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.

______________________ 

Decided: June 15, 2023

______________________ 

 CHARLES MCCLOUD, Williams & Connolly LLP, Washington, DC, argued for claimant-appellant. Also represented 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 Justice, 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. ADELOYE, BRIAN D. GRIFFIN, Office of General Counsel, United 

States Department of Veterans Affairs, Washington, DC.

 DROR LADIN, American Civil Liberties Union Foundation, New York, NY, for amici curiae American Civil Liberties 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, Bethesda, MD, for amicus curiae American Legion. Also represented 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 Missouri School of Law, Columbia, MO, for amicus curiae National 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 government swore him to secrecy through an oath broadly requiring him not to reveal any information about the 

program to persons not authorized to receive it, without 

specifying who might be so authorized. Mr. Taylor suffered 

injuries from his participation in the program, resulting in 

disabilities. But as the government concedes, the secrecy 

oath, backed by the possibilities of court-martial and criminal penalties, caused Mr. Taylor to refrain, for more than 

three decades after his discharge from service, from pursuing the sole adjudicatory route to vindicate his statutory 

1 Circuit Judge O’Malley retired on March 11, 2022. 

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4 TAYLOR v. MCDONOUGH

entitlement to disability compensation for those serviceconnected disabilities. Specifically, he refrained from filing 

a claim with the Department of Veterans Affairs (VA) for 

compensation based on his Edgewood injuries until after

the government, in 2006, released him and similarly situated veterans from their secrecy oaths.

In 2007, Mr. Taylor filed a claim for disability benefits, 

which VA granted. But VA granted the benefits only from 

the 2007 date of the claim because the governing statute, 

38 U.S.C. § 5110, specifies that the earliest possible effective date (with some limited exceptions) is the date on 

which VA receives the veteran’s claim. On appeal from an 

adverse decision of the United States Court of Appeals for 

Veterans Claims (Veterans Court), 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 equitable estoppel to support his request. We conclude that application of that doctrine here is barred by the Supreme 

Court’s decision in Office of Personnel Management v. Richmond, 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 established by statute. That substantive limit on the doctrine 

applies in any forum unless Congress has overridden Richmond 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 precludes reliance on equitable estoppel to override the claimfiling 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 precondition to enforcing § 5110’s claim-filing effective-date requirements, he is incorrect. Applying equitable estoppel in 

those circumstances would violate Richmond because the 

monetary award would violate statutory limits. To the extent that Mr. Taylor argues that Congress made compliance with § 6303 a precondition to enforcing § 5110’s claimfiling effective-date limits, he is also incorrect. That argument 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 statutory basis to support Mr. Taylor’s effort to obtain an effective 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 claimfiling limits on the effective date. For decades, the government denied Mr. Taylor his fundamental constitutional 

right of access to the adjudication system of VA, the exclusive forum for securing his legal entitlement to the benefits 

at issue. The government’s threat of court-martial or prosecution—without an exception for claims made to VA—affirmatively foreclosed meaningful access to the exclusive 

adjudicatory forum. And without questioning the strength 

of the interest in military secrecy, we see no adequate justification for this denial of access. The government makes 

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6 TAYLOR v. MCDONOUGH

only highly general assertions of national-security interests, but it acknowledges that VA has created and uses special processes for adjudicating claims by former members 

of the special forces for injuries incurred during military 

operations whose existence remains classified, and the government has furnished no adequate reason that secrecy 

could not have been similarly protected for Edgewood veterans 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 unconstitutional as applied to Mr. Taylor. A veteran in Mr. Taylor’s position is entitled, under ordinary remedial 

principles, to receive benefits for service-connected disabilities from the effective date that the veteran would have 

had in the absence of the government’s challenged conduct. 

We reverse the Veterans Court’s decision and remand for 

expeditious proceedings to implement our holding. 

I 

A 

Mr. Taylor served on active duty in the U.S. Army from 

January 1969 to March 1971. During his service, he volunteered to participate as a human subject in a testing program 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 different 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 facility 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-martial. 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 determination in this court.

Both Mr. Taylor and the government point us to a sample 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 Taylor, 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 Intelligence 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. Signatories 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 provisions 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), EA3547 (a tear gas agent), and scopolamine (also an anticholinergic). 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 memorializing the administration of EA-3580A to Mr. Taylor); J.A. 

40 (psychological report showing Mr. Taylor’s recall of having been “injected with large doses of [s]copolamine”). Mr. 

