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.
`
`
`
`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.
`
`O R D E R
`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.
`
`
`
`
`
`July 22, 2021
` Date
`
`
`
`FOR THE COURT
`
`/s/ Peter R. Marksteiner
`Peter R. Marksteiner
`Clerk of Court
`
`
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