Yesterday, the judge reversed her previous decision and upheld the EEOC's proposed regulations. The judge ruled that Brand X:
dramatically altered the respective roles of courts and agencies under Chevron. Brand X held that a court's interpretation of a statute only bars an agency from interpreting that statute differently from the court if the court has determined the only permissible meaning of the statute. . . .Because the Third Circuit's Erie County decision did not determine the only permissible meaning of the relevant provisions of the ADEA, under Brand X, I am not bound by Erie County in reviewing the EEOC's regulation.
In other words, because Section 4 did not specifically cover retiree benefits, there was room for an interpretation that such benefits were not covered. Writing on a "clean slate," the court agreed with the EEOC that under Section 9, the EEOC had the "flexibility to decide whether retiree benefits are covered by the Act at all." Given that broad authority, the EEOC was allowed "to interpret the ADEA to cover retiree benefits generally, while exempting the practice of Medicare coordination of health benefits."
Nine is greater than four, after all.
The court's decision is here.