Taylor reported experiencing hallucinations after being administered 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 experienced 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 referred 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 particular 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 hallucinations, 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 fabrication.” 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 participants—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 Edgewood 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 [conducted at Edgewood], contact VA . . . to speak to a VA representative about filing a disability claim.” J.A. 33.

On February 22, 2007, Mr. Taylor filed a claim for benefits for posttraumatic stress disorder (PTSD) “caused in 

service in 1969 at the chemical research program at Edgewood.” J.A. 38. A VA clinical examiner diagnosed Mr. Taylor 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 human subject in the Edgewood . . . experiments and subsequent 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, assigning 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[] until [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 consequence 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 consequence of . . . the secrecy oath.”).

On July 20, 2010, the Board denied Mr. Taylor’s request 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 receives 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 exception: If VA receives the disability-compensation claim 

within one year of the date that the veteran was discharged, 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) exception does not apply, and the effective date cannot be earlier 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 process . . . by failing to have any process in place by which 

[he] could make a claim for [benefits] . . . as a former participant in the Edgewood program, prior to the 2006 partial 

[declassification].” J.A. 104. Citing Christopher v. Harbury, 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] retained 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 account 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 locate 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 remaining 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. Taylor’s “diagnosis of PTSD is based on multiple stressors, including 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 without having to divulge any information regarding the Edgewood experiments.” Id. at *4. Second, Mr. Taylor “appears 

to have divulged information regarding the Edgewood experiments 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 running 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 procedural 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 Supreme Court’s decision in Richmond, “held that [the Veterans 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 majority concluded that § 5110 “is clear” in this case: “The effective 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 benefits for his service in Vietnam without divulging information 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 response to his participation as a human subject in the Edgewood Arsenal experiments and subsequent retraumatization in Vietnam.” Id. at 157–58 (quoting Vet. 

Ct. Rec. at 2311 (J.A. 62)). Second, Judge Greenberg continued, “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 different proposition from divulging information to a medical 

provider.” Id. at 158. Third, Judge Greenberg concluded, 

VA and the Board should be “equitably estopped from finding 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 estop the government in this case and that Mr. Taylor is entitled, 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 ordered 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 petition 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 veteran’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 equitable 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 include 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 supplemental briefs on March 15, 2023, and March 29, 2023, respectively. 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 receive 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 requirement 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 dissatisfied 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 veteran 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 Supreme 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 retroactive benefits,” Arellano, 143 S. Ct. at 546, but such retroactive 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 decisions 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 compensation 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 considerations” 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 comprehensive scheme for an adjudicator to extend effective 

dates still further through the doctrine of equitable tolling.” Id. at 548. The Court noted that it was not “address[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 February 28, 2007, the date that VA received Mr. Taylor’s benefits claim. See Taylor Panel Opening Br. at 13 (“[Mr. 

Taylor] could not obtain an [effective date] prior to February 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 overriding § 5110’s claim-filing effective-date limit: first, the 

general equitable doctrine of equitable estoppel, and second, a statute, 38 U.S.C. § 6303, that directs VA to provide 

certain outreach services to veterans—even before they file 

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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-February 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 sufficiently 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 statute, 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 Veterans Court Br. at 14–18), which necessarily, albeit not explicitly, rejected it, see Taylor CAVC 2019, 31 Vet. App. at 

151–52. And we view the Veterans Court as having necessarily deemed § 6303 not to be a precondition to enforcing 

the claim-filing effective-date limits of § 5110, though without any § 6303-based argument from Mr. Taylor; the Veterans 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 “invoked 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 Terminal, 359 U.S. 231, 232 (1959). When equitable estoppel 

is applied against the government, “some form of affirmative misconduct must be shown in addition to the traditional requirements of estoppel.” Zacharin v. United 

States, 213 F.3d 1366, 1371 (Fed. Cir. 2000) (citing Richmond, 496 U.S. at 414, 421, 426; Immigration & Naturalization 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) (collecting cases showing that every circuit has so held), superseded 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 deciding—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 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.’” (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 equitable estoppel in the absence of a specific statutory provision 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 principles 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 availability of the doctrine of equitable estoppel against the federal 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 authorized.” 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 Supreme Court’s statement in Arellano that it was not addressing 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 precedent, we have done so. The Supreme Court did not invite 

us to depart from Richmond. 

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(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 provided in this subchapter” to any disabled veteran who was 

other than dishonorably discharged “[f]or disability resulting from personal injury suffered or disease contracted in 

[the] line of duty . . . in the active military . . . service, during a period of war.” But Mr. Taylor’s qualification for benefits under that provision does not end the inquiry. What 

is in dispute is how far back such benefits go, i.e., the effective 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 limitations 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 retroactive 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 Richmond. 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 Response Br. at 30, because VA received his benefits claim on 

February 28, 2007, more than one year after Mr. Taylor’s 

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22 TAYLOR v. MCDONOUGH

date of discharge, September 6, 1971, J.A. 28, 38. The 

§ 5110(b)(1) exception is inapplicable. No other § 5110 exception 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 therefor”—therefore governs. 

