Janet Howard v. Penny Sue Pritzker , Secretary , United States Department of Commerce

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2014 Decided January 6, 2015
No. 12-5370
J ANET HOWARD ,
APPELLEE
J OYCE M EGGINSON ,
APPELLANT
v.
PENNY SUE PRITZKER , SECRETARY , UNITED STATES
DEPARTMENT OF COMMERCE ,
APPELLEE
Consolidated with 12-5392
Appeals from the United States District Court
for the District of Columbia
(No. 1:05-cv-01968)
Elizabeth C. Bullock, appointed by the court, argued the
cause as amicus curiae in support of appellant. On the briefs
were David W. DeBruin, Matthew S. Hellman, and Matthew S.
McKenzie.
Brian P. Hudak, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen Jr.,

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U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: ROGERS and BROWN , Circuit Judges, and
EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS .
ROGERS , Circuit Judge: The principal question in this
appeal is whether the six-year statute of limitations for suits
against the United States, 28 U.S.C. § 2401(a), applies to claims
filed pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., as amended to apply to federal
employees, see id. § 2000e-16. We hold that it does not. In
Title VII, Congress enacted “an exclusive, pre-emptive
administrative and judicial scheme for the redress of federal
employment discrimination.” Brown v. Gen. Servs. Admin., 425
U.S. 820, 829 (1976). Concluding that administrative resolution
was preferable, Congress imposed an exhaustion requirement
without setting a time limit for administrative resolution of an
employee’s discrimination complaint. Congress also provided
that an employee “may file a civil action” for a de novo court
proceeding within ninety days of receiving notice of final
administrative action, or anytime after 180 days have elapsed
from the filing of an initial charge. 42 U.S.C. § 2000e-16(c).
In a novel attempt to reconfigure Congress’s statutory
scheme more than forty years after its enactment, the Commerce
Department would impose 28 U.S.C. § 2401(a)’s six-year statute
of limitations, regardless of the status of the administrative
proceedings. Applying that time limit to truncate Title VII’s
more lenient limitations period “irreconcilably conflict[s]” with
Congress’s comprehensive scheme. Adirondack Med. Ctr v.
Sebelius, 740 F.3d 692, 698 (D.C. Cir. 2014) (internal quotation
marks omitted); see also RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012). Federal

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employees who, as here, have pursued administrative relief and,
six years after their claim first accrued, had an administrative
class action provisionally certified and remanded for further
consideration would either have to abandon that process or
surrender the right to file suit following final administrative
action. That election is not part of Congress’s scheme and
incorporating it would strike a different balance of interests than
was chosen by Congress. Accordingly, because “[t]he judicial
role is to enforce th[e] congressionally determined balance,”
Milner v. Dep’t of Navy, 562 U.S. 562,—, 131 S. Ct. 1259, 1265
n.5 (2011), we hold that 28 U.S.C. § 2401(a) does not apply to
Title VII civil actions brought by federal employees, and we
reverse the dismissal of appellants’ complaint and remand the
case to the district court.
I.
Congress enacted Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq.,“to assure equality of employment
opportunities by eliminating those practices and devices that
discriminate on the basis of race, color, religion, sex, or national
origin.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 44
(1974). Recognizing the need for “a comprehensive solution,”
Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 459 (1975), to
address “racially stratified job environments” that “disadvantage
. . . minority citizens,” McDonnell Douglas Corp. v. Green, 411
U.S. 792, 800 (1973), Congress adopted a scheme in which the
Equal Employment Opportunity Commission (“EEOC”) would
be able “to settle disputes through conference, conciliation, and
persuasion before the aggrieved party was permitted to file a
lawsuit.” Alexander, 415 U.S. at 44. Initially applying to
private employment, Title VII was amended in 1972 to apply to
federal government employees (with exceptions not relevant
here). See Equal Employment Opportunity Act of 1972, Pub. L.
No. 92-261, § 11, 86 Stat. 103, 111–13 (codified at 42 U.S.C.

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§§ 2000e-16). Congress left the details of the administrative
process to the Civil Service Commission, requiring that each
“department, agency, or unit shall comply with such rules,
regulations, orders, and instructions” issued by it. Id. § 2000e-
16(b). In 1978, the Commission’s functions were transferred to
the EEOC, effective January 1979. See Presidential
Reorganization Plan No. 1 of 1978, 43 Fed. Reg. 19,807, 92
Stat. 3781. Four years after Congress amended Title VII to
protect federal employees, the Supreme Court held in the
seminal case of Brown v. General Services Administration, 425
U.S. at 829, that Congress intended Title VII to be the
“exclusive and pre-emptive” means for federal employees to
seek redress for unlawful employment discrimination.
In Title VII, as amended, Congress established two time
limits for filing a civil action in federal court:
Within 90 days of receipt of notice of final action taken
by a department, agency, or unit referred to in
subsection (a) of this section [i.e., most executive
agencies, including the armed forces, and certain non-
executive offices], or by the Equal Employment
Opportunity Commission upon an appeal from a
decision or order of such department, agency, or unit
on a complaint of discrimination based on race, color,
religion, sex or national origin, . . . or after one
hundred and eighty days from the filing of the initial
charge . . . an employee . . . if aggrieved by the final
disposition of his complaint, or by the failure to take
final action on his complaint, may file a civil action as
provided in [42 U.S.C. § 2000e-5(f)–(k)], in which
civil action the head of the department, agency, or unit,
as appropriate, shall be the defendant.
42 U.S.C. § 2000e-16(c) (emphasis added).

