Dudley v. United States

222 F. App'x 988

Opinion

ORDER

PER CURIAM.

Gene E. Dudley moves for reconsideration of the court’s January 23, 2007 order directing him to pay the filing fee and moves for leave to appeal out of time.

The court’s January 23 order stated that because Dudley is a prisoner who has had three or more actions or appeals dismissed as frivolous, malicious, or for failure to state a claim, he is not eligible to proceed in forma pauperis under the terms of 28 U.S.C. § 1915(g), and stated that if he did not pay the filing fee his appeal would be dismissed. Dudley has not paid the fee or shown that the provisions of § 1915(g) are not applicable to his case. Thus, we deny reconsideration.

Further, Dudley’s appeal is untimely. The United States Court of Federal Claims’ docket sheet reflects that judgment was entered on October 27, 2006. Dudley filed his notice of appeal on December 27, 2006,

* 61 days later. See Fed. R. App. P. 4(a)(1)(B) (appeal from a decision of a trial court in a case where the United States is a party must be filed within 60 days of entry of the judgment or order appealed from). The court cannot extend the time for filing a notice of appeal. See Fed. R.App. P. 26(b)(1). Thus, Dudley’s appeal is untimely and must be dismissed. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S. Ct. 400, 74 L.Ed.2d 225 (1982) (“It is well settled that the requirement of a timely notice of appeal is ‘mandatory and jurisdictional.’ ” (citation omitted)); Sofarelli Associates, Inc. v. United States, 716 F.2d 1395 (Fed.Cir.1983) (appeal must be dismissed for lack of jurisdiction where notice of appeal is untimely).

Accordingly,

IT IS ORDERED THAT:

(1) The motion for reconsideration is denied.

(2) The motion for leave to appeal out of time is denied.

(3) The appeal is dismissed.

The trial court did not receive Dudley's notice of appeal until January 3, 2007. As a prisoner his notice of appeal would be timely if he had placed it in the prison mail system on or before the last day for filing. See Fed. R.App. P. 4(c). However, Dudley did not place the notice of appeal in the prison mail system until December 27, 2006, 61 days after entry of judgment.