Rashid El Malik v. Eric K. Shinseki, Secretary of Veterans Affairs

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

RASHID EL MALIK,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2010-7131

Appeal from the United States Court of Appeals for
Veterans Claims in 08-3741, Chief Judge William P.
Greene, Jr.

Before LOURIE, GAJARSA, and LINN, Circuit Judges.
PER CURIAM.

ORDER

The Secretary of Veterans Affairs moves to waive the
requirements of Fed. Cir. R. 27(f) and dismiss Rashid El
Malik's appeal as untimely. In the alternative, the Secre-
tary moves to summarily affirm the judgment of the
United States Court of Appeals for Veterans Claims. El
Malik submits a letter concerning his appeal.

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The certified list of docket entries of the United States
Court of Appeals for Veterans Claims in El Malik v.
Shinseki, No. 08-3741, reflects that that court's judgment
was entered on January 22, 2010. That court dismissed
El Malik's appeal for lack of jurisdiction. El Malik filed a
motion with the Court of Appeals for Veterans Claims for
an extension of time to file a motion for reconsideration.
The court granted El Malik's motion, and El Malik filed a
motion for reconsideration within the extended period.
On June 4, 2010, the court denied El Malik's motion and
El Malik filed an additional motion for reconsideration or
panel review. El Malik filed another motion for reconsid-
eration on July 13, 2010. The court rejected the addi-
tional documents as untimely. The court issued its
mandate on July 27, 2010. The Court of Appeals for
Veterans Claims received El Malik's notice of appeal on
August 9, 2010.

An appeal from a decision of the Court of Appeals for
Veterans Claims must be filed within 60 days of entry of
judgment. See 38 U.S.C. § 7292(a); Fed. R. App. P.
4(a)(1). In this case, the notice of appeal from the judg-
ment was due no later than March 23, 2010, and any
notice of appeal from the June 4, 2010 order denying his
motion for reconsideration was due no later than August
3, 2010. Because El Malik's notice of appeal was filed
with the Court of Appeals for Veterans Claims on August
9, 2010, it was untimely.

The requirement to timely file a notice of appeal is ju-
risdictional. See Bowles v. Russell, 551 U.S. 205, 214
(2007) (timely filing of notice of appeal is a jurisdictional
requirement); Marandola v. United States, 518 F.3d 913
(Fed. Cir. 2008) ("An untimely appeal must be dismissed
for lack of jurisdiction; the requirement cannot be waived,
and is not subject to equitable tolling.").

Accordingly,

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IT IS ORDERED THAT:

(1) The motion to dismiss is granted. Any other mo-
tions are denied as moot.

(2) Each side shall bear its own costs.

FOR THE COURT

FEB 0 9 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Rashid El Malik,
Steven M. Mager, Esq.

s20

ISSUED AS A MANDATE:

FEB 0 9 2011

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
FEB 0 9 2011

JAN HORBALY
CLERK