Burgan: Presumption of Regularity in Mailinbg

Burgan v. McDonough, Case Number 23-7869, decided August 23, 2024 is a decision by the Veterans Court regarding the presumption of regularity related to the filing of a notice of appeal.

The veteran’s attorney provided both a PO box and street address on the appointment form.  The Board denied an appeal in a September 2021 decision and listed only the physical address and not the P.O. box.  The veteran appointed a VSO in January 2022 for another claim, which caused the attorney to lose access to the electronic claims file.  The attorney’s access was restored in September 2023 when the veteran appointed him again and counsel filed the NOA in December 2023. 

As to whether the veteran had rebutted the presumption, the Court noted “an error in addressing the mail is not alone sufficient to rebut the presumption; rather the error must impact delivery.” Id. at *8.  Reviewing the Domestic Mail Manual guidance on dual addresses, i.e., those containing both a P.O. box and a street address, the Court noted no requirement that both must be provided for the mail to be deliverable. Rather, this guidance states that the priority is for the USPS to deliver the mail to the address directly above the city and the state in the address, and “the party addressing the mail must therefore use the ZIP Code for whichever location is listed immediately about the city and state.” Id. at *9. The Court found that, since appellant provided no authority for the position that omitting the P.O. box or ZIP code for the P.O. box affected delivery and the Board addressed it to his proper street address and ZIP code, he did not meet the burden of demonstrating the omission was consequential to delivery sufficient to rebut the presumption.  Ultimately, the Court found the NOA was untimely and granted the Secretary’s motion to dismiss.

Decision by Judge Pietsch, Greenberg and Meredith. 

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Rorie: Judicial Deference post-Loper Bright

Rorie v. McDonough, Case Number 22-5377, decided August 16, 2024 is a decision by the Veterans Court regarding judicial deference and stare decisis.

The case involves an assertion of an earlier effective date.  There were two arguments.  One, pre-March 2015, a medical professional examination report served as an informal claim pursuant to 38 C.F.R. 3.157(b) and Pacheco v. Gibson.  However, Pacheco also prevented the claim and that was the focus of the Court—how the U.S. Supreme Court’s decision in Kisor v. Wilkie impacted Pacheco.  The veteran argued: “because the Court in Pacheco employed a preKisor deference analysis under Auer to interpret § 3.157(b), we must reevaluate our interpretation of § 3.157(b) using a Kisor-compliant deference analysis.”  Id. at *2.

The Court held that Kisor does not require the Court to revisit Pacheco.  It also noted:

“the Supreme Court overruled the Chevron doctrine that had outlined a framework for judicial deference to administrative agency's views of ambiguous statutes. Significantly, the Supreme Court made clear that its decision did not upset earlier decisions that had relied on the Chevron doctrine. In other words, principles of stare decisis generally required courts to adhere to such earlier decisions that had been rendered under the then-required Chevron framework. We see no principled reason that the same rule of stare decisis does not hold sway in the context of the Supreme Court's change from Auer to Kisor deference in terms of ambiguous regulations. And, as we will explain in detail, to the extent this Court's recent decision in LaBruzza v. McDonough proceeded along a different path, we conclude that it is irreconcilable with the logic of Loper Bright Enterprises v. Raimondo. So, we conclude that we remain bound by Pacheco.”

Id. at *3.

This was an innovative attempt to apply new Supreme Court case law to achieve a more pro-veteran friendly framework of established case law.  However, the Court clearly wants to avoid re-litigating what it perceives to be finally litigated decisions.

Decision by Judge Allen and joined in by Judge Favley with a concurrence by Judge Toth. 

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