author: Justice Blackmun Justice Blackmun. Justice Brennan, Justice Stevens, Justice Scalia,

text:
    JOHN DOE AGENCY et al. v. JOHN DOE CORP.
    No. 88-1083.
    Argued October 2, 1989
    Decided December 11, 1989

      Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, O’Connor, and Kennedy, JJ., joined. Blackmun, J., also filed a separate statement, post, p. 158. Brennan, J., filed a concurring opinion, post, p. 158. Stevens, J., filed a dissenting opinion, post, p. 159. SCALIA, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 160.

      Edwin S. Kneedler argued the cause for petitioners. On the briefs were Solicitor General Starr, Acting Solicitor General Bryson, Assistant Attorney General Bolton, Deputy Solicitor General Wallace, Roy T. Englert, Jr., Leonard Schaitman, and John C. Hoyle.

      Milton Eisenberg argued the cause for respondent. With him on the brief were Arthur Lazarus, Jr., and John T. Boese.

         Patti A. Goldman and David C. Vladeck filed a brief for Public Citizen et al. as amici curiae urging affirmance.

   Justice Blackmun

delivered the opinion of the Court.

Once again, we are faced with an issue under the Freedom of Information Act (FOIA or Act), 5 U. S. C. § 552. This time, we are concerned with the Act’s Exemption 7, §552 (b)(7). That provision exempts from disclosure

“records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual. . .

Our focus is on the Exemption’s threshold requirement that the materials be “records or information compiled for law enforcement purposes.”

I

Respondent John Doe Corporation (Corporation) is a defense contractor. As such, it is subject to periodic audits by the Defense Contract Audit Agency (DCAA), the accounting branch of the Department of Defense. See 32 CFR §§ 357.2 and 357.4 (1988). In 1978, in connection with an audit, an exchange of correspondence took place between the DCAA and the Corporation concerning the proper accounting treatment of certain costs. The Government auditor, by letter dated May 2 of that year, claimed that the costs should have been charged to identifiable programs instead of to a technical overhead account. About $4.7 million in 1977 costs were discussed. The Corporation, by letter dated July 11, 1978, replied and defended its allocation. App. 22-28. No further action regarding the allocation of those costs was taken by the DCAA or the Corporation during the next eight years.

In 1985, the office of the United States Attorney for the Eastern District of New York instituted an investigation into possible fraudulent practices by the Corporation. A subpoena was issued to the Corporation by a grand jury on February 21, 1986. It requested documents relating to the cost allocation question which was the subject of the 1978 correspondence. On September 30, 1986, the Corporation submitted to the DCAA a request under the FOIA for any documents “that are related in any way to the subject matter” of the 1978 correspondence. Id., at 19. Upon the advice of an Assistant United States Attorney, the DCAA denied the request on November 18, citing Exemptions 7(A) and (E) of the Act. App. 29. Two days later the requested records were transferred to the Federal Bureau of Investigation (FBI). Id., at 92.

On February 3, 1987, the Corporation renewed its FOIA request but this time directed it to the FBI. Id., at 46. That agency denied the request, citing only Exemption 7(A). Id., at 49.

After exhausting its administrative remedies, the Corporation instituted the present litigation, seeking review of the withholding of the requested documents, in the United States District Court for the Eastern District of New York. Id., at 6, 11. In due course, the Corporation moved to compel the preparation of a “Vaughn Index.”

The Government opposed disclosure, the preparation of the Index, and answers to propounded interrogatories on the ground that compliance with any of these would interfere with the grand jury proceeding and would provide the Corporation with information that might be useful to it in connection with anticipated criminal litigation. The District Court ordered the Government to prepare a Vaughn Index and to answer the interrogatories. It ordered sua sponte, however, that this material be submitted to the court for examination in camera rather than be given directly to the Corporation. Id., at 62, 66.

After conducting its examination without a hearing, the District Court ruled that petitioners were not required to turn over any of the contested documents to the Corporation. It then dismissed the complaint, stating: “[W]e are satisfied that there is a substantial risk that disclosure of any of this material, the documents, the Vaughn index and the answers to [the] interrogatories, would jeopardize the grand jury proceeding.” App. to Pet. for Cert. 13a-14a.

