Lemus v. Department of Justice , 571 F. App'x 952 ( 2014 )

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 Jus-
tice 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 Depart-
ment 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.
ORDER
Petitioner Robyn J. Lemus filed a claim with the Bu-
reau 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 determi-
nations of the Bureau . . . to the Court of Appeals for the
Federal Circuit, which shall have exclusive jurisdic-
tion . . . .” Prior to January 2013, § 3796c-2 did not con-
tain 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 be-
fore 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 deter-
mination . . . .
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 “man-
datory 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 “claims-
processing 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 Su-
preme 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 jurisdic-
tional, 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 provi-
sions 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 provi-
sion states that Federal Circuit review must be
obtained “within the time and in the manner pre-
scribed for appeal to United States courts of ap-
peals 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 Veter-
ans 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’ Ap-
peals, 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 compa-
rable 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 jurisdic-
tional 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 re-
strictions. 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 pre-
scribed 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 pro-
cedural 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