Mr. Taylor has not identified any provision (and we are 

aware of none) in which Congress has turned equitable-estoppel standards into statutory standards that could alter 

the results required by the § 5110 provisions for determining 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 governing review in the Veterans Court, see, e.g., id. §§ 7251–

7269, especially §§ 7252 and 7261; or the provisions governing 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 controlling 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 

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TAYLOR v. MCDONOUGH 23

Congress has separately granted the Secretary of Veterans Affairs certain equity-based authority: 

If the Secretary determines that benefits administered 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 entitled to such moneys.

38 U.S.C. § 503(a); see 38 U.S.C. § 212(c)(2) (1970) (providing 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 government 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. § 78u6(f)); Deaf Smith County Grain Processors, Inc. v. Glickman, 162 F.3d 1206 (D.C. Cir. 1998) (farm-subsidy and disaster-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, involving, e.g., 10 U.S.C. § 634 and 28 U.S.C. § 1491); Monongahela 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)).

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24 TAYLOR v. MCDONOUGH

governing the VA–Board process involved in this appeal. 

The contrast confirms that Congress has not made equitable-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 estoppel is not available to override the claim-filing effectivedate limits of § 5110.

IV

In the supplemental brief he submitted after the Supreme 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 program “authorized” in what follows—to ensure that all veterans “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 affirmative duty of seeking out eligible veterans and eligible dependents and providing them with such services.” Id.

§ 6301(a). Mr. Taylor refers to § 6301, but if, as we conclude, even the directive of § 6303 cannot help him here, 

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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 veterans . . . 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 interviews) 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 Codification 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. Veterans’ 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 differences 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 possible 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 either 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 applies. 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 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. See, e.g., Brush 

v. Office of Personnel Management, 982 F.2d 1554, 1561–

64 (Fed. Cir. 1992); Johnston v. Office of Personnel Management, 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 

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TAYLOR v. MCDONOUGH 27

benefit award; and when the precondition provision has 

been violated, it is enforcing (not failing to enforce) the restriction 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 remedies 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 citing, among other authorities, Missouri v. Jenkins, 515 U.S. 

70, 87 (1995))). The basis for such an award is not the doctrine 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 similar cases rely. In such circumstances, Richmond is inapplicable 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 argument 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 Rodriguez, 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 provision imposing “enforceable legal obligations upon the Secretary” 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 enforcing the § 5110 limits, stating: “VA’s failure to notify under 

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28 TAYLOR v. MCDONOUGH

§ [6303(b)] and (c)(1) may not serve as the basis for awarding 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 enforcement 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 authorities that recognize the futility of an argument requiring 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 compliance is a precondition to enforcement of the § 5110 limits 

at issue, we would have to overcome the force of stare decisis 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). Statutory 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 

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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 negligence in failing to provide a form or reach an individual 

veteran with notice of the availability of benefits as provided 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 compliance is not a precondition to enforcing the § 5110 limits—not just the conclusion on the particular facts. See, 

e.g., Bucklew v. Precythe, 139 S. Ct. 1112, 1126 (2019); Seminole 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 obstacles to any such overruling. And we have not been presented 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. Neither § 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 claimfiling 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 services” obligation not being linked to the claim-deciding 

rules. Moreover, the absence of the link Mr. Taylor requires 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 argument for adhering to particular precedents “grows in proportion to their ‘antiquity’” (quoting Montejo v. Louisiana, 

556 U.S. 778, 792 (2009))). Congress has reenacted the provisions 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 International Claims Settlement Act . . . demonstrat[ed] Congress’[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 (detailing 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 disturbed 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 predecessor 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 chapter 77 (“Veterans Benefits Administration”), while § 5110 

was in chapter 51 (“Claims, Effective Dates, and Payments”). See 38 U.S.C. Table of Contents (1994).

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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 congressional judgment that has long limited to claimants (in contrast 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 evidence 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 assist 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 Modernization Act of 2017, Pub. L. No. 115-55, § 2(c), (d), 131 

Stat. 1105, 1105–06; William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021

§ 926(a)(51), 134 Stat. at 3830. 

