2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-4-2007

AARP v. EEOC

Precedential or Non-Precedential: Precedential

Docket No. 05-4594

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Recommended Citation

"AARP v. EEOC" (2007). 2007 Decisions. Paper 853.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________________

No. 05-4594

_________________

AMERICAN ASSOCIATION OF RETIRED PERSONS;

JACK W. MACMILLAN; FRANK H. SMITH, JR.; FRANK

A. WHEELER; FRED DOCHAT; GERALD FOWLER; M.

ELAINE CLAY,

Appellants

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

 

Appeal from the

United States District Court for the

Eastern District of Pennsylvania

(D.C. No. 05-cv-00509)

District Judge: The Honorable Anita B. Brody

 

Argued on February 27, 2007

________________
*

The Honorable Jane A. Restani, Chief Judge of the

United States Court of International Trade, sitting by

designation.

2

Before: MCKEE and ALDISERT, Circuit Judges, and

RESTANI*

, Judge

(Filed: June 4, 2007)

Christopher G. Mackaronis (Argued) 

Brickfield, Burchette, Ritts and Stone

1025 Thomas Jefferson Street, N.W. 

8th Floor, West Tower

Washington, DC 20007

Laurie A. McCann

American Association of Retired Persons

601 E Street, N.W.

Washington, DC 20049

Stephen G. Console 

1525 Locust Street

9th Floor

Philadelphia, PA 19102

Counsel for Appellants

Anthony A. Yang (Argued)
3

United States Department of Justice

Appellate Section

950 Pennsylvania Avenue, N.W.

Room 7248

Washington, DC 20530

Marleigh D. Dover

United States Department of Justice

10th & Pennsylvania Avenue, N.W. 

Room 3127

Washington, DC 20530

Counsel for Appellees

Barbara B. Brown

Neal D. Mollen

Paul, Hastings, Janofsky & Walker

875 15th Street, N.W. 

Washington, DC 20005

Counsel for Amicus-Appellee Chamber of Commerce

of the United States

Douglas L. Greenfield

Bredhoff & Kaiser

805 15th Street, N.W. 

Suite 1000

Washington, DC 20005

Counsel for Amicus-Appellees National Education
4

Association; American Federation of Teachers;

International Union, United Automobile, Aerospace

and Agricultural Implement Workers of America;

American Federation of State, County and Municipal

Employees; United Steel, Paper and Forestry, Rubber,

Manufacturing, Energy, Allied Industrial and Service

Workers International Union; and International

Association of Fire Fighters

Ann E. Reesman

McGuiness, Norris & Williams

1015 15th Street, N.W. 

Suite 1200

Washington, DC 20005

Counsel for Amicus-Appellees Equal Employment

Advisory Council; HR Policy Association; America’s

Health Insurance Plans; American Benefits Council;

ERISA Industry Committee; National Rural Electric

Cooperative Association; Society for Human Resource

Management; American Council on Education;

College and University Professional Association for

Human Resources; and WorldatWork

______________

OPINION OF THE COURT

______________

RESTANI, Judge.
1

29 U.S.C. §§ 621–34, as amended by the Older Workers

Benefit Protection Act, Pub. L. No. 101-433, 104 Stat. 978

(1990). 

5

Appellants American Association of Retired Persons, et

al. (“AARP”), appeal a judgment of the United States District

Court for the Eastern District of Pennsylvania. The District

Court vacated, on the basis of a significant change in law, a

previous grant of summary judgment in favor of AARP, and

instead granted summary judgment in favor of the Equal

Employment Opportunity Commission (“EEOC”). At issue is

a regulation that would exempt from the Age Discrimination in

Employment Act (“ADEA”)1

 employer coordination of

retirement benefits with, inter alia, Medicare benefits. AARP

challenges the regulation as contrary to the terms of the ADEA,

and seeks to reinstate the District Court’s permanent injunction

against implementation of the regulation. We will affirm the

District Court’s order granting summary judgment in favor of

the EEOC on grounds other than those relied on by the District

Court. 

