PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PHILLIP L. COCHRAN,
Plaintiff-Appellant,
v.
No. 07-1888
ERIC H. HOLDER, JR., Attorney
General,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(1:06-cv-01328-JCC)
Argued: December 4, 2008
Decided: May 4, 2009
Before WILKINSON, MOTZ, and TRAXLER,
Circuit Judges.
Reversed and remanded by published opinion. Judge Motz
wrote the opinion, in which Judge Wilkinson and Judge Trax-
ler joined.
COUNSEL
ARGUED: Phoebe Leslie Deak, Washington, D.C., for
Appellant. Dennis Carl Barghaan, Jr., OFFICE OF THE
2 COCHRAN v. HOLDER
UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Chuck Rosenberg, United States
Attorney, Alexandria, Virginia, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Federal employees who claim illegal discrimination by
their employer may file a civil action within 90 days of a
"final" adverse decision by the Equal Employment Opportu-
nity Commission (EEOC). 42 U.S.C. § 2000e-16(c) (2006).
This case presents the question of when an EEOC decision
becomes "final" for the purpose of this statute. The district
court interpreted an EEOC regulation to require that the 90-
day period began running from the conclusion of the initial
EEOC appeal—regardless of whether the employee timely
files a motion for reconsideration. For this reason, the court
dismissed Phillip Cochran’s complaint as untimely. The expe-
rienced district judge certainly offered a reasonable construc-
tion of the EEOC regulation. But we believe that Supreme
Court precedent (never brought to the district court’s attention
by the parties), along with the consistent judicial interpreta-
tion of the regulation and the notice that the EEOC provided
to Cochran and routinely provides to aggrieved employees,
mandates a contrary construction. Accordingly, we reverse.
I.
In 1986, the United States Marshals Service (USMS) hired
Cochran as a Deputy United States Marshal. After a few years
on the job, Cochran began experiencing problems with his
hearing; he eventually retired from the USMS in 1993. On
September 28, 1995, Cochran filed a formal administrative
complaint, charging that the USMS discriminated against him
on the basis of disability. Cochran alleged that this discrimi-
COCHRAN v. HOLDER 3
nation caused his constructive discharge in 1993 and that the
USMS unlawfully failed to reinstate him to his previous posi-
tion in 1995.
Cochran’s case followed a lengthy administrative path
before reaching the federal courts. After an investigation by
the USMS, Cochran chose to pursue a hearing before the
Merit System Protection Board, which held against him on
May 31, 2001. Cochran then sought a hearing before an
EEOC administrative judge, who also found against him.
Cochran appealed this decision to the EEOC Office of Federal
Operations (OFO), which affirmed the administrative judge’s
ruling on December 29, 2005. Cochran then filed a timely
motion before the OFO seeking reconsideration of the
December 29 decision. The OFO denied this motion on
March 10, 2006.
Cochran next sought relief in federal court, filing a civil
complaint in the district court for the District of Columbia on
June 9, 2006—exactly 90 days from the date on which the
OFO denied his motion for reconsideration. That court trans-
ferred the case to the Eastern District of Virginia on Novem-
ber 11, 2006. The USMS then moved to dismiss Cochran’s
complaint as untimely because Cochran had filed his com-
plaint more than 90 days after the OFO’s original decision of
December 29, 2005. The district court, relying on the EEOC
regulation defining when an EEOC decision becomes "final,"
dismissed the complaint. Cochran timely filed this appeal.
II.
A.
Federal employees alleging employment discrimination by
a federal agency have the right to sue in federal district court
"[w]ithin 90 days of receipt of notice of final action taken by
[the EEOC]." 42 U.S.C. § 2000e-16(c) (2006). The parties
agree that Cochran’s federal court complaint was untimely if
4 COCHRAN v. HOLDER
this 90-day period began running on the date that the OFO
issued its initial decision denying him relief. They also agree
that if, instead, the 90-day period did not begin to run until the
OFO denied Cochran’s motion for reconsideration, then
Cochran timely filed his complaint. This case thus presents
the single legal question of when an EEOC decision becomes
"final" for the purposes of § 2000e-16(c).
EEOC regulations addressing this question have evolved
over time. Prior to 1987, EEOC regulations did not expressly
define "final" as used in § 2000e-16(c), but in practice the
EEOC permitted federal employees to make multiple motions
for reconsideration at any time. Under these circumstances,
allowing a motion for reconsideration to delay the 90-day
statute of limitations would have provided for no finality at
all; given this result, this court held that the limitations period
set forth in § 2000e-16(c) ran from the EEOC’s original deci-
sion on an appeal. See Birch v. Lehman, 677 F.2d 1006, 1007-
08 (4th Cir. 1982).