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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 claimfiling effective-date limits of § 5110. Making those limits 

unenforceable for noncompliance with § 6303, which applies to notice and aid to veterans for what may be many 

years before claiming, would have a large potential disruptive 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. Scientific-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 straightforward answers into benefits litigation if the effective date 

of benefits were now to depend on fulfillment of those duties. 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 secrecyoath action, with adjudication-foreclosing and claim-deterring effects, involved in this matter.

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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 reason and the others that we have set forth, we are not prepared to overrule Andrews or Rodriguez. We therefore 

decline to disturb our precedent under which VA’s compliance 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 access 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 argument 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 alternative 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 (already well-established) right of access to the courts.” (emphasis 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) (explaining that the First Amendment’s “Petition Clause protects 

the right of individuals to appeal to courts and other forums established by the government for resolution of legal 

disputes”); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972) (applying the right of access 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 foundational 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 applying 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 congressional 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 

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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 Constitution.” (cleaned up)).

The Court in Christopher noted that a claim of denial 

of the access right necessarily refers to an underlying entitlement and opportunity to litigate that entitlement and 

can take either of two perspectives regarding that opportunity. It can be forward-looking, in the sense that it complains 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 effective 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 violation “must identify a remedy that may be awarded as recompense but not otherwise available in some suit that may 

yet be brought.” Id.

2 

The government here accepts that there is a constitutional right of access to adjudicatory forums and that it applies to access to the VA benefits adjudicatory system. 

Sec’y En Banc Response Br. at 47 (“[A] veteran such as Mr. 

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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 legal entitlement to which a right of access applies, 536 U.S. 

at 413–18—is clearly met here. Mr. Taylor has a legal entitlement: “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 service.” 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 congressional 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 vindicating that entitlement—assertedly more than three decades’ 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 exception 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 Secretary certain authority to award benefits, but that authority is discretionary, and the government has indicated—

and Mr. Taylor has asserted—that the provision is inapplicable here. See supra pp. 23–24. 

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TAYLOR v. MCDONOUGH 37

“[T]he consequence of the oath was that Mr. Taylor refrained 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 opportunity to seek some particular order or relief”—which is the 

definition of the category of backward-looking right-of-access 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 undisputed underlying legal entitlement—stated by the 

Ninth Circuit in Silva v. Di Vittorio, which speaks of “active 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 appropriate 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 individual’s access to the adjudication offered by the forum. See 

also Snyder v. Nolen, 380 F.3d 279 (7th Cir. 2004) (per curiam) (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 details of the constitutional standard, including what levels 

of interference suffice and how the government might justify 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 affirmative act of securing a secrecy oath backed by court-martial 

and prosecution threats, with no exception for VA adjudicatory processes. That act, which would naturally be 

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38 TAYLOR v. MCDONOUGH

understood as foreclosing the ability to support an essential element of the standard for benefits, actually caused 

Mr. Taylor to refrain from filing the claim at issue to vindicate 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 unconstitutional 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 interference 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 interference, “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 courtmartial or prosecution, was ample affirmative interference 

with the right of access at issue—access to meaningful adjudicatory 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 

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TAYLOR v. MCDONOUGH 39

Edgewood program that was squarely within the secrecy 

oath. And the government has not identified any communication 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 vindication of the benefit entitlement.

The government itself states: “[T]he Secretary does not 

mean to suggest that a veteran should have to risk prosecution in order to apply for benefits.” Sec’y En Banc Response Br. at 51. The Supreme Court has elsewhere 

recognized the common-sense point that a threat of prosecution 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 unsuccessful, he must suffer imprisonment and pay fines, as provided 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 action by government is concerned, we do not require a plaintiff 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 claimant-possessed reliable information relevant and necessary 

to a desired adjudication, with no known avenue for proceeding without such disclosure, is insufficient to constitute active interference for purposes of the constitutional 

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40 TAYLOR v. MCDONOUGH

right of access. Mr. Taylor, we conclude, was “shut out of 

court” and “completely foreclosed” from obtaining an adjudication, so that his filing a claim would have been “futile”—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 circumstance.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 Response Br. at 49–50.11 The existence of a few such risk10 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 characterization 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 government 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 underlying 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 seeking 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 Edgewood [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 veterans 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 receive 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 “interpret[ing] the oath in the way most beneficial to the government” rather than testing its limits without 

authorization—a choice one might expect and even commend. 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 

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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 recognizes that there are holes in our oath interpretation argument.”).

