Ebb Allen, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 891 F.2d 289 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 891 F.2d 289 (6th Cir. 1989)

Dec. 7, 1989


Before KEITH, NATHANIEL R. JONES and BOGGS, Circuit Judges.


ORDER

This matter is before the court upon consideration of the appellant's response to this court's September 28, 1989, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant states that the district court's decision was sent to his counsel and that he mistakenly sent his pro se notice of appeal to this court. Appellant has also filed a motion for leave to proceed on appeal in forma pauperis and for appointment of counsel.

It appears from the documents before the court that the judgment was entered July 5, 1989. The notice of appeal filed on September 6, 1989, was one day late. Fed. R. App. P. 4(a) and 26(a). Pursuant to Fed. R. App. P. 4(a) (1), the notice of appeal was deemed filed in the district court on the date it was mistakenly received in this court.

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. Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir. 1989) (per curiam); 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.

It is ORDERED that appellant's motion to proceed in forma pauperis and for appointment of counsel be denied and the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.