HOFFMAN-LA ROCHE INC., PETITIONER V. RICHARD SPERLING, ET AL.

   No. 88-1203

   In the Supreme Court of the United States

   October Term, 1989

   On Writ of Certiorari to the United States Court of Appeals for the
Third Circuit

   Brief for the Equal Employment Opportunity Commission as Amicus
Curiae Supporting Respondents

            TABLE OF CONTENTS
   Question Presented
   Interest of the Equal Employment Opportunity Commission
   Statement
   Summary of argument
   Argument:
      The district court has authority to supervise notice to
      employees on whose behalf a collective action has been
      brought under the Age Discrimination in Employment Act
          A. Introduction
          B. Rule 83 of the Federal Rules of Civil Procedure confers
             authority on district courts to supervise notice of
             collective actions under the ADEA
          C. Court supervision of notice is consistent with Section
             16(b) of the Fair Labor Standards Act and the Age
             Discrimination in Employment Act
          D. By merely supervising notice of collective actions,
             courts do not engage in any improper solicition of
             claims
   Conclusion

                          QUESTION PRESENTED

   Whether a district court has the authority, in a collective action
brought under the Age Discrimination in Employment Act of 1967, to
supervise the formulation and giving of notice of the action to
employees on whose behalf it has been brought.

        INTEREST OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

   Under the Age Discrimination in Employment Act of 1967, an employee
may bring a collective action for himself and other similarly situated
employees, but those employees do not participate in the suit unless
they file consents to become parties.  29 U.S.C. 626(b) (incorporating
Section 16(b) of the Fair Labor Standards Act of 1938, as amended, 29
U.S.C. 216(b)).  The question presented here is whether a district
court has authority to supervise notice of the action to employees on
whose behalf it has been brought.  The Equal Employment Opportunity
Commission has broad responsibility for the administration and
enforcement of the ADEA.  In particular, it is required to investigate
charges by individuals alleging violations of the Act (29 U.S.C.
626(a)), and may bring actions seeking damages and injunctive relief
on behalf of employees (29 U.S.C. 626(b), incorporating 29 U.S.C.
216(c), 217).  Private actions, including collective actions, are an
important means of effectuating the national policy embodied in the
ADEA and are, therefore, an important adjunct to the Commission's
enforcement efforts.  The resolution of the question presented by this
case could have a substantial impact on the efficacy of private
actions brought to remedy violations of the ADEA.

   The EEOC is also responsible for enforcing the Equal Pay Act of
1963, 29 U.S.C. 206(d).  Like the ADEA, the Equal Pay Act is enforced
in part by the Commission and in part through private actions,
including collective actions governed by Section 16(b) of the FLSA.
Thus, the Commission also has a substantial interest in the effect
that this case could have on private enforcement of the Equal Pay Act.
 /1/

                               STATEMENT

   1. Section 4 of the ADEA, 29 U.S.C. 623, prohibits arbitrary
employment discrimination on the basis of age.  The remedies for a
violation of the Act are defined in large part by reference to the
Fair Labor Standards Act of 1938.  Subject to qualifications not
relevant here, Section 7(b) of the ADEA, 29 U.S.C. 626(b), provides
that the Act "shall be enforced in accordance with the powers,
remedies, and procedures provided in sections 211(b), 216 (except for
subsection (a) thereof), and 217" of Title 29 and Section 7(c) of the
ADEA, 29 U.S.C. 626(c).

   Section 16(b) of the FLSA, 29 U.S.C. 216(b), allows employees to
initiate collective actions for themselves and other similarly
situated employees.  Under Section 7(c) of the ADEA, 29 U.S.C. 626(c),
such an action may seek "such legal or equitable relief as will
effectuate the purposes" of the Act.  However, an employee on whose
behalf a collective suit is brought is not bound by a judgment in the
suit unless he files a written consent to become a party.  Section
16(b) provides, in pertinent part, that an action

      may be maintained against any employer (including a public
      agency) in any Federal or State court of competent jurisdiction
      by any one or more employees for and in behalf of himself or
      themselves and other employees similarly situated.  No employee
      shall be a party plaintiff to any such action unless he gives
      his consent in writing to become such a party and such consent
      is filed in the court in which such action is brought.

   2. On February 4, 1985, petitioner Hoffman-La Roche Inc. fired or
demoted some 1200 workers pursuant to a reduction in force.
Respondent Richard Sperling, a discharged employee, filed an age
discrimination charge with the EEOC on behalf of himself and "all
other HLR employees over the age of 40 similarly situated." Pet. Br. 3
n.2.  With the assistance of counsel, Sperling and other employees
organized a group known as Roche Age Discriminatees Asking Redress
(R.A.D.A.R.).  On March 7, 1985, they mailed a letter, on R.A.D.A.R.
letterhead, to some 600 of petitioner's employees.  The letter advised
that an action would be brought against petitioner under the ADEA and
invited the addressees to join the action by filling out and returning
an enclosed "Consent to Join Action" form.  Pet. App. 4a, 42a-49a.

   Thereafter, respondents filed an action under the ADEA, New
Jersey's Law Against Discrimination, N.J. Stat. Ann. Sections 10:5-1
et seq. (West 1976 & Supp. 1989), and New Jersey contract law.  See
Pet. App. 52a.  In Count I of the complaint, respondents, individually
and on behalf of all other persons similarly situated, alleged that
the reduction in force had discriminated against the members of this
class on the basis of age and sought, inter alia, injunctive relief,
monetary damages, and reinstatement.

   As a result of the March 7 letter and "informal networking," over
400 consents to participate in the action were filed.  Respondents
moved for discovery of the names and addresses of the similarly
situated employees described in the complaint and for notice of the
action from the court to those employees who had not yet filed
consents.  Petitioner opposed those motions and filed a cross-motion,
asking the court to invalidate the consents filed with the court and
to direct "corrective notice" to the individuals who had filed them.
Petitioner argued that R.A.D.A.R.'s March 7 letter was misleading or
incomplete in various respects and that the resulting consents were
invalid.  Pet. App. 4a-5a, 54a, 80a-85a.

   On respondents' motion, the district court held that it was
"permissible for a court to facilitate notice of an ADEA suit to
absent class members in appropriate cases, so long as the court avoids
communicating to absent class members any encouragement to join the
suit or any approval of the suit on its merits." Pet. App. 67a.
Accordingly, the court ordered petitioner to comply with the
respondents' discovery request and authorized respondents to send a
notice, which the court drafted and attached to its order, to those
employees who had not yet filed consents.  Id. at 70a-71a.  The notice
included a statement indicating that it had been "authorized by" the
court, but the notice was to be signed and sent by respondents or
their attorneys.  Id. at 111a.  The district court denied petitioner's
cross-motion.  Id. at 79a-85a.

