[00:00:02] Speaker 13:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:07] Speaker 13:
God save the United States and this honorable court.

[00:00:11] Speaker 06:
Our first case for argument today is 19-2211, Taylor versus McDonough.

[00:00:18] Speaker 06:
Mr. McCloud, please proceed.

[00:00:20] Speaker 12:
Chief Judge Moore, and may it please the court.

[00:00:23] Speaker 12:
For 35 years, Bruce Taylor was unable to get the benefits he needed because the Army threatened to jail him if he exposed its misdeeds.

[00:00:31] Speaker 12:
The Veterans Court concluded that it was powerless to stop the Secretary from depriving Mr. Taylor of the full relief to which he is entitled.

[00:00:39] Speaker 12:
This court should reverse that judgment for two independent reasons.

[00:00:43] Speaker 12:
First, the executive's action... Mr. McLeod?

[00:00:45] Speaker 12:
Yes, sir.

[00:00:46] Speaker 04:
This is Judge Waller.

[00:00:50] Speaker 04:
My reading of the record is exactly the same as yours, that the Army threatened to jail Mr. Taylor.

[00:00:56] Speaker 04:
But in its brief, the government says that they rely only on

[00:01:01] Speaker 04:
the released form, which is a generic one from the Senate investigation, and that there was no such threat.

[00:01:12] Speaker 04:
In reading the record, it appears to me that there was such a threat for criminal prosecution.

[00:01:18] Speaker 04:
Would you please reference that?

[00:01:21] Speaker 12:
Yes, Your Honor.

[00:01:21] Speaker 12:
I agree completely with you that there was such a threat.

[00:01:24] Speaker 12:
It appears in the language of the secrecy oath, which we have reproduced in part on page eight of our opening brief.

[00:01:31] Speaker 12:
I would also note that the government takes an inconsistent position on that point.

[00:01:35] Speaker 12:
They say, on the one hand, that there was no threat and Mr. Taylor could have applied to the VA for benefits.

[00:01:41] Speaker 12:
And on the other hand, that this information was so secret that the Army could not even disclose the names of the Edgewood participants to the VA itself.

[00:01:50] Speaker 12:
And I would also further point out that if there were no threat, if there were no real enforcement of the secrecy oath,

[00:01:56] Speaker 12:
There would have been no reason for the Army to release Mr. Taylor and other Edgewood veterans from the oath in 2006.

[00:02:03] Speaker 12:
So, Your Honor, I simply don't credit that argument on the part of the government.

[00:02:07] Speaker 01:
McLeod, this is Judge Proust.

[00:02:10] Speaker 01:
Let me ask you about the right of access point of our case.

[00:02:14] Speaker 01:
Now, in Mr. Taylor's case, national security seems not to necessarily be front and center, mainly because matters were long ago declassified and his claim is therefore backward-looking.

[00:02:28] Speaker 01:
And as an aside, the government, as we just suggested, seems to be suggesting flexibility and security

[00:02:34] Speaker 01:
which some of us may have a problem with.

[00:02:37] Speaker 01:
But in any event, my concern here is, hypothetically, if we were to find for Mr. Taylor in these circumstances, what does that mean for future cases where national security is front and center?

[00:02:51] Speaker 01:
Namely, in cases where matters remain classified and have never been classified, and a veteran comes in with a claim and wants essentially forward-looking benefits.

[00:03:03] Speaker 01:
Can you discuss to me how you envision that process working if we were to find Mr. Taylor in this case?

[00:03:09] Speaker 12:
So two responses, Judge Prouse.

[00:03:11] Speaker 12:
The first is that with respect to whether there's a compelling interest in national security in general, we of course don't dispute that the government has an interest in keeping certain things secret.

[00:03:20] Speaker 12:
As Your Honor noted, that interest is not a compelling interest in this case because there was disclosure of information about the Edgewood program as far back as 1976 and also because of the inconsistency

[00:03:32] Speaker 12:
in the government's position.

[00:03:33] Speaker 12:
However, I would argue that there are no real implications for a finding in this case for future cases because the court can assume that national security would be a compelling interest in future cases and still say that the government didn't narrowly tailor its restrictions to that national security interest in this case.

[00:03:57] Speaker 12:
I would also note that this is a problem that to a large extent has been ameliorated by the government

[00:04:02] Speaker 12:
Going forward, so for example, today, if a Navy SEAL is injured on a covert mission, the government has established procedures that that person can use to seek benefits.

[00:04:13] Speaker 12:
The problem Mr. Taylor and Edgewood Veterans face is the government never bothered to create those sorts of procedures for them, and so they are stuck and were never able to seek benefits, even through some sort of covert mechanism like the ones that exist today.

[00:04:27] Speaker 02:
But we have, since 2006,

[00:04:31] Speaker 02:
a specific provision in 3.156C that appears to deal with this kind of situation.

[00:04:38] Speaker 02:
And in adopting that rule, the VA said that this just reflected past practice, existing practice that had been true for decades.

[00:04:47] Speaker 02:
So Mr. Taylor could have applied for benefits just describing his symptoms, filed an informal claim,

[00:04:58] Speaker 02:
without disclosing anything about the classified program, and that would have gotten him the right to retroactive benefits when the records became declassified under that provision.

[00:05:13] Speaker 02:
Why isn't that an available remedy to it?

[00:05:15] Speaker 12:
Well, I'll just beg for a number of reasons.

[00:05:17] Speaker 12:
First, I'm not sure that Mr. Taylor actually could have filed that minimal claim.

[00:05:21] Speaker 12:
He was under a threat of prosecution if he disclosed information about Edgewood.

[00:05:26] Speaker 02:
And so I think- He doesn't disclose anything about it, but he just says I have symptoms, of which he was well aware, and this is service connected.

[00:05:35] Speaker 02:
And that's sufficient placeholder to help him to get reproductive benefits later.

[00:05:44] Speaker 12:
Well, just like the problem is that in that scenario, there's no way that Mr. Taylor could have established service connection at the time that he filed the application.

[00:05:53] Speaker 12:
And if you look at the cases that the government cites,

[00:05:55] Speaker 02:
That's absolutely true.

[00:05:58] Speaker 02:
It would have been sufficient as a placeholder under cases like Shea and so on where people file claims that have these symptoms.

[00:06:06] Speaker 02:
That's sufficient to allow retroactive methods later, isn't it?

[00:06:10] Speaker 12:
I'm not sure about that in this case, Your Honor.

[00:06:12] Speaker 12:
My understanding is that Mr. Taylor, in those circumstances, would need to show a clear and unmistakable error on the part of the VA at the time that it denied his initial application.

[00:06:23] Speaker 12:
And in the scenario that your honor is positing, if Mr. Taylor doesn't come forward with any evidence to establish service connection, that's not an error as the Veterans Court has interpreted that standard.

[00:06:35] Speaker 12:
So I think Mr. Taylor would be left in a very unusual and untenable situation.

[00:06:40] Speaker 12:
And again, I would reiterate- I think you're mistaken.

[00:06:42] Speaker 02:
I don't think that Q applies under those circumstances under our decision in Cook.

[00:06:47] Speaker 02:
The fact that the records were unavailable at the time makes it retroactive regardless of Q.

[00:06:53] Speaker 12:
Well, Your Honor, again, I would emphasize the fact that Mr. Taylor is operating with the military orders.

[00:06:58] Speaker 12:
Those orders are not to be construed against the drafters.

[00:07:01] Speaker 12:
And so it was perfectly reasonable for him in these circumstances to feel constrained from seeking benefits because he was told not to disclose this information to anyone.

[00:07:12] Speaker 12:
And so I don't think the court should put Mr. Taylor to this Hobson's choice of facing potential prosecution in order to get the benefits that he earned.

[00:07:20] Speaker 12:
through his service.

[00:07:22] Speaker 09:
Mr. McLeod, I thought your view is that there was a constitutional violation in 1971, 72, and I'm going to bring it all the way up to 2006, a year in which two things happened, the declassification and also the creation of the retroactive 3.15C remedy.

[00:07:42] Speaker 09:
But that wasn't available for 35 years, was it?

[00:07:46] Speaker 09:
When the constitutional violation, in your view, was ongoing.

[00:07:49] Speaker 12:
Your Honor, I understand Judge Banks' question to be on the assumption that the provision reflected past practice of the DA.

[00:07:59] Speaker 12:
My understanding is there was no such past practice.

[00:08:02] Speaker 12:
Mr. Taylor certainly wasn't aware of any option that would have allowed him to seek benefits.

[00:08:06] Speaker 12:
And so we do think that the constitutional violation existed at the time Mr. Taylor separated from service and was under the threat of prosecution because of the secrecy oath.

