Samson J. Hypolite v. United States

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit 2009-5106

SAMSON J. HYPOLITE

Plaintiff-Appellant,

V.
UNITED STATES,
Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 08-CV-110,
Judge Francis M. Allegra.

ON MOTION

Before RADER, CLEVENGER, and DYK, Circuit Judges.
PER CURIAM.

## ORDER

The United States moves to waive the requirements of Fed. Cir. R. 27(f) and
dismiss Samson J. Hypolite's appeal as untimely. Hypolite opposes.

Hypolite seeks to appeal the United States Court of Federal Claims' order in
Hypolite v. United States, case no. 08-110. The Court of Federal Claims entered
judgment in that case on September 25, 2008. Hypolite did not file his notice of appeal
until July 7, 2009, or 285 days later.

The United States argues that Hypolite's appeal is untimely because it was not
filed within 60 days of the entry of judgment. The United States argues that in order for
Hypolite's notice of appeal to be timely, he was required to be file the appeal no later
than November 24, 2008.

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An appeal from a judgment of the Court of Federal Claims must be filed within 60
days of entry of judgment. See Fed. R. App. P. 4(a)(1)(B). Because Hypolite's filed his
notice of appeal on July 7, 2009, 285 days after entry of judgment, this court lacks
jurisdiction. See Bowles v. Russell, 551 U.S. 205 (2007) (timely filing of notice of appeal
is a jurisdictional requirement); An untimely appeal must be dismissed for lack of
jurisdiction; the requirement cannot be waived, and is not subject to equitable tolling. Id.
See also Sofarelli Assocs., Inc. v. United States, 716 F.2d 1395 (Fed. Cir. 1983) (appeal
must be dismissed for lack of jurisdiction if notice of appeal is untimely).

Accordingly,

IT IS ORDERED THAT:

(1)
The motions are granted.

(2)
Each side shall bear its own costs.

FOR THE COURT

NOV 1 0 2009

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc:

Samson J. Hypolite

Kenneth S. Kessler, Esq.

$20

PILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
NOV 10 2009
JAN HURBALY
CLERK

ISSUED AS A MANDATE:

NOV 1 0 2009

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