The Corporation appealed to the United States Court of Appeals for the Second Circuit. That court reversed and remanded the case. 850 F. 2d 105, 110 (1988). It ruled that the law enforcement Exemption 7, upon which the District Court implicitly relied, did not protect the records from disclosure because they were not “compiled for law enforcement purposes.” Id., at 109. It observed that the records “were compiled in 1978, seven years before the investigation began in 1985,” id., at 108, and that the 1974 amendments to the Act “make it clear that a governmental entity cannot withhold materials requested under the FOIA on the ground that materials that were not investigatory records when compiled have since acquired investigative significance.” Id., at 109. The Court of Appeals acknowledged that compliance with the FOIA may compel disclosure of materials that ordinarily are beyond the scope of discovery in a criminal investigation, and thus may enable a potential defendant to prepare a response and construct a defense to a criminal charge. The court concluded, however, that this concern was more properly addressed to Congress. Ibid. The court ruled, nonetheless, that on remand the Government was to be allowed to bring to the District Court’s attention “any particular matter that would, if disclosed, expose some secret aspect of the grand jury’s investigation.” Id., at 110.

The court refused to stay its mandate; it was issued on November 28, 1988. App. to Pet. for Cert. 15a. On remand, the District Court concluded that the Second Circuit’s opinion required that the Vaughn Index be turned over to the Corporation. App. 86. The Court of Appeals on January 10, 1989, refused to stay the District Court’s order requiring the furnishing of the Index, id., at 96, but later that same day the Circuit Justice entered a temporary stay pending a response from the Corporation. On January 30, the Circuit Justice granted a full stay. See 488 U. S. 1306 (Marshall, J., in chambers).

Because of the importance and sensitivity of the issue and because of differing interpretations of the pertinent language of Exemption 7, we granted certiorari. 489 U. S. 1009 (1989).

II

This Court repeatedly has stressed the fundamental principle of public access to Government documents that animates the FOIA. “Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.” EPA v. Mink, 410 U. S. 73, 80 (1973). The Act’s “basic purpose reflected ‘a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.’” Department of Air Force v. Rose, 425 U. S. 352, 360-361 (1976), quoting S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). “The basic purpose of FOIA is to ensure.an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 242 (1978). See also Department of Justice v. Reporters Committee for Freedom of Press, 489 U. S. 749, 772-773 (1989). There are, to be sure, specific exemptions from disclosure set forth in the Act. “But these limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U. S., at 361. Accordingly, these exemptions “must be narrowly construed.” Ibid. Furthermore, “the burden is on the agency to sustain its action.” 5 U. S. C. § 552(a)(4)(B).

Despite these pronouncements of liberal congressional purpose, this Court has recognized that the statutory exemptions are intended to have meaningful reach and application. On more than one occasion, the Court has upheld the Government’s invocation of FOIA exemptions. See EPA v. Mink, supra; Robbins Tire, supra; Reporters Committee, supra; FBI v. Abramson, 456 U. S. 615 (1982). In the case last cited, the Court observed: “Congress realized that legitimate governmental and private interests could be harmed by release of certain types of information,” and therefore provided the “specific exemptions under which disclosure could be refused.” Id., at 621. Recognizing past abuses, Congress sought “to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy.” H. R. Rep. No. 1497, 89th Cong., 2d Sess., 6 (1966). See also EPA v. Mink, 410 U. S., at 80. The Act’s broad provisions favoring disclosure, coupled with the specific exemptions, reveal and present the “balance” Congress has struck.

rH HH 1 — I

We have noted above that our focus here is on § 552(b)(7) s exemption from production of “records or information compiled for law enforcement purposes” to the extent that such production meets any one of six specified conditions or enumerated harms. Before it may invoke this provision, the Government has the burden of proving the existence of such a compilation for such a purpose. In deciding whether Exemption 7 applies, moreover, a court must be mindful of this Court’s observations that the FOIA was not intended to supplement or displace rules of discovery. See Robbins Tire, 437 U. S., at 236-239, 242; id., at 243 (Stevens, J., concurring). See also United States v. Weber Aircraft Corp., 465 U. S. 792, 801-802 (1984). Indeed, the Court of Appeals acknowledged that this was not a principal intention of Congress. 850 F. 2d, at 108.

As is customary, we look initially at the language of the statute itself. The wording of the phrase under scrutiny is simple and direct: “compiled for law enforcement purposes.” The plain words contain no requirement that compilation be effected at a specific time. The objects sought merely must have been “compiled” when the Government invokes the Exemption. A compilation, in its ordinary meaning, is something composed of materials collected and assembled from various sources or other documents. See Webster’s Third New International Dictionary 464 (1961); Webster’s Ninth New Collegiate Dictionary 268 (1983). This definition seems readily to cover documents already collected by the Government originally for non-law-enforcement purposes. See Gould Inc. v. General Services Administration, 688 F. Supp. 689, 698 (DC 1988).

