876 F. 2d 103 - Gallagher v. Holland

This matter is before the court upon consideration of appellant's response to this court's order of April 26, 1989, directing him to show cause as to why his appeal should not be dismissed for lack of jurisdiction. In his response appellant concedes that the appeal is untimely, but maintains that this court has the discretionary power to extend the time for filing a notice of appeal. Furthermore, he argues that the court should exercise that authority in this case in light of the district court's dismissal of his cause of action in violation of Tingler v. Marshall, 716 F.2d 1109 (6th Cir.1983).

Examination of the record indicates that the district court entered a final judgment dismissing appellant's cause of action pursuant to 42 U.S.C. Sec. 1983 on July 26, 1988. Appellant, however, did not file a notice of appeal until April 14, 1989. The record further demonstrates that appellant did not file any motions which would have tolled the time for filing a notice of appeal pursuant to Fed.R.App.P. 4(a)(4). Nor did he seek an extension of time in which to file a notice of appeal due to excusable neglect under Fed.R.App.P. 4(a)(5). Accordingly, appellant's notice of appeal was 232 days late. Fed.R.App.P. 4(a) and 26(a).

An appellant's failure to file a timely notice of appeal deprives the court of jurisdiction. Compliance with Fed.R.App.P. 4(a) is a mandatory, jurisdictional prerequisite which this court can neither waive nor extend. Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (6th Cir.1983). Contrary to appellant's assertion Fed.R.App.P. 26(b) does not grant this court the authority to extend the time for filing a notice of appeal. Rather, that rule specifically provides that "the court may not enlarge the time for filing a notice of appeal...."

Accordingly, it is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.