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 affected their health,” Taylor CAVC 2019, 31 Vet. App. at 149 

(citing Vet. Ct. Rec. at 2695–97), but warned “not [to] discuss anything that relates to operational information that 

might reveal chemical or biological warfare vulnerabilities 

or capabilities,” J.A. 32. This letter indicates that Edgewood veterans were not authorized to provide details about 

Edgewood to VA (which provides health care to many veterans) 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 “entirely,” Sec’y En Banc Response Br. at 9, and “completely 

foreclose[]” Mr. Taylor from accessing VA because, the government 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 government’s suggestion about the role of a minimal claim is, rather, 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 reopening, with retroactive effect as far back as the date of 

the original filing, if the new and material evidence justifying reopening consists of “[d]eclassified records that 

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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 Material 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 access,” 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 supported as needed to vindicate the entitlement, thereby rendering a filing futile. To say otherwise is to ignore the 

purpose of the constitutionally guaranteed access—to obtain an adjudication. Of course, under the Silva right-ofaccess formulation, under which government interference 

might not be “undue” because it was justified, a government action that precludes an adjudication might not in 

the end be unconstitutional. But that conclusion would be 

12 Although the government suggested at oral argument 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 undertaken [a] search and has been unable to locate any manual 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 available. (The justification issue is discussed in the next section, 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 government 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 Edgewood veterans presumably did not live long enough to see 

those possibilities mature into actual changes, after decades. 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 denied meaningful access, and that denial existed independently 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 Response 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 requirements for post-service disability compensation are pervasively known to those in the service, and those who 

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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 interfered with Mr. Taylor’s access to the exclusive adjudicatory 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 interest in secrecy tied to military matters. We do not question 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 certain 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 assessing an asserted justification. But two sources point to 

a sensible standard here—a requirement of narrow tailoring to the secrecy interest invoked (which we accept as compelling), which demands a showing that less adjudicationforeclosing alternatives could not have protected the interest.

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 certain ‘fundamental’ liberty interests at all . . . unless the infringement is narrowly tailored to serve a compelling state 

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46 TAYLOR v. MCDONOUGH

interest” (emphasis omitted)); id. at 305 (“[N]arrow tailoring is required only when fundamental rights are involved.”); 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) (applying strict scrutiny to a constitutional right-of-access 

claim); cf. Lane, 541 U.S. at 529 (explaining that the situation 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 sexbased 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 government 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 equalprotection challenge to a “race-conscious admissions program,” narrow tailoring, while not requiring “exhaustion of 

every conceivable race-neutral alternative,” “does, however, 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. 

13 Mr. 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.

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TAYLOR v. MCDONOUGH 47

Bonta, 141 S. Ct. 2373, 2385, 2386 (2021) (similar, in rightof-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 concluded 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 present 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 affording access, by measures the government itself has used in 

a closely related context. 

The government has not met that standard. It presents 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 protected while giving Edgewood veterans an adjudication. 

For example, it has not addressed the possibility of a special 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 subset of claimants for whom appeal to the Board was relevant, the government has not addressed the possibility of 

having channeled Board review of secrecy-constrained 

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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 today’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 updated 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 submitting “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).

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TAYLOR v. MCDONOUGH 49

run that research request and then send back to the regional 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 conclusion that it could not have established a similar procedure 

for Edgewood veterans. And when the government suggests 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 secrecy 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 government’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 statement 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 government has not shown that the right of access to the sole adjudicatory system for vindicating the entitlement at issue 

would actually require disclosure of matters concerning national security (or providing information in response to informal requests). 

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50 TAYLOR v. MCDONOUGH

3 

The government is mistaken in its final argument as 

well. The foregoing analysis means that it would be unconstitutional to apply § 5110’s claim-filing effective-date limits 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 constitutional 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 available in some suit that may yet be brought.” Christopher, 536 

U.S. at 415. This court and the Veterans Court are statutorily authorized, if the claim-filing effective-date limits of 

§ 5110 are unconstitutional as applied here, to require determination of the effective date without regard to those 

limits. The normal remedial principle would give Mr. Taylor the effective date he would have had if no unconstitutional 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 England, 546 U.S. 320, 329 (2006) (“It is axiomatic that a ‘statute may be invalid as applied to one state of facts and yet 

valid as applied to another.’” (quoting Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 289 (1921))); Troxel v. 

Granville, 530 U.S. 57, 73 (2000) (holding statute unconstitutional 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 

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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) (holding statute unconstitutional as applied). Second, “[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.” 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 denied [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 claimfiling effective-date limits of § 5110, that he would have 

had in the absence of the government’s unconstitutional interference 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 interference (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 during that period in such a way that different ratings would 

have been applied over time had the government not 

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52 TAYLOR v. MCDONOUGH

unconstitutionally interfered with his access to the adjudicatory 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 “conformably to the [C]onstitution, disregarding the law.” Marbury, 5 U.S. (1 Cranch) at 178. “This approach derives from 

the Judiciary’s ‘negative power to disregard an unconstitutional 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 challenge to the validity of any statute,” 38 U.S.C. § 7292(c), 

and to “decide all relevant questions of law, including interpreting 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 presents 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 something 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 benefits after getting a green light in 2006. He filed for benefits promptly, on February 22, 2007.