The Court of Appeals, however, throughout its opinion would have the word “compiled” mean “originally compiled.” See 850 F. 2d, at 109. We disagree with that interpretation for, in our view, the plain meaning of the word “compile,” or, for that matter, of its adjectival form “compiled,” does not permit such refinement. This Court itself has used the word “compile” naturally to refer even to the process of gathering at one time records and information that were generated on an earlier occasion and for a different purpose. See FBI v. Abramson, 456 U. S., at 622, n. 5; Reporters Committee, supra.

Respondent, too, has used the word “compile” in its ordinary sense to refer to the assembling of documents, even though those documents were put together at an earlier time for a different purpose. In its FOIA requests of September 30,1986, and February 3,1987, respondent asked that the requested materials be furnished as soon as they were available, and that the response to the request “not await a compilation of all the materials requested.” App. 21, 47-48. This was a recognition, twice repeated, that the documents having been compiled once for the purpose of routine audits were not disqualified from being “compiled” again later for a different purpose.

We thus do not accept the distinction the Court of Appeals drew between documents that originally were assembled for law enforcement purposes and those that were not so originally assembled but were gathered later for such purposes. The plain language of Exemption 7 does not permit such a distinction. Under the statute, documents need only to have been compiled when the response to the FOIA request must be made.

If, despite what we regard as the plain meaning of the statutory language, it were necessary or advisable to examine the legislative history of Exemption 7, as originally enacted and as amended in 1974, we would reach the same conclusion. Justice Marshall, writing for the Court in Robbins Tire, 437 U. S., at 224-236, discussed this legislative history in detail. In its original 1966 form, Exemption 7 permitted nondisclosure of “investigatory files compiled for law enforcement purposes except to the extent available by law to a private party.” Pub. L. 89-487, § 3(e)(7), 80 Stat. 251. But the Court in Robbins Tire observed: “Congress recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their cases.” 437 U. S., at 224.

To accommodate these needs, Congress in 1974 amended the Act in several respects. See id., at 226-227. Concern was expressed on the Senate floor that four recent decisions in the United States Court of Appeals for the District of Columbia Circuit had permitted Exemption 7 to be applied whenever an agency could show that the document sought was an investigatory file compiled for law enforcement purposes. Congress feared that agencies would use that rule to commingle otherwise nonexempt materials with exempt materials in a law enforcement investigatory file and claim protection from disclosure for all the contents.

The aim of Congress thus was to prevent commingling. This was accomplished by two steps. The first was to change the language from investigatory “files” to investigatory “records.” The second was to make the compilation requirement necessary rather than sufficient. As amended, Exemption 7 requires the Government to demonstrate that a record is “compiled for law enforcement purposes” and that disclosure would effectuate one or more of the six specified harms. See Robbins Tire, 437 U. S., at 221-222, 229-230, 235. These changes require consideration of the nature of each particular document as to which exemption was claimed. Id., at 229-230. Evasional commingling thus would be prevented. The legislative history of the 1974 amendments says nothing about limiting Exemption 7 to those documents originating as law enforcement records.

A word as to FBI v. Abramson, 456 U. S. 615 (1982), is in order. There the Court was faced with the issue whether information originally compiled for law enforcement purposes lost its Exemption 7 status when it was summarized in a new document not created for law enforcement purposes. See id., at 623. The Court held that such information continued to meet the threshold requirements of Exemption 7. But we do not accept the proposition, urged by respondent, that the converse of this holding — that information originally compiled for a non-law-enforcement purpose cannot become exempt under Exemption 7 when it is recompiled at a future date for law enforcement purposes — is true. See Brief for Respondent 20.

This Court consistently has taken a practical approach when it has been confronted with an issue of interpretation of the Act. It has endeavored to apply a workable balance between the interests of the public in greater access to information and the needs of the Government to protect certain kinds of information from disclosure. The Court looks to the reasons for exemption from the disclosure requirements in determining whether the Government has properly invoked a particular exemption. See e. g., NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 148-154 (1975). In applying Exemption 7, the Court carefully has examined the effect that disclosure would have on the interest the exemption seeks to protect. Robbins Tire, 437 U. S., at 242-243; Abramson, 456 U. S., at 625. See also Department of State v. Washington Post Co., 456 U. S. 595 (1982). The statutory provision that records or information must be “compiled for law enforcement purposes” is not to be construed in a nonfunctional way.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Statement of

Justice Blackmun.

I add on my own account a word of caution. Simply because a party is a defense contractor does not mean that all doubts automatically are to be resolved against it and those in any way associated with it. A situation of the kind presented by this case can be abused, and after-the-fact acknowledgment of abuse by the Government hardly atones for the damage done by reason of the abuse. The recent General Dynamics case and the sad consequences for a former National Aeronautics and Space Administration administrator whose indictment was dismissed before trial (“because the Justice Department concedes it ha[d] no case,” Washington Post, June 24, 1987, p. A24, col. 1) are illustrative. Petitioners themselves, see Reply Brief for Petitioners 11, “recognize the theoretical potential for abuse.” I perceive no abuse in the present case, however, that would make it resemble General Dynamics.