[00:08:19] Speaker 10:
Mr. McLeod, this is Judge Hughes.

[00:08:22] Speaker 10:
Let's assume that there is a constitutional violation here, and that the government secrecy oath violated his right to access.

[00:08:31] Speaker 10:
And setting aside Ekribol's holding and Ekribol's shuffle, under what authority statutory Ekribol or otherwise do we or the Veterans Court have the right to tell the VA to set aside 5110?

[00:08:47] Speaker 12:
Your honor, the VJRA establishes the authority for the Veterans Court to set aside decisions of the secretary that violate constitutional rights.

[00:08:57] Speaker 12:
So if this court were to find a violation of the right of act.

[00:09:00] Speaker 12:
7261, right?

[00:09:01] Speaker 12:
That's right.

[00:09:02] Speaker 10:
OK.

[00:09:03] Speaker 10:
So 7261 tells them they can set aside the decision.

[00:09:08] Speaker 10:
But what I'm asking is, what specifically allows them to tell the secretary when it reaches a new decision

[00:09:14] Speaker 10:
that it has to disregard 5110.

[00:09:18] Speaker 12:
Your honor, I think it's the same provision.

[00:09:20] Speaker 12:
This is in effect an as applied challenge.

[00:09:22] Speaker 12:
We're not suggesting that 5110 is invalid in all applications.

[00:09:27] Speaker 12:
It's just the secretary's application of that provision.

[00:09:30] Speaker 12:
in the circumstances of Mr. Taylor's own case.

[00:09:32] Speaker 10:
And so do you have any analogous authority?

[00:09:36] Speaker 10:
I've read a bunch of these right to access cases and I don't see anything remotely close to this where they use something as general as basically a standard of review provision.

[00:09:47] Speaker 10:
to order a release.

[00:09:48] Speaker 10:
Usually, the release is grounded in equitable authority the court has, where some other statutory context, like in Bell, which is, I think, the closest now with this case, is grounded on 1985 itself.

[00:10:01] Speaker 10:
So don't find 7261 sufficient.

[00:10:05] Speaker 10:
Do you have any other place to point me to that would provide the Veterans Court or our court to direct the Secretary to disregard 5110?

[00:10:15] Speaker 12:
Your Honor, I don't have a case in the veteran's context.

[00:10:18] Speaker 12:
I do think that some of the earlier cases from the Supreme Court on the right of access, like the Johnson versus Avery case, rests primarily on constitutional principles.

[00:10:27] Speaker 12:
And so when they find a constitutional violation, they can validate whatever regulation or statute was at issue that caused the violation.

[00:10:35] Speaker 10:
OK, can I just follow up on a stock?

[00:10:38] Speaker 10:
What authority, when they tell and invalidate it, what specific authority is it?

[00:10:44] Speaker 12:
They cite the Constitution.

[00:10:46] Speaker 12:
They cite the Constitution.

[00:10:48] Speaker 10:
What in the Constitution?

[00:10:50] Speaker 10:
Well, Your Honor, the right of access... Aren't they using the equitable power of a court to strike an unconstitutional provision or some other power?

[00:10:59] Speaker 12:
No, Your Honor, that's not how I read the cases.

[00:11:01] Speaker 12:
The right of access stems from a number of different provisions in the Constitution, including the First Amendment, the due process clause, and the privileges and immunities clause.

[00:11:11] Speaker 12:
And so the court has amalgamated

[00:11:14] Speaker 12:
all of those various protections into a generic right of access that is constitutionally protected.

[00:11:21] Speaker 12:
So when courts applying the right of access strike down a restriction, they're doing it using their constitutional authority.

[00:11:28] Speaker 02:
And so for the reasons... But when Congress sets a time limit, you're saying that as a constitutional law that

[00:11:38] Speaker 02:
it can't do that, and that he has to be given the right of access to the court.

[00:11:43] Speaker 02:
I mean, suppose Congress said explicitly you can't file a claim later, even if you were foreclosed from doing it earlier by a secrecy requirement.

[00:11:58] Speaker 02:
And you're saying that Congress can't do that.

[00:12:00] Speaker 02:
It's unconstitutional for Congress to do that, right?

[00:12:03] Speaker 12:
Judge Dyke, I'm not taking the position that time limits in statutes are unconstitutional as a general matter.

[00:12:10] Speaker 12:
The court has recognized that there are a number of restrictions that Congress or the courts themselves can place on the litigant's ability to access the court that don't implicate the right of access.

[00:12:20] Speaker 12:
But in the circumstances of this case, where there is no compelling interest and where the government never narrowly tailored the restrictions to serve a compelling interest, we do think that there's a violation of the right of access.

[00:12:33] Speaker 02:
So Congress cannot legislate to insist that he is foreclosed.

[00:12:41] Speaker 02:
In other words, unconstitutional for Congress to foreclose his claim.

[00:12:45] Speaker 12:
Your Honor, if in the circumstances of this case, Congress were to say there is no option for Mr. Taylor to seek relief from the secrecy of, then yes, that restriction would be unconstitutional because it's not narrowly tailored.

[00:13:00] Speaker 12:
As I was saying earlier to members of the court,

[00:13:03] Speaker 12:
The Department of Defense has created provisions and procedures these days that allow for veterans in the circumstances that Mr. Taylor finds himself in to seek benefits in a classified overt manner.

[00:13:17] Speaker 12:
So any restriction that Congress would impose would, I think, at a minimum, need to include those sorts of safety valve provisions that could be relied on by a veteran like Mr. Taylor.

[00:13:29] Speaker 01:
Do you acknowledge there might be circumstances going forward in which the government would take the position that we can't narrowly tailor anything, we cannot do anything because of the national security risks inherent to a particular circumstance?

[00:13:45] Speaker 01:
What would we do in that circumstance?

[00:13:47] Speaker 12:
Yes, Your Honor, I acknowledge that that could be the case.

[00:13:49] Speaker 12:
If we were talking about the nuclear codes and the government said there's no narrowly tailored way to, you know, allow someone else to access the President's nuclear codes,

[00:13:58] Speaker 12:
we would agree that that would very likely survive strict scrutiny.

[00:14:01] Speaker 12:
The problem in this case is not only is there not a compelling interest for the reasons that I was discussing with your honor before, but there were a number of different ways that the government could have narrowly declared its interests that would have survived strict scrutiny.

[00:14:16] Speaker 12:
And it simply failed to do that for 35 years.

[00:14:20] Speaker 05:
Now, sir, if we were to find that the constitutional right of access problem, um,

[00:14:25] Speaker 05:
Who would, which court would have the authority jurisdiction to address the remedy?

[00:14:32] Speaker 05:
Is this something we have to send back to the, to the veterans court or is this something that we could address ourselves?

[00:14:39] Speaker 12:
Your honor, I think that the best course of action would be to reverse and remand to the veterans court for them to address it in the first instance.

[00:14:46] Speaker 05:
Okay.

[00:14:46] Speaker 05:
Thank you.

[00:14:51] Speaker 12:
If there are no further questions on the right of access claim, I would like to say- Just one more.

[00:14:59] Speaker 02:
What's your response to the assertion that this is a fairly broad principle which you're asking for, that any government action that prevented somebody from filing in a timely way would be potentially unconstitutional if the post office

[00:15:18] Speaker 02:
because of anthrax doesn't deliver the mail, or it's a road closure to prevent people from going to court, or there's government decision not to release documents on other grounds other than national security.

[00:15:34] Speaker 02:
Isn't the potential here fairly sweeping for the right of access to cover a lot of government actions that prevent somebody from filing non-con?

[00:15:45] Speaker 12:
Judge Dyke, I don't think so for this reason.

[00:15:47] Speaker 12:
The right of access has existed and has been applied by courts, including the Supreme Court, for going on 100 years now.

[00:15:54] Speaker 12:
And we haven't seen problems with the effect of that right of access in the national security context.

[00:16:00] Speaker 12:
And again, we don't deny that national security could be a compelling interest in certain cases.

[00:16:06] Speaker 12:
We simply don't think that national interest security justifies the restrictions that were imposed on Mr. Taylor in this case.

[00:16:13] Speaker 02:
And I would also think that quite answers my question.

[00:16:16] Speaker 02:
My question is, isn't the principle that you're arguing for fairly broad and goes well beyond this case to any situation in which the government prevents somebody from filing on time because of that really stocking?

[00:16:31] Speaker 12:
No, Your Honor, this is a case that is extraordinary and it's extraordinary because it involves affirmative misconduct on the part of the government that is thankfully very rare.

[00:16:40] Speaker 12:
So the ruling that we're asking for, the only ruling,

[00:16:43] Speaker 12:
is to say that in the extraordinary circumstances of this case, there was a violation of the right of access.

