Edward MARANDOLA, Jr., and Carmen Marandola, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
No. 2007-5136.
United States Court of Appeals, Federal Circuit.
March 6, 2008.
Rehearing and Rehearing En Banc Denied April 14, 2008.
518 F.3d 913
Patrick J. Urda, Attorney, Appellate Section, Tax Division, United States Department of Justice, of Washington, DC, for defendant-appellee. With him on the brief were Richard T. Morrison, Acting Assistant Attorney General, and Andrea R. Tebbets, Attorney.
Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.
NEWMAN, Circuit Judge.
Taxpayers Edward Marandola, Jr. and Carmen Marandola filed suit in the United States Court of Federal Claims seeking a refund of federal income taxes for tax years 1996 to 1999. The Court of Federal Claims decided in favor of the government,1 and the Marandolas filed a notice of appeal. We conclude that the notice of appeal was untimely filed, and dismiss the appeal.
DISCUSSION
The Court of Federal Claims issued an Opinion and Order on April 4, 2007 and entered judgment on April 6, 2007. The Opinion and Order bore the incorrect date of April 4, 2006. On April 9, 2007 the Court of Federal Claims issued an Order of Correction, correcting the date of the Opinion and Order from April 4, 2006 to April 4, 2007. The notice of appeal was due on June 5, 2007, sixty days after the entry of judgment on April 6, 2007. See
“[T]he timely filing of a notice of appeal is a jurisdictional requirement.” Bowles v. Russell, — U.S. —, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (“It is well settled that the requirement of a timely notice of appeal is ‘mandatory and jurisdictional.’ “); Sofarelli Associates, Inc. v. United States, 716 F.2d 1395, 1396-97 (Fed.Cir.1983). An untimely appeal must be dismissed for lack of jurisdiction; the requirement cannot be waived, and is not subject to equitable tolling. Bowles, 127 S.Ct. at 2366 (“Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the ‘unique circumstances’ doctrine is illegitimate.“); see International Rectifier Corp. v. IXYS Corp., 515 F.3d 1353, 1357-58 (Fed.Cir.2008) (“In Bowles, the Supreme Court emphasized the jurisdictional nature of notices of appeal and held that the jurisdictional rules lack equitable exceptions.“). No departure from this precedent is reflected in the Rules of the Court of Federal Claims. See
A notice of appeal must be received by the deadline, for the Rules require filing with the clerk of court by the due date. See
The Marandolas argue that the 60-day time limit does not apply and that the notice of appeal was due on September 6, 2007, 150 days after the April 9, 2007 Order of Correction; the theory is that although the Order of Correction was entered on the docket sheet on April 9, 2007, it was not entered “on the docket pursuant to Rule 58” as a new judgment. We discern no support for this argument, for the correction of the date of the Opinion and Order was not a new judgment, and cannot benevolently be so viewed. The further argument that “[e]very judgment and amended judgment must be set forth on a separate document” has no application to this case.
The Marandolas alternatively argue that the due date was June 8, 2007, sixty days after entry of the April 9, 2007 Order of Correction, and that the notice of appeal was timely filed because it was mailed and postmarked June 8, 2007. They state that the Electronic Case Filing (“ECF“) system at the Court of Federal Claims was down and thus unavailable on June 8, 2007, and that they had no choice but to mail the notice. However, the ECF system cannot be used for filing a notice of appeal.
The appeal was not filed at the Court of Federal Claims until June 12, 2007. On any theory of the effective date of the judgment the filing was untimely, and the appeal must be dismissed.
DISMISSED