Silverio A. Balba, Claimant-Appellant v. Edward J. Derwinski, Secretary of Veterans Affairs , 976 F.2d 746 ( 1992 )

976 F.2d 746

NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Silverio A. BALBA, Claimant-Appellant,
v.
Edward J. DERWINSKI, Secretary of Veterans Affairs,
Respondent-Appellee.

No. 92-7041.

United States Court of Appeals, Federal Circuit.

June 12, 1992.

Before LOURIE, Circuit Judge, COWEN, Senior Circuit Judge, and RADER, Circuit Judge.

ON MOTION

RADER, Circuit Judge.

ORDER

1

The Secretary of the Department of Veterans Affairs moves to waive Fed.Cir.R. 27(d) and to dismiss the appeal of Silverio A. Balba for lack of jurisdiction. Balba has not filed a response.

2

On January 31, 1991, the Court of Veterans Appeals, No. 90-1143, dismissed Balba's appeal of a Board of Veterans Appeals' decision as untimely filed. More than one year later, on February 10, 1992, Balba filed a notice of appeal.*

3

Pursuant to 38 U.S.C. § 7292(a), review of a Court of Veterans Appeals' decision by this court "shall be obtained by filing a notice of appeal with the Court of Veterans Appeals within the same time and in the manner prescribed for appeal to United States Courts of Appeals from United States district courts." If the United States is a party, an appellant must file a notice of appeal within 60 days of the decision being appealed. Fed.R.App.P. 4(a)(1). The 60-day time period for filing a notice of appeal is mandatory and jurisdictional and may not be extended by the court. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982). Thus, Balba's appeal filed nearly 11 months beyond the prescribed time must be dismissed.

4

Accordingly,

IT IS ORDERED THAT:

5

(1) The Secretary's motion to waive Fed.Cir.R. 27(d) is granted.

6

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

*

Balba erroneously filed his notice of appeal in this court. However, Balba's notice of appeal was transmitted to the Court of Veterans Appeals on March 12, 1992 pursuant to Fed.R.App.P. 4(a)(1)