   The district court stayed the sending of the notice and certified
for appellate review under 28 U.S.C. 1292(b) the issue whether it had
"the authority to facilitate notice of the action to * * * persons who
have not yet filed consents to join the action." Pet. App. 40a.  /2/

   3. The court of appeals granted leave to appeal and affirmed,
holding that "there is no legal impediment to court-authorized notice
in an appropriate case." Pet. App. 19a.  The court first rejected
petitioner's argument that the language and legislative history of
Section 16(b) of the FLSA precluded such notice.  Pet. App. 16a.
Noting that the statute "expressly authorizes a plaintiff to bring the
action on behalf of 'other employees similarly situated,'" the court
of appeals found that "(w)ithout such notice, the statute's explicit
approval and authorization of collective actions would be seriously
undermined." Ibid.  The court also concluded that "the silence of the
legislative history on the question of notice to class members
together with the continued congressional sanction for actions brought
under the FLSA, and thereby the ADEA, on behalf of similarly situated
persons must be taken to mean that Congress has imposed no bar to
court-authorized notice." Id. at 18a.  Finally, the court found that
there was no reason to impose such a bar "as a policy matter" and
cited several benefits that would result from court supervision of
notice.  Id. at 18a-19a.  /3/

                          SUMMARY OF ARGUMENT

   Collective actions are an important means of enforcing the ADEA's
prohibition on age discrimination, but also present some of the same
potential abuses as class actions brought under Fed. R. Civ. P. 23.
Consequently, courts have a "duty and * * * broad authority" to
exercise control over collective actions and the conduct of counsel
and the parties.  Cf. Gulf Oil Co. v. Bernard, 452 U.S. 89, 100
(1981).  That authority extends to the supervision of notice to
employees of the pendency of a collective action brought on their
behalf.  Court supervision over notice can serve the legitimate
purpose of assuring that absentees receive timely and evenhanded
information on the action.  It can also avoid wasteful after-the-fact
disputes over the propriety of notice and the validity of consents,
and can facilitate judicial management of these often complex cases.

   1. Fed. R. Civ. P. 83 states that "(i)n all cases not provided for
by rule," district courts have authority to "regulate their practice
in any manner not inconsistent with" federal or local rules.  Rule 83,
and the tradition it reflects, provide ample authority for the action
under review in this case, since the rule allows courts to fashion
procedures for situations, like notice of collective actions, that are
integral to the effective management of litigation.  The view that
courts have residual authority under Rule 83 to supervise the
formulation and giving of notice of collective actions finds further
support in the history of Rule 23(d), which has been viewed as a
codification of the courts' inherent authority over notice in
representative actions.

   2. The structure and legislative history of the ADEA and the FLSA
do not detract from the court's authority to supervise notice to
absent employees of a collective action filed on their behalf.
Congress has created a remedy that envisages some form of notice, but
has otherwise been silent on the court's role.  The structure of the
Act does not foreclose court oversight of notice, and cases that
address the question of when a right of action, or an additional
remedy, may be implied for breach of a statutory duty are inapposite
to the issue of the court's role in administering the express
collective remedy incorporated in the ADEA.  Similarly, though some of
the modifications to the FLSA that Congress enacted in 1947 have been
incorporated into the ADEA, the history of those amendments provides
no support for the proposition that Congress intended courts to take a
grudging approach to that remedy as it has been preserved and extended
to ADEA cases.

   3. When they supervise notice to employees, courts must avoid
communicating approval of the merits of the action or encouraging
participation.  When courts maintain that neutrality, their
supervision of notice -- with a view to the legitimate interests of
the parties, absentees, and the court -- cannot be characterized as
improper solicitation of claims.  The question of judicial authority
presented by this case should not be decided on the basis of dubious
assumptions about the merits of claims that may be advanced in
response to court-authorized notice or about the procedural
consequences of permitting employees to exercise the rights Congress
gave them.

                               ARGUMENT

   THE DISTRICT COURT HAS AUTHORITY TO SUPERVISE NOTICE TO EMPLOYEES
ON WHOSE BEHALF A COLLECTIVE ACTION HAS BEEN BROUGHT UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT

   A. Introduction

   Through its incorporation of Section 16(b) of the FLSA, the ADEA
expressly authorizes employees to bring collective actions "in behalf
of * * * themselves and other employees similarly situated," but also
provides that each employee who wishes to participate in such an
action must file a written consent.  This form of action offers
significant potential benefits to employees seeking relief for
unlawful age discrimination.  Each employee need not prepare a
complaint and litigate his own individual action.  Claims that alone
would not justify a suit against an employer may be aggregated and
pursued in a single action.  Moreover, when employees claim injury
from a single discriminatory practice, issues of law and fact common
to the claims of many employees may be efficiently resolved in a
single action.  /4/ All these benefits, however, are dependent on
employees' obtaining timely notice of the pendency of an action
brought on their behalf, so that they can intelligently determine
whether to participate.

   Thus, collective actions facilitate enforcement of the ADEA.  But
they also raise problems of administration for courts.  Any employee
may commence a collective action simply by filing a complaint and
alleging that he is proceeding for himself and other similarly
situated employees.  Since such actions are not brought under Fed. R.
Civ. P. 23, /5/ a named plaintiff is not required to demonstrate at an
early stage of the action that claims asserted on behalf of other
employees are suitable for class treatment and that he and his counsel
are qualified to pursue them.  Nor are those other employees entitled
to participate in the action unless they file individual consents.  In
this context, if the other employees on whose behalf the action is
brought receive no notice at all, they are deprived entirely of the
opportunity to participate in an action that Congress authorized in
order to facilitate vindication of rights created by the Act.  If they
receive inaccurate information, they may be induced to avoid a suit
that might have been a vehicle for redressing unlawful age
discrimination -- or to enter a suit that does not provide an
appropriate vehicle for the efficient resolution of their claims.

   This case presents the narrow question whether in these
circumstances district courts have authority to play any role in the
formulation and giving of notice to employees of a collective action
that has been brought on their behalf.  While petitioner concedes that
the named plaintiffs in a collective action may communicate with other
employees and solicit consents (Pet. Br. 46;  see id. at 4 n.3, 32
n.40), it contends that a district court has "no authority under any
statute or rule" (id. at 5) to pass on any such communication in
advance.  Rather, petitioner maintains, the court's only authority is
"to review, upon motion by a party to the suit, the propriety of the
consents which have been filed as a result of the solicitation
process" (id. at 46).

   In support of this cramped conception of the courts' authority in
ADEA actions, petitioner argues primarily that the language,
structure, and history of the ADEA and the FLSA manifest an intention
on Congress's part to foreclose any judicial oversight of notice.
Pet. Br. 13-35.  While we believe that this argument is mistaken even
on its own terms, its focus is seriously misplaced.  Both the FLSA and
the ADEA are silent on the authority of courts to supervise notice of
the action.  In keeping with its usual practice, Congress has
prescribed only the basic features of the collective action remedy --
allowing suits on behalf of "similarly situated" employees and
requiring written consents -- while leaving the many other procedural
issues that might arise to be resolved by reference to such other
sources of law as the Federal Rules of Civil Procedure.  /6/

   No Federal Rule of Civil Procedure speaks specifically to the
question of notice in collective actions governed by Section 16(b) of
the FLSA.  But the last sentence of Rule 83 recognizes the broad
residual authority of the district courts to "regulate their practice"
in a manner not inconsistent with federal and local rules:

      In all cases not provided for by rule, the district judges and
      magistrates may regulate their practice in any manner not
      inconsistent with these rules or those of the district in which
      they act.

