PER CURIAM:
This is an interlocutory appeal1 taken from an order of the district court dismissing Appellant LaChapelle's class action claim in an age discrimination suit. The appeal presents for decision a single, well defined question of law. This is whether suits brought under the Age Discrimination in Employment Act of 19672 may be Rule 233-type class actions. We conclude that they may not and, therefore, affirm the decision below.
Section 7(b) of ADEA4 directs that "The provisions of this Chapter 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 this title...." 29 U.S.C. § 216(b),5 in turn, provides, in part that
"Action to recover such liability 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 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." (Emphasis added.)6
Rule 23(c) reads
"(c) Determination by Order Whether Class Action to be Maintained; Notice; Judgment; Actions Conducted Partially as Class Actions.
"(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.
"(2) In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.
"(3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.
"(4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly."
There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FLSA § 16(b). In a Rule 23 proceeding a class is described; if the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he has "opted out" of the suit.7 Under § 16(b) of FLSA, on the other hand, no person can become a party plaintiff and no person will be bound by or may benefit from judgment unless he has affirmatively "opted into" the class; that is, given his written, filed consent. Sims v. Parke Davis & Co., 334 F.Supp. 774, 780-81 (E.D.Mich.) aff'd 453 F.2d 1259 (6th Cir.1971) cert. denied 405 U.S. 978, 92 S.Ct. 1196, 31 L.Ed.2d 254 (1972). It is crystal clear that § 16(b) precludes pure Rule 23 class actions in FLSA suits. This however, is an ADEA, not an FLSA action.
LaChapelle urges that there are important distinctions between FLSA and ADEA actions which warrant a holding that, while Rule 23 class actions may not be available in the former, they should, nevertheless, be maintainable in the latter. Specifically, he points out that, as we have noted, "With a few minor exceptions the prohibitions of ... [ADEA] are in terms identical to those of Title VII of the Civil Rights Act of 1964 except that `age' has been substituted for `race, color, religion, sex or national origin.'" Hodgson v. First Federal Savings and Loan Ass'n of Broward Co., Fla., 455 F.2d 818, 820 (5th Cir.1972). Although he recognizes that all of the district courts save one8 which have been called upon to rule directly upon the question,9 have held that Rule 23 class actions are unavailable in ADEA suits, he argues that the similarities between that act and Title VII should influence us to hold, in light of the broad remedial purposes of both, that Congress did not mean what it said when it directed that ADEA be enforced in accordance with, among others, Section 16(b) of FLSA. He asks us to conclude, from the failure of ADEA's legislative history specifically to mention, approvingly or disapprovingly, the consent requirement of the third sentence of § 16(b), that Congress did not consider what effect this provision of FLSA would have on Rule 23 class actions and to conclude further that, had Congress foreseen the effect, it would have excluded the offending sentence from § 7(b)'s directive. These things we may not do. The statutory language of ADEA § 7(b) is clear; likewise the language of FLSA § 16(b) is unambiguous. "We are recused from immersion in the sea of legislative history by the general principle that we must not refer to legislative history if the statutory language is clear." Globe Seaways, Inc. v. Panama Canal Co., No. 74-1654, 509 F.2d 969 (5th Cir.1975). Rather, we must apply the law as it has been written.
Rule 23(c) provides for "opt out" class actions. FLSA § 16(b) allows as class members only those who "opt in." These two types of class actions are mutually exclusive and irreconcilable.10 Since ADEA § 7(b) adopts11 FLSA § 16(b), we must hold that only "opt-in" type class actions may be utilized in age discrimination cases. Rule 23 cannot be invoked to circumvent the consent requirement of the third sentence of FSLA § 16(b) which has unambiguously been incorporated into ADEA by its Section 7(b).
Affirmed.
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