Janet HOWARD, Appellee. v. Joyce MEGGINSON, Appellant. v. Penny Sue PRITZKER, Secretary, United States Department of Commerce, Appellee.
Nos. 12-5370, 12-5392
United States Court of Appeals, District of Columbia Circuit.
Decided Jan. 6, 2015.
775 F.3d 430
We also agree that the late submission was not “substantially justified.” As discussed above, the plaintiff declined to properly invoke either of the (potentially) proper procedural avenues to introduce the declaration—Rule 26(e) or 56(d)—apparently because doing so would have undermined his litigation strategy: he was determined to persuade the district judge that Boomer had effected no change to Virginia law that would open the door to Honeywell‘s renewed motion for summary judgment. As a direct result of this strategic choice, the new Markowitz declaration was not timely submitted. The district court did not abuse its discretion by determining that a failure to timely submit a declaration that was the direct result of such a choice was not “substantially justified.” Again, we note that the plaintiff never hedged his bets by voicing an argument addressing the contingency that the court might find that Boomer justified consideration of Honeywell‘s new motion for summary judgment.
The plaintiff complains that the district court improperly failed to consider lesser sanctions before ordering exclusion, which here operated as “a de facto dismissal sanction.” But the district court did consider (and reject) lesser sanctions when it evaluated the harmfulness of admitting the late declaration. The plaintiff also argues that exclusion was “grossly disproportionate” to the violation, because there was no finding of bad faith or extreme misconduct. But neither of these is required under Rule 37(c).
In sum, the district court did not abuse its discretion by excluding the new Markowitz declaration.
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The plaintiff also seeks reversal of the court‘s grant of summary judgment. But his arguments all assume that the new Markowitz declaration was or ought to have been properly part of the record. Because the declaration was appropriately excluded, we find that the plaintiff effectively concedes summary judgment and we need not address these arguments.
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The judgment of the district court is Affirmed.
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., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: ROGERS and BROWN, Circuit Judges, and EDWARDS, Senior Circuit Judge.
ROGERS, Circuit Judge:
In a novel attempt to reconfigure Congress‘s statutory scheme more than forty years after its enactment, the Commerce Department would impose
I.
Congress enacted Title VII of the Civil Rights Act of 1964,
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.
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. ¶ 11. They sought equitable and monetary relief. As EEOC regulations required, they filed the complaint with the Department, see
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
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
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 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,
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,
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,
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.
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, 103 S.Ct. 2961, 77 L.Ed.2d 580 (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, 96 S.Ct. 948, 47 L.Ed.2d 114 (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.
The Department maintains that § 2401(a) applies by its express terms to “every civil action commenced against the United States.”
Supreme Court precedent makes clear, however, that “every” cannot mean “ev
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, 96 S.Ct. 1989, 48 L.Ed.2d 540 (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, 83 S.Ct. 1246, 10 L.Ed.2d 389 (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, 122 S.Ct. 593, 151 L.Ed.2d 508 (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, 94 S.Ct. 2474, 41 L.Ed.2d 290 (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, 114 S.Ct. 1992, 128 L.Ed.2d 842 (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, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981).
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: “Sec
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, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), and this is ordinarily true where two statutes irreconcilably conflict, see Edmond v. United States, 520 U.S. 651, 657, 117 S.Ct. 1573, 137 L.Ed.2d 917 (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, 116 S.Ct. 1065, 134 L.Ed.2d 130 (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).
Upon examining Title VII‘s scheme, we conclude that there is an irreconcilable conflict such that the specific time limits,
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
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 preemptive.” 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, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)).
Applying this approach leads to the conclusion that the time limits for filing suit in
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 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, 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, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957); Stonite Prods. Co. v. Melvin Lloyd Co., 315 U.S. 561, 62 S.Ct. 780, 86 L.Ed. 1026 (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
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, 97 S.Ct. 2447, 53 L.Ed.2d 402 (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 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 statute of
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, 101 S.Ct. 2193, 68 L.Ed.2d 693 (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 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 importa
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.
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, 111 S.Ct. 453, 112 L.Ed.2d 435 (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
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, 61 S.Ct. 1007, 85 L.Ed. 1447 (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); Finkelstein 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).
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, in
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,”
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,
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,
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 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.
Accordingly, we reverse the dismissal of the second amended complaint and remand the case to the district court.