[00:16:49] Speaker 12:
Again, we don't dispute the basic proposition that national security can be a very compelling interest that would justify even a denial of the right of access under the right circumstances.

[00:17:01] Speaker 12:
And if the court were to write that in the opinion, we would be completely fine with it.

[00:17:05] Speaker 12:
But we do think that this case is different because of the severity of the actions and the way in which

[00:17:11] Speaker 12:
the government violated Mr. Taylor's rights.

[00:17:14] Speaker 01:
Council, before you switch to your other argument, I understand that our current state of the law would prevent you from making this argument, but it is true, is it not, that if we were to conclude that 5110 is subject to equitable tolling, that that would solve the right of access problem.

[00:17:36] Speaker 12:
Is that right?

[00:17:37] Speaker 12:
That would, Your Honor, and we have preserved that argument.

[00:17:40] Speaker 12:
The only reason we didn't brief it is because the court and its en banc order directed us not to provide additional briefing on that point.

[00:17:49] Speaker 01:
And in your view, is there any doubt that Mr. Taylor would be entitled to equitable tolling in these circumstances?

[00:17:58] Speaker 12:
Not in my view, Your Honor.

[00:17:59] Speaker 12:
Assuming that the court was to revisit its precedent that forecloses equitable polling in 5110.

[00:18:05] Speaker 12:
But I think that if any case would qualify for equitable polling, it is Mr. Taylor's case because of the circumstances of the imposition on his liberty and his inability to file for benefits in the manner prescribed by the statute.

[00:18:22] Speaker 11:
Thank you.

[00:18:22] Speaker 11:
Mr. McCloud, what if back in 1970 the VA either threw

[00:18:29] Speaker 11:
its manual or regulation informed veterans that if they didn't have their records, their service records for whatever reason, they should nevertheless file some type of provisional application in order to preserve an early effective date for any benefits that they may be able to be awarded at some future point.

[00:18:54] Speaker 11:
Maybe the records are currently lost or maybe they're classified.

[00:18:58] Speaker 11:
If that had, if there had been such a provision in either the manual or the regulation back in 1970, then would you say that there's a right of access constitutional violation under that circumstance?

[00:19:12] Speaker 12:
No, I don't think so, Judge Chan.

[00:19:14] Speaker 12:
In the scenario you're positing, the government is encouraging veterans to apply for benefits instead of standing in their way.

[00:19:20] Speaker 12:
And so there may be questions about the efficacy

[00:19:25] Speaker 12:
of that right, I could imagine a veteran arguing that even though they, you know, filed the claim, they should be able to put in more information to be able to establish service connection earlier.

[00:19:37] Speaker 12:
But in that circumstance, the government is not an obstacle.

[00:19:40] Speaker 12:
And so there's no violation of the right of access.

[00:19:43] Speaker 11:
Here, there was nothing here that actually stopped Mr. Taylor from filing such a placeholder application, right?

[00:19:52] Speaker 12:
Yes, there was, Your Honor.

[00:19:53] Speaker 11:
It was the secrecy oath.

[00:19:55] Speaker 11:
I'm sorry.

[00:19:56] Speaker 11:
Of course, in order to establish service connection, I completely agree with you on that.

[00:20:01] Speaker 11:
But in terms of just filing an application for purposes of preserving an effective date.

[00:20:07] Speaker 12:
Well, Your Honor, from Mr. Taylor's perspective, the secrecy oath prevented him not only from establishing service connection, but from applying at all.

[00:20:16] Speaker 12:
Mr. Taylor interpreted the oath

[00:20:18] Speaker 12:
in the way that it's written, I think it's plain text, clearly says he's not to talk about what happened to him to anyone.

[00:20:26] Speaker 12:
And so he very reasonably decided that he could not file anything with the VA.

[00:20:32] Speaker 12:
And there has been an acknowledgement by the Army and by the Department of Defense that many similar Edgewood veterans felt the same way, and that the result of the secrecy oath was to preclude veterans from being able to seek benefits.

[00:20:46] Speaker 12:
That was disclosed

[00:20:48] Speaker 12:
in the Vietnam Veterans Litigation in the Northern District of California.

[00:20:51] Speaker 12:
So we think the record in this case plainly shows that Mr. Taylor felt inhibited from seeking benefits because of the secrecy oath.

[00:21:03] Speaker 06:
Do you understand the government who have conceded in this case that had he filed such a placeholder claim that that would have securities effective date?

[00:21:12] Speaker 06:
Because I read their brief and the most I got from it was it's possible it would have.

[00:21:17] Speaker 06:
It is conceivable it would have.

[00:21:20] Speaker 06:
I don't see the government as having

[00:21:22] Speaker 06:
suggested, and perhaps I'm wrong, and I'd like your view on this, that if he had filed a claim all those years ago, it would have, in fact, preserved his effective date, given that it would not have been able to allege, among other things, what his stressor was.

[00:21:36] Speaker 06:
So would you address that, please?

[00:21:38] Speaker 12:
Chief Judge Moore, I read the government's brief exactly the same way that you do, and I think it's notable that the cases the government cites in that portion of its brief all involve veterans who lost.

[00:21:49] Speaker 12:
who were not able to establish the earlier effective days for exactly the reasons I was discussing earlier, which is they could never establish service connection.

[00:21:57] Speaker 12:
So I don't think that Mr. Taylor should have been required to do a feudal act that would expose him to criminal penalties in these circumstances given the secrecy of.

[00:22:07] Speaker 07:
Mr McCloud, I have a follow-up question on that, which is simply that, wouldn't filing a placeholder application have required Mr. Taylor to understand that someday this confidentiality obligation on him would be lifted?

[00:22:22] Speaker 07:
How would he understand that?

[00:22:24] Speaker 12:
That's right, Your Honor.

[00:22:25] Speaker 12:
At the time, if he had filed in 1971, it would be entirely speculative whether this confidentiality obligation would ever be lifted.

[00:22:34] Speaker 12:
And the fact that

[00:22:35] Speaker 12:
It wasn't listed for 35 years, I think shows that it was very reasonable for Mr. Taylor not to simply guess that one day he could file for this.

[00:22:45] Speaker 12:
Mr. Taylor is a soldier.

[00:22:47] Speaker 12:
He was operating under orders from the highest levels of the government, not to disclose this information.

[00:22:54] Speaker 12:
And so for him to just assume that, well, one day they might be fine with it, I think is simply not the way that a reasonable soldier would have reacted to these sorts of orders.

[00:23:02] Speaker 06:
Mr. McLeod, following up even further on that and if if unfortunate circumstances had occurred and if Mr. Taylor had died during the pendency of all of this, what would have happened under those circumstances if it hadn't been declassified and he had passed away as I'm sure many veterans who were involved in this program had?

[00:23:23] Speaker 12:
Your honor, it's very likely that his claim would have been extinguished and the benefits would have

[00:23:28] Speaker 12:
gone away even though Mr. Taylor earned them with his sacrifice and his service to his country.

[00:23:36] Speaker 11:
Mr. McCloud, what if Mr. Grimaldi gets up in 10 minutes and says there was just no possible way to create some kind of alternative mechanism for benefits filing for the Edgewood Program veterans because of national security?

[00:23:56] Speaker 11:
The national security sensitivities were so high, it was just impossible.

[00:24:01] Speaker 11:
So therefore, there was no meaningful way to do this for people in Mr. Taylor's situation.

[00:24:08] Speaker 11:
Would we have the ability to review that determination by the government?

[00:24:15] Speaker 12:
Yes, Your Honor.

[00:24:16] Speaker 12:
And with respect to Mr. Grimaldi, I don't think he could credibly make that claim.

[00:24:20] Speaker 11:
Because as I noted- I know.

[00:24:21] Speaker 11:
This is a hypothetical, though.

[00:24:23] Speaker 11:
What I'm trying to get at is the larger

[00:24:26] Speaker 11:
question, maybe a separation of powers question, which is to what degree do the courts have an opportunity really to even question and review a determination by the executive branch that something was so sensitive to national security that there just wasn't a possible alternative methodology to apply for benefits.

[00:24:52] Speaker 12:
I understand the question, Your Honor, and what I would say is that sort of argument by the government is frequently made in cases involving national security concerns, and they are reviewed deferentially, I would say, by courts, but they are reviewed.

[00:25:05] Speaker 12:
An example is cases involving CIA information that might be subject to FOIA, courts that review those requests.

[00:25:16] Speaker 12:
I apologize, Your Honor, I'm getting...

[00:25:20] Speaker 12:
to review that information and have found that FOIA applies despite the national security setting.

[00:25:26] Speaker 12:
So what I would say is this court, of course, should take seriously statements that are made by the government about what would or would not implicate national security.

