Case: 19-2211   Document: 104    Page: 1   Filed: 06/15/2023




    United States Court of Appeals
        for the Federal Circuit
                 ______________________

                  BRUCE R. TAYLOR,
                   Claimant-Appellant

                            v.

   DENIS MCDONOUGH, SECRETARY OF VETER-
                ANS AFFAIRS,
              Respondent-Appellee
             ______________________

                       2019-2211
                 ______________________

      Appeal from the United States Court of Appeals for
 Veterans Claims in No. 17-2390, Judge Joseph L. Falvey
 Jr., Judge William S. Greenberg, Judge Amanda L. Mere-
 dith.
                  ______________________

                 Decided: June 15, 2023
                 ______________________

     CHARLES MCCLOUD, Williams & Connolly LLP, Wash-
 ington, DC, argued for claimant-appellant. Also repre-
 sented by DEBMALLO SHAYON GHOSH, ANNA JOHNS HROM,
 LIAM JAMES MONTGOMERY, TIMOTHY M. PELLEGRINO; MARK
 B. JONES, Mark B. Jones Attorney at Law, Sandpoint, ID.

     WILLIAM JAMES GRIMALDI, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, argued for respondent-appellee.
 Also represented by BRIAN M. BOYNTON, PATRICIA M.
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 2                                   TAYLOR   v. MCDONOUGH



 MCCARTHY, LOREN MISHA PREHEIM; CHRISTOPHER O. ADE-
 LOYE, BRIAN D. GRIFFIN, Office of General Counsel, United
 States Department of Veterans Affairs, Washington, DC.

     DROR LADIN, American Civil Liberties Union Founda-
 tion, New York, NY, for amici curiae American Civil Liber-
 ties Union, American Civil Liberties Union of the District
 of Columbia. Also represented by BRETT MAX KAUFMAN;
 SCOTT MICHELMAN, ARTHUR B. SPITZER, ACLU Foundation
 of the District of Columbia, Washington, DC.

    GLENN R. BERGMANN, Bergmann Moore, LLC, Be-
 thesda, MD, for amicus curiae American Legion. Also rep-
 resented by THOMAS POLSENO, JAMES DANIEL RIDGWAY.

     MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe
 LLP, for amicus curiae Military-Veterans Advocacy Inc.
 Also represented by THOMAS MARK BONDY; ELIZABETH
 MOULTON, San Francisco, CA; JOHN B. WELLS, Law Office
 of John B. Wells, Slidell, LA.

     ANGELA K. DRAKE, Veterans Clinic, University of Mis-
 souri School of Law, Columbia, MO, for amicus curiae Na-
 tional Law School Veterans Clinic Consortium.

    JENNIFER SWAN, Dechert LLP, Palo Alto, CA, for amici
 curiae National Veterans Legal Services Program, Swords
 to Plowshares. Also represented by HOWARD W. LEVINE,
 Washington, DC; RENEE A. BURBANK, National Veterans
 Legal Services Program, Arlington, VA; EMILY WOODWARD
 DEUTSCH, Washington, DC.


                  ______________________
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 TAYLOR   v. MCDONOUGH                                      3




     Before MOORE, Chief Judge, NEWMAN, LOURIE, DYK,
     PROST, REYNA, WALLACH, TARANTO, CHEN, HUGHES,
      STOLL, CUNNINGHAM, and STARK, Circuit Judges. 1
   Opinion filed by Circuit Judge TARANTO, Parts I–IV of
   which constitute an opinion for the court. Chief Judge
    MOORE and Circuit Judges PROST, CHEN, STOLL, and
    CUNNINGHAM join in full; Circuit Judges LOURIE and
                  HUGHES join Parts I–IV.
  Opinion concurring in the judgment filed by Circuit Judge
      DYK, which Circuit Judges NEWMAN, REYNA, and
     WALLACH join in full and Parts I, II, and V of which
                 Circuit Judge STARK joins.
     Opinion dissenting in part and dissenting from the
   judgment filed by Circuit Judge HUGHES, which Circuit
                    Judge LOURIE joins.
 TARANTO, Circuit Judge.
     During his service in the U.S. Army from 1969 to 1971,
 Bruce R. Taylor voluntarily participated as a test subject
 in a secret Army program, at the Edgewood Arsenal facility
 in Maryland, that assessed the effects of various dangerous
 substances, including chemical warfare agents. The gov-
 ernment swore him to secrecy through an oath broadly re-
 quiring him not to reveal any information about the
 program to persons not authorized to receive it, without
 specifying who might be so authorized. Mr. Taylor suffered
 injuries from his participation in the program, resulting in
 disabilities. But as the government concedes, the secrecy
 oath, backed by the possibilities of court-martial and crim-
 inal penalties, caused Mr. Taylor to refrain, for more than
 three decades after his discharge from service, from pursu-
 ing the sole adjudicatory route to vindicate his statutory



     1    Circuit Judge O’Malley retired on March 11, 2022.
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 4                                      TAYLOR   v. MCDONOUGH



 entitlement to disability compensation for those service-
 connected disabilities. Specifically, he refrained from filing
 a claim with the Department of Veterans Affairs (VA) for
 compensation based on his Edgewood injuries until after
 the government, in 2006, released him and similarly situ-
 ated veterans from their secrecy oaths.
      In 2007, Mr. Taylor filed a claim for disability benefits,
 which VA granted. But VA granted the benefits only from
 the 2007 date of the claim because the governing statute,
 

, specifies that the earliest possible effec-
 tive date (with some limited exceptions) is the date on
 which VA receives the veteran’s claim. On appeal from an
 adverse decision of the United States Court of Appeals for
 Veterans Claims (Veterans Court), Taylor v. Wilkie, 

 (2019) (Taylor CAVC 2019), Mr. Taylor argues
 that he was entitled to a much earlier effective date, as far
 back as one day after the day that he was discharged in
 1971, because it was the government’s threat of penalties
 for revealing information that for decades caused him not
 to file a claim to vindicate his legal entitlement to benefits.
      Mr. Taylor relies first on the general doctrine of equi-
 table estoppel to support his request. We conclude that ap-
 plication of that doctrine here is barred by the Supreme
 Court’s decision in Office of Personnel Management v. Rich-
 mond, 

 (1990), which held that courts may not
 rely on equitable estoppel to award money from the public
 fisc of the United States in violation of limitations estab-
 lished by statute. That substantive limit on the doctrine
 applies in any forum unless Congress has overridden Rich-
 mond for a particular context by statutorily providing for
 application of the general equitable estoppel principles to
 claims for money from the public fisc. Congress has not
 done so for the benefits setting here, so Richmond pre-
 cludes reliance on equitable estoppel to override the claim-
 filing effective-date limits of § 5110, as we held in McCay
 v. Brown, 

 (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 

, which
 directs VA to provide certain information and assistance
 regarding potential benefits to veterans even before they
 file, or indicate an interest in filing, claims for benefits.
 Nothing in § 6303 purports to displace the Richmond limit
 on equitable estoppel. To the extent that Mr. Taylor argues
 that equitable estoppel might apply based on § 6303 even
 if Congress did not make compliance with § 6303 a precon-
 dition to enforcing § 5110’s claim-filing effective-date re-
 quirements, he is incorrect. Applying equitable estoppel in
 those circumstances would violate Richmond because the
 monetary award would violate statutory limits. To the ex-
 tent that Mr. Taylor argues that Congress made compli-
 ance with § 6303 a precondition to enforcing § 5110’s claim-
 filing effective-date limits, he is also incorrect. That argu-
 ment is contrary to precedent, see Andrews v. Principi, 

 (Fed. Cir. 2003); Rodriguez v. West, 

 (Fed. Cir. 1999), and Mr. Taylor has not asked us to
 overrule that precedent and there are strong reasons not to
 do so.
      Although we thus find no equitable-doctrine or statu-
 tory basis to support Mr. Taylor’s effort to obtain an effec-
 tive date earlier than the date prescribed by § 5110, we
 agree with Mr. Taylor in his alternative argument that he
 is entitled under the Constitution to have the effective date
 of his benefits determined notwithstanding § 5110’s claim-
 filing limits on the effective date. For decades, the govern-
 ment denied Mr. Taylor his fundamental constitutional
 right of access to the adjudication system of VA, the exclu-
 sive forum for securing his legal entitlement to the benefits
 at issue. The government’s threat of court-martial or pros-
 ecution—without an exception for claims made to VA—af-
 firmatively foreclosed meaningful access to the exclusive
 adjudicatory forum. And without questioning the strength
 of the interest in military secrecy, we see no adequate jus-
 tification for this denial of access. The government makes
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 6                                      TAYLOR   v. MCDONOUGH



 only highly general assertions of national-security inter-
 ests, but it acknowledges that VA has created and uses spe-
 cial processes for adjudicating claims by former members
 of the special forces for injuries incurred during military
 operations whose existence remains classified, and the gov-
 ernment has furnished no adequate reason that secrecy
 could not have been similarly protected for Edgewood vet-
 erans like Mr. Taylor.
      For those reasons, which reach what we would expect
 to be a very rare set of circumstances, we hold that the
 claim-filing effective-date provisions of § 5110 are uncon-
 stitutional as applied to Mr. Taylor. A veteran in Mr. Tay-
 lor’s position is entitled, under ordinary remedial
 principles, to receive benefits for service-connected disabil-
 ities from the effective date that the veteran would have
 had in the absence of the government’s challenged conduct.
 We reverse the Veterans Court’s decision and remand for
 expeditious proceedings to implement our holding.
                               I
                               A
      Mr. Taylor served on active duty in the U.S. Army from
 January 1969 to March 1971. During his service, he vol-
 unteered to participate as a human subject in a testing pro-
 gram conducted at a U.S. Army facility in Edgewood,
 Maryland. The program—which was designed to study the
 effects of chemical warfare agents on the “ability [of the
 subjects] to function as soldiers,” S. Rep. No. 94-755, Book
 I, at 412 (1976)—involved testing of “more than 250 differ-
 ent agents” and “at least 6,700 ‘soldier volunteers’” from
 1955 to 1975, En Banc J.A. 35 [hereafter, simply J.A.].
      When Mr. Taylor arrived at the Edgewood Arsenal fa-
 cility in August 1969, he signed a consent form confirming
 that the experiment had been explained to him and that he
 “voluntarily agree[d] to participate.” J.A. 31. Mr. Taylor
 also signed an oath prohibiting him from disclosing
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 TAYLOR   v. MCDONOUGH                                      7



 information about the program under penalty of court-mar-
 tial. Although a copy of the piece of paper Mr. Taylor
 signed is unavailable, the parties agree that Mr. Taylor
 signed such an oath and also agree on the content of the
 oath for purposes of this case. Sec’y En Banc Response Br.
 at 2–3. The Veterans Court also determined: “[N]or is
 there any dispute that [Mr. Taylor] signed an oath vowing
 not to disclose his participation in or any information about
 the study, under penalty of court[-]martial or prosecution.”
 Taylor CAVC 2019, 31 Vet. App. at 149 (citing pages 10–11
 of the record before the Veterans Court in 2019 (Vet. Ct.
 Rec.)). The government has not disputed that determina-
 tion in this court.
      Both Mr. Taylor and the government point us to a sam-
 ple oath released by a committee of the U.S. Senate in
 1976. See Taylor En Banc Opening Br. at 8 (citing S. Rep.
 No. 94-755, Book I, at 418); Sec’y En Banc Response Br. at
 3 n.1 (citing same). The Board of Veterans’ Appeals found
 that this sample oath was the oath that “most [Edgewood
 program] participants were required to sign” and used the
 sample oath in its analysis of Mr. Taylor’s claim. In re Tay-
 lor, No. 08-13 206, 

, at *2, *4 (Bd. Vet.
 App. Apr. 14, 2017) (Taylor BVA 2017). The sample oath
 committed those who signed it “not [to] divulge or make
 available any information related to U.S. Army Intelli-
 gence Center interest or participation in the Department
 of the Army Medical Research Volunteer Program to any
 individual, nation, organization, business, association, or
 other group or entity, not officially authorized to receive
 such information.” S. Rep. No. 94-755, Book I, at 418. Sig-
 natories also acknowledged that they “underst[oo]d that
 any action contrary to the provisions of this statement
 w[ould] render [them] liable to punishment under the pro-
 visions of the Uniform Code of Military Justice.” 

     The Veterans Court, in an earlier decision, found that
 Mr. Taylor was exposed at Edgewood to at least EA-3580
 (an anticholinergic, a type of nerve agent that blocks the
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 8                                      TAYLOR   v. MCDONOUGH



 transmission of the neurotransmitter acetylcholine), EA-
 3547 (a tear gas agent), and scopolamine (also an anticho-
 linergic). Taylor v. Shinseki, No. 11-0254, 

, at *1 & nn.2–3 (Vet. App. June 28, 2013) (Taylor
 CAVC 2013) (citing Vet. Ct. Rec. at 134–35, 151, 438, 466,
 469, 482–83); see also J.A. 31 (volunteer report memorial-
 izing the administration of EA-3580A to Mr. Taylor); J.A.
 40 (psychological report showing Mr. Taylor’s recall of hav-
 ing been “injected with large doses of [s]copolamine”). Mr.
 Taylor reported experiencing hallucinations after being ad-
 ministered agents being tested, such as, when on the rifle
 range, “thinking that he was killing people rather than
 shooting at targets.” J.A. 57; see also J.A. 40 (reporting
 same).
     After leaving Edgewood, Mr. Taylor served two tours
 in Vietnam, deploying in December 1969. Taylor CAVC
 2013, 

, at *1 (citing Vet. Ct. Rec. at 438,
 444). Mr. Taylor reported that, while in Vietnam, “he ex-
 perienced flashbacks and insomnia, used marijuana and
 alcohol extensively,” 

 (citing Vet. Ct. Rec. at 384), and
 was “suicidal at times,” J.A. 47. At one point, Mr. Taylor
 described his conditions to his platoon sergeant, who re-
 ferred him to a service psychiatric office, where, he said, he
 “was treated like a liar and reprimanded.” J.A. 46; see also
 J.A. 62. At another point, Mr. Taylor was reduced in rank
 after being “accused of sleeping [on] Guard Duty,” J.A. 46–
 47; although Mr. Taylor recalled that during that particu-
 lar Guard Duty he experienced “a major flashback” that
 prevented him from “hear[ing] anyone call [his] name,” J.A.
 46, his Edgewood oath “prevented [him] . . . from showing
 mitigating or extenuating circumstances during [the]
 court-martial,” Taylor CAVC 2013, 

, at
 *1 (citing Vet. Ct. Rec. at 402–03, 454–55).
     Mr. Taylor was honorably discharged on September 6,
 1971. After discharge, Mr. Taylor “isolated himself” and
 “exhibit[ed] marked impairment in social and vocational
 functioning.” J.A. 58, 62. He continued to experience
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 TAYLOR   v. MCDONOUGH                                      9



 insomnia, nightmares, a depressed mood, and auditory hal-
 lucinations, all of which became more pronounced around
 2000. Eventually, he sought treatment but, he said, was
 “turned away because the treating provider believed [that]
 his story about being an experimental subject [was] a fab-
 rication.” J.A. 58.
                              B
     In 2006, the Department of Defense “declassified the
 names of the servicemen and women who had volunteered
 for the Edgewood Program.” Taylor CAVC 2019, 31 Vet.
 App. at 149 (citing Vet. Ct. Rec. at 2695–97). On June 30
 of that same year, VA sent letters to the Edgewood partic-
 ipants—including Mr. Taylor, see Sec’y En Banc Response
 Br. at 3—informing them that the Department of Defense
 “had given [them] permission . . . to disclose to health care
 providers information about their involvement in the Edge-
 wood Program that affected their health,” Taylor CAVC
 2019, 31 Vet. App. at 149 (citing Vet. Ct. Rec. at 2695–97).
 “For example,” the letter said, “you may discuss what you
 believe your exposure was at the time, reactions, treatment
 you sought or received, and the general location and time
 of the tests.” J.A. 32. The letter also offered a VA clinical
 examination and advised: “[I]f you think that you suffer
 from chronic health problems as a result of these tests [con-
 ducted at Edgewood], contact VA . . . to speak to a VA rep-
 resentative about filing a disability claim.” J.A. 33.
      On February 22, 2007, Mr. Taylor filed a claim for ben-
 efits for posttraumatic stress disorder (PTSD) “caused in
 service in 1969 at the chemical research program at Edge-
 wood.” J.A. 38. A VA clinical examiner diagnosed Mr. Tay-
 lor with chronic PTSD and recurrent major depressive
 disorder, both of which the examiner “considered to be a
 cumulative response to [Mr. Taylor’s] participation as a hu-
 man subject in the Edgewood . . . experiments and subse-
 quent re-traumatization in Vietnam.” J.A. 62.
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  10                                     TAYLOR   v. MCDONOUGH



      In July 2007, a VA regional office granted Mr. Taylor’s
  benefits claim for PTSD and major depressive disorder, as-
  signing a 70% rating and an effective date of February 28,
  2007, the date that VA received Mr. Taylor’s benefits claim.
  Later, in October of the same year, VA granted Mr. Taylor
  entitlement to a total disability rating based on individual
  unemployability, also with an effective date of February 28,
  2007.
                                C
       Mr. Taylor appealed to the Board of Veterans’ Appeals,
  requesting “an effective date of September 7, 1971, the day
  following [his] discharge,” because he “felt constrained
  from filing for VA benefits by [the] secrecy agreement[] un-
  til [he] received the VA letter” authorizing him to do so.
  J.A. 77–78. The government does not dispute the effect of
  Mr. Taylor’s oath. The government accepts that “[t]he con-
  sequence of the oath was that Mr. Taylor refrained from
  seeking benefits until 2007.” Sec’y En Banc Response Br.
  at 28; see also id. at 26 (“[A]lthough Mr. Taylor refrained
  from seeking benefits until 2007, his inaction was the con-
  sequence of . . . the secrecy oath.”).
      On July 20, 2010, the Board denied Mr. Taylor’s re-
  quest for an earlier effective date. In re Taylor, No. 08-
  13 206, 

 (Bd. Vet. App. July 20, 2010)
  (Taylor BVA 2010). The Board explained that, for claims
  like Mr. Taylor’s, the effective date of an award of disability
  compensation is generally the later of the date that VA re-
  ceives the claim or the date that entitlement arises—i.e.,
  the date that the service-connected disability begins. 

 at
  *1 (citing 

; 

); see 

(a)(1). Section 5110(b)(1), however, provides an ex-
  ception: If VA receives the disability-compensation claim
  within one year of the date that the veteran was dis-
  charged, then the effective date is the day following the day
  of discharge.     