In 1987, the EEOC amended its regulations in two relevant
respects. First, it limited an employee to one request for
reconsideration, which had to be filed within 30 days of the
original EEOC decision. 29 C.F.R. § 1614.407(b), (d) (1992).1
Second, the EEOC issued a regulation that explicitly defined
"final" under § 2000e-16(c):
A decision issued [by the OFO] is final [for purposes
of the limitations period] unless:
(1) Either party files a timely request for
reconsideration . . . ; or
1
We cite to the 1992 version of the regulations because the EEOC, with-
out changing the substance of the 1987 definition of "final," restructured
and renumbered the regulations at that time. See Federal Equal Employ-
ment Opportunity, 57 Fed. Reg. 12,634 (Apr. 10, 1992); compare 29
C.F.R. § 1613.234(b) (1988), with 29 C.F.R. § 1614.405(b) (1992).
COCHRAN v. HOLDER 5
(2) The Commission on its own motion
reconsiders the case.
29 C.F.R. § 1614.405(b) (1992). This regulation rendered the
rule adopted in Birch no longer good law—that is, the
amended regulation specifically provided that a "timely
request for reconsideration" delayed the running of the 90-day
limitations period until the EEOC ruled on the reconsideration
motion. Id. § 1614.405(b)(1); see also Scott v. Stone, 945 F.2d
398, 1991 WL 193479, at *2 (4th Cir. Oct. 1, 1991) (unpub-
lished).
In 1999, the EEOC again amended § 1614.405(b). The
principal impact of the amendment was to limit reconsidera-
tion to cases involving "a clearly erroneous interpretation of
material fact or law" or a "substantial impact" on the agency.
29 C.F.R. § 1614.405(b)(1)–(2) (2008). The amended regula-
tion also provided a slightly different definition of "final":
A decision issued [by the OFO] is final [for purposes
of the limitations period] unless the Commission
reconsiders the case. A party may request reconsid-
eration within 30 days of receipt of [the decision].
Id. § 1614.405(b). The current EEOC regulation retains this
definition of "final" and it governs the timeliness of Coch-
ran’s complaint.
B.
The parties vigorously dispute the significance of the defi-
nition of "final" adopted in 1999. When adopting the 1999
amendment, the EEOC did not attach any significance to the
changes made to the definition or suggest that the amendment
in any way affected the long-standing rule that a motion for
reconsideration delays the running of the 90-day limitations
period. See Federal Sector Equal Employment Opportunity,
63 Fed. Reg. 8594, 8601–02 (Feb. 20, 1998).
6 COCHRAN v. HOLDER
Despite this silence, the Government argues that the 1999
amendment fundamentally changed the rules regarding when
an EEOC decision is "final" for the purpose of judicial
review. It notes that the old version of § 1614.405(b)
expressly delayed finality if a party "files" a motion for recon-
sideration, while the current regulation only delays finality
when the EEOC "reconsiders" the case. The Government
maintains that this change permits "tolling"2 of the 90-day
period only when the agency grants an employee’s motion for
reconsideration. Accepting this view, the district court dis-
missed Cochran’s complaint as untimely.
Cochran argues that the district court erred in adopting the
Government’s interpretation of § 1614.405(b). He relies prin-
cipally on universal agreement in the case law—from both
before and after the 1999 amendment—that a timely motion
for reconsideration delays the running of the 90-day limita-
tions period. He argues that the amended EEOC regulation is
easily susceptible to this construction, because the EEOC nec-
essarily "reconsider[s]" a case under § 1614.405(b) in decid-
ing whether to grant or deny a motion for reconsideration.
Cochran further contends that the notice the EEOC provided
to him regarding the timeframe for judicial review conflicts
with the Government’s interpretation.
2
As the district court correctly noted, "both parties use the word ‘toll’
to mean the resetting of a time limit," which is an imprecise use of the
term. See Cochran v. Gonzalez, No. 1:06CV1328, 2007 WL 2005623, at
*1-2 n.1 (E.D. Va. July 5, 2007). That is, Cochran’s claim is not really that
his motion for reconsideration "tolled" the 90-day period—for he would
still lose in such a case, having expended some of his 90 days before filing
the motion for reconsideration. Rather, Cochran urges that a timely motion
for reconsideration delays the finality of the agency decision, such that he
gets a full 90 days after the agency decides his reconsideration motion. In
short, Cochran contends that the statute of limitations "clock" is restarted,
not paused or "tolled." Notwithstanding this fact, because both parties and
the Supreme Court have used the term "toll" to describe the interpretation
that Cochran urges, we will use the term as a convenient shorthand in this
opinion.
COCHRAN v. HOLDER 7
III.
We review a district court’s decision to grant a motion to
dismiss de novo. Novell, Inc. v. Microsoft Corp., 505 F.3d
302, 307 (4th Cir. 2007).
