Donald R. Schroerlucke, and Joyce D. Schroerlucke v. United States

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

DONALD R. SCHROERLUCKE, AND JOYCE D.
SCHROERLUCKE,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.

2012-5026

Appeal from the United States Court of Federal
Claims in case no. 09-CV-772, Judge Marian Blank Horn.

## ON MOTION

Before RADER, Chief Judge, GAJARSA and REYNA, Circuit
Judges.

REYNA, Circuit Judge.

## ORDER

The United States moves to dismiss this appeal from
the judgment of the United States Court of Federal
Claims for lack of jurisdiction. The appellants oppose.

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In November 2009, the appellants filed a complaint in
the Court of Federal Claims seeking a refund of their
federal taxes. On September 21, 2011, the court granted
summary judgment in favor of the government, and
entered its final judgment on September 23, 2011.

The appellants' notice of appeal was received at the
court on November 28, 2011, 66 days after entry of final
judgment.

Rule 4(a)(1)(B) of the Federal Rules of Appellate Pro-
cedure govern the time for filing a notice of appeal from a
judgment of the Court of Federal Claims. Fed. R. App. P.
4(a)(1)(B). It provides that "[w]hen the United States or
its officer or agency is a party, the notice of appeal may be
filed by any party within 60 days after the judgment or
order appealed from is entered."

The Supreme Court has firmly established that the
statutory deadlines for taking an appeal from one court to
another court are jurisdictional and mandatory. See
Henderson v. Shinseki, 131 S. Ct. 1197, 1203-04 (2011);
Bowles v. Russell, 551 U.S. 205, 213-14 (2007). Therefore,
a court has no authority to create equitable exceptions for
untimely notices of appeal. Id.

The United States contends that the appeal is un-
timely-which it is-and asks the court to dismiss the
appeal.

The appellants seek refuge in Fed. R. App. P. 5, which
authorizes trial courts to extend the time to file a notice of
appeal if "(i) a party so moves no later than 30 days after
the time prescribed by this Rule 4(a) expires; and (ii)
regardless of whether its motion is filed before or during
the 30 days after the time prescribed by this Rule 4(a)
expires, that party shows excusable neglect or good
cause." Fed. R. App. P. 5(A)-(C) (emphasis added).

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The appellants' suggestion that Fed. R. App. P. 5 au-
thorizes this court to accept their untimely notice of
appeal based on excusable neglect or good cause ignores
the plain language of the statute: no motion for an exten-
sion of time was ever filed in the trial court, let alone a
motion within 30 days from the date of judgment. Any
request below now would be untimely, leaving both the
trial court and this court without authority to grant such
relief.

Accordingly,

IT IS ORDERED THAT:

(1) The motion to dismiss is granted.

(2) Each side shall bear their own costs.

FOR THE COURT

MAR 1 5 2012

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Randall Paul Andreozzi, Esq.
Randolph L. Hutter, Esq.

s19

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAR 15 2012
JAN HORBALY
CLERK