiree made too much, but the government employee who
gave the advice relied on an outdated and incorrect version
of the statute. Id. The Court held that because the retiree
was statutorily ineligible to receive the annuity in that
period, the misinformation provided by the government did
not entitle the retiree to payment. See id. at 424, 434. The
Appropriations Clause of the Constitution bars
“unauthorized oral or written statements to citizens . . .
obligat[ing] the Treasury for the payment of funds.” Id. at
428.
The government argues that the meaning of
§ 5110(a)(1) is plain, and on its face bars Mr. Taylor from
recovering benefits prior to the date of his filing, thus
foreclosing such recovery under Richmond. See Gov’t En
Banc Br. 20–22. We do not agree that § 5110 bars Mr.
Taylor from recovering retroactive benefits under a theory
of equitable estoppel. 4
4 Judge Stark does not reach the interpretation of
§ 6303 because he reads § 5110(a)(1)’s general bar to
benefits predating filing not to apply when government
Case: 19-2211 Document: 104 Page: 65 Filed: 06/15/2023
TAYLOR v. MCDONOUGH
7
III
A
In Richmond, there was no contention that the agency
had violated any statute, or that the government
employee’s actions were implementing an official agency
policy. The majority here appears to agree that Richmond
is no bar where a governmental agency violates a statutory
misconduct amounting to equitable estoppel prevents a
claimant from filing. This footnote sets forth Judge Stark’s
views. “[O]ftentimes the meaning—or ambiguity—of
certain words or phrases may only become evident when
placed in context,” and so “we must read the words in their
context and with a view to their place in the overall
statutory scheme.” King v. Burwell, 576 U.S. 473, 486
(2015) (internal quotation marks and citation omitted).
“[W]hat is most telling here are the singular
characteristics” of the “scheme that Congress created for
the adjudication of veterans’ benefits claims.” Henderson
ex rel. Henderson v. Shinseki, 562 U.S. 428, 440 (2011).
Though its roots stretch back to World War I, the language
of § 5110 (previously codified as § 3010) was brought into
Title 38 in an act consolidating veterans’ law, with its
unique “solicitude for the claimant.” Walters v. Nat’l Ass’n
of Radiation Survivors, 473 U.S. 305, 311 (1985); see An
Act to Consolidate into One Act All of the Laws
Administered by the Veterans’ Administration, and for
Other Purposes, Pub. L. No. 85-857, 72 Stat. 1005, 1226–
27 (1958). In Judge Stark’s view, it is inconceivable that
Congress intended § 5110(a)(1)—a provision designed to
ensure that claimants timely seek benefits—to permit
affirmative and egregious government misconduct to bar
veterans from receiving decades of owed benefits. As such,
Judge Stark believes giving Taylor an earlier effective date
here is consistent with Congress’s intent, and thus
Richmond does not bar application of equitable estoppel.
Judge Stark accordingly concurs in the judgment.
Case: 19-2211 Document: 104 Page: 66 Filed: 06/15/2023
TAYLOR v. MCDONOUGH
8
duty “and the agency’s compliance with that statutory duty
is properly understood to be a precondition to enforcing a
benefit restriction stated in another statutory provision.”
Maj. Op. 26. 5 We have previously held that when an
agency of the government violates a statutory duty to a
claimant’s detriment, the government is estopped from
withholding benefits that a claimant could have received
absent government misconduct. For example, we have
repeatedly held that when the Office of Personnel
Management (“OPM”) violates its statutory duty to inform
annuitants of their right to elect a survivor annuity, and
there is evidence that the recipient would have so elected,
the government’s failure estops it from strictly enforcing a
statutory election deadline. See Dachniwskyj v. OPM, 713
F.3d 99 (Fed. Cir. 2013); Nixon v. OPM, 452 F.3d 1361 (Fed.
Cir. 2006); Hernandez v. OPM, 450 F.3d 1332 (Fed. Cir.
2006); Simpson v. OPM, 347 F.3d 1361 (Fed. Cir. 2003);
Wood v. OPM, 241 F.3d 1364 (Fed. Cir. 2001); Vallee v.
OPM, 58 F.3d 613 (Fed. Cir. 1995); Brush v. OPM, 982 F.2d
1554 (Fed. Cir. 1992). We have similarly held that when
the government fails to notify a servicemember’s spouse of
the servicemember’s decision to opt out of a survivor
5 The majority explains:
After all, where one statutory provision imposes a
duty on an agency, and the agency’s compliance with
that statutory duty is properly understood to be a
precondition to enforcing a benefit restriction stated in
another statutory provision, Richmond does not
prohibit awarding the benefit without regard to the
benefit restriction if the precondition duty is not
fulfilled. We have so held repeatedly.
Maj. Op. 26 (citing Brush, 982 F.2d 1554, Dachniwskyj v.
OPM, 713 F.3d 99 (Fed. Cir. 2013), and Johnston v. OPM,
413 F.3d 1339, 1343 (Fed. Cir.), opinion modified on
reconsideration, 430 F.3d 1376 (Fed. Cir. 2005)).
Case: 19-2211 Document: 104 Page: 67 Filed: 06/15/2023
TAYLOR v. MCDONOUGH
9
annuity benefit, as Congress requires, the government
cannot enforce the opt-out decision. See Kelly v. United
States, 826 F.2d 1049, 1052 (Fed. Cir. 1987); Barber v.
United States, 676 F.2d 651, 657 (Ct. Cl. 1982). Finally, we
have held that when the government fails to notify an
employee of an unfavorable decision regarding the
employee’s ability to return to work after an injury, the
government cannot deny an application for disability
retirement benefits as untimely under 5 U.S.C. § 8337(b).
Johnston v. OPM, 413 F.3d 1339, 1343 (Fed. Cir.), opinion
modified on reconsideration, 430 F.3d 1376 (Fed. Cir.
2005).
As we explained in Brush, “there is no indication that
. . . Richmond was meant to apply when an agency fails to
carry out a statutory duty at a detriment to the other party
and a benefit to itself.” 982 F.2d at 1564. That is so
because what Congress has authorized is a question of
statutory interpretation, and statutory provisions must not
be read in isolation. If the payment bar is inapplicable
where the government violates its notice obligation, money
is not being paid from the Treasury in violation of statutory
requirements. “[T]o give effect, if possible, to every clause
and word of [the] statute,” we determined in Brush that the
statutory election deadline gives way when OPM fails to
notify an annuitant as required. Brush, 982 F.2d at 1563
(quoting United States v. Menasche, 348 U.S. 528, 538–39
(1955)). As in Brush and subsequent cases, Richmond is
no obstacle here if the government’s conduct violated a
statute, and, as noted, the majority largely appears to
agree.
