[00:00:00] Speaker 05:
Thank you.

[00:00:01] Speaker 05:
Case number 19, 2211, Taylor against Wilkie.

[00:00:06] Speaker 05:
Mr. Carpenter.

[00:00:08] Speaker 01:
May it please the court, Kenneth Carpenter appearing on behalf of Mr. Bruce Taylor.

[00:00:13] Speaker 01:
This appeal deals with a constitutional question of the denial of due process.

[00:00:18] Speaker 01:
The Veterans Court, in Mr. Taylor's view, took too narrow a view of his allegation of his denial of due process.

[00:00:27] Speaker 01:
Before this court, Mr. Taylor presents a freestanding constitutional claim that he was denied due process based upon the secrecy agreement that the Army required him to sign.

[00:00:39] Speaker 02:
Mr. Carpenter?

[00:00:40] Speaker 01:
Yes, Your Honor.

[00:00:41] Speaker 02:
This is Judge Wallach.

[00:00:44] Speaker 02:
On page 12 of the Red Brief, the government says that, quote, because the Veterans Court held that it did not possess the equitable power to provide relief,

[00:00:55] Speaker 02:
And Mr. Taylor did not appeal this holding.

[00:00:59] Speaker 02:
In effect, you waived any equitable claim by failure to appeal it.

[00:01:04] Speaker 02:
Is the government correct about that?

[00:01:08] Speaker 01:
I have to be candid, Your Honor.

[00:01:10] Speaker 01:
I'm not sure.

[00:01:12] Speaker 01:
It is difficult for me to discern the difference between equity and a constitutional remedy.

[00:01:21] Speaker 01:
If there is, in fact,

[00:01:23] Speaker 01:
no difference than it seems to me that there isn't a question of waiver.

[00:01:29] Speaker 01:
But it is fair to say that Mr. Taylor does not rely on this brief, excuse me, in this appeal to asking this court for equitable relief short of the relief that should be afforded based upon his denial of due process.

[00:01:47] Speaker 02:
Well, the reason I ask that question is, to me,

[00:01:53] Speaker 02:
the position in which he was put screens equity.

[00:01:57] Speaker 01:
And I don't disagree, your honor.

[00:01:59] Speaker 02:
I have to go to due process.

[00:02:03] Speaker 01:
Well, the reason, frankly, that I went to due process is I see little clarity in the law as it relates to equity in relationship to the VA, specifically Congress's providing

[00:02:21] Speaker 01:
of equitable relief by the Secretary by statute and whether or not that somehow preempts the court from providing equitable relief.

[00:02:34] Speaker 01:
The Veterans Court has been very narrow in its willingness to accept that they have any equitable powers.

[00:02:45] Speaker 01:
So I'll just leave it at that.

[00:02:49] Speaker 02:
Okay.

[00:02:49] Speaker 02:
Thank you.

[00:02:50] Speaker 01:
Thank you, Your Honor.

[00:02:51] Speaker 05:
But isn't that really what this case is about?

[00:02:54] Speaker 05:
Somehow, you don't have to look very deeply into it to see that there's something wrong.

[00:03:01] Speaker 05:
And must we go to the Constitution to see whether it can be righted?

[00:03:08] Speaker 01:
Well, Your Honor, that's frankly why the appeal was brought.

[00:03:13] Speaker 01:
I felt that the consideration below was too narrow

[00:03:18] Speaker 01:
and that this is a situation that screams relief and as I pointed out in my response to Judge Wallach, it just seems there is a lack of clarity in the law as it relates to how or to what extent the Veterans Court does have equitable authority.

[00:03:38] Speaker 01:
Mr. Taylor certainly has no problem with this court relying upon the

[00:03:43] Speaker 01:
failure of the veterans court to uh... uh... afford him equitable relief uh... short of addressing this as a constitutional question to be candid your honor i'm not sure i would be able to articulate what the difference would be well the word mr carpenter part of my promise that this seems like something that should have been in the taking bucket in other words that that

[00:04:10] Speaker 03:
back or within six years of when he received notice of his right to make a claim and therefore to violate the restrictions on his speech, he could have brought an action against the government then under a takings theory or a tort theory for depriving him of his right to make a claim sooner.

