Ernest P. Lampert; Delphine Lampert, Plaintiffs/appellants, v. United States of America, Defendant/appellee, 951 F.2d 360 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 951 F.2d 360 (9th Cir. 1991) Submitted Dec. 12, 1991*Decided Dec. 23, 1991

Before GOODWIN, SKOPIL and NOONAN, Circuit Judges.

The United States moves to dismiss this appeal for lack of appellate jurisdiction based on the Lamperts' failure to file a timely notice of appeal. A timely notice of appeal is mandatory and jurisdictional. Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir. 1988). Federal Rule of Appellate Procedure 4(a) (1) provides that in a civil case where the United States is a party, an effective notice of appeal must be filed with the clerk of the district court within sixty days of entry of the order appealed from. The district court may extend that time period only if a party (1) moves for an extension of time no later than thirty days after the expiration of the original appeal period; and (2) makes a sufficient showing of excusable neglect for not meeting the original deadline. Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411 (9th Cir. 1986).

The Lamperts cannot meet the first requirement because they failed to seek an extension of time in the district court. A party's "failure to make a timely motion to file a notice of appeal out of time prohibits either the district court or this court from reviving its right to appeal." Id. In such instances, we "can neither grant an extension nor remand to the district court for a determination of whether an extension was warranted." In re Hoag Ranches, 846 F.2d 1225, 1229 (9th Cir. 1988).



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3