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Janet Howard, who worked at the Department for twenty-
five years, from 1983 to 2008, and Joyce Megginson, who began
working there in 1971 and was still an employee as of 2014,
appeal the dismissal of their complaint on the ground that the
district court erred in failing to adhere to Title VII’s time limits.
In February 1995, Howard and two other employees filed an
administrative class complaint alleging “Racial Discrimination
against African Americans in the Department of Commerce,” as
evidenced by “[l]ow performance rating, continued denial of
promotion and awards, disparate treatment in job assignment
and environment, [and] disparate treatment in recognition and
training.” Adm. Compl. ¶ 1. They sought equitable and
monetary relief. As EEOC regulations required, they filed the
complaint with the Department, see 29 C.F.R. § 1614.106,
which, in turn, referred the complaint to the EEOC for
adjudication, see id. § 1614.109. Over the next five years,
Howard and others defended against attempts to dismiss the
complaint, ultimately succeeding in the summer of 2000 upon
obtaining a favorable EEOC ruling that called for further
administrative consideration. The path to this interim result was
not straightforward and involved significant administrative
delays.
In June 1995, an administrative law judge (“ALJ”) in the
EEOC Washington Field Office recommended dismissal of the
class discrimination complaint for failure to meet the class
certification prerequisites of Federal Rule of Civil Procedure
23(a), which by EEOC regulation apply to administrative
proceedings, see 29 C.F.R. § 1614.204(a)(2). The Department
accepted the recommendation in August 1995; Howard (for the
putative class) appealed to the EEOC Office of Federal
Operations, see id. § 1614.403. Two years later that Office
ruled that adequacy of representation was no longer a stumbling
block because the putative class had obtained counsel and that
the ALJ had failed to consider whether the class complaint

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“meets the standards for commonality and typicality under the
across-the-board theory.” The matter was remanded with
instructions to the Department to forward the case to an ALJ for
reconsideration. See Howard v. Daley, EEOC Doc. No.
01956455, 1997 WL 314807 (June 4, 1997).
Almost two years following the remand, the ALJ found in
March 1999 that Howard could not adequately represent the
interests of the putative class and remanded for the Department
to identify another potential class agent. The Department
accepted the recommendation; Howard appealed. Sixteen
months later, in July 2000, the EEOC Office of Federal
Operations ruled that the ALJ erred in disqualifying Howard as
class agent and, upon review of the criteria for class
certification, provisionally certified a class and remanded the
matter to the Washington Field Office. See Howard v. Daley,
EEOC Doc. No. 01994518, 2000 WL 1090557 (July 20, 2000).
More than two years later, in December 2002, the
Department moved to redefine the size of the class. Howard
opposed the motion, and the Department filed a reply. Eight
months later, in August 2003, the ALJ summarily granted the
motion. Howard moved for reconsideration. When
approximately eighteen months had passed without a decision,
despite having inquired and received assurances that a decision
would be rendered within months, class counsel requested by
letter of September 27, 2005, in view of the decade that had
elapsed since the initial charge was filed, that the administrative
class complaint be dismissed because the class intended to file
suit in federal court. On September 30, 2005, the ALJ dismissed
the class complaint.
Howard and Megginson, as two of thirteen class
representatives, filed a civil action in federal court five days
later, on October 5, 2005. The class complaint alleged that the

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Department “has maintained a system of racially discriminatory
and subjective employment practices with respect to promotions,
awards, performance ratings, career-enhancing work
assignments, timely training for advancement, and job
assignments.” Compl. ¶ 4. It sought relief, pursuant to Title
VII, 42 U.S.C. §§ 2000e et seq., on behalf of the class and the
class representatives, for race discrimination and retaliation
through injunctive relief, including the “affirmative restructuring
of [the Department’s] selection and compensation procedures,
training and other terms and conditions of employment; back
pay; front pay; compensatory and nominal damages; and
attorneys fees, costs and expenses.” Compl. ¶ 9.
On June 13, 2006, Howard and two other named class
representatives filed an amended complaint, dropping the class
request for compensatory damages and adding several individual
claims. The district court granted the Department’s motion to
strike the class claims for failure timely to move for class
certification and denied the motion to dismiss the individual
claims because, as to Howard, the Department had failed to
identify any defect requiring that they be stricken, and as to Ms.
Megginson, equitable tolling rendered her claims timely. See
Howard v. Gutierrez, 474 F. Supp. 2d 41, 50, 51–53 (D.D.C.
2007).
On December 11, 2007, Howard, Megginson, and Tanya
Ward Jordan, all named class representatives, filed a second
amended complaint alleging individual disparate impact claims
under Title VII in Count I and a claim under the Rehabilitation
Act, 29 U.S.C. §§ 710 et seq., on behalf of Jordan in Count II.
The district court dismissed Count II as devoid of factual
allegations and speculative and denied the Department’s motion
to dismiss Howard’s and Megginson’s individual disparate impact
claims for failure to exhaust administrative remedies, as well as
the Department’s motion to dismiss Megginson’s claim as

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untimely filed. It also denied the Department’s motion to dismiss
for failure to state a claim and for summary judgment. See
Howard v. Gutierrez, 571 F. Supp. 2d 145, 152–59, 162 (D.D.C.
2008). The district court referred the case to a magistrate judge
for settlement discussions and appointed counsel.
When settlement efforts failed, Howard and Megginson
moved on July 16, 2010 for leave to file a third amended
complaint to add claims related to disparate impact, a hostile work
environment, and retaliation. The Department moved to dismiss
the complaint on the ground that the six-year statute of limitations
for non-tort suits against the United States, 28 U.S.C. § 2401(a),
barred the suit. The district court agreed, dismissing the second
amended complaint for lack of subject matter jurisdiction and
denying the motion for leave to file a third amended complaint.
See Howard v. Blank, 891 F. Supp. 2d 95 (D.D.C. 2012). Ruling
that § 2401(a) was jurisdictional, id. at 99 (citing Spannaus v. U.S.
Dep’t of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987)), the district
court found that the individual claims pursued in 2005 by Howard
and Megginson had accrued in 1995 and by 1998, respectively,
when they could have filed suit 180 days after filing their initial
charges. See id. The district court rejected their arguments that
§ 2401(a) did not apply to Title VII, stating the phrase “every
civil action” in § 2401(a) meant its six-year limitations period
applied, id. at 100, and that § 2401(a) was subject to equitable
tolling, id. at 101.
Howard and Megginson appeal, and our review is de novo,
see Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014); Doe
v. Rumsfeld, 683 F.3d 390, 393 (D.C. Cir. 2012).
II.
28 U.S.C. § 2401(a) provides:

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Except as provided by chapter 71 of title 41 [relating to
claims arising out of government contracts], every civil
action commenced against the United States shall be
barred unless the complaint is filed within six years after
the right of action first accrues. The action of any
person under legal disability or beyond the seas at the
time the claim accrues may be commenced within three
years after the disability ceases.
This provision originated in the Tucker Act, see Saffron v. Dep’t
of the Navy, 561 F.2d 938, 944 (D.C. Cir. 1977) (citing Act of
Mar. 11, 1887, ch. 359, § 1, 24 Stat. 505, 505), which “was
designed ‘to give the people of the United States what every
civilized nation of the world has already done — the right to go
into the courts to seek [monetary] redress against the Government
for their grievances,’” United States v. Mitchell, 463 U.S. 206,
213–14 (1983) (quoting 18 Cong. Rec. 2680 (1887) (statement of
Rep. Bayne)). It “is itself only a jurisdictional statute; it does not
create any substantive right enforceable against the United States
for money damages.” United States v. Testan, 424 U.S. 392, 398
(1976). For claims not based on contract or seeking return of
money paid to the United States, “the asserted entitlement to
money damages depends upon whether any federal statute can
fairly be interpreted as mandating compensation by the Federal
Government for the damage sustained.” Id. at 400 (internal
quotation marks omitted). Relevant here, until Title VII was
extended to cover federal employees, judicial relief for
discrimination in the federal workforce was “problematic,” as
“[d]amages for alleged discrimination were [arguably] . . . beyond
the scope of the Tucker Act . . . since no express or implied
contract was involved,” Brown, 425 U.S. at 826 (citing Gnotta v.
United States, 415 F.2d 1271, 1278 (8th Cir. 1969)). This court
has acknowledged that the § 2401(a) limitations period applies
beyond Tucker Act claims, see Saffron, 561 F.2d at 946, but it has
not had occasion to consider whether it applies to Title VII.

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The Department maintains that § 2401(a) applies by its
express terms to “every civil action commenced against the
United States.” 28 U.S.C. § 2401(a). A Title VII suit is a “civil
action,” 42 U.S.C. § 2000e-16(c), and a suit against a federal
official acting in an official capacity is a suit against the United
States, Mason v. Judges of the U.S. Courts of Appeals, 952 F.2d
423, 425 (D.C. Cir. 1991). The Department points to this court’s
statement in Spannaus, 824 F.2d at 55, that “[t]he law of this
circuit is clear: the words ‘every civil action’ mean what they
say.” It also relies on the “inclusio unius est exclusio alterius”
canon of construction for the proposition that § 2401(a)’s
inclusion of an express exception for Contract Disputes Act
claims means other exceptions are “necessarily” excluded.
Appellee’s Br. 28.
Supreme Court precedent makes clear, however, that “every”
cannot mean “every,” as appellants point out in adopting the
arguments presented by court-appointed Amicus. 1 In Block v. N.
Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 277
(1983), the Supreme Court enforced the twelve-year statute of
limitations in the Quiet Title Act, 28 U.S.C. § 2409a(g). If the
word “every” in § 2401(a) were applied literally, then Congress’s
adoption of a twelve-year period would be impliedly repealed.
Implied repeals are disfavored and not presumed unless the
legislative intent is “clear and manifest,” Hui v. Castaneda, 559
U.S. 799, 810 (2010) (internal quotation marks omitted), which
it was not when Congress enacted the Quiet Title Act, see Block,
461 U.S. at 290. The Department does not suggest that § 2401(a)
overrides Congress’s intent that a longer period was appropriate
in the Quiet Title Act. See Appellee’s Br. 33 n.23. Furthermore,
this court’s statement in Spannaus upon which the Department
1 The court expresses its appreciation of the assistance
provided by Amicus.

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relies is dictum, cf. Martini v. Fed. Nat. Mortgage Ass’n, 178 F.3d
1336, 1341 (D.C. Cir. 1999); the court held only that § 2401(a)
applies to suits under the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552, which does not include its own statute of
limitations, Spannaus, 824 F.2d at 56. The court was not asked
to address how § 2401(a) interacts with a targeted FOIA-specific
statute of limitations, much less Title VII. See id. at 55–56.
Appellants contend, and the Department acknowledges, see
Appellee’s Br. 27, that plain text must give way where two
statutes irreconcilably conflict. Statutes are to be considered
irreconcilably conflicting where “there is a positive repugnancy
between them” or “they cannot mutually coexist.” Radzanower
v. Touche Ross & Co., 426 U.S. 148, 155 (1976). “‘Repeal is to
be implied only if necessary to make the (later enacted law) work,
and even then only to the minimum extent necessary. This is the
guiding principle to reconciliation of the two statutory schemes.’”
Id. (quoting Silver v. New York Stock Exchange, 373 U.S. 341,
357 (1963)). As a corollary, “when two statutes are capable of
coexistence, it is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard each as
effective.” J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc.,
534 U.S. 124, 143–44 (2001) (internal quotation marks omitted).
“The courts are not at liberty to pick and choose among
congressional enactments,” Morton v. Mancari, 417 U.S. 535, 551
(1974), and deeming two statutes to conflict is “a disfavored
construction,” Halverson v. Slater, 129 F.3d 180, 186 (D.C. Cir.
1997) (citing Digital Equip. Corp. v. Desktop Direct, Inc., 511
U.S. 863, 879 (1994)). Thus, upon concluding that “[i]t is not
enough to show that the two statutes produce differing results
when applied to the same factual situation,” Radzanower, 426
U.S. at 155, the Supreme Court has “decline[d] to read
. . . statutes as being in irreconcilable conflict without seeking to
ascertain the actual intent of Congress,” Watt v. Alaska, 451 U.S.
259, 265 (1981).

