In 1969, seventeen-year-old Bruce Taylor enlisted in the army and volunteered for a secret weapons testing program at the Edgewood Arsenal in Maryland, where he was used as a human guinea pig in experiments with chemical weapons. As a result, he has suffered from a lifelong, disabling mental health condition. But for 35 years he was unable to apply for veterans benefits because he had signed a secrecy agreement prohibiting him from telling anyone about his experience at Edgewood.
In 2006, the Pentagon finally notified servicemembers who had participated in the Edgewood testing program that they had permission to disclose their experience to health care providers and that they should “speak to a VA representative about filing a disability claim” for any “chronic health problems” that resulted. Mr. Taylor filed a claim for VA benefits in February 2007, and the VA awarded him total disability benefits beginning on that date. He would have been entitled to benefits going back to his 1971 discharge from the service, but for a statute, 38 U.S.C. § 5110, which provides that “the effective date of an award … shall not be earlier than the date of receipt of application therefor.”
He went to court seeking retroactive benefits on the ground that the government had prohibited him from applying until 2007, but the Board of Veterans Claims, and the Veterans Court, and a three-judge panel of the Court of Appeals for the Federal Circuit, 3 F.4th 1351 (2021), all ruled that the statutory deadline could not be disregarded (technically, that it was not subject to “equitable tolling”). But the court then decided on its own motion to reconsider the case en banc and invited amicus briefs.
In October 2021 we and the National ACLU filed an amicus brief, arguing that “[t]hreatening a person with punishment for accessing the courts, erecting insurmountable barriers, or covering up evidence all violate the right to access courts,” which is guaranteed by the First Amendment (freedom to petition for redress of grievances), the Fifth Amendment (due process), the Equal Protection Clause, and the Privileges and Immunities Clause in Article IV of the Constitution.
After the case was briefed, however, the Supreme Court agreed to hear a case raising similar questions, and the Federal Circuit stayed Mr. Taylor’s case pending the Supreme Court’s decision. The Supreme Court case, Arellano v. McDonough, was decided in January 2023. On March 1, the Federal Circuit ordered the parties to file supplemental briefs addressing the impact of that decision.
