John Tarkowski v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7053
JOHN TARKOWSKI,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in
06-2070, Chief Judge William P. Greene, Jr.
Before GAJARSA, FRIEDMAN, and LINN, Circuit Judges.
PER CURIAM.
ORDER
John Tarkowski responds to the court's March 18, 2009 order directing
Tarkowski to show cause why his appeal should not be dismissed as untimely. The
Secretary of Veterans Affairs also responds.
On September 5, 2008, the United States Court of Appeals for Veterans Claims
entered judgment in Tarkowski's case. On DeceMber 3, 2008, or 89 days after entry of
judgment, Tarkowski filed a notice of appeal with the United States Court of Appeals for
the Seventh Circuit. The appeal was subsequently transferred to this court.
To be timely, a notice of appeal must be received by the Court of Appeals for
Veterans Claims within 60 days of the entry of judgment. See 38 U.S.C. § 7292(a); 28
U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1). Tarkowski argues that the Seventh Circuit
failed to appoint him counsel or provide him sufficient clarification. The timely filing of

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his notice of appeal in a civil case is a jurisdictional requirement that cannot be waived.
Bowles v. Russell, 551 U.S. 205 (2007). Here, even if Tarkowski's appeal is treated as
having been filed with the Court of Appeals for Veterans Claims on December 3, when
it was received by the Seventh Circuit, his appeal would still be untimely. Because the
appeal was not received within the statutory deadline for filing, we must dismiss this
appeal as untimely.
Accordingly,
IT IS ORDERED THAT:
The appeal is dismissed.
All sides shall bear their own costs.
FOR THE COURT
MAY - 5 2009 /s/ Jan Horbalv
Date Jan Horbaly
Clerk
uvitilweeN
cc: John Tarkowski
Cameron Cohick, Esq. MAY -5 2009
s19 .kihriUtittal
ISSUED AS A MANDATE: MAY - 5 2009 CLERK
2009-7053 2

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