(b)(1); see 

(b)(2)(i). The Board reasoned that, because Mr.
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  TAYLOR   v. MCDONOUGH                                       11



  Taylor first filed his benefits claim in February 2007, “more
  than 30 years” after he was discharged, the § 5110(b)(1) ex-
  ception does not apply, and the effective date cannot be ear-
  lier than February 28, 2007, the date that VA received his
  benefits application. Taylor BVA 2010, 

,
  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.” 

 at
  *2–3.
       Mr. Taylor appealed to the Veterans Court, arguing
  among other things that VA “denied his right to due pro-
  cess . . . by failing to have any process in place by which
  [he] could make a claim for [benefits] . . . as a former par-
  ticipant in the Edgewood program, prior to the 2006 partial
  [declassification].” J.A. 104. Citing Christopher v. Har-
  bury, 

 (2002), Mr. Taylor asserted that VA
  “must give [him] and all other Edgewood Veterans their
  right to access the VA system.” J.A. 111. The Veterans
  Court, in a single-judge decision on June 28, 2013, vacated
  the Board’s decision, stating that the Board’s decision
  “le[ft] the Court unable to discern whether [Mr. Taylor] re-
  tained his eligibility to file for benefits while the oath was
  active.” Taylor CAVC 2013, 

, at *2. The
  Veterans Court remanded for the Board to “obtain and ac-
  count for the language of the secrecy oath,” 

 and the
  Board in turn remanded to VA, In re Taylor, No. 08-13 206,
  

 (Bd. Vet. App. Feb. 27, 2014).
      VA “attempted to obtain [the oath] directly from . . .
  Edgewood . . . but failed to receive a response.” Taylor BVA
  2017, 

, at *2; see also Vietnam Veterans
  of America v. Central Intelligence Agency, 

 (N.D. Cal. 2012) (“Defendants have been unable to lo-
  cate written secrecy oaths administered during WWII or
  the Cold War.”). Therefore, VA relied on the sample oath
  we have quoted, which the Board also found was the oath
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  12                                       TAYLOR   v. MCDONOUGH



  that “most [Edgewood] participants were required to sign,”
  Taylor BVA 2017, 

, at *2, and which has
  been accepted as Mr. Taylor’s oath throughout the remain-
  ing litigation.
       With that oath in hand, the Board again denied Mr.
  Taylor’s request for an earlier effective date, identifying
  three reasons for its decision. 

 at *3–6. First, Mr. Tay-
  lor’s “diagnosis of PTSD is based on multiple stressors, in-
  cluding witnessing the death of [a fellow soldier]” in
  Vietnam, and “nothing prevented [Mr. Taylor] from filing
  a claim for PTSD based on those [Vietnam] stressors with-
  out having to divulge any information regarding the Edge-
  wood experiments.” 

. Second, Mr. Taylor “appears
  to have divulged information regarding the Edgewood ex-
  periments despite the secrecy oath” during his attempts to
  seek treatment, so he “cannot now claim that [the oath]
  prevented him from filing a claim for benefits.” 

.
  “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, 

, 547
  (2023) (explaining that equitable tolling “pauses the run-
  ning of, or ‘tolls,’ a statute of limitations when a litigant
  has pursued his rights diligently but some extraordinary
  circumstance prevents him from bringing a timely action”).
      Mr. Taylor again appealed to the Veterans Court, and
  on April 5, 2019, a panel affirmed the Board’s decision over
  the dissent of Judge Greenberg. Taylor CAVC 2019, 

. The majority rejected Mr. Taylor’s proce-
  dural due process argument, reasoning that he “cite[d] no
  authority that establishes that a person has a property
  right in disability benefits before a claim is filed.” 

. 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, 

). The majority further
  declined to apply the distinct doctrine of equitable estoppel
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  TAYLOR   v. MCDONOUGH                                      13



  at least because this court in McCay, relying on the Su-
  preme Court’s decision in Richmond, “held that [the Veter-
  ans Court] cannot use equitable estoppel to authorize
  payment outside of the requirements set out in section
  5110.” 

 at 154 n.4 (citing 

). The major-
  ity concluded that § 5110 “is clear” in this case: “The effec-
  tive date for the award of benefits is the date of the claim.”
  Id. at 155.
       Judge Greenberg, dissenting, would have reversed the
  Board. Id. at 155–62. First, he said, “the Board’s finding
  that the appellant could have filed for PTSD-related bene-
  fits for his service in Vietnam without divulging infor-
  mation related to the Edgewood experiments” is “error”
  because “[t]he Board does not possess the medical expertise
  to determine that a veteran is capable of untangling
  stressor events, especially not when a medical examiner”
  found that Mr. Taylor’s conditions are “a cumulative re-
  sponse to his participation as a human subject in the Edge-
  wood Arsenal experiments and subsequent re-
  traumatization in Vietnam.” Id. at 157–58 (quoting Vet.
  Ct. Rec. at 2311 (J.A. 62)). Second, Judge Greenberg con-
  tinued, “the fact that [Mr. Taylor] divulged his [Edgewood]
  participation for the purposes of treatment has no bearing”
  on whether the oath prevented him from filing a disability
  claim with VA because “[f]iling a claim for benefits with the
  [g]overnment under a cloud of prosecution is a wholly dif-
  ferent proposition from divulging information to a medical
  provider.” Id. at 158. Third, Judge Greenberg concluded,
  VA and the Board should be “equitably estopped from find-
  ing that [Mr. Taylor] filed a claim after” September 7, 1971,
  because the government “waited more than thirty years to
  recognize [Mr. Taylor’s] participation” at Edgewood. Id.
  161–62 (emphasis omitted).
                                D
      Mr. Taylor timely appealed to this court, invoking our
  jurisdiction under 

. On June 30, 2021, a
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  14                                     TAYLOR   v. MCDONOUGH



  panel reversed the Veterans Court’s decision, concluding
  that the Veterans Court had the authority to equitably es-
  top the government in this case and that Mr. Taylor is en-
  titled, on this record, to have the government equitably
  estopped “from asserting” the claim-filing effective-date
  limitation of “38 U.S.C. § 5110(a)(1) against [his] claim.”
  Taylor v. McDonough, 

, 1372–73 (Fed. Cir.
  2021). We sua sponte vacated the panel opinion and or-
  dered the case reheard en banc, with additional briefing on
  equitable estoppel and on the constitutional right of access
  to courts and other forums for redress.          Taylor v.
  McDonough, 

 (Fed. Cir. 2021) (en banc) (per
  curiam). After receiving new briefs, the en banc court
  heard oral argument on February 10, 2022. ECF No. 89.
       Twelve days later, the Supreme Court granted a peti-
  tion for a writ of certiorari in Arellano v. McDonough, 

 (2022), a case addressing whether equitable
  tolling applies to § 5110(b)(1)—which provides that, if VA
  receives a disability-benefits claim within one year of a vet-
  eran’s discharge, the effective date for benefits is as early
  as the day following the day of the veteran’s discharge. We
  immediately stayed proceedings in this case pending the
  Supreme Court’s disposition of the Arellano case. ECF No.
  91.
      On January 23, 2023, the Supreme Court held that
  “§ 5110(b)(1) is not subject to equitable tolling.” Arellano,
  143 S. Ct. at 552. The Supreme Court explained that its
  decision in Arellano “resolve[s] only the applicability of eq-
  uitable tolling to § 5110(b)(1). [It] do[es] not address the
  applicability of other equitable doctrines, such as waiver,
  forfeiture, and estoppel.” Id. at 552 n.3. We lifted the stay
  and requested supplemental briefing on “the impact of the
  Supreme Court’s decision in Arellano on this case.” ECF
  No. 95, at 2. One concurrence, by Judge Dyk (joined by
  Judges Reyna and Wallach), suggested that the parties in-
  clude in their supplemental briefs a discussion of whether
  equitable estoppel should be available based on 38 U.S.C.
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  TAYLOR   v. MCDONOUGH                                     15



  § 6303 (which originated in 1970 as § 241 and was codified
  for many years as § 7722). Id. at 3–9 (Dyk, J., concurring).
  A separate concurrence, by Chief Judge Moore (joined by
  Judge Prost), cast doubt on the suggestion. Id. at 10–12
  (Moore, C.J., concurring).
      Mr. Taylor and the government filed their supple-
  mental briefs on March 15, 2023, and March 29, 2023, re-
  spectively. ECF Nos. 96, 101. We now decide the case.
                               II
      The Supreme Court has described the features of the
  statutory regime that frame the questions before us.
  Through 

 (wartime service) and § 1131
  (peacetime service), “[t]he law entitles veterans who have
  served on active duty in the United States military to re-
  ceive benefits for disabilities caused or aggravated by their
  military service.” George v. McDonough, 

 (2022) (quoting Shinseki v. Sanders, 

  (2009)). “A veteran seeking such benefits must first file a
  claim with . . . VA.” 

 (citing 

(a)(1)(A)).
  “A regional office of . . . VA then determines whether the
  veteran satisfies all legal prerequisites, including the re-
  quirement that military service caused or aggravated the
  disability.” 

 (citing, among other authorities, 

(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 

(a)(1), 5111(a)(1)). 2




      2   The 1970 counterparts of the cited provisions were
  materially the same for present purposes. See 

, 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, 

  (citing 

(a), 5104(a)). “A veteran dissatis-
  fied with this decision may challenge it through several
  layers of direct review,” starting with an appeal to “VA’s
  Board of Veterans’ Appeals” under 

(a)
  and 7105(b)(1). 

 “If the Board also denies relief, the vet-
  eran may seek further review outside the agency”—first, in
  the Veterans Court, 

(a), 7261(a), 7266(a),
  then in this court, 

, and then in the Su-
  preme Court, 

(1). See George, 

. 3
      The effective-date provision, § 5110, is the focus of the
  present case. “If the effective date precedes the date on
  which the VA received the claim, the veteran receives ret-
  roactive benefits,” Arellano, 143 S. Ct. at 546, but such ret-
  roactive benefits are the exception and are limited.
       The default rule is that “the effective date of an
       award . . . shall be fixed in accordance with the
       facts found, but shall not be earlier than the date
       of receipt of application therefor.” This rule applies
       “[u]nless specifically provided otherwise in this
       chapter.” Sixteen exceptions in § 5110 “provid[e]
       otherwise,” including one specifying that “[t]he


       3  The first-level and Board steps were materially
  similar to the current steps, for present purposes, as far
  back as 1970. See 38 U.S.C. §§ 210–212, 4001–4009 (1970).
  Judicial review outside VA was generally unavailable until
  1988, when Congress created the Veterans Court to review
  VA decisions, with further review by this court. See 38
  U.S.C. §§ 4051–4092 (1988) (establishing review of VA de-
  cisions regarding benefits by the Veterans Court and then
  by this court); Bates v. Nicholson, 

, 1362–64
  (Fed. Cir. 2005) (recounting history).
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  TAYLOR   v. MCDONOUGH                                       17



      effective date of an award of disability compensa-
      tion to a veteran shall be the day following the date
      of the veteran’s discharge or release if application
      therefor is received within one year from such date
      of discharge or release.”
  

 at 546–47 (alterations in original) (quoting 

(a)(1), (b)(1)). Several of the specific exceptions, the
  Court in Arellano explained, “reflect equitable considera-
  tions” that provide for specified, limited departures from
  the default rule for the specified circumstances. 

 at 549
  & n.2.
      The Court in Arellano explained the statute in the
  course of addressing the availability of equitable tolling.
  On that issue, the Court concluded: “Section 5110 contains
  detailed instructions for when a veteran’s claim for benefits
  may enjoy an effective date earlier than the one provided
  by the default rule. It would be inconsistent with this com-
  prehensive scheme for an adjudicator to extend effective
  dates still further through the doctrine of equitable toll-
  ing.” 

. The Court noted that it was not “ad-
  dress[ing] the applicability of other equitable doctrines,
  such as waiver, forfeiture, and estoppel.” 

 at 552 n.3.
       Here, it is undisputed that, for Mr. Taylor, 

 authorizes an effective date no earlier than Febru-
  ary 28, 2007, the date that VA received Mr. Taylor’s bene-
  fits claim. See Taylor Panel Opening Br. at 13 (“[Mr.
  Taylor] could not obtain an [effective date] prior to Febru-
  ary 2007 for his award of benefits based on the provisions
  of 

. This statute unequivocally precludes
  an effective date for an award of VA benefits prior to the
  date of [the] claim.”); Sec’y En Banc Response Br. at 30.
  Mr. Taylor asserts two non-constitutional grounds for over-
  riding § 5110’s claim-filing effective-date limit: first, the
  general equitable doctrine of equitable estoppel, and sec-
  ond, a statute, 

, 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-Feb-
  ruary 2007 effective date for benefits. No objection has
  been raised to our jurisdiction under 

 to
  consider any of the three grounds. We view each ground as
  seeking a ruling on an issue of law that was either suffi-
  ciently raised to or decided (expressly or implicitly) by the
  Veterans Court. See Forshey v. Principi, 

 (Fed. Cir. 2002) (en banc), superseded in part by stat-
  ute, Veterans Benefits Act of 2002, 

tit.
  IV, § 402(a), 

, 2832 (codified as amended at
  

), as recognized in Morgan v. Principi, 

, 1360–64 (Fed. Cir. 2003). The availability of
  equitable estoppel was expressly rejected by the Veterans
  Court. Taylor CAVC 2019, 31 Vet. App. at 154 n.4. The
  constitutional-right-of-access argument was expressly
  made to the Veterans Court, see J.A. 109–13 (Taylor Veter-
  ans Court Br. at 14–18), which necessarily, albeit not ex-
  plicitly, rejected it, see Taylor CAVC 2019, 31 Vet. App. at
  151–52. And we view the Veterans Court as having neces-
  sarily deemed § 6303 not to be a precondition to enforcing
  the claim-filing effective-date limits of § 5110, though with-
  out any § 6303-based argument from Mr. Taylor; the Vet-
  erans Court, in discussing equitable tolling, relied on our
  Andrews and Rodriguez precedents requiring that result.
  Taylor CAVC 2019, 31 Vet. App. at 154–55.
                               III
      Mr. Taylor first relies on equitable estoppel to try to
  overcome the § 5110 limit. See Taylor En Banc Opening
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  TAYLOR   v. MCDONOUGH                                     19



  Br. at 17, 20–49, 65. Equitable estoppel—a doctrine “in-
  voked to avoid injustice,” Heckler v. Community Health
  Services of Crawford County, Inc., 

 (1984)—
  is rooted in “the maxim that no man may take advantage
  of his own wrong,” Glus v. Brooklyn Eastern District Ter-
  minal, 

 (1959). When equitable estoppel
  is applied against the government, “some form of affirma-
  tive misconduct must be shown in addition to the tradi-
  tional requirements of estoppel.” Zacharin v. United
  States, 