B
On the face of it, the VA advised Mr. Taylor that he
could not apply for benefits without disclosing confidential
information. Because Mr. Taylor would have been
applying for disability compensation, the VA form
instructed him that “[d]isability compensation is paid for
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TAYLOR v. MCDONOUGH
10
disability resulting from service in the armed forces,” VA
Form 21-526 (1971/1972) at Instructions, and required him
to disclose the “nature of sickness, disease or injuries for
which this claim is made and date each began,” id. at 2
(capitalization modified). The form required details of
“treatment” received “while in service” related to the
disability, including the dates and location of treatment
and the organization at which the “sickness, disease, or
injury was incurred.” Id. at 3 (capitalization modified). 6
The VA further instructed veterans to “list persons other
than physicians who know any facts about any sickness,
disease, or injury” that was treated during service. Id. The
government appears to agree that the form required
disclosure of what Mr. Taylor was forbidden to disclose.
See Gov’t En Banc Br. 48.
C
By advising Mr. Taylor that he could not file a claim
without disclosing his Edgewood experience, the
government violated its obligations under 38 U.S.C. § 6303to provide veterans with “full information” of available
benefits, discussed below, a provision that was in effect
when Mr. Taylor was discharged from service. See
Veterans Education and Training Amendments Act of
1970, Pub. L. 91–219, § 241, 84 Stat. 76, 84 (codified as
amended at 38 U.S.C. §§ 6301(a)(1), 6303(c)(1)(A)); see also
38 U.S.C. §§ 240–41 (1970) (current version at 38 U.S.C.
§ 6303).
The government appears to agree that Mr. Taylor could
have received an earlier date by filing a minimal claim—a
submission without disclosing classified material or the
source of the injury. Then, when he was released from his
6 Mr. Taylor received treatment for “an anxiety
reaction” after his exposure to experimental chemicals in
September 1969, presumably at Edgewood. En Banc Joint
Appendix (“J.A.”) 57.
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TAYLOR v. MCDONOUGH
11
secrecy obligation, he could have provided the necessary
information and received compensation back to the date of
discharge “without divulging classified information on the
Edgewood Program.” Gov’t En Banc Br. 48. The
government points out that the VA has more recently
recognized just such a procedure in its Adjudication
Procedures Manual, which allows veterans to provide
information to support claims based on Special Operations,
including covert military operations. And it maintains
that, even before this procedure was adopted, Mr. Taylor
could have filed a minimal claim to obtain the benefits of
an earlier effective date. En Banc Oral Arg. at 35:00–38:36.
But, significantly, the government agrees it did not advise
Mr. Taylor that he could file such a minimal or placeholder
claim. See Gov’t En Banc Br. 10, 53 (conceding that the VA
failed to “communicat[e] to Mr. Taylor that he could file a
minimal claim”). To the contrary, as we have discussed,
the VA benefits claim form, on its face, required the very
disclosure Mr. Taylor was forbidden to make. See
Appellant’s Supp. En Banc Br. 10 (“In order to file a claim
for benefits, Mr. Taylor would have had to disclose the very
facts as to which the government swore him to secrecy.”). 7
7 In his appeal to the Board, Mr. Taylor asserted that
[t]he VA/ United States Government bound the
Veteran and all other Edgewood Veterans with a
secrecy oath(s). This oath prevented these specific
Veterans from filing a claim . . . , giving a statement in
support of such claim, or working with heath care
professionals for any injuries which resulted from their
participation in the Edgewood Project . . . Even if the
Veteran had chosen to risk prosecution for violating his
oath, he would not have had access to the records of the
tests. This would have prevented the Veteran from
making a successful claim for benefits. The VA and/or
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TAYLOR v. MCDONOUGH
12
In short, rather than fulfilling its duty to notify Mr.
Taylor of the placeholder possibility, the VA effectively told
Mr. Taylor falsely that he could not seek disability
compensation because he would violate his secrecy oath.
Just as in our OPM cases, the government’s violation of its
statutory duty to provide veterans with “full information”
of available benefits prevents it from enforcing the
statutory deadline that would otherwise apply to Mr.
Taylor’s benefit claim. See Dachniwskyj, 713 F.3d at 102;
Simpson, 347 F.3d at 1366–67.
IV
Both the majority and the government nonetheless
argue that § 6303 does not solve the Richmond problem.
See 496 U.S. at 426 (holding that “judicial use of the
equitable doctrine of estoppel cannot grant . . . a money
remedy that Congress has not authorized”).
First, the majority and the government argue that
§ 6303 does not create an enforceable obligation, relying on
our earlier cases in Rodriguez v. West, 189 F.3d 1351, 1355
(Fed. Cir. 1999), and Andrews v. Principi, 351 F.3d 1134,
1137 (Fed. Cir. 2003). In those cases, we held that § 6303 8
DOD held all the cards necessary to make a claim for
[Disability Compensation Benefits] stemming from the
Edgewood Project. This oath kept Mr. Taylor quiet for
decades.
En Banc J.A. 109–110.
In his briefing before a panel of this court, Mr. Taylor
argued that “the U.S. Army[] injured Mr. Taylor while he
was on active duty after compelling him to sign a secrecy
agreement. This secrecy agreement effectively precluded
him from filing an application for service-connected
compensation for that injury.” Appellant’s Reply Br. 7.
8 Rodriguez and Andrews discuss 38 U.S.C. § 7722,
which contained the notice provision now located at § 6303.
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TAYLOR v. MCDONOUGH
13
did not provide a remedy even if government employees
failed to inform potential beneficiaries about their benefit
rights. But neither Rodriguez nor Andrews dealt with a
situation like that presented here: the VA taking
misleading official action through a formal document
advising veterans of their rights. In Rodriguez, a claimant
was misinformed by VA employees about her eligibility for
benefits, delaying her application for benefits. See 189 F.3d
at 1352. And in Andrews, apparently a VA employee failed
to notify a veteran at the time of discharge about her
eligibility for benefits. See 351 F.3d at 1136.
Rodriguez and Andrews are of course not binding on
the en banc court. “Indeed, ‘[t]he province and obligation
of the en banc court is to review the current validity of
challenged prior decisions.’” Robert Bosch, LLC v. Pylon
Mfg. Corp., 719 F.3d 1305, 1316 (Fed. Cir. 2013)
(alterations in original) (quoting United States v. Aguon,
851 F.2d 1158, 1167 n. 5 (9th Cir.1988) (en banc), rev’d on
other grounds, Evans v. United States, 504 U.S. 255(1992)); see id. (panel decisions can be “changed by the
court sitting en banc”). In particular, this court sitting en
banc is not bound by sweeping statements regarding what
a statute “appear[s] to be.” Rodriguez, 189 F.3d at 1355.
But there is no need to overrule these decisions.
