United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 10, 2014 Decided January 6, 2015

No. 12-5370

JANET HOWARD,

APPELLEE

JOYCE MEGGINSON,

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.,
2

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
3

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.
4

§§ 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. § 2000e16(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 nonexecutive 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). 
5

Janet Howard, who worked at the Department for twentyfive 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
6

“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
7

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
8

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:
9

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. 
10

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.
11

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).
12

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).
13

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
14

[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 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 (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.
15

§ 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
16

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). 
17

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
18

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
19

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
20

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
21

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. 
22

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
23

(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). 
24

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 ninetyday 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-anda-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
25

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
26

involved in redressing problems of employment discrimination,

and the utility of agency expertise in working to resolve

complaints, seeS.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. § 2000e16(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
27

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 sixyear 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.