# Hoffmann-La Roche Inc. v. Sperling/Dissent Scalia

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Scalia
Justice SCALIA, with whom THE CHIEF JUSTICE joins, dissenting.
The Court holds that in a § 216(b) action the district court can use its compulsory process to assist counsel for the plaintiff in locating nonparties to the litigation who may have similar claims, and in obtaining their consent to his prosecution of those claims. Because I know of no source of authority for such an extraordinary exercise of the federal judicial power, I dissent.
To read the Court's opinion, one would think that what is at issue here is nothing but a routine exercise in case management. We are told that the district court has a "managerial responsibility to oversee the joinder of additional parties" in § 216(b) actions, ante, at 171, in order to protect potential plaintiffs and avoid duplicative litigation. We are told that all concerned-plaintiffs, defendants, and the judicial system itself benefit when the district courts abandon their "passiv[e]" stance and instead undertake "early judicial intervention" in the process of identifying people who have a cause of action and securing their consent to join the litigation. Ante, at 171-172. And we are told that by doing good in this fashion the district courts merely avail themselves of their "considerable authority 'to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.' " Ante, at 172-173 (quoting Link v. Wabash R. Co., 370 U.S. 626, 630-631, 82 S.Ct. 1386, 1388-1389, 8 L.Ed.2d 734 (1962)).
The difficulty with sweeping these orders under the rug of "case management" is that they were not at all designed to facilitate the adjudication of any claim before the court. The individuals whom the court helped notify were not, at the time of the orders, part of the case. Section 216(b) provides that "[n]o employee shall be a party plaintiff . . . 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." 29 U.S.C. § 216(b) (1982 ed.). It is true, of course, that the orders can be regarded as managing future cases-assuring, to the extent the plaintiffs are willing, that such cases will not be filed in different courts and at different times. But that does not make this court's handling of the case before it any simpler or more efficient. Surely the judge's authority to "manage" cases has never before been thought to be more expansive than his authority to adjudicate them-i.e., to extend to cases that have not actually been filed in his court.
The activity approved today is an extraordinary application of the federal judicial power, which is limited by Article III of the Constitution to the adjudication of cases and controversies. See, e.g., Muskrat v. United States, 219 U.S. 346, 353-363, 31 S.Ct. 250, 252-256, 55 L.Ed. 246 (1911); Gordon v. United States, 117 U.S. 697, 699-706 (1864); United States v. Ferreira, 54 U.S. (13 How.) 40, 48-52, 14 L.Ed. 40 (1852); Hayburn's Case, 2 U.S. (2 Dall.) 409, 410, 1 L.Ed. 436 (1792). The meaning of the "case or controversy" requirement was elucidated by Chief Justice Marshall many years ago:
"This clause [Art. III, § 2, cl. 1] enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case. . . ." Osborn v. Bank of United States, 9 Wheat. 738, 819, 6 L.Ed. 204 (1824) (emphasis added).
The claims facilitated or "managed" here had not yet been submitted to the District Court. No one doubts, of course, that Congress could give an executive agency authority to compel disclosure of prior employees' names, so that the agency might invite them to join an existing suit or provide their names to counsel. But giving a court authority to take action directed, not to the resolution of the dispute before it, but to the generation and management of other disputes, is, if not unconstitutional, at least so out of accord with age-old practices that surely it should not be assumed unless it has been clearly conferred. Yet one searches the Court's opinion in vain for any explicit statutory command that federal courts assume this novel role.