[00:25:35] Speaker 12:
But those statements should be reviewed by the court just as the court would review the litigating positions the government takes on other issues that might be of high importance.

[00:25:46] Speaker 12:
This court has an important role to play in the separation of powers.

[00:25:50] Speaker 12:
And that's a role as a guardian of justice and to monitor misconduct by the government.

[00:25:56] Speaker 12:
So we think that for all of those reasons, the court is empowered here to find a violation of the right of access.

[00:26:02] Speaker 01:
But you would agree generally that in those cases, Egan is one of them, the court has expressed a strong deferential standard to be applied on national security.

[00:26:14] Speaker 12:
Brad?

[00:26:15] Speaker 12:
Yes, Your Honor.

[00:26:15] Speaker 12:
I think that that's the standard.

[00:26:16] Speaker 12:
And we're not disputing that.

[00:26:18] Speaker 12:
That sort of standard would apply.

[00:26:19] Speaker 12:
We simply don't think that it's met here, given the lack of a compelling interest and the government's ability to narrowly tailor a program that would have allowed Mr. Taylor to seek benefits at an earlier date.

[00:26:34] Speaker 06:
Mr. McCloud, you're into your rebuttal time.

[00:26:35] Speaker 06:
Would you like to save it?

[00:26:37] Speaker 12:
I would, Your Honor.

[00:26:37] Speaker 12:
Thank you.

[00:26:38] Speaker 06:
Let's hear from Mr. Kumaldi then, please.

[00:26:46] Speaker 13:
Good morning, Your Honors.

[00:26:47] Speaker 13:
May it please the court

[00:26:49] Speaker 13:
Your honor, Mr. Taylor certainly comes before this court in a very sympathetic appeal.

[00:26:54] Speaker 04:
Mr. Caldy, this is Judge Pollack.

[00:26:58] Speaker 04:
I think one of the key issues here is the government's compelling interest.

[00:27:03] Speaker 04:
So I have a question about that, more or less a factual question.

[00:27:09] Speaker 04:
In 1997, we agree that Mr. Taylor was subject to the administration of sarin gas, right?

[00:27:20] Speaker 13:
The record is a little confusing on that.

[00:27:23] Speaker 13:
On page, appendix page 31, there is a discussion of a gas.

[00:27:27] Speaker 13:
Then there's a piece of paper taped with his name on it.

[00:27:30] Speaker 13:
It does appear from the record that he was injected with some sorts of chemical agent, whether it was sarin or something else dangerous.

[00:27:40] Speaker 13:
I'm not 100% positive on your honor, but let's just say for the sake of argument, it is something very dangerous to him.

[00:27:47] Speaker 04:
Let's just say it was a

[00:27:50] Speaker 04:
nerve agent which was banned by the Chemical Weapons Convention in 1997.

[00:27:57] Speaker 04:
After that time, possession or use of that gas was illegal under U.S.

[00:28:04] Speaker 04:
law.

[00:28:06] Speaker 04:
How does the compelling interest continue after that date?

[00:28:09] Speaker 04:
I recognize up to that point, yes.

[00:28:15] Speaker 13:
Well, I mean, Your Honor,

[00:28:17] Speaker 13:
In order for that, there would be to find out whether or not in 1997, the exact chemical agent that was injected into him was banned.

[00:28:28] Speaker 13:
I'm sorry, Your Honor, we talked over each other.

[00:28:30] Speaker 13:
Could you repeat that, please?

[00:28:31] Speaker 04:
The whole class was banned.

[00:28:33] Speaker 13:
The whole class.

[00:28:35] Speaker 13:
We would have to know exactly what was put into his veins.

[00:28:38] Speaker 13:
Unfortunately, I don't think the record is entirely clear as to what exactly was put into him.

[00:28:44] Speaker 13:
You know, the United States, the Secretary has conceded that it appears it was something extremely dangerous.

[00:28:49] Speaker 04:
Assume it was sarin or VX or one of the banned gases.

[00:28:56] Speaker 04:
What's the continued compelling interest?

[00:28:59] Speaker 13:
Well, you know, when this in 2006 was the names of the individuals were declassified for purposes of getting VA benefits, the operational portion of it and things that actually occurred during it was not actually declassified.

[00:29:15] Speaker 13:
So the program that occurred back in the 1970s before anything was banned is classified for a reason.

[00:29:23] Speaker 13:
In Christopher,

[00:29:26] Speaker 13:
The Supreme Court said on page 417 that inquiry into the reasons behind the government's decision to undertake the national security action that it did in that case, looking at it would lead to separation of powers issues.

[00:29:42] Speaker 13:
Judicial inquiry, was the quote that the court said, could lead to separation of powers instances.

[00:29:48] Speaker 13:
So for this court to look in 1997 and say, hey, now it's

[00:29:52] Speaker 13:
by treaty, why does the government have a compelling interest in keeping this classified would be stepping into the province of the executive and the decisions it makes about what programs need to be classified and what programs do not need to be classified, Your Honor.

[00:30:09] Speaker 02:
Okay.

[00:30:10] Speaker 04:
One other question.

[00:30:12] Speaker 04:
The government says that Mr. Taylor can't establish the secrecy of completely foreclosed his ability to

[00:30:22] Speaker 04:
to obtain veterans' benefits.

[00:30:26] Speaker 04:
But clearly, the Espionage Act completely forecloses espionage, does it not?

[00:30:34] Speaker ?:
Correct.

[00:30:35] Speaker 04:
So if he can be charged under the Espionage Act, isn't he completely foreclosed?

[00:30:43] Speaker 04:
Remember, you're looking at it from the soldier's viewpoint.

[00:30:48] Speaker 13:
Well, Your Honor, it's interesting when you say we're looking at it from the soldier's viewpoint, we would argue that this is an objective standard, not a subjective standard.

[00:30:57] Speaker 13:
The question is whether or not he's completely foreclosed from court, not whether he believes he's completely foreclosed from court.

[00:31:04] Speaker 13:
It's a high, high standard.

[00:31:07] Speaker 13:
It's not a standard that's subject to his opinion on it, but rather an objective question of whether or not he can or cannot go.

[00:31:17] Speaker 13:
to court.

[00:31:17] Speaker 04:
Is it a question of his opinion or is it a question of what the government tells him he has to think?

[00:31:25] Speaker 13:
Well, it's the plain language of, I mean, I hate to say this, it's the plain language of the sample oath.

[00:31:31] Speaker 13:
And that's the hard part in this case.

[00:31:33] Speaker 13:
What we're reading is actually not the oath that Mr. Taylor swore to.

[00:31:39] Speaker 13:
It is a sample because it was all that could be found.

[00:31:42] Speaker 13:
And that sample

[00:31:44] Speaker 04:
counsel, your opposing counsel disagrees with you, and my reading of the record disagrees with you as well, in my prior opinion.

[00:31:54] Speaker 13:
Of course, Your Honor, we completely understand that.

[00:31:57] Speaker 13:
And we understand that one could read the oath to say that he's foreclosed from talking to the VA about it.

[00:32:04] Speaker 13:
We don't read it as a complete certainty, which is why we read with the argument that a minimal claim

[00:32:13] Speaker 13:
What's possible here?

[00:32:14] Speaker 13:
That is.

[00:32:14] Speaker 06:
It's just out of curiosity.

[00:32:16] Speaker 06:
This is such more.

[00:32:17] Speaker 06:
I'm truly baffled.

[00:32:19] Speaker 06:
He was subject to a secret CO, but you're saying, but it's not a complete certainty.

[00:32:24] Speaker 06:
Is it enlisted military men that should make the case-by-case assessment over who they think they can reveal secret information to and not reveal secret information to?

[00:32:35] Speaker 13:
Absolutely not, Your Honor.

[00:32:37] Speaker 13:
It is that they are bound by the text of whatever oath they take.

[00:32:42] Speaker 13:
They are bound by secrecy, and we completely understand that.

[00:32:45] Speaker 13:
The question becomes whether the VA was an organization that had authority to know whether or not he was subject to a, injured in a classified program.

[00:32:58] Speaker 06:
Yes, but you, I'm sorry.

[00:33:01] Speaker 01:
Has the DOD or any other security agency taken the position?

[00:33:05] Speaker 01:
I mean, there are a lot of security hosts, but I think this wording is not uncommon.

[00:33:09] Speaker 01:
Has any of them taken the position that therefore what's not covered is that the person can communicate any information to any one of millions of other federal employees and they're not precluded by that security host language from doing that?

[00:33:24] Speaker 01:
Is that something that I know you said it in your brief or suggested in your brief?

[00:33:29] Speaker 01:
Has any other national security or defense department agency suggested that officially?