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Appellants maintain that such a conflict exists here because
applying § 2401(a) to Title VII would undermine Congress’s goal
of encouraging employees to resolve their employment
discrimination disputes administratively. They point out that
Congress has spoken to time limits: “Section 2000e-16(c)
expressly provides the time periods under which a federal
employee ‘may file a civil action,’ for employment
discrimination,” and its time limits control as the “express[ion]
[of] a clear intent by Congress to permit suits during the[se] time
windows.” Amicus Br. 19 (emphasis in original). Adhering to
the congressional scheme is particularly important, they suggest,
in view of the Supreme Court’s conclusion that, in extending Title
VII protection to federal employees, Congress intended it to be
the “exclusive, pre-emptive administrative and judicial scheme
for the redress of federal employment discrimination.” Id. at 20
(quoting Brown, 425 U.S. at 829) (internal quotation marks
omitted).
Additionally, appellants contend that where there is a
conflict, the more specific statute applies. See id. at 18–24. “[I]t
is a commonplace of statutory construction that the specific
governs the general,” Morales v. Trans World Airlines, Inc., 504
U.S. 374, 384 (1992), and this is ordinarily true where two
statutes irreconcilably conflict, see Edmond v. United States, 520
U.S. 651, 657 (1997); accord Adirondack Med. Ctr., 740 F.3d at
698. Significantly for our purposes, “[t]hat is particularly true
where . . . ‘Congress has enacted a comprehensive scheme and
has deliberately targeted specific problems with specific
solutions.’” RadLAX, 132 S. Ct. at 2071 (quoting Varity Corp. v.
Howe, 516 U.S. 489, 519 (1996) (Thomas, J., dissenting)). This
is no less true with respect to statutes of limitations. See
Sisseton-Wahpeton Sioux Tribe, of Lake Traverse Indian
Reservation, N. Dakota & S. Dakota v. United States, 895 F.2d
588, 594 (9th Cir. 1990) (citing Block, 461 U.S. at 292).

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Upon examining Title VII’s scheme, we conclude that there
is an irreconcilable conflict such that the specific time limits, 42
U.S.C. § 2000e-16(c), trumps the general limitations period, 28
U.S.C. § 2401(a), and that the Department’s contrary
interpretation of the relationship between the two statutes is
unpersuasive.
A.
In extending Title VII protections to federal employees,
Congress established an administrative and judicial enforcement
scheme that embodies policy considerations similar to those
underlying Congress’s 1964 enactment applicable to private
employees. That is, Congress created “complementary
administrative and judicial enforcement mechanisms,” Brown,
425 U.S. at 831, while still emphasizing its preference for
administrative resolution of disputes, see id. at 833–34. The Civil
Service Commission (and the EEOC as of 1979) was given
authority to enforce the non-discrimination provisions “‘through
appropriate remedies, including reinstatement or hiring of
employees with or without back pay,’ to issue ‘rules, regulations,
orders, and instructions as it deems necessary and appropriate’ to
carry out its responsibilities under the Act, and to review equal
employment opportunity plans that are annually submitted to it by
each agency and department.” Id. at 832 (quoting 42 U.S.C.
§ 2000e-16(b)). Although allowing an aggrieved employee to file
a civil action, Congress imposed “certain preconditions”: seek
relief from the employing agency that allegedly discriminated and
then either seek appellate review by the EEOC and file suit within
ninety days after its final action, or file suit within ninety days
after receiving a final agency decision without appealing to the
EEOC. Id. (citing 42 U.S.C. § 2000e-16(c)). In recognition of
lengthy administrative delays, Congress allowed an employee to
“escape from the administrative quagmire,” Martini, 178 F.3d at
1345, by “fil[ing] a civil action if, after 180 days from the filing
of the initial charge or appeal, the [employing] agency or the

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[EEOC] has not taken final action.” Brown, 425 U.S. at 832
(citing 42 U.S.C. § 2000e-16(c)).
The Supreme Court acknowledged in Brown “[t]he balance,
completeness, and structural integrity of § [2000e-16].” Id. It
recognized as well “[t]he crucial administrative role that each
[employing] agency together with the [EEOC] was given by
Congress in the eradication of employment discrimination.” Id.
at 833. The Court concluded that Congress’s “rigorous
administrative exhaustion requirements and time limitations[]
would be driven out of currency were immediate access to the
courts under other, less demanding statutes permissible.” Id. But
because Congress had not explicitly “position[ed]” federal-sector
Title VII provisions “in the constellation of antidiscrimination
law,” Congress’s intent had to be “infer[red] . . . in less obvious
ways.” Id. at 825. Reviewing the case law and the Senate and
House Committee Reports, the Court noted that “before passage
of the 1972 Act, the effective availability of either administrative
or judicial review was far from sure.” Id. Finding that to be an
“unambiguous congressional perception,” the Court was satisfied
that this “seems to indicate that the congressional intent in 1972
was to create an exclusive, pre-emptive administration and
judicial scheme for the redress of federal employment
discrimination.” Id. at 828–29. Indeed, the Court concluded that
“the structure of the 1972 amendment itself fully confirms the
conclusion that Congress intended it to be exclusive and pre-
emptive.” Id. at 829. “In a variety of contexts,” the Court noted,
it had “held that a precisely drawn, detailed statute pre-empts
more general remedies,” especially where to do otherwise would
undercut the “‘strong policy requiring exhaustion of
. . . remedies.’” Id. at 834 (quoting Preiser v. Rodriguez, 411 U.S.
475, 490 (1973)).
Applying this approach leads to the conclusion that the time
limits for filing suit in 28 U.S.C. § 2401(a) and 42 U.S.C.

