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.

In June 2023 the court handed down its final decision, holding that Mr. Taylor is entitled to disability benefits retroactive to the date he would have obtained them if the government had not blocked his application with a secrecy agreement.

A plurality of the court—6 of 13 judges—rejected the veteran’s arguments based on equitable estoppel and statutory construction, which it found to be foreclosed by the Supreme Court’s decision in the Arellano case, but concluded—just as we had argued—that the constitutional right of access to courts renders the statutory filing-date requirement unconstitutional as applied to Mr. Tayor. The plurality explained:

“For decades, the government denied Mr. Taylor his fundamental constitutional right of access to the adjudication system of VA, the exclusive forum for securing his legal entitlement to the benefits at issue. The government’s threat of court-martial or prosecution—without an exception for claims made to VA—affirmatively foreclosed meaningful access to the exclusive adjudicatory forum. And without questioning the strength of the interest in military secrecy, we see no adequate justification for this denial of access. … For those reasons, which reach what we would expect to be a very rare set of circumstances, we hold that the claim-filing effective-date provisions of § 5110 are unconstitutional as applied to Mr. Taylor.”

But a majority of 7 judges refused to join in that reasoning. Five of them concluded that the case should be decided based on equitable estoppel, which they believed was not foreclosed by the Arellano case, and that Mr. Taylor is entitled to relief on that theory. They explained:

“[R]ather than fulfilling its duty to notify Mr. Taylor of [his right to seek benefits], the VA effectively told Mr. Taylor falsely that he could not seek disability compensation because he would violate his secrecy oath. … [T]he government’s violation of its statutory duty to provide veterans with ‘full information’ of available benefits prevents it from enforcing the statutory deadline that would otherwise apply to Mr. Taylor’s benefit claim.”

But a majority of eight judges rejected that reasoning, including two judges who rejected both theories.

So Mr. Taylor will get his benefits, but there is no majority opinion for the court explaining why.


Date filed

October 5, 2021


U.S. Court of Appeals for the Federal Circuit


Amicus Filed