 (Fed. Cir. 2000) (citing Rich-
  mond, 

; Immigration & Naturali-
  zation Service v. Miranda, 

 (1982);
  Schweiker v. Hansen, 

 (1981)); see also
  Tefel v. Reno, 

 (11th Cir. 1999) (collect-
  ing cases showing that every circuit has so held), super-
  seded in part by statute, REAL ID Act of 2005, 

div. B, 

, as recognized in Rendon v.
  U.S. Attorney General, 

, 1256 & n.1 (11th Cir.
  2020).
      For purposes of this case, we may assume—without de-
  ciding—that the government action that caused Mr. Taylor
  not to file a claim for decades would meet the standards for
  equitable estoppel if that doctrine were available for the
  money claim at issue in this case. See, e.g., R.H. Stearns
  Co. v. United States, 

 (1934) (“He who pre-
  vents a thing from being done may not avail himself of the
  nonperformance which he has himself occasioned, for the
  law says to him, in effect: ‘This is your own act, and there-
  fore you are not damnified.’” (quoting Dolan v. Rodgers, 

 (N.Y. 1896); Imperator Realty Co. v. Tull, 

 (N.Y. 1920))). We also need not decide the
  scope of equitable power possessed by the Veterans Court,
  beyond noting one limit. Specifically, we may assume—
  again, without deciding—that the Veterans Court has all
  the equitable power that district courts have to apply equi-
  table estoppel in the absence of a specific statutory provi-
  sion conferring such power even when money is sought
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  20                                     TAYLOR   v. MCDONOUGH



  from the public fisc. No one offers any basis for supposing
  that the Veterans Court has more such power than that of
  Article III courts. That limit is all that is needed to decide
  the equitable-estoppel issue here.
      On these premises, we hold that the Supreme Court’s
  decision in Richmond, 

, establishes a limit on
  the availability of the doctrine of equitable estoppel that
  precludes that doctrine’s application here. Richmond’s
  limit on the doctrine’s application governs regardless of
  whether the doctrine is invoked in a district court, in this
  court, or in a non-Article III forum such as the Veterans
  Court (or the Board). It applies wherever (as here) there is
  no specific statutory provision turning the doctrine’s prin-
  ciples into statutory standards so as to displace Richmond.
  We reach this conclusion based on direct application of
  Richmond, coming to the same conclusion that we reached
  in McCay. 4
       The Supreme Court in Richmond confined the availa-
  bility of the doctrine of equitable estoppel against the fed-
  eral government based on the Appropriations Clause of the
  Constitution, which states, “No Money shall be drawn from
  the Treasury, but in Consequence of Appropriations made
  by Law.” U.S. Const. art. I, § 9, cl. 7. The Court held that
  “judicial use of the equitable doctrine of estoppel cannot
  grant . . . a money remedy that Congress has not author-
  ized.” Richmond, 

 (citing Immigration &
  Naturalization Service v. Pangilinan, 

, 883


       4  We do not invoke the force of McCay as precedent
  regarding equitable estoppel. To the extent that the Su-
  preme Court’s statement in Arellano that it was not ad-
  dressing that doctrine, 143 S. Ct. at 552 n.3, invites us to
  consider the applicability of equitable estoppel without
  stare decisis reliance on our own earlier governing prece-
  dent, we have done so. The Supreme Court did not invite
  us to depart from Richmond.
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  TAYLOR   v. MCDONOUGH                                           21



  (1988)); see also Salazar v. Ramah Navajo Chapter, 

, 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, 

.
       It is undisputed that Mr. Taylor qualifies for disability
  benefits under the applicable basic-entitlement statute, 

, which provides for “compensation as pro-
  vided in this subchapter” to any disabled veteran who was
  other than dishonorably discharged “[f]or disability result-
  ing from personal injury suffered or disease contracted in
  [the] line of duty . . . in the active military . . . service, dur-
  ing a period of war.” But Mr. Taylor’s qualification for ben-
  efits under that provision does not end the inquiry. What
  is in dispute is how far back such benefits go, i.e., the effec-
  tive date of such benefits, and that inquiry is controlled not
  by § 1110 (or the subchapter of which it is a part) but by
  § 5110. Notably, the Supreme Court recently confirmed
  that the provisions of § 5110 “do not operate simply as time
  constraints, but also as substantive limitations on the
  amount of recovery due.” Arellano, 143 S. Ct. at 549.
        For essentially that reason, in McCay, we treated
  § 5110’s effective-date provisions as substantive limita-
  tions on the amount of money that Congress has authorized
  to be paid, and we held that Richmond prevents tribunals
  from applying equitable estoppel to award “benefits retro-
  active to a date” earlier than that authorized by § 5110—
  i.e., “money [that] VA is not authorized to pay.” 106 F.3d
  at 1581–82. That result, we reaffirm, follows from Rich-
  mond. And it is further supported by the characterization
  of § 5110’s limits in Arellano.
      As we have noted, it is undisputed that § 5110 bars the
  pre-February 28, 2007 effective date that Mr. Taylor seeks,
  see Taylor Panel Opening Br. at 12–13; Sec’y En Banc Re-
  sponse Br. at 30, because VA received his benefits claim on
  February 28, 2007, more than one year after Mr. Taylor’s
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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 ex-
  ception is invoked. And § 5110(a)(1)’s general rule—that
  “the effective date of an award . . . of compensation . . . shall
  not be earlier than the date of receipt of application there-
  for”—therefore governs.
       Mr. Taylor has not identified any provision (and we are
  aware of none) in which Congress has turned equitable-es-
  toppel standards into statutory standards that could alter
  the results required by the § 5110 provisions for determin-
  ing an effective date. No such authority appears in the
  statutory provisions governing the decision of the regional
  office (sometimes called the agency of original jurisdiction),
  i.e., “the Secretary,” see, e.g., 

, §§ 5101–
  5109; the provisions governing decisions by the Board, see,
  e.g., id. §§ 7101–7113, especially § 7104; the provisions gov-
  erning review in the Veterans Court, see, e.g., id. §§ 7251–
  7269, especially §§ 7252 and 7261; or the provisions gov-
  erning this court’s limited-scope review of the Veterans
  Court’s decisions, see id. § 7292. See generally Burris v.
  Wilkie, 

, 1356–61 (Fed. Cir. 2018) (describing
  many of the statutes and explaining, in particular, the con-
  trolling force of statutory standards, not to be altered by
  equity, in the Veterans Court). Nothing in the statutes
  that govern here supplies an authorization greater than do
  the various statutory provisions applicable in the various
  cases in which the Richmond bar on the use of equitable
  estoppel was applied. 5



       5  See, e.g., Richmond, 

 (proceeding in an
  appeal from Merit Systems Protection Board, involving 5
  U.S.C. §§ 7701–7703); Affordable Bio Feedstock, Inc. v.
  United States, 

 (11th Cir. 2022) (tax-refund
  claim in district court, involving, e.g., 

 and
  

); Kilgour v. Securities & Exchange
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  TAYLOR   v. MCDONOUGH                                     23



     Congress has separately granted the Secretary of Vet-
  erans Affairs certain equity-based authority:
      If the Secretary determines that benefits adminis-
      tered by the Department have not been provided by
      reason of administrative error on the part of the
      Federal Government or any of its employees, the
      Secretary may provide such relief on account of
      such error as the Secretary determines equitable,
      including the payment of moneys to any person
      whom the Secretary determines is equitably enti-
      tled to such moneys.
  

(a); see 

(c)(2) (1970) (provid-
  ing similar authority to the “Administrator,” at the time
  the head of VA). That authority is “discretion[ary].”
  Groves v. McDonough, 

, 1077 n.2 (Fed. Cir.
  2022). At oral argument before the en banc court, the gov-
  ernment expressed doubt that Mr. Taylor’s situation comes
  within the “administrative error” language of § 503(a),
  while noting that Mr. Taylor had not sought relief from the
  Secretary under that provision, En Banc Oral Arg. at
  1:02:50–1:03:50, and Mr. Taylor immediately “agree[d]”
  that the provision does not apply to his situation, id. at
  1:03:57–1:04:15. Regardless, no “equitable” language like
  the language in § 503(a) appears in the provisions


  Commission, 

 (2d Cir. 2019) (whistleblower
  claim, involving, e.g., 

 and 15 U.S.C. § 78u-
  6(f)); Deaf Smith County Grain Processors, Inc. v. Glick-
  man, 

 (D.C. Cir. 1998) (farm-subsidy and dis-
  aster-relief claims, involving, e.g., 

 and 

); Perez v. United States, 

 (Fed.
  Cir. 1998) (money claims in Court of Federal Claims, in-
  volving, e.g., 

 and 

); Monon-
  gahela Valley Hospital, Inc. v. Sullivan, 

 (3d
  Cir. 1991) (Medicare reimbursement claim, involving, e.g.,
  

 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 equita-
  ble-estoppel standards statutory in this context so as to
  make Richmond inapplicable. See, e.g., Keene Corp. v.
  United States, 

 (1993) (“Where Congress
  includes particular language in one section of a statute but
  omits it in another, it is generally presumed that Congress
  acts intentionally and purposely in the disparate inclusion
  or exclusion.” (cleaned up)).
      We therefore hold that, under Richmond, equitable es-
  toppel is not available to override the claim-filing effective-
  date limits of § 5110.
                                IV
      In the supplemental brief he submitted after the Su-
  preme Court decided Arellano, Mr. Taylor invoked what is
  now 

 to support his request for an effective
  date earlier than the date allowed by § 5110. Taylor En
  Banc Supp. Br. at 4–7. Section 6303, entitled “outreach
  services,” is part of a group of provisions for an “outreach
  services program,” 38 U.S.C. §§ 6301–6308, constituting
  chapter 63 of Title 38. That group begins, in § 6301, with
  a general statement of purpose of the outreach services pro-
  gram “authorized” in what follows—to ensure that all vet-
  erans “are provided timely and appropriate assistance to
  aid and encourage them in applying for and obtaining” VA
  benefits and services and to “charg[e] [VA] with the affirm-
  ative duty of seeking out eligible veterans and eligible de-
  pendents and providing them with such services.” Id.
  § 6301(a). Mr. Taylor refers to § 6301, but if, as we con-
  clude, even the directive of § 6303 cannot help him here,
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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.” 

(b).
  Subsection (c) (originally § 241(2), later § 7722(c)) provides
  that VA “shall distribute full information to eligible veter-
  ans . . . regarding all benefits and services to which they
  may be entitled under laws administered by the Secretary.”
  Id. § 6303(c)(1)(A). Subsection (d) (originally § 241(3), later
  § 7722(d)) states that VA “shall provide, to the maximum
  extent possible, aid and assistance (including personal in-
  terviews) to . . . veterans . . . with respect to subsections (b)




      6    Congress enacted the outreach-services provisions
  in 1970 as 38 U.S.C. §§ 240–244. Veterans Education and
  Training Amendments Act of 1970, 

, 

, 84–85 (enacting 38 U.S.C. §§ 240–244).
  In 1991, Congress recodified the group of provisions as 38
  U.S.C. §§ 7721–7726. Department of Veterans Affairs Cod-
  ification Act, 

(b), 

, 400–
  02 (1991). In 2006, Congress again recodified the group of
  provisions, which are now 38 U.S.C. §§ 6301–6308. Veter-
  ans’ Housing Opportunity and Benefits Improvement Act
  of 2006, 

, 120 Stat. 397–407. The
  provisions Mr. Taylor has cited are what are now § 6301
  (originally § 240, later § 7721) and § 6303 (originally § 241,
  later § 7722). The parties have not suggested that any dif-
  ferences in wording over the decades make a difference to
  our consideration of these provisions, so for simplicity we
  use the current provisions for our discussion, sometimes
  with parenthetical notation of their predecessors.
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  26                                    TAYLOR   v. MCDONOUGH



  and (c) and in the preparation and presentation of claims
  under laws administered by [VA].” Id. § 6303(d).
      Mr. Taylor might be making either or both of two pos-
  sible arguments about § 6303. One is that the provision
  justifies the application of equitable estoppel here even if
  compliance with § 6303 is not a statutory precondition to
  enforcing the claim-filing effective-date limits of § 5110.
  The other is that § 6303 compliance is such a precondition,
  so that the pair of statutes together mean that enforcing
  the § 5110 limits would be contrary to statute if there is
  noncompliance with § 6303 (making equitable estoppel and
  hence Richmond beside the point). We decline to adopt ei-
  ther proposition.
      The first possible argument must be rejected for the
  simple reason that it is contrary to Richmond. If § 6303 is
  not a statutory precondition to enforcing the claim-filing
  effective-date limits of § 5110, then Richmond squarely ap-
  plies. Using the doctrine of equitable estoppel to disregard
  the § 5110 limits would be awarding money contrary to
  statutory authorization.
       We decline to accept the second possible argument but
  not because Richmond stands in the way. After all, where
  one statutory provision imposes a duty on an agency, and
  the agency’s compliance with that statutory duty is
  properly understood to be a precondition to enforcing a ben-
  efit restriction stated in another statutory provision, Rich-
  mond does not prohibit awarding the benefit without
  regard to the benefit restriction if the precondition duty is
  not fulfilled. We have so held repeatedly. See, e.g., Brush
  v. Office of Personnel Management, 

, 1561–
  64 (Fed. Cir. 1992); Johnston v. Office of Personnel Man-
  agement, 

, 1341–42 (Fed. Cir.), modified, 

 (Fed. Cir. 2005) (mem.) (per curiam);
  Dachniwskyj v. Office of Personnel Management, 

, 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 re-
  striction provision that would be contrary to statute, and
  the proper result is to provide the claimant what would
  have been paid had there been no precondition-provision
  violation. See Pirkl v. Wilkie, 

 (Fed.
  Cir. 2018) (“[T]he fundamental principle of corrective rem-
  edies that is used throughout the law, though sometimes
  with modifications” is that “[t]he injured party is to be
  placed, as near as may be, in the situation he would have
  occupied if the wrong had not been committed.” (quoting
  Wicker v. Hoppock, 

 (1867), and cit-
  ing, among other authorities, Missouri v. Jenkins, 

 (1995))). The basis for such an award is not the doc-
  trine of equitable estoppel, which adds nothing to what is
  simply a statutory-violation and remedy analysis. It is that
  analysis, not equitable estoppel, on which Brush and simi-
  lar cases rely. In such circumstances, Richmond is inap-
  plicable because the doctrine of equitable estoppel (which
  is what Richmond limits) is not the basis of decision.
      The problem with Mr. Taylor’s second possible argu-
  ment is instead with the merits of the contention that VA’s
  compliance with § 6303 is a precondition to enforcing
  § 5110’s claim-filing effective-date limits. In fact, we have
  twice held the opposite, i.e., that VA’s compliance with
  § 6303 is not a precondition to enforcing the “unequivocal
  command” of § 5110. Rodriguez, 

. In Ro-
  driguez, we held that § 6303(d) (at the time § 7722(d)) does
  not “create any enforceable rights” because the statute does
  not “prescribe[] any remedy for breach.” Id. We concluded
  instead that § 6303(d) is “hortatory” rather than a provi-
  sion imposing “enforceable legal obligations upon the Sec-
  retary” that condition enforcement of the § 5110 limits. Id.
  Later, in Andrews, 

, we applied Rodriguez’s
  reasoning to hold that § 6303(b) and (c) (at the time
  § 7722(b) and (c)) are likewise not preconditions to enforc-
  ing the § 5110 limits, stating: “VA’s failure to notify under
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  28                                    TAYLOR   v. MCDONOUGH



  § [6303(b)] and (c)(1) may not serve as the basis for award-
  ing an effective date in contravention of [§ 5110].” Id. at
  1137.
       The clarity of those binding precedents establishing
  that compliance with § 6303 is not a precondition to en-
  forcement of the claim-filing effective-date limits of § 5110
  is why we do not hold that Mr. Taylor forfeited his current
  argument for linking the two provisions by not presenting
  such an argument to the Veterans Court or to the panel,
  where the argument, which would require a sharp change
  in the law that bound the Veterans Court and the panel,
  would have been futile. See, e.g., In re Micron Technology,
  Inc., 

, 1097–98 (Fed. Cir. 2017) (citing au-
  thorities that recognize the futility of an argument requir-
  ing a departure from clear, binding precedent as a reason
  not to find forfeiture from the non-raising of an issue); In
  re Montreal Maine & Atlantic Railway, Ltd., 

,
  38 n.2 (1st Cir. 2020). To conclude now that § 6303 compli-
  ance is a precondition to enforcement of the § 5110 limits
  at issue, we would have to overcome the force of stare deci-
  sis and overrule Andrews and Rodriguez. See Robert
  Bosch, LLC v. Pylon Manufacturing Corp., 

,
  1316–17 (Fed. Cir. 2013) (en banc) (recognizing the force of
  stare decisis when the en banc court considers adopting a
  position contrary to longstanding panel precedent). Statu-
  tory rulings carry particular stare decisis force because
  Congress can change them. 