Justice Brennan,

concurring.

I join the Court’s opinion. I write separately only to note that the question presented is limited to whether materials gathered for a law enforcement purpose, but not originally created for such a purpose, are “compiled” for law enforcement purposes within the meaning of the Freedom of Information Act. The issue of when a document must be “compiled” in order to be exempt from disclosure under Exemption 7, see ante, at 153,155, and n. 6, is not before us today. With the understanding that we do not reach this question, I join the Court’s opinion.

Justice Stevens,

dissenting.

In order to justify the application of Exemption 7 of the Freedom of Information Act (FOIA), the Government has the burden of demonstrating that a request calls for “records or information compiled for law enforcement purposes.” The Government can sustain that burden in either of two ways: (1) by demonstrating that the requested records and information were originally compiled for law enforcement purposes, or (2) by demonstrating that even though they had been generated for other purposes, they were subsequently recompiled for law enforcement purposes.

The Court states the correct standard for a “compilation,” but then inexplicably fails to apply it to the facts of this case. Ante, at 155, n. 6. A compilation is “something composed of materials collected and assembled from various sources or other documents.” Ante, at 153. It is not sufficient that the Government records or information “could reasonably be expected to interfere with enforcement proceedings.” 5 U. S. C. § 552(b)(7)(A). The Exemption is primarily designed to protect law enforcement agencies from requests for information that they have gathered for law enforcement purposes. Therefore, under the FOIA, records or information whose production would interfere with enforcement proceedings are exempt only when, by virtue of their “incorporation] in a law enforcement ‘mosaic,’” Gould Inc. v. General Services Administration, 688 F. Supp. 689, 698 (DC 1988), they take on law enforcement significance. In this case, the proper application of these principles is clear.

It is undisputed that the original FOIA request to the Defense Contract Audit Agency (DCAA) called for documents that had been compiled by that agency for non-law-enforcement purposes and that the documents were still in the possession of the agency at the time the request was received. Indeed, they were still in the DCAA’s possession on November 18,1986, when the request was denied. The claim that the documents were “compiled” is supported only by a letter stating that the DCAA had been advised by the United States’ Attorney’s Office that the documents were exempt under the law enforcement Exemption and an averment in an affidavit of counsel that the documents were transferred to the FBI’s custody on November 20, 1986, after the Government had invoked the Exemption.

The Court has repeatedly emphasized, what is explicit in the terms of the FOIA, that “the burden is on the agency to sustain its action.” 5 U. S. C. §552(a)(4)(B); see ante, at 152; Department of Justice v. Tax Analysts, 492 U. S. 136, 142, n. 3 (1989); Department of Justice v. Reporters Committee for Freedom of Press, 489 U. S. 749, 755 (1989). The basic policy of the Act “is in favor of disclosure.” NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 220 (1978). As I understand the record in this case, the Government has at most established a request by a prosecutor that the requested documents be kept secret and a naked transfer of otherwise nonexempt documents from a civilian agency to the FBI. Such a transfer is not a compilation. That is what I understand to be the Court of Appeals’ holding, and I am persuaded that it was entirely correct. The Government has not met its burden under the FOIA and there is no reason why it should be given a second opportunity to prove its case.

I respectfully dissent.

Justice Scalia,

with whom Justice Marshall joins, dissenting.

I fear today’s decision confuses more law than it clarifies. From the prior opinions of this Court, I had thought that at least this much about the Freedom of Information Act was clear: its exemptions were to be “narrowly construed.” Department of Justice v. Julian, 486 U. S. 1, 8 (1988); FBI v. Abramson, 456 U. S. 615, 630 (1982); Department of Air Force v. Rose, 425 U. S. 352, 361 (1976); cf. Department of Justice v. Reporters Committee for Freedom of Press, 489 U. S. 749, 773 (1989) (Act mandates “full agency disclosure unless information is exempted under clearly delineated statutory language” (citations and inner quotations omitted)); Federal Open Market Committee v. Merrill, 443 U. S. 340, 351-352 (1979). We use the same language again today, ante, at 152, but demonstrate by our holding that it is a formula to be recited rather than a principle to be followed.

