Juanita L. Tucker v. Albert v. Casey, Individually and as Postmaster General of the United States , 883 F.2d 76 ( 1989 )

883 F.2d 76

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Juanita L. TUCKER, Plaintiff-Appellant,
v.
Albert V. CASEY, individually and as Postmaster General of
the United States, Defendant-Appellee.

No. 89-1689.

United States Court of Appeals, Sixth Circuit.

Aug. 22, 1989.

1

Before KEITH and BOYCE F. MARTIN, Jr., Circuit Judges and JULIA S. GIBBONS, District Judge*.

ORDER

2

This matter is before the court upon consideration of the appellant's response to this court's July 3, 1989, order directing her to show cause why her appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Her response stated that on July 9, 1989, she requested an extention of time for filing her notice of appeal from the district court. On July 19, 1989, the appellee filed a motion to dismiss to which appellant responded.

3

It appears from the record that the final judgment was entered May 26, 1988. The notice of appeal filed on June 1, 1989, was over ten months late. Fed.R.App.P. 4(a) and 26(a). The notice of appeal was due to be filed on or before July 25, 1988, and any motion for extension of time was required to be filed on or before August 24, 1988. Fed.R.App.P. 4(a)(1) and 4(a)(5). The district court denied appellant's motion for extension of time. The motion for extension of time sent to the court on July 9, 1989, was outside the period provided by Fed.R.App.P. 4(a)(5) and the district court was without authority to grant such an extension. See Parke-Chapley Const. Co. v. Cherrington, 865 F.2d 907, 909 (7th Cir.1989); Malone v. Avenenti, 850 F.2d 569, 571-73 (9th Cir.1988); Donlin v. Watkins, 814 F.2d 273, 276 n. 1 (6th Cir.1987); Kennedy v. City of Cleveland, 797 F.2d 297, 301 (6th Cir.1986), cert. denied, 479 U.S. 1103 (1987); Denley v. Shearson/American Express, Inc., 733 F.2d 39, 42 (6th Cir.1984) (per curiam).

4

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. 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.

5

It is ORDERED that the motion to dismiss be granted and the appeal be, and it hereby is, dismissed. Rule 8, Rules of the Sixth Circuit.

*

The Honorable Julia S. Gibbons, U.S. District Judge for the Eastern District of Tennessee, sitting by designation