 at 1317 (citing John R.
  Sand & Gravel Co. v. United States, 

  (2008)); see Kimble v. Marvel Entertainment, LLC, 

 (2015) (statutory precedents carry “enhanced
  force”); see also Gamble v. United States, 

 (2019) (“special justification” required to overrule
  even a constitutional precedent); Arizona v. Rumsey, 

 (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 negli-
  gence in failing to provide a form or reach an individual
  veteran with notice of the availability of benefits as pro-
  vided in § 241 and its successor statutes [§ 7722, now
  § 6303] does not extend the effective date provision of 

(b)(1).” Taylor En Banc Supp. Br. at 5. But
  stare decisis covers the clearly, twice-stated legal principle
  that was the rationale of the decisions—that § 6303 com-
  pliance is not a precondition to enforcing the § 5110 lim-
  its—not just the conclusion on the particular facts. See,
  e.g., Bucklew v. Precythe, 

 (2019); Sem-
  inole Tribe of Florida v. Florida, 

 (1996);
  Corcamore, LLC v. SFM, LLC, 

 (Fed.
  Cir. 2020).
      At least in the absence of a request to overrule Andrews
  and Rodriguez, let alone a developed argument for doing
  so, we decline to overrule them or, therefore, to disturb the
  conclusion on which they rely. There are in fact strong ob-
  stacles to any such overruling. And we have not been pre-
  sented with any meaningful argument for overcoming
  them.
       For one thing, the Andrews and Rodriguez precedents,
  which reject the link that Mr. Taylor’s argument requires,
  are perfectly consistent with the text of the statutes. Nei-
  ther § 5110 nor § 6303 refers to the other. And while
  § 6303 imposes certain notice and aid obligations, it says
  nothing about the distinct issue of relevance here—what
  consequence must follow failure to fulfill those obligations.
  In particular, it says nothing to the effect that any claim-
  filing effective-date limit of § 5110 becomes unenforceable
  as a result of such a failure. Nor has Mr. Taylor indicated
  why there is anything surprising about an “outreach ser-
  vices” obligation not being linked to the claim-deciding
  rules. Moreover, the absence of the link Mr. Taylor re-
  quires is bolstered by the placement of the provisions in
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  30                                     TAYLOR   v. MCDONOUGH



  distinct chapters of Title 38: Section 5110 is part of chapter
  51 (“Claims, Effective Dates, and Payments”), whereas
  § 6303 is part of chapter 63 (“Outreach Activities”). 7
       The precedents are two decades old. See Gamble, 

 (explaining that the strength of the argu-
  ment for adhering to particular precedents “grows in pro-
  portion to their ‘antiquity’” (quoting Montejo v. Louisiana,
  

 (2009))). Congress has reenacted the pro-
  visions now codified at 

 since then. See,
  e.g., Dames & Moore v. Regan, 

, 680–81 (1981)
  (noting that Congress having “frequently amended the In-
  ternational Claims Settlement Act . . . demonstrat[ed] Con-
  gress’[s] continuing acceptance” of the “practice of claim
  settlement by executive agreement”). It reenacted the
  1991-enacted § 7722 as § 6303 in 2006. See supra n.6 (de-
  tailing the history of § 6303). And in the past three years,
  Congress has reenacted § 6303 twice more. See William M.
  (Mac) Thornberry National Defense Authorization Act for
  Fiscal Year 2021, 

(a)(59), 

, 3830 (2021); Solid Start Act of 2022, 

(b)(2), 

, 2233. No reenactment,
  despite making some changes to the provisions, has dis-
  turbed this court’s holding in Andrews and Rodriguez that
  enforcement of the claim-filing effective-date limits of
  § 5110 is not conditioned on fulfillment of the outreach



       7  The chapter separation was a feature of the prede-
  cessor provisions as well. The 1970 provisions, §§ 240–244,
  were in chapter 3 (“Veterans’ Administration; Officers and
  Employees”), while the predecessor of current § 5110,
  namely, § 3010, was in chapter 51 (“Applications, Effective
  Dates, and Payments”). See 38 U.S.C. Table of Contents
  (1976). The 1991 provisions, §§ 7721–7726, were in chap-
  ter 77 (“Veterans Benefits Administration”), while § 5110
  was in chapter 51 (“Claims, Effective Dates, and Pay-
  ments”). See 38 U.S.C. Table of Contents (1994).
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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 congres-
  sional judgment that has long limited to claimants (in con-
  trast to the broad class of mere potential future claimants)
  the enforceable duty to assist stated in 38 U.S.C. § 5103A.
  That provision requires VA to, among other things, “make
  reasonable efforts to assist a claimant in obtaining evi-
  dence necessary to substantiate the claimant’s claim for a
  benefit under a law administered by the Secretary.” 38
  U.S.C. § 5103A(a)(1). It traces back to the 1988 enactment
  of 

(a) (1988) (“The Administrator shall as-
  sist such a claimant in developing the facts pertinent to the
  claim.”), see Veterans’ Judicial Review Act, Pub. L. No. 100-
  687, div. A, tit. I, § 103(a), 

, 4106–07 (1988),
  which “codif[ied]” an earlier regulatory duty, Hayre v. West,
  

 (Fed. Cir. 1999), overruled on other
  grounds by Cook v. Principi, 

 (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, 

(a), 

, 2097–98; Honoring
  America’s Veterans and Caring for Camp Lejeune Families
  Act of 2012, 

tit. V, § 505(a), 

, 1192–93; Veterans Appeals Improvement and Mod-
  ernization Act of 2017, 

(c), (d), 

, 1105–06; William M. (Mac) Thornberry Na-
  tional Defense Authorization Act for Fiscal Year 2021
  § 926(a)(51), 134 Stat. at 3830.
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  32                                      TAYLOR   v. MCDONOUGH



  

tit. VIII, § 807(a)(1), 

,
  1805 (codified at 

(1)).
       The enforceable assistance duty in chapter 51, which
  does not attach until claiming, fits closely with the claim-
  filing effective-date limits of § 5110. Making those limits
  unenforceable for noncompliance with § 6303, which ap-
  plies to notice and aid to veterans for what may be many
  years before claiming, would have a large potential disrup-
  tive effect on the claim-filing effective-date limits of benefit
  awards. Such “practical consequences” seem out of keeping
  with the longstanding, repeated congressional actions just
  described. Stoneridge Investment Partners, LLC v. Scien-
  tific-Atlanta, Inc., 

 (2008); see Whitman v.
  American Trucking Associations, 

 (2001)
  (“Congress . . . does not, one might say, hide elephants in
  mouseholes.”).
      Mr. Taylor proposes that a link between § 6303 and
  § 5110 can be limited to the type of affirmative secrecy-oath
  action that deters claim filing that is at issue here. Taylor
  En Banc Supp. Br. at 5–6. But there is no language in
  § 6303 that would support such a limit. The duties imposed
  are not in any way confined to avoidance of such action;
  they are duties of affirmative notice and aid. Moreover, the
  contours of those duties are uncertain, not having been
  part of benefits litigation for at least two decades (perhaps
  back to the enactment of the outreach duties), and there is
  a high potential for injecting new issues without straight-
  forward answers into benefits litigation if the effective date
  of benefits were now to depend on fulfillment of those du-
  ties. The potential consequences of adopting Mr. Taylor’s
  § 6303 argument thus appear to be considerably greater
  than the consequences of reaching the narrow conclusion
  on the constitutional right of access discussed (and
  adopted) next, which is confined to the affirmative secrecy-
  oath action, with adjudication-foreclosing and claim-deter-
  ring effects, involved in this matter.
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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., 

 (2013). For that rea-
  son and the others that we have set forth, we are not pre-
  pared to overrule Andrews or Rodriguez. We therefore
  decline to disturb our precedent under which VA’s compli-
  ance with § 6303 is not a precondition to enforcing § 5110’s
  claim-filing effective-date limits.
                                V
      We next consider Mr. Taylor’s constitutional argument
  that the government violated his fundamental right of ac-
  cess to the exclusive adjudicatory forum for vindication of
  his legal entitlement to VA disability benefits. See Taylor
  En Banc Opening Br. at 18–19, 49–65. The government
  makes no suggestion that Mr. Taylor forfeited this argu-
  ment in this litigation or that he waived the constitutional
  right by taking the secrecy oath. We hold that Mr. Taylor
  succeeds on this ground.
                                A
                                1
      “The Supreme Court has long recognized that citizens
  have a right of access to the courts.” Broudy v. Mather, 

 (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, 

  (1803), the Supreme Court elaborated in 1907:
      The right to sue and defend in the courts is the al-
      ternative of force. In an organized society it is the
      right conservative of all other rights, and lies at the
      foundation of orderly government. It is one of the
      highest and most essential privileges of citizenship,
      and must be allowed by [the government] . . . .
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  34                                     TAYLOR   v. MCDONOUGH



  Chambers v. Baltimore & Ohio Railroad Co., 

 (1907). The Supreme Court has reaffirmed the right of
  access several times, see, e.g., Lewis v. Casey, 

 (1996) (“The right that [we] acknowledged was the (al-
  ready well-established) right of access to the courts.” (em-
  phasis omitted)); Bounds v. Smith, 

 (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, 

 (2011) (explain-
  ing that the First Amendment’s “Petition Clause protects
  the right of individuals to appeal to courts and other fo-
  rums established by the government for resolution of legal
  disputes”); California Motor Transport Co. v. Trucking Un-
  limited, 

 (1972) (applying the right of ac-
  cess to an executive agency).
       In Christopher v. Harbury, the Court observed that it
  has “grounded the right of access” in various constitutional
  provisions—“the Article IV Privileges and Immunities
  Clause, the First Amendment Petition Clause, the Fifth
  Amendment Due Process Clause, and the Fourteenth
  Amendment Equal Protection and Due Process Clauses.”
  

 n.12 (citations omitted) (collecting cases).
  Those multiple roots reflect the Chambers-recognized foun-
  dational character of the right in our legal system. See,
  e.g., 1 William Blackstone, Commentaries, *141 (noting
  that the common law of England granted the right “of ap-
  plying to the courts of justice for redress of injuries”). For
  such reasons, the Supreme Court has characterized the
  right of access as a “fundamental right.” Tennessee v. Lane,
  

 (2004); see 

 at 533–34 (recognizing con-
  gressional power under Section 5 of the Fourteenth
  Amendment to enforce “the fundamental right of access to
  the courts”); Lewis, 

 (discussing what “the
  fundamental constitutional right of access to the courts
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  TAYLOR   v. MCDONOUGH                                        35



  requires” (quoting Bounds, 

)); see also, e.g.,
  Ringgold-Lockhart v. County of Los Angeles, 

 (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, 

  (6th Cir. 1997) (“It is beyond dispute that the right of access
  to the courts is a fundamental right protected by the Con-
  stitution.” (cleaned up)).
       The Court in Christopher noted that a claim of denial
  of the access right necessarily refers to an underlying enti-
  tlement and opportunity to litigate that entitlement and
  can take either of two perspectives regarding that oppor-
  tunity. It can be forward-looking, in the sense that it com-
  plains of current frustration of still-available access to a
  forum for vindicating an underlying entitlement and seeks
  that access now; or it can be backward-looking, in the sense
  that it complains of past frustration of such access where
  that access is no longer available. 536 U.S. at 413–14. In
  both categories, “the ultimate justification . . . is the same”:
  “Whether an access claim turns on a litigating opportunity
  yet to be gained or an opportunity already lost, the very
  point of recognizing any access claim is to provide some ef-
  fective vindication for a separate and distinct right to seek
  judicial relief for some wrong.” 

 at 414–15. The right of
  access is thus “ancillary to the underlying claim, without
  which a plaintiff cannot have suffered injury by being shut
  out of court.” Id. at 415. And “when the access claim . . .
  looks backward,” the one asserting a right-of-access viola-
  tion “must identify a remedy that may be awarded as rec-
  ompense but not otherwise available in some suit that may
  yet be brought.” Id.
                                 2
      The government here accepts that there is a constitu-
  tional right of access to adjudicatory forums and that it ap-
  plies to access to the VA benefits adjudicatory system.
  Sec’y En Banc Response Br. at 47 (“[A] veteran such as Mr.
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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 le-
  gal entitlement to which a right of access applies, 536 U.S.
  at 413–18—is clearly met here. Mr. Taylor has a legal en-
  titlement: “The law entitles veterans who have served on
  active duty in the United States military to receive benefits
  for disabilities caused or aggravated by their military ser-
  vice.” George, 

 (quoting Sanders, 

). Under 

, that entitlement includes
  the entitlement to benefits for particular periods but only
  if it is claimed on time. The government has cited no con-
  gressional elimination or modification of the explicit legal
  entitlement, so this case involves executive action asserted
  to deprive a claimant of access to an adjudicatory forum to
  vindicate a statutory entitlement.
      The government also accepts that the VA adjudicatory
  process involved in this case is the exclusive means of vin-
  dicating that entitlement—assertedly more than three dec-
  ades’ worth of compensation for service-connected
  disabilities—as a nondiscretionary matter. 9 It points to no
  other possible route to securing the compensation to which
  the statute grants an entitlement. The government further
  accepts that the penalty-backed secrecy oath, with no ex-
  ception for VA adjudicatory processes, in fact caused Mr.
  Taylor to refrain from filing a claim before 2007, stating:



       9   As noted above, 

(a) grants the Sec-
  retary certain authority to award benefits, but that author-
  ity is discretionary, and the government has indicated—
  and Mr. Taylor has asserted—that the provision is inappli-
  cable here. See supra pp. 23–24.
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  TAYLOR   v. MCDONOUGH                                         37



  “[T]he consequence of the oath was that Mr. Taylor re-
  frained from seeking benefits until 2007.” Sec’y En Banc
  Response Br. at 28; see id. at 26, 33. Accordingly, this case
  involves “official acts” that “caused . . . the loss of an oppor-
  tunity to seek some particular order or relief”—which is the
  definition of the category of backward-looking right-of-ac-
  cess claims recognized in Christopher, 

.
       The government accepts as proper the formulation for
  assessing right-of-access claims of this type—given an un-
  disputed underlying legal entitlement—stated by the
  Ninth Circuit in Silva v. Di Vittorio, which speaks of “ac-
  tive interference” that is “undue.” 