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§ 2000e-16(c) irreconcilably conflict. Congress chose to address
employment discrimination in a manner that emphasized using the
employing agency and the EEOC to resolve complaints free of
judicial involvement and vested broad remedial authority in them.
The administrative process was to precede resort to court, but not
to replace it. Although federal employees were not required to
pursue administrative remedies for more than 180 days,
Congress’s structure manifested its preference that federal
employees first attempt administrative resolution of their
complaints and the broad remedial powers Congress included in
the administrative context made it attractive to pursue that path.
See generally West v. Gibson, 527 U.S. 212, 218–19 (1999).
Thereafter, Congress established time limits in which an
aggrieved employee “may file a civil action”: after 180 days have
elapsed following the filing an initial charge or within ninety days
of receipt of notice of final administrative action. Contrary to the
fixed six-year limit of § 2401(a), Congress did not establish a time
limit after which judicial relief would cease to be available due to
the passage of time while employees pursued administrative
remedies, again underscoring Congress’s preferred manner of
resolving federal employment discrimination complaints.
With Congress’s determination of the appropriate time limits
in which a federal employee “may file a civil action,” it would be,
given the context, structure and purpose of Title VII,
fundamentally inconsistent with the statutory scheme to impose
an artificial six-year time limit. Congress understood that lengthy
delays were part of the administrative process and gave
employees the option to proceed to court after 180 days. See
Martini, 178 F.3d at 1345. But for employees who wished to
remain on the administrative path, Congress set no outer time
limit, choosing instead to provide a ninety-day window following
final agency action in which they could file suit. Setting an outer
time limit would reorder the incentives that encourage
administrative resolution by requiring federal employees, where

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the administrative process reaches six-and-a-half years, to elect
either to continue to pursue administrative relief or to abandon the
administrative process without result in order to file a timely civil
action. Contrary though it would be to the congressional scheme,
that would be the effect of adopting the Department’s position.
The instant case and a sampling of others2 demonstrate these
delays can occur, even when, as here, the employees are diligent.
Succinctly put, Congress’s goal of resolving employment
discrimination disputes through the administrative processes “is
better met by enacting a limitations period for filing a court action
that runs from the . . . end of the administrative process,” Burgh
v. Borough Council of Borough of Montrose, 251 F.3d 465, 474
(3d Cir. 2001), rather than from the start or the middle of it.
The conclusion that the two statutory time limits
irreconcilably conflict is bolstered by decisions of the Supreme
Court discussing the preemption of general remedies by
“precisely drawn, detailed statute[s].” Brown, 425 U.S. at 834
(collecting cases). In those cases, involving for example the
Federal Tort Claims Act, the Supreme Court noted it “ha[s]
consistently held that a narrowly tailored employee compensation
scheme pre-empts the more general tort recovery statutes.” Id. at
834–35. Significantly, in another example, the Court noted it had
held that where a more general federal statute could “undermine
the ‘strong policy’” animating a comprehensive remedial scheme,
2 See, e.g., Massingill v. Nicholson, 496 F.3d 382, 383–84
(5th Cir. 2007) (1994 until 2005); Laber v. Harvey, 438 F.3d 404,
411–12 (4th Cir. 2006) (1990 or so until 2003); Pueschel v. United
States, 369 F.3d 345, 351 (4th Cir. 2004) (1992 to 2001); Wilson v.
Pena, 79 F.3d 154, 157–58 (D.C. Cir. 1996) (1984 to 1990); Kannikal
v. Holder, No. CIV.A. 3:12-220, 2014 WL 917342, at *1 (W.D. Pa.
Mar. 10, 2014) (2001 to 2012), appeal pending, No. 14-1803 (3d
Cir.); Dews-Miller v. Clinton, 707 F. Supp. 2d 28, 36–37 (D.D.C.
2010) (1996 to 2006), aff’d, 433 F. App’x 5 (D.C. Cir. 2011).

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the latter preempted the former, id. at 834 (quoting Preiser, 411
U.S. at 488–90). Although the Court was examining how two
federal statutory schemes interacted, and § 2401(a)’s six-year
statute of limitations is not part of such a “scheme,” the Court’s
discussion of patent venue provisions in Brown, 425 U.S. at 835
(citing Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S.
222 (1957); Stonite Prods. Co. v. Melvin Lloyd Co., 315 U.S. 561
(1942)), suggests Brown need not be read narrowly. In Fourco,
the Court concluded that the relevant question was not whether
either venue statute was clear on its face — both were — but
“rather . . . whether [the general venue statute] supplements [the
patent-specific venue statute], or, in other words, whether the
latter is complete, independent and alone controlling in its
sphere.” Fourco, 353 U.S. at 228. Concluding that it was, the
Court stated “[s]pecific terms prevail over the general in the same
or another statute which otherwise might be controlling.” Id. at
228–29 (internal quotation marks omitted). So too here.
The conclusion that the time limits irreconcilably conflict
finds support as well in another line of precedent from the
Supreme Court and our sister circuits. Although not addressing
the interplay between § 2401(a) and § 2000e-16(c), a number of
courts have recognized that truncating the administrative process
or applying an outside time limit would frustrate Congress’s
objectives in enacting Title VII. These courts have declined to
“consign [Title VII] lawsuits to the vagaries of diverse state
limitations statutes.” Occidental Life Ins. Co. of Calif. v. EEOC,
432 U.S. 355, 370–71 (1977). For instance, in Occidental, the
Supreme Court held that the EEOC need not comply with state
statutes of limitations when filing suit in its own name. See id. at
373. Although “[w]hen Congress has created a cause of action
and has not specified the period of time within which it may be
asserted, the Court has frequently inferred that Congress intended
that a local time limitation should apply,” the Court pointed out
that rule is not to be applied inflexibly, because “[s]tate

