# United States **Court of Appeals**  **for the Federal Circuit**

______________________

ROBYN J. LEMUS , Petitioner

,

v.

DEPARTMENT OF JUSTIC E, Respondent

.

______________________

201 4- 8005

______________________

Petit ion for review of a decision of the Bureau of Ju stice Assistance in PSOB Claim No. 2006

- 99.

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Decided: July 16, 2014

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H ANS K ENNON , Morgan & Morgan, P.A. , of Orlando

, Florida , for Petitioner.

E LIZABETH W ITWER , Attorney, United States Depar tment of Justice, of Washington, DC, for Respondent

.

______________________
ON MOTION

______________________L EMUS v. DOJ 2

Before P ROST , Chief Judge, W ALLACH and C HEN , Circuit Judges

. C HEN , Circuit Judge

. O R D E R
Petitioner Robyn J. Lemus filed a claim with the B ureau of Justice Assistance (“Bureau”), seeking benefits under the Public Safety Officers’ Benefits Act (“PSOBA”) for the death of her spouse

. On December 17, 2013, Ms. Lemus was served with the Bureau’s final determination denying her claim. On March 20, 2014 , Ms. Lemus’s counsel filed a notice of appeal with this court. The government moves to dismiss Ms. Lemus’s appeal for lack of jurisdict ion on the basis that her notice was filed after the expiration of the 90

- day filing deadline of 42 U.S.C. § 3796c

- 2. In response, Ms. Lemus moves to “extend time” fo r the filing of her appeal. Because we find that the filing deadline of § 3796c

- 2 is jur isdictional and thus not subject to equitable tolling , we deny Ms. Lemus’s motion to extend time and grant the government’ s motion to dismiss.
Our power to hear PSOBA appeals is rooted in § 3796c

- 2, which authorizes “appeals from final determ inations of the Bureau

. . . to the Court of Appeals for the Federal Circuit , which shall have exclusive jurisdi ction . . . . ” Prior to January 2013, § 3796c

- 2 did not co ntain a time limit for the filing of appeals. See 42 U.S.C. § 3796c

- 2 (2012). Howeve r, on January 2, 2013, the statute was amended to include the following:
[O]n and after [ January 2, 2013 ] , no appeal shall bring any final determination of the Bureau b efore any court for review unless notice of appeal is filed (within the time specified h erein and in the manner prescribed for appeal to United States courts of appeals from United States district courts) not later than 90 days after the date onL EMUS V

. DOJ 3

which the Bureau serves notice of the final dete rmination

. . . . National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112

- 239, § 1086 (c) 126 Stat. 1632, 196 9 (2013)

. Ms. Lemus filed her notice of appeal on March 20, 2014, three days after the expiration of the statutory 90

- day filing period

. If the filing period of § 3796c

- 2 is “ma ndatory and jurisdictional,” then we must dismiss Ms. Lemus’s appe al. See Bowles v. Russell , 551 U.S. 205, 209 (2007). But if the filing period i s akin to a “claim sprocessing rule” that Congress did not intend to carry

“ jurisdictional consequences,” then jurisdictional barriers do not bar us from considering Ms. Lemus ’s request to toll the statute. See Henderson ex rel. Henderson v. Shinseki

, 131 S. Ct. 1197, 1203 (2011). We thus must address a question of first impression: I s the 90

- day filing period of § 3796c

- 2 jurisdictional ? We hold that it is.

In the context of “ordinary civil litigation,” t he S upreme Court has consistently held that the time limits for filing a notice of appeal are jurisdictional

. See id. at 1205

– 06 (discussing Bowles , 551 U.S. at 209

– 10)

. But in the context of judicial review of administrative decisions, the Court has found that certain statu t ory filing deadlines are “claims

- processing rules” that do not limit a court’ s jurisdiction. See id. The key inquiry requires “look[ing] to see if there is any ‘clear’ indication that Congress
want ed the rule to be ‘ jurisdic tional.’” I d. at 1203 (citing Arbaugh v. Y&H Corp. , 546 U.S. 500, 515

– 16 (2006) ). Although Congress’s intent must be clear, it need not be explicit. “C ontext, includin g this Court’ s interpretation of similar provisions i n many years past, is relevant. When a long line of this Court’ s decisions left undisturbed by Congress has treated a similar require ment as jurisdi ctional, we will presume that Congress intended to follow that course. ” Henderson

