Warren L. Hambrick v. Secretary of Health and Human Services , 904 F.2d 707 ( 1990 )

904 F.2d 707

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Warren L. HAMBRICK, Plaintiff-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 89-3666.

United States Court of Appeals, Sixth Circuit.

June 14, 1990.

1

Before KRUPANSKY and ALAN E. NORRIS, Circuit Judges and WENDELL A. MILES, Senior District Judge*.

ORDER

2

This court entered an order remanding the case to the district court. Although the July 20, 1989, notice of appeal from the judgment entered April 28, 1989, was twenty-eight days late, appellant stated that in an earlier letter he evinced his intent to appeal. See Fed.R.App.P. 4(a) and 26(a). The remand of the case was for the purpose of ascertaining whether the district court received such a letter and for filing such, if appropriate, as a notice of appeal. Appellant's motion for appointment of counsel was held in abeyance pending remand. The district court on remand entered an order stating that no letter evincing the appellant's intent to appeal was located in the files of the court.

3

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed.R.App.P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir.1989) (per curiam); McMillan v. Barksdale, 823 F.2d 981, 982 (6th Cir.1987); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir.1985); Denley v. Shearson/American Express, Inc., 733 F.2d 39, 41 (6th Cir.1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (6th Cir.1983). Fed.R.App.P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

4

It is ORDERED that the motion for counsel be denied and the appeal be, and it hereby is, dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.

*

The Honorable Wendell A. Miles, Senior U.S. District Judge for the Western District of Michigan, sitting by designation