United States Court of Appeals 

for the Federal Circuit ______________________ 

ROBYN J. LEMUS,

Petitioner,

v.

DEPARTMENT OF JUSTICE,

Respondent.

______________________ 

2014-8005

______________________ 

Petition for review of a decision of the Bureau of Justice Assistance in PSOB Claim No. 2006-99.

______________________ 

Decided: July 16, 2014

______________________ 

HANS KENNON, Morgan & Morgan, P.A., of Orlando, 

Florida, for Petitioner. 

ELIZABETH WITWER, Attorney, United States Department of Justice, of Washington, DC, for Respondent. 

______________________ 

ON MOTION

______________________ 
2 LEMUS v. DOJ

Before PROST, Chief Judge, WALLACH and CHEN, Circuit 

Judges. 

CHEN, Circuit Judge. 

O R D E R

Petitioner Robyn J. Lemus filed a claim with the Bureau 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 jurisdiction 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” for the filing of her appeal. Because we find that 

the filing deadline of § 3796c-2 is jurisdictional 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 determinations of the Bureau . . . to the Court of Appeals for the 

Federal Circuit, which shall have exclusive jurisdiction . . . .” Prior to January 2013, § 3796c-2 did not contain a time limit for the filing of appeals. See 42 U.S.C. 

§ 3796c-2 (2012). However, 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 before any court for review unless notice of appeal is 

filed (within the time specified herein 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 on 
LEMUS V. DOJ 3

which the Bureau serves notice of the final determination . . . . 

National Defense Authorization Act for Fiscal Year 2013, 

Pub. L. No. 112-239, § 1086(c) 126 Stat. 1632, 1969 

(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 “mandatory and jurisdictional,” then we must dismiss Ms. 

Lemus’s appeal. See Bowles v. Russell, 551 U.S. 205, 209 

(2007). But if the filing period is akin to a “claimsprocessing 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: Is the 90-day filing period of 

§ 3796c-2 jurisdictional? We hold that it is. 

In the context of “ordinary civil litigation,” the Supreme 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 statutory 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 

wanted the rule to be ‘jurisdictional.’” Id. 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. “Context, including this Court’s interpretation of 

similar provisions in many years past, is relevant. When 

a long line of this Court’s decisions left undisturbed by 

Congress has treated a similar requirement as jurisdictional, we will presume that Congress intended to follow 

that course.” Henderson, 131 S. Ct. at 1203. 
4 LEMUS v. DOJ

Relevant here, the Supreme Court has treated provisions similar to § 3796c-2 as jurisdictional. In Henderson, 

the Court held that 38 U.S.C. § 7266(a)—which imposed a 

120-day deadline for filing a notice of appeal in the Court 

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 Veterans’ 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 cast that 

provision in language like that in the provision of 

the VJRA that governs Federal Circuit review of 

decisions of the Veterans Court. This latter provision states that Federal Circuit review must be 

obtained “within the time and in the manner prescribed for appeal to United States courts of appeals from United 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 Veterans Court to the 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’ Appeals, 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.”

 
LEMUS V. DOJ 5

limit at issue in this case is not framed in comparable 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 restrictions. The text of the statute specifies that an appeal 

shall not be brought “unless notice of appeal is filed 

(within the time specified herein 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 on which the Bureau serves notice of the final 

determination.” § 3796c-2 (emphasis added).

The statute goes beyond merely specifying what procedural 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, § 3796c-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.” 

 
6 LEMUS v. DOJ

Finally, although not necessary to our holding here, 

we note that the legislative history of § 3796c-2 provides 

further support for our conclusion that Congress 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,

 IT IS ORDERED THAT: 

(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.

 FOR THE COURT

 /s/ Daniel E. O’Toole 

Daniel E. O’Toole

 Clerk of Court