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legislatures do not devise their limitations periods with national
interests in mind, and it is the duty of the federal courts to assure
that the importation of state law will not frustrate or interfere with
the implementation of national policies.” Id. at 367. The Court
concluded that “[i]n view of the federal policy requiring
employment discrimination claims to be investigated by the
EEOC and, whenever possible, administratively resolved before
suit is brought in a federal court, it is hardly appropriate to rely on
the ‘State’s wisdom in setting a limit.’” Id. at 368 (quoting
Johnson, 421 U.S. at 464). The state statute of limitations in
question and Title VII “could under some circumstances directly
conflict,” id. at 368–69, but even where they did not “absorption
of state limitations would be inconsistent with the congressional
intent underlying the enactment of the 1972 amendments,” id. at
369, to “substantially increase[]” EEOC involvement in dispute
resolution, id. at 370.
Circuit courts of appeal have held that Title VII suits filed by
private-sector employees, like those filed by the EEOC, are not
subject to state statutes of limitations. See Burgh, 251 F.3d at
474; Kirk v. Rockwell Int’l Corp., 578 F.2d 814, 819 (9th Cir.
1978); Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 522
(6th Cir. 1975). Pointedly, in Burgh, the Third Circuit explained
that “Title VII is not a statute without a limitations period,” and
thus there was “no need to import a state limitations period as a
gap-filler.” 251 F.3d at 472. There, “the two-year limitations
period urged by the Borough [of Montrose] would conflict with
the timetables established in Title VII,” id., because “the
limitations scheme provided for in Title VII is consistent with
Congress’s intent that most complaints be resolved through the
EEOC rather than by private lawsuits,” id. at 473. Nearly
identical reasoning appears in EEOC v. W.H. Braum, Inc., 347
F.3d 1192 (10th Cir. 2003), holding that the Age Discrimination
in Employment Act imports Title VII’s enforcement framework,
id. at 1195–96, which precludes application of a two-year state

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statute of limitations with respect to EEOC suits, as the Court held
in Occidental, and as to suits by private individuals, id. at
1197–2000. The Tenth Circuit observed that “[i]mportation of a
state statute of limitations would result in direct conflict with the
federally established timetable, cause confusion to individual
plaintiffs, cut off the conciliation process, and force additional
individual cases into court.” Id. at 1198 (citations omitted).
Circuit courts have demonstrated a similar degree of
solicitude for congressional intent in declining to apply the
doctrine of laches to bar civil actions delayed by EEOC processes.
In Bernard v. Gulf Oil Co., 596 F.2d 1249, 1256 (5th Cir. 1979),
aff’d in relevant part and reversed on other grounds on reh’g, 619
F.2d 459 (5th Cir. 1980), aff’d, 452 U.S. 89 (1981), nine years had
elapsed between the employees’ filing of administrative charges
and filing a civil action. The Fifth Circuit concluded that “[a]
plaintiff cannot be penalized for choosing to forgo” judicial
enforcement and opting for “the legislatively and judicially
favored method of relying on the administrative processes of the
EEOC.” Id. at 1257. The Fourth and Eleventh Circuits relied on
Bernard to reach the same conclusion. See Holsey v. Armour &
Co., 743 F.2d 199, 211 (4th Cir. 1984); Howard v. Roadway Exp.,
Inc., 726 F.2d 1529, 1532–34 (11th Cir. 1984). The Third Circuit
cited Bernard approvingly in concluding that “although plaintiffs
have some obligation to monitor the progress of their charge and
do not have the absolute right to await termination of EEOC
proceedings where it would appear to a reasonable person that no
administrative resolution will be forthcoming, whether the
circumstances warranted the delay in a particular case requires an
ad hoc determination” and remanded the case. Waddell v. Small
Tube Prods., Inc., 799 F.2d 69, 77 (3d Cir. 1986). See also Rozen
v. D.C., 702 F.2d 1202, 1203–04 (D.C. Cir. 1983).
The instant case differs from these cases because it involves
two federal statutes, rather than federal and state statutes or an

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equitable defense like laches. But that does not render these cases
“uninstructive.” Appellee’s Br. 33. Their reasoning confirms that
“in enacting Title VII, Congress chose not to truncate the
administrative process but rather to encourage claimants to pursue
administrative proceedings to their end,” Amicus Br. 28. The
Tenth Circuit’s observations in Braum regarding conflicting time
limits are no less applicable here. That is, the conflict between
§ 2401(a) and § 2000e-16(c) operates similarly to that which
courts refused to sanction in Occidental, Burgh, and Braum. In
some instances, § 2000e-16(c) would require aggrieved employees
to file a civil action before § 2401(a)’s six-year limitations period
has expired, because there has been a final administrative
determination; in others, as here, § 2401(a) would require the
employees to file a civil action before expiration of the ninety-day
period in § 2000e-16(c). Where, as in appellants’ case, no final
administration action has issued six years after their claims
accrued, the aggrieved employee “w[ould] be forced to decide
whether to file suit without knowing” the outcome of agency
review or lose the opportunity to do so. Braum, 347 F.3d at 1198.
As in Kirk, 578 F.2d at 819, “[i]t would be inconsistent with Title
VII to hold that an aggrieved party who pursued his claim
. . . diligently . . . loses his right to file an action because, unknown
to him, [another] statute of limitations had run.”
Congress’s decision to craft a “careful blend of administrative
and judicial enforcement powers,” Brown, 425 U.S. at 833, then,
would be thwarted in practice as significantly by application of
§ 2401(a) as it would by importation of state statutes of limitations
or a laches defense based on administrative delay. Likewise,
applying § 2401(a) would irreconcilably conflict with Congress’s
intent that federal employees not be at a disadvantage relative to
private-sector Title VII employees in pursuing administrative
remedies, see S. REP . No. 92-415, at 16 (1971); see also Chandler
v. Roudebush, 425 U.S. 840, 841 (1976), which would happen if
the administrative process for federal employees arbitrarily