   As we demonstrate further below, this provision embodies the
substantial authority courts must possess in order effectively to
manage litigation on their dockets.  More particularly, in light of
the legitimate interests that courts, parties, and absent employees
have in notice of collective actions, the rule vests courts with ample
authority to supervise such notice.  Nothing in the language or
history of the FLSA and the ADEA detracts from that authority.  And as
long as courts avoid communicating any encouragement to join an action
and take no position on the merits of the case, judicial participation
in notice of collective actions cannot be rejected as the equivalent
of improper judicial solicitation of claims.

   B. Rule 83 of the Federal Rules of Civil Procedure Confers
Authority on District Courts to Supervise Notice of Collective Actions
Under the ADEA

   1. In Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 (1981), the Court
held that, in the absence of clear justification, a federal district
court erred in entering an order that effectively prohibited
communications between the named plaintiffs and other class members in
a Rule 23 class action.  At the same time, the Court acknowledged the
substantial interest that courts have in such communications, saying
(id. at 99-100 (footnotes omitted)):

      Class actions serve an important function in our system of civil
      justice.  They present, however, opportunities for abuse as well
      as problems for courts and counsel in the management of cases.
      Because of the potential for abuse, a district court has both
      the duty and the broad authority to exercise control over a
      class action and to enter appropriate orders governing the
      conduct of counsel and the parties.

   The same is true of collective actions under the ADEA.  These
actions similarly serve "an important function" in the enforcement of
the prohibition against age discrimination.  But they also present
"opportunities for abuse as well as problems for courts and counsel in
the management of cases." Under the reasoning of Gulf Oil, therefore,
courts in which a collective action has been filed have at least as
compelling a "duty" and "broad authority" to exercise control over the
conduct of the parties to a collective action as the Court recognized
in Gulf Oil.

   2. Court supervision of notice that takes account of the legitimate
interests of the parties, the similarly situated employees on whose
behalf an action has been brought, and the court itself can be an
important aspect of judicial management of a collective action.  By
overseeing the content and delivery of the notice, the district court
can assure that it is timely, accurate, and informative.  /7/ Absent
employees have a clear interest in receiving such notice about their
statutory right to join the suit, so that they can determine whether
they have a potential claim and how best to protect that claim.  See
Monroe v. United Air Lines, Inc., 90 F.R.D. 638, 640 (N.D. Ill. 1981).
 /8/ Moreover, the parties and the court benefit by resolving disputes
about the proper content of the notice before it is mailed.  It makes
little sense to suggest, as petitioner does (Pet. Br. 46 & n.58), that
a district court cannot supervise the contents of a notice in advance,
but can (and indeed must) invalidate written consents and send
corrective notice after the fact if employees receive misinformation.

   The court may also properly rely on notice to facilitate its
management of the case.  In order to establish a plan for discovery,
various types of motions, and other aspects of trial preparation, the
court must know the dimensions of the action at a relatively early
stage.  A court may fairly couple a deadline for filing consents to
join a collective action with a notice that advises absentees of their
options and of the deadline for action.  /9/ The alternative, in which
courts must wait passively for employees to opt into an action and
then resolve disputes as to whether they can be allowed to join, would
frustrate effective management of these often complex cases.  See Pet.
App. 19a;  Braunstein v. Eastern Photographic Labs, Inc., 600 F.2d
335, 336 (2d Cir. 1978), cert. denied, 441 U.S. 944 (1979).

   These compelling reasons for judicial authority over notice are not
exhaustive.  On the one hand, particular cases may present additional
circumstances justifying notice.  On the other hand, court supervision
is not necessarily called for in every collective action.  The nature
of the court's involvement -- which might include prescribing some or
all of the terms of a notice, reviewing notices submitted to it for
advance approval, and resolving disputes about notice already sent --
also may vary from case to case.  The issue here, however, is whether
courts have any power to act with respect to notice before it has been
sent.  If courts are to discharge their "duty" to administer actions
of this type, that power must exist.  /10/

   3. Rule 83 recognizes the authority that courts must have in order
to perform their appropriate role in collective actions.  In any case
"not provided for by rule," it empowers district courts to "regulate
their practice in any manner not inconsistent with" federal or local
rules.  In Gulf Oil, though this Court found that Rule 23(d)
authorized oversight of class actions, it also noted that "Rule 83
provides a more general authorization to district courts" to regulate
the actions of the parties to a class suit.  452 U.S. at 99 n.10.
Similarly, in Woods v. New York Life Insurance Co., 686 F.2d 578, 580
(1982), the Seventh Circuit noted the applicability of that provision
to notice of ADEA actions, saying, "(w)e cannot find any express basis
in rule or statute for inferring * * * the power of the district court
to regulate the content and distribution of the notice to potential
class members;  but we think * * * the power may fairly be inferred
from Section 16(b) itself and from Rule 83." /11/

   This interpretation of Rule 83 is consistent not only with the
language of the Rule, but also with the tradition behind it and with
its place in the Rules' overall scheme.  Courts have always exercised
broad authority "to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases." Link v. Wabash R.R.,
370 U.S. 626, 630-631 (1962).  /12/ Obviously, the Rules cannot
specifically address all situations that might call for judicial
action to assure "orderly and expeditious disposition." Consequently,
they settle many aspects of district court procedure, and then
preserve residual authority for situations not specifically treated.
/13/

   In determining how to exercise that authority, courts may employ
the analysis that this Court outlined in Harris v. Nelson, 394 U.S.
286 (1969).  In Harris, a prisoner sought to use interrogatories for
purposes of discovery in a habeas corpus action.  The Court found that
Fed. R. Civ. P. 33 was inapplicable to habeas corpus proceedings and
that the relevant statutes were silent on the availability of such
discovery.  Invoking the authority of the All Writs Act, 28 U.S.C.
1651(a), the Court continued (394 U.S. at 299):

      Clearly, * * * the habeas corpus jurisdiction and the duty to
      exercise it being present, the courts may fashion appropriate
      modes of procedure, by analogy to existing rules or otherwise in
      conformity with judicial usage.

Similarly, in the ADEA Congress has created a remedy that contemplates
that an action will be initiated by named plaintiffs and that other
similarly situated employees will be given an opportunity to
participate.  Though some notice to employees is obviously necessary,
the statute and rules are silent on the role courts may play in that
notice.  Rule 83 authorizes courts to "fashion appropriate modes of
procedure" for that situation.

   4. When courts undertake that task, Rule 23 is a logical source of
"analogy" and "judicial usage," for at least two reasons:

   First, the history of Rule 23 supports the view that courts have
traditionally had authority to direct notice to absentees in actions
similar to collective actions under the ADEA.  Before 1966, Rule
23(a)(3) provided for class actions in cases in which "the character
of the right sought to be enforced for or against the class (was) * *
* several, and there (was) a common question of law or fact affecting
the several rights and a common relief was sought." In these actions,
like collective actions under the ADEA and FLSA, members of the class
could not participate in the action unless they opted into the
lawsuit.  /14/ As petitioner points out (Pet. Br. 26 n.29), the
pre-1966 version of Rule 23 expressly provided for notice to class
members only in limited circumstances -- in the event of a proposed
dismissal or compromise -- and even in that case notice was thought to
be optional in an action under former Rule 23(a)(3).