BACKGROUND

On July 14, 2003, the EEOC published a notice of

proposed rulemaking to exempt from the prohibitions of the

ADEA “the practice of altering, reducing or eliminating

employer-sponsored retiree health benefits when retirees

become eligible for Medicare or a State-sponsored retiree health

benefits program.” Age Discrimination in Employment Act;

Retiree Health Benefits, 68 Fed. Reg. 41,542, 41,542 (EEOC
2

The final rule would read as follows:

(b) Exemption. Some employee benefit plans provide health

benefits for retired participants that are altered, reduced or

eliminated when the participant is eligible for Medicare health

benefits or for health benefits under a comparable State health

benefit plan. Pursuant to the authority contained in section 9 of

the [ADEA], and in accordance with the procedures provided

therein . . . it is hereby found necessary and proper in the public

interest to exempt from all prohibitions of the Act such

coordination of retiree health benefits with Medicare or a

comparable State health benefit plan. 

68 Fed. Reg. at 41,548–49. 

3

The relevant portion of 29 U.S.C. § 623 reads as follows:

(continued...)

6

July 14, 2003) (notice of proposed rulemaking).2 AARP

brought suit in the Eastern District of Pennsylvania on February

4, 2005, challenging the proposed regulation under the

Administrative Procedure Act, 5 U.S.C. §§ 551, et seq.

(“APA”), and the ADEA. AARP v. Equal Employment

Opportunity Comm’n, 383 F. Supp. 2d 705, 708 (E.D. Pa. 2005)

(“AARP I”). 

Initially, the District Court granted summary judgment in

favor of AARP, holding that the challenged regulation was

contrary to law under this court’s decision in Erie County

Retirees Ass’n v. County of Erie, 220 F.3d 193 (3d Cir. 2000).

In Erie County, consistent with the position of the EEOC in that

action, we held that, as Medicare eligibility is age dependent, the

ADEA did not permit reduction or termination of retiree health

benefits upon Medicare eligibility unless the employer met the

“equal benefit or equal cost” defense set forth in section 4 of the

ADEA.3

 Id. at 217. Accordingly, here the District Court stated
3

(...continued)

It shall not be unlawful for an employer, employment agency, or

labor organization . . . to take any action otherwise prohibited .

. . to observe the terms of a bona fide employee benefit plan . .

. where, for each benefit or benefit package, the actual amount

of payment made or cost incurred on behalf of an older worker

is no less than that made or incurred on behalf of a younger

worker. 

29 U.S.C. § 623(f)(2)(B)(i). 

7

that “[b]ecause the Third Circuit held in Erie County that

Congress intended the ADEA to apply to the exact same

behavior that the EEOC would exempt, the EEOC’s challenged

exemption is contrary to Congressional intent and the plain

language of the ADEA.” AARP I, 383 F. Supp. 2d at 710. The

District Court permanently enjoined the EEOC from “publishing

or otherwise implementing the regulation at issue.” Id. at 712.

The EEOC appealed that judgment.

On June 27, 2005, while the first appeal was pending, the

Supreme Court decided National Cable and

Telecommunications Ass’n v. Brand X Internet Services, 545

U.S. 967 (2005). Brand X held that prior judicial interpretation

of a statute bars subsequent agency interpretations only where

the precedent “unambiguously forecloses the agency’s

interpretation, and therefore contains no gap for the agency to

fill.” Brand X, 545 U.S. at 983. The EEOC moved for relief

from judgment in the District Court, citing Brand X as an

intervening change of law with respect to the court’s application

of Erie County and arguing that its proposed regulation was

consistent with the statute. AARP v. Equal Employment

Opportunity Comm’n, 390 F. Supp. 2d 437, 441–42 (E.D. Pa.

2005) (“AARP II”). The District Court granted the motion,

vacating its decision in AARP I and granting summary judgment
8

in favor of the EEOC. Id. at 462. The District Court stayed its

order lifting the permanent injunction pending any appeal. Id.

at 463. AARP appeals. 

JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. §

1331. We have jurisdiction under 28 U.S.C. § 1291. We

review the District Court’s grant of summary judgment de

novo. Concerned Citizens Alliance, Inc., v. Slater, 176 F.3d

686, 693 (3d Cir. 1999). 

DISCUSSION

At issue is whether the proposed regulation is within the

EEOC’s authority under the ADEA, and whether the regulation

is valid under the APA. 

I. The Proposed Regulation is Within the EEOC’s

Exemption Authority Under Section 9 of the ADEA

There is a well-trodden two-step approach to judicial

review of an agency regulation. Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, 467 U.S. 837, 842–43 (1984). Step

one asks “whether Congress has directly spoken to the precise

question at issue.” Id. at 842. If the intent of Congress is clearly

expressed in the statute, “that is the end of the matter; for the

court, as well as the agency,” and such intent must be given

effect. Id. at 842–43. “[I]f the statute is silent or ambiguous

with respect to the specific issue,” then the court proceeds to a

step-two determination of whether the agency interpretation is

based on a “permissible construction” of the statute. Id. at 843.

