After petitioner employer ordered a reduction in force and
discharged or demoted some 1,200 workers, respondent affected
employees filed in the District Court a collective action seeking
relief under the Age Discrimination in Employment Act of 1967
(ADEA). In order to meet the requirement of 29 U.S.C. § 216(b) -- a
provision of the Fair Labor Standards Act of 1938 (FLSA)
incorporated in the ADEA by 29 U.S.C. § 626(b) -- that an
individual may become a party plaintiff in a collective action only
if he files with the court his "consent in writing," respondents
moved for discovery of the names and addresses of similarly
situated employees and requested that the court send notice to all
potential plaintiffs who had not yet filed consents. The court held
that it could facilitate notice of an ADEA suit to absent class
members in appropriate cases so long as the court avoided
communicating any encouragement to join the suit or any approval of
the suit on its merits. Thus it, inter alia,
petitioner to comply with the request for the names and addresses
of discharged employees and authorized respondents to send to all
employees who had not yet joined the suit a court-approved consent
document and a notice stating that it had been authorized by the
District Court, but that the court had taken no position on the
merits of the case. The Court of Appeals affirmed, ruling that
there was no legal impediment to court-authorized notice in an
appropriate case. It declined to review the notice's form and
contents, including the district Court's authorization
District courts have discretion, in appropriate
cases, to implement § 216(b), as incorporated by § 626(b), in ADEA
actions by facilitating notice to potential plaintiffs. However, as
did the Court of Appeals, this Court declines to examine the terms
of the notice used here.
(a) The District Court was correct to permit discovery of the
discharged employees' names and addresses, since such discovery was
relevant to the subject matter of the action, and since there were
no grounds to limit discovery under the facts and circumstances of
(b) Once an ADEA suit is filed, a district court has a
managerial responsibility to oversee the joinder of additional
parties to assure that the task is accomplished in an efficient
way, and has the discretion to begin its involvement at the point
of the initial notice rather than at a
Page 493 U. S. 166
later time. Court-authorized notice may counter the potential
for misuse of the class device, avoids a multiplicity of
duplicative suits, and sets reasonable cut-off dates to expedite
the action's disposition. Moreover, by monitoring preparation and
distribution of the notice, a court can ensure that the notice is
timely, accurate, and informative, and can settle disputes about
the notice's content before it is distributed. Federal Rules of
Civil Procedure 83 -- which endorses measures to regulate the
actions of the parties to a multiparty suit -- and 16(b) -- which
requires the entry of scheduling orders limiting the time for,
the joinder of additional parties -- provide
further support for the trial court's authority. Petitioner's
contention that court involvement in the notice process would
thwart Congress' intention to relieve employers from the burden of
multiparty actions, as expressed in the FLSA's 1947 amendments, is
rejected, since those amendments merely limited private FLSA
plaintiffs to employees who asserted their own rights, thus
abolishing the right to sue of representatives with no personal
interest in a suit's outcome, and left intact the "similarly
situated" language providing for collective actions.
(c) This Court's decision does not imply that trial courts have
unbridled discretion in managing ADEA actions. In exercising the
discretionary authority to oversee the notice-giving process,
courts must be scrupulous to respect judicial neutrality by
avoiding even the appearance of judicial endorsement of the merits
of the action.
862 F.2d 439 (CA 3 1988), affirmed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ.,
joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST,
C.J., joined, post,
p. 493 U. S.
Page 493 U. S. 167
Justice KENNEDY delivered the opinion of the Court.
The Age Discrimination in Employment Act of 1967 (ADEA), 81
Stat. 602, as amended,
29 U.S.C. § 621 et seq.
(1982 ed. and Supp. V), provides that an employee may bring an
action on behalf of himself and other employees similarly situated.
To resolve disagreement among the Courts of Appeals, [Footnote 1
] we granted certiorari on the
question whether a district court conducting a suit of this type
may authorize and facilitate notice of the pending action. 489 U.S.