A.
Cochran and the Government devote most of their argu-
ment to parsing the language of § 1614.405(b) in support of
their respective positions. After careful consideration of their
arguments, we believe that the regulation is susceptible to
either party’s construction. Thus, this case would present a
very close question of regulatory interpretation were we con-
struing § 1614.405(b) without guidance from precedent and
history.
Fortunately, however, the Supreme Court has twice con-
fronted, albeit when interpreting different statutes, the precise
legal question at issue here: whether filing a timely motion for
reconsideration with an administrative agency tolls the run-
ning of the limitations period for seeking review of the agency
action. See Stone v. INS, 514 U.S. 386 (1995); ICC v. Bhd. of
Locomotive Engineers, 482 U.S. 270 (1987). In these cases,
the Court interpreted similar regulatory language in accord
with Cochran’s view that a "timely petition for administrative
reconsideration stay[s] the running of the [statutory] limita-
tion period until the petition ha[s] been acted upon by the
[agency]." Locomotive Engineers, 482 U.S. at 284.
In Locomotive Engineers, the Court held that filing a
motion for reconsideration delays the finality of an agency
decision under the Hobbs Act. Id. at 284–86. It did so despite
statutory language which "admittedly suggested" the result
the Government urges here: that motions for reconsideration
do not affect the limitations period for judicial review. Id. at
284 (quoting 49 U.S.C. § 10327(i) (1986) ("[A]n action of the
[agency] is final on the date on which it is served . . . .")).
8 COCHRAN v. HOLDER
Notwithstanding this language, the Supreme Court reasoned
that this provision, like analogous language in the Administra-
tive Procedure Act (APA), "has long been construed . . .
merely to relieve parties from the requirement of petitioning
for rehearing before seeking judicial review." Locomotive
Engineers, 483 U.S. at 284–85.
More recently, in Stone, the Supreme Court reaffirmed this
rule. There the Court held that the APA embraces a "tolling
rule" that "[t]he timely filing of a motion to reconsider renders
the underlying [agency] order nonfinal for purposes of judi-
cial review." Stone, 514 U.S. at 392. Stone is particularly rele-
vant because the regulatory language in Stone supported the
Government’s anti-tolling argument much more strongly than
the language of § 1614.405(b), the regulation at issue in this
case. Compare 8 C.F.R. § 243.1 (1990) ("[The agency’s
order] become[s] final upon dismissal of an appeal by the
[agency.]"), with 29 C.F.R. § 1614.405(b) (2008) ("A decision
issued [by the EEOC on appeal] is final [under § 2000e-16]
unless the Commission reconsiders the case.").3
The language of § 1614.405(b) does not mandate a rejec-
tion of the "ordinary" tolling rule established by the Supreme
Court. See Stone, 514 U.S. at 393. Rather, § 1614.405(b),
viewed in light of, and in harmony with, that general rule, can
easily be construed to provide for tolling of the 90-day statute
of limitations when an employee files a timely motion for recon-
sideration.4
3
The Stone Court ultimately found that tolling was not available in the
particular regulatory scheme before it, because other statutory provisions
indicated "that Congress intended to depart from the conventional tolling
rule in deportation cases." 514 U.S. at 398. No such statutory provision
applies here.
4
We also note that if we were to interpret § 1614.405(b) as the Govern-
ment urges, we would have to determine whether the EEOC has the
authority to depart from the "ordinary" tolling rule set forth in Stone and
Locomotive Engineers. Stone explicitly left open this question. See Stone,
514 U.S. at 393. We decline to reach it without a clear indication that the
EEOC intended to change the tolling rule.
COCHRAN v. HOLDER 9
B.
This construction finds further support in decades of case
law interpreting § 1614.405(b). Although ten years have
passed since the 1999 amendment to § 1614.405(b), the Gov-
ernment cannot point to a single judicial decision (other than
that of the district court in this case) that adopts the interpreta-
tion that it asserts is "plain" from the regulatory language.
Cochran, on the other hand, can and does rely on a number
of district and appellate court opinions—both before and after
the 1999 amendment—that construe § 1614.405(b) to provide
that a timely motion for reconsideration tolls the 90-day limi-
tations period.