   In 1966, the drafters proposed a substantial modification of the
rule.  One aspect of the proposal, Rule 23(d)(2), provided that courts
could require, "for the protection of the members of the class or
otherwise for the fair conduct of the action, that notice be given in
such manner as the court may direct" of such matters as "the
opportunity of (class) members * * * to intervene and present claims
or defenses, or otherwise to come into the action." Significantly,
this proposal was not described or regarded as an extension of the
authority courts already possessed.  Marshalling a number of cases in
which notice had been sent under the pre-1966 version of Rule 23, the
Advisory Committee's note said that such notice was "not a novel
conception" and added that the proposed Rule would "call() attention
to (notice's) availability and invoke() the court's discretion." /15/
Consistent with the tenor of the Advisory Committee's explanation of
Rule 23(d), it has been described as "a general statement of the
equitable powers that federal courts had even prior to the addition of
the subdivision as part of the 1966 amendment of Rule 23." C. Wright,
A. Miller, & M. Kane, Federal Practice & Procedure Section 1793, at
294 (2d ed. 1986).  /16/ The authority that was codified in Rule
23(d)(2) remains available for collective actions under the ADEA.

   Second, in "fashioning modes of procedure" for collective actions
under the ADEA, courts may properly draw on their experience with the
notice expressly authorized by Rule 23.  In class actions, courts have
used notice not just to provide the basis for a binding judgment, but
also for a variety of reasons related to the determination whether a
class action should be certified, to the protection of class members,
and to the management of class actions.  See C. Wright, A. Miller, &
M. Kane, Federal Practice & Procedure Section 1793, at 309-313 (1986).
 Particularly relevant here are cases in which courts have directed
notice to putative class members in order to advise them that a motion
for class certification has been denied and to inform them of the
availability of intervention for the pursuit of individual claims.
/17/ Those cases establish that supervision of notice to employees in
ADEA collective actions would be "in conformity with judicial usage."
Harris v. Nelson, 394 U.S. at 299.

   5. In sum, the concerns cited in Gulf Oil, when this Court
sustained the power and duty of district courts to supervise the
actions of parties to Rule 23 class actions, are fully applicable
here.  Rule 83, the embodiment of the broad authority that courts have
traditionally exercised to manage litigation on their dockets,
provides an ample mandate for that supervision.

   Significantly, petitioner does not argue that courts have no
authority to supervise notice to class members.  To the contrary,
petitioner filed a motion in the district court that asked the court
to review R.A.D.A.R.'s prior solicitation of consents, to invalidate
consents that had been filed, and to direct "corrective notice" to
employees who had filed consents.  See Pet. App. 54a, 79a-85a.  In
this Court, it apparently adheres to its view that consents may be
invalidated (and notice directed) on the basis of incomplete or
misleading communications with employees.  Pet. Br. 46.  It is
untenable to suggest that the power to oversee notice is limited to
damage control after the fact.  If a named plaintiff seeks a ruling
from the court on the propriety of a proposed communication to
employees on whose behalf a suit has been brought -- in effect, a
declaratory judgment that the communication is appropriate -- the
court should not be required to remain silent until its time and
resources, and those of the parties, must be spent in hearing attacks
on prior solicitations and in fashioning corrective measures.

   C. Court Supervision of Notice is Consistent With Section 16(b) of
the Fair Labor Standards Act and the Age Discrimination in Employment
Act

   Petitioner's principal argument is that the language, structure,
and history of the ADEA and of the provisions it incorporated from the
FLSA foreclose any advance judicial role in notice of ADEA actions.
That argument is flawed on several levels.

   1. Most fundamentally, the argument misconceives the relevance of
the statutes to the question presented by this case.  The statutes
giving employees the right to initiate and join collective actions to
recover ADEA liabilities are relevant not because they themselves
specifically authorize judicial supervision of notice.  Rather, they
establish a national policy against age discrimination that is
enforceable through private suits by named plaintiffs on behalf of
other employees.  Since that remedy is ineffective unless employees
are notified that a collective action has been filed, the statute
provides the occasion for the exercise of the courts' power to oversee
that aspect of the litigation.  See Woods, 686 F.2d at 580-581.

   2. Petitioner also attributes far too much meaning to Congress's
silence on the issue of notice in FLSA and ADEA actions.  "Ordinarily,
'Congress' silence is just that -- silence." Community for Creative
Non-Violence v. Reid, No. 88-293 (June 5, 1989), slip op. 17 (quoting
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987)).  The Court
"has frequently cautioned that '(i)t is at best treacherous to find in
congressional silence alone the adoption of a controlling rule of
law.'" NLRB v. Plasterers' Union, 404 U.S. 116, 129-130 (1971)
(quoting Girouard v. United States, 328 U.S. 61, 69 (1946)).  In this
case, congressional silence relates to a matter on which Congress does
not customarily speak -- the management of litigation.  Thus, the
absence of express authority for court supervision of notice in the
ADEA cannot be taken as a directive that courts are to have no such
role.

   Petitioner's discussion of the ADEA and the FLSA has two principal
themes:  first, that Congress has provided "comprehensive enforcement
schemes for both FLSA and ADEA cases" that exclude any court oversight
of notice (Pet. Br. 13-18) and, second, that such oversight would
violate Congress's intention to provide relief to employers from
multi-party actions (id. at 20-30).  Neither contention has merit.

   a. In a growing number of cases, this Court has considered whether
courts may recognize an implied private right of action, or a remedy
in addition to those created by a statute, for breach of a statutory
duty.  /18/ Northwest Airlines, Inc. v. Transport Workers Union, 451
U.S. 77 (1981), on which petitioner principally relies (Pet. Br.
14-18), was one such case.  It held that employers do not have an
implied right of action to recover contribution from labor unions in
actions brought under Title VII.  The question in Northwest Airlines,
and the decisions on which it relied, was whether "a federal statute
that does not expressly provide for a particular private right of
action nonetheless implicitly created that right." 451 U.S. at 91
(emphasis added).  Court supervision of notice is not a "right of
action" to which this analysis applies -- i.e., a right to seek relief
from a party on the basis of an alleged breach of a statutory duty.
Nor is it a remedy for such a breach.  It is an aspect of the
procedure by which a statutory right of action is heard and a
statutory remedy afforded.

   Thus, the holding of Northwest Airlines is inapplicable here.  And
so is the basis for the Court's decision.  In Northwest Airlines,
Congress's provision of express rights of action for specified
liabilities in favor of certain types of parties could properly be
viewed as manifesting an intention to foreclose actions against other
types of parties for different liabilities.  Here, by contrast, the
relevant statutes reflect no effort to enact a comprehensive scheme
for the judicial management of collective actions.  To the contrary,
Congress created the right of action, specified the remedies, and left
those remedies to be implemented and enforced in accordance with
procedures applicable generally to civil cases.

   b. Because the statutes are silent on the role of courts in giving
notice of collective actions, their legislative history is of limited
relevance.  While such history can be helpful in clarifying the
meaning of a statutory provision that is ambiguous on its face, it
cannot properly be employed to settle an issue on which Congress has
not legislated at all.  Moreover, the legislative history of the FLSA
and the ADEA add little to the text of the statutes themselves.