Rodriguez and Andrews do not prevent us from
interpreting § 6303 as imposing an enforceable obligation
here. While the government cannot “be expected to ensure
that every bit of informal advice given by its agents in [a
complex administrative] program will be sufficiently
reliable,” Heckler, 467 U.S. at 64, and § 6303 may not be
violated when agency employees fail to perform the duties
imposed on them by the agency, it is surely violated when
the agency as a matter of official policy fails to comply with
its own statutory obligations.
Congress’s notice requirements bear the hallmarks of
an enforceable provision. Under § 6303, “[t]he Secretary
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TAYLOR v. MCDONOUGH
14
shall distribute full information to eligible veterans” about
the services they are owed, and “shall provide, to the
maximum extent possible, aid and assistance . . . to . . .
veterans . . . in the preparation and presentation of claims
under laws administered by the [VA].” § 6303(c)(1)(A), (d)
(emphasis added). Congress gave particular attention to
the VA’s official communications with veterans, providing
that the VA “shall by letter advise each veteran at the time
of the veteran’s discharge or release from active . . . service
(or as soon as possible after such discharge or release) of all
benefits and services under laws administered by the [VA]
for which the veteran may be eligible.” § 6303(b) (emphasis
added). In formulating the statute, Congress repeatedly
used the mandatory language “shall,” see § 6303(a)–(e),
and, to resolve any doubt, explained that “the outreach
services program authorized by this subchapter is for the
purpose of charging the [VA] with the affirmative duty of
seeking out eligible veterans . . . and providing them with
such services,” 38 U.S.C. § 6301(a)(2) (emphasis added).
See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 599
(1999) (distinguishing “hortatory” provision containing the
aspirational “should” with a provision including the
“mandatory language” of “shall”). 9
Nor is § 6303 the type of procedural requirement that
courts sometimes deem unenforceable, like those directing
agencies to complete tasks by a certain time. See Bullock
v. United States, 10 F.4th 1317, 1322 (Fed. Cir. 2021); see
also Charles H. Koch, Jr. & Richard Murphy, 4 Admin. L.
& Prac. § 11:43 (3d ed. 2023) (the default rule is that
“[a]gency action will be set aside if undertaken without
complying with relevant procedures”). We are “reluctant
to treat statutory terms as surplusage in any setting,” TRW
9 See also Aspen Consulting, LLC v. Sec’y of Army, 25
F.4th 1012, 1016 (Fed. Cir. 2022) (“shall” is “mandatory
language”); Piano Factory Grp., Inc. v. Schiedmayer
Celesta GmbH, 11 F.4th 1363, 1371 (Fed. Cir. 2021) (same).
Case: 19-2211 Document: 104 Page: 73 Filed: 06/15/2023
TAYLOR v. MCDONOUGH
15
Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citation omitted),
and are directed to “give effect to every clause and word”
Congress has enacted, Setser v. United States, 566 U.S.
231, 239 (2012) (internal quotation marks, citation, and
ellipses omitted). If § 6303 means anything, it must bar
the VA from misleading veterans in official documents,
thereby preventing them from accessing the benefits they
are due. The government’s view to the contrary would
render § 6303 a nullity.
Second, the majority, but not the government, argues
that Congress somehow approved of our decisions in
Rodriguez and Andrews by reenacting the statute after we
rendered those decisions. See Maj. Op. 30–31. There is not
the slightest indication that in reenacting § 6303 Congress
was aware of our decisions, nor that it considered the notice
problem to which those decisions were directed. Under
such circumstances, reenactment carries little weight. See
Schism v. United States, 316 F.3d 1259, 1295 (Fed. Cir.
2002) (en banc) (“[T]he Supreme Court has repeatedly
cautioned against using congressional silence alone to infer
approval of an administrative interpretation.”); 2B
Sutherland Statutory Construction § 49:8 (7th ed. 2023)
(the reenactment canon “does not apply where a legislature
paid no attention to [the judicial] interpretation during
reenactment.”).
For example, in Zenith Radio Corp. v. Hazeltine
Research, Inc., the Supreme Court rejected an argument
that “Congress’[s] silence when it re-enacted [a] statute”
conveyed Congressional approval of earlier lower-court
cases in the absence of “direct evidence that Congress ever
considered the issue . . . or voiced any views upon it.” 401
U.S. 321, 336 n.7 (1971). Similarly, the Court has rejected
the notion that there is a “judicial consensus so broad and
unquestioned that we must presume Congress knew of and
endorsed it” when Congress silently reenacts a statute
following “a smattering of lower court opinions”
interpreting it. BP P.L.C. v. Mayor & City Council of
Case: 19-2211 Document: 104 Page: 74 Filed: 06/15/2023
TAYLOR v. MCDONOUGH
16
Baltimore, 141 S. Ct. 1532, 1541 (2021) (citation omitted).
The reenactment canon is premised on Congress knowingly
adopting a judicial interpretation, see Food Mktg. Inst. v.
Argus Leader Media, 139 S. Ct. 2356, 2365 (2019), and
there is simply no reason to think that Congress knew
about Rodriguez or Andrews.
Third, the majority, but not the government, argues
that § 6303 does not affect the time bar of § 5110 because
the provisions are insufficiently interconnected. See Maj.
Op. 29–30 & n.7. But the provisions are in fact closely
linked. Both provisions appear in Title 38 dealing with
veterans’ benefits. More importantly, the VA’s outreach
duty in § 6303 is logically connected to the benefit time bar
of § 5110. If a veteran does not know about his benefits, he
will not file, and if he does not file, he does not accrue
benefits. The relationship between these provisions is at
least as strong as that between provisions we have
previously read together for equitable purposes. In
Johnston v. OPM, for example, we held that if the Army
Corp of Engineers violated its statutory duty to inform the
plaintiff that it was terminating him, he would be excused
his late filing for disability retirement benefits. See 413
F.3d at 1341–42. 10 Like §§ 6303 and 5110, the linked
statutory provisions in Johnston do not cite or reference
one another, and are codified in different chapters in the
United States Code. See 5 U.S.C. §§ 7513, 8337. We read
those provisions together because the agency’s duty to give
notice of termination is logically linked to the former
employee’s notice to timely seek retirement benefits. See
Johnston, 413 F.3d at 1342. The same reasoning applies
here.
10 In Johnston we also considered the government’s
regulatory duty to inform the plaintiff of his eligibility for
disability retirement benefits, see id., but regulatory
authority has no obvious role in the Richmond analysis.
