Conyers: The Doctrine of Constructive Possession Applied

Conyers v. McDonough, Case Number 2023-1525, decided January 30, 2024 and decided by the Federal Circuit involves a discussion of the doctrine of constructive possession.

This involved a pro se veteran who sought employment benefits under the Veteran Readiness and Employment program.  After two administrative reviews denied him benefits, he appealed to the Board which also denied.  The appeal was also denied by the Veterans Court, which also rejected the veteran’s claim that certain documents formed part of the administrative record under the doctrine of constructive possession.  The Federal Circuit found the Veteran’s Court applied the incorrect legal standard under Euzebio I (“direct relationship” between the document and the claim) as opposed to Euzebio II (“relevance and reasonableness”).

The Federal Circuit began by discussing it in general:

“The concept of constructive possession arises in many legal contexts, including criminal law and property law.  In the context of veterans law, the constructive possession doctrine generally applies such that “evidence that is within the Secretary’s control and could reasonably be expected to be a part of the record before the Secretary and the Board is constructively part of the administrative record.”

Id. at *6.

The Court noted that when the veteran filed his motion to compel the addition of the documents to the record, Euzebio II had not been issued.  It then explained Euzebio I had involved a public document that was published during the pendency of that case before the Board and raised the the question of whether the Veterans Court should have deemed the document to have been constructively possessed by the Board when it reviewed Mr. Euzebio’s appeal.  But, on appeal Euzebio I was overturned by the Federal Circuit, which found: 

“the correct standard for constructive possession is whether the evidence is “relevant and reasonably connected to the veteran’s claim.”  Id. at 1321 (internal quotations and citations omitted). We noted that requiring a showing of relevance and not a direct relationship “makes sense in light of the VA’s statutory duty to assist veterans in developing the evidence necessary to substantiate their claims.” Id. (internal quotations and citations omitted). The constructive possession doctrine provides a safeguard that ensures all record documents reasonably expected to be part of a veteran’s claim are included in the administrative record.”

Id. at *7.    The Federal Circuit noted that after Euzebio II was issued, the veteran continued to raise the issue and the Veterans Court failed to mention Euzebio II.

This decision is an interesting explication of Euzebio II and helps to clarify the doctrine of constructive possession.

Decision by Judge Reyna and joined in by Chief Judge Moore and Judge Hughes. 

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