Constance L. Kiggins v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7030
CONSTANCE L. KIGGINS
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-2206, Chief
Judge William P. Greene, Jr.
ON MOTION
Before NEWMAN, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to dismiss Constance L. Kiggins' appeal
as untimely. Constance L. Kiggins opposes.
The Secretary argues that Kiggins did not timely file her notice of appeal of the
United States Court of Appeals for Veterans Claims' September 12, 2008 judgment and
thus is untimely. The docket sheet of the Court of Appeals for Veterans Claims
indicates that the court received Kiggins' notice of appeal on November 21, 2008, or 70
days after entry of judgment.
Any appeal of the judgment had to be received by the Court of Appeals for
Veterans Claims within 60 days of the date of entry of judgment in order to be timely.
38 U.S.C. § 7292(a); 28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1). The time limit for

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filing a notice of appeal is jurisdictional. See Bowles v. Russell 551 U.S. , 127 S.Ct.
2360 (2007) (timely filing of notice of appeal in civil case is jurisdictional requirement);
Griggs v. Provident Consumer Discount Co. 459 U.S. 56, 61 (1982) ("It is well settled
that the requirement of a timely notice of appeal is 'mandatory and jurisdictional.' "
(citation omitted)). Thus, Kiggins' failure to file timely a notice of appeal may not be
waived. See 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). Because Kiggins' notice of appeal
was received by the Court of Appeals for Veterans Claims 70 days after the entry of
judgment, the appeal must be dismissed as untimely filed.
Accordingly,
IT IS ORDERED THAT:
The appeal is dismissed as untimely filed.
Each side shall bear its own costs.
FOR THE COURT
MAR 0 5 2009 /s/ Jan Horbaly
Date Jan Horbaly
Clerk FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
cc: Constance L. Kiggins
David A. Harrington, Esq. MAR 05 Z009
s20 JHIe 1.10Ei.
CLERK
MAR 0 5 2009
ISSUED AS A MANDATE:
2009-7030 2

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