King v. McDonough

Case: 23-2291 Document: 11 Page: 1 Filed: 12/14/2023

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

WENDY KING, Claimant-Appellant

v.

DENIS MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee ______________________

2023-2291 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 21-6310, Judge Joseph L. Falvey, Jr. ______________________

Before PROST, HUGHES, and STOLL, Circuit Judges. PER CURIAM. ORDER In response to this court’s September 20, 2023, show cause order, the Secretary of Veterans Affairs urges dis- missal of the appeal as untimely. Wendy King responds, urging the court not to dismiss because she “told the attor- ney [she] wanted to continue but he did not respond,” ECF No. 8 at 2.

Case: 23-2291 Document: 11 Page: 2 Filed: 12/14/2023 2 KING v. MCDONOUGH

The United States Court of Appeals for Veterans Claims entered judgment in this case on March 28, 2023. The Veterans Court received Ms. King’s notice of appeal 115 days later on July 21, 2023. To be timely, a notice of appeal must be received by the Veterans Court within 60 days of the entry of judgment. See 38 U.S.C. § 7292(a); see also 28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B); Fed. Cir. R. 1(a)(1)(D). Like appeals from district courts, the statutorily prescribed time for fil- ing appeals from the Veterans Court to this court is man- datory and jurisdictional, meaning that we cannot take account of individual circumstances for the untimely filing. See Wagner v. Shinseki, 733 F.3d 1343, 1348 (Fed. Cir. 2013); see also Henderson v. Shinseki, 562 U.S. 428, 438– 39 (2011) (indicating jurisdictional restrictions on the time for taking an appeal under section 7292(a)). Because Ms. King’s notice of appeal was not filed within 60 days of the final judgment of the Veterans Court, * we must dismiss the appeal. Accordingly,

• • On June 30, 2023, Ms. King filed at the Veterans Court a motion for an extension of time, see ECF No. 9, but that court did not act on the extension motion, which was not filed within the time window in which such a motion could be granted. Fed. R. App. P. 4(a)(5)(A) (“The district court may extend the time to file a notice of appeal if . . . a party so moves no later than 30 days after the time pre- scribed by this Rule 4(a) expires.”); 28 U.S.C. § 2107(c); 38 U.S.C. § 7292(a) (providing that appeals from the Veterans Court “shall be obtained by filing a notice of appeal . . . within the time and in the manner prescribed for appeal . . . from United States district courts”).

Case: 23-2291 Document: 11 Page: 3 Filed: 12/14/2023 KING v. MCDONOUGH 3

IT IS ORDERED THAT: (1) The appeal is dismissed. (2) Each side shall bear its own costs. FOR THE COURT

December 14, 2023 Date