 (9th
  Cir. 2011); see Sec’y En Banc Response Br. at 46 (“[T]he
  ‘active interference’ that is labeled ‘undue’ test from Silva
  is consistent with Christopher v. Harbury and is an appro-
  priate alternative test for right of access to the court
  claims.”); id. at 9. As applied to an exclusive adjudicatory
  forum, this approach asks whether the government has, by
  affirmative conduct, unduly interfered with the individ-
  ual’s access to the adjudication offered by the forum. See
  also Snyder v. Nolen, 

 (7th Cir. 2004) (per cu-
  riam) (applying a similar test). The government notes that,
  in Christopher, “[t]he Supreme Court did not explicitly
  adopt or establish a test for the denial of a right of access,”
  Sec’y En Banc Response Br. at 45, and the government does
  not elsewhere identify a general test specifying further de-
  tails of the constitutional standard, including what levels
  of interference suffice and how the government might jus-
  tify actions that do interfere with access. We follow the
  Silva formulation, applied in light of the fundamental
  character of the right at issue.
                                 B
      In this case, as noted, the government took the affirm-
  ative act of securing a secrecy oath backed by court-martial
  and prosecution threats, with no exception for VA adjudi-
  catory processes. That act, which would naturally be
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  38                                    TAYLOR   v. MCDONOUGH



  understood as foreclosing the ability to support an essen-
  tial element of the standard for benefits, actually caused
  Mr. Taylor to refrain from filing the claim at issue to vin-
  dicate his legal entitlement for a period of up to three and
  a half decades—until the government generally lifted the
  secrecy restriction. Under § 5110, the absence of an earlier
  claim foreclosed pre-filing benefits to which Mr. Taylor was
  entitled. And there is an evident “remedy that may be
  awarded as recompense but not otherwise available in
  some suit that may yet be brought,” Christopher, 536 U.S.
  at 415—namely, determining the effective date for benefits
  by disregarding the statutory limits that are unconstitu-
  tional as applied.
      The government makes essentially three arguments
  for nevertheless rejecting Mr. Taylor’s request for relief on
  this constitutional ground. First, it contends that the in-
  terference was not severe enough. Sec’y En Banc Response
  Br. at 47–52. Second, it contends that the governmental
  interest in secrecy made the interference justified (and
  hence not “undue”). Id. at 52–54. Third, it contends that,
  even if there was sufficiently active and undue interfer-
  ence, “Mr. Taylor cannot identify an available remedy.” Id.
  at 42, 54–56. We reject these arguments.
                               1
      The secrecy oath, backed by the possibility of court-
  martial or prosecution, was ample affirmative interference
  with the right of access at issue—access to meaningful ad-
  judicatory processes in the exclusive forum in which Mr.
  Taylor could have vindicated the entitlement at issue. The
  oath undisputedly did cause Mr. Taylor not to file a claim.
  This was its natural, predictable effect. The oath did not
  state an exception for VA processes, and both Mr. Taylor
  and the government must have known that the standard
  for vindicating the entitlement—establishment of service
  connection of the disability, 

 (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 commu-
  nication from the Executive that would have informed Mr.
  Taylor that VA on its own would secure all information
  needed for the adjudication of this essential element. At
  least in the absence of such a communication making clear
  how Mr. Taylor could file a claim and obtain a meaningful
  adjudication, the penalty-backed oath readily counts as a
  barrier to access of the VA adjudicatory system for vindica-
  tion of the benefit entitlement.
       The government itself states: “[T]he Secretary does not
  mean to suggest that a veteran should have to risk prose-
  cution in order to apply for benefits.” Sec’y En Banc Re-
  sponse Br. at 51. The Supreme Court has elsewhere
  recognized the common-sense point that a threat of prose-
  cution can operate as an effective barrier to court access.
  See, e.g., Ex parte Young, 

 (1908) (“[T]o
  impose upon a party interested the burden of obtaining a
  judicial decision of such a question (no prior hearing having
  ever been given) only upon the condition that, if unsuccess-
  ful, he must suffer imprisonment and pay fines, as pro-
  vided in these acts, is, in effect, to close up all approaches
  to the courts . . . .”); see also Steffel v. Thompson, 

 (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., 

, 128–29 (2007) (“[W]here threatened ac-
  tion by government is concerned, we do not require a plain-
  tiff to expose himself to liability before bringing suit to
  challenge the basis for the threat . . . .”). The government
  points to no authority to support a conclusion that a threat
  of court-martial or prosecution covering disclosure of claim-
  ant-possessed reliable information relevant and necessary
  to a desired adjudication, with no known avenue for pro-
  ceeding without such disclosure, is insufficient to consti-
  tute active interference for purposes of the constitutional
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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 adju-
  dication, so that his filing a claim would have been “fu-
  tile”—to use the language the government quotes from the
  Supreme Court’s Christopher v. Harbury decision, 

, and the D.C. Circuit’s opinion in Harbury v. Deutch,
  

, 957 (D.C. Cir. 2001). Sec’y En Banc Response
  Br. at 43, 45, 47–48. We do not address any other circum-
  stance. 10
      The government asserts that two or three veterans
  cited the Edgewood program in seeking benefits before the
  partial declassification in 2006. See Sec’y En Banc Re-
  sponse Br. at 49–50. 11 The existence of a few such risk-



       10  Neither the Supreme Court nor the D.C. Circuit
  used that language to declare a minimum requirement;
  both were simply discussing the plaintiff’s own characteri-
  zation of her situation—which the D.C. Circuit held the
  plaintiff should have an opportunity to prove, and which
  the Supreme Court assumed in the course of reversing on
  other grounds (the absence of a threshold identification
  and determination of the underlying entitlement and cause
  of action for redress lost by virtue of the challenged govern-
  ment action). In fact, the Supreme Court elsewhere used
  the language of “frustrating” access. Christopher, 

. 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, 

 (Vet. App. Feb. 9, 2018), Forrest
  v. McDonald, No. 14-1572, 

 (Vet. App.
  June 1, 2015), and DiAngelis v. McDonough, No. 19-8769,
  

 (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, 

, at *2.
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  TAYLOR   v. MCDONOUGH                                         41



  takers does not undermine the general conclusion. That is
  especially so because of how little the government has
  shown about the three veterans’ cases it cites. We have not
  been told whether any of those veterans were prosecuted
  and if not, why not; e.g., perhaps the information disclosed
  was too slight or there were case-specific reasons underly-
  ing prosecutorial exercise of discretion. The government
  also does not assert, and the opinions do not suggest, that
  any of those veterans (or others, for that matter) actually
  succeeded before 2006 on an Edgewood claim, which may
  mean that even these veterans did not feel free to disclose
  information needed to prove service connection. Thus,
  these few matters do not even show the non-futility of seek-
  ing Edgewood-based benefits before 2006. Regardless, they
  do not support treating the penalty-backed oath as less
  than an interference with access to the needed adjudicatory
  process for constitutional purposes.
        Relatedly, the government asserts that the oath “does
  not contain an explicit prohibition on discussing the Edge-
  wood [p]rogram with [f]ederal agencies such as . . . VA.” 

. 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 

, and no “explicit” reference to VA, by name, was needed
  for the oath to be reasonably and predictably read by vet-
  erans as reaching VA. Nothing in the oath informed its
  signers that VA was something other than an “organization
  . . . or other group or entity[] not officially authorized to re-
  ceive such information.” S. Rep. No. 94-755, Book I, at 418.
  It seems to us an unsound application of the right of access
  to hold that a former servicemember loses the right by “in-
  terpret[ing] the oath in the way most beneficial to the gov-
  ernment” rather than testing its limits without
  authorization—a choice one might expect and even com-
  mend. Taylor En Banc Reply Br. at 26; see En Banc Oral
  Arg. at 42:40–43:15 (The court: “Are you saying that the
  government has a compelling interest in having their
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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 rec-
  ognizes that there are holes in our oath interpretation ar-
  gument.”).
       The reasonableness of Mr. Taylor’s view of the oath is
  confirmed by the 2006 letter that VA sent to him and other
  Edgewood veterans. The letter stated that the Department
  of Defense had granted limited permission for Edgewood
  veterans “to disclose to health care providers information
  about their involvement in the Edgewood Program that af-
  fected their health,” Taylor CAVC 2019, 31 Vet. App. at 149
  (citing Vet. Ct. Rec. at 2695–97), but warned “not [to] dis-
  cuss anything that relates to operational information that
  might reveal chemical or biological warfare vulnerabilities
  or capabilities,” J.A. 32. This letter indicates that Edge-
  wood veterans were not authorized to provide details about
  Edgewood to VA (which provides health care to many vet-
  erans) before the 2006 partial declassification—and that
  the government considered the oath to be enforceable after
  discharge.
       The government further argues that it did not “en-
  tirely,” Sec’y En Banc Response Br. at 9, and “completely
  foreclose[]” Mr. Taylor from accessing VA because, the gov-
  ernment maintains, he could have filed a “minimal claim
  before 2006 without divulging classified information,” id.
  at 48. The government acknowledges, however, that such
  “a minimal claim likely would have been insufficient for
  Mr. Taylor to obtain service connection.” Id. The govern-
  ment’s suggestion about the role of a minimal claim is, ra-
  ther, that if the claim had been filed and denied for want of
  crucial information, it would have served as a placeholder
  for the time when, decades later in 2006, secrecy was lifted
  and the Secretary adopted a regulation that permitted re-
  opening, with retroactive effect as far back as the date of
  the original filing, if the new and material evidence justi-
  fying reopening consists of “[d]eclassified records that
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  TAYLOR   v. MCDONOUGH                                      43



  could not have been obtained because the records were
  classified when VA decided the [original] claim.” 

(c)(1)(iii); see also 

 § 3.156(c)(3); New and Mate-
  rial Evidence, 

, 52,457 (Sept. 6, 2006). 12
      We reject this argument. The government does not
  even now explain what a “minimal” claim would have
  looked like such that it would have truly eliminated the
  risk of penalties for disclosures, and it certainly points to
  no communication from the government that would have
  so informed Mr. Taylor before 2006. More fundamentally,
  the government’s placeholder scenario is not enough to
  mean that the constitutionally required “meaningful ac-
  cess,” the “touchstone” of the constitutional right at issue,
  Lewis, 

 (quoting Bounds, 

),
  was actually present all along. Meaningful access is not
  merely an empty opportunity to submit a piece of paper
  that the government forbids to be filled out or later sup-
  ported as needed to vindicate the entitlement, thereby ren-
  dering a filing futile. To say otherwise is to ignore the
  purpose of the constitutionally guaranteed access—to ob-
  tain an adjudication. Of course, under the Silva right-of-
  access formulation, under which government interference
  might not be “undue” because it was justified, a govern-
  ment action that precludes an adjudication might not in
  the end be unconstitutional. But that conclusion would be



      12   Although the government suggested at oral argu-
  ment that VA’s amendment of § 3.156 in 2006 was simply
  a codification of prior practice, En Banc Oral Arg. at 43:38–
  44:49; cf. 71 Fed. Reg. at 52,456 (“[T]he purpose of this rule
  is to clarify longstanding VA rules . . . .”), the government
  submitted a post-argument letter stating that “VA has un-
  dertaken [a] search and has been unable to locate any man-
  ual or other publication that addresses” a “pre-existing
  policy that was clarified in 

(c) (2006).”
  ECF No. 90, at 1.
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  44                                     TAYLOR   v. MCDONOUGH



  based on the adequacy of the justification, not on any sound
  conclusion that meaningful access had actually been avail-
  able. (The justification issue is discussed in the next sec-
  tion, V.B.2, of this opinion.)
       In any event, even if it could be said that meaningful
  access is present in some situations where the government
  tells prospective claimants that they can file claims that
  will assuredly be denied for now because support is barred,
  such a conclusion could not be justified here. The govern-
  ment relies on what was a mere possibility of future
  changes to reopening rules and government secrecy policy,
  not imminent or on the horizon or communicated to Mr.
  Taylor and other Edgewood veterans. At least some Edge-
  wood veterans presumably did not live long enough to see
  those possibilities mature into actual changes, after dec-
  ades. Those veterans, as well as those who did survive,
  were denied the sole forum to vindicate their entitlements
  to compensation meant to support veterans in living their
  lives, limited by disability incurred in service of the Nation.
  During all the intervening years, those veterans were de-
  nied meaningful access, and that denial existed inde-
  pendently of the fact that secrecy was ultimately lifted.
      Finally, the government contends that it cannot have
  actively interfered with Mr. Taylor’s efforts to pursue his
  legal claim because the “oath was not designed”—and the
  government did not “intend[]”—to target Mr. Taylor’s or
  any Edgewood veteran’s access to VA. Sec’y En Banc Re-
  sponse Br. at 52, 54. The right-of-access case law does not
  support this purported scienter requirement, at least if the
  government means it to go beyond what is indisputably
  present here. See, e.g., Lewis, 518 U.S. at 350–51; Silva,
  658 F.3d at 1101–04; Snyder, 380 F.3d at 289–91. It was
  entirely foreseeable that a servicemember participating in
  the Edgewood program would suffer injury that would be
  disabling after discharge. The availability of and require-
  ments for post-service disability compensation are perva-
  sively known to those in the service, and those who
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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 in-
  terfered with Mr. Taylor’s access to the exclusive adjudica-
  tory forum for vindication of his legal entitlement to
  disability benefits.
                                 2
      We also reject the government’s contention that it has
  justified the interference with Mr. Taylor’s access to the VA
  adjudicatory forum. That contention rests on the public in-
  terest in secrecy tied to military matters. We do not ques-
  tion the strength of that interest. See also Taylor En Banc
  Opening Br. at 59 (“No one disputes that the government
  has an interest in maintaining the confidentiality of cer-
  tain government programs.”). But we conclude that the
  government has not shown that its interference with Mr.
  Taylor’s right of access was adequately tailored to serve
  that interest.
       Neither party points to a right-of-access Supreme
  Court precedent that specifically states a standard for as-
  sessing an asserted justification. But two sources point to
  a sensible standard here—a requirement of narrow tailor-
  ing to the secrecy interest invoked (which we accept as com-
  pelling), which demands a showing that less adjudication-
  foreclosing alternatives could not have protected the inter-
  est.
       First: A fundamental constitutional right (such as the
  right of access) is often governed by strict scrutiny, which
  requires, for justification, that the government conduct be
  narrowly tailored to serve a compelling state interest. See,
  e.g., Reno v. Flores, 

, 301–02 (1993) (explaining
  that due process “forbids the government to infringe cer-
  tain ‘fundamental’ liberty interests at all . . . unless the in-
  fringement is narrowly tailored to serve a compelling state
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  46                                       TAYLOR   v. MCDONOUGH



  interest” (emphasis omitted)); 

 (“[N]arrow tailor-
  ing is required only when fundamental rights are in-
  volved.”); Fulton v. City of Philadelphia, 

,
  1881 (2021) (similar in First Amendment religion context);
  Ryland v. Shapiro, 

 (5th Cir. 1983) (ap-
  plying strict scrutiny to a constitutional right-of-access
  claim); cf. Lane, 

 (explaining that the situ-
  ation before the Court involved “basic rights, including the
  right of access to the courts . . . , that call for a standard of
  judicial review at least as searching, and in some cases
  more searching, than the standard that applies to sex-
  based classifications”). 13
      A narrow-tailoring standard commonly requires the
  government to address concretely the possibility of less
  right-denying measures because, “so long as the govern-
  ment can achieve its interests in a manner that does not
  burden [the fundamental right at issue], it must do so.”
  Fulton, 141 S. Ct. at 1881; see Grutter v. Bollinger, 

 (2003) (holding, in the context of an equal-
  protection challenge to a “race-conscious admissions pro-
  gram,” narrow tailoring, while not requiring “exhaustion of
  every conceivable race-neutral alternative,” “does, how-
  ever, require serious, good faith consideration of workable
  race-neutral alternatives that will achieve the diversity the
  university seeks”); Fisher v. University of Texas at Austin,
  

 (2013) (similar); McCullen v. Coakley,
  

, 495 (2014) (explaining in a First Amendment
  case: “To meet the requirement of narrow tailoring, the
  government must demonstrate that alternative measures
  that burden substantially less speech would fail to achieve
  the government’s interests, not simply that the chosen
  route is easier.”); Americans for Prosperity Foundation v.



       13Mr. Taylor invoked strict scrutiny in his opening en
  banc brief. Taylor En Banc Opening Br. at 58–61. The
  government, in its response brief, did not disagree.
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  TAYLOR   v. MCDONOUGH                                       47



  Bonta, 

 (2021) (similar, in right-
  of-association case).
       Second: The Supreme Court has made a comparable
  point in the closely analogous context of deciding whether
  government military-secrecy interests preclude the
  maintenance or continuation of litigation. Specifically, in
  General Dynamics Corp. v. United States, the Court con-
  cluded that the government’s military-secrecy interests
  should not bar a proceeding to vindicate a legal entitlement
  except as a “last resort” and only “when full litigation . . .
  ‘would inevitably lead to the disclosure of’ [the] secrets.”
  

 (2011) (citing Totten v. United
  States, 

 (1876)). At least as far as the pre-
  sent case is concerned, this standard aligns with all that
  we need to borrow from the just-described narrow-tailoring
  requirement to decide this case, which is a demand not for
  perfect tailoring but for a concrete government explanation
  of the inability to protect the secrecy interest, while afford-
  ing access, by measures the government itself has used in
  a closely related context.
       The government has not met that standard. It pre-
  sents generalizations about military secrecy, an interest
  whose strength we do not question, but it has not given
  concrete reasons that this interest could not have been pro-
  tected while giving Edgewood veterans an adjudication.
  For example, it has not addressed the possibility of a spe-
  cial office within VA (perhaps with a special role played by
  Department of Defense personnel) that could have carried
  out the Secretary’s first-level adjudication—where the
  great bulk of veterans’ benefits claims are resolved—with
  information on a benefits claim form notifying a claimant
  of when and how to invoke the special process. For the sub-
  set of claimants for whom appeal to the Board was rele-
  vant, the government has not addressed the possibility of
  having channeled Board review of secrecy-constrained
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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 to-
  day’s review regime, the government has not addressed the
  ability of the reviewing tribunals outside VA, starting with
  the Veterans Court, to employ secrecy-protection measures
  that are commonly used in courts. Nor, finally, has the
  government addressed the possibility that some portions of
  the multi-level review system might be made available
  even if others cannot be.
        These possibilities are anything but theoretical. As the
  government here acknowledges, VA has in fact established
  just such a special mechanism for processing claims from
  veterans who served in the special forces—i.e., a system for
  processing claims based on injuries from service activities
  whose very existence must remain secret. See Sec’y En
  Banc Response Br. at 52–53 (citing U.S. Department of
  Veterans Affairs, Adjudication Procedures Manual, M21-1,
  Part VIII, Subpart iv, Chapter 9, Section A—Claims Based
  on Participation in Special Operations Incidents (last up-
  dated Dec. 27, 2021)). The government called attention to
  this process during its oral argument to the Supreme Court
  in Arellano. It explained that the special process—“for at
  least the cases of special operations”—begins with VA sub-
  mitting “what’s called a classified research request to the
  . . . central military records organization, which will then



       14 Today, the statute provides that members may be
  appointed by the Secretary, with presidential approval, on
  recommendation of the Board Chairman. 38 U.S.C.
  §§ 7101A (appointments), 7102(a) (assignment of matters).
  In 1970, the statute was similar: Members were appointed
  by the Administrator with presidential approval. 