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TAYLOR v. MCDONOUGH
17
Fourth, the government, but not the majority, argues
that it would be unworkable to notify veterans of their
ability to file a minimal, unclassified claim. As noted
earlier, the VA has recognized that this is feasible and has
implemented a procedure allowing veterans involved in
covert military operations to provide information to
support claims. In 2006 the VA changed its rules to provide
that the agency will reconsider claims after receiving
previously unobtainable evidence, including “[d]eclassified
records that could not have been obtained because the
records were classified when VA decided the claim.” New
and Material Evidence, Final Rule, 71 Fed. Reg. 52,455,
52,457 (Sept. 6, 2006) (codified at 38 C.F.R.
§ 3.156(c)(1)(iii)). 11 In such cases, the date the VA received
the earlier placeholder claim can mark the effective date.
See § 3.156(c)(3). So not only was it possible for the
government to alert veterans of the possibility of filing
minimal claims, but the VA has done so for more than 15
years. See also Transcript of Oral Argument at 29:5–7,
Arellano, 143 S. Ct. 543 (government counsel stating that
“the agency itself has taken a couple of steps to handle
cases like” the Edgewood veterans); id. at 29:21–30:9
(counsel stating that § 3.156(c) “ma[kes] explicit” that
submission of minimal claims is permissible).
Fifth, the government, but not the majority, argues
that this approach is barred by Arellano because in
Arellano the Court determined that the structure of § 5110
makes clear that equitable remedies are unavailable to toll
the statute of limitations, assuming it is one, in § 5110.
Arellano held that equitable tolling is unavailable under
§ 5110. See Arellano, 143 S. Ct. at 552. The government
11 The regulation was adopted in September 2006 and
became effective the following month. See 71 Fed. Reg. at
52,455. Mr. Taylor received his letter permitting him to
disclose his Edgewood injuries in June 2006, and he
applied for disability compensation in February 2007.
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TAYLOR v. MCDONOUGH
18
argues that § 5110 similarly bars equitable estoppel, but
the two are quite different. Equitable tolling pauses the
statute of limitations where “a litigant has pursued his
rights diligently but some extraordinary circumstance
prevents him from bringing a timely action.” Id. at 547
(citation omitted). Equitable estoppel, on the other hand,
is premised on the defendant’s misconduct. See Heckler,
467 U.S. at 59. Importantly, well aware of this case on the
horizon, see Transcript of Oral Argument at 28:18–24,
Arellano, 143 S. Ct. 543, the Court explicitly left open the
possibility that equitable estoppel may apply to § 5110, see
Arellano, 143 S. Ct. at 552 n. 3. 12
In short, § 6303 was violated by the VA in this case.
This violation bars the government from enforcing the time
bar of § 5110 in Mr. Taylor’s case, and Mr. Taylor is entitled
to retroactive benefits.
V
This is a challenging case, and we agree with the
plurality that Mr. Taylor and others similarly situated are
owed retroactive benefits. But we think this case should
be decided on equitable estoppel grounds rather than
constitutional grounds, and respectfully concur only in the
judgment.
12 The government contends that the Army and the
VA should be treated as separate entities. But both
agencies are part of the same government. Here, moreover,
there is evidence of substantial coordination between the
agencies. See En Banc J.A. 32–33. Under these facts at
least, the VA and the Army can appropriately be treated as
a single governmental entity.
Case: 19-2211 Document: 104 Page: 77 Filed: 06/15/2023
United States Court of Appeals
for the Federal Circuit
______________________
BRUCE R. TAYLOR,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2019-2211
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-2390, Judge Joseph L. Falvey
Jr., Judge William S. Greenberg, Judge Amanda L. Mere-
dith.
______________________
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 in-
flicted. 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
Case: 19-2211 Document: 104 Page: 78 Filed: 06/15/2023
2 TAYLOR v. MCDONOUGH
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 prec-
edent in a way that infringes on the Executive’s broad na-
tional 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.
I
When the right of access doctrine is properly applied to
Mr. Taylor’s case, it is clear that the government’s imposi-
tion of a secrecy oath was entirely within its constitutional
authority and obligation. There can be little dispute that
the Executive Branch has the broad authority to protect
national security information and to impose prohibitions
on the disclosure of that information. Trump v. Hawaii,
138 S. Ct. 2392, 2422 (2018) (recognizing the Executive’s
broad authority over “sensitive and weighty interests of na-
tional security and foreign affairs” (internal quotation
mark omitted)). And once it has done so, the Judiciary has
no business second-guessing the Executive’s determina-
tions. Id. (“[W]e cannot substitute our own assessment for
the Executive’s predictive judgments on [matters of na-
tional security], all of which are delicate, complex, and in-
volve large elements of prophecy.” (internal quotation
marks omitted)).
Case: 19-2211 Document: 104 Page: 79 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 3
A
The fundamental problem with the plurality’s analysis
is its extension of the constitutional right of access doctrine
to Mr. Taylor’s case in the first place. None of the right of
access cases cited by the plurality involve the Executive’s
broad discretion over the military and national security af-
fairs. And there is good reason for that—the right of access
cases require the court to subject the governmental deci-
sion at issue to strict scrutiny, i.e., whether the government
has a compelling interest and whether it was narrowly tai-
lored. But such a searching inquiry is incompatible with
the Executive’s broad authority in national security affairs.
And even if the doctrine could be expanded to cover
Mr. Taylor’s case, any finding that the government unduly
interfered with his right of access to the VA would require
us to second-guess the Executive’s national security deci-
sion that the Edgewood program needed to be kept confi-
dential even from the VA.
1
The plurality assumes, without explanation, that the
right of access line of cases, which deal with affirmative
acts of government misconduct, can simply be extended to
government decisions involving national security. Plural-
ity Op. at V.B.1. But that assumption is wrong. There is no
precedent for applying the right of access doctrine to deci-
sions taken by the government in furtherance of its na-
tional security interest, and I disagree with the plurality’s
unsupported attempt to extend the doctrine here.
The government’s act of securing a secrecy oath in or-
der to protect delicate national security information is
simply not the type of affirmative misconduct that occurred
Case: 19-2211 Document: 104 Page: 80 Filed: 06/15/2023
4 TAYLOR v. MCDONOUGH
in most of the cases cited by the plurality. 1 Instituting a
secrecy oath in furtherance of national security concerns
cannot be compared to the types of government actions that
took place in those cases, because those cases all involved
allegations of government misconduct or other types of il-
legal or improper action. 2
1 It is important to separate the government’s insti-
tution of the Edgewood program from the specific actions
that prevented Mr. Taylor and other Edgewood veterans
from accessing the VA. Any wrong that the government
committed stems from the government establishing and
overseeing the Edgewood program, not the secrecy oath.
There is no question that, in retrospect, the Edgewood pro-
gram appears excessive and unwarranted, but it is not cog-
nizable under a right of access theory because the program
itself did not prevent Mr. Taylor from accessing the VA. Ra-
ther, the only government act that prevented Mr. Taylor
from accessing the VA was when it instituted the secrecy
oath that prohibited him from discussing his involvement
in the Edgewood program.
