Donna Boyd v. Eric K. Shinseki, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

DONNA BOYD,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2011-7209

Appeal from the United States Court of Appeals for
Veterans Claims in 08-3714, Judge Frank Q. Nebeker.

## ON MOTION

Before BRYSON, MAYER, and LINN, Circuit Judges.
PER CURIAM.

ORDER

Donna Boyd and the Secretary of Veterans Affairs re-
spond to this court's October 6, 2011 show cause order.
The Secretary moves to dismiss Boyd's appeal for lack of
jurisdiction. Boyd opposes.

<!-- PageBreak -->

<!-- PageHeader="BOYD V DVA" -->

Boyd sought review by the United States Court of Ap-
peals for Veterans Claims from a decision denying her
entitlement to an earlier effective date for her service-
connected post-traumatic stress disorder. On March 9,
2011, the Veterans Court affirmed the agency's decision.
On March 30, 2011, Boyd moved for reconsideration of
that decision, which was denied by the court in an order
issued May 5, 2011. The same day, judgment issued in a
separate order, and on July 6, 2011, the court's mandate
issued. Boyd concedes she received a copy of the judg-
ment and the mandate.

The Veterans Court received Boyd's notice of appeal
on September 19, 2011, 137 days after the date of judg-
ment. The notice of appeal stated that Boyd was filing it
on that date "due to not receiving the Order dated May
5th," and that she was only "appraised of the Court of
Appeals for Veterans Claims order for the first time on
August 22, 2011, while speaking with [one of the court's]
Deputy Clerk[s]." Boyd further noted that she "subse-
quently receive[ed] the order by mail on [August, 24,
2011]."

As the Secretary notes in his motion to dismiss this
appeal as untimely, an appeal from the Court of Appeals
for Veterans Claims must be received within 60 days from
the date of entry of judgment, and here Boyd's appeal was
not received by the court within this statutory period of
time. See 38 U.S.C. § 7292(a); 28 U.S.C. § 2107(b); Fed.
R. App. P. 4(a)(1). Boyd's response asserts, as does her
notice of appeal, that she was not notified of the denial of
her motion for reconsideration. Boyd does, however, state
that she received timely notice of the issuance of judg-
ment, which started the time for her to file an appeal.

We agree with the Secretary that even if Boyd did not
receive notice of the decision, her appeal must nonetheless
be dismissed for lack of jurisdiction. In Henderson v.
Shinseki, 131 S. Ct. 1197, 1204-05 (2011), the Supreme

<!-- PageBreak -->

Court made clear that unlike in appeals from the Board of
Veterans' Appeals to the Veterans Court, Congress in-
tended to impose the same jurisdictional restrictions on
an appeal from the Veterans Court to the Federal Circuit
as on an appeal from a district court to a court of appeals.
As such, the statutory deadline for taking an appeal to
this court is jurisdictional and thus mandatory. Bowles v.
Russell, 551 U.S. 205 (2007).

In Bowles, a convicted prisoner filed a habeas petition
following his unsuccessful challenge to his conviction and
sentence on direct appeal. After entry of judgment by the
district court denying his petition for habeas relief,
Bowles had 30 days to file a notice of appeal with the
Court of Appeals, but failed to timely do so. Nonetheless,
the district court granted Bowles's motion pursuant to
Rule 4(a)(6) to reopen the time period during which he
could file a notice of appeal. The district court apparently
provided him 17 days to file a notice of appeal as opposed
to the 14 additional days provided for by the Rule.

The Supreme Court held in Bowles that its cases have
long held that the taking of an appeal within the pre-
scribed time specified in a statute is "mandatory and
jurisdictional." Id. at 209. The Court further rejected
Bowles's contention that given the unique circumstances
of his case and any excusable neglect based on the actions
of the district court, he should receive an equitable excep-
tion to the jurisdictional time limit period. Id. at 213-14.
The court explained that the court "has no authority to
create equitable exceptions to jurisdictional require-
ments," even if such "rigorous rules ... are thought to be
inequitable[.]" Id. at 214.

Although the circumstances in Bowles were different
from those in the present case, the Supreme Court reason-
ing in Bowles forecloses the possibility of excusing Boyd's
late filing. Even assuming Boyd is correct that the Veter-
ans Court was negligent in failing to mail her its decision

<!-- PageBreak -->

<!-- PageHeader="BOYD V DVA" -->

denying her motion for reconsideration, Boyd was never-
theless obligated under the statute to file her notice of
appeal within 60 days from the date of judgment in her
case. This court has no authority to create an equitable
exception in this case.

Accordingly,

IT IS ORDERED THAT:

(1) The Secretary's motion is granted. The appeal is
dismissed.

(2) Each side shall bear its own costs.

FOR THE COURT

APR 0 2 2012

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk
\-

cc: Donna Boyd
Michael D. Snyder, Esq.
s19

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
APR 02 2012

JAN HORBALY
CLERK