[00:33:35] Speaker 13:
We haven't, to be honest with you, Honor, we haven't seen any policy statement or anything else on that.

[00:33:39] Speaker 13:
All we saw were the Ospedale, the Angeles, Forest, Stanley, Bishop, and Sweet cases in which individuals specifically went to court or, you know, Veterans Court or District Court, Supreme Court, mentioning the Edgewood program.

[00:33:54] Speaker 13:
And as far as.

[00:33:56] Speaker 01:
So your view is that Mr. Taylor should have somehow known other people at risk.

[00:34:01] Speaker 01:
And we're talking about potential criminal penalties here for disclosure.

[00:34:06] Speaker 01:
They're suggesting that nobody that we know in terms of the DOD or the security agencies that are responsible for crafting and implementing these security oaths have construed it in the way that you suggest, i.e., that it doesn't foreclose discussion of everything and anything with any other federal employee.

[00:34:26] Speaker 01:
You're thinking it would have been reasonable for him to take that risk.

[00:34:29] Speaker 13:
Well, Your Honor, I think the most reasonable option for Mr. Taylor, the safest option, was the one suggested by this court's own bond quarter and the filing of a minimal claim.

[00:34:40] Speaker 02:
It's the one that... He could have filed a minimal claim without discussing the Edgewood program.

[00:34:45] Speaker 02:
He could have said, I have these symptoms.

[00:34:48] Speaker 02:
I'd like the veterans' benefits as a result of that.

[00:34:52] Speaker 02:
In other cases like Shea, that's sufficient for an informal point.

[00:34:57] Speaker 13:
Yes, your honor.

[00:34:59] Speaker 13:
Mr. Taylor's concern here is that he wouldn't have received benefits back in 1971 or 1972.

[00:35:06] Speaker 13:
And we understand that.

[00:35:08] Speaker 13:
It would have been very difficult for him back in 1972 to bring forth the evidence necessary to obtain benefits back then if he could not speak of the Edgewood program.

[00:35:19] Speaker 13:
But as your honor points out, it would have acted as a placeholder.

[00:35:23] Speaker 01:
Well, a lot of your placeholder argument is relying on the 2006 regulation.

[00:35:29] Speaker 01:
So the step we're missing is he would have had to divine in 1971 that however many years later, the DOD would one, declassify the information, and two, the VA would issue a regulation that would allow for him to get retroactive benefits if he had filed a placeholder.

[00:35:52] Speaker 01:
How would he have divined necessarily that in 1971, that that was all going to happen in ensuing years?

[00:35:58] Speaker 01:
Would that be a reasonable requirement on his part?

[00:36:02] Speaker 13:
Well, Your Honor, I mean, again, we're talking about a high, high standard here of being completely foreclosed from court.

[00:36:07] Speaker 11:
And of course- Doesn't it seem like it would have been a hopeless, empty exercise if you put yourself in Mr. Taylor's shoes in 1971?

[00:36:16] Speaker 11:
Maybe not, Your Honor.

[00:36:17] Speaker 11:
I mean.

[00:36:18] Speaker 11:
Well, maybe not because why.

[00:36:20] Speaker 11:
I can't even imagine what Mr. Taylor would think back in 1971 when he's under that strict secrecy order.

[00:36:27] Speaker 11:
Right.

[00:36:27] Speaker 11:
I can't imagine that there was some meaningful opportunity.

[00:36:31] Speaker 11:
I don't think there was one.

[00:36:32] Speaker 11:
I don't see how you can try to conjure up a scenario where there was one.

[00:36:43] Speaker 04:
Let me cut a long story short a little bit.

[00:36:46] Speaker 04:
And that is, keep in mind that what you're asking him to do is speak to another agency other than the Army when he's been told by the Army that he will be prosecuted for talking to anyone about the whole program.

[00:37:02] Speaker 04:
He doesn't know what they're going to ask him.

[00:37:04] Speaker 04:
Now, go ahead.

[00:37:05] Speaker 13:
I understand.

[00:37:06] Speaker 13:
You know, Mr. Taylor, the record shows that he did speak about the Edgewood program afterwards, and he was mistreated when he spoke about it.

[00:37:14] Speaker 13:
He was told it was a fabrication.

[00:37:16] Speaker 13:
So I understand, and the secretary understands, that it was certainly in a terribly difficult situation.

[00:37:24] Speaker 13:
But if we're talking about whether the standard is completely foreclosed, futile, I mean, these are the words that are used in Christopher and the other decisions.

[00:37:34] Speaker 13:
whether or not there was the possibility of filing a minimal claim has to come into play, because it is a tough, tough standard to meet to say that you're completely closed from doing something.

[00:37:49] Speaker 02:
But when they adopted the 2006 rule at the VA, they stated requestedly that the purpose of the rule is to clarify long-standing VA rules.

[00:38:01] Speaker 02:
And it repeatedly, in adopting the rule, this just codifies past practice.

[00:38:06] Speaker 02:
This is not new, right?

[00:38:08] Speaker 13:
And yes, Your Honor, I'm not entirely sure as to when that practice began.

[00:38:13] Speaker 06:
So I'm not... Or where would this veteran have gained the knowledge of it?

[00:38:18] Speaker 06:
How in the world would this veteran have known that there existed in the VA some process by which he needs to file a minimal claim now and then maybe someday if his particular program is declassified, he'll be entitled to benefits if he's not dead?

[00:38:35] Speaker 06:
Where exactly was a veteran to become aware of this supposed practice such that it wasn't futile?

[00:38:44] Speaker 13:
Your Honor, this is completely coming out of speculation on my part because I am not aware of the resources that were available in 1971-72 for veterans, but I'm imagining the American Legion and other organizations like that who have outreach for veterans were doing the same thing 50 years ago that they're doing today.

[00:39:04] Speaker 06:
So the government's position is it's not futile if 50 years ago, veterans organizations were informing veterans that they should file such a minimal claim.

[00:39:14] Speaker 06:
That's your argument?

[00:39:16] Speaker 13:
No, that was a response to our question.

[00:39:18] Speaker 13:
To your question, Your Honor, our argument is very simple.

[00:39:22] Speaker 13:
Minimal claim was an option.

[00:39:24] Speaker 13:
Because minimal claim was an option, regardless of how difficult it might have been, that means he was not completely foreclosed from court.

[00:39:32] Speaker 13:
That is the entirety of that argument.

[00:39:35] Speaker 05:
Just real quickly, when you look at Appendix 77, this is a statement in support of a claim.

[00:39:45] Speaker 05:
Mr. Pena says, I saw behavioral health assistance at Edgewood, at Edgewood Arsenal in service but was denied

[00:39:52] Speaker 05:
says I saw behavioral health assistance at Fort Benning, Georgia and twice in Vietnam during service.

[00:39:58] Speaker 05:
Why isn't that at least a minimum, a minimalist claim?

[00:40:07] Speaker 05:
If we're going to look at abbreviated facts, you don't have to show where you were or what caused your injury.

[00:40:16] Speaker 05:
All you have to state in order to have a minimalist claim is that you have these problems.

[00:40:22] Speaker 05:
and his problems relate back to the time, seems to me this statement in support of the claim does just that.

[00:40:28] Speaker 13:
Well, Your Honor, if Your Honor is sort of talking about the intent to file a rule and all that, I think the quotes that you're citing to are when he's still in active duty.

[00:40:38] Speaker 13:
If he's in active duty.

[00:40:40] Speaker 05:
This is signed October 7.

[00:40:43] Speaker 05:
He's saying that when he was in Vietnam, he reported his injuries, and nothing happened.

[00:40:50] Speaker 05:
Right.

[00:40:51] Speaker 05:
So what do you mean by a minimalist claim if this is not a minimalist claim here?

[00:40:57] Speaker 13:
Well, I think he has to be a veteran to file a minimal claim.

[00:41:01] Speaker 13:
If he's still active duty, he doesn't qualify for benefits because he's not a veteran.

[00:41:04] Speaker 13:
He was still active duty at that time.

[00:41:06] Speaker 13:
I'm not saying, Your Honor, that let me put it this way.

[00:41:11] Speaker 13:
I've seen nothing in the record that indicates that he filed a minimal claim post-service.

[00:41:19] Speaker 13:
Certainly, if he did, I would love to be aware of that because that will really change the dynamic of this case.

[00:41:27] Speaker 01:
You know, one of the things that I thought was most stark about your brief on this point is that the regulation says that it was codifying past practice, so it doesn't explain where that past practice could be found or how it came about.

[00:41:43] Speaker 01:
Your brief doesn't cite to a single instance

[00:41:45] Speaker 01:
of that past practice actually occurring before 2006.