Narrow construction of an exemption means, if anything, construing ambiguous language of the exemption in such fashion that the exemption does not apply. The word “compiled” is ambiguous — not, as the Court suggests (and readily dismisses), because one does not know whether it means “originally compiled” or “ever compiled,” see ante, at 154-155. Rather, it is ambiguous because “compiled” does not always refer simply to “the process of gathering,” or “the assembling,” ante, at 154, but often has the connotation of a more creative activity. When we say that a statesman has “compiled an enviable record of achievement,” or that a baseball pitcher has “compiled a 1.87 earned run average,” we do not mean that those individuals have pulled together papers that show those results, but rather that they have generated or produced those results. Thus, Roget’s Thesaurus of Synonyms and Antonyms includes “compile” in the following listing of synonyms: “compose, constitute, form, make; make up, fill up, build up; weave, construct, fabricate; compile; write, draw; set up (printing); enter into the composition of etc. (be a component).” Roget’s Thesaurus 13 (S. Roget rev. 1972).

If used in this more generative sense, the phrase “records or information compiled for law enforcement purposes” would mean material that the Government has acquired or produced for those purposes — and not material acquired or produced for other reasons, which it later shuffles into a law enforcement file. The former meaning is not only entirely possible; several considerations suggest that it is the preferable one. First of all, the word “record” (unlike the word “file,” which used to be the subject of this provision, see Freedom of Information Act Amendments of 1974, Pub. L. 93-502, § 2(b), 88 Stat. 1563-1564) can refer to a single document containing a single item of information. There is no apparent reason to deprive such an item of Exemption 7 protection simply because at the time of the request it happens to be the only item in the file. It is unnatural, however, to refer to a single item as having been “compiled” in the Court’s sense of “assembled” or “gathered” — though quite natural to refer to it as having been “compiled” in the generative or acquisitive sense-I have described.

Secondly, the regime that the Court’s interpretation establishes lends itself to abuse so readily that it is unlikely to have been intended. The only other documents I am aware of that can go from being available under FOIA to being unavailable, simply on the basis of an agency’s own action, are records containing national defense or foreign policy information. Exemption 1 is inapplicable to records of that description that have not been classified, but it can be rendered applicable, even after the FOIA request has been filed, by the mere act of classification. See, e. g., Goldberg v. United States Department of State, 260 U. S. App. D. C. 205, 211, 818 F. 2d 71, 77 (1987), cert. denied, 485 U. S. 904 (1988). In that context, however, Congress has greatly reduced the possibility of abuse by providing that the classification must be proper under criteria established by Executive order. There is no such check upon sweeping requested material into a “law enforcement” file — which term may include, I might note, not just criminal enforcement but civil and regulatory enforcement as well. See, e. g., Pope v. United States, 599 F. 2d 1383, 1386 (CA5 1979). I suppose a court could disregard such a “compilation” that has been made in bad faith, but it is hard to imagine what bad faith could consist of in this context, given the loose standard of need that will justify opening an investigation, and the loose standard of relevance that will justify including material in the investigatory file. Compare Pratt v. Webster, 218 U. S. App. D. C. 17, 29-30, 673 F. 2d 408, 420-421 (1982) (FBI acts for “‘law enforcement purpose[s]’” when its investigation concerns “a possible security risk or violation of federal law” and has “at least ‘a colorable claim’ of its rationality”), with Williams v. FBI, 730 F. 2d 882, 883 (CA2 1984) (FBI’s investigatory records are exempt from disclosure “whether or not the reviewing judicial tribunal believes there was a sound law enforcement basis for the particular investigation”); cf. United States v. Bisceglia, 420 U. S. 141, 148-151 (1975) (IRS investigative authority includes power to subpoena bank records even in the absence of suspicion that a particular taxpayer has broken the law); Blair v. United States, 250 U. S. 273, 282 (1919) (grand jury subpoena cannot be resisted by raising “questions of propriety or forecasts of the probable result of the investigation, or . . . doubts whether any particular individual will be found properly subject to an accusation of crime”). It is particularly implausible that Congress was creating this potential for abuse in its revision of Exemption 7 at the same time that it was adding the “properly classified” requirement to Exemption 1 in order to eliminate the potential for similar abuse created by our decision in EPA v. Mink, 410 U. S. 73 (1973). The Court’s only response is that “[e]vasional commingling . . . would be prevented” by the requirement that a document cannot be withheld under Exemption 7 unless, if disclosed, it “would effectuate one or more of the six specified harms.” Ante, at 156-157. But that begs the question. Congress did not extend protection to all documents that produced one of the six specified harms, but only to such documents “compiled for law enforcement purposes.” The latter requirement is readily evaded (or illusory) if it requires nothing more than gathering up documents the Government does not wish to disclose, with a plausible law enforcement purpose in mind. That is a hole one can drive a truck through.