[00:04:36] Speaker 01:
Your Honor, I apologize.

[00:04:38] Speaker 01:
You are absolutely correct.

[00:04:40] Speaker 01:
I have to confess that that did not occur to me, but of course by the time I got involved in the case, that proverbial horse had already left the barn.

[00:04:51] Speaker 01:
I don't disagree with that analysis, but I guess the question that I believe is pertinent for this court to address is what is the role of the Veterans Court in correcting a circumstance such as this?

[00:05:09] Speaker 01:
Is it to go to its equitable powers, which it doesn't feel it apparently does not feel it as, or that it's more appropriate for constitutional relief, or should the Veterans Court have simply said there is a remedy under the takings clause?

[00:05:28] Speaker 03:
How do you deal with our decision in Burris?

[00:05:31] Speaker 03:
I mean we said the court can't expand the scope of its jurisdiction to award substantive monetary relief in the form of

[00:05:39] Speaker 03:
equitable relief.

[00:05:41] Speaker 01:
And that is one of the problems with pursuing this under a equitable theory, Your Honor, which is why I went the due process route, because I think that Burris can be read to prevent this, although it seems to me that the facts and circumstances of Burris were clearly distinguishable, but the holding is pretty clear.

[00:06:06] Speaker 03:
How many

[00:06:10] Speaker 03:
How many veterans do you think fall within the same category?

[00:06:14] Speaker 03:
I mean, how big was this program?

[00:06:17] Speaker 01:
I would hesitate to hazard a guess.

[00:06:21] Speaker 01:
I have no idea from the research that I've done about this.

[00:06:27] Speaker 01:
It covered many, many years, decades, and I would think the number would be fairly high, although I think that it is also fair to say

[00:06:39] Speaker 01:
that the likelihood that the severity of damages that were done to Mr. Taylor represents a fairly narrow portion of the total people that would be subject to this.

[00:06:58] Speaker 03:
So I guess to that extent... Because his PTSD was a combination of both participation in the program and his combat time?

[00:07:08] Speaker 01:
Well, there is certainly that, but I guess I look at him as being taken advantage of by the non-disclosures that were made and then the rather oppressive non-disclosure agreement that he was required to sign, just put him in a Hobson's choice

[00:07:33] Speaker 01:
in which he couldn't ask for the benefits to which he was entitled because of the threat of the secrecy agreement, which he at least perceived, and I think not unreasonably so, could have been enforced after his discharge.

[00:07:54] Speaker 04:
Okay, thank you.

[00:07:57] Speaker 04:
Okay, please continue.

[00:08:03] Speaker 01:
Well, Your Honor, to be candid, I'm not sure that there's anything else in my notes that warrants any further discussion.

[00:08:10] Speaker 01:
At this time, I'll reserve the balance of my time for rebuttal at this point.

[00:08:15] Speaker 05:
Okay.

[00:08:16] Speaker 05:
Then we'll hear from the government.

[00:08:18] Speaker 05:
Mr. Grimaldi.

[00:08:20] Speaker 00:
May it please the court.

[00:08:21] Speaker 00:
Good morning, Your Honors.

[00:08:24] Speaker 00:
Certainly, Mr. Taylor comes before this court as a very sympathetic appellant.

[00:08:29] Speaker 02:
Mr. Grimaldi, this is Judge Wallach.

[00:08:33] Speaker 02:
On page two of the red brief in saying the government has such sympathy, you say Mr. Taylor, quote, was exposed to chemical agents at a U.S.

[00:08:45] Speaker 02:
Army facility, close quote, as part of the Edgewood Arsenal testing program.

[00:08:51] Speaker 02:
What do you mean by chemical agents?

[00:08:53] Speaker 02:
I want you to be specific.

[00:08:56] Speaker 02:
Was it VX?

[00:08:58] Speaker 02:
Seems most likely.

[00:09:00] Speaker 02:
VM?

[00:09:01] Speaker 02:
And tell me the side effects of those chemical agents.

[00:09:05] Speaker 00:
Well, Your Honor, I believe looking at the record, it's not possible to tell the exact chemical agents that Mr. Taylor was exposed to.