Age discrimination in employment is forbidden by § 4 of the
ADEA. 29 U.S.C. § 623 (1982 ed. and Supp. V). Section 7(b) of the
ADEA incorporates enforcement provisions of the Fair Labor
Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended,
29 U.S.C. § 201 et seq.
(1982 ed. and Supp. V), and
provides that the ADEA shall be enforced using certain of the
powers, remedies, and procedures of the FLSA. This controversy
centers around one of the provisions the ADEA incorporates, which
states, in pertinent part, that an action
"may be maintained against any employer . . . in any Federal or
State court of competent jurisdiction by any one or more employees
for and in behalf of himself or
Page 493 U. S. 168
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."
29 U.S.C. § 216(b) (1982 ed.).
In 1985, petitioner Hoffman-La Roche Inc., ordered a reduction
in work force and discharged or demoted some 1,200 workers. Richard
Sperling, a discharged employee and one of the respondents, filed
an age discrimination charge with the Equal Employment Opportunity
Commission for himself and all employees similarly situated. With
the assistance of counsel, Sperling and some other employees formed
a group known as Roche Age Discriminatees Asking Redress
(R.A.D.A.R.). The group mailed a letter, on R.A.D.A.R. letterhead,
to some 600 employees whom it had identified as potential members
of the protected class. The letter advised that an action would be
brought against petitioner under the ADEA and invited the
addressees to join the suit by filling out and returning an
enclosed consent form, thus fulfilling the statutory requirement of
joinder by "consent in writing."
Respondents filed this ADEA action in Federal District Court
and, through R.A.D.A.R.'s letters and informal contacts, received
and filed with the court over 400 consents. To ensure that all
potential plaintiffs would receive notice of the suit, respondents
moved for discovery of the names and addresses of all similarly
situated employees. They also requested that the court send notice
to all potential plaintiffs who had not yet filed consents.
Petitioner opposed both motions, and filed a cross-motion, asking
the court to invalidate the consents already filed, on the ground
that the solicitation had been misleading. In addition, petitioner
requested that the court send out a "corrective notice" to the
individuals who had filed consents.
To resolve these matters the District Court ordered petitioner
to produce the names and addresses of the discharged employees. The
District Court held that it was
Page 493 U. S. 169
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."
Sperling v. Hoffman-La Roche, Inc.,
118 F.R.D. 392, 402
(NJ 1988). The court also authorized respondents to send to all
employees who had not yet joined the suit a notice and a consent
document, with a text and form approved by the court. The court
attached the authorized notice to its interlocutory order. At the
end of the approved notice was a statement that the notice had been
authorized by the District Court, but that the court had taken no
position on the merits of the case. Id.,
at 417. Finally,
the District Court refused to invalidate the consents already
The District Court found that its orders regarding discovery and
further notice met the requirements for immediate appeal, 28 U.S.C.
§ 1292(b) (1982 ed., Supp. V), and the Court of Appeals permitted
an appeal from that portion of the ruling. The Court of Appeals
affirmed the discovery order and the order for further notice,
ruling that "there is no legal impediment to court-authorized
notice in an appropriate case." 862 F.2d 439, 447 (CA3 1988). The
Court of Appeals declined to review the form and contents of the
notice to potential plaintiffs and, in particular, it declined to
pass upon the concluding statement of the notice stating that it
had been authorized by the District Court.
As it comes before us, this case presents the narrow question of
whether, in an ADEA action, district courts may play any role in
prescribing the terms and conditions of communication from the
named plaintiffs to the potential members of the class on whose
behalf the collective action has been brought. We hold that
district courts have discretion, in appropriate cases, to implement
29 U.S.C. § 216(b) (1982 ed.), as incorporated by 29 U.S.C. §
626(b) (1982 ed.), in ADEA actions by facilitating notice to
Page 493 U. S. 170
The facts and circumstances of this case illustrate the
propriety, if not the necessity, for court intervention in the
notice process. As did the Court of Appeals, we decline to examine
the terms of the notice used here, or its concluding statement
indicating court authorization. We confirm the existence of the
trial court's discretion, not the details of its exercise.
