Sellers and the Presumption of Regularity

Sellers v. McDonough, Case Number 23-4114, decided December 20, 2024 involves whether a notice of appeal filed in July 2023 from a June 1996 Board decision was untimely. 

The VA filed a motion to dismiss the appeal as untimely.  The veteran noted he had not received the notice of the June 1996 Board decision until July 2023 when his current counsel reviewed the record.

The question was whether the VA had fulfilled its notice obligations, specifically the duty to notify the veteran of the Board decision when it had actual knowledge the address the Board used was not his current address even though it was the address on file with the VA at the time. 

The Court held: “Our decision today is a narrow one. As we will explain in more detail below, we assume that Davis controls the situation we face and, that under Davis, VA only has an obligation to search for additional and plausible addresses that existed at the time of the Board's decision. So for the purposes of this decision, we assume–without deciding–that the Board satisfied its notice obligations under Davis at the time it mailed its June 1996 decision because there were no other plausible addresses in the file beyond the address the Board used to mail the decision to appellant. That does not end the matter, however, because we also conclude that under the unique facts of this case, the Board bound itself to greater notice obligations than Davis required. Specifically, the Board directed VA to continue to search for addresses that would afford appellant actual notice of the June 1996 decision. And because VA failed to satisfy those greater notice obligations, the presumption of regularity does not resolve the question about whether this appeal is timely. Instead, the relevant legal principle is that an agency may elect to provide a claimant more process than the law requires. The Board did so in 1996, and VA did not comply with those additional procedural protections. So on that narrow basis, we will deny the Secretary's motion to dismiss appellant's appeal.”  Id. at *2.

The case offers a good summary of the presumption of regularity and VA’s notice obligations. 

Order by Chief Judge Allen as well as Judges Pietsch and Bartley. 

 To know more about whether Thomas Andrews can help you, please visit my website.