2 The plurality opinion raises the question of
whether the right of access violation stems from the secrecy
oath itself, or from the government’s decision to declassify
the Edgewood program without a statutory remedy estab-
lishing an earlier effective date for a VA claim. The plural-
ity opinion seems to suggest that it was the act of
declassifying the Edgewood program, thereby allowing Mr.
Taylor and other similarly situated veterans to eventually
pursue claims, that somehow contributed to an act of gov-
ernment misconduct because it was this act of declassifica-
tion that ultimately opened the government to increased
liability. I am greatly concerned by that implication be-
cause that could discourage the government from declassi-
fying programs in the future for fear of similar claims.
Case: 19-2211 Document: 104 Page: 81 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 5
For example, several of the cases involve actions taken
by corrections officials that specifically impeded inmates’
access to the courts. E.g., Lewis v. Casey, 518 U.S. 343, 347
(1996) (involving allegations by a group of inmates that
prison officials denied them physical access to the law li-
brary and refused translation assistance to non-English-
speaking inmates); Bounds v. Smith, 430 U.S. 817, 818–20
(1977) (involving similar allegations about prison officials
denying inmates physical access to the law library); Silva
v. Di Vittorio, 658 F.3d 1090, 1095–96 (9th Cir. 2011) (in-
volving allegations that prison officials needlessly trans-
ferred Mr. Silva to different facilities and destroyed certain
legal documents), overruled on other grounds by Richey v.
Dahne, 807 F.3d 1202, 1209 (9th Cir. 2015). Other cases
relied on by the plurality involve equally egregious allega-
tions of government misconduct that directly impeded
plaintiffs’ right of access to the courts, such as police mis-
conduct directed at claimants or employees. Borough of
Duryea v. Guarnieri, 564 U.S. 379, 383–84 (2011) (involv-
ing allegation of denial of overtime and punitive perfor-
mance directives in response to union grievance);
Tennessee v. Lane, 541 U.S. 509, 514 (2004) (involving alle-
gations that a state courthouse refused to accommodate a
claimant’s mobility disability and forced him to crawl up
the courthouse stairs); Swekel v. City of River Rouge, 119
F.3d 1259, 1260 (6th Cir. 1997) (involving allegations that
police precinct covered up evidence from a car accident in-
volving the son of a police officer). And even in Christopher
v. Harbury, a case that the plurality heavily relies on, the
underlying government misconduct involved allegations
that the government made affirmative statements and
omissions that misled Ms. Harbury about whether her hus-
band was still alive after he had been captured, detained,
tortured, and used as an informant by the CIA. 536 U.S.
Case: 19-2211 Document: 104 Page: 82 Filed: 06/15/2023
6 TAYLOR v. MCDONOUGH
403, 406 (2002). 3 While I agree with the plurality opinion
that a right of access claim does not require a showing of
intent, all of these cases have a common theme: the alleged
conduct—whether the government intended it to or not—
directly impeded access to the courts.
By contrast, establishing a secrecy oath for a classified
military program does not come close to the type of affirm-
ative misconduct that courts have found contribute to vio-
lating a plaintiff’s right of access. And the plurality does
not explain why establishing a secrecy oath is equivalent
to the types of government misconduct that took place in
the cases it relies on. Nor can it, because any finding that
a secrecy oath, elicited to protect delicate national security
information, constitutes government misconduct would re-
quire courts to question the Executive’s broad authority
over matters concerning national security. The Supreme
Court has made it clear that judicial bodies should not sub-
stitute their judgment for that of the Executive in matters
of national security. Hawaii, 138 S. Ct. at 2422. But by as-
suming that the secrecy oath constitutes government mis-
conduct, the plurality does just that. Because a secrecy
oath does not constitute the kind of government miscon-
duct contemplated in the right of access line of cases, the
plurality’s extension of the right of access doctrine to
Mr. Taylor’s case is improper. A decision rooted in national
security policy, such as the secrecy oath here, should not be
the basis for a denial of access claim.
Yet another reason the right of access doctrine should
not extend to the facts of Mr. Taylor’s case is that, unlike
3 It is also worth mentioning that the Supreme Court
did not even find a right of access violation despite the se-
rious allegations of misconduct. Christopher, 536 U.S. at
418 (“Harbury’s complaint did not come even close to stat-
ing a constitutional claim for denial of access upon which
relief could be granted.”).
Case: 19-2211 Document: 104 Page: 83 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 7
in the right of access cases cited by the plurality, he did
ultimately gain access to the VA and was provided the full
scope of benefits allowed under § 5110. It is just that his
right of access claim stems from the theory that the remedy
he was granted was not enough, since Mr. Taylor’s benefits
accrued from the date of his application, rather than the
date he was discharged. The plurality relies on Christopher
for the proposition that, particularly for backwards-looking
right of access violations, the plaintiff must “identify a rem-
edy that may be awarded as recompense but not otherwise
available in some suit that may yet be brought.” Plurality
Op. at 35 (quoting Christopher, 536 U.S. at 415). But just
because Mr. Taylor requested an earlier effective date to
expand his award of benefits does not make his request the
appropriate remedy. None of the right of access cases the
plurality cites grant relief that involves expanding the
amount of damages or benefits available to a plaintiff de-
spite a potential right of access violation. Of the few cases
the plurality cites where courts granted some sort of rem-
edy in light of a potential right of access violation, the rem-
edy was ordinarily allowing the plaintiff’s claim to go
forward at all. E.g., Lane, 541 U.S. at 515, 533–34 (affirm-
ing the denial of the government’s motion to dismiss a
claim under the Americans with Disabilities Act);
Ringgold–Lockhart v. Cnty. of Los Angeles, 761 F.3d 1057,
1067 (9th Cir. 2014) (vacating and remanding the district
court’s grant of the government’s motion to dismiss in light
of a potential right of access violation). But none of these
cases involved expanding the amount of benefits or dam-
ages available to the plaintiff. This further underscores
how the remedy granted by the plurality is unsupported by
any statutory or legal authority.
Furthermore, the effective-date limitations of § 5110 do
nothing more than set a temporal limit on Mr. Taylor’s ben-
efits. They do not deny him administrative access. In a
sense, § 5110’s effective-date limitations are like a statute
of limitations. A statute of limitations might, as its name
Case: 19-2211 Document: 104 Page: 84 Filed: 06/15/2023
8 TAYLOR v. MCDONOUGH
implies, limit a plaintiff’s remedy by preventing the plain-
tiff from raising untimely claims. But we would never char-
acterize the applicable statute of limitations as denying
that plaintiff access to the courts. Rather, we would ana-
lyze whether “the defendant[’s] actions foreclosed [the
plaintiff] from filing suit in . . . court or rendered ineffective
any . . . court remedy she previously may have had,” and
then we would “address [any] pre-filing abuses by tolling
the statute of limitations.” Swekel, 119 F.3d at 1263–64.