The District Court was correct to permit discovery of the names
and addresses of the discharged employees. Without pausing to
explore alternative bases for the discovery, for instance that the
employees might have knowledge of other discoverable matter, we
find it suffices to say that the discovery was relevant to the
subject matter of the action and that there were no grounds to
limit the discovery under the facts and circumstances of this
The ADEA, through incorporation of Section 16(b) of the FLSA,
expressly authorizes employees to bring collective age
discrimination actions "in behalf of . . . themselves and other
employees similarly situated." 29 U.S.C. § 216(b) (1982 ed.).
Congress has stated its policy that ADEA plaintiffs should have the
opportunity to proceed collectively. A collective action allows age
discrimination plaintiffs the advantage of lower individual costs
to vindicate rights by the pooling of resources. The judicial
system benefits by efficient resolution in one proceeding of common
issues of law and fact arising from the same alleged discriminatory
These benefits, however, depend on employees' receiving accurate
and timely notice concerning the pendency of the collective action,
so that they can make informed decisions about whether or not to
participate. Section 216(b)'s affirmative permission for employees
to proceed on behalf of those similarly situated must grant the
court the requisite procedural authority to manage the process of
joining multiple parties in a manner that is orderly, sensible, and
not otherwise contrary to statutory commands or the provisions of
the Federal Rules of Civil Procedure. See
Civ.Proc. 83. It follows that, once an ADEA action is filed, the
court has a
Page 493 U. S. 171
managerial responsibility to oversee the joinder of additional
parties to assure that the task is accomplished in an efficient and
We have recognized that a trial court has a substantial interest
in communications that are mailed for single actions involving
multiple parties. In Gulf Oil Co. v. Bernard, 452 U. S.
, 452 U. S. 101
(1981), we held that a District Court erred by entering an order
that in effect prohibited communications between the named
plaintiffs and others in a Rule 23 class action. Observing that
class actions serve important goals, but also present opportunities
for abuse, we noted that
"[b]ecause 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."
452 U.S. at 452 U. S. 100
The same justifications apply in the context of an ADEA action.
Although the collective form of action is designed to serve the
important function of preventing age discrimination, the potential
for misuse of the class device, as by misleading communications,
may be countered by court-authorized notice. [Footnote 2
Because trial court involvement in the notice process is
inevitable in cases with numerous plaintiffs where written consent
is required by statute, it lies within the discretion of a district
court to begin its involvement early, at the point of the initial
notice, rather than at some later time. One of the most significant
insights that skilled trial judges have gained in recent years is
the wisdom and necessity for early judicial intervention in the
management of litigation. Peckham, The Federal Judge as a Case
Manager: The New Role in Guiding a Case from Filing to Disposition,
69 Calif.L. Rev. 770 (1981); Schwarzer, Managing Civil Litigation:
The Trial Judge's Role, 61 Judicature 400 (1978). A trial court
Page 493 U. S. 172
better manage a major ADEA action if it ascertains the contours
of the action at the outset. The court is not limited to passive
waiting for objections about the manner in which the consents were
obtained. By monitoring preparation and distribution of the notice,
a court can ensure that it is timely, accurate, and informative.
Both the parties and the court benefit from settling disputes about
the content of the notice before it is distributed. This procedure
may avoid the need to cancel consents obtained in an improper
The instant case is illustrative. Petitioner objected to the
form of the notice first sent by respondents' counsel, alleging
that it was so inaccurate that any consents based on it should be
found invalid by the court, and at the same time petitioner
resisted discovery of the names and addresses of the discharged
employees. Questions of notice, proper discovery, and the validity
of consents were intertwined.