The precise question in this case is whether the EEOC

has the power to issue a regulation exempting from the

prohibitions of the ADEA employer-sponsored benefits plans
4

“The term ‘exemption’ is ordinarily used to denote relief

from a duty or service.” Am. Paper Inst., Inc. v. Am. Elec.

Power Serv. Corp., 461 U.S. 402, 421 (1983). See also id.

(“[T]o ‘exempt’ is ‘to relieve, excuse or set free from a duty or

service imposed upon the general class to which the individual

exempted belongs.’”) (quoting Black’s Law Dictionary 513 (5th

ed. 1979)). 

5

Although AARP correctly notes that no administrative

agency is permitted to effectively repeal any portion of a statute

(continued...)

9

that coordinate retiree health benefits with eligibility for

Medicare or state-sponsored health benefits programs. Section

9 of the ADEA authorizes the EEOC to “establish such

reasonable exemptions to and from any or all provisions of [the

Act] as it may find necessary and proper in the public interest.”

29 U.S.C. § 628. The EEOC acknowledges this source of

authority in its notice of the proposed rulemaking, stating that

“[a]fter an in-depth study, the Commission believes that the

practice of [coordinating retiree health benefits with Medicare

eligibility] presents a circumstance that warrants Commission

exercise of its ADEA exemption authority. . . . [P]ursuant to its

authority under Section 9 of the Act, the EEOC proposes . . . this

notice of proposed rulemaking.” 68 Fed. Reg. at 41,542. 

Section 9 clearly and unambiguously grants to the EEOC

the authority to provide, at least, narrow exemptions from the

prohibitions of the ADEA. By definition, the power to grant

“exemptions” provides an agency with authority to permit

certain actions at variance with the express provisions of the

statute in question. By stating that “any or all provisions” may

be subject to exemptions,4

 Congress made plain its intent to

allow limited practices not otherwise permitted under the statute,

so long as they are “reasonable” and “necessary and proper in

the public interest.” 29 U.S.C. § 628 (emphasis added).5
5

(...continued)

by regulation, see, e.g., United States v. Shumway, 199 F.3d

1093, 1107 (9th Cir. 1999), the proposed regulation at issue is

narrowly focused and not contrary to the terms and purpose of

the ADEA, and therefore does not present such a challenge. 

10

Because the language of section 9 expressly grants to the EEOC

the power to implement such exceptions, there is no question

that a limited exemption shown by the agency to be reasonable,

necessary, and proper falls within the agency’s authority under

the statute. 

AARP argues that the proposed exemption exceeds the

EEOC’s authority under section 9 because it would allow certain

employer practices otherwise prohibited by the ADEA. (See

Appellants’ Br. 35–36.) AARP points to section 4 of the

ADEA, which states that “[i]t shall be unlawful for an employer

. . . [to] discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s age.” 29 U.S.C. § 623(a)(1). As

discussed previously, however, it is clear that Congress intended

to permit limited exemptions from the ADEA, including the

anti-discrimination provision of section 4. Section 9

unambiguously grants reasonable exemption authority to the

EEOC, and plainly states that such authority applies to any and

all parts of the statute. Because section 9 clearly grants such

authority to the EEOC, the fact that the proposed regulation

would allow certain practices not otherwise permitted under

section 4 does not render the regulation invalid. 

This is not to say that the EEOC’s exemption authority is

unlimited. As indicated, section 9 limits permissible exemptions

to those that are shown to be “reasonable” and “necessary and
6

According to the “delegation doctrine,” under the

Constitution Congress is required to limit delegations of

legislative authority by setting forth in the relevant statute “‘an

intelligible principle to which the [agency] authorized to [act] is

directed to conform.’” Touby v. United States, 500 U.S. 160,

165 (1991) (quoting J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394, 409 (1928)). We must narrowly interpret section

9 of the ADEA, if possible, to avoid any potential delegation

problem. Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst.,

448 U.S. 607, 646 (1980) (“A construction of the statute that

avoids [an] open-ended grant [of legislative authority] should

certainly be favored.”); see also United States v. Jin Fuey Moy,

241 U.S. 394, 401 (1916) (“A statute must be construed, if fairly

possible, so as to avoid not only the conclusion that it is

unconstitutional, but also grave doubts upon that score.”) In

section 9, Congress establishes clear limitations on the EEOC’s

exemption authority by requiring that the exemptions be

“reasonable” and “necessary and proper in the public interest.”