First, nothing in § 216(b) itself confers this power. The portion of the statute dealing with collective employee actions provides that employees may sue in a representative capacity for other similarly situated employees who have consented to the representation. The Court characterizes this as an "affirmative permission" for representative actions, from which it derives a "grant [of] the requisite procedural authority to manage the process of joining multiple parties. . . ." Ante, at 170 (emphasis added). Of course the reality of the matter is that it is not an "affirmative permission" for representative actions at all, but rather a limitation upon the affirmative permission for representative actions that already exists in Rule 23 of the Federal Rules of Civil Procedure. (That is to say, were it not for this provision of § 216(b) the representative action could be brought even without the prior consent of similarly situated employees.) But accepting the notion that it is an "affirmative permission" for representative actions, I do not see how that converts into an implied authorization for courts to undertake the unheard-of role of midwifing those actions. I have no doubt that courts possess certain powers over the § 216(b) joinder process, most prominently the power to satisfy themselves that the employees who purportedly become parties are in fact similarly situated to the representative, and have in fact given valid consents to the litigation. That is simply part of the courts' ever-present duty to inquire into their jurisdiction over claims brought before them. But to reason from that to the existence of a more general "procedural authority to manage the process of joining multiple parties" seems to me fallacious. Nothing in § 216(b) remotely confers the extraordinary authority for a court either directly or by lending its judicial power to the efforts of a party's counsel-to search out potential claimants, ensure that they are accurately informed of the litigation, and inquire whether they would like to bring their claims before the court.
The Court seeks to minimize the novelty of the authority it confers by analogizing it to the authority we have earlier acknowledged for district courts to regulate communications between class members and their representatives in Rule 23 class actions, in order to ensure that the former are kept accurately informed of the litigation. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 101, 101 S.Ct. 2193, 2200, 68 L.Ed.2d 693 (1981). There is no comparison. In Rule 23 class actions, the members of a class which qualifies for certification are parties to the action and will be bound by the judgment (except for those members of a 23(b)(3) class who elect to opt out). See Fed.Rule Civ.Proc. 23(c)(3). It is not at all extraordinary for courts to supervise and regulate the participation of existing parties in actions that are pending. The Rules specifically provide, for example, that courts may, and in some instances must, notify absent class members of the pendency of the litigation. See Fed.Rule Civ.Proc. 23(c)(2) (requiring court in 23(b)(3) action to notify absent class members that they will be bound by judgment unless they opt out by a certain date); Fed.Rule Civ.Proc. 23(d) (authorizing court in 23(b)(1) or (b)(2) actions to notify class members of pendency of litigation). But what courts may do with respect to absent parties says nothing about what they may do with respect to members of the public at large.
Nor do I agree with the Court that the Federal Rules Of Civil Procedure themselves provide the authority claimed by the District Court. To begin with, authorization from that source may be expressly foreclosed by Rule 82, which provides that the Rules "shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein." Authority for the courts to use their power for a purpose that neither achieves nor assists the resolution of claims before them appears to violate that prohibition-and the urgings of judicial efficiency are no justification for ignoring it. Cf. Finley v. United States, 490 U.S. 545, 553, 109 S.Ct. 2003, 2009, n. 6, 104 L.Ed.2d 593 (1989) (plaintiff in Federal Tort Claims Act action against United States may not, through impleader and joinder provisions of Rules 14 and 20, bring pendent third-party claim over which there is no independent grant of federal jurisdiction); Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 370, 98 S.Ct. 2396, 2400, 57 L.Ed.2d 274 (1978) (Rule 14's authorization of third-party claims does not affect the statutory requirement of complete diversity among parties in diversity actions). But even if the Federal Rules could expand judicial power in this fashion, nothing in their language suggests that they have done so. The Court relies upon Rule 16, which, in authorizing pretrial conferences to facilitate the disposition of cases, admonishes the court to address "the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems." Fed.Rule Civ.Proc. 16(c)(10). It would certainly be strange to confer an unusual new power by simply mentioning that power (as one of the subjects that can be considered) in a provision designed to authorize pretrial conferences. But in any case, the authority to "manage actions" cannot reasonably be read to refer to the management of claims and parties not before the court. This is made entirely clear by the Rule's catchall provision, which admonishes the court to address "such other matters as may aid in the disposition of the action." Fed.Rule Civ.Proc. 16(c)(11) (emphasis added).