Court authorization of notice serves the legitimate goal of
avoiding a multiplicity of duplicative suits and setting cut-off
dates to expedite disposition of the action. In this case, the
trial court, as part of its order, set a cut-off date for the
filing of consents, as it was bound to do if the action was to
proceed in diligent fashion. By approving the form of notice sent,
the trial court could be assured that its cut-off date was
reasonable, rather than having to set a cut-off date based on a
series of unauthorized communications or even gossip that might
have been misleading.
In the context of the explicit statutory direction of a single
ADEA action for multiple ADEA plaintiffs, the Federal Rules of
Civil Procedure provide further support for the trial court's
authority to facilitate notice. Under the terms of Federal Rule of
Civil Procedure 83, courts, in any case "not provided for by rule,"
may "regulate their practice in any manner not inconsistent with"
federal or local rules. Rule 83 endorses measures to regulate the
actions of the parties to a multiparty suit. See Gulf Oil
452 U.S. at 452 U. S. 99
10. This authority is well settled, as courts traditionally have
exercised considerable authority
Page 493 U. S. 173
"to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases." Link v. Wabash Railroad
Co., 370 U. S. 626
370 U. S.
-631 (1962) (court had authority sua sponte
to dismiss action for failure to prosecute). The interest of courts
in managing collective actions in an orderly fashion is reinforced
by Federal Rule of Civil Procedure 16(b), requiring entry of a
scheduling order limiting time for various pretrial steps such as
joinder of additional parties. At pretrial conferences, courts are
encouraged to address
"the need for adopting special procedures for managing
potentially difficult or protracted actions that may involve
complex issues, [or] multiple parties. . . ."
Fed. Rule Civ.Proc. 16(c)(10).
We reject petitioner's contention that court involvement in the
notice process would thwart Congress' intention to relieve
employers from the burden of multiparty actions, as expressed in
the 1947 amendments to the FLSA. In 1938, Congress gave employees
and their "representatives" the right to bring actions to recover
amounts due under the FLSA. No written consent requirement of
joinder was specified by the statute. In enacting the
Portal-to-Portal Act of 1947, Congress made certain changes in
these procedures. In part responding to excessive litigation
spawned by plaintiffs lacking a personal interest in the outcome,
the representative action by plaintiffs not themselves possessing
claims was abolished, and the requirement that an employee file a
written consent was added. See
93 Cong.Rec. 538, 2182
(1947) (remarks of Sen. Donnell). The relevant amendment was for
the purpose of limiting private FLSA plaintiffs to employees who
asserted claims in their own right and freeing employers of the
burden of representative actions. Portal-to-Portal Act of 1947, ch.
52, §§ 5(a), 6, 7, 61 Stat. 87-88. Congress left intact the
"similarly situated" language providing for collective actions,
such as this one. The broad remedial goal of the statute should be
enforced to the full extent of its terms.
Page 493 U. S. 174
Our decision does not imply that trial courts have unbridled
discretion in managing ADEA actions. Court intervention in the
notice process for case management purposes is distinguishable in
form and function from the solicitation of claims. In exercising
the discretionary authority to oversee the notice-giving process,
courts must be scrupulous to respect judicial neutrality. To that
end, trial courts must take care to avoid even the appearance of
judicial endorsement of the merits of the action.
The judgment of the Third Circuit is affirmed, and the case
remanded for proceedings consistent with this opinion.
It is so ordered.