Prior to 1999, all six federal appellate courts that addressed
this question concluded that a timely motion to reopen or
reconsider delays the start of § 2000e-16(c)’s limitations
period. See Holley v. Dep’t of Veteran Affairs, 165 F.3d 244,
246 (3d Cir. 1999); Belhomme v. Widnall, 127 F.3d 1214,
1216-17 (10th Cir. 1997); Rowe v. Sullivan, 967 F.2d 186,
190 (5th Cir. 1992); Smythe v. Sec’y of the Navy, 914 F.2d
263, 1990 WL 136626, at *2 n.2 (9th Cir. Sept. 21, 1990)
(unpublished); Donaldson v. Tenn. Valley Auth., 759 F.2d
535, 538 (6th Cir. 1985); Nordell v. Heckler, 749 F.2d 47,
48–49 (D.C. Cir. 1984). No circuit has overruled its precedent
in light of the 1999 amendment; to the contrary, the sole
appellate opinion to consider the issue has concluded that the
1999 amendment did not change the tolling rule. See Conkle
v. Potter, 352 F.3d 1333, 1336 n.6 (10th Cir. 2003). Similarly,
district courts have continued to follow the tolling rule after
the 1999 amendment to § 1614.405(b). See, e.g., Lorenzo v.
Rumsfeld, 456 F. Supp. 2d 731, 737 n.8 (E.D. Va. 2006);
Slate v. Potter, 459 F. Supp. 2d 423, 430 (M.D.N.C. 2006);
Harrison v. Potter, 323 F. Supp. 2d 593, 603 (S.D.N.Y.
2004).
Given this long line of cases supporting Cochran’s interpre-
tation of § 1614.405(b), to interpret the regulation otherwise
10 COCHRAN v. HOLDER
would upend the settled expectations of parties litigating
before the EEOC based solely on arguably ambiguous regula-
tory language. If the EEOC had wished to change this well-
established rule of law, we believe that it would have plainly
indicated its intent to do so in the regulation.5
C.
The notice that the EEOC routinely provides to aggrieved
employees like Cochran offers additional evidence that the
1999 amendment did not change the established tolling rule.
In denying Cochran’s request for reconsideration, the EEOC
informed him that he had the right to file suit in a district
court "within ninety (90) calendar days from the date that you
receive this decision." In accord with this statement—which
correctly stated the settled tolling rule—Cochran filed suit
precisely 90 days after the EEOC denied his motion for recon-
sideration. The Government now asks us to overlook this
notice and adopt the Government’s novel interpretation of
§ 1614.405(b).
Of course, as the Government points out, the informal
statements that the EEOC attaches to its decisions do not
carry the force of law. Cf. Smiley v. Citibank (S.D.), N.A., 517
U.S. 735, 742–43 (1996). But we find such statements indica-
tive of an intent to adhere to the established tolling rule—
especially when the plain language of § 1614.405(b) does not
compel a contrary conclusion. In short, the notice provided to
Cochran accords with the settled interpretation of
§ 1614.405(b) and Supreme Court precedent, and thus pro-
vides further support for an interpretation of § 1614.405(b)
that permits tolling.
5
We invited the EEOC to file a brief as amicus curiae to state its under-
standing of the meaning of the 1999 amendment, but it declined our invi-
tation.
COCHRAN v. HOLDER 11
D.
Lastly, we note that policy considerations support this con-
struction of § 1614.405(b).
First, because the EEOC will often not take action on a
motion for reconsideration within a 90-day period, an
employee who loses after the EEOC’s initial decision would,
if we adopted the Government’s view, effectively be forced
to choose between filing suit or moving for reconsideration.
We doubt that the EEOC would provide a party with a proce-
dure to seek reconsideration but then deprive that party any
effective opportunity to take advantage of this procedure
without forfeiting the right to judicial review.
Second, the construction of the regulation that we adopt
advances judicial efficiency by ensuring that the EEOC has
the opportunity to correct errors in its decisions before they
are subject to judicial review. In some cases, a successful
motion for reconsideration may render judicial review unnec-
essary. Indeed, the Supreme Court itself pointed to judicial
economy concerns when it reaffirmed the tolling rule of Loco-
motive Engineers. See Stone, 514 U.S. at 392.
Finally, our construction of the regulation accords with the
rules that apply in analogous contexts. As previously noted,
a timely motion for reconsideration tolls the limitations period
for judicial review of agency action under both the APA and
the Hobbs Act. See id. at 393. Federal appellate courts also
follow this rule. Thus, a timely motion seeking reconsidera-
tion in the district court tolls the running of the period to file
an appeal. Fed. R. App. P. 4(a)(4)(A). Similarly, a motion for
rehearing or rehearing en banc in the Courts of Appeals
delays the running of the period to file a petition for a writ of
certiorari in the Supreme Court. Sup. Ct. R. 13.3. Adopting a
contrary rule in the EEOC context would not only be anoma-
lous, it would create unnecessary confusion for litigants
familiar with the standard rules in other legal contexts.
12 COCHRAN v. HOLDER
IV.
For the foregoing reasons, we hold that Cochran’s com-
plaint was timely under 42 U.S.C. § 2000e-16(c) and 29
C.F.R. § 1614.405(b). We therefore reverse the judgment of
the district court and remand the case for further proceedings.
REVERSED AND REMANDED