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terminated at six-and-a-half years while private employees could
continue to pursue administrative relief without jeopardizing their
opportunity to file a timely civil action, cf., e.g., Bernard, 596 F.2d
at 1253. Applying § 2401(a)’s limitation period to Title VII
claims also runs counter to the understanding that “Title VII ‘is
remedial legislation dependent for its enforcement on laymen,’
and that ‘resort to technicalities to foreclose recourse to
administrative or judicial processes is particularly inappropriate.’”
Rozen, 702 F.2d at 1203–04 (quoting Bethel v. Jefferson, 589 F.2d
631, 642 (D.C. Cir. 1978)); accord Kirk, 578 F.2d at 819.
B.
The Department takes a different view of how Title VII and
§ 2401(a) interact. As the Department sees it, the federal
employee “has virtually unfettered discretion to choose the forum
for her dispute.” Appellee’s Br. 37. She may litigate within the
administrative process or escape it altogether after 180 days, “even
on the eve of or during the administrative hearing and after
discovery, motions practice, etc.” Id. But that unilateral authority
to determine the nature of the process does not last forever,
according to the Department. Rather, by not expressly exempting
Title VII from the reach of § 2401(a), Congress was alerting
aggrieved employees that once they had pursued the
administrative process for six-and-a-half years, they “ha[d]
effectively chosen the administrative tribunal . . . to be [their]
exclusive forum.” Id. at 38. An employee can still seek redress of
her grievance in the administrative realm, but she “loses the
unfettered right to re-litigate her claim in, and seek de novo
judicial review from, a district court.” Id. at 38–39. The
Department characterizes this as an “elegant scheme,” id. at 39,
that balances the congressional concern for finality expressed in
establishing statutes of limitations, see id. at 36, against the
national interest “in eradicating discrimination in the federal
workforce,” id. at 37.

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Even assuming the Department’s interpretation of how the
two statutory time limits interact is not internally illogical, it is not
the scheme adopted by Congress. As the Supreme Court
recognized in Occidental, the 1972 amendments to Title VII
embodied “the federal policy requiring employment
discrimination claims to be investigated by the EEOC and,
whenever possible, administratively resolved before suit is brought
in a federal court.” 432 U.S. at 368 (emphasis added). Title VII
includes the timing rules that Congress determined were
appropriate for the problem it was addressing. The Department
responds, in observing that the ninety-day period is not
jurisdictional, see Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,
95 (1990), that § 2401(a) provides what Title VII lacks, namely a
“jurisdictional outer-limit on maintaining claims in court against
the federal government,” Appellee’s Br. 30 (emphasis added), and
a “filing deadline for cases where no [final agency decision] is
issued,” id. at 31. Regardless of whether § 2401(a) is
jurisdictional, a question this court need not decide, the
Department’s interpretation of the relationship between § 2401(a)
and § 2000e-16(c) ignores that Title VII has no “jurisdictional
outer-limit” because Congress chose not to impose one given its
“‘hope[] that recourse to the private lawsuit w[ould] be the
exception and not the rule,’” Martini, 178 F.3d at 1346 (quoting
118 Cong. Rec. 7168), and its knowledge that there would be long
administrative delays, see id. at 1345 (citing S. REP . No. 92-415,
at 23; H.R. REP . No. 92-238 (1971)). Congress tied the timing of
any lawsuit to the progress of administrative resolution rather than
to the amount of time that had elapsed in the administrative
process since the employee filed an initial charge. Cf. Burgh, 251
F.3d at 474. There is nothing strange, or inelegant, about
Congress authorizing relief that is not tied to a
jurisdictional statute of limitations: private-sector Title VII
plaintiffs do not face a jurisdictional limitations period for filing
a civil action, see Irwin, 498 U.S. at 95, and the limitations periods
in AEDPA, see Day v. McDonough, 547 U.S. 198, 205, 209

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(2006), and the Clayton Act, see Hardin v. City Title & Escrow
Co., 797 F.2d 1037, 1040 (D.C. Cir. 1986), for example, are also
non-jurisdictional. Appellants note that in various statutory
settings “pegging statutes of limitations to final agency action is
commonplace.” Reply Br. 10 (citing the Clean Air Act, 42 U.S.C.
§ 7607(b)).
Unsurprisingly, the tax refund cases on which the Department
relies to demonstrate that “the jurisdictional limit of Section
2401(a) presents no conflict with the non-jurisdictional filing
deadlines applicable to federal sector Title VII,” Appellee’s Br.
30, cannot bear the weight placed upon them. In United States v.
A. S. Kreider Co., 313 U.S. 443 (1941), the Supreme Court held
that the six-year statute of limitations (a precursor to § 2401(a))
did not displace a shorter statute of limitations for tax recovery
suits, where a “less liberal[]” limitations period recognized that
such suits “impeded effective administration of the revenue laws,”
id. at 447. The general statute of limitations was not “applied to
truncate a cause-of-action-specific limitations period.” Reply Br.
5. Moreover, the policy justification referred to in Kreider ill fits
Title VII’s time limits, which allow suit by the employee
aggrieved by administrative failure to take final action. The
Department also cites three district court cases, two of which have
interpreted Kreider to mean that § 2401(a) cuts off tax refund suits
even when the specific statutory time has not run, see Breland v.
United States, No. 5:10-CV-0007 GTS/GHL, 2011 WL 4345300,
at *6–7 (N.D.N.Y. Sept. 15, 2011); Finklestein v. United States,
943 F. Supp. 425, 431–32 (D. N.J. 1996). Kreider, however, held
only that the shorter, specific statute of limitations overrides the
general six-year limitations period (now § 2401(a)). 313 U.S. at
447–48. It did not consider the interaction of that “entirely
consistent” limitations period with a longer, statute-specific
limitations period. Id. at 447. Neither did Goss v. United States,
293 F. Supp. 2d 816, 817–18 (N.D. Ohio 2003).

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The Department insists that there is no conflict between the
time limits in § 2401(a) and § 2000e-16(c) where “no [final
administrative decision] was issued” to trigger Title VII’s ninety-
day period to file a civil action. Appellee’s Br. 31–32. Not so. If
in the midst of a protracted administrative proceeding, an
employee is aggrieved by administrative inaction more than six
years and 180 days after filing the initial charge, § 2000e-16(c)
would allow her to file a civil action, but § 2401(a) would bar it.
The Department cites no Title VII text or legislative history, or
judicial precedent regarding Title VII, indicating that Congress
intended employees who are aggrieved by agency inaction less
than six-and-a-half years after filing their initial charges to be
treated differently from those who are not aggrieved until six-and-
a-half years have passed.
Similarly, with respect to the Department’s invocation of
Congress’s concern about finality, the Department has pointed to
nothing in Title VII or its legislative history indicating Congress
intended to preclude civil suits whenever the administrative
process lasted more than six-and-a-half years. “The absence of
inflexible time limitations on the bringing of lawsuits will not
. . . deprive defendants in Title VII civil actions of fundamental
fairness or subject them to the surprise and prejudice that can
result from the prosecution of stale claims.” Occidental, 432 U.S.
at 372. For “[u]nlike the litigant in a private action who may first
learn of the cause against him upon service of the complaint, the
Title VII defendant is alerted to the possibility of an enforcement
suit,” id., when an employee files a formal complaint with her
department. Under EEOC regulations that must occur shortly after
the alleged discrimination: employees must consult their
employing agency’s Equal Employment Opportunity Counselor
“within 45 days of the date of the matter alleged to be
discriminatory,” 29 C.F.R. § 1614.105(a)(1); counseling must
generally conclude within thirty days, id. § 1614.105(d); and an
aggrieved employee must file a complaint with the employing