   In 1938, Congress gave employees the right to bring collective
actions as one way of enforcing their statutory entitlement to minimum
wages and overtime pay.  In addition, employees were allowed to
authorize "representative actions" to recover amounts due under the
Act -- i.e., to "designate an agent or representative to maintain such
an action for and in behalf of all employees similarly situated." /19/

   Nine years later, Congress passed the Portal-to-Portal Act of 1947,
ch. 52, 61 Stat. 87.  The legislation was prompted by decisions of
this Court including in an employee's statutory "workweek" the time
spent travelling to a work station on the employer's premises and
conducting preliminary activities.  /20/ In addition to extinguishing
claims arising from those decisions, Congress made several
modifications in the procedures through which FLSA rights could be
enforced.  Specifically, it abolished the "representative" action by a
person who himself had no claim (thus permitting private FLSA actions
to be initiated only by employees who asserted claims in their own
right), added the requirement that an employee file a written consent
in order to join a collective action, provided a uniform statute of
limitations, and made clear that the statute would run as to an
individual employee's claim until he filed a complaint or a consent to
become a party.  Portal-to-Portal Act of 1947, ch. 52, Sections 5(a),
6-7, 61 Stat. 87-88.

   As petitioner points out (Pet. Br. 20-22), the legislative history
of the Portal-to-Portal Act reveals the concerns that underlay those
modifications.  /21/ But it provides no support for the leap that lies
at the core of petitioner's argument.  The fact that Congress
expressed some "disapprobation" of practices that had arisen since the
passage of the 1938 Act and made some corresponding modifications to
"provide relief for employers" (Pet. Br. 21-23) does not remotely
suggest that it wished courts to take a grudging approach to the
remedies it chose to preserve.  To the contrary, Congress took care to
reaffirm the availability of the collective action as a means of
enforcing the Act.  After noting that representative actions would be
abolished, the relevant committee reports all stated that
"(c)ollective actions brought by an employee or employees (a real
party in interest) for and in behalf of himself or themselves and
other employees similarly situated may continue to be brought in
accordance with the existing provisions of the Act." /22/ Senator
Donnell, the chairman of the subcommittee that conducted the hearings
on the legislation, drew a clear distinction between collective and
representative actions and stressed that the proponents of the
legislation had "no objection" to actions brought by employees on
behalf of other employees.  /23/

   The legislative history confirms what is apparent on the face of
the statute.  Reacting to some perceived shortcomings in the remedies
enacted in 1938, Congress made corresponding modifications in the
remedial scheme.  There was no indication, however, that Congress
viewed those modifications as anything less than a complete solution
to the problems it found, and the amendments expressed no disapproval
of the remedies that remained.  As the court below recognized, "(t)he
continued authorization for bringing collective or quasi-class actions
under the procedural provisions of the FLSA demonstrates Congress'
lack of hostility to such actions, if nothing more.  However, if a
plaintiff could not contact and solicit the consents of other
'similarly situated' individuals, the congressionally sanctioned form
of action would be meaningless." Pet. App. 16a.

   In 1967, Congress passed the ADEA.  The legislation was a "hybrid"
that combined features of Title VII, the FLSA, and the National Labor
Relations Act.  See Lorillard v. Pons, 434 U.S. 575, 578 (1978).  By
incorporating Section 16(b) of the FLSA, Congress gave employees
aggrieved by illegal age discrimination the right to initiate
collective actions on behalf of other similarly situated employees.
/24/ However, the ADEA did not adopt all of the provisions of the
Portal-to-Portal Act.  /25/ Thus, even if the history of the
Portal-to-Portal Act militated against the judicial authority
exercised here -- and it does not -- this selective incorporation
underscores the inappropriateness of looking to that history for
guidance.  /26/

   The legislative history of the FLSA, the Portal-to-Portal Act, and
the ADEA do not justify a cramped view of the courts' authority to
supervise notice of collective actions under the ADEA.  To the extent
it is relevant at all, that history only confirms what is apparent on
the face of the statutes themselves.  Congress meant to give employees
the right to bring collective actions, required individuals to file
written consents to participate, and left the remaining procedural
details to be resolved by reference to the evolving law governing
procedure in the federal courts.

   D. By Merely Supervising Notice of Collective Actions, Courts Do
Not Engage in Any Improper Solicitation of Claims

   As both lower courts recognized, courts must avoid communicating
any approval of the merits of a claim or any encouragement of any of
the alternatives available to an employee.  Pet. App. 19a, 67a.  /27/
Nevertheless, a persistent theme of petitioner's brief is that any
judicial role in the formulation or giving of notice of a collective
action is indistinguishable from involvement in the solicitation of
claims.  /28/

   There are several flaws in that view.  For reasons set forth above,
court oversight of notice may serve entirely legitimate interests
apart from the goal of encouraging joinder in an action.  The fact
that some plaintiffs may seek court authorization of notice as a means
of increasing the number of employees participating in an action -- or
that such notice may lead to the filing of consents by employees who
would not otherwise have filed them -- does not suggest otherwise.  It
is not a departure from judicial neutrality to supervise the giving of
notice of a collective action to advance the effective management of
the case and to facilitate informed choices by employees on the
exercise of their statutory rights.

   Moreover, a court's authority over notice should not be determined
on the basis of the questionable assumption that employees who come
forward in response to that notice are not likely to advance claims
that are "substantively strong," or the dubious contention that it
would be more convenient to let sleeping dogs lie.  See Pet. Br.
36-38.  /29/ As the district court observed, recoveries under the ADEA
should not be "limited only to those victims who are already known to
their 'champion,' * * * or who are fortunate enough to hear and heed
'the vagaries of rumor and gossip,' * * * or who are courageous enough
to recognize the wrong done them and sue on their own." Pet. App. 69a.
 /30/

   The only issue in this case is whether the courts have any
authority to supervise notice to employees on whose behalf an action
has been brought.  As one means of enforcing the national policy
against age discrimination, Congress created a remedy whose
effectiveness depends on those employees' learning of the action and
making an informed decision on whether to join it.  The remedy was
enacted against a background of broad judicial authority to regulate
litigation pending on court dockets, and that authority includes the
type of action in issue in this case.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   STEPHEN L. NIGHTINGALE

      Assistant to the Solicitor General

   CHARLES A. SHANOR

      General Counsel

   GWENDOLYN YOUNG REAMS

      Associate General Counsel

   VELLA M. FINK

      Assistant General Counsel

   GALE BARRON BLACK

      Attorney

   JULY 1989

   /1/ The Department of Labor has responsibility for enforcing the
minimum wage and overtime provisions of the FLSA.  Private and
governmental actions under that Act are also subject to Section 16(b).
 The United States is a potential defendant in actions governed by
Section 16(b).  It may therefore be affected by the decision in this
case whenever its employees attempt to bring collective actions under
that provision.

