Javillonar v. Shinseki ( 2014 )

Case: 14-7062 Document: 8 Page: 1 Filed: 05/29/2014
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SUSANA B. JAVILLONAR,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2014-7062
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-4030, Judge Robert N. Davis.
______________________
ON MOTION
______________________
Before RADER, Chief Judge, NEWMAN and HUGHES, Circuit
Judges.
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to file a re-
sponse to this court’s show cause order out of time and
moves to dismiss.
Case: 14-7062 Document: 8 Page: 2 Filed: 05/29/2014
2 JAVILLONAR v. SHINSEKI
This case originally arose out of a claim filed by Su-
sana B. Javillonar seeking benefits from the Department
of Veterans Affairs based on the service of her deceased
husband, Felipe J. Javillonar. While Mrs. Javillonar’s
appeal was pending, the United States Court of Appeals
for Veterans Claims (“Veterans Court”) was informed that
she had also died.
The Javillonars’ son, Artemio B. Javillonar, subse-
quently filed a motion to substitute. The Veterans Court,
however, denied that motion and entered judgment set-
ting aside the underlying decision and dismissing the
appeal. The Veterans Court issued its judgment on
November 22, 2013.
Although Artemio’s notice of appeal was originally re-
ceived on or about December 24, 2013 by the Department
of Veterans Affairs, Office of General Counsel, the Veter-
ans Court did not receive the notice of appeal until Feb-
ruary 7, 2014, 77 days after judgment.
To be timely, a notice of appeal must be received by
the Veterans Court within 60 days of the entry of judg-
ment. See 38 U.S.C. § 7292(a); 28 U.S.C. § 2107(b); Fed.
R. App. P. 4(a)(1). This statutorily-prescribed time for
filing appeals from the Veterans Court to this court is
mandatory and jurisdictional. See Wagner v. Shinseki,
733 F.3d 1343, 1348 (Fed. Cir. 2013). Thus, even in
circumstances in which it would be equitable to do so, this
court is without authority to waive the deadline for filing
an appeal to this court from the Veterans Court. See
Bowles v. Russell, 551 U.S. 205, 214 (2007).
Because Javillonar’s appeal was filed past the statu-
tory deadline for taking an appeal to this court, we must
dismiss the appeal.
Case: 14-7062 Document: 8 Page: 3 Filed: 05/29/2014
JAVILLONAR v. SHINSEKI 3
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion for leave to file his re-
sponse out of time is granted.
(2) The Secretary’s motion to dismiss is granted. The
appeal is dismissed.
(3) Each side shall bear its own costs.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s30
ISSUED AS A MANDATE: May 29, 2014