(b) (1970); see also Exec. Order No. 6230, reprinted
  in 

, 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 re-
  gional office, okay, there is credible evidence supporting
  the claim or not.” Transcript of Oral Argument at 28–29,
  Arellano, 

 (No. 21-432).
      The government has not adequately justified a conclu-
  sion that it could not have established a similar procedure
  for Edgewood veterans. And when the government sug-
  gests that Mr. Taylor’s oath might not have actually barred
  claim-supporting communication with VA, see, e.g., Sec’y
  En Banc Response Br. at 49, it gives some support to the
  idea that the government’s interest in maintaining the se-
  crecy of Edgewood might well have been accommodated by
  such a procedure. In these circumstances, we conclude that
  the government has provided no meaningful showing that
  the oath was adequately tailored to achieve the govern-
  ment’s military-secrecy interest, and so the interference
  with Mr. Taylor’s right of access to VA for adjudication to
  vindicate his legal entitlement was undue. 15




      15  The government quotes Justice Thomas’s state-
  ment in concurrence in Christopher v. Harbury that he
  found “no basis in the Constitution for a ‘right of access to
  courts’ that effectively imposes an affirmative duty on
  [g]overnment officials either to disclose matters concerning
  national security or to provide information in response to
  informal requests.” Sec’y En Banc Response Br. at 59
  (quoting 

 (Thomas, J., concurring in the
  judgment)). Here, however, we conclude that the govern-
  ment has not shown that the right of access to the sole ad-
  judicatory system for vindicating the entitlement at issue
  would actually require disclosure of matters concerning na-
  tional security (or providing information in response to in-
  formal requests).
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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 uncon-
  stitutional to apply § 5110’s claim-filing effective-date lim-
  its to deny otherwise-awardable benefits for the period
  during which the government unconstitutionally denied
  Mr. Taylor access to the VA adjudicatory forum. Contrary
  to the government’s suggestion, the denial of his constitu-
  tional right of access for up to three and a half decades is
  remediable: Mr. Taylor has “identif[ied] a remedy that may
  be awarded as recompense here and not otherwise availa-
  ble in some suit that may yet be brought.” Christopher, 

. This court and the Veterans Court are statu-
  torily authorized, if the claim-filing effective-date limits of
  § 5110 are unconstitutional as applied here, to require de-
  termination of the effective date without regard to those
  limits. The normal remedial principle would give Mr. Tay-
  lor the effective date he would have had if no unconstitu-
  tional denial of access had occurred.
                                a
      Two well-established principles apply here. First, “[i]f
  an as-applied challenge is successful, the statute may not
  be applied to the challenger, but is otherwise enforceable.”
  Turtle Island Foods, SPC v. Thompson, 

, 700
  n.5 (8th Cir. 2021); see Fisher v. King, 

, 395
  n.4 (4th Cir. 2000) (same) (citing City of Lakewood v. Plain
  Dealer Publishing Co., 

, 758–59 (1988)); see
  also Ayotte v. Planned Parenthood of Northern New Eng-
  land, 

, 329 (2006) (“It is axiomatic that a ‘stat-
  ute may be invalid as applied to one state of facts and yet
  valid as applied to another.’” (quoting Dahnke-Walker Mill-
  ing Co. v. Bondurant, 

 (1921))); Troxel v.
  Granville, 

 (2000) (holding statute unconsti-
  tutional as applied); Palmer v. City of Euclid, 

 (1971) (same); U.S. Shoe Corp. v. United States, 

 (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, 

 (Fed. Cir. 1995) (hold-
  ing statute unconstitutional as applied). Second, “[t]he in-
  jured party is to be placed, as near as may be, in the
  situation he would have occupied if the wrong had not been
  committed.” Wicker, 

; see also United States
  v. Virginia, 

 (1996) (“A remedial decree
  . . . must be shaped to place persons unconstitutionally de-
  nied [a right] in ‘the position they would have occupied in
  the absence of [that constitutional violation].’” (quoting
  Milliken v. Bradley, 

 (1977))); Jenkins,
  

 (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, 

 (1974))); see
  Pirkl, 

.
       Those principles require that Mr. Taylor be given the
  effective date for his benefits, without regard to the claim-
  filing effective-date limits of § 5110, that he would have
  had in the absence of the government’s unconstitutional in-
  terference with his access to the VA adjudicatory system.
  This means that Mr. Taylor’s effective date should be the
  date that he met the substantive requirements for benefits,
  back as far as the date that he would have filed a claim for
  such benefits in the absence of the unconstitutional inter-
  ference (plus any further back-dating allowed by § 5110).
  This effective date might be as far back as September 7,
  1971, the day after his discharge, under 

(b)(1). And different periods prior to 2007 might call
  for different ratings if Mr. Taylor’s disability changed dur-
  ing that period in such a way that different ratings would
  have been applied over time had the government not
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  52                                     TAYLOR   v. MCDONOUGH



  unconstitutionally interfered with his access to the adjudi-
  catory system. 16
                                b
      Both this court and the Veterans Court have statutory
  authority to order such a remedy. It is “the very essence of
  judicial duty” that, “if both [a] law and the [C]onstitution
  apply to a particular case,” the court decides the case “con-
  formably to the [C]onstitution, disregarding the law.” Mar-
  bury, 

. “This approach derives from
  the Judiciary’s ‘negative power to disregard an unconstitu-
  tional enactment’ in resolving a legal dispute.” United
  States v. Arthrex, 

 (2021) (quoting
  Massachusetts v. Mellon, 

 (1923)).
       This court is authorized “to review and decide any chal-
  lenge to the validity of any statute,” 

(c),
  and to “decide all relevant questions of law, including in-
  terpreting constitutional and statutory provisions,” 

  § 7292(d)(1); see also id. § 7292(d)(2) (providing that
  “[e]xcept to the extent that an appeal under this chapter pre-
  sents a constitutional issue,” this court “may not review . . .
  a challenge to a law or regulation as applied to the facts of
  a particular case” (emphasis added)). Those provisions, as
  the government agrees, empower “this court [to] find some-
  thing unconstitutional as applied.” En Banc Oral Arg. at
  55:05–:15. And this court is empowered, if a Veterans
  Court decision “is not in accordance with law, to modify or
  reverse the decision of the [Veterans Court] or to remand
  the matter, as appropriate.” § 7292(e)(1). That power must
  include the power to state the remedial principles needed
  to give effect to an unconstitutionality ruling and the power



       16  The government has not argued, based on laches or
  otherwise, that Mr. Taylor delayed unduly in filing for ben-
  efits after getting a green light in 2006. He filed for bene-
  fits promptly, on February 22, 2007.
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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 deci-
  sions, findings . . . , conclusions, rules, and regulations is-
  sued or adopted by the Secretary [or by] the Board . . .
  found to be . . . contrary to constitutional right.” 

(a)(3)(B). This power readily encompasses the au-
  thority to adjudge that the statute applied by the Secretary
  or Board, in this case § 5110, is unconstitutional as applied.
  See Oklahoma v. U.S. Civil Service Commission, 

, 138 n.13 (1947) (stating that the Administrative Pro-
  cedure Act’s (APA’s) judicial review provision codified at 5
  U.S.C. § 706—which contains the identical phrase “con-
  trary to constitutional right” found in § 7261—includes “is-
  sues of the constitutionality of [the] enactments and action
  thereunder”). And as the government recently explained
  to the Supreme Court in discussing the materially identical
  provisions of the APA, see 

(2)(B), “set aside,”
  in an ordinary meaning, is what court do when they
  properly “disregard unconstitutional statutes when decid-
  ing the cases before them.” Brief for Petitioner United
  States at 41, United States v. Texas, No. 22-58 (U.S. Sept.
  12, 2022), 

. 17
      Thus, 

 and the principles traceable to
  Marbury empower this court to hold § 5110 unconstitu-
  tional as applied and to disregard that statute in construct-
  ing a remedy. Likewise, § 7261(a)(3)(B) empowers the
  Veterans Court, for the reasons that we have explained, to
  carry out our remedy—i.e., to compel VA to disregard



      17   That authority is independent of whether, as the
  government argued in Texas, the APA provision is limited
  so that it does not extend to vacating a regulation, a matter
  not at issue in the present case.
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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 Appropri-
  ations Clause) considerations stand in the way of awarding
  benefits contrary to § 5110’s limits even when such limits
  are unconstitutional as applied. Sec’y En Banc Response
  Br. at 9, 42, 55, 57. It cites no support for that suggestion
  but merely refers back to the Richmond decision. And we
  reject the suggestion.
      Richmond addressed only the use of a non-constitu-
  tional doctrine to override statutory limits on expenditures.
  It did not involve or address a context in which “a court
  orders expenditures for constitutional reasons.” Rochester
  Pure Waters District v. Environmental Protection Agency,
  

, 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, 

, whereas Richmond involved the quite different
  principle that the non-constitutional judicial doctrine of eq-
  uitable estoppel does not prevail over a constitutional stat-
  ute limiting payments from the public fisc.
      The government points to no authority for the notion
  that a court is constitutionally forbidden to order the fed-
  eral government to pay benefits to individuals, as a rem-
  edy, after finding unconstitutional a statutory limitation
  on payment of those benefits to those individuals. And the
  Supreme Court has approved of just such remedies, with-
  out suggesting a constitutional impediment. See, e.g., Ses-
  sions v. Morales-Santana, 

 (2017); Califano
  v. Westcott, 

, 89–93 (1979); Califano v. Goldfarb,
  

, 202–04 (1977) (plurality opinion); Jimenez v.
  Weinberger, 

, 637–38 (1974); U.S. Department
  of Agriculture v. Moreno, 

, 537–38 (1973);
  Frontiero v. Richardson, 

, 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 stat-
  ute’s provisions appropriate benefits to certain recipients
  but not to others in violation of the Constitution—“there
  exist two remedial alternatives: a court may either declare
  [the statute] a nullity [by] order[ing] that its benefits not
  extend to the class that the legislature intended to benefit,
  or it may extend the coverage of the statute to include those
  who are aggrieved by the exclusion.” Westcott, 

 (quoting Welsh v. United States, 

  (1970) (Harlan, J., concurring)). And the Court has made
  clear that extension is in fact the preferred course: “Ordi-
  narily, we have reiterated, ‘extension, rather than nullifi-
  cation, is the proper course.’” Sessions, 

  (quoting Westcott, 

); see also Barr v. American
  Association of Political Consultants, Inc., 

 (2020) (plurality opinion) (“The Court’s precedents re-
  flect th[e] preference for extension rather than nullifica-
  tion.” (collecting cases)). If the extension is proper under
  established remedial principles, 18 then there is no consti-
  tutional obstacle to ordering monetary payments contrary
  to an unconstitutional statutory limit.
                               C
      For the foregoing reasons, we conclude that § 5110 is
  unconstitutional as applied to Mr. Taylor to the extent that
  applying its provisions would deny Mr. Taylor the effective
  date of benefits that he would have had in the absence of
  the government’s unconstitutional interference with his ac-
  cess to the VA adjudicatory system for vindicating his


      18   The Court’s inquiry into what “the legislature
  would have willed had it been apprised of the constitu-
  tional infirmity,” Levin v. Commerce Energy, Inc., 

 (2010); see Sessions, 

, fits the gen-
  eral remedial inquiry into what the claimant’s position
  would have been had there been no violation.
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  56                                     TAYLOR   v. MCDONOUGH



  entitlement. We are not persuaded by the dissent to con-
  clude otherwise.

      The dissent suggests that there is or should be a cate-
  gorical exclusion of national-security government actions
  from the constitutional right of access. Dissent at 3–6. We
  see no logical or doctrinal basis for such an exclusion, for
  which the government has not presented any argument.
  The Supreme Court’s decision in Christopher points the
  other way. As discussed above, although that case itself
  involved national-security government action, the Court
  applied right-of-access standards rather than declare the
  right categorically unavailable. And the Supreme Court
  has elsewhere indicated that government action involving
  national security is subject to legal standards protecting
  access to courts. See supra p. 47 (discussing General Dy-
  namics).

      What is required in this area is not categorical exclu-
  sion but application of the doctrinally required standards
  with the caution specifically required when national-secu-
  rity actions are at issue, as indicated in the authorities dis-
  cussed in the dissent at 11–12. We have exercised that
  caution. But the government has fallen far short under
  those standards. The government has effectively done
  nothing more than make an unelaborated invocation of na-
  tional security, and it has provided no meaningful explana-
  tion of why it could not have provided a secrecy-preserving
  VA route for veterans like Mr. Taylor when it has provided
  such a route in a closely related context where military se-
  crecy is at stake. All we conclude is that this is not enough.

      The dissent also suggests that there is or should be a
  categorical exclusion from the right of access for govern-
  ment actions that leave any forward-looking cause of action
  available even if the actions unjustifiably deprive the indi-
  vidual of a legal entitlement for an extended period—here,
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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-look-
  ing category of right-of-access violations to cover govern-
  ment actions that “caused . . . the loss of an opportunity to
  seek some particular order or relief.” 

 (em-
  phasis added).

      Seemingly with reference to military-secrecy oaths in
  general and standing alone, the dissent states that we have
  reached our conclusion “without any explanation that such
  an oath is ‘undue.’” Dissent at 10. But the subject of this
  case is the particular oath demanded without accompani-
  ment of a VA route for claim presentation and proof to vin-
  dicate an undisputed legal entitlement (based on readily
  foreseeable harm). We explain why the resulting interfer-
  ence with access is undue: The government has not pro-
  vided any meaningful justification for the access
  foreclosure in the face of VA’s provision of a VA route for
  claim presentation and proof in facially comparable cir-
  cumstances involving national-security secrecy.

      Two final points. Contrary to the expression of concern
  in the dissent at 4 n.2, we do not suggest, what would be
  topsy turvy, that the eventual declassification of the Edge-
  wood program is itself part of the unconstitutional denial
  of access. See supra p. 44 (stating that the access “denial
  existed independently of the fact that secrecy was ulti-
  mately lifted”). And the dissent is contrary to the basic hi-
  erarchy of legal authority to the extent that it suggests that
  the Constitution is inapplicable if a substantive equitable
  doctrine is also inapplicable. Dissent at 17.
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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—im-
  position of the secrecy oath with no VA route for claim
  presentation and proof to vindicate the benefits entitle-
  ment. We reverse the decision of the Veterans Court and
  remand for expeditious proceedings to give Mr. Taylor re-
  lief pursuant to this holding.
       Costs to Mr. Taylor.
                REVERSED AND REMANDED
Case: 19-2211    Document: 104     Page: 59    Filed: 06/15/2023




    United States Court of Appeals
        for the Federal Circuit
                   ______________________

                     BRUCE R. TAYLOR,
                     Claimant-Appellant

                              v.