29 U.S.C. § 628. We interpret this to require narrow exemptions

tailored to the overall purpose of the ADEA, an intelligible

principle. Here, the EEOC’s exercise of its exemption authority

through the proposed regulation is narrowly focused to permit

a discrete practice pursuant to the purposes of the ADEA. As

discussed, the proposed regulation adheres to the limitations set

forth in section 9. Therefore, the exemption at issue does not

run afoul of the requirements of the delegation doctrine. 

11

proper in the public interest.” 29 U.S.C. § 628.6 Here, the

EEOC issued the proposed regulation in response to its finding

that employer-sponsored retiree health benefits were decreasing.

68 Fed. Reg. at 41,543–44. Rather than maintaining retiree

benefits at pre-Medicare eligibility levels for all retirees in order

to avoid discrimination under the ADEA, some employers chose

to reduce all retiree health benefits to a lower level. Id. at

41,546. Further, in addition to rising health care costs and
7

See Curtiss-Wright Corp. v. Schoonejongen, 514 U.S.

73, 77 (1995) (stating that employers “are generally free under

[the Employee Retirement Security Act, 29 U.S.C. § 1001, et

seq.] for any reason at any time to adopt, modify, or terminate

welfare plans”). 

8

There are exceptions to this general rule. The federal

government, for example, is required to offer health benefits to

some retirees. See 5 U.S.C. §§ 8901(3), 8905(b). 

9

As noted by the District Court, the proposed exemption

has the support of various amici curiae, including labor and

industrial organizations. See AARP II, 390 F. Supp. 2d at

441–42 n.3; see also Br. of Amicus Curiae Chamber of

Commerce of the United States; Br. of Amici Curiae National

Education Association, American Federation of Teachers,

International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America, American

Federation of State, County and Municipal Employees, United

Steel, Paper and Forestry, Rubber, Manufacturing, Energy,

Allied Industrial and Service Workers International Union, and

International Association of Fire Fighters; Br. of Amici Curiae

Equal Employment Advisory Council, HR Policy Association,

America’s Health Insurance Plans, American Benefits Council,

ERISA Industry Committee, National Rural Electric

Cooperative Association, Society for Human Resource

Management, American Council on Education, College and

(continued...)

12

increased demand for retiree benefits, the EEOC correctly

noted7

 that employers are not required to provide any retiree

health benefits, or to maintain such plans once they have been

established.8

 Id. at 41,542–43. Retiree benefits often face

elimination under these constraints, and the EEOC issued the

proposed exemption to “permit[] employers to offer [retiree]

benefits to the greatest extent possible.”9

 Id. at 41,543. We
9

(...continued)

University Professional Association for Human Resources, and

WorldatWork. 

10This is analogous to the Second Circuit’s approach in

Schiller v. Tower Semiconductor Ltd., 449 F.3d 286 (2d Cir.

2006), which upheld the Security and Exchange Commission’s

statutory authority to issue exemptions, so long as the

exemptions are shown to be in the public interest and maintain

sufficient protections for the class protected by the statute. See

Schiller, 449 F.3d at 296–97 (“The practical effect of an

exemption . . . is, everything else being equal, a decrease in the

net level of investor protection. Therefore, the prohibition of

any decrease in the level of investor protection would at the very

least substantially curtail, if not completely eviscerate, the

Commission’s exemptive authority. Such an effect is clearly at

odds with congressional intent to grant the Commission

flexibility in adopting exemptions. We therefore conclude . . .

that the Commission can promulgate an exemption once it has

determined that the exemption serves the public interest while

at the same time leaving in place adequate investor protections.”

(footnote omitted)). 

13

recognize with some dismay that the proposed exemption may

allow employers to reduce health benefits to retirees over the

age of sixty-five while maintaining greater benefits for younger

retirees. Under the circumstances, however, the EEOC has

shown that this narrow exemption from the ADEA is a

reasonable, necessary and proper exercise of its section 9

authority, as over time it will likely benefit all retirees.10 

It is clear that the proposed regulation is expressly

authorized by the terms of section 9 of the ADEA. The

proposed exemption permits the narrow practice of coordinating

employer-sponsored retiree health benefits with eligibility for

Medicare and state-sponsored health programs for the necessary
14

and proper purpose of encouraging employers to provide the

greatest possible health benefits for all retirees. The regulation

is consistent with the purposes and intent of the ADEA, and is

a reasonable exercise by the EEOC of authority delegated to it

by Congress. 