But even if the meaning of “compiled” I suggest is not necessarily the preferable one, it is unquestionably a reasonable one; and that creates an ambiguity; and our doctrine of “narrowly construing” FOIA exemptions requires that ambiguity to be resolved in favor of disclosure. The Court asserts that we have “consistently . . . taken a practical approach” to the interpretation of FOIA, by which it means achieving “a workable balance between the interests of the public . . . and the needs of the Government.” Ante, at 157. It seems to me, however, that what constitutes a workable balance is Congress’ decision and not ours; and that the mambiguous provisions of FOIA are so remote from establishing what most people would consider a reasonable “workable balance” that there is no cause to believe such a standard permeates the Act. Consider, for example, FOIA’s disequilibrous disposition with regard to information that “could reasonably be expected to endanger the life or physical safety of any individual” — namely, that such information is not withholdable in all cases, but only if it has been “compiled for law enforcement purposes.” See 5 U. S. C. § 552(b)(7)(F). “Workable balance” is not a workable criterion in the interpretation of this law. In my view, a “practical approach” to FOIA consists of following the clear provisions of its text, and adhering to the rules we have enunciated regarding interpretation of the unclear ones — thereby reducing the volume of litigation, and making it inescapably clear to Congress what changes need to be made. I find today’s decision most impractical, because it leaves the lower courts to guess whether they must follow what we say (exemptions are to be “narrowly construed”) or what we do (exemptions are to be construed to produce a “workable balance”).

I respectfully dissent.

       All the names in the caption of this case — “John Doe Agency” and “John Doe Government Agency,” petitioners, and “John Doe Corporation,” respondent, are pseudonyms. John Doe Agency, however, is the DCAA, and John Doe Government Agency is the Federal Bureau of Investigation. John Doe Corporation is a private corporation; it tells us, Brief for Respondent 1, n. 1, that its identity is revealed in materials filed under seal with the Court of Appeals.
      The Solicitor General’s office states, Brief for Petitioners ii; Tr. of Oral Arg. 26, that the Government has no objection to public disclosure of petitioners’ names. Accordingly, in this opinion we use the real name of each “Agency.” We adhere, however, to the use of respondent’s pseudonym.

        “Vaughn Index” is a term derived from Vaughn v. Rosen, 157 U. S. App. D. C. 340, 484 F. 2d 820 (1973), cert. denied, 415 U. S. 977 (1974). The “Index” usually consists of a detailed affidavit, the purpose of which is to “permit the court system effectively and efficiently to evaluate the factual nature of disputed information.” 157 U. S. App. D. C., at 346, 484 F. 2d, at 826.

       As to this conclusion, see also North v. Walsh, 279 U. S. App. D. C. 373, 382, 881 F. 2d 1088, 1097 (1989).

         See New England Medical Center Hospital v. NLRB, 548 F. 2d 377, 386 (CA1 1976); Gould Inc. v. General Services Administration, 688 F. Supp. 689, 699 (DC 1988); Hatcher v. United States Postal Service, 556 F. Supp. 331 (DC 1982); Fedders Corp. v. FTC, 494 F. Supp. 325, 328 (SDNY), aff’d, 646 F. 2d 560 (CA2 1980); Gregory v. FDIC, 470 F. Supp. 1329, 1333-1334 (DC 1979). See also Crowell & Moring v. Department of Defense. 703 F. Supp. 1004, 1009 (DC 1989).

       There is disagreement between the parties as to how the opinion of the Court of Appeals is to be read. Petitioners state that the Second Circuit unequivocally held that a document must originally be compiled for law enforcement purposes in order to qualify for protection under Exemption 7. Brief for Petitioners 15. Respondent disagrees and says: “The court of appeals had no occasion to rule in this case on whether records ‘originally compiled’ for non-law-enforcement purposes but later recompiled for law-enforcement purposes could meet the threshold requirement of Exemption 7.” Brief for Respondent 13-14. Instead, argues respondent, the Court of Appeals merely held that the records in this case were never “compiled” for law enforcement, originally or subsequently, and “no other result was possible based on the facts of this case.” Id., at 14.
      We agree with petitioners. The Court of Appeals stated:
      “In the instant case, the documents requested were generated by [the DCAA] independent of any investigation in the course of its routine monitoring of Corporation’s accounting procedures with regard to Corporation’s defense contracts. The records were compiled in 1978, seven years before the investigation began in 1985. They were thus not ‘compiled for law-enforcement purposes’ and are not exempted by Subsection (b)(7).” 850 F. 2d 105, 108-109 (CA2 1988).
      The court’s use of the word “thus” suggests that it believed a record had to be compiled for law enforcement purposes- from the outset in order to be protected by Exemption 7.