[00:41:50] Speaker 01:
And I would have thought if you had evidence that it really was past practice for any period of time that you would have come forward with that.

[00:41:58] Speaker 13:
Well, Your Honor, you know, obviously we, as I said today, we thought the simple fact that a minimal claim was possible and the court suggested it would be sufficient to prove our point.

[00:42:08] Speaker 13:
But it seems like Your Honor would have appreciated examples

[00:42:13] Speaker 13:
hindsight, I would have loved to put those in.

[00:42:15] Speaker 13:
But we just thought that simply the fact of that this procedure exists.

[00:42:21] Speaker 01:
Well, let me ask a follow-up.

[00:42:22] Speaker 01:
Your whole brief is all peppered with compelling government interests.

[00:42:28] Speaker 01:
Are you saying that the government has a compelling interest in having their soldiers interpret their secrecy notes narrowly?

[00:42:39] Speaker 13:
I'm not sure that those are, we're talking about compelling interest when we're talking about strict scrutiny, Your Honor.

[00:42:46] Speaker 01:
Well, I think you'd want the government's compelling interest would be to say they want those secrecy oaths to be interpreted as broadly as possible.

[00:42:54] Speaker 13:
Well, look, Your Honor, the Secretary recognizes that there are holes in our oath interpretation argument.

[00:42:59] Speaker 13:
We recognize that, which is why we led with the minimal claim one.

[00:43:03] Speaker 13:
The minimal claim argument really hammers down that there was an option for him

[00:43:08] Speaker 13:
But we don't know that there was an option until possibly 2006.

[00:43:13] Speaker 13:
No, Your Honor.

[00:43:14] Speaker 13:
If the regulation that exists that was created in 2006 could be applied to a 1972, 73, 74.

[00:43:23] Speaker 11:
But Mr. Grimaldi, just in getting, following up on Judge O'Malley's question and your response to Judge Dyke's earlier question about 3.156C and whether that was truly a codification of prior practice.

[00:43:38] Speaker 11:
We are very curious to know was there something in the VA's manual that essentially set forth this kind of preservation of an earlier date that ultimately was quote unquote codified in 3.156C.

[00:43:55] Speaker 13:
Specifically the adjudication manual, Your Honor, I'm not aware of that, but I haven't looked.

[00:44:00] Speaker 03:
Are you aware, you're not aware of it because it never existed or because you just don't know the answer?

[00:44:05] Speaker 13:
No, I was about, I was saying because I haven't looked, Your Honor, and you know, we are happy to do that investigation for the court and let the court know if that did appear in writing somewhere for an individual to identify prior to 2006.

[00:44:19] Speaker 13:
But I have to say, Your Honor, I understand the timing issues here, that this didn't exist until 2006, but the fact of the matter is that if he had filed a minimal claim before that time, the 2006 version of 3.156 would have kicked in.

[00:44:35] Speaker 00:
So that means there's no... So were there any other instances where veterans who were part of Edgewood disclosed information to the VA and received benefits?

[00:44:43] Speaker 00:
It's just kind of following up on Judge O'Malley's line of questioning here.

[00:44:47] Speaker 13:
I'm pretty sure the three cases that we cite, D'Angelo, Sospedale, and Faris, I believe it was, those are all three instances where the individual was not able to substantiate their service connection claim in the past, and we're going back to the VA.

[00:45:05] Speaker 13:
So it does not appear that they substantiated their claims establishment and received service connection.

[00:45:13] Speaker 13:
That's why we're reading about them in the 2000s.

[00:45:18] Speaker 13:
Just prove our point, Your Honor, that there was this option out there for him prior to 2006 because these individuals did file something.

[00:45:29] Speaker 11:
Mr. Somali, the program that was created, I guess, between DOD and the VA in terms of being able to carefully and safely handle benefits for people that served in special operations, was there anything that was preventing

[00:45:48] Speaker 11:
the government from doing something similar to that for people that were part of the Edgewood program?

[00:45:56] Speaker 11:
You're not, I just want to make clear that you're not suggesting that in the government's view, the national security issues were so much extra heightened for people in the Edgewood program that they could not have possibly done the same sort of thing that has been done for veterans that served in special operations.

[00:46:15] Speaker 11:
Am I right about that?

[00:46:17] Speaker 13:
Yes, Your Honor, there's certainly special operations that are.

[00:46:20] Speaker 13:
I mean, am I right about that?

[00:46:22] Speaker 13:
I'm not sure if I say yes or no, which exactly position I'm taking.

[00:46:26] Speaker 08:
OK.

[00:46:26] Speaker 13:
It's a difficult question itself.

[00:46:28] Speaker 13:
So I'll just verbalize the Secretary's position on this.

[00:46:32] Speaker 13:
There are certainly special operations that are as sensitive or more sensitive than Edgewood, Your Honor.

[00:46:39] Speaker 13:
I imagine that is the scenario.

[00:46:41] Speaker 13:
Does that answer the question?

[00:46:43] Speaker 11:
That's enough for me.

[00:46:45] Speaker 06:
Thanks.

[00:46:45] Speaker 06:
Does the right of access line of cases require the ability to file what I'll call a meaningful claim?

[00:46:52] Speaker 06:
I mean, the government has admitted in its brief that had he filed in the 1970s, it could at most have been a placeholder.

[00:46:58] Speaker 06:
We don't even go so far as to say it would have for sure been a placeholder.

[00:47:02] Speaker 06:
It's just conceivable or possible it would have been.

[00:47:05] Speaker 06:
But I feel like the government did in fact concede that it would have been futile to imagine he would have actually received benefits

[00:47:12] Speaker 06:
without being able to disclose the actual stressor, namely details about the program.

[00:47:17] Speaker 06:
So does the right of access require simply being able to file a claim or to be able to file a meaningful claim for which there is any hope of actual benefit?

[00:47:27] Speaker 13:
Well, Your Honor, this is a backward-looking claim, and we're looking backwards from 2022 at this point.

[00:47:33] Speaker 13:
So while it wouldn't have been successful, that minimal claim back in the 1970s, we now know because of 3.156,

[00:47:42] Speaker 13:
that relief would have been available to him within the VA system, within the benefits system.

[00:47:50] Speaker 13:
So I would dispute that it's not meaningful, Your Honor, because while it might have failed in the 70s, it would have been fixed, if you will, after 2006, and we wouldn't be here today.

[00:48:01] Speaker 06:
Mr. Taylor would have... But isn't the focus of the futility point on what was futile for him at the time?

[00:48:09] Speaker 06:
It seems awfully...

[00:48:13] Speaker 06:
hindsight oriented to suggest we now know decades, decades later that it might not have been futile.

[00:48:20] Speaker 06:
It's conceivable it wouldn't have been futile.

[00:48:23] Speaker 06:
You don't even admit that it would have secured him an effective date.

[00:48:27] Speaker 06:
Are we really supposed to be looking with the hindsight of the present state of knowledge and the fact that the VA enacted this 2006 regulation, or are we supposed to be assessing the futility at the relevant time period when the claim should have, according to the government, have been filed?

[00:48:43] Speaker 13:
Well, the relevant time period, it runs from 1971 all the way through up to when he filed his claim.

[00:48:52] Speaker 13:
I can't remember the exact year, but it's well before 2019.

[00:48:55] Speaker 13:
when he filed the claim before the board and the Veterans Court, Your Honor.

[00:48:59] Speaker 06:
That's the time period.

[00:49:01] Speaker 06:
It was 2007, right after your regulation.

[00:49:04] Speaker 13:
Oh, right, right.

[00:49:04] Speaker 13:
I'm sorry.

[00:49:05] Speaker 13:
Yeah, you're absolutely right.

[00:49:06] Speaker 13:
So that's the relevant time period.

[00:49:08] Speaker 13:
It is the time period in which we are looking back at the whole time period when Christopher and the Supreme Court and Christopher V. Harberry looked at the whole period when looking back and saw that most likely for a certain time period,

[00:49:23] Speaker 13:
Her husband was alive in a certain time period.

[00:49:27] Speaker 13:
He was deceased.

[00:49:27] Speaker 13:
And there was nothing to be done about it now because he was deceased.

[00:49:30] Speaker 10:
Mr. Grimaldi, can I turn you to a stoppile briefly?

[00:49:33] Speaker 10:
Yeah.

[00:49:34] Speaker 10:
We spent a lot of time on our way to Agnes.

[00:49:36] Speaker 10:
I have a couple of questions about a stoppile.

[00:49:38] Speaker 10:
And recognizing that Richmond is a big bar here, and frankly I think it probably is a bar to us doing anything.

