                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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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                                     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
                ________________
    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)

       *
       The Honorable Jane A. Restani, Chief Judge of the
United States Court of International Trade, sitting by
designation.


                                2
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

                              3
      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.



                            4
       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




       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
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

       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
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 Ca ble a n d
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

       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
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

                                 8
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

       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
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




       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
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


       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
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


       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
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

       9
        (...continued)
University Professional Association for Human Resources, and
WorldatWork.
       10
          This 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
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,

                                14
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 “well-
established 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

                               15
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

       11
        The 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).).

       12
        While 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
effect on all workers, particularly retirees over the age of sixty-
five, 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,

                                17
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.