       In the instant case, it is not clear when compilation took place. The record does disclose that the documents were transferred from the DCAA to the FBI shortly after the DCAA denied the FOIA request. The timing of the transfer, however, was not stressed by the Court of Appeals or treated by that court as dispositive. Instead, as noted above, the Court of Appeals ruled that Exemption 7 was not available because the documents were obtained originally for non-law-enforcement purposes.
      While we leave to the lower courts the determination whether these documents were “compiled for law enforcement purposes” when the Government invoked Exemption 7, we do note that the pendency of the grand jury investigation serves to negate any inference that the chronology of this case raises a question about the bona fides of the Government’s claim that any compilation was not made solely in order to defeat the FOIA request. See Goldberg v. United States Department of State, 260 U. S. App. D. C. 205, 211, 818 F. 2d 71, 77 (1987), cert. denied, 485 U. S. 904 (1988); Miller v. United States Department of State, 779 F. 2d 1378, 1388 (CA8 1985).

       The cases were Weisberg v. United States Department of Justice, 160 U. S. App. D. C. 71, 489 F. 2d 1195 (1973), cert. denied, 416 U. S. 993 (1974); Aspin v. Department of Defense, 160 U. S. App. D. C. 231, 491 F. 2d 24 (1973); Ditlow v. Brinegar, 161 U. S. App. D. C. 154, 494 F. 2d 1073 (1974); and Center for National Policy Review on Race and Urban Issues v. Weinberger, 163 U. S. App. D. C. 368, 502 F. 2d 370 (1974).

        General Dynamics Corp. v. Department of Army, Civ. Action No. 86-522-FFF (CD Cal.), filed January 9,1986. See Washington Post, June 23, 1987, p. Al, col. 1; N. Y. Times, June 23, 1987, p. Al, col. 3; Washington Post, June 24, 1987, p. A24, col. 1 (editorial: “It is hard to understand how this case was brought in the first place”).

      The Government also submitted a declaration of an Assistant United States Attorney in response to the Corporation’s FOIA action. However, that declaration, which states that the requested documents were compiled by DCAA, also states incorrectly that they had been transferred to the FBI prior to the original FOIA request. App. 61.


source: Caselaw Access Project

author: Justice Kennedy Justice Scalia,

license: Public Domain

text:
    HOFFMANN-LA ROCHE INC. v. SPERLING et al.
    No. 88-1203.
    Argued October 2, 1989
    Decided December 11, 1989

      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. 174.

      John A. Ridley argued the cause for petitioner. With him on the briefs were Richard S. Zackin and Harold F. Board-man, Jr.

      Leonard N. Flamm argued the cause for respondents. With him on the brief was Ben H. Becker.

        Robert E. Williams, Douglas S. McDowell, and Katrina Grider filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the Equal Employment Opportunity Commission by Solicitor General Starr, Deputy Solicitor General Shapiro, Stephen L. Nightingale, Charles A. Shanor, Gwendolyn Young Reams, Vella M. Fink, and Gale Barron Black; and for the American Association of Retired Persons by Christopher G. Macka-ronis and Cathy Ventrell-Monsees.

   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, 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. 1077 (1989).

I

Age discrimination in employment is forbidden by § 4 of the ADEA. 29 U. S. C. §628 (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 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 “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.” 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 filed.

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.

II

As it comes before us, this case presents the narrow question 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 potential plaintiffs. 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 case.

The ADEA, through incorporation of § 216(b), 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 activity.

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 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 Fed. Rule Civ. Proc. 83. It follows that, once an ADEA action is filed, the court has a managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way.

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. 89, 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]e-cause 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 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.

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 can better manage a major ADEA action if it ascertains the contours of the action at the outset. The court is not limited to waiting passively 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 manner.

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 cutoff dates to expedite disposition of the action. In this case, the trial court, as part of its order, set a cutoff 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 cutoff date was reasonable, rather than having to set a cutoff 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 Rule 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 Co., supra, at 99, n. 10. This authority is well settled, as courts traditionally have exercised considerable authority “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U. S. 626, 630-631 (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 Rule 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.

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 is remanded for proceedings consistent with this opinion.

It is so ordered.

Justice Scalia,

with whom The Chief Justice joins, dissenting.

The Court holds that in a § 216(b) action the district court can use its compulsory process to assist counsel for the plaintiff in locating nonparties to the litigation who may have similar claims, and in obtaining their consent to his prosecution of those claims. Because I know of no source of authority for such an extraordinary exercise of the federal judicial power,I dissent.