The Court's repeated reliance upon Rule 83 is so strained that it snaps. Rule 83 states: "In all cases not provided for by rule, the district judges . . . may regulate their practice in any manner not inconsistent with these rules or those of the district in which they act." The contention here is that this is not a "regulation of practice" pertinent to resolution of the controversy before the court. To respond to that contention by pointing out that the court has been given authority to "regulate practice" is not to respond at all-unless the Court means that "regulating practice" includes impositions upon the parties and their counsel for any purpose whatever.
In addition to being void because of lack of authority to act for a purpose unrelated to adjudication of the case before it, one of the court's orders, the discovery order, was invalid because the purpose for which it was issued was not a purpose permitted by Rule 26. Rule 26(b), entitled "Discovery Scope and Limits," provides:
"Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
"(1) . . . Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reason- ably calculated to lead to the discovery of admissible evidence." (Emphasis added.)
The discovery order here had nothing to do with "the subject matter involved in the pending action," in the plainly intended sense of constituting, or "lead[ing] to the discovery of," admissible evidence. To the contrary, it was entered by the District Court solely to "facilitate notice of an ADEA suit to absent class members," 118 F.R.D. 392, 402 (NJ 1988), and was sustained by the Third Circuit as an exercise of "the authority of the district court in an ADEA action to facilitate joinder of the putative class members," 862 F.2d 439, 444 (1988). Discovery for that purpose is simply not authorized. The Court notes casually that it does not "paus[e] to explore alternative bases for the discovery, for instance that the employees might have knowledge of other discoverable matter." Ante, at 170. I suggest that those are not "alternative bases for the discovery," but the only permissible bases for discovery. And the speculation that they "might" exist will not support affirmance of an order that was squarely based on another ground. Thus, to reach its disposition the Court not only bends traditionally understood case-or-controversy limitations but invents a discovery power beyond what the Rules confer.
In the end, the only serious justification for today's decision is that it makes for more efficient and economical adjudication of cases-not more efficient and economical adjudication of the pending case, but of other cases that might later be filed separately on behalf of plaintiffs who would have been perfectly willing to join the present suit instead. I concede that this justification, at least, is entirely valid. The problem is that it is a justification in policy but not in law.
If the benefits of judicial efficiency and economy constitute sufficient warrant for the District Court's action, then one can imagine numerous areas in which district courts should similarly take on the function of litigation touts-whenever, in fact, they have before them a claim that is similar to claims which other identifiable individuals might possess. The Court's suggestion that ADEA suits are rendered distinctive by § 216(b)'s "explicit statutory direction of a single ADEA action for multiple ADEA plaintiffs," ante, at 172, is entirely unpersuasive. Section 216 no more directs a single action in ADEA litigation than Rule 20 (permissive joinder) directs a single action in all other litigation. Both provisions permit (in the words of Rule 20) that persons may "join in one action as plaintiffs [who] assert [a] right to relief . . . in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action." Fed.Rule Civ.Proc. 20(a).
There is more than a little historical irony in the Court's decision today. "Stirring up litigation" was once exclusively the occupation of disreputable lawyers, roundly condemned by this and all American courts. See, e.g., Peck v. Heurich, 167 U.S. 624, 629-630, 17 S.Ct. 927, 928-929, 42 L.Ed. 302 (1897); Grinnell v. Railroad Company, 103 U.S. 739, 744, 26 L.Ed. 456 (1881). But in the age of the "case managing" judicial bureaucracy, our perceptions have changed. Seeking out and notifying sleeping potential plaintiffs yields such economies of scale that what was once demeaned as a drain on judicial resources is now praised as a cutting-edge tool of efficient judicial administration. Perhaps it is. But that does not justify our taking it in hand when Congress has not authorized it. Even less does it justify our rush to abandon (not only without compulsion but without invitation) what the Court deprecatingly calls the courts' "passive" role in determining which claims come before them, but which I regard as one of the natural components of a system in which courts are not inquisitors of justice but arbiters of adversarial claims.
I respectfully dissent.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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