[00:09:15] Speaker 00:
A lot of the history on the Edgewood program and the chemical warfare testing program, and this might answer some questions about the numbers of veterans as well, is really detailed in the

[00:09:27] Speaker 00:
decision of the Northern District of California, which is the Vietnam Veterans of America v. the CIA.

[00:09:36] Speaker 00:
The citation for that, I can give you a Westlaw citation because it was not published, that's 2013 Westlaw 3855688.

[00:09:47] Speaker 00:
And it goes through the history of the chemical warfare testing program, which I believe started after World War I.

[00:09:55] Speaker 00:
went all the way through World War II and then teetered out in the 1970s.

[00:10:02] Speaker 00:
There were a lot of different types of chemicals, including mustard gas in the early days, that soldiers were exposed to in this program.

[00:10:13] Speaker 02:
But I'm concerned about specifically about Mr. Taylor.

[00:10:19] Speaker 02:
Do you agree that he was exposed to a nerve agent?

[00:10:23] Speaker 00:
I think that's what the record suggests, that that's a strong possibility.

[00:10:27] Speaker 00:
I'm not sure that the record shows that that's definitely what he was exposed to, but that's our best guess, Your Honor.

[00:10:36] Speaker 05:
Well, the government doesn't deny, as well as I could tell, when these were all volunteers, that they will be on the

[00:10:44] Speaker 05:
If we might say the call of duty to volunteer for exposure, I think it was generally known that Edgewood was experimenting with some quite dramatic chemicals, so that's, I think, not a matter of

[00:11:01] Speaker 05:
dispute and in fact, although perhaps it's not the issue here, but wouldn't one think that the government would have established a program?

[00:11:13] Speaker 05:
We can appreciate perhaps the need for the non-disclosure secrecy obligation that every one of these volunteers undertook while he was healthy and that Taylor complied with what he had signed

[00:11:31] Speaker 05:
rather than trying to figure out a way around it, perhaps on his own, just reading what he had signed and sticking with it until the government itself voluntarily lifted the secrecy ban.

[00:11:46] Speaker 05:
But now what?

[00:11:48] Speaker 05:
Now what?

[00:11:48] Speaker 05:
Aren't there obligations somewhere?

[00:11:51] Speaker 05:
Perhaps this is a constitutional question.

[00:11:55] Speaker 00:
Yes, Your Honor, and the question here is now what?

[00:11:59] Speaker 00:
I agree with you on that, Your Honor.

[00:12:01] Speaker 00:
What can Mr. Taylor do now?

[00:12:03] Speaker 00:
There's nothing wrong with the Veterans Court decision because what the Veterans Court decision was about was finding that there was no equitable relief or statutory relief that they could provide for Mr. Taylor, that the system that he had attempted to rectify this issue wasn't going to provide him with the relief that he was requesting.

[00:12:22] Speaker 00:
And I can get into the equity and statutory relief in a moment, Your Honor, but what avenue is out there?

[00:12:31] Speaker 00:
Equity in the Veterans Benefits System lies with the Secretary under 38 U.S.C.

[00:12:38] Speaker 00:
503.

[00:12:40] Speaker 00:
And that is an option for Mr. Taylor to pursue.

[00:12:44] Speaker 00:
The other option, of course, is simply put, that 5110

[00:12:48] Speaker 00:
individuals like Mr. Taylor slipped through the cracks of 5110.

[00:12:52] Speaker 00:
And Mr. Taylor conceived that in his briefing that 5110 precludes him from getting statutory relief.

[00:12:59] Speaker 00:
The only party... Yes, sir.

[00:13:01] Speaker 03:
This is Malley.

[00:13:03] Speaker 03:
Has the Secretary afforded equitable relief to any of the participants of this program?

[00:13:12] Speaker 00:
Well, I'm not actually sure that any have asked for it or have received relief.

[00:13:18] Speaker 00:
I'm sorry, I do not have an answer for you on that.

[00:13:23] Speaker 05:
Let me ask you...

[00:13:25] Speaker 05:
Perhaps a more fundamental question.

[00:13:28] Speaker 05:
Why doesn't the Veterans Court have authority, jurisdiction to grant equitable relief?

[00:13:36] Speaker 05:
I'm just thinking back in history, the Court of Federal Acclaims at one time thought that it didn't have this authority.