   /2/ Petitioner did not seek leave to take an appeal of the portion
of the district court's order enforcing respondents' request for
discovery of the identities of the class members.  See Pet. App. 33a,
40a, 106a.  Therefore, the propriety of that ruling is not before the
Court.

   /3/ The court of appeals noted that "it is * * * within the
discretion of the district court whether and how to implement such
notice," and did not reach the issue of whether the district court's
approval of the form of the proposed notice in this case was an abuse
of discretion.  Pet. App. 19a-20a.

   As the court of appeals recognized, there is a conflict among the
circuits on the question presented by this case.  Compare Braunstein
v. Eastern Photographic Labs, Inc., 600 F.2d 335 (2d Cir. 1978), cert.
denied, 441 U.S. 944 (1979);  Woods v. New York Life Insurance Co.,
686 F.2d 578 (7th Cir. 1982);  United States v. Cook, 795 F.2d 987,
993 (Fed. Cir. 1986), with McKenna v. Champion International Corp.,
747 F.2d 1211 (8th Cir. 1984);  Dolan v. Project Construction Corp.,
725 F.2d 1263, 1267-1269 (10th Cir. 1984);  Partlow v. Jewish Orphans'
Home, Inc., 645 F.2d 757 (9th Cir. 1981);  Kinney Shoe Corp. v.
Vorhes, 564 F.2d 859, 864 (9th Cir. 1977).

   /4/ "The evident purpose (of Section 16(b)) is to provide one law
suit in which the claims of different employees, different in amount
but all arising out of the same character of employment, can be
presented and adjudicated, regardless of the fact that they are
separate and independent of each other." Shain v. Armour & Co., 40 F.
Supp. 488, 489 (W.D. Ky. 1941).

   /5/ Rule 23 of the Federal Rules of Civil Procedure applies to all
civil actions in federal court "(i)n the absence of a direct
expression by Congress of its intent to depart from the usual course
of trying 'all suits of a civil nature' under the Rules established
for that purpose." Califano v. Yamasaki, 442 U.S. 682, 700 (1979).  In
the legislative history of the Portal-to-Portal Act of 1947, ch. 52,
61 Stat. 87, which gave Section 16(b) its present form, there was a
suggestion that employees could bring either a collective action in
accordance with the Act or a class action under the version of Rule 23
then in effect.  H.R. Conf. Rep. No. 326, 80th Cong., 1st Sess. 14
(1947).  However, the drafters of the 1966 amendment to Rule 23 stated
that "(t)he present provisions of 29 U.S.C. 216(b) are not intended to
be affected by Rule 23, as amended," Advisory Committee note to Rule
23, 28 U.S.C. App. at 563, and many courts have held that because
Section 16(b) requires employees to file written consents to join a
collective action, Rule 23 (or at least the provision of Rule 23(b)(3)
for "opt-out" damage actions on behalf of a class) does not apply to
suits brought under Section 16(b), see LaChapelle v. Owens-Illinois,
Inc., 513 F.2d 286, 288 (5th Cir. 1975);  3B J. Moore, Moore's Federal
Practice, Paragraph 23.02(2.-10) (2d ed. 1989).  In any event, this
case was not brought or certified as a class action under Rule 23, and
therefore the provisions of Rule 23 that authorize notice to class
members are not applicable by their terms.

   Though Rule 23 does not expressly authorize notice in collective
actions under the ADEA, it clearly does not prohibit such notice,
expressly or by implication.  Cf. Colgrove v. Battin, 413 U.S. 149,
164 (1973).  As discussed below, courts may draw on Rule 23, by
analogy or as a source of judicial experience, in addressing issues of
notice that arise in collective actions.

   /6/ Rather than legislating procedures for each right of action it
creates, Congress has authorized this Court to "prescribe by general
rules, the forms of process, writs, pleadings, and motions, and the
practice and procedure of the district courts * * * in civil actions"
(28 U.S.C. 2072).  In this way, it has provided a general framework
that applies to the many rights of action it has established.

   /7/ Cf. Kaplan, Continuing Work of the Civil Committee:  1966
Amendments of the Federal Rules of Civil Procedure, 81 Harv. L. Rev.
356, 398-399 (1967) ("court-controlled notice is an alternative to
private activities that can be quite unpalatable").

   /8/ Although due process does not require notice to employees on
whose behalf a collective action is brought, those employees
nevertheless have a significant interest in learning of the action.
It may be impractical for them to pursue an action on their own
behalf, and in any event the stare decisis effect of a judgment in a
collective suit may effectively foreclose a separate action.  See
Spahn, Resurrecting the Spurious Class:  Opting-In to the Age
Discrimination in Employment Act and the Equal Pay Act through the
Fair Labor Standards Act, 71 Geo. L.J. 119, 141 (1982).

   /9/ Fed. R. Civ. P. 16(b) now requires entry of a scheduling order
that limits the period within which various pretrial steps must be
taken, including the time available "to join other parties and to
amend the pleadings." Moreover, subparagraphs (c)(10), (c)(11), and
(e) of the Rule authorize the court to enter a pretrial order with
provisions addressing "the need for adopting special procedures for
managing potentially difficult or protracted actions that may involve
complex questions, multiple parties, difficult legal questions, or
unusual proof problems" and "such other matters as may aid in the
disposition of the action." These provisions underscore the interest
that district courts have in defining the scope of a collective action
in an orderly fashion and therefore inform the issue of authority
presented by this case.

   /10/ The First Amendment may well place some limits on the nature
of the supervision that district courts may exercise over
communications between named plaintiffs or their attorneys and
absentees.  However, it clearly does not exclude all authority to
supervise the formulating and giving of notice, especially (as here)
on motion of the plaintiff.  Thus, we agree with petitioner that the
Court need not determine the applicability of the First Amendment to
decide the issue presented by this case.  See Pet. Br. 44.

   /11/ In Pan American World Airways, Inc. v. United States District
Court, 523 F.2d 1073 (1975), the Ninth Circuit held that a district
court did not have authority under any applicable statute or rule to
provide notice to the next of kin of victims of two airline crashes
that actions arising from the crashes were pending.  The court of
appeals found that Rule 83 was unavailable because "notification from
the court to potential plaintiffs is not authorized by any (local)
rule * * * and a procedure that deviates so sharply from the
traditional role of the judiciary cannot be justified as an ad hoc
rule of practice." Id. at 1078.  Pan American is fully consistent with
the result below.  The order overturned in Pan American contemplated
notice to persons who were not in any sense before the court,
apparently in order to encourage them to file suit in the same court.
By contrast, in this case, notice would be sent to persons on whose
behalf an action had been brought, in order to inform them of that
action and to implement a remedy that Congress provided for their
benefit.

