Singh v. Brake

When a party shows by a preponderance of the evidence, through counsel's representations in a petition and orally in a conference call, that it did not receive a copy of a merits panel's final decision, the Trial Section may reset the date of the final decision to the date both parties had received it. That reset restarts the time for a request for reconsideration (37 CFR § 1.658(b)) and for appeal or judicial review, and the Board need not require a declaration or additional documentary evidence of non-receipt where there is no reasonable basis to doubt counsel's truthfulness. No prior Board precedent is named in the text as directly addressing this issue. For the opposing party in the interference (here Brake), the decision means a bare objection that the non-receipt showing lacks a declaration will not defeat a request to reset the decision date, and the other side's reconsideration and appeal windows can reopen well after the original deadlines. For the party claiming non-receipt (Singh), counsel's petition statements and oral representations can suffice, because proving a negative is difficult and the Board wants interferences resolved in "a just, speedy, and inexpensive" manner under 37 CFR § 1.601. The Board relied on presumptions of regularity and receipt from Haley v. Department of the Treasury, 977 F.2d 553 (Fed. Cir. 1992), and Hoffenberg v. Commissioner of Internal Revenue, 905 F.2d 665 (2d Cir. 1990), but treated both as rebuttable. LEGAL TEST OR STANDARD: Two rebuttable presumptions apply: that Office personnel mailed the opinion to the addressees listed on its last page, and that properly addressed first-class mail was received. The movant must rebut them by a preponderance of the evidence, meaning the fact is more probable than not. The Board treated the request as one to reset the date of the final decision, not only as an extension under the excusable neglect standard of 37 CFR § 1.304(a)(3)(ii). That standard applies only in part, because it would not extend the reconsideration period, which is governed by the good cause standard of 37 CFR § 1.645(b). The representations here sufficed under either excusable neglect or good cause. TRIGGERING FACTS: Final decision entered August 31, 1998. Counsel for Singh first learned of it in a November 3, 1998 call from Brake's counsel. Singh petitioned on November 4, after the November 2 appeal deadline and the September 30 reconsideration deadline. Counsel represented in the petition and orally that his firm's records showed no receipt before November 4. The Board found no reasonable basis to doubt those representations. The firm picked up a copy at the Clerk's Office on November 5. KEY QUOTE: "There is no reason to complicate the record in this interference with additional evidence, particularly given the principle that interference cases are to be resolved in "a just, speedy, and inexpensive" manner." (Paper 168, p. 7) PRIOR PRECEDENT AFFECTED: No prior precedential or informative decision is directly affected. PRACTICE TIP: If you did not receive a final decision, file a prompt petition to reset the decision date. State non-receipt expressly and support it with counsel's representations, and a declaration or records showing how the firm's mail is handled is prudent but not required. Be ready to confirm the facts in any conference call. Do not assume you can wait; move as soon as you learn of the decision.