Under Chevron step one, Congress’ express intent to

permit such exemptions under section 9 of the ADEA must be

given effect; it is unnecessary to proceed to step two. We note,

however, that the reasonableness inquiry made here under

Chevron step one as to the statutory limitations on exemptions

is similar to the usual reasonableness inquiry under Chevron

step two. Nonetheless, we do not decide the extent to which our

decision in Erie County permits of more than one reasonable

interpretation of the statute. The District Court, applying Brand

X, held that Erie County set forth “only the best of several

alternatives [and] is not the ‘only permissible’ interpretation” of

the ADEA, AARP II, 390 F. Supp. 2d at 448. We do not reach

this issue because we do not find, as did the District Court, that

ambiguity must be present in the ADEA in order for the EEOC

to exercise its authority under section 9. Rather, the proposed

regulation presents a narrow exemption expressly authorized by

the statute. Therefore, even if Erie County sets forth the only

acceptable view of section 4 of the ADEA, the exemption is

nonetheless permitted under section 9.

 

II. The Proposed Regulation is Valid According to the

Requirements of the APA

AARP also challenges the EEOC’s proposed regulation

under the APA. According to the APA, we must “hold unlawful

and set aside agency action, findings, and conclusions” that are

“arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(a); N.J. Coal. for Fair

Broad. v. F.C.C., 574 F.2d 1119, 1125 (3d Cir 1978). This test

asks us to “focus[ ] on the agency’s decision making process,
15

not on the decision itself.” NVE Inc. v. Dep’t of Health &

Human Servs., 436 F.3d 182, 190 (3d Cir. 2006) (emphasis

omitted). 

AARP first asserts that the EEOC acted arbitrarily by

disregarding its own regulation, 29 C.F.R. § 1627.15(b), which

states that its exemption authority under the ADEA “will be

exercised with caution and due regard for the remedial purpose

of the statute.” Id. Because we have found that the proposed

regulation, being narrowly drawn to meet the goals of the

ADEA and being in the public interest, is expressly authorized

by the ADEA, this argument is unavailing. The EEOC has

shown the regulation to be reasonable, necessary, and proper

according to the terms and purposes of the statute. Therefore,

there is no question that the EEOC has exercised due regard for

the purposes of the ADEA according to the requirements of 29

C.F.R. § 1627.15(b). For the same reasons, AARP’s argument

that the proposed regulation exceeds the EEOC’s authority

because it addresses health care policy is equally without merit.

AARP’s argument that the proposed regulation is

arbitrary and capricious because it represents a change in agency

policy is unsupported by existing law. Although it is “wellestablished that an agency may not depart from ‘established

precedent without announcing a principled reason for such a

reversal,’” Fertilizer Institute v. Browner, 163 F.3d 774, 778 (3d

Cir. 1998) (quoting Donovan v. Adams Steel Erection, Inc., 766

F.2d 804, 807 (3d Cir. 1985)), a change in agency policy

supported by “a reasoned analysis for the change” is not

arbitrary and capricious. Motor Vehicle Mfrs. Ass’n of U.S.,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 40–42

(1983). In the notice of proposed rulemaking, the EEOC set

forth its reasons for adopting the new exemption, and indicated

that the regulation is intended to respond to the unintended

negative effects of its prior approach: namely, that employers

have chosen to terminate retiree benefits rather than adhere to a
11The EEOC cited, for example, an outside report that

estimated “a 15 percent decline in the number of large

employers providing pre-age 65 retiree health coverage between

1991 and 2000 and an 18 percent decrease in the number of

large employers providing health benefits to retirees age 65 or

older during the same period.” 68 Fed. Reg. at 41,544 (citing

Hewitt Associates LLC, Trends in Retiree Health Plans (2001).).

12While the EEOC never initiated its own, independent

survey of healthcare providers, the “failure to conduct [an]

independent study [is] not violative of [the] APA because notice

and comment procedures ‘permit parties to bring relevant

information quickly to the agency’s attention.’” Chamber of

Commerce of U.S. v. Sec. & Exch. Comm’n, 412 F.3d 133, 142

(D.C. Cir. 2005) (quoting Nat’l Ass’n of Regulatory Util.

