Ashley v. Derwinski — Presumption of regularity can be rebutted by clear evidence that Board mailing practices were irregular

On reconsideration, the Court addressed whether the veteran’s Notice of Appeal was timely under 38 U.S.C. § 7266. The Board decision was dated October 24, 1990, and the Notice of Appeal was received March 1, 1991, outside the ordinary 120-day period. The dispute turned on whether the Board had properly mailed a copy of the decision to the claimant’s representative as required by 38 U.S.C. § 7104(e), because the appeal period begins only when notice is mailed pursuant to that statute.

The Court reaffirmed that government officials are entitled to a presumption of regularity, meaning their official duties are presumed properly performed. But the presumption can be rebutted by clear evidence to the contrary. Here, the appellant submitted declarations and contemporaneous correspondence suggesting that the Board’s mailing practices were irregular and that the representative of record may not have been served in the regular course. Although the Secretary later offered a declaration describing ordinary mailing procedures, the appellant produced uncontroverted evidence that contradicted the Secretary’s claimed practice. Because the Secretary did not carry the burden of showing proper mailing after the presumption was rebutted, the Court held that the 120-day period did not begin until the defect was cured when the decision was actually received on November 1, 1990.

The Court therefore denied dismissal for lack of jurisdiction and allowed the appeal to proceed on the merits. The opinion also criticized both sides’ litigation conduct and emphasized that representatives must maintain clear mailing addresses if they expect to receive Board decisions directly.

The presumption of regularity applies to Board mailing practices, but clear evidence that the Board did not follow its ordinary mailing procedure rebuts the presumption and prevents the 120-day appeal period under 38 U.S.C. § 7266 from beginning until proper mailing is shown.

Timeliness jurisdiction can turn on proof of actual mailing practice, not just the date on the Board decision. Advocates should preserve evidence of service irregularities when challenging dismissal for untimeliness.

Ashley is a foundational jurisdiction case on how veterans can rebut the presumption of regularity in Board mailing cases. It is often cited when the timeliness of an appeal depends on whether the Board properly mailed notice to the claimant or representative.

Assuming the date on the Board decision always starts the appeal clock without confirming that the decision was properly mailed to the claimant and representative.

A veteran files a Notice of Appeal more than 120 days after the Board decision date, but the claims file and representative correspondence show the Board did not mail the decision to the proper representative address until later. Ashley supports arguing that the appeal period began only when proper mailing occurred.

Use Ashley to oppose dismissal for untimeliness where there is evidence that Board notice was not mailed in compliance with § 7104(e). It is especially useful when the record contains inconsistent mailing addresses, missing service documentation, or evidence that the Board’s regular practice was not followed.

United States v. Chemical Foundation, Inc., Rosler v. Derwinski, United States v. Roses, Inc., Fugere v. Derwinski, Tobler v. Derwinski, Butler v. Derwinski