Thus, I would find that the right of access doctrine does
not apply to Mr. Taylor’s case, and therefore I would not
find a right of access violation here.
2
For many of the same reasons discussed above, I would
also find that the right of access doctrine is inapplicable
here because the government’s actions did not constitute
active, undue interference, as required by the right of ac-
cess line of cases that the plurality relies on. Even if the
plurality is correct that a national security determination
can form the basis for a right of access claim, a plaintiff’s
right of access is not unconditional. To violate a plaintiff’s
right of access, the government must have engaged in ac-
tive, undue interference that deliberately shuts out the
plaintiff from an institution. See Christopher, 536 U.S. at
414–15. 4 I would conclude that the government did not
4 The active, undue interference standard is typi-
cally used in incarcerated-persons cases, as articulated by
the Ninth Circuit. Claimant-Appellant’s En Banc Br. 55
(citing Silva, 658 F.3d at 1103). I analyze this standard be-
cause it is the most coherent test that the parties present,
and both parties believe that this standard is not meaning-
fully different than the tests used in non-incarcerated-per-
sons cases. Claimant-Appellant’s En Banc Br. 55;
Respondent-Appellee’s En Banc Br. 46–47, 47 n.8.
Case: 19-2211 Document: 104 Page: 85 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 9
engage in the kind of active, undue interference that took
place in the right of access cases on which the plurality re-
lies.
Mr. Taylor asserts that the government engaged in ac-
tive, undue interference because the government denied
him an opportunity to present his disability claim from
September 1971, the date of his discharge, to February
2006, the date he was allowed to disclose his participation
in the Edgewood program. Claimant-Appellant’s En Banc
Br. 49–50, 56. Mr. Taylor argues that “even a delay of ac-
cess[] may constitute a constitutional deprivation.” Claim-
ant-Appellant’s En Banc Br. 56–57 (quoting Jackson v.
Procunier, 789 F.2d 307, 311 (5th Cir. 1986)). The govern-
ment responds that any interference was not “undue” be-
cause the government was “protecting classified
information.” Respondent-Appellee’s En Banc Br. 52. Ac-
cording to the government, “the [secrecy] oath was not de-
signed to preclude Mr. Taylor from obtaining benefits, but
rather to protect classified information.” Respondent-Ap-
pellee’s En Banc Br. 54.
I do not deny that the secrecy oath prohibited Mr. Tay-
lor from filing his claim earlier than 2006, and that there-
fore, the secrecy oath interfered with Mr. Taylor’s right of
access to adjudication. But even if the government did in-
terfere with Mr. Taylor’s ability to access the VA, that in-
terference was not “undue” because establishing a secrecy
oath cannot in any way be considered illegal or improper. I
acknowledge that the relevant cases have not sufficiently
delineated the boundaries of what actions are “undue” in
the context of right of access cases. But under its plain
meaning, I do not think the government’s actions were
“[e]xcessive or unwarranted.” Undue, BLACK’S LAW
DICTIONARY (11th ed. 2019). The plurality does not explain
why the secrecy oath required of Edgewood veterans im-
properly exceeds the Executive’s broad authority over na-
tional security concerns. The plurality chastises the
government for securing a secrecy oath “backed by court-
Case: 19-2211 Document: 104 Page: 86 Filed: 06/15/2023
10 TAYLOR v. MCDONOUGH
martial and prosecution threats,” Plurality Op. at 37, and
merely assumes without any explanation that such an oath
is “undue.” But eliciting a secrecy oath from Edgewood vet-
erans is entirely the type of delicate national security deci-
sion that lies firmly within the purview of the Executive; it
is not our place to second-guess that determination. As a
judicial body, we lack the full scope of information and the
competence to question the propriety of the secrecy oath—
as the plurality admits, we do not even have the text of the
secrecy oath that Mr. Taylor signed before us. Plurality Op.
at 7. To then conclude that the secrecy oath constitutes “un-
due” interference is speculative and an overreach of our ju-
dicial decision-making. Thus, I would conclude that the
government’s adoption of a secrecy oath was not undue in-
terference and accordingly did not violate Mr. Taylor’s
right of access to the VA.
B
Putting aside whether the right of access doctrine ap-
plies in the first place, the plurality also argues that the
government’s actions do not pass muster under the strict
scrutiny standard because the secrecy oath was not nar-
rowly tailored to serve its compelling interest in national
security. Plurality Op. at 45–49. For the reasons discussed
above, I do not think we should reach the question of
whether the government’s actions pass strict scrutiny be-
cause the right of access theory should not be extended to
national security cases such as Mr. Taylor’s. But even if the
plurality is correct that the government’s actions should be
subject to strict scrutiny because of the fundamental right
to access the courts, courts have also acknowledged that
compelling state interests can justify interfering with a
claimant’s right of access. See Ryland v. Shapiro, 708 F.2d
967, 972 (5th Cir. 1983). Accordingly, I further disagree
with the plurality that the secrecy oath constituted “un-
due” interference with Mr. Taylor’s right of access because
the government’s actions here are not unconstitutional
even under a strict scrutiny standard.
Case: 19-2211 Document: 104 Page: 87 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 11
The Supreme Court has repeatedly recognized “the
Government’s ‘compelling interest’ in withholding national
security information from unauthorized persons in the
course of executive business.” Dep’t of Navy v. Egan, 484
U.S. 518, 527 (1988); see also In re Nat’l Sec. Letter, 33
F.4th 1058, 1072 (9th Cir. 2022). In particular, “the protec-
tion of classified information must be committed to the
broad discretion of the agency responsible, and this must
include broad discretion to determine who may have access
to it.” Egan, 484 U.S. at 529. Accordingly, “courts tradition-
ally have been reluctant to intrude upon the authority of
the Executive in military and national security affairs.” Id.at 530 (citing cases); see United States v. Zubaydah, 142 S.
Ct. 959, 967 (2022) (reiterating that courts should not in-
terfere with the “authority of the Executive in military and
national security affairs”). Furthermore, while agency ac-
tions are presumptively reviewable, this presumption
“runs aground when it encounters concerns of national se-
curity.” El-Ganayni v. U.S. Dep’t of Energy, 591 F.3d 176,
181 (3d Cir. 2010) (quoting Egan, 484 U.S. at 527). And
most importantly, the courts “cannot substitute [their] own
assessment for the Executive’s predictive judgments” on
matters of national security. Hawaii, 138 S. Ct. at 2421; see
also Int’l Refugee Assistance Prog. v. Trump, 961 F.3d 635,
652 (4th Cir. 2020).