   /12/ In Link, the Court found that a district court had authority
to dismiss an action sua sponte for failure to prosecute.  It rejected
both the claim that such a dismissal was inconsistent with Rule 41(b)
(which allows for such a dismissal on motion of a party) and, with a
reference to Rule 83, the contention that the district court could not
act in the absence of a local rule authorizing dismissal.  370 U.S. at
630-631, 633 n.8.

   Similarly, in Ex parte Peterson, 253 U.S. 300, 312 (1920), the
Court upheld the district court's authority to appoint an "auditor" to
assist with complex computations on the ground that "(c)ourts have (at
least in the absence of legislation to the contrary) inherent power to
provide themselves with appropriate instruments required for the
performance of their duties." As in Peterson, the issue here of the
court's power to supervise notice arises "in the absence of
legislation to the contrary." Indeed, Rule 83, which was adopted in
accordance with a grant of rulemaking authority to this Court, applies
by its terms.  There is thus no occasion to consider the scope of
inherent powers that are "shielded from direct democratic controls."
Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-765 (1980).

   /13/ Cf. United States v. New York Telephone Co., 434 U.S. 159, 170
(1977) (finding that former Fed. R. Crim. P. 57(b), once the
counterpart to Rule 83 in the Criminal Rules, supported court's
authority to order installation of pen register);  Miner v. Atlass,
363 U.S. 641, 647 (1960);  id. at 654-655 (Brennan, J., dissenting);
Luce v. United States, 469 U.S. 38, 41 n.4 (1984).

   Lower court decisions applying Rule 83 illustrate its scope and its
limits.  In Republic International Corp. v. Amco Engineers, Inc., 516
F.2d 161 (9th Cir. 1975), the court relied on Rule 83 in prescribing
the means of making service on a foreign government prior to the
enactment of the Foreign Sovereign Immunities Act;  at that point, the
issue was not addressed by any statute or rule.  By contrast, in Brown
v. Cameron-Brown Co., 652 F.2d 375 (1981), the Fourth Circuit held
that a district court could not invoke the rule to dismiss a case as
frivolous.  The court explained that Rules 12 and 56 comprehensively
governed pretrial dismissals and thus that Rule 83 was not available
"as an additional source of authority for summary disposition of a
frivolous lawsuit." Id. at 379.  See Franquez v. United States, 604
F.2d 1239, 1244-1245 (9th Cir. 1979).  See also, e.g., Heileman
Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 651-652 (7th Cir. 1989)
(recognizing inherent authority that "forms the basis for continued
development of procedural techniques");  HMG Property Investors, Inc.
v. Parque Industrial Rio Canas, 847 F.2d 908, 915-916 (1st Cir. 1988).

   /14/ When describing collective actions brought under the FLSA,
courts sometimes referred to them as spurious class actions.  See,
e.g., Pentland v. Dravo Corp., 152 F.2d 851, 853 (3d Cir. 1945).

   /15/ 28 U.S.C. App. at 565.  With respect to prior cases in which
notice had been authorized by a court, the note stated (ibid.):

      For example, in "limited fund" cases, members of the class have
      been notified to present individual claims after the basic class
      decision.  Notice has gone to members of a class so that they
      might express any opposition to the representation, see United
      States v. American Optical Co., 97 F. Supp. 66 (N.D. Ill. 1951)
      * * *;  cf. Weeks v. Bareco Oil Co., 125 F.2d 84, 94 (7th Cir.
      1941), and notice may encourage interventions to improve the
      representation of the class.  Cf. Oppenheimer v. F.J. Young &
      Co., 144 F.2d 387 (2d Cir. 1944).  Notice has been used to poll
      members on a proposed modification of a consent decree.  See
      record in Sam Fox Publishing Co. v. United States, 366 U.S. 683
      (1961).

See also, e.g., Dickinson v. Burnham, 197 F.2d 973, 975-976 (2d Cir.),
cert. denied, 344 U.S. 875 (1952) (notice to class members of judgment
in favor of class representatives in order to enable them to
intervene);  Women's Catholic Order of Foresters v. City of Ennis, 112
F.2d 270 (5th Cir. 1941) (describing class suit commenced before the
effective date of the Civil Rules in which notice was given to members
of the class).

   /16/ Accord Miller, Problems of Giving Notice in Class Actions, 58
F.R.D. 313, 316 (1972) (Rule 23(d) "merely codifies the inherent
judicial power to give notice to absent parties whenever the court
deems it advisable to do so").

   In a related context, Rule 19(c) provides that a pleading shall
state the names of any "necessary parties" who have not been joined.
The Advisory Committee explained that "(i)n some situations it may be
desirable to advise a person who has not been joined of the fact that
the action is pending, and in particular cases the court in its
discretion may itself convey this information by directing a letter or
other informal notice to the absentee." Advisory Committee note to
Fed. R. Civ. P. 19 (1966 Amendment), 28 U.S.C. App. at 556.  The
Advisory Committee apparently assumed that courts have authority to
provide such notice notwithstanding the absence of a rule expressly
authorizing it.

   /17/ Miller v. Chinchilla Group, Inc., 66 F.R.D. 411, 417 (S.D.
Iowa 1975);  Rothman v. Gould, 52 F.R.D. 494 (S.D.N.Y. 1971).  See
also Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 812 & n.15
(5th Cir. 1982).  Cf. Avery v. Secretary of HHS, 762 F.2d 158, 164-165
(1st Cir. 1985) (notice to potential class members for the purpose of
determining whether they are within the group entitled to relief).

   /18/ E.g., Cort v. Ash, 422 U.S. 66 (1975);  Touche Ross & Co. v.
Redington, 442 U.S. 560 (1979);  Cannon v. University of Chicago, 441
U.S. 677 (1979).

   /19/ Section 16(b) of the FLSA, 52 Stat. 1069, provided in
pertinent part:

      Action to recover such liability may be maintained in any court
      of competent jurisdiction by any one or more employees for and
      in behalf of himself or themselves and other employees similarly
      situated, or such employee or employees may designate an agent
      or representative to maintain such action for and in behalf of
      all employees similarly situated.

   /20/ Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-694
(1946);  Jewel Ridge Coal Corp. v. Local 6167, United Mine Workers,
325 U.S. 161, 166 (1945);  Tennessee Coal, Iron & R.R. v. Muscoda
Local No. 123, 321 U.S. 590, 598-599 (1944).  See Universities
Research Ass'n v. Coutu, 450 U.S. 754, 781 (1981);  Steiner v.
Mitchell, 350 U.S. 247, 253 (1956).

   /21/ The abolition of representative actions filed by persons who
themselves had no claim was a response to dissatisfaction with actions
filed by labor unions seeking large damage awards on behalf of their
members.  See S. Rep. No. 37, 80 Cong., 1st Sess. 12-25 (1947);  S.
Rep. No. 48, 80th Cong., 1st Sess. 12-25 (1947).  The purpose of the
provision for written consents, together with the new statute of
limitations, was to give employers better notice of the scope of their
potential liability in a collective action.  See 93 Cong. Rec. 2182
(1947) (remarks of Senator Donnell).

   At the same time, the requirement of consent codified what some
courts had previously required in order to assure that employees were
not bound by a judgment in violation of due process.  See, e.g., Smith
v. Stark Trucking, Inc., 53 F. Supp. 826, 828 (N.D. Ohio 1943);  Shain
v. Armour & Co., 40 F. Supp. 488, 490 (W.D. Ky. 1941).

