Case: 19-2211 Document: 37 Page: 1 Filed: 07/22/2021
United States Court of Appeals
for the Federal Circuit
______________________
BRUCE R. TAYLOR,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2019-2211
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-2390, Judge Joseph L. Falvey,
Jr., Judge William S. Greenberg, Judge Amanda L. Mere-
dith.
______________________
SUA SPONTE REHEARING EN BANC
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, for claimant-appellant.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN,
JR., LOREN MISHA PREHEIM; CHRISTOPHER O. ADELOYE,
BRIAN D. GRIFFIN, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
Case: 19-2211 Document: 37 Page: 2 Filed: 07/22/2021
2 TAYLOR v. MCDONOUGH
______________________
Before MOORE, Chief Judge, NEWMAN, LOURIE, DYK,
PROST, O’MALLEY, REYNA, TARANTO, CHEN, HUGHES, and
STOLL, Circuit Judges.
PER CURIAM.
ORDER
This case was argued before a panel of three judges on
June 4, 2020, and a panel opinion issued on June 30, 2021.
Thereafter, a sua sponte request for a poll on whether to
rehear this case en banc was made. A poll was conducted
and a majority of the judges in regular active service voted
for sua sponte en banc consideration.
Accordingly,
IT IS ORDERED THAT:
(1) The panel opinion of June 30, 2021, is vacated and
the appeal is reinstated.
(2) This case will be reheard en banc sua sponte under
28 U.S.C. § 46 and Federal Rule of Appellate Procedure
35(a). The court en banc shall consist of all circuit judges
in regular active service who are not recused or disquali-
fied, as well as any senior circuit judge who participated in
the panel decision and elects to participate as a member of
the court en banc, in accordance with the provisions of
28 U.S.C. § 46(c).
(3) The parties are requested to file new briefs. The
briefs should address the following issues:
A. (i) In view of precedents such as OPM
v. Richmond, 496 U.S. 414 (1990), and
McCay v. Brown, 106 F.3d 1577 (Fed. Cir.
1997), did the panel in Taylor v. McDonough,
No. 2019-2211, 2021 WL 2672307, at *1 (Fed.
Cir. June 30, 2021), correctly determine that
Case: 19-2211 Document: 37 Page: 3 Filed: 07/22/2021
TAYLOR v. MCDONOUGH 3
under the doctrine of equitable estoppel the
government is estopped from asserting
38 U.S.C. § 5110(a)(1) against Mr. Taylor’s
claim for an earlier effective date?
(ii) Specifically, would granting Mr. Taylor’s
claim of entitlement to an earlier effective
date under the doctrine of equitable estoppel
be contrary to statutory appropriations and
thus barred by the Appropriations Clause? If
not, does the doctrine require the VA to give
Mr. Taylor his requested effective date for his
disability benefits if the government pre-
vented him from timely filing an adequate
benefits claim?
(iii) If any precedents of this court, such as
McCay, preclude Mr. Taylor from succeeding
based on equitable estoppel, should they be
overruled?
B. If equitable estoppel does not afford Mr. Tay-
lor the effective date he claims, does Mr. Tay-
lor have a claim for denial of a constitutional
right of access to VA processes for securing
disability benefits for which he met the eligi-
bility criteria, considering authorities such
as Christopher v. Harbury, 536 U.S. 403
(2002), that address a constitutional right of
access to courts and other government fo-
rums of redress?
C. If there is such a right of access, is the test
for its violation whether the government has
engaged in “active interference” that is “un-
due,” as suggested by Silva v. Di Vittorio,
658 F.3d 1090, 1103 (9th Cir. 2011), and re-
lated cases? If not, what is the test?
Case: 19-2211 Document: 37 Page: 4 Filed: 07/22/2021
4 TAYLOR v. MCDONOUGH
D. Assuming the right exists, and applying the
proper test, was the right of access violated
here?
(i) Taken together, did the required promise
of military secrecy, the threat of court mar-
tial, and the failure to provide a VA mecha-
nism for the timely filing or adjudication of
an adequate claim, as Mr. Taylor alleges,
constitute an affirmative interference with a
right of access?
(ii) Did the VA lack a sufficient justification
for not providing a mechanism for the timely
filing or adjudication of an adequate claim if
it could have provided such a mechanism
while protecting classified information? Has
the VA done so in some circumstances? See
U.S. Dep’t of Veterans Affs., Adjudication
Procedures Manual M21-1, pt. IV, subpt. ii,
ch. 1, sec. I (Developing Claims Related to
Special Operations Incidents). Did the VA
lack a sufficient justification for not even
communicating to Mr. Taylor that he could
file a minimal claim that would have to await
adjudication indefinitely, until secrecy pro-
tections were lifted?
E. If the government violated Mr. Taylor’s right
of access, what is the remedy?
(4) While the issue of equitable tolling is preserved, the
court does not wish to secure further briefing on equitable
tolling and will not revisit the issue of equitable tolling in
this case, (A) the court having resolved that issue adversely
to Mr. Taylor in Andrews v. Principi, 351 F.3d 1134 (Fed.
Cir. 2003), and (B) the court having recently declined to set
Case: 19-2211 Document: 37 Page: 5 Filed: 07/22/2021
TAYLOR v. MCDONOUGH 5
aside the decision in Andrews in Arellano v. McDonough,
1 F.4th 1059 (Fed. Cir. 2021).
(5) Appellant Bruce R. Taylor’s en banc opening brief
is due 60 days from the date of this order. Appellee Secre-
tary of Veterans Affairs’ en banc response brief is due
within 45 days of service of Mr. Taylor’s en banc opening
brief, and Mr. Taylor’s reply brief within 30 days of service
of the response brief. The court requires 30 paper copies of
all briefs and appendices provided by the filer within
5 business days from the date of electronic filing of the doc-
ument. The parties’ briefs must comply with Fed. Cir. R.
32(b)(1).
(6) The court invites the views of amici curiae. Any
amicus brief may be filed without consent and leave of
court. Any amicus brief supporting Mr. Taylor’s position
or supporting neither position must be filed within 14 days
after service of Mr. Taylor’s en banc opening brief. Any
amicus brief supporting the Secretary’s position must be
filed within 14 days after service of the Secretary’s en banc
response brief. Amicus briefs must comply with Fed. Cir.
R. 29(b).
(7) This case will be heard en banc on the basis of the
briefing ordered herein and oral argument.
(8) Oral argument will be held at a time and date to be
announced later.
FOR THE COURT
July 22, 2021 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
Taylor v. McDonough
Combined Opinion