Darrell R. Okemow-King v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7005
DARRELL R. OKEMOW-KING,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-2280, Judge
William A. Moorman
ON MOTION
Before GAJARSA, LINN, and PROST, Circuit Judges.
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir.
R. 27(f) and to dismiss Darrell R. Okemow-King's appeal as untimely.
Okemow-King sought review by the Court of Appeals for Veterans Claims of a
Board of Veterans' Appeals decision that denied him service-connection for post
traumatic stress disorder. On May 20, 2008, the Court of Appeals for Veterans Claims
entered judgment, affirming the Board's decision. On August 6, 2008, 78 days after
entry of judgment, Okemow-King filed a notice of appeal seeking review by this court.
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). Because Okemow-King's notice of appeal was received by with the Court of

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FILEDClerk U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
Jan Horbaly
Appeals for Veterans Claims on August 6, 2008, 78 days after entry of judgment, it is
untimely.
The time limit for filing a notice of appeal is jurisdictional. See Bowles v. Russell
127 S.Ct. 2360, 2364-66 (2007) (timely filing of notice of appeal is a jurisdictional
requirement). Thus, Okemo-King's failure to timely file a notice of appeal may not be
waived and the period to appeal may not be tolled by this court. See Bowles 127 S.Ct. at
2366 (the court has "no authority to create equitable exceptions to jurisdictional
requirements"); Marandola v. United States, 518 F.3d 913, 914 (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."); Oia v. Army, 405 F.3d 1349, 1358 (Fed.
Cir. 2005) (time provisions of Fed. R. App. P. 4(a) are not subject to equitable tolling).
Therefore, the appeal must be dismissed.
Accordingly,
IT IS ORDERED THAT:
The Secretary's motions are granted. The appeal is dismissed as
untimely.
Each side shall bear its own costs.
FOR THE COURT
FEB 6 2009
/s/ Jan Horbaly
Date
cc: Darrell R. Okemow-King
Anuj Vohra, Esq.
s20
ISSUED AS A MANDATE: FEB 6 2009 FEB 0 6 2009
JAN HORESALY
CLERK
2009-7005 - 2 -

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