Unpublished Dispositionpatrick J. Kenny, Plaintiff-appellant, v. United States of America, Defendant-appellee, 793 F.2d 1292 (6th Cir. 1986)

This matter is before the Court upon consideration of appellant's response to this Court's December 6, 1984, show cause order. The case was remanded to the district court on January 22, 1985, for possible correction of the record since it was impossible for this Court to determine the truthfulness of appellant's allegations that he tendered a notice of appeal on March 26, 1984, in addition to the notice of appeal filed July 28, 1984. Upon remand, the district court filed an order on April 17, 1986. A search of the district court's records did not locate the alleged March, 1984, notice of appeal. However, it appears that the return mail receipt for the package allegedly containing the notice of appeal shows that the package was not sent to the district court but instead to the United States Attorney's Office. The only notice of appeal tendered in the district court was the notice of appeal dated July 16, 1984, and filed July 28, 1984.

It appears from the record that the final order was entered January 31, 1984. The notice of appeal filed on July 28, 1984, was 117 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure.

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First Nat'l Bank and Trust Co., 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

It is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(d) (1), Rules of the Sixth Circuit.