However horrible the Edgewood program may appear
to have been in retrospect, at the time the government in-
stituted a secrecy oath for participants, it implicated deli-
cate national security concerns, and the government
asserts that it “has a compelling interest in protecting . . .
the secrecy of information important to our national secu-
rity” by requiring participants to sign secrecy oaths. Re-
spondent-Appellee’s En Banc Br. 58–59 (quoting Snepp v.
United States, 444 U.S. 507, 509 n.3 (1980)). The govern-
ment easily meets the compelling interest prong of the
strict scrutiny test, and the plurality does not deny this.
Case: 19-2211 Document: 104 Page: 88 Filed: 06/15/2023
12 TAYLOR v. MCDONOUGH
On the narrowly tailored prong, asking Mr. Taylor and
other Edgewood participants to sign a secrecy oath limiting
their ability to disclose details of the program falls squarely
within the umbrella of narrowly tailored conduct that fur-
thers a compelling government interest. See In re Nat’l Sec.
Letter, 33 F. 4th at 1073. The plurality suggests that the
government could have provided a more limited secrecy
oath that would have provided Edgewood veterans with an
adjudication while simultaneously maintaining military
secrecy. Plurality Op. at 47–48. While it may have been
theoretically possible to set up such a system, that is not
the correct question. In re Nat’l Sec. Letter, 33 F. 4th at
1073 (noting that strict scrutiny requires that a restriction
“be narrowly tailored, not that it be perfectly tailored” and
that courts “should decline to wade into the swamp of cali-
brating the individual mechanisms of a restriction”)
(cleaned up). As the plurality observes and as the govern-
ment acknowledges, there are other instances of benefits
programs that involved classified information. Plurality
Op. at 48–49. But the plurality’s reference to these other
benefits programs presupposes that the national security
concerns applicable to Edgewood are identical to those
raised in the other programs. It also assumes that the gov-
ernment had the ability to set up similar programs back in
1971. But we have no adequate basis to make those deter-
minations. Just because the government has allowed clas-
sified information to be used in some administrative
benefits programs does not mean the government is com-
pelled to do so—or even able to do so—in all cases. Presum-
ably, there is some information so sensitive that the
government could decide the risk of exposure is so great
that it cannot be shared outside the specific program, even
to the VA.
Furthermore, the plurality’s analysis implies that, be-
fore the government takes any action to control the dissem-
ination of information in furtherance of its national
security interests, it must have the foresight to predict
Case: 19-2211 Document: 104 Page: 89 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 13
whether and how that information might need to be dis-
closed in order to access benefits and services from any gov-
ernment agency. This is an extraordinary burden to place
on the Executive and on any agencies involved in military
operations. Harbury, 536 U.S. at 422–23 (Thomas, J. con-
curring) (“I find no basis in the Constitution for a ‘right of
access to courts’ that effectively imposes an affirmative
duty on Government officials . . . to disclose matters con-
cerning national security[.]”).
In this case, the government made the choice to impose
a restrictive secrecy oath. I see nothing in that choice that
was beyond its authority and no reason for us to second
guess that choice. The plurality’s conclusion that the gov-
ernment could have adopted less-restrictive measures than
the secrecy oath as it was provided to Mr. Taylor is based
on nothing more than speculation and hindsight. By deter-
mining that the government could have structured the se-
crecy oath in such a way as to allow veterans to disclose the
nature of the Edgewood program to the VA, the plurality is
acting in place of the Executive and questioning the gov-
ernment’s determination that information about the Edge-
wood program could not be disclosed to other government
agencies without compromising national security. This
type of substituted judgment by a judicial forum is pre-
cisely what the Supreme Court and other courts have said
is inappropriate. E.g., Hawaii, 138 S. Ct. at 2422. Instead,
I would defer to the government’s assessment that prohib-
iting Edgewood volunteers from disclosing their involve-
ment in the program to the VA was necessary for national
security reasons, and I would conclude that the govern-
ment passes strict scrutiny by raising a compelling govern-
mental interest and by narrowly tailoring the adoption of a
secrecy oath to furthering the compelling governmental in-
terest.
Case: 19-2211 Document: 104 Page: 90 Filed: 06/15/2023
14 TAYLOR v. MCDONOUGH
II
Even if the government did unduly interfere with
Mr. Taylor’s right of access, we do not have the authority
to authorize the remedy the plurality grants—waiver of
§ 5110 to expand the benefits available to Mr. Taylor. In a
typical right of access case, the court will identify an inter-
fering government action that results in an unavailable or
incomplete remedy. The court will then use a statutory or
equitable power to grant the plaintiff a cause of action. But
that it not what the plurality does here. Instead, the plu-
rality ignores the fact that Mr. Taylor did, in fact, have ac-
cess to the adjudicatory system of the VA, and disregards
statutory authority by expanding the time frame that his
claim covers, thereby expanding his benefits. In my opin-
ion, we do not have any authority to grant this type of un-
precedented remedy.
Ordinarily, when courts determine that the govern-
ment has unduly interfered with a plaintiff’s right of access
to adjudication, they grant a remedy that essentially re-es-
tablishes the plaintiff’s right of access to courts. Normally,
that remedy is granting the plaintiff a cause of action to
bring their case. For example, in Delew v. Wagner, the
Ninth Circuit determined that “[t]he Delews have indeed
alleged a constitutional violation, namely, that the defend-
ants violated the Delews’ right of meaningful access to the
courts by covering up the true facts surrounding Erin Rae
Delew’s death.” 143 F.3d 1219, 1222 (9th Cir. 1998). Iden-
tifying a possible interfering government action, the Ninth
Circuit turned to the appropriate statutory remedy and
concluded that “the Delews’ complaint alleges a cognizable
claim under” 42 U.S.C. § 1983, which explicitly allows an
individual to sue any person who deprives that individual
“of any rights, privileges, or immunities secured by the
Constitution and laws” while acting “under color of” state
or territorial law. Id.; see also Moon v. El Paso, 906 F.3d
352, 358 (5th Cir. 2018) (“We agree with the district court
that Moon’s access-to-courts claim is time-barred. Because
Case: 19-2211 Document: 104 Page: 91 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 15
this claim is brought under § 1983, the federal accrual law
governs . . . .”). The Ninth Circuit has also indicated that
right of access claims are cognizable under other statutes—
like 28 U.S.C. § 2244(d)(1)(B), which extends a limitations
period when a state action unconstitutionally impedes a
habeas-corpus applicant from filing an application—or un-
der a court’s equitable powers like equitable tolling.
Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.
2000); see also Swekel, 119 F.3d at 1264 (“In most in-
stances, state courts can address pre-filing [right of access]
abuses by tolling the statute of limitations or allowing for
a ‘spoliation of evidence’ lawsuit.”).