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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 decisions, findings . . . , conclusions, rules, and regulations issued 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 authority 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 Procedure Act’s (APA’s) judicial review provision codified at 5 

U.S.C. § 706—which contains the identical phrase “contrary to constitutional right” found in § 7261—includes “issues 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 deciding 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 unconstitutional as applied and to disregard that statute in constructing 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. 

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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 Appropriations 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-constitutional 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 equitable estoppel does not prevail over a constitutional statute limiting payments from the public fisc. 

The government points to no authority for the notion 

that a court is constitutionally forbidden to order the federal government to pay benefits to individuals, as a remedy, after finding unconstitutional a statutory limitation 

on payment of those benefits to those individuals. And the 

Supreme Court has approved of just such remedies, without suggesting a constitutional impediment. See, e.g., Sessions 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) 

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TAYLOR v. MCDONOUGH 55

(plurality opinion). In particular, when a federal benefits 

statute is unconstitutionally underinclusive—i.e., the statute’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: “Ordinarily, we have reiterated, ‘extension, rather than nullification, 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 reflect th[e] preference for extension rather than nullification.” (collecting cases)). If the extension is proper under 

established remedial principles,18 then there is no constitutional 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 access 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 constitutional infirmity,” Levin v. Commerce Energy, Inc., 560 U.S. 

413, 427 (2010); see Sessions, 582 U.S. at 73, fits the general 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 conclude otherwise.

The dissent suggests that there is or should be a categorical 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 Dynamics).

What is required in this area is not categorical exclusion but application of the doctrinally required standards 

with the caution specifically required when national-security actions are at issue, as indicated in the authorities discussed 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 national security, and it has provided no meaningful explanation 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 secrecy 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 government actions that leave any forward-looking cause of action 

available even if the actions unjustifiably deprive the individual of a legal entitlement for an extended period—here, 

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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-looking category of right-of-access violations to cover government actions that “caused . . . the loss of an opportunity to 

seek some particular order or relief.” 536 U.S. at 414 (emphasis 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 accompaniment of a VA route for claim presentation and proof to vindicate an undisputed legal entitlement (based on readily 

foreseeable harm). We explain why the resulting interference with access is undue: The government has not provided 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 circumstances 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 Edgewood 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 ultimately lifted”). And the dissent is contrary to the basic hierarchy 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. 

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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—imposition of the secrecy oath with no VA route for claim 

presentation and proof to vindicate the benefits entitlement. We reverse the decision of the Veterans Court and 

remand for expeditious proceedings to give Mr. Taylor relief pursuant to this holding.

Costs to Mr. Taylor.

REVERSED AND REMANDED

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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

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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 serviceconnected 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. 

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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)).

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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. 

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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 

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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.

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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)). 

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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. § 6303 

to 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 § 63038

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).

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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 

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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: 76 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.

______________________ 

HUGHES, Circuit Judge, dissenting in part and dissenting 

from the judgment, with whom LOURIE, Circuit Judge, 

joins. 

The government has treated Bruce Taylor and other 

Edgewood program volunteers unfairly, subjecting them to 

harmful experiments and then failing to provide the most 

basic form of redress for the harm that the government inflicted. Congress can provide, and should have immediately 

provided, a remedy to Mr. Taylor and the other Edgewood 

volunteers by passing a statute that, at a minimum, allows 

the Secretary to award Edgewood volunteers an effective 

date corresponding to each veteran’s date of discharge. I 

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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 precedent in a way that infringes on the Executive’s broad national security powers. Because the government did not 

violate Mr. Taylor’s right of access and because, even if it 

had, our court has no equitable or statutory authority to 

remedy such a violation, I respectfully dissent from Parts 

V–VI and from the judgment. 

I 

When the right of access doctrine is properly applied to 

Mr. Taylor’s case, it is clear that the government’s imposition 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 national security and foreign affairs” (internal quotation 

mark omitted)). And once it has done so, the Judiciary has 

no business second-guessing the Executive’s determinations. Id. (“[W]e cannot substitute our own assessment for 

the Executive’s predictive judgments on [matters of national security], all of which are delicate, complex, and involve large elements of prophecy.” (internal quotation

marks omitted)). 