, 131 S. Ct. at 1203

.L EMUS v. DOJ 4

Relevant here, t he Supreme Court has treated prov isions similar to § 3796c

- 2 as jurisdictional. In Henderson

, the Court held that 38 U.S.C. § 7266(a)

— which impose d a 120

- day deadline for filing a notice of appeal in the C ourt of Appeals for Veterans Claims ( “ Veterans Court ”)

— was not jurisdictional. 1 In explaining its conclusion that Congress did not intend for the 120

- day limit to be treated as jurisdictional, the Court contrasted § 7266(a) with § 7292(a), the provision of the Veter ans’ Judicial Review Act ( “ VJRA ” ) that authorizes our review of decisions of the Veterans Court.

If Congress had wanted the 120

- day time to be treated as jurisdictional, it could have c ast that provision in language like that in the provis ion of the VJRA that governs Federal Circui t review of decisions of the Veterans Court. This latter prov ision states that Federal Circuit review must be obtained “within the time and in the manner pr escribed for appeal to United States courts of a ppeals from Un ited States district courts.” § 7292(a ). Because the time for taking an appeal from a district court to a court of appeals in a civil case has long been understood to be jurisdictional, this language clearly signals an intent to impose the same restrictions on appeals from the Vete rans Court t o t he Federal Circuit. But the 120

- day

1 The text of 38 U.S.C. § 7266 states : “In order to obtain review by the Court of Appeals for Veterans Claims of a final decision of the Board of Veterans ’ A ppeals, a person adversely affected by such decision shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title.”L EMUS V

. DOJ 5

limit at issue in this case is not framed in comp arable terms.

Id. at 1204

– 05 (citations omitted).

Unlike the 120

- day filing limit of 38 U.S.C. § 7266(a), the statutory limit at issue here uses language of jurisdictional consequence

. In drafting the January 2013 amendment to 42 U.S.C. § 3796c

- 2, Congress employed the language that the Court in Henderson indicated “clearly signals an intent to impose” jurisdictional r estrictions. The text of the statute specifies t hat an appeal shall not be brought “unless notice of appeal is filed ( within the time specified herein and in the manner pr escribed for appeal to United States courts of appeals from United States district courts ) not later than 90 days after the date on w hich the Bureau serves not ice of the final determination.” § 3796c

- 2 (emphasis added).

The statute goes beyond merely specifying what pr ocedur al steps must be taken to appeal. By its terms, § 3796c

- 2 speaks to our authority to hear a PSOBA appeal by establishing a “built

- in time constraint.” See Kontrick v. Ryan , 540 U.S. 443, 453 (2004). Moreover, § 3796 c- 2 uses language similar to 28 U.S.C. § 2107 (a)

— the statute governing appeals from district court civil proceedings, which has long been held jurisdictional

. See Bowles v. Russell , 554 U.S. 205 (2007) (noting that § 2107 “contains the type of statutory time constraints that would limit a court’s jurisdiction”). 2

2 Section 2107( a) provides, in relevant part, that “no appeal shall bring any judgment, order or decree in an action, suit or proceeding of civil nature before a court of appeals for review unless notice of appeal is filed, within 30 days after entry of such judgment, order, or decree.”L EMUS v. DOJ 6

Finally, although not necessary to our holding here

, we note that the legislative history of § 3796c

- 2 provides further support for our conclusion that C ongress intended for the statutory filing period to carry jurisdictional

consequences

. The House Report accompanying the January 2013 amendment explained that the legislation added “a jurisdictional time limit for appeals

. . . .” H.R. Rep. No. 112

- 548, at 17 (2012) (emphasis added )

. For the foregoing reasons, we hold that the statutory deadline of § 3796c

- 2 is jurisdictional and not subject to equitable exception. Because Ms. Lemus’s appeal of the Bureau’s final determination was filed outside of the statutory deadline of § 3796c -2 , we must dismiss the appeal.
Accordingly,

I T I S O RDERED T HAT : (1) The government’s motion to dismiss is granted

. (2) Ms. Lemus’s motion for an extension of time to file her appeal is denied. (3) Each side shall bear its own costs.

F OR THE C OURT

/s/ Daniel E. O’Toole Daniel E. O’Toole Clerk of Court