Bey v. United States

110 F. App'x 115

• Court: Court of Appeals for the Federal Circuit
• Decided: September 3, 2004
• Docket: No. 04-5073
• Status: Published

Opinion

ORDER

DYK, Circuit Judge.

Nazeer M. Bey responds to the court’s order directing him to show cause why his appeal should not be dismissed as untimely.

The docket sheet reflects that the judgment of the United States Court of Federal Claims in Bey’s case was entered on December 18, 2003. Bey filed his notice of appeal (NOA) on April 12, 2004. In his response to our show cause order, Bey asserts that the trial court’s “dismissal order was not filed until January 20, 2004[,]” and attaches the alleged dismissal order. However the attached order is one entitled “Order Returning Documents Unfiled,” which states:

On December 18, 2003, the court issued an order dismissing plaintiffs complaint for failure to state a claim. Accordingly, the court is returning unfiled plaintiffs January 9, 2004 summary judgment brief. No further pleadings may be filed in this closed case.

Bey asserts that he did not receive a copy of this Order Returning Documents until March 29, 2004 and, therefore, his April 12, 2004 NOA was timely.

Bey seeks to appeal the judgment dismissing his appeal. That judgment was entered December 18, 2003 and his notice of appeal was filed 116 days later. An appeal from a decision of the Court of Federal Claims must be filed within 60 days of the entry of judgment. See 28 U.S.C. § 2107(b); Fed. RApp. P. 4(a)(1)(B). “The courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional.” United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). Therefore, because Bey filed his notice of appeal seeking review by this court more than 60 days after entry of the trial court’s final judgment, we must dismiss for untimeliness.

Accordingly,

IT IS ORDERED THAT:

(1) Bey’s appeal is dismissed.

(2) Each side shall bear its own costs.