[00:13:44] Speaker 05:
And it turned out that that was inaccurate.

[00:13:49] Speaker 05:
Don't courts, whether they're under Article 1 or Article 3,

[00:13:54] Speaker 05:
have some sort of presumed equitable authority unless it's explicitly withheld?

[00:14:01] Speaker 05:
I mean, maybe that's something that we and the government should give some attention to.

[00:14:07] Speaker 00:
Well, Your Honor, this Court has already decided and determined in burst in a presidential decision that the Veterans Court does not have equitable powers to provide substantive monetary relief.

[00:14:22] Speaker 05:
Maybe we didn't get that right.

[00:14:25] Speaker 05:
Maybe that needs attention.

[00:14:27] Speaker 00:
Well, Your Honor, certainly that will have to be raised en banc to get attention because that is a presidential decision.

[00:14:34] Speaker 00:
That being said, I would disagree, Your Honor, that that is incorrect.

[00:14:37] Speaker 00:
What the Burris Court found was that the Congress specifically conferred equitable powers upon the Secretary in terms of federal benefits when it comes to 38 U.S.D.

[00:14:49] Speaker 00:
503.

[00:14:52] Speaker 00:
The court did find that there was inherent, as you mentioned Your Honor, equitable release power, but that could only come from other statutes like the All Risk Act, and could not provide substantive monetary reliefs.

[00:15:06] Speaker 02:
Counsel, I have a hypothetical for you.

[00:15:13] Speaker 02:
The United States, as we have in the past, sends troops secretly into a country to carry out a mission.

[00:15:22] Speaker 02:
And a soldier is so badly injured in a firefight on that mission that he is no longer able to serve on active duty and he leaves the service.

[00:15:38] Speaker 02:
The Army tells him that the existence of the mission is classified and that he will be criminally prosecuted if he seeks any VA benefits.

[00:15:50] Speaker 02:
Despite that warning, he seeks VA benefits.

[00:15:54] Speaker 02:
Is his right to VA benefits a defense when he's charged with violation of the UCMJ and of the Espionage Act?

[00:16:03] Speaker 00:
Well, to be frank with you, Your Honor, I've never practiced in terms of military justice.

[00:16:08] Speaker 00:
So I know that it does differ from traditional litigation and criminal litigation because of the

[00:16:16] Speaker 00:
different relationship between the soldier and the United States as opposed to the citizen in the United States.

[00:16:22] Speaker 00:
I would like to think that there would be a way for this individual to apply for VA benefits based on their medical records from the military to begin with because they would have been treated for their wounds as you described their injured in combat while in the service.

[00:16:37] Speaker 00:
There wouldn't be really an argument whether or not the individual had a service-connected injury in that instance.

[00:16:46] Speaker 00:
Beyond all that, your honor, whether they can apply for benefits and whether it can be a defense, there would be something the soldier could do at that time.

[00:16:52] Speaker 00:
And that would be to go to district court to say that the secrecy oath that you have in your hypothetical violated the individual's due process rights and get an injunction from a district court on that secrecy.

[00:17:09] Speaker 00:
And a district court can work that out, whether or not

[00:17:14] Speaker 00:
whether or not a service branch can have its soldiers sign secrecy oaths that basically waive all their rights and so on and so forth.

[00:17:23] Speaker 00:
But that would be an injunction.

[00:17:24] Speaker 00:
That would be non-monetary release.

[00:17:26] Speaker 00:
That would be indiscriminate court.

[00:17:27] Speaker 02:
That actually wasn't my hypothetical.

[00:17:30] Speaker 02:
It was to sign a secrecy oath.

[00:17:33] Speaker 02:
He was told he would be prosecuted.

[00:17:37] Speaker 00:
He was just told he would be prosecuted?

[00:17:40] Speaker 02:
Right, and then he is.

[00:17:43] Speaker 00:
Right.

[00:17:43] Speaker 00:
And I apologize, Your Honor, I can't tell you what a proper defense is in a military court.

[00:17:47] Speaker 00:
I don't have that kind of knowledge base.

[00:17:53] Speaker 00:
Your Honor, turning to whether or not statutory release was available for Mr. Taylor, the parties do agree that 5110A1 prohibits an earlier effective date in this case.

