Megan De’an Whittington v. United States

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MEGAN DE’AN WHITTINGTON,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-1571
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01801-MBH, Senior Judge Marian Blank
Horn.
______________________
ON MOTION
______________________
P ER CURIAM .
O R D E R
Megan De’an Whittington moves for leave to proceed in
forma pauperis. In response to the court’s May 25, 2022,
order to show cause, Ms. Whittington opposes dismissal.
The United States responds in favor of dismissal.
Ms. Whittington filed the underlying complaint at the
United States Court of Federal Claims. The Court of
Case: 22-1571 Document: 18 Page: 1 Filed: 07/05/2022

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WHITTINGTON v. US 2
Federal Claims dismissed without prejudice and entered
judgment on January 4, 2022. Ms. Whittington states that
she attempted to file an appeal with the Court of Federal
Claims via email on February 23, 2022, but learned on
March 10, 2022, that no appeal had yet been received by
that court. Ms. Whittington states that she then mailed
her notice of appeal to the Court of Federal Claims, which
was received March 15, 2022, seventy days after the judg-
ment.
To be timely, a notice of appeal must be received by the
Court of Federal Claims within 60 days of the entry of judg-
ment. See 28 U.S.C. § 2522; 28 U.S.C. § 2107(b). We have
held that the filing deadline for civil appeals from the Court
of Federal Claims to this court is a jurisdictional rule im-
posed by Congress with the intent of denying this court ju-
risdiction once a filing window has closed. See Marandola
v. United States, 518 F.3d 913, 914 (Fed. Cir. 2008); Bowles
v. Russell, 551 U.S. 205, 209 (2007). Thus, while we are
sympathetic to Ms. Whittington’s situation, this court may
only consider whether her notice of appeal was timely and
cannot toll based on her individual circumstances. Because
her appeal was filed outside the 60-day window, this court
lacks jurisdiction and must dismiss.
Ms. Whittington also appears to be trying to invoke
Federal Rule of Appellate Procedure 4(a)(5)(A), which au-
thorizes trial courts to extend the time to appeal for excus-
able neglect. To the extent that Ms. Whittington is asking
this court to construe her notice of appeal or her response
to the show cause order as such a request and transmit it
to the Court of Federal Claims for consideration, we see no
basis to do so in the circumstances of this case. That rule
authorizes trial courts to extend the time to appeal only
when there is a motion filed no later than 30 days after
expiration of the time to appeal. Fed. R. App.
P. 4(a)(5)(A)(i). Because the notice of appeal cannot rea-
sonably be construed as seeking such relief and the re-
sponse to the show cause order was filed well outside that
Case: 22-1571 Document: 18 Page: 2 Filed: 07/05/2022

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WHITTINGTON v. US 3
30-day deadline, we must decline to transmit those filings
for consideration.
Accordingly,
I T I S O RDERED T HAT :
(1) The appeal is dismissed.
(2) All pending motions are denied as moot.
(3) Each side shall bear its own costs.
July 5, 2022
Date
F OR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
Case: 22-1571 Document: 18 Page: 3 Filed: 07/05/2022

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