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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 affairs. And there is good reason for that—the right of access 

cases require the court to subject the governmental decision at issue to strict scrutiny, i.e., whether the government 

has a compelling interest and whether it was narrowly tailored. 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 decision that the Edgewood program needed to be kept confidential 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. Plurality Op. at V.B.1. But that assumption is wrong. There is no 

precedent for applying the right of access doctrine to decisions taken by the government in furtherance of its national 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 order to protect delicate national security information is 

simply not the type of affirmative misconduct that occurred 

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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 illegal or improper action.2 

1 It is important to separate the government’s institution 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 program appears excessive and unwarranted, but it is not cognizable under a right of access theory because the program 

itself did not prevent Mr. Taylor from accessing the VA. Rather, 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 establishing an earlier effective date for a VA claim. The plurality 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 government misconduct because it was this act of declassification that ultimately opened the government to increased 

liability. I am greatly concerned by that implication because that could discourage the government from declassifying programs in the future for fear of similar claims. 

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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 library and refused translation assistance to non-Englishspeaking 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) (involving allegations that prison officials needlessly transferred 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 allegations of government misconduct that directly impeded 

plaintiffs’ right of access to the courts, such as police misconduct directed at claimants or employees. Borough of 

Duryea v. Guarnieri, 564 U.S. 379, 383–84 (2011) (involving allegation of denial of overtime and punitive performance directives in response to union grievance); 

Tennessee v. Lane, 541 U.S. 509, 514 (2004) (involving allegations 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 involving 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 husband was still alive after he had been captured, detained, 

tortured, and used as an informant by the CIA. 536 U.S. 

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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 affirmative misconduct that courts have found contribute to violating 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 require 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 substitute their judgment for that of the Executive in matters 

of national security. Hawaii, 138 S. Ct. at 2422. But by assuming that the secrecy oath constitutes government misconduct, the plurality does just that. Because a secrecy 

oath does not constitute the kind of government misconduct 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 serious allegations of misconduct. Christopher, 536 U.S. at 

418 (“Harbury’s complaint did not come even close to stating a constitutional claim for denial of access upon which 

relief could be granted.”).

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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 remedy 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 despite a potential right of access violation. Of the few cases 

the plurality cites where courts granted some sort of remedy in light of a potential right of access violation, the remedy was ordinarily allowing the plaintiff’s claim to go 

forward at all. E.g., Lane, 541 U.S. at 515, 533–34 (affirming 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 damages 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 benefits. 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 

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8 TAYLOR v. MCDONOUGH

implies, limit a plaintiff’s remedy by preventing the plaintiff from raising untimely claims. But we would never characterize the applicable statute of limitations as denying 

that plaintiff access to the courts. Rather, we would analyze 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 access 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 active, 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 typically 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 because it is the most coherent test that the parties present, 

and both parties believe that this standard is not meaningfully different than the tests used in non-incarcerated-persons cases. Claimant-Appellant’s En Banc Br. 55;

Respondent-Appellee’s En Banc Br. 46–47, 47 n.8.

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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 relies. 

Mr. Taylor asserts that the government engaged in active, 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 access[] may constitute a constitutional deprivation.” Claimant-Appellant’s En Banc Br. 56–57 (quoting Jackson v. 

Procunier, 789 F.2d 307, 311 (5th Cir. 1986)). The government responds that any interference was not “undue” because the government was “protecting classified 

information.” Respondent-Appellee’s En Banc Br. 52. According to the government, “the [secrecy] oath was not designed to preclude Mr. Taylor from obtaining benefits, but 

rather to protect classified information.” Respondent-Appellee’s En Banc Br. 54. 

I do not deny that the secrecy oath prohibited Mr. Taylor from filing his claim earlier than 2006, and that therefore, the secrecy oath interfered with Mr. Taylor’s right of 

access to adjudication. But even if the government did interfere with Mr. Taylor’s ability to access the VA, that interference 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 improperly exceeds the Executive’s broad authority over national security concerns. The plurality chastises the 

government for securing a secrecy oath “backed by courtCase: 19-2211 Document: 104 Page: 85 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 veterans is entirely the type of delicate national security decision 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 “undue” interference is speculative and an overreach of our judicial decision-making. Thus, I would conclude that the 

government’s adoption of a secrecy oath was not undue interference and accordingly did not violate Mr. Taylor’s 

right of access to the VA. 

B 

Putting aside whether the right of access doctrine applies 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 narrowly 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 because 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 “undue” interference with Mr. Taylor’s right of access because 

the government’s actions here are not unconstitutional 

even under a strict scrutiny standard.