[00:18:05] Speaker 00:
Mr. Taylor talks about constitutional relief as opposed to equitable statutory release.

[00:18:12] Speaker 00:
And an argument today says the bull lines are blurred here.

[00:18:16] Speaker 00:
The secretary does not have authority to pay money out of appropriations otherwise that is not permitted by statute.

[00:18:28] Speaker 00:
So there's no constitutional relief that the secretary could have provided, Mr. Taylor, but for what is available under 305.

[00:18:37] Speaker 00:
That would be equitable belief.

[00:18:40] Speaker 00:
in terms of the Veterans Court, again, their release is constrained by whether or not they can provide equitable release.

[00:18:49] Speaker 00:
There is no constitutional, freestanding constitutional claim that's available for the Veterans Court to entertain.

[00:18:56] Speaker 00:
Mr. Taylor's briefing cites the 7261A1B, but I believe he means 3B, because there's no 1B, for a freestanding constitutional jurisdiction.

[00:19:09] Speaker 00:
And, Your Honors, that section is about the scope of the Veterans' Court's review, and it limits it to constitutional issues considered by the Secretary, the Board of Appeals, and the Chairman of the Board.

[00:19:22] Speaker 05:
So is the government's position that there's absolutely no avenue that can be pursued or just that Mr. Taylor hasn't thought of one?

[00:19:35] Speaker 00:
I'm going to be careful on what I say here, Your Honor.

[00:19:37] Speaker 00:
38 U.S.D.

[00:19:37] Speaker 00:
503 provides the secretary with the possibility of providing equitable relief in certain cases.

[00:19:45] Speaker 00:
If Mr. Taylor is able to describe his situation under either the terms of Part A or Part B of 305, he can ask for equitable relief from the secretary.

[00:19:58] Speaker 00:
However, it is the secretary's discretion to provide that relief.

[00:20:02] Speaker 00:
It's not mandated that the secretary provide relief

[00:20:05] Speaker 00:
it's a completely discretionary relief that can be provided.

[00:20:08] Speaker 00:
So to answer your question, if Mr. Taylor can articulate his claim under 503, and if the Secretary exercises his discretion to provide the relief, there can be equitable relief given to Mr. Taylor.

[00:20:23] Speaker 05:
All right.

[00:20:24] Speaker 05:
Well, I'm just saying you're saying he can ask for the benevolence of the Secretary, but there's no way that as far as

[00:20:35] Speaker 05:
comes to your mind at the moment whereby even though there's absolutely no dispute or let's accept, there's no dispute that this was the cause of his injury.

[00:20:47] Speaker 00:
Yes, Your Honor, and that is the Veterans Court decision that's on review here.

[00:20:50] Speaker 00:
The judges found that they had no relief they could provide Mr. Taylor.

[00:20:55] Speaker 00:
Not that they thought that Mr. Taylor wasn't necessarily deserving of some sort of payment of money earlier than 2007, just that they were constrained.

[00:21:02] Speaker 00:
I believe they used that word constrained.

[00:21:04] Speaker 00:
that they could not provide any relief.

[00:21:08] Speaker 00:
And, you know, one quote that I would like to mention to Your Honors, and this is from the OPMB Richmond case, is that, um, Congress may always exercise its power to stand recoveries for those who rely on mistaken advice should it choose to do so.

[00:21:23] Speaker 00:
And this isn't a mistaken advice case, as Your Honors knows, it's about a secret CO.

[00:21:28] Speaker 00:
What the OPMB Richmond case is saying is that

[00:21:32] Speaker 00:
If there is a situation where individuals slip through the cracks because of actions of the government or what have you, Congress can act to amend the statute to provide them relief.

[00:21:43] Speaker 00:
In this scenario, I've seen Congress talking about the Edgewood Program as early as 1976 and certainly in the early 2000s.

[00:21:52] Speaker 00:
So it's been somewhere between 20 and 40 years or so where Congress has been aware of this issue.

[00:21:58] Speaker 00:
and has not acted to amend 5110 or have another remedial law for individuals such as Mr. Taylor.

[00:22:06] Speaker 00:
That is also another avenue.