[00:49:46] Speaker 10:
Is there potential for the Supreme Court to modify Richmond in a limited way to recognize a unique brand of a softball when the government rightfully exercises its national security powers, but that leads to unnecessarily unfair, equitable effects on people subject to that order?

[00:50:10] Speaker 10:
Is there a way to

[00:50:12] Speaker 10:
create a limited modification to Richmond's no estoppel rule that would recognize this area very simply the area of the law where we wouldn't have to wait into whether the national security assertion is correct or balance it or the like, but would just recognize that the government at some point can't rely on those interests to downstream prevent benefits.

[00:50:39] Speaker 13:
And we're talking specifically about appropriation statute in your example, Your Honor.

[00:50:44] Speaker 10:
Well, yeah, assuming I think 5110 is akin to the kind of appropriation statute that was at issue in Richmond.

[00:50:51] Speaker 10:
Is there a way for the Supreme Court to do that without opening and specifically confining it to this kind of national security interests without creating a kind of broader, you can't accept the government, which I suspect that they have no interest in doing.

[00:51:07] Speaker 10:
And of course, the Justice Department is not going to support it.

[00:51:10] Speaker 13:
Yeah, Your Honor.

[00:51:10] Speaker 13:
I mean, if we're talking about separation of powers, I mean, OPMB Richmond hinges completely on separation of powers.

[00:51:19] Speaker 13:
and intruding on what Congress can and can't do.

[00:51:21] Speaker 13:
Excuse me, including what the court can and can't do regarding the Congress's power of the purse.

[00:51:28] Speaker 13:
Even if it's about national security, if it's still ordering the payment of money that's in conflict with the statute, OPM v. Richmond instructs that there's a separation of powers issue.

[00:51:40] Speaker 13:
I'm not sure how weighing national security in alters

[00:51:46] Speaker 13:
separation of powers issue that the Supreme Court was concerned about.

[00:51:50] Speaker 10:
Sorry, can I just follow up briefly?

[00:51:54] Speaker 10:
Can I just ask you how that view relates to the remedy we're talking about here?

[00:51:59] Speaker 10:
Because if we view 5110 as a type of appropriations limit that can't be a stop, then in your view, is there any other authority that the court, either us or the veterans work could use to order the secretary to not apply 5110?

[00:52:16] Speaker 13:
I mean, it's difficult in the sense that when looking at the blue brief and seeing what kind of instruction Mr. Taylor has requested from this court, it reads like a broad injunction and a class action preventing the application of 5110 and a slew of cases.

[00:52:37] Speaker 13:
That kind of relief is just a backdoor attempt at equitable estoppel.

[00:52:42] Speaker 13:
Equitable estoppel fails this try

[00:52:44] Speaker 13:
denial of right of access, and then just ask for the exact same thing.

[00:52:49] Speaker 13:
The Veterans Court, looking at 7261 in your questions that you asked before, Your Honor, there's nothing in 7261 that allows the Veterans Court to find the statute that we're talking about here, 5110A, unconstitutional as applied.

[00:53:09] Speaker 09:
I mean, Mr. Grimaldi, why doesn't 7261 do exactly that?

[00:53:15] Speaker 09:
It is a congressional authorization to the Veterans Court to set aside a denial of benefits, and that would be unconstitutional.

[00:53:26] Speaker 09:
And that denial here rests entirely on the application of 5110.

[00:53:34] Speaker 09:
I don't understand why there's an appropriations clause Richmond problem.

[00:53:38] Speaker 09:
with that because it is in fact statutorily authorized.

[00:53:43] Speaker 09:
And never mind about broad injunctions, the relief would be Taylor-specific, unconstitutional as applied to Mr. Taylor.

[00:53:58] Speaker 09:
Your Honor, you say it would have a presidential effect.

[00:54:01] Speaker 09:
Sure, of course.

[00:54:03] Speaker 13:
But there isn't anything in 7261 that says the Veterans Court can find a statute to be unconstitutional as applied.

[00:54:12] Speaker 13:
Looking at 7292C.

[00:54:13] Speaker 09:
I'm sorry, it doesn't provide for setting aside board decisions that are contrary to the Constitution?

[00:54:23] Speaker 09:
Contrary to a constitutional right, that's correct.

[00:54:26] Speaker 09:
I'm sorry, why is this not that?

[00:54:29] Speaker 09:
If it's correct that there is a right of access violation on the assumption, why is that?

[00:54:35] Speaker 13:
Because it requires a determination that 5110A1 is unconstitutional as applied.

[00:54:44] Speaker 13:
Why wouldn't it be if its enforcement would

[00:54:47] Speaker 13:
denied the right of access.

[00:54:49] Speaker 13:
Well, Your Honor, if I can continue with 7292C, I think that will help us resolve this, which states that there is exclusive jurisdiction for this court to find a statute, the Veterans Benefit Statute, unconstitutional.

[00:55:03] Speaker 13:
So in the position of the secretary that while this court can find something unconstitutional as implied, the Veterans Court cannot.

[00:55:12] Speaker 13:
Oh, so what and why would that not be enough for relief in this case?

[00:55:16] Speaker 13:
Well, I mean, I think the problem that we had with the relief that Mr. Taylor has requested is that, as I said before, it seems like a broad injunction in a class action.

[00:55:27] Speaker 13:
But beyond all that, there seems to be a step that's missing in the briefing.

[00:55:32] Speaker 13:
And that is he complains that the oath and the VA's processes violate his constitutional rights.

[00:55:39] Speaker 13:
And then at the end of the reply brief says, find 5110A unconstitutional as applied.

[00:55:46] Speaker 13:
But it doesn't go through the strict scrutiny of 5110A.

[00:55:50] Speaker 13:
So we would say that there would need to be another step in there to determine specifically that 5110A, A1 is unconstitutional as applied to him.

[00:56:00] Speaker 11:
Could you explain what is that missing step that they needed to articulate?

[00:56:05] Speaker 13:
Well, I mean, it's implied.

[00:56:06] Speaker 13:
It's not articulated, Your Honor, and that is that if the argument that the oath violated his constitutional rights and that the VA violated his constitutional rights by not having alternative processes, and then the assumption that 5110A1 is unconstitutional as applied to him, there needs to be the application of strict scrutiny regarding 5110A1 to determine that it itself is unconstitutional as applied to him.

[00:56:36] Speaker 13:
Now, we would argue that it's not, Your Honor, because if you look at the option of filing a minimal claim, he had an option out there to get benefits.

[00:56:49] Speaker 13:
So there is, survives strict scrutiny in that.

[00:56:51] Speaker 11:
Okay.

[00:56:52] Speaker 11:
So if we disagreed with that argument by the government, then it is appropriate to find that 5110A1 in this particular instance would be unconstitutional as applied?

[00:57:04] Speaker 13:
It is possible for this court to reach that conclusion under 7292C.

[00:57:07] Speaker 13:
Okay.

[00:57:09] Speaker 01:
Before you suggest, I want to ask quickly, assuming hypothetically that 5110 would be subject to equitable tolling, would you dispute at all that this is one instance in which equitable tolling would be appropriate?

[00:57:24] Speaker 13:
I think that Mr. Taylor would have a very culpable case for equitable tolling, especially given his medical history and everything that he's been through.

[00:57:34] Speaker 04:
I'd like to follow up with a hypothetical, if I may.

[00:57:38] Speaker 04:
I'll try not to take too long, Chief.

[00:57:42] Speaker 04:
Mr. Grimaldi, assuming that Mr. McLeod and I are correct, that in fact Mr. Taylor was faced with threats of both military criminal prosecution and civil criminal prosecution, would it not be unreasonable, would it be not unreasonable

[00:58:04] Speaker 04:
for a soldier in his position to believe that speaking to anyone about his symptoms, which are caused, he believes, by the gas, would violate those requirements and subject him to criminal prosecution.

[00:58:24] Speaker 13:
I don't think that he would have to say anything like that, Your Honor.

[00:58:27] Speaker 13:
I mean, yes, the short answer to your question is yes.

[00:58:29] Speaker 13:
It would not be unreasonable for him to think that, but it would certainly also not be unreasonable for him to put in a minimal claim that says, I have these symptoms.

[00:58:37] Speaker 13:
I can't talk about the stressor.

[00:58:40] Speaker 13:
I want benefits.

[00:58:41] Speaker 13:
I mean, we've talked about this at length, Your Honors.

[00:58:44] Speaker 13:
We concur that that type of claim probably wouldn't receive benefits in 1972, 73 in that time period.

[00:58:50] Speaker 13:
But because of the 2006 changes,

[00:58:53] Speaker 04:
Just to be clear, you've agreed with me that a soldier in that position could reasonably believe that they can't say anything about their service.

[00:59:06] Speaker 13:
Yes, sir.

