4th Circuit Decides Case on Finality of Federal EEOC Decisions

The Fourth Circuit’s decision in Cochran v. Holder addresses the issue of when a decision by the Equal Employment Opportunity Commission (EEOC) becomes “final” for the purposes of 42 U.S.C. § 2000e-16(c). The EEOC regulation allows federal employees to file a civil action for illegal discrimination by their employer within 90 days of a “final” adverse decision by the Commission. More after the break.

The Fourth Circuit reversed the district court’s interpretation that the 90-day period began running from the conclusion of an initial appeal, regardless of whether the employee timely files a motion for reconsideration. Looking at prior judicial interpretation of the regulation, a notice from EEOC to the plaintiff Phillip Cochran, and Supreme Court precedent, the court reversed the prior decision. The court held instead that a timely motion for reconsideration delays the running of the 90-day limitation period until the EEOC ruled on the reconsideration motion.

The Fourth Circuit looked back at two amendments of EEOC regulations in 1987 and 1999 affecting the definition of “final” as used in § 2000e-16(c). In 1987, the definition changed in a few important respects: 1) under 29 C.F.R. § 1614.407(b), an employee was limited to one request for reconsideration, filed within 30 days of the original EEOC decision, and 2) under 29 C.F.R. § 1614.405(b), the EEOC issued an explicit definition of “final” under § 2000e-16(c). That definition made a decision by the Office of Federal Operations (OFO) final for limitations purposes unless a) either party files a timely motion for reconsideration or b) the Commission on its own reconsiders the case. In 1999, another amendment to EEOC regulations limited reconsideration of cases involving “a clearly erroneous interpretation of material fact or law” or a “substantial impact” on the agency. The definition of “final” here stated that a decision issued by the OFO is final unless the Commission reconsiders the case and a “party may request reconsideration within 30 days of receipt of [the decision].” The EEOC retained this definition.

The court also revisited Supreme Court precedent from Stone v. INS and ICC v. Bhd. Of Locomotive Engineers. In Locomotive Engineers, the Court held that filing a motion for reconsideration delays the finality of an agency decision under the Hobbs Act. This decision came regardless of statutory language suggesting that motions for reconsideration do not affect the limitations period for judicial review. They relied on how similar language in the Administrative Procedure Act (APA) has been construed, such that parties are relieved from the requirement of petitioning for rehearing before seeking judicial review. In the more recent case, Stone, the Court concluded that the APA’s a “tolling rule,” allowing the timely filing of a motion for reconsideration, renders an underlying agency’s order nonfinal for judicial review purposes. It is important to note that Stone was especially relevant because the Supreme Court rejected the Government’s anti-tolling argument even with its strong support by regulatory language. Comparing 8 C.F.R. § 243.1 (1990) with 29 C.F.R. § 1614.405(b) (2008), there’s a clear difference. The former states: “The agency’s order becomes final upon dismissal of an appeal by the agency,” and the latter, “A decision issued by the EEOC on appeal is final under § 2000e-16 unless the Commission reconsiders the case.”

Finally, the court gave three additional reasons for its interpretation of § 1614.405(b). These include prior district and appellate court opinions, a notice provided by EEOC to Cochran (similar to that provided to other aggrieved employees), and policy considerations. From prior opinions, the court highlighted that all six federal appellate courts addressing the question presented here concluded that “a timely motion to reopen or reconsider delays the start of § 2000e-16(c)’s limitations period.” Next, the notice sent by the EEOC notified Cochran 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.” Lastly, several policy considerations contribute to the court’s interpretation of § 1614.405(b)-including procedural fairness to parties, judicial efficiency, and maintaining an interpretation consistent with other similar legal contexts (to avoid confusion by litigants).

Contributed by K.C. Osuji