Louis Kerlinsky v. Eric K. Shinseki, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

LOUIS KERLINSKY,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2012-7118

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-1934, Judge Frank Q.
Nebeker.

ON MOTION

Before PROST, MAYER, and REYNA, Circuit Judges.
PER CURIAM.

## ORDER

The Secretary of Veterans Affairs moves to dismiss
this appeal as untimely. Louis Kerlinsky responds.

On March 31, 2011, the United States Court of Ap-
peals for Veterans Claims entered judgment in Ker-

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linsky's case. The court received Kerlinsky's notice of
appeal on May 10, 2012, 406 days after the date of judg-
ment.

To be timely, a notice of appeal must be filed with 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); see also Henderson v.
Shinseki, 131 S. Ct. 1197, 1204-05 (2011) (the language of
Section 7292(a) "clearly signals an intent" to impose the
same jurisdictional restrictions on an appeal from the
Veterans Court to the Federal Circuit as imposed on
appeals from a district court to a court of appeals). The
statutory deadline for taking an appeal to this court is
jurisdictional and thus mandatory. See Bowles v. Russell,
551 U.S. 205 (2007). Because Kerlinsky's appeal as to the
underlying judgment was filed 346 days outside of the
statutory deadline for taking an appeal to this court, we
must dismiss the appeal.

To the extent that Kerlinsky is seeking review of the
Veterans Court's April 25, 2012, denial of his motion to
vacate judgment, Kerlinsky has presented no explanation
in his brief or response as to why the mandate should be
recalled and we discern no error in the Veterans Court's
holding that recalling mandate was not warranted under
the circumstances. We therefore summarily affirm the
decision. See Joshua v. United States, 17 F.3d 378, 380
(Fed. Cir. 1994) (summary affirmance of a case "is appro-
priate, inter alia, when the position of one party is so
clearly correct as a matter of law that no substantial
question regarding the outcome of the appeal exists").

Accordingly,

IT IS ORDERED THAT:

(1) The motion is granted-in-part.

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(2) The appeal of the March 31, 2011, Veterans Court
decision is dismissed.

(3) The Veterans Court's April 25, 2012, denial of mo-
tion to vacate judgment is summarily affirmed.

(4) Each side shall bear its own costs.

FOR THE COURT

AUG 13 2012

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Louis Kerlinsky
Renee Gerber, Esq.

s26

Issued As A Mandate:
AUG 13 2012
\-

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
AUG 13 2012
JAN HORBALY
CLERK