[00:59:06] Speaker 13:
Because, as I've stated before, we don't believe that we're talking about a reasonable person standard here.

[00:59:11] Speaker 13:
We're talking about objectively whether or not he's foreclosed, which is a very, very high standard.

[00:59:17] Speaker 05:
But what about going back to the record where I'm pointing it out,

[00:59:23] Speaker 05:
in his statement in support of a claim, he says that he sought behavioral health assistance at Edgewood, the actual arsenal itself, and then twice during his Vietnam tours, and there he talks about his behavioral problems and all.

[00:59:40] Speaker 05:
Why is that not a minimal claim under these circumstances?

[00:59:44] Speaker 05:
If all we're looking for is a placeholder,

[00:59:46] Speaker 05:
Right?

[00:59:47] Speaker 05:
Some sort of notice.

[00:59:48] Speaker 05:
That's it.

[00:59:49] Speaker 05:
That's all we're looking for.

[00:59:50] Speaker 05:
And yet the veteran says, and it's in his claim, that he did seek assistance and he didn't get it.

[00:59:59] Speaker 05:
And then my last question, my last point is this, is that we all know that the secretary has an obligation to assist the veteran

[01:00:10] Speaker 05:
in pursuing and prosecuting claims.

[01:00:14] Speaker 05:
Well, why shouldn't we not look at this statement that's made by the veteran that says he was denied assistance?

[01:00:23] Speaker 05:
So he was even denied the opportunity to file, or at that point, he was not told, this is what you need to do.

[01:00:31] Speaker 05:
Go out and file a paper or do something else.

[01:00:35] Speaker 05:
It seems to me the record reflects that he did put a placeholder in place, and then that he was denied assistance.

[01:00:43] Speaker 05:
I mean, basic, elementary assistance.

[01:00:47] Speaker 13:
Your Honor, I would love for the record to say that he filed a minimal claim.

[01:00:51] Speaker 13:
I mean, that would make this case a lot easier.

[01:00:54] Speaker 13:
The paragraph that you're reading from, Your Honor, I'm struggling with it because it looks like he was in service asking his service, the Army, for help, not talking to the VA as a veteran.

[01:01:05] Speaker 13:
So I think that makes it really difficult to call that a minimal claim because he is not a veteran talking to VA.

[01:01:11] Speaker 05:
The duty of the... So you're using a minimal claim to the VA.

[01:01:16] Speaker 05:
Correct.

[01:01:16] Speaker 05:
So you're looking for more than a minimal claim.

[01:01:20] Speaker 05:
You're actually looking for a formal claim.

[01:01:22] Speaker 05:
No, an informal one would be fine.

[01:01:24] Speaker 05:
Well, he's talking to the US government.

[01:01:26] Speaker 05:
I mean, he's talking to the health authorities at Edward Arsenal and he's talking to

[01:01:32] Speaker 05:
It could have been the VA.

[01:01:33] Speaker 05:
We don't know there, but he did seek help assistance.

[01:01:37] Speaker 05:
And why is that not a placeholder?

[01:01:40] Speaker 13:
I'm struggling with that, Your Honor, because I'm thinking of other cases.

[01:01:43] Speaker 13:
I'm thinking about every time a soldier gets injured and goes to the first aid, is that a claim?

[01:01:49] Speaker 13:
I've been injured.

[01:01:50] Speaker 13:
That this could really snowball and be an administrative nightmare to determine

[01:01:56] Speaker 13:
if there was a holding that this itself was a minimal claim, talking to the Army about his injury while he's in the Army.

[01:02:04] Speaker 13:
This could really have lasting and detrimental impact on the system itself.

[01:02:09] Speaker 11:
Mr. Grimaldi, before you go, can I make a request that you go back and submit a letter, hopefully by the end of today, if possible, that provides where

[01:02:21] Speaker 11:
Was there notice of a preexisting practice of 3156C?

[01:02:27] Speaker 11:
I assume it was in the 2005 version of the VA manual.

[01:02:31] Speaker 11:
And then you could go back and see how far back and earlier versions of the VA manual that shows what was the origin of this practice and when was the public put on notice of it.

[01:02:42] Speaker 13:
I will certainly get with the VA to do that right away, Your Honor.

[01:02:47] Speaker 08:
Thank you.

[01:02:47] Speaker 13:
I'm cautious to say that I'll be able to complete it today, but tomorrow at the latest if that's okay with your honor.

[01:02:54] Speaker 02:
I have one more question.

[01:02:55] Speaker 02:
Is there nothing within the VA system that gives the secretary discretion to deal with this case and to award benefits as a discretionary matter under these circumstances?

[01:03:08] Speaker 13:
You know, during the panel argument, Your Honor, there was a lot of discussion of 38 USC 305 and the discretion the Secretary has to award to provide equitable relief when there's been an administrative error.

[01:03:24] Speaker 13:
It's hard to classify this instance as an administrative error.

[01:03:29] Speaker 13:
I've looked at the record, Your Honor, subsequent to all this and to that argument and preparing for today.

[01:03:37] Speaker 13:
And it does not seem that he has put forth an allegation that there has been an administrative error here.

[01:03:44] Speaker 13:
And he, as far as I understand, he has yet to ask the secretary for relief under 503.

[01:03:52] Speaker 13:
So I think that that would be the only avenue, but I'm not sure it actually applies.

[01:03:57] Speaker 06:
Okay, thank you, Mr. Cromaldi.

[01:04:00] Speaker 06:
Mr. McCloud, we'll restore your full rebuttal time.

[01:04:02] Speaker 06:
Please proceed.

[01:04:04] Speaker 12:
Your honor, let me start by picking up on the point that Mr. Grimaldi just made about Section 503.

[01:04:10] Speaker 12:
We agree with Mr. Grimaldi that that provision unfortunately is not applicable to Mr. Taylor's circumstances because there was not an administrative error in this case.

[01:04:19] Speaker 12:
The reason he didn't apply is because of the secrecy of.

[01:04:22] Speaker 12:
Chief Judge Moore, you asked Mr. Grimaldi whether the standard for the right of access is meaningful access, and we think that that is the standard.

[01:04:31] Speaker 12:
The best case that I have seen for that proposition is the Supreme Court's decision in Johnson versus Avery.

[01:04:38] Speaker 12:
That was a case that involved a prison regulation that prevented prisoners from collaborating on habeas petitions.

[01:04:45] Speaker 12:
And the Supreme Court said, it doesn't matter that these prisoners might be able to submit feudal petitions.

[01:04:52] Speaker 12:
The question is whether they have effective access to the courts.

[01:04:56] Speaker 12:
So we think that the same thing is true here.

[01:04:58] Speaker 12:
The question is whether Mr. Taylor had effective access

[01:05:01] Speaker 12:
to the VA benefit system.

[01:05:03] Speaker 12:
And for all the reasons we've discussed this morning, we don't believe he had such access.

[01:05:08] Speaker 12:
On the question of what the standard should be with respect to potential changes in the bar that creates the problem for the access, I don't think that the standard can be any hypothetical future change in the standard invalidates the right of access claim.

[01:05:27] Speaker 12:
That would effectively eliminate

[01:05:29] Speaker 12:
certainly all forward-looking claims, because it's always possible that that bar might be dropped in a future case.

[01:05:36] Speaker 12:
It would also pose significant problems to backward-looking claims like Mr. Taylor's for all of the reasons that the court has illuminated this morning.

[01:05:47] Speaker 12:
So if the standard for a right-of-access claim were as the government articulates it, it's hard for me to see right-of-access being a meaningful form of relief.

[01:05:57] Speaker 12:
But we know from the Supreme Court

[01:05:59] Speaker 12:
and many other courts, that the right of access is a vital aspect of the constitutional system and certainly one that can be vindicated.

[01:06:07] Speaker 12:
The final point I would make is with respect to relief, we do think that Section 7261 authorizes the Veterans Court to invalidate the provisions in 5110 that prevent Mr. Taylor from getting an earlier effective date if there is a finding of a violation of the right of access.

[01:06:27] Speaker 12:
As Mr. Grimaldi suggested, we also think that this court itself, under its authority under 7292, could reach the same conclusion and produce the same result.

[01:06:40] Speaker 12:
If there are further questions, I'm happy to answer them.

[01:06:43] Speaker 12:
Otherwise, we ask that the judgment of the Veterans Court be reversed in case you were mandated for a determination of the amount of benefits Mr. Taylor owes.

[01:06:52] Speaker 06:
Hearing no further questions, this case is taken under submission and we thank both counsel for their arguments.

[01:07:00] Speaker 12:
Thank you, Your Honor.

[01:07:06] Speaker 13:
The honorable court is adjourned until tomorrow morning at 10 a.m.