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").