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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 protection 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 traditionally 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 interfere with the “authority of the Executive in military and 

national security affairs”). Furthermore, while agency actions are presumptively reviewable, this presumption 

“runs aground when it encounters concerns of national security.” 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 instituted a secrecy oath for participants, it implicated delicate national security concerns, and the government 

asserts that it “has a compelling interest in protecting . . . 

the secrecy of information important to our national security” by requiring participants to sign secrecy oaths. Respondent-Appellee’s En Banc Br. 58–59 (quoting Snepp v. 

United States, 444 U.S. 507, 509 n.3 (1980)). The government easily meets the compelling interest prong of the 

strict scrutiny test, and the plurality does not deny this. 

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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 furthers 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 calibrating the individual mechanisms of a restriction”) 

(cleaned up). As the plurality observes and as the government 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 government had the ability to set up similar programs back in 

1971. But we have no adequate basis to make those determinations. Just because the government has allowed classified information to be used in some administrative 

benefits programs does not mean the government is compelled to do so—or even able to do so—in all cases. Presumably, 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, before the government takes any action to control the dissemination of information in furtherance of its national 

security interests, it must have the foresight to predict 

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TAYLOR v. MCDONOUGH 13

whether and how that information might need to be disclosed in order to access benefits and services from any government 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. concurring) (“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 concerning 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 government 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 determining that the government could have structured the secrecy 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 government’s determination that information about the Edgewood program could not be disclosed to other government 

agencies without compromising national security. This 

type of substituted judgment by a judicial forum is precisely 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 prohibiting Edgewood volunteers from disclosing their involvement in the program to the VA was necessary for national 

security reasons, and I would conclude that the government passes strict scrutiny by raising a compelling governmental interest and by narrowly tailoring the adoption of a 

secrecy oath to furthering the compelling governmental interest. 

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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 interfering 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 plurality ignores the fact that Mr. Taylor did, in fact, have access 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 opinion, we do not have any authority to grant this type of unprecedented remedy.

Ordinarily, when courts determine that the government has unduly interfered with a plaintiff’s right of access 

to adjudication, they grant a remedy that essentially re-establishes 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 defendants 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). Identifying 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 

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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 under 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 instances, 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 issued or adopted by the Board found to be contrary to constitutional right, power, privilege, or immunity.” 38 U.S.C. 

§ 7261(a)(3) (cleaned up); Plurality Op. at 52–53. The plurality asserts that § 5110, as applied to Mr. Taylor, is unconstitutional, 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 effective-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 remedy. Section 5110 authorizes benefits from “the date of the 

filing of the initial application” and further states that benefits 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 benefits from the date his application was filed. Were it not for 

the particular nature of the Edgewood program and the injuries 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 authority 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 received the full remedy available to him—benefits from the 

date of his application. To hold otherwise would deny Congress 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 application of § 5110 was not unconstitutional as applied to 

Mr. Taylor, I would find that the government did not unduly interfere with Mr. Taylor’s access to the VA or otherwise violated his right of access. Accordingly, I disagree 

with the plurality’s application of § 7261(a)(3) to circumvent § 5110, and I disagree that § 5110 is unconstitutional 

as applied to Mr. Taylor. 

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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 effective date for benefits. Arellano v. McDonough, 143 S. Ct. 

543, 546 (2023). The plurality’s remedy conflicts with binding 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 discussed 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 Richmond, we also cannot order the Veterans Court to equitably 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 authority to grant Mr. Taylor an earlier effective date. 

IV 

In an attempt to, understandably, provide Mr. Taylor 

more fulsome benefits, the plurality’s decision inappropriately expands two areas of law. First, it broadens an already 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 essentially imposes a balancing test, where national security 

officials will need to consider whether any security clearances or other means of restricting classified or confidential 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 government’s unfortunate treatment of him and other Edgewood 

volunteers. And I reiterate that Congress should have immediately provided Mr. Taylor with a more complete remedy 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 cognizable right of access claim, and we have no authority to 

grant his requested remedy. Therefore, I respectfully dissent.

5 See, e.g., NAT’L COUNTERINTELLIGENCE AND SEC.

CTR., Fiscal Year 2017 Annual Report on Security Clearance Determinations at 4 (n.d.), https://www.dni.gov/files/

NCSC/documents/features/20180827-security-clearancedeterminations.pdf (noting approximately 2.8 million who 

were briefed into access to classified information in FY 

2017). 

Case: 19-2211 Document: 104 Page: 94 Filed: 06/15/2023