Unpublished Dispositionroy E. Davenport, Plaintiff-appellant, v. Edward J. Derwinski, Secretary, United States Department Ofveterans Affairs, Defendant-appellee, 895 F.2d 1412 (6th Cir. 1990)Annotate this Case
Feb. 7, 1990
Before NATHANIEL R. JONES and RYAN, Circuit Judges, and DOUGLAS W. HILLMAN, Chief District Judge* .
This matter is before the court upon consideration of the appellant's response to this court's November 29, 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. His response states that he wrote to Washington for help, called Knoxville for help, was referred to Nashville, and Nashville advised him to call Cookeville. On October 30, 1989, he requested a form notice of appeal from the district court in Cookeville. He received the form notice of appeal on November 1, 1989, which he completed and filed the same day.
It appears from the record that the final order was entered September 1, 1989. The notice of appeal filed on November 1, 1989, was one day 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. 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.
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.
The Honorable Douglas W. Hillman, Chief U.S. District Judge for the Western District of Michigan, sitting by designation