          DENIS MCDONOUGH, SECRETARY OF
                 VETERANS AFFAIRS,
                  Respondent-Appellee
                 ______________________

                         2019-2211
                   ______________________

      Appeal from the United States Court of Appeals for
  Veterans Claims in No. 17-2390, Judge Joseph L. Falvey
  Jr., Judge William S. Greenberg, Judge Amanda L.
  Meredith.
                  ______________________

  DYK, Circuit Judge, concurring in judgment, with whom
  NEWMAN, REYNA, and WALLACH, Circuit Judges, join, and
  with whom STARK, Circuit Judge, joins as to Parts I, II, and
  V.
      We agree with the result reached by the plurality but
  write separately because we think this case should
  properly be resolved on a non-constitutional ground of
  equitable estoppel. 1 We have an obligation to avoid

      1  We refer to the portion of Judge Taranto’s opinion
  that rejects the approach of this concurrence as a majority
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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, 

 (2014).       This is such a case.       The
  government’s conduct equitably estops it from limiting Mr.
  Taylor’s recovery under 

(a), and it is
  unnecessary to partially invalidate a federal statute to
  award relief to Mr. Taylor. This equitable estoppel ground
  is narrow, while the plurality’s due process holding is of
  uncertain scope and future application.
                                I
      As the majority describes, Mr. Taylor participated as a
  volunteer in a U.S. military program at the Edgewood
  Arsenal during September and October 1969 to test
  chemical weapons, 2 and as a result suffered service-
  connected disabilities that entitled him to veterans’
  benefits. Although discharged on September 6, 1971,
  suffering from disabilities and entitled to benefits as of that
  date, he did not apply for benefits until February 2007. Mr.
  Taylor waited to apply because his secrecy oath precluded
  him from providing information about his participation in
  the Edgewood program, and he apparently believed those
  disclosures were necessary to apply for benefits. Indeed, as
  discussed below, the application form for disability benefits
  at the time of his discharge required disclosure of the

  opinion. We refer to the portion of Judge Taranto’s opinion
  for a plurality of the court addressing the due process right
  of access as the plurality.
       2 The substance or substances to which Mr. Taylor

  was exposed appear to have been nerve agents. Their use
  in wartime was unquestionably illegal under existing
  international law in 1968 (e.g., the 1925 Geneva Gas
  Protocol). For a comprehensive history and analysis of
  these weapons, see Evan J. Wallach, A Tiny Problem with
  Huge Implications—Nanotech Agents as Enablers or
  Substitutes for Banned Chemical Weapons: Is a New Treaty
  Needed?, 33 Fordham Int’l L.J. 858 (2009).
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      TAYLOR v. MCDONOUGH
                                                              3


  nature of his disability despite the government’s contention
  that Mr. Taylor could have filed a skeletal claim without
  disclosing confidential information. In June 2006, the
  government informed Mr. Taylor that he was free to
  disclose his Edgewood-related disabilities, and then in
  February 2007 he did so.
      The Board of Veterans Appeals (“Board”) found that
  under the statute he could not receive benefits before 2007
  because § 5110(a)(1) provides that “the effective date of an
  award based on an initial claim, or a supplemental claim,
  of compensation . . . shall be fixed in accordance with the
  facts found, but shall not be earlier than the date of receipt
  of application therefor.” Under that provision, the Board
  concluded that Mr. Taylor’s benefits were limited to the
  date of the receipt of his application in February 2007.
                                II
      Before the en banc court, Mr. Taylor contended that the
  government could not assert the time bar of § 5110(a) to
  prevent an earlier effective date under theories of equitable
  estoppel, equitable tolling, and constitutional due process.
  In a related case, Arellano v. McDonough, the Supreme
  Court held that equitable tolling was not available for
  § 5110, but left open the possibility that “other equitable
  doctrines, such as waiver, forfeiture, and estoppel” apply to
  the provision. 

, 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, 

 (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, 

 (1934)
  ((quoting Dolan v. Rodgers, 

 (N.Y. 1896);
  Imperator Realty Co. v. Tull, 

 (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.” 

 (1984). The
  Supreme Court adopted the approach to equitable estoppel
  of the Restatement (Second) of Torts. See 

.
      Under the Restatement standard, estoppel can provide
  relief   when      “one     person    makes      a    definite
  misrepresentation of fact to another person,” 

 (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., 

 (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, 

, 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, 

 (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, 

  (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.” 

. 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. 

 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. 

 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 

. The
  Appropriations Clause of the Constitution bars
  “unauthorized oral or written statements to citizens . . .
  obligat[ing] the Treasury for the payment of funds.” 

.
      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, 

  (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, 

 (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, 

 (1985); see An
  Act to Consolidate into One Act All of the Laws
  Administered by the Veterans’ Administration, and for
  Other Purposes, 

 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, 

 (Fed. Cir. 2013); Nixon v. OPM, 

 (Fed.
  Cir. 2006); Hernandez v. OPM, 

 (Fed. Cir.
  2006); Simpson v. OPM, 

 (Fed. Cir. 2003);
  Wood v. OPM, 

 (Fed. Cir. 2001); Vallee v.
  OPM, 

 (Fed. Cir. 1995); Brush v. OPM, 

 (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, 

, Dachniwskyj v.
  OPM, 

 (Fed. Cir. 2013), and Johnston v. OPM,
  

, 1343 (Fed. Cir.), opinion modified on
  reconsideration, 

 (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, 

 (Fed. Cir. 1987); Barber v.
  United States, 

 (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 

(b).
  Johnston v. OPM, 

, 1343 (Fed. Cir.), opinion
  modified on reconsideration, 

 (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.” 

. 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, 

  (quoting United States v. Menasche, 

, 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 

  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 (codified as
  amended at 

(a)(1), 6303(c)(1)(A)); see also
  38 U.S.C. §§ 240–41 (1970) (current version at 

).
      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, 

;
  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 

 (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, 

  (Fed. Cir. 1999), and Andrews v. Principi, 

 (Fed. Cir. 2003). In those cases, we held that § 6303 8

      DOD held all the cards necessary to make a claim for
      [Disability Compensation Benefits] stemming from the
      Edgewood Project. This oath kept Mr. Taylor quiet for
      decades.

  En Banc J.A. 109–110.
      In his briefing before a panel of this court, Mr. Taylor
  argued that “the U.S. Army[] injured Mr. Taylor while he
  was on active duty after compelling him to sign a secrecy
  agreement. This secrecy agreement effectively precluded
  him from filing an application for service-connected
  compensation for that injury.” Appellant’s Reply Br. 7.
      8 Rodriguez and Andrews discuss 

,

  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 

. And in Andrews, apparently a VA employee failed
  to notify a veteran at the time of discharge about her
  eligibility for benefits. See 

.
      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., 

 (Fed. Cir. 2013)
  (alterations in original) (quoting United States v. Aguon,
  

, 1167 n. 5 (9th Cir. 1988) (en banc), rev’d on
  other grounds, Evans v. United States, 

  (1992)); see 

 (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, 

.
       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, 

, 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,” 

(a)(2) (emphasis added).
  See Olmstead v. L.C. ex rel. Zimring, 

  (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, 

 (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, 

 (Fed. Cir. 2022) (“shall” is “mandatory
  language”); Piano Factory Grp., Inc. v. Schiedmayer
  Celesta GmbH, 

 (Fed. Cir. 2021) (same).
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      TAYLOR v. MCDONOUGH
                                                            15


  Inc. v. Andrews, 

 (2001) (citation omitted),
  and are directed to “give effect to every clause and word”
  Congress has enacted, Setser v. United States, 

 (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, 

 (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.” 

, 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, 

 (2021) (citation omitted).
  The reenactment canon is premised on Congress knowingly
  adopting a judicial interpretation, see Food Mktg. Inst. v.
  Argus Leader Media, 

 (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 

, 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, 

,
  52,457 (Sept. 6, 2006) (codified at 

(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, 

 (government counsel stating that
  “the agency itself has taken a couple of steps to handle
  cases like” the Edgewood veterans); 

 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,
  

. Importantly, well aware of this case on the
  horizon, see Transcript of Oral Argument at 28:18–24,
  Arellano, 

, 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.
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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. Mere-
  dith.
                   ______________________

  HUGHES, Circuit Judge, dissenting in part and dissenting
  from the judgment, with whom LOURIE, Circuit Judge,
  joins.
       The government has treated Bruce Taylor and other
  Edgewood program volunteers unfairly, subjecting them to
  harmful experiments and then failing to provide the most
  basic form of redress for the harm that the government in-
  flicted. Congress can provide, and should have immediately
  provided, a remedy to Mr. Taylor and the other Edgewood
  volunteers by passing a statute that, at a minimum, allows
  the Secretary to award Edgewood volunteers an effective
  date corresponding to each veteran’s date of discharge. I
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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 

 to grant
  Mr. Taylor an earlier effective date, and why there is no
  statutory remedy for Mr. Taylor under 

.
      But having exhausted these first two theories, Part V
  of Judge Taranto’s opinion (“the plurality”) finds a right of
  access violation in Mr. Taylor’s case to construct a remedy.
  In doing so, the plurality expands the right of access prec-
  edent in a way that infringes on the Executive’s broad na-
  tional security powers. Because the government did not
  violate Mr. Taylor’s right of access and because, even if it
  had, our court has no equitable or statutory authority to
  remedy such a violation, I respectfully dissent from Parts
  V–VI and from the judgment.
                                I
      When the right of access doctrine is properly applied to
  Mr. Taylor’s case, it is clear that the government’s imposi-
  tion of a secrecy oath was entirely within its constitutional
  authority and obligation. There can be little dispute that
  the Executive Branch has the broad authority to protect
  national security information and to impose prohibitions
  on the disclosure of that information. Trump v. Hawaii,
  

 (2018) (recognizing the Executive’s
  broad authority over “sensitive and weighty interests of na-
  tional security and foreign affairs” (internal quotation
  mark omitted)). And once it has done so, the Judiciary has
  no business second-guessing the Executive’s determina-
  tions. 

 (“[W]e cannot substitute our own assessment for
  the Executive’s predictive judgments on [matters of na-
  tional security], all of which are delicate, complex, and in-
  volve large elements of prophecy.” (internal quotation
  marks omitted)).
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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 af-
  fairs. And there is good reason for that—the right of access
  cases require the court to subject the governmental deci-
  sion at issue to strict scrutiny, i.e., whether the government
  has a compelling interest and whether it was narrowly tai-
  lored. But such a searching inquiry is incompatible with
  the Executive’s broad authority in national security affairs.
  And even if the doctrine could be expanded to cover
  Mr. Taylor’s case, any finding that the government unduly
  interfered with his right of access to the VA would require
  us to second-guess the Executive’s national security deci-
  sion that the Edgewood program needed to be kept confi-
  dential even from the VA.
                                1
      The plurality assumes, without explanation, that the
  right of access line of cases, which deal with affirmative
  acts of government misconduct, can simply be extended to
  government decisions involving national security. Plural-
  ity Op. at V.B.1. But that assumption is wrong. There is no
  precedent for applying the right of access doctrine to deci-
  sions taken by the government in furtherance of its na-
  tional security interest, and I disagree with the plurality’s
  unsupported attempt to extend the doctrine here.
      The government’s act of securing a secrecy oath in or-
  der to protect delicate national security information is
  simply not the type of affirmative misconduct that occurred
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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 il-
  legal or improper action. 2



      1    It is important to separate the government’s insti-
  tution of the Edgewood program from the specific actions
  that prevented Mr. Taylor and other Edgewood veterans
  from accessing the VA. Any wrong that the government
  committed stems from the government establishing and
  overseeing the Edgewood program, not the secrecy oath.
  There is no question that, in retrospect, the Edgewood pro-
  gram appears excessive and unwarranted, but it is not cog-
  nizable under a right of access theory because the program
  itself did not prevent Mr. Taylor from accessing the VA. Ra-
  ther, the only government act that prevented Mr. Taylor
  from accessing the VA was when it instituted the secrecy
  oath that prohibited him from discussing his involvement
  in the Edgewood program.
      2    The plurality opinion raises the question of
  whether the right of access violation stems from the secrecy
  oath itself, or from the government’s decision to declassify
  the Edgewood program without a statutory remedy estab-
  lishing an earlier effective date for a VA claim. The plural-
  ity opinion seems to suggest that it was the act of
  declassifying the Edgewood program, thereby allowing Mr.
  Taylor and other similarly situated veterans to eventually
  pursue claims, that somehow contributed to an act of gov-
  ernment misconduct because it was this act of declassifica-
  tion that ultimately opened the government to increased
  liability. I am greatly concerned by that implication be-
  cause that could discourage the government from declassi-
  fying programs in the future for fear of similar claims.
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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, 

  (1996) (involving allegations by a group of inmates that
  prison officials denied them physical access to the law li-
  brary and refused translation assistance to non-English-
  speaking inmates); Bounds v. Smith, 

, 818–20
  (1977) (involving similar allegations about prison officials
  denying inmates physical access to the law library); Silva
  v. Di Vittorio, 

, 1095–96 (9th Cir. 2011) (in-
  volving allegations that prison officials needlessly trans-
  ferred Mr. Silva to different facilities and destroyed certain
  legal documents), overruled on other grounds by Richey v.
  Dahne, 

 (9th Cir. 2015). Other cases
  relied on by the plurality involve equally egregious allega-
  tions of government misconduct that directly impeded
  plaintiffs’ right of access to the courts, such as police mis-
  conduct directed at claimants or employees. Borough of
  Duryea v. Guarnieri, 

, 383–84 (2011) (involv-
  ing allegation of denial of overtime and punitive perfor-
  mance directives in response to union grievance);
  Tennessee v. Lane, 

 (2004) (involving alle-
  gations that a state courthouse refused to accommodate a
  claimant’s mobility disability and forced him to crawl up
  the courthouse stairs); Swekel v. City of River Rouge, 

 (6th Cir. 1997) (involving allegations that
  police precinct covered up evidence from a car accident in-
  volving the son of a police officer). And even in Christopher
  v. Harbury, a case that the plurality heavily relies on, the
  underlying government misconduct involved allegations
  that the government made affirmative statements and
  omissions that misled Ms. Harbury about whether her hus-
  band was still alive after he had been captured, detained,
  tortured, and used as an informant by the CIA. 536 U.S.
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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 affirm-
  ative misconduct that courts have found contribute to vio-
  lating a plaintiff’s right of access. And the plurality does
  not explain why establishing a secrecy oath is equivalent
  to the types of government misconduct that took place in
  the cases it relies on. Nor can it, because any finding that
  a secrecy oath, elicited to protect delicate national security
  information, constitutes government misconduct would re-
  quire courts to question the Executive’s broad authority
  over matters concerning national security. The Supreme
  Court has made it clear that judicial bodies should not sub-
  stitute their judgment for that of the Executive in matters
  of national security. Hawaii, 

. But by as-
  suming that the secrecy oath constitutes government mis-
  conduct, the plurality does just that. Because a secrecy
  oath does not constitute the kind of government miscon-
  duct contemplated in the right of access line of cases, the
  plurality’s extension of the right of access doctrine to
  Mr. Taylor’s case is improper. A decision rooted in national
  security policy, such as the secrecy oath here, should not be
  the basis for a denial of access claim.
      Yet another reason the right of access doctrine should
  not extend to the facts of Mr. Taylor’s case is that, unlike


      3    It is also worth mentioning that the Supreme Court
  did not even find a right of access violation despite the se-
  rious allegations of misconduct. Christopher, 

 (“Harbury’s complaint did not come even close to stat-
  ing 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 rem-
  edy that may be awarded as recompense but not otherwise
  available in some suit that may yet be brought.” Plurality
  Op. at 35 (quoting Christopher, 

). But just
  because Mr. Taylor requested an earlier effective date to
  expand his award of benefits does not make his request the
  appropriate remedy. None of the right of access cases the
  plurality cites grant relief that involves expanding the
  amount of damages or benefits available to a plaintiff de-
  spite a potential right of access violation. Of the few cases
  the plurality cites where courts granted some sort of rem-
  edy in light of a potential right of access violation, the rem-
  edy was ordinarily allowing the plaintiff’s claim to go
  forward at all. E.g., Lane, 

, 533–34 (affirm-
  ing the denial of the government’s motion to dismiss a
  claim under the Americans with Disabilities Act);
  Ringgold–Lockhart v. Cnty. of Los Angeles, 

 (9th Cir. 2014) (vacating and remanding the district
  court’s grant of the government’s motion to dismiss in light
  of a potential right of access violation). But none of these
  cases involved expanding the amount of benefits or dam-
  ages available to the plaintiff. This further underscores
  how the remedy granted by the plurality is unsupported by
  any statutory or legal authority.
       Furthermore, the effective-date limitations of § 5110 do
  nothing more than set a temporal limit on Mr. Taylor’s ben-
  efits. They do not deny him administrative access. In a
  sense, § 5110’s effective-date limitations are like a statute
  of limitations. A statute of limitations might, as its name
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  8                                        TAYLOR   v. MCDONOUGH



  implies, limit a plaintiff’s remedy by preventing the plain-
  tiff from raising untimely claims. But we would never char-
  acterize the applicable statute of limitations as denying
  that plaintiff access to the courts. Rather, we would ana-
  lyze whether “the defendant[’s] actions foreclosed [the
  plaintiff] from filing suit in . . . court or rendered ineffective
  any . . . court remedy she previously may have had,” and
  then we would “address [any] pre-filing abuses by tolling
  the statute of limitations.” Swekel, 119 F.3d at 1263–64.
      Thus, I would find that the right of access doctrine does
  not apply to Mr. Taylor’s case, and therefore I would not
  find a right of access violation here.
                                  2
      For many of the same reasons discussed above, I would
  also find that the right of access doctrine is inapplicable
  here because the government’s actions did not constitute
  active, undue interference, as required by the right of ac-
  cess line of cases that the plurality relies on. Even if the
  plurality is correct that a national security determination
  can form the basis for a right of access claim, a plaintiff’s
  right of access is not unconditional. To violate a plaintiff’s
  right of access, the government must have engaged in ac-
  tive, undue interference that deliberately shuts out the
  plaintiff from an institution. See Christopher, 536 U.S. at
  414–15. 4 I would conclude that the government did not



      4    The active, undue interference standard is typi-
  cally used in incarcerated-persons cases, as articulated by
  the Ninth Circuit. Claimant-Appellant’s En Banc Br. 55
  (citing Silva, 

