Taylor v. McDonough, Case Number 19-2211, decided June 15, 2023 address a truly tragic set of facts. The veteran had been the subject of chemical agent exposure studies at the Edgewood Arsenal during the Vietnam era. He had specifically signed an oath of secrecy related to those tests and ultimately suffered severe psychological harm as a result of the testing.
“In 2006, the Department of Defense (DOD) declassified the names of the servicemen and women who had volunteered for the Edgewood Program and, in June of that year, VA sent the appellant a letter advising him that DOD had given permission for those identified to disclose to health care providers information about their involvement in the Edgewood Program that affected their health.” See prior case. In fact, the DOD had recommended telling participants of likely health consequences in 1979.
The veteran applied for benefits in February 2007 related to PTSD and submitted stressor statements related to the testing and additional stressors occurring in Vietnam. A VA examiner determined there was PTSD resulting from “cumulative response” to the Edgewood experiments and Vietnam experiences. The veteran was ultimately service connected for PTSD and granted TDIU with an effective date of his application date.
This appeal concerned whether an effective date prior to his application should be granted. The veteran agreed normally an earlier effective date would not be allowed, but argued under the unusual facts of this case—i.e., the secrecy oath related to the testing—that an earlier effective date should be granted.
The Veteran’s Court denied the veteran’s relief, but on appeal to the Federal Circuit, the Federal Circuit overturned on fairly narrow grounds.
As mentioned, the Veterans Court denied the veteran relief. First, related to his Constitutional Due Process argument, the Veterans Court tersely found there was no good argument in favor and denied. Second, the veteran sought equitable relief. The Veterans Court again denied, saying their right to grant equitable relief is tightly circumscribed by case and statutory law and that they are not able to grant through equity substantive, monetary relief.
The Veterans Court then stated prior case law prevents equitable tolling in the context of the assignment of effective dates. Judge Greenburg wrote a masterful dissent.
On appeal to the Federal Circuit, the Federal Circuit found the doctrine of equitable estoppel is barred by prior Supreme Court precedent, which states that courts may not rely on equitable estoppel to award money from the public fisc of the United States in violation of limitations established by statute.
The Federal Circuit also found against an argument that 38 USC 6303 (directing the VA to provide information and assistance regarding potential claims before they even file or when the indicate interest in filing) was not persuasive.
However, the Court did grant. It found:
“we agree with Mr. Taylor in his alternative argument that he is entitled under the Constitution to have the effective date of his benefits determined notwithstanding § 5110’s claim filing limits on the effective date. For decades, the 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 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.”
Id. at *5-6.
Interestingly, four or five judges, depending on how you count, wrote an occurrence where they say they would have avoided reaching the constitutional arguments and found that equitable estoppel should be applied. Id. at *59. As to the bar of the use of equitable estoppel against the government involving claims for money, these judges read it much more narrowly as to allow this claim especially in light of Section 6303.
This case might have a narrow application, but surely there are a handful of Edgefield Experiment veterans who deserve a much earlier effective date for the tragedies inflicting on them that should now receive it. More interestingly is the fact the Secretary of the VA never interceded and exercised is equitable powers to ends this case and grant what benefits were owed all of these years.
The decision was by Judge Taranto and was an en banc decision.
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