AYTONA v. SHINSEKI , No. 13-7131 (Fed. Cir. 2013)

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Case: 13-7131 Document: 7 Page: 1 Filed: 12/12/2013 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ LOURDES A. AYTONA, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2013-7131 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 11-3233, Judge William P. Greene, Jr. __________________________ ORDER __________________________ Before RADER, Chief Judge, LOURIE and TARANTO, Circuit Judges. PER CURIAM. Lourdes A. Aytona ( Aytona ) has appealed from a decision of the United States Court of Appeals for Veterans Claims ( Veterans Court ) denying entitlement to Dependents Educational Assistance for her adopted chil- Case: 13-7131 Document: 7 Page: 2 Filed: 12/12/2013 AYTONA v. SHINSEKI 2 dren. We consider whether Aytona s appeal must be dismissed for lack of jurisdiction. On May 7, 2013, the Veterans Court entered judgment in Aytona s case. Her notice of appeal was received on August 2, 2013; 87 days after the date of judgment. To be timely, a notice of appeal must be received by the Veterans Court within 60 days of the entry of judgment. 38 U.S.C. § 7292(a); 28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1). Like appeals from district courts, the statutorily prescribed time for filing appeals from the Veterans Court to this court is mandatory and jurisdictional. See Wagner v. Shinseki, 733 F.3d 1343, 1348 (Fed. Cir. 2013); see also Henderson v. Shinseki, 131 S. Ct. 1197, 1204-05 (2011) (indicating jurisdictional restrictions on the time for taking an appeal under section 7292(a)). Accordingly, even in circumstances in which it would be equitable to do so, this court is without authority to waive the deadline for filing an appeal to this court from the Veterans Court. See Bowles v. Russell, 551 U.S. 205, 214 (2007). Because Aytona s appeal as to the underlying judgment was filed outside of the statutory deadline for taking an appeal to this court, we must dismiss the appeal. Accordingly, IT IS ORDERED THAT: (1) The appeal is dismissed. (2) Each side shall bear its own costs. FOR THE COURT /s/ Daniel E. O Toole Daniel E. O Toole Clerk of Court Case: 13-7131 3 s26 Document: 7 Page: 3 Filed: 12/12/2013 AYTONA v. SHINSEKI