But here, the plurality deviates from how courts have
ordinarily remedied violations of the right of access to
courts, as I discussed supra at I.A.2. In my opinion, this
deviation results from the fact that, unlike in other right of
access cases, Mr. Taylor did ultimately access the VA and
did receive benefits precisely in accordance with § 5110.
But because the benefits Mr. Taylor received were limited
by the secrecy oath, the plurality concludes that § 5110 is
unconstitutional as applied to Mr. Taylor, and grants
Mr. Taylor an earlier effective date. That decision lies far
outside our judicial authority because no statute or other
legal authority allows the Veterans Court or this court to
grant Mr. Taylor an earlier effective date.
The plurality erroneously relies on the Veterans
Court’s statutory authority to “hold unlawful and set aside
decisions, findings, conclusions, rules, and regulations is-
sued or adopted by the Board found to be contrary to con-
stitutional right, power, privilege, or immunity.” 38 U.S.C.
§ 7261(a)(3) (cleaned up); Plurality Op. at 52–53. The plu-
rality asserts that § 5110, as applied to Mr. Taylor, is un-
constitutional, so the plurality therefore instructs the
Veterans Court to set aside the Board’s decision. Plurality
Op. at 55, 57. But § 5110 is not unconstitutional, either on
its face or as applied to Mr. Taylor. Section 5110 is clearly
constitutional on its face; it gives, rather than denies,
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16 TAYLOR v. MCDONOUGH
veterans access to a government institution. And the effec-
tive-date limits established by § 5110 are constitutional as
applied to Mr. Taylor; those effective-date limits did not
prevent Mr. Taylor from accessing the VA, but merely set
boundaries on the statutory benefits that he can receive.
I also question whether we can truly characterize
Mr. Taylor’s current effective date as an incomplete rem-
edy. Section 5110 authorizes benefits from “the date of the
filing of the initial application” and further states that ben-
efits shall not be awarded for any time period “earlier than
the date of receipt of application therefor.” 38 U.S.C.
§ 5110(a)(1)–(2). This is exactly what Mr. Taylor received—
he applied for benefits in 2007, and he was awarded bene-
fits from the date his application was filed. Were it not for
the particular nature of the Edgewood program and the in-
juries that Mr. Taylor sustained as a result, his case would
present nothing more than a routine application of § 5110.
But the plurality points to no statute or other legal author-
ity for awarding Mr. Taylor an earlier effective date in clear
contravention of the plain language of § 5110. There is no
question that under the applicable statute, Mr. Taylor re-
ceived the full remedy available to him—benefits from the
date of his application. To hold otherwise would deny Con-
gress the ability to set boundaries on its statutorily created
programs. The authority to grant Mr. Taylor and other
similarly situated veterans with an earlier effective date,
despite the temporal limits of § 5110, lies with Congress
and Congress alone.
Because § 7261(a)(3) does not reach the government’s
institution of a secrecy oath and because the Board’s appli-
cation of § 5110 was not unconstitutional as applied to
Mr. Taylor, I would find that the government did not un-
duly interfere with Mr. Taylor’s access to the VA or other-
wise violated his right of access. Accordingly, I disagree
with the plurality’s application of § 7261(a)(3) to circum-
vent § 5110, and I disagree that § 5110 is unconstitutional
as applied to Mr. Taylor.
Case: 19-2211 Document: 104 Page: 93 Filed: 06/15/2023
TAYLOR v. MCDONOUGH 17
III
Ultimately, the plurality’s right of access theory and
associated remedy is nothing more than equitable tolling
or estoppel disguised as a constitutional workaround. By
granting an effective date earlier than what was permitted
by § 5110, the plurality’s grant of relief either violates, or
is at best, in tension with Arellano, where the Supreme
Court held that we cannot equitably toll a veteran’s effec-
tive date for benefits. Arellano v. McDonough, 143 S. Ct.
543, 546 (2023). The plurality’s remedy conflicts with bind-
ing case law and has no other legal basis in authority. Even
if the government had violated Mr. Taylor’s right of access,
waiving § 5110 is not an appropriate remedy because doing
so is no different from providing an equitable remedy,
which the plurality concedes we cannot do.
As the plurality admits, we cannot invoke our equitable
powers to give Mr. Taylor an earlier effective date as we
would in a traditional statute of limitations case, as dis-
cussed in Swekel. And as the Supreme Court recently held
in Arellano, we cannot equitably toll a veteran’s effective
date for benefits. And as the plurality admits, under Rich-
mond, we also cannot order the Veterans Court to equita-
bly estop the government from applying 38 U.S.C. § 5110.
Thus, in the absence of any statutory or equitable
power to do so, I would hold that we do not have the au-
thority to grant Mr. Taylor an earlier effective date.
IV
In an attempt to, understandably, provide Mr. Taylor
more fulsome benefits, the plurality’s decision inappropri-
ately expands two areas of law. First, it broadens an al-
ready amorphous right of access doctrine—which has
almost exclusively been applied to incarcerated persons
cases or other instances of clear government misconduct
that directly result in denied access to institutions—to
cover secrecy oaths created in the interest of national
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18 TAYLOR v. MCDONOUGH
security. Second, it enlarges our court’s power by allowing
us to craft remedies in the absence of any authority to do
so—statutory, equitable, or otherwise. While the plurality
attempts to limit its holding to Mr. Taylor’s unique case, I
am concerned that this case has far-reaching implications
that could impact the millions5 of people with a security
clearance or who are prohibited from sharing certain types
of national security information. The plurality opinion es-
sentially imposes a balancing test, where national security
officials will need to consider whether any security clear-
ances or other means of restricting classified or confiden-
tial information could lead to a potential right of access
claim. Such a balancing test is a tremendous burden to
place on the government.
I sympathize with the plurality’s desire to award
Mr. Taylor additional benefits, especially given the govern-
ment’s unfortunate treatment of him and other Edgewood
volunteers. And I reiterate that Congress should have im-
mediately provided Mr. Taylor with a more complete rem-
edy by passing a statute that would allow Mr. Taylor and
other similarly situated veterans to receive benefits dating
back to their date of discharge, rather than the date of their
benefits application. But Mr. Taylor does not have a cog-
nizable right of access claim, and we have no authority to
grant his requested remedy. Therefore, I respectfully dis-
sent.
5 See, e.g., NAT’L COUNTERINTELLIGENCE AND SEC.
CTR., Fiscal Year 2017 Annual Report on Security Clear-
ance Determinations at 4 (n.d.), https://www.dni.gov/files/
NCSC/documents/features/20180827-security-clearance-
determinations.pdf (noting approximately 2.8 million who
were briefed into access to classified information in FY
2017).