). I analyze this standard be-
  cause it is the most coherent test that the parties present,
  and both parties believe that this standard is not meaning-
  fully different than the tests used in non-incarcerated-per-
  sons cases. Claimant-Appellant’s En Banc Br. 55;
  Respondent-Appellee’s En Banc Br. 46–47, 47 n.8.
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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 re-
  lies.
      Mr. Taylor asserts that the government engaged in ac-
  tive, undue interference because the government denied
  him an opportunity to present his disability claim from
  September 1971, the date of his discharge, to February
  2006, the date he was allowed to disclose his participation
  in the Edgewood program. Claimant-Appellant’s En Banc
  Br. 49–50, 56. Mr. Taylor argues that “even a delay of ac-
  cess[] may constitute a constitutional deprivation.” Claim-
  ant-Appellant’s En Banc Br. 56–57 (quoting Jackson v.
  Procunier, 

 (5th Cir. 1986)). The govern-
  ment responds that any interference was not “undue” be-
  cause the government was “protecting classified
  information.” Respondent-Appellee’s En Banc Br. 52. Ac-
  cording to the government, “the [secrecy] oath was not de-
  signed to preclude Mr. Taylor from obtaining benefits, but
  rather to protect classified information.” Respondent-Ap-
  pellee’s En Banc Br. 54.
       I do not deny that the secrecy oath prohibited Mr. Tay-
  lor from filing his claim earlier than 2006, and that there-
  fore, the secrecy oath interfered with Mr. Taylor’s right of
  access to adjudication. But even if the government did in-
  terfere with Mr. Taylor’s ability to access the VA, that in-
  terference was not “undue” because establishing a secrecy
  oath cannot in any way be considered illegal or improper. I
  acknowledge that the relevant cases have not sufficiently
  delineated the boundaries of what actions are “undue” in
  the context of right of access cases. But under its plain
  meaning, I do not think the government’s actions were
  “[e]xcessive or unwarranted.” Undue, BLACK’S LAW
  DICTIONARY (11th ed. 2019). The plurality does not explain
  why the secrecy oath required of Edgewood veterans im-
  properly exceeds the Executive’s broad authority over na-
  tional security concerns. The plurality chastises the
  government for securing a secrecy oath “backed by court-
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  10                                     TAYLOR   v. MCDONOUGH



  martial and prosecution threats,” Plurality Op. at 37, and
  merely assumes without any explanation that such an oath
  is “undue.” But eliciting a secrecy oath from Edgewood vet-
  erans is entirely the type of delicate national security deci-
  sion that lies firmly within the purview of the Executive; it
  is not our place to second-guess that determination. As a
  judicial body, we lack the full scope of information and the
  competence to question the propriety of the secrecy oath—
  as the plurality admits, we do not even have the text of the
  secrecy oath that Mr. Taylor signed before us. Plurality Op.
  at 7. To then conclude that the secrecy oath constitutes “un-
  due” interference is speculative and an overreach of our ju-
  dicial decision-making. Thus, I would conclude that the
  government’s adoption of a secrecy oath was not undue in-
  terference and accordingly did not violate Mr. Taylor’s
  right of access to the VA.
                                B
      Putting aside whether the right of access doctrine ap-
  plies in the first place, the plurality also argues that the
  government’s actions do not pass muster under the strict
  scrutiny standard because the secrecy oath was not nar-
  rowly tailored to serve its compelling interest in national
  security. Plurality Op. at 45–49. For the reasons discussed
  above, I do not think we should reach the question of
  whether the government’s actions pass strict scrutiny be-
  cause the right of access theory should not be extended to
  national security cases such as Mr. Taylor’s. But even if the
  plurality is correct that the government’s actions should be
  subject to strict scrutiny because of the fundamental right
  to access the courts, courts have also acknowledged that
  compelling state interests can justify interfering with a
  claimant’s right of access. See Ryland v. Shapiro, 

 (5th Cir. 1983). Accordingly, I further disagree
  with the plurality that the secrecy oath constituted “un-
  due” interference with Mr. Taylor’s right of access because
  the government’s actions here are not unconstitutional
  even under a strict scrutiny standard.
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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, 

 (1988); see also In re Nat’l Sec. Letter, 

, 1072 (9th Cir. 2022). In particular, “the protec-
  tion of classified information must be committed to the
  broad discretion of the agency responsible, and this must
  include broad discretion to determine who may have access
  to it.” Egan, 

. Accordingly, “courts tradition-
  ally have been reluctant to intrude upon the authority of
  the Executive in military and national security affairs.” 

  at 530 (citing cases); see United States v. Zubaydah, 

, 967 (2022) (reiterating that courts should not in-
  terfere with the “authority of the Executive in military and
  national security affairs”). Furthermore, while agency ac-
  tions are presumptively reviewable, this presumption
  “runs aground when it encounters concerns of national se-
  curity.” El-Ganayni v. U.S. Dep’t of Energy, 

 (3d Cir. 2010) (quoting Egan, 

). And
  most importantly, the courts “cannot substitute [their] own
  assessment for the Executive’s predictive judgments” on
  matters of national security. Hawaii, 

; see
  also Int’l Refugee Assistance Prog. v. Trump, 

 (4th Cir. 2020).
      However horrible the Edgewood program may appear
  to have been in retrospect, at the time the government in-
  stituted a secrecy oath for participants, it implicated deli-
  cate national security concerns, and the government
  asserts that it “has a compelling interest in protecting . . .
  the secrecy of information important to our national secu-
  rity” by requiring participants to sign secrecy oaths. Re-
  spondent-Appellee’s En Banc Br. 58–59 (quoting Snepp v.
  United States, 

, 509 n.3 (1980)). The govern-
  ment easily meets the compelling interest prong of the
  strict scrutiny test, and the plurality does not deny this.
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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 fur-
  thers a compelling government interest. See In re Nat’l Sec.
  Letter, 33 F. 4th at 1073. The plurality suggests that the
  government could have provided a more limited secrecy
  oath that would have provided Edgewood veterans with an
  adjudication while simultaneously maintaining military
  secrecy. Plurality Op. at 47–48. While it may have been
  theoretically possible to set up such a system, that is not
  the correct question. In re Nat’l Sec. Letter, 33 F. 4th at
  1073 (noting that strict scrutiny requires that a restriction
  “be narrowly tailored, not that it be perfectly tailored” and
  that courts “should decline to wade into the swamp of cali-
  brating the individual mechanisms of a restriction”)
  (cleaned up). As the plurality observes and as the govern-
  ment acknowledges, there are other instances of benefits
  programs that involved classified information. Plurality
  Op. at 48–49. But the plurality’s reference to these other
  benefits programs presupposes that the national security
  concerns applicable to Edgewood are identical to those
  raised in the other programs. It also assumes that the gov-
  ernment had the ability to set up similar programs back in
  1971. But we have no adequate basis to make those deter-
  minations. Just because the government has allowed clas-
  sified information to be used in some administrative
  benefits programs does not mean the government is com-
  pelled to do so—or even able to do so—in all cases. Presum-
  ably, there is some information so sensitive that the
  government could decide the risk of exposure is so great
  that it cannot be shared outside the specific program, even
  to the VA.
      Furthermore, the plurality’s analysis implies that, be-
  fore the government takes any action to control the dissem-
  ination of information in furtherance of its national
  security interests, it must have the foresight to predict
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  TAYLOR   v. MCDONOUGH                                      13



  whether and how that information might need to be dis-
  closed in order to access benefits and services from any gov-
  ernment agency. This is an extraordinary burden to place
  on the Executive and on any agencies involved in military
  operations. Harbury, 536 U.S. at 422–23 (Thomas, J. con-
  curring) (“I find no basis in the Constitution for a ‘right of
  access to courts’ that effectively imposes an affirmative
  duty on Government officials . . . to disclose matters con-
  cerning national security[.]”).
       In this case, the government made the choice to impose
  a restrictive secrecy oath. I see nothing in that choice that
  was beyond its authority and no reason for us to second
  guess that choice. The plurality’s conclusion that the gov-
  ernment could have adopted less-restrictive measures than
  the secrecy oath as it was provided to Mr. Taylor is based
  on nothing more than speculation and hindsight. By deter-
  mining that the government could have structured the se-
  crecy oath in such a way as to allow veterans to disclose the
  nature of the Edgewood program to the VA, the plurality is
  acting in place of the Executive and questioning the gov-
  ernment’s determination that information about the Edge-
  wood program could not be disclosed to other government
  agencies without compromising national security. This
  type of substituted judgment by a judicial forum is pre-
  cisely what the Supreme Court and other courts have said
  is inappropriate. E.g., Hawaii, 

. Instead,
  I would defer to the government’s assessment that prohib-
  iting Edgewood volunteers from disclosing their involve-
  ment in the program to the VA was necessary for national
  security reasons, and I would conclude that the govern-
  ment passes strict scrutiny by raising a compelling govern-
  mental interest and by narrowly tailoring the adoption of a
  secrecy oath to furthering the compelling governmental in-
  terest.
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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 inter-
  fering government action that results in an unavailable or
  incomplete remedy. The court will then use a statutory or
  equitable power to grant the plaintiff a cause of action. But
  that it not what the plurality does here. Instead, the plu-
  rality ignores the fact that Mr. Taylor did, in fact, have ac-
  cess to the adjudicatory system of the VA, and disregards
  statutory authority by expanding the time frame that his
  claim covers, thereby expanding his benefits. In my opin-
  ion, we do not have any authority to grant this type of un-
  precedented remedy.
       Ordinarily, when courts determine that the govern-
  ment has unduly interfered with a plaintiff’s right of access
  to adjudication, they grant a remedy that essentially re-es-
  tablishes the plaintiff’s right of access to courts. Normally,
  that remedy is granting the plaintiff a cause of action to
  bring their case. For example, in Delew v. Wagner, the
  Ninth Circuit determined that “[t]he Delews have indeed
  alleged a constitutional violation, namely, that the defend-
  ants violated the Delews’ right of meaningful access to the
  courts by covering up the true facts surrounding Erin Rae
  Delew’s death.” 

, 1222 (9th Cir. 1998). Iden-
  tifying a possible interfering government action, the Ninth
  Circuit turned to the appropriate statutory remedy and
  concluded that “the Delews’ complaint alleges a cognizable
  claim under” 

, 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, 

 (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 

(d)(1)(B), which extends a limitations
  period when a state action unconstitutionally impedes a
  habeas-corpus applicant from filing an application—or un-
  der a court’s equitable powers like equitable tolling.
  Whalem/Hunt v. Early, 

 (9th Cir.
  2000); see also Swekel, 

 (“In most in-
  stances, state courts can address pre-filing [right of access]
  abuses by tolling the statute of limitations or allowing for
  a ‘spoliation of evidence’ lawsuit.”).
      But here, the plurality deviates from how courts have
  ordinarily remedied violations of the right of access to
  courts, as I discussed supra at I.A.2. In my opinion, this
  deviation results from the fact that, unlike in other right of
  access cases, Mr. Taylor did ultimately access the VA and
  did receive benefits precisely in accordance with § 5110.
  But because the benefits Mr. Taylor received were limited
  by the secrecy oath, the plurality concludes that § 5110 is
  unconstitutional as applied to Mr. Taylor, and grants
  Mr. Taylor an earlier effective date. That decision lies far
  outside our judicial authority because no statute or other
  legal authority allows the Veterans Court or this court to
  grant Mr. Taylor an earlier effective date.
       The plurality erroneously relies on the Veterans
  Court’s statutory authority to “hold unlawful and set aside
  decisions, findings, conclusions, rules, and regulations is-
  sued or adopted by the Board found to be contrary to con-
  stitutional right, power, privilege, or immunity.” 

(a)(3) (cleaned up); Plurality Op. at 52–53. The plu-
  rality asserts that § 5110, as applied to Mr. Taylor, is un-
  constitutional, so the plurality therefore instructs the
  Veterans Court to set aside the Board’s decision. Plurality
  Op. at 55, 57. But § 5110 is not unconstitutional, either on
  its face or as applied to Mr. Taylor. Section 5110 is clearly
  constitutional on its face; it gives, rather than denies,
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  16                                     TAYLOR   v. MCDONOUGH



  veterans access to a government institution. And the effec-
  tive-date limits established by § 5110 are constitutional as
  applied to Mr. Taylor; those effective-date limits did not
  prevent Mr. Taylor from accessing the VA, but merely set
  boundaries on the statutory benefits that he can receive.
       I also question whether we can truly characterize
  Mr. Taylor’s current effective date as an incomplete rem-
  edy. Section 5110 authorizes benefits from “the date of the
  filing of the initial application” and further states that ben-
  efits shall not be awarded for any time period “earlier than
  the date of receipt of application therefor.” 

(a)(1)–(2). This is exactly what Mr. Taylor received—
  he applied for benefits in 2007, and he was awarded bene-
  fits from the date his application was filed. Were it not for
  the particular nature of the Edgewood program and the in-
  juries that Mr. Taylor sustained as a result, his case would
  present nothing more than a routine application of § 5110.
  But the plurality points to no statute or other legal author-
  ity for awarding Mr. Taylor an earlier effective date in clear
  contravention of the plain language of § 5110. There is no
  question that under the applicable statute, Mr. Taylor re-
  ceived the full remedy available to him—benefits from the
  date of his application. To hold otherwise would deny Con-
  gress the ability to set boundaries on its statutorily created
  programs. The authority to grant Mr. Taylor and other
  similarly situated veterans with an earlier effective date,
  despite the temporal limits of § 5110, lies with Congress
  and Congress alone.
      Because § 7261(a)(3) does not reach the government’s
  institution of a secrecy oath and because the Board’s appli-
  cation of § 5110 was not unconstitutional as applied to
  Mr. Taylor, I would find that the government did not un-
  duly interfere with Mr. Taylor’s access to the VA or other-
  wise violated his right of access. Accordingly, I disagree
  with the plurality’s application of § 7261(a)(3) to circum-
  vent § 5110, and I disagree that § 5110 is unconstitutional
  as applied to Mr. Taylor.
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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 effec-
  tive date for benefits. Arellano v. McDonough, 

, 546 (2023). The plurality’s remedy conflicts with bind-
  ing case law and has no other legal basis in authority. Even
  if the government had violated Mr. Taylor’s right of access,
  waiving § 5110 is not an appropriate remedy because doing
  so is no different from providing an equitable remedy,
  which the plurality concedes we cannot do.
      As the plurality admits, we cannot invoke our equitable
  powers to give Mr. Taylor an earlier effective date as we
  would in a traditional statute of limitations case, as dis-
  cussed in Swekel. And as the Supreme Court recently held
  in Arellano, we cannot equitably toll a veteran’s effective
  date for benefits. And as the plurality admits, under Rich-
  mond, we also cannot order the Veterans Court to equita-
  bly estop the government from applying 

.
      Thus, in the absence of any statutory or equitable
  power to do so, I would hold that we do not have the au-
  thority to grant Mr. Taylor an earlier effective date.
                               IV
      In an attempt to, understandably, provide Mr. Taylor
  more fulsome benefits, the plurality’s decision inappropri-
  ately expands two areas of law. First, it broadens an al-
  ready amorphous right of access doctrine—which has
  almost exclusively been applied to incarcerated persons
  cases or other instances of clear government misconduct
  that directly result in denied access to institutions—to
  cover secrecy oaths created in the interest of national
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  18                                     TAYLOR   v. MCDONOUGH



  security. Second, it enlarges our court’s power by allowing
  us to craft remedies in the absence of any authority to do
  so—statutory, equitable, or otherwise. While the plurality
  attempts to limit its holding to Mr. Taylor’s unique case, I
  am concerned that this case has far-reaching implications
  that could impact the millions5 of people with a security
  clearance or who are prohibited from sharing certain types
  of national security information. The plurality opinion es-
  sentially imposes a balancing test, where national security
  officials will need to consider whether any security clear-
  ances or other means of restricting classified or confiden-
  tial information could lead to a potential right of access
  claim. Such a balancing test is a tremendous burden to
  place on the government.
      I sympathize with the plurality’s desire to award
  Mr. Taylor additional benefits, especially given the govern-
  ment’s unfortunate treatment of him and other Edgewood
  volunteers. And I reiterate that Congress should have im-
  mediately provided Mr. Taylor with a more complete rem-
  edy by passing a statute that would allow Mr. Taylor and
  other similarly situated veterans to receive benefits dating
  back to their date of discharge, rather than the date of their
  benefits application. But Mr. Taylor does not have a cog-
  nizable right of access claim, and we have no authority to
  grant his requested remedy. Therefore, I respectfully dis-
  sent.




       5 See, e.g., NAT’L COUNTERINTELLIGENCE AND SEC.
  CTR., Fiscal Year 2017 Annual Report on Security Clear-
  ance Determinations at 4 (n.d.), https://www.dni.gov/files/
  NCSC/documents/features/20180827-security-clearance-
  determinations.pdf (noting approximately 2.8 million who
  were briefed into access to classified information in FY
  2017).