Alfredo P. Bayaca, Claimant-appellant, v. Jesse Brown, Secretary of Veterans Affairs, Respondent-appellee, 36 F.3d 1107 (Fed. Cir. 1994)

The Secretary of Veterans Affairs moves for leave to waive Fed. Cir. R. 27(e) and to dismiss Alfredo P. Bayaca's appeal. Bayaca has not filed a response.

On November 22, 1993, the Court of Veterans Appeals entered a final judgment. Bayaca's notice of appeal was not filed until February 22, 1994, 92 days after entry of the judgment.

Pursuant to 38 U.S.C. § 7292, a party may seek review of a decision of the Court of Veterans Appeals "by filing a notice of appeal with the Court of Veterans Appeals within the time and manner prescribed for appeal to United States courts of appeals from the United States district courts." Fed. R. App. P. 4(a), governing appeals from the district courts, requires that when the United States is a party, a notice of appeal must be filed with the trial court "within 60 days" from the date of entry of the judgment.

The filing of a timely notice of appeal is "mandatory and jurisdictional." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982); Sofarelli Associates Inc. v. United States, 716 F.2d 1395, 1396 (Fed. Cir. 1983). Bayaca did not file his notice of appeal within the statutory period and, therefore, Bayaca's appeal should be dismissed.

Accordingly,

IT IS ORDERED THAT:

(1) The Secretary's motion to waive the requirements of Fed. Cir. R. 27(e) is granted.

(2) The Secretary's motion to dismiss is granted.

(3) Each side shall bear its own costs.