McCreary v. Nicholson

198 F. App'x 934

Opinion

ORDER

PER CURIAM.

Gregory B. McCreary responds to the court’s order to show cause why his appeal from the Court of Appeals for Veterans Claims’ judgment in McCreary v. Nicholson, no. 05-2543, should not be dismissed as untimely. The Secretary of Veterans Affairs also responds.

Pursuant to 38 U.S.C. § 7292(a), review of a final decision by the Court of Appeals for Veterans Claims “shall be obtained by filing a notice of appeal with the Court of Appeals for Veterans Claims within the time and in the manner prescribed for appeal to the United States courts of appeals from United States district courts.” In district court cases involving the United States, the time period for filing a notice of appeal is within 60 days after entry of judgment. Fed. R.App. P. 4(a)(1). “The time for appeal is ‘mandatory and jurisdictional.’ ” Kraft, Inc. v. United States, 85 F.3d 602, 604 (Fed.Cir.1996) (quoting Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988)). This court may not extend the time for filing a notice of appeal. Fed. R.App. P. 26(b)(1).

The Court of Appeals for Veterans Claims entered judgment in this case on January 10, 2006. The Court of Appeals for Veterans Claims received McCreary’s notice of appeal on April 11, 2006, or 91 days after entry of judgment.

* Because McCreary failed to file his notice of appeal within 60 days of the date of judgment, this court must dismiss McCreary’s appeal as untimely.

Accordingly,

IT IS ORDERED THAT:

(1) The appeal is dismissed.

(2) Each side shall bear its own costs.

In addition, McCreary sent this court a copy of the notice of appeal. This court received the notice of appeal on April 7, 2006, also more than 60 days after entiy of judgment.