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agency within fifteen days of receipt of the notice at the end of an
unsuccessful counseling period, id. § 1614.106(b). Consequently,
the fact that a civil action may not be filed until years after alleged
discrimination does not create the type of surprise or prejudice that
statutes of limitation are designed prevent, see Order of R.R.
Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348–49
(1944).
The Department’s attempt to draw a distinction between
requirements for filing a civil action under § 2000e-16(c), and for
“maintaining a civil action,” Appellee’s Br. 34, is a non-starter.
Observing that “Title VII’s civil action provision does not contain
language excluding of other legal requirements,” such as the
phrase “notwithstanding any other provision of law,” the
Department notes that “other general litigation rules” apply to
Title VII, such as the limitation on appeals, 28 U.S.C. § 1291;
rules for transferring claims, see id. § 1404(a); pleading standards,
see FED . R. CIV . P. 8(a); and Title VII’s provision regarding
exhaustion. Appellee’s Br. 34. None of these provisions conflict
with the Title VII statutory scheme, however, and the absence of
ordering language according Title VII’s provisions priority over
other provisions of the United States Code is not dispositive when,
as here, the two statutes irreconcilably conflict. Moreover, the
Supreme Court has concluded that Congress intended Title VII to
be preemptive for federal employee discrimination complaints.
See Brown, 425 U.S. at 829.
Congress, of course, could have balanced the interests
differently in amending Title VII to apply to federal employees
and concluded that six years after the initial 180-day period is
sufficient time for the EEOC and the employing agency to resolve
or dismiss the employee’s discrimination complaint. But it did
not, for various reasons discussed in Brown and Martini, 178 F.3d
at 1345 (citing S. REP . No. 92-415, at 23; H.R. REP . No. 92-238),
including long administrative delays, the complexity often

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involved in redressing problems of employment discrimination,
and the utility of agency expertise in working to resolve
complaints, see S. REP . NO . 92-415, at 18–19. Congress also could
have required federal employees to make an irrevocable election
early in the administrative process, much as it required of
employees subject to negotiated grievance procedures, see 5
U.S.C. § 7121(d); Guerra v. Cuomo, 176 F.3d 547, 549 (D.C. Cir.
1999). But it did not — for reasons the Supreme Court identified
in Brown and that appellants persuasively suggest could have the
perverse effect of “creat[ing] strong incentives to abandon the
administrative process,” Reply Br. 15, contrary to Congress’s
preference that federal employees take advantage of that forum.
So understood, inasmuch as “[t]he judicial role is to enforce th[e]
congressionally determined balance,” Milner, 131 S. Ct. at 1265
n.5, we conclude that 28 U.S.C.§ 2401(a) and 42 U.S.C. § 2000e-
16(c) irreconcilably conflict and that only the time limits in Title
VII apply to appellants’ civil action.
Appellants’ case illustrates why that outcome reflects
Congress’s intent. They were neither dilatory in the administrative
process nor in filing their civil action, and the Department does not
suggest otherwise. Howard’s claim first accrued in August 1995,
180 days after she filed her initial charge. Under § 2401(a), she
would have been required to file suit in August 2001 or be forever
barred from doing so. Yet at that juncture, the EEOC’s Office of
Federal Operations had ruled that the Washington Field Office’s
ALJ had erred in disqualifying Howard as class agent,
provisionally certified a class, and remanded the matter for further
administrative proceedings. As the Department sees it,
notwithstanding the time allowed in § 2000e-16(c), Howard
should have either ignored that she had just received a favorable
ruling in the administrative process and instead sought judicial
relief, or abandoned any hope of ever doing so in the event the
administrative process took a turn for the worse. That result is
irreconcilable with Congress’s express time limits for its statutory

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scheme, with its structural and remedial emphasis on
administrative resolution for redressing discrimination in federal
employment. Megginson’s claim, which accrued around the same
time as Howard’s, similarly demonstrates that application of
§ 2401(a) would irrevocably conflict with congressional intent.
III.
Because the district court erred in applying § 2401(a)’s six-
year statute of limitations to appellants’ Title VII claims, we will
remand the case to the district court for consideration of the
second amended complaint. Although appellants also contend that
the district court abused its discretion in denying their motion for
leave to file a third amended complaint, see Elkins v. D.C., 690
F.3d 554, 565 (D.C. Cir. 2012), we are unpersuaded. The district
court denied leave to add six new counts that it concluded were
“entirely distinct from the operative complaint’s single count” and
“would radically alter the scope and nature of this case.” Howard,
891 F. Supp. 2d at 101 (internal quotation marks omitted).
Appellants “offered no reason for failing to assert these claims
earlier in this action,” id., although they had known the facts and
had filed other civil actions against the Department based on many
of the same allegations they sought to add. Id. at 101–02. The
district court also noted as to all of Megginson’s new claims and
some of Howard’s that, in view of its ruling that § 2401(a) applied,
“yet another reason” to deny leave was that amendment would be
futile, id. at 102. The district court’s other reasons suffice to show
there was no abuse of discretion in denying leave to file. See
Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810
F.2d 243, 247–48 (D.C. Cir. 1987).
Accordingly, we reverse the dismissal of the second amended
complaint and remand the case to the district court.

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