finding that the Secretary failed to demonstrate that the Court was legally compelled to deviate from its usual and straightforward application of Rule 10(d) as requiring access to the original paper source documents
How later courts described this case
- finding that the Secretary failed to demonstrate that the Court was legally compelled to deviate from its usual and straightforward application of Rule 10(d) as requiring access to the original paper source documents
Written by the judges who cited it.
The opinion
LANCE, Judge,
concurring:
I fully join the Court’s order. I write separately only to note that, as the Secretary did not argue in this case that VA’s digitization process is entitled to the presumption of regularity, the Court was not required to address that issue. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed.Cir.2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their duties.”). The Secretary is not foreclosed from attempting to invoke that presumption in a future case. In light of the grave concerns identified in the Court’s order, however, he may find it difficult to demonstrate that the presumption attaches. See U.S. v. Roses Inc., 706 *193 F.2d 1563 (Fed.Cir.1983) (“It is really a presumption that what appears regular is regular ... [and] does not help to sustain an action that on its face appears irregular.... If it appears irregular, it is irregular.”).