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 Traxler joined.

COUNSEL

ARGUED: Phoebe Leslie Deak, Washington, D.C., for

Appellant. Dennis Carl Barghaan, Jr., OFFICE OF THE
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 Opportunity 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 experienced district judge certainly offered a reasonable construction 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 interpretation 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 discrimi2 COCHRAN v. HOLDER
nation caused his constructive discharge in 1993 and that the

USMS unlawfully failed to reinstate him to his previous position 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 transferred the case to the Eastern District of Virginia on November 11, 2006. The USMS then moved to dismiss Cochran’s

complaint as untimely because Cochran had filed his complaint 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

COCHRAN v. HOLDER 3
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 decision 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

1We cite to the 1992 version of the regulations because the EEOC, without changing the substance of the 1987 definition of "final," restructured

and renumbered the regulations at that time. See Federal Equal Employment 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). 

4 COCHRAN v. HOLDER
(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) (unpublished).

In 1999, the EEOC again amended § 1614.405(b). The

principal impact of the amendment was to limit reconsideration 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 regulation 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 reconsideration 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 Cochran’s complaint.

B.

The parties vigorously dispute the significance of the definition 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).

COCHRAN v. HOLDER 5
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 reconsideration, 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 dismissed Cochran’s complaint as untimely.

Cochran argues that the district court erred in adopting the

Government’s interpretation of § 1614.405(b). He relies principally 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 limitations period. He argues that the amended EEOC regulation is

easily susceptible to this construction, because the EEOC necessarily "reconsider[s]" a case under § 1614.405(b) in deciding 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.

2As 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. 

6 COCHRAN v. HOLDER
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 argument 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 construing § 1614.405(b) without guidance from precedent and

history.

Fortunately, however, the Supreme Court has twice confronted, 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 running 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] limitation 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 . . . .")).

COCHRAN v. HOLDER 7
Notwithstanding this language, the Supreme Court reasoned

that this provision, like analogous language in the Administrative 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 judicial review." Stone, 514 U.S. at 392. Stone is particularly relevant 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 rejection 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 reconsideration.4

3The 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. 

4We also note that if we were to interpret § 1614.405(b) as the Government 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. 

8 COCHRAN v. HOLDER
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 Government cannot point to a single judicial decision (other than

that of the district court in this case) that adopts the interpretation 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 limitations 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 interpretation of § 1614.405(b), to interpret the regulation otherwise

COCHRAN v. HOLDER 9
would upend the settled expectations of parties litigating

before the EEOC based solely on arguably ambiguous regulatory language. If the EEOC had wished to change this wellestablished 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 reconsideration. 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 indicative 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 provides further support for an interpretation of § 1614.405(b)

that permits tolling.

5We invited the EEOC to file a brief as amicus curiae to state its understanding of the meaning of the 1999 amendment, but it declined our invitation. 

10 COCHRAN v. HOLDER
D.

Lastly, we note that policy considerations support this construction 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 procedure 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 unnecessary. Indeed, the Supreme Court itself pointed to judicial

economy concerns when it reaffirmed the tolling rule of Locomotive 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 reconsideration 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 anomalous, it would create unnecessary confusion for litigants

familiar with the standard rules in other legal contexts.

COCHRAN v. HOLDER 11
IV.

For the foregoing reasons, we hold that Cochran’s complaint 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

12 COCHRAN v. HOLDER