   /22/ H.R. Conf. Rep. No. 326, 80th Cong., 1st Sess. 13 (1947);  S.
Rep. No. 37, supra, at 48;  S. Rep. No. 48, supra, at 49.  But cf.
H.R. Rep. No. 71, 80th Cong., 1st Sess. 4 (1947) (suggesting that the
practice of filing collective actions seeking portal-to-portal
liabilities and requesting discovery of the indentity of employees
involved constituted "a tremendous financial burden to the employer").

   /23/ After outlining the remedies provided by the Act as initially
passed and positing hypothetical collective and representative actions
brought on behalf of employees of the "X steel company" (the latter by
"the district director of the labor union who might live 500 miles
away and not be employed at all in the plant"), Senator Donnell
continued (93 Cong. Rec. 2182 (1947)):

      In the first case, an employee, a man who is working for the X
      steel company, can sue for himself and other employees.  We see
      no objection to that.  But the second class of cases, namely,
      cases in which an outsider, perhaps someone who is desirous of
      stirring up litigation without being an employee at all, is
      permitted to be the plaintiff in the case, may result in very
      decidedly unwholesome champertous situations which we think
      should not be permitted under the law.

   /24/ Each House of Congress initially considered a bill, patterned
after Sections 10(c) and (e) of the National Labor Relations Act, 29
U.S.C. Sections 160(c), (e), that would not have granted a private
right of action to aggrieved individuals.  S. 830, 90th Cong., 1st
Sess. (1967);  H.R. 4221, 90th Cong., 1st Sess. (1967).  However,
Congress discarded that proposal and substituted legislation adopting
some of the procedures of the FLSA, in order to obtain the benefits of
private enforcement of the prohibition against age discrimination.
See S. Rep. No. 723, 90th Cong., 1st Sess. 5 (1967);  H.R. Rep. No.
805, 90th Cong., 1st Sess. 5 (1967).  The ability of similarly
situated employees to join in a single action to obtain relief from
employment practices affecting them as a group was undoubtedly
perceived as likely to advance the purpose of the Act to end arbitrary
age discrimination.  Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405,
417-418 (1975) ("It is the reasonably certain prospect of a backpay
award that 'provide(s) the spur or catalyst which causes employers and
unions to self-examine and to self-evaluate their employment
practices.'").

   /25/ For instance, Section 7 of the Portal-to-Portal Act, which
provided that an employee's FLSA action would not be deemed to have
commenced for purposes of the statute of limitations until he filed a
consent, was not incorporated.  See Section 7(e)(1) of the ADEA, 29
U.S.C. 626(e)(1) ("Sections 255 and 259 of this title (6 and 10 of the
Portal-to-Portal Act of 1947) shall apply to" ADEA actions).  A number
of courts have held, accordingly, that the filing of a collective
action tolls the statute as to similarly situated employees who are
not named plaintiffs.  See Levine v. Lane Bryant, 700 F. Supp. 949,
951-954 (N.D. Ill. 1988);  Vivone v. Acme Markets, 687 F. Supp. 168,
169 (E.D. Pa. 1988);  Franks v. Capital Cities Communications Inc., 48
Fair Empl. Prac. Cas. (BNA) 551, 552 (S.D.N.Y. 1983);  see also
Morelock v. NCR Corp., 586 F.2d 1096, 1103 (6th Cir. 1978).  But see
O'Connell v. Champion International Corp., 812 F.2d 393, 394 (8th Cir.
1987) (citing 29 U.S.C. 256(b) without discussion for the proposition
that the statute of limitations is tolled when a written consent is
filed).

   /26/ Nor does the fact that this Court adopted amendments to Rule
23 in 1966 imbue Congress's silence in the ADEA on the issue of notice
with any additional meaning.  See Pet. Br. 25-30.  As noted above,
that silence simply reflected the traditional legislative delegation
to the courts of questions concerning the management of litigation,
including the question whether courts should adopt procedures similar
in some respects to those authorized by Rule 23 in collective actions
under the ADEA or the FLSA.

   We note that in its zeal to find significance in the amendment to
Rule 23, petitioner seriously overstates the nature of Congress's role
in that amendment.  Congress did not "enact" the pre-1966 version of
the Rule (Pet. Br. 25), nor, by merely allowing the amended rule to
become effective in accordance with the Rules Enabling Act, did it
specifically "address" or "authorize" the amendment (id. at 26-27).

   /27/ In this regard, we agree that it is not proper for a district
court to conceive of its role as being "to aid ADEA class plaintiffs
in filling their class with all of its possible members." Pet. App.
63a.  Although the district court should not have framed the issue in
those terms, its holding -- "that it is permissible for a court to
facilitate notice of an ADEA suit to absent class members in
appropriate cases, so long as the court avoids communicating to absent
class members any encouragement to join the suit or any approval of
the suit on its merits" -- was neutral.

   /28/ See, e.g., Pet. Br. 12 & n.9 ("The role plaintiffs here
propose for the judiciary would involve the courts in maximizing the
solicitation and joinder of additional parties seeking money damages.
* * * Thus court facilitated notice serves no proper judicial function
and serves only to advance plaintiffs' strategic objectives.")

   /29/ Courts should not be deprived of all authority to supervise
notice of ADEA actions on the assumption that age discrimination
claims are unsuitable for class treatment.  That assumption directly
contradicts Congress's decision to authorize collective actions in
which the claims of various employees would be joined.  Moreover, ADEA
cases may involve explicit age restrictions, which are particularly
amenable to class treatment.  Courts have approved ADEA collective
actions challenging a variety of allegedly discriminatory employment
practices.  See, e.g., Mistretta v. Sandia Corp., 639 F.2d 588 (10th
Cir. 1980) (collective action and consolidated government action
challenging reduction in force);  Owens v. Bethlehem Mines Corp., 108
F.R.D. 207 (S.D. W. Va. 1985) (company-wide reduction in force);
Allen v. Marshall Field & Co., 93 F.R.D. 438 (N.D. Ill. 1982) (ADEA
class action challenging forced retirement of management level
employee).

   /30/ Contrary to petitioner's contention, the claims of the absent
class members are not necessarily weak.  Individuals with small claims
may not be aware of their rights, or may be discouraged from asserting
their claims because they believe it is not worth the time and expense
to bring an action, or because they have difficulty obtaining an
attorney.  Lipschultz, The Class Action Suit Under the Age
Discrimination in Employment Act:  Current Status, Controversies and
Suggested Clarifications, 32 Hastings L.J. 1377, 1391-1392 (1981).
See also Kaplan, Continuing Work of the Civil Committee:  1966
Amendments of the Federal Rules of Civil Procedure, 81 Harv. L. Rev.
356, 397-398 (1967) (the "moral justification" for freezing out the
"claims of people -- especially small claims held by small people --
who for one reason or another, ignorance, timidity, unfamiliarity with
business or legal matters, will simply not take the affirmative step"
is "questionable").