Compare Braunstein v. Eastern Photographic Laboratories,
600 F.2d 335, 336 (CA2 1978) (per curiam) (under Fair
Labor Standards Act, notice permitted because of remedial nature of
FLSA and because notice would avoid a multiplicity of suits),
441 U.S. 944 (1979); Woods v. New York
Life Ins. Co.,
686 F.2d 578, 580-581 (CA7 1982) (allowing
court-approved notice); and United States v. Cook,
F.2d 987, 993 (CA Fed.1986), with McKenna v. Champion
747 F.2d 1211, 1213-1217 (CA8 1984)
(disapproving court-authorized notice); Dolan v. Project
725 F.2d 1263, 1267-1269 (CA10 1984);
Parttow v. Jewish Orphans' Home of Southern Cal., Inc.,
645 F.2d 757, 758-759 (CA9 1981); and Kinney Shoe Corp. v.
564 F.2d 859, 864 (CA9 1977).
We do not address any conflicts between court-authorized notice
and communications with potential plaintiffs by counsel, see
Shapero v. Kentucky Bar Assn., 486 U.
(1988), as these issues are not implicated in the
case before us.
Justice SCALIA, with whom THE CHIEF JUSTICE joins,
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 Section 216(b)
at 493 U. S. 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 "passive" 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 493 U. S.
-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
Page 493 U. S.
achieve the orderly and expeditious disposition of cases.'"
Ante at 493 U. S.
172-173 (quoting Link v. Wabash Railroad Co.,
370 U. S. 626,
370 U. S.
The difficulty with sweeping these orders under the rug of "case
management" is that they were not at all
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). 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
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 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.
, 219 U. S.
-363 (1911); Gordon v. United States,
U.S.Appx. 697, 699-706 (1865); United States v.
13 How. 40, 54 U. S. 48
(1852); Hayburn's Case,
2 Dall. 409, 2 U. S. 410
(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
Page 493 U. S. 176
form prescribed by law.
It then becomes a case. . .
Osborn v. Bank of United
9 Wheat. 738, 22 U. S. 819
(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
First, nothing in Section 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 493 U. S. 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
Page 493 U. S. 177
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 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
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 litigations. See Gulf Oil Co. v. Bernard, 452 U. S.
, 452 U. S. 101
(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 (b)(3) class who elect to opt out). See
Fed.R.Civ.P. 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.
specifically provide, for example, that courts may, and in some
instances must, notify absent class members of the pendency of the
Fed.R.Civ.P. 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.R.Civ.P. 23(d) (authorizing court in 23(b)(1) or (b)(2) actions
to notify class members of pendency of litigation). but what
Page 493 U. S. 178
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."
Fed.R.Civ.P. 82. 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.
, 490 U. S. 553
(1989) (plaintiff in FTCA 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
437 U. S. 370
(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.R.Civ.P. 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
Page 493 U. S. 179
parties not before the court. This is made entirely clear by the
Rule's catch-all provision, which admonishes the court to address
matters as may aid in the disposition of
" Fed.R.Civ.P. 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."
Fed.R.Civ.P. 83. 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,"
"Unless otherwise limited
by order of the court in
accordance with these rules, the scope of discovery is as
"(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 reasonably
Page 493 U. S. 180
calculated to lead to the discovery of admissible
(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," Sperling v. Hoffman-LaRoche,
118 F.R.D. 392, 402 (D.N.J.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," Sperling v. Hoffman-LaRoche, Inc.,
862 F.2d 439,
444 (CA3 1988). Discovery for that purpose is simply not
authorized. The Court notes casually that it does not
"pause to explore alternative bases for the discovery, for
instance that the employees might have knowledge of other
at 493 U. S. 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
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,
fact, they have before them a claim that is similar to claims
Page 493 U. S. 181
which other identifiable individuals might possess. The Court's
suggestion that ADEA suits are rendered distinctive by Section
216(b)'s "explicit statutory direction of a single ADEA action for
multiple ADEA plaintiffs," ante
at 493 U. S. 172
is entirely unpersuasive. Section 216 no more directs
single action in ADEA litigation than Rule 20 (permissive joinder)
a single action in all other litigation. Both
(in the words of Rule 20) that persons
"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
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
167 U. S.
-630 (1897); Grinnell v. Railroad Company,
103 U. S. 739
103 U. S. 744
(1880). 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.