[00:22:08] Speaker 00:
Congress has to fix the system for people like Mr. Taylor as opposed to providing the Veterans Court with equitable power that it does not have.

[00:22:21] Speaker 00:
If the court has no further questions, we'd ask the court to affirm the decision of the Veterans Court.

[00:22:26] Speaker 05:
Any more questions, Judge O'Malley?

[00:22:28] Speaker 03:
No, thank you.

[00:22:29] Speaker 05:
Judge Wallach?

[00:22:31] Speaker 03:
No, thank you.

[00:22:32] Speaker 05:
All right.

[00:22:33] Speaker 05:
Thank you.

[00:22:33] Speaker 05:
And we'll hear from Mr. Carpenter.

[00:22:36] Speaker 01:
Thank you very much, Your Honor.

[00:22:37] Speaker 01:
I believe the government has been especially candid with this court and is correct in almost every aspect when the government indicates that there is no statutory or equitable relief for Mr.

[00:22:58] Speaker 01:
Taylor in these circumstances.

[00:23:01] Speaker 01:
Therefore, the only relief that is available to him is constitutional relief.

[00:23:07] Speaker 01:
It seems to me that the government does not really challenge that there was a denial of due process based upon this secrecy agreement.

[00:23:18] Speaker 01:
And therefore, this court ought to find that because there are no other avenues of relief

[00:23:26] Speaker 01:
that his only avenue of relief is to seek the protection of the Constitution.

[00:23:31] Speaker 01:
And then the question becomes one of remedy.

[00:23:35] Speaker 01:
And as we tried to emphasize in our briefing, the courts have held that the concept of due process, particularly in relationship to its relief, must be flexible.

[00:23:50] Speaker 01:
And these are extraordinary circumstances

[00:23:55] Speaker 01:
hopefully circumstances that are not going to be repeated.

[00:23:58] Speaker 01:
I believe that Judge Wallach's hypothetical is precisely comparable to the situation that is found here.

[00:24:06] Speaker 01:
He was faced with a Hobson's choice of either violating a secrecy agreement or going ahead and trying to get his benefits and making a disclosure that would result in the violation of that secrecy agreement and his potential prosecution.

[00:24:24] Speaker 01:
That is an untenable position to put any service member in.

[00:24:29] Speaker 01:
And if there is any validity whatsoever to the thumb on the scale of justice for veterans that has been noted by the Supreme Court, this is the circumstance in which that has to take real form and provide real relief.

[00:24:50] Speaker 01:
So I believe the question is one of remedy.

[00:24:53] Speaker 01:
How does this court provide due process relief?

[00:24:58] Speaker 01:
And what we're simply asking for is for this court to find that based upon the due process violation that the provisions of 5110 be found to have been superseded by the violation of the Constitution.

[00:25:17] Speaker 01:
And that as a result, the secretary should be required

[00:25:21] Speaker 01:
to consider his application as having been made but for the secrecy agreement and that this matter be returned to the board, to return to the agency to determine the extent and degree of his disability from the day following discharge to his current effective date of 2007.

[00:25:47] Speaker 01:
That seems to be the only reasonable

[00:25:51] Speaker 01:
remedy and one that really I do not believe offends the statutory scheme or the notion that the secretary is compelled to do something that he's not able to do by statute.

[00:26:10] Speaker 01:
These are just not circumstances that are contemplated by the statutory scheme.

[00:26:17] Speaker 01:
There is no remedy for this

[00:26:19] Speaker 01:
for instance, in a clear and unmistakable error notion, because there was no prior decision, because there was no application.

[00:26:28] Speaker 01:
It is that preclusion of the opportunity to present the application that really creates the due process violation.

[00:26:38] Speaker 01:
Unless there's further questions from the court, I'm prepared to submit the matter.

[00:26:42] Speaker 05:
Any questions, Judge O'Malley?

[00:26:45] Speaker 03:
No, thank you.

[00:26:46] Speaker 05:
Judge Wallach?

[00:26:47] Speaker 01:
Oh, thank you.

[00:26:48] Speaker 05:
Okay, thank you.

[00:26:49] Speaker 05:
Thank you both.

[00:26:50] Speaker 05:
The case is taken under submission.