Unpublished Dispositionmary Smotherman, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 887 F.2d 265 (6th Cir. 1989)

ORDER

This matter is before the court upon consideration of the appellant's response to this court's August 2, 1989, order directing the appellant to show cause why her appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant states that she sent her notice of appeal to the district court on June 22, 1989, but it was returned because of insufficient postage. She did not receive it back from the post office until July 3, 1989, and did not remail it until July 6, 1989, because of the holiday.

It appears from the documents before the court that the judgment was entered May 1, 1989. The notice of appeal filed on July 7, 1989, was seven days late. Fed. R. App. P. 4(a) and 26(a).

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed. R. App. P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. McMillan v. Barksdale, 823 F.2d 981, 982 (6th Cir. 1987); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir. 1985); Denley v. Shearson/American Express, Inc., 733 F.2d 39, 41 (6th Cir. 1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (6th Cir. 1983). Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal. Mailing of a notice of appeal does not constitute filing. The date of receipt of the notice of appeal in the district court is what confers jurisdiction in this court. Torras Herreria v. M/V Timur Star, 803 F.2d 215, 216 (6th Cir. 1986); Haney v. Mizell Memorial Hosp., 744 F.2d 1467, 1472 (11th Cir. 1984). Receipt of the envelope containing the notice of appeal was refused for insufficient postage.

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