Comm’rs v. F.C.C., 737 F.2d 1095, 1124 (D.C. Cir. 1984)). 

16

standard that has proven too costly to sustain. 68 Fed. Reg. at

41,542–43. The EEOC’s review of available material and

careful explanation of its reasoning on this point demonstrates

that its change in policy is neither arbitrary nor capricious. 

In addition, AARP claims that the EEOC acted arbitrarily

by failing to consider all relevant factors and possible

alternatives in proposing the exemption. AARP claims that the

EEOC did not fully consider that a number of employers offer

full health benefits to all retirees. In the notice of proposed

regulation, however, the EEOC indicated a number of relevant

studies and applicable statistics to support its reasoning on this

point.11 Relying substantially on these reports,12 the EEOC

concluded that the proposed exemption is necessary to

counteract the effects of rising health care costs and to

encourage employers to provide retiree health benefits to the

greatest possible extent. Id. at 41,542, 41,544. Similarly,

AARP’s assertion that the EEOC failed to consider the potential
17

effect on all workers, particularly retirees over the age of sixtyfive, is contradicted by the EEOC’s explanations accompanying

the proposed regulation. The EEOC recognized that “many

retirees in this age group rely on employer-sponsored benefits,”

and that such programs are “valuable benefit[s] for older persons

[and] should be protected and preserved.” Id. at 41,544. The

EEOC determined that the proposed exemption would be in the

interests of all retirees, “permit[ting] employers to provide a

valuable benefit to early retirees who otherwise might not be

able to afford health insurance coverage and allow[ing]

employers to provide valuable supplemental health benefits to

retirees who are eligible for Medicare.” Id. at 41,547. AARP’s

claim that the EEOC failed to consider possible alternatives,

specifically the “equal cost equal benefit” provision in section

4 of the ADEA, also fails. The EEOC considered, at length,

whether the “equal cost equal benefit” provision would be

sufficient to address the problem of declining retiree health

benefits, and concluded as a policy matter that relying solely on

this approach would be impractical or impossible. Id. at

41,544–46. Therefore, it is clear that the EEOC’s proposed

regulation was supported by the agency’s full consideration of

the relevant factors, potential effects, and possible alternatives

to such a policy, and was not arbitrary or capricious. 

Finally, AARP challenges the regulation based on the

notice and comment requirements of the APA, asserting that the

proposed regulation was based on comments and information

that were not publicly available during the notice and comment

period. The plain language of section 553 of the APA fails to

support this claim. For notice and comment rulemaking, as

here, the APA requires only “[g]eneral notice of proposed rule

making . . . in the Federal Register,” including “either the terms

or substance of the proposed rule,” and “an opportunity to

participate in the rule making through submission of written

data, views, or arguments.” 5 U.S.C. § 553(b)–(c). Here, the

EEOC provided general notice of the proposed rulemaking,
including the terms of the rule and a lengthy explanation of its

rationale, and provided an opportunity for interested parties to

participate in the rulemaking through the submission of

comments. 68 Fed. Reg. at 41,542, 41,548–49. Therefore, the

EEOC fulfilled the requirements of section 553. 

In addition, an agency is not required to disclose all

informal contacts related to the issue addressed in a notice and

comment rulemaking, “so long as [the contacts] do not frustrate

judicial review or raise serious questions of fairness.” Home

Box Office, Inc. v. F.C.C., 567 F.2d 9, 57 (D.C. Cir. 1977). The

EEOC has acknowledged the informal communications being

challenged by AARP for the purposes of judicial review, and

noted that the communications took place well before official

notice of the rulemaking. These contacts therefore do not

frustrate judicial review or raise questions of fairness. Because

the EEOC adhered to the notice and comment requirements of

the APA and did not engage in improper communications with

respect to the rulemaking, the proposed regulation is valid under

the APA. 

For the foregoing reasons, the proposed regulation is

within the EEOC’s authority under the ADEA and valid

according to the requirements of the APA.

CONCLUSION

For the reasons stated above, we will AFFIRM the

District Court’s order dated September 27, 2005, granting the

EEOC’s Motion for Relief from Judgment, vacating the District

Court’s prior order dated March 30, 2005, and lifting the

injunction of the implementation of the proposed regulation.