To read the Court’s opinion, one would think that what is at issue here is nothing but a routine exercise in case management. We are told that the district court has a “managerial responsibility to oversee the joinder of additional parties” in § 216(b) actions, ante, at 171, in order to protect potential plaintiffs and avoid duplicative litigation. We are told that all concerned — plaintiffs, defendants, and the judicial system itself — benefit when the district courts abandon their “pas-siv[e]” stance and instead undertake “early judicial intervention” in the process of identifying people who have a-cause of action and securing their consent to join the litigation. Ante, at 171-172. And we are told that by doing good in this fashion the district courts merely avail themselves of their “considerable authority ‘to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’” Ante, at 172-173 (quoting Link v. Wabash R. Co., 370 U. S. 626, 630-631 (1962)).

The difficulty with sweeping these orders under the rug of “case management” is that they were not at all designed to facilitate the adjudication of any claim before the court. The individuals whom the court helped notify were not, at the time of the orders, part of the case. Section 216(b) provides that “[n]o employee shall be a party plaintiff . . . unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 29 U. S. C. § 216(b) (1982 ed.). It is true, of course, that the orders can be regarded as managing future cases — assuring, to the extent the plaintiffs are willing, that such cases will not be filed in different courts and at different times. But that does not make this court’s handling of the case before it any simpler or more efficient. Surely the judge’s authority to “manage” cases has never before been thought to be more expansive than his authority to adjudicate them — i. e., to extend to cases that have not actually been filed in his court.

The activity approved today is an extraordinary application of the federal judicial power, which is limited by Article III of the Constitution to the adjudication of cases and controversies. See, e. g., Muskrat v. United States, 219 U. S. 346, 353-363 (1911); Gordon v. United States, 117 U. S. 697, 699-706 (1864); United States v. Ferreira, 13 How. 40, 48-52 (1852); Hayburn’s Case, 2 Dali. 409, 410, n. (1792). The meaning of the “case or controversy” requirement was elucidated by Chief Justice Marshall many years ago:

“This clause [Art. Ill, §2, cl.l] enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form, prescribed by law. It then becomes a case. . . Osborn v. Bank of United States, 9 Wheat. 738, 819 (1824) (emphasis added).

The claims facilitated or “managed” here had not yet been submitted to the District Court. No one doubts, of course, that Congress could give an executive agency authority to compel disclosure of prior employees’ names, so that the agency might invite them to join an existing suit or provide their names to counsel. But giving a court authority to take action directed, not to the resolution of the dispute before it, but to the generation and management of other disputes, is, if not unconstitutional, at least so out of accord with age-old practices that surely it should not be assumed unless it has been clearly conferred. Yet one searches the Court’s opinion in vain for any explicit statutory command that federal courts assume this novel role.

First, nothing in § 216(b) itself confers this power. The portion of the statute dealing with collective employee actions provides that employees may sue in a representative capacity for other similarly situated employees who have consented to the representation. The Court characterizes this as an “affirmative permission” for representative actions, from which it derives a “grant [of] the requisite procedural authority to manage the process of joining multiple parties . . . .” Ante, at 170 (emphasis added). Of course the reality of the matter is that it is not an “affirmative permission” for representative actions at all, but rather a limitation upon the affirmative permission for representative actions that already exists in Rule 23 of the Federal Rules of Civil Procedure. (That is to say, were it not for this provision of § 216(b) the representative action could be brought even without the prior consent of similarly situated employees.) But accepting the notion that it is an “affirmative permission” for representative actions, I do not see how that converts into an implied authorization for courts to undertake the unheard-of role of midwifing those actions. I have no doubt that courts possess certain powers over the § 216(b) joinder process, most prominently the power to satisfy themselves that the employees who purportedly become parties are in fact similarly situated to the representative, and have in fact given valid consents to the litigation. That is simply part of the courts’ ever-present duty to inquire into their jurisdiction over claims brought before them. But to reason from that to the existence of a more general “procedural authority to manage the process of joining multiple parties” seems to me fallacious. Nothing in § 216(b) remotely confers the extraordinary authority for a court — either directly or by lending its judicial power to the efforts of a party’s counsel — to search out potential claimants, ensure that they are accurately informed of the litigation, and inquire whether they would like to bring their claims before the court.

The Court seeks to minimize the novelty of the authority it confers by analogizing it to the authority we have earlier acknowledged for district courts to regulate communications between class members and their representatives in Rule 23 class actions, in order to ensure that the former are kept accurately informed of the litigation. See Gulf Oil Co. v. Bernard, 452 U. S. 89, 101 (1981). There is no comparison. In Rule 23 class actions, the members of a class which qualifies for certification are parties to the action and will be bound by the judgment (except for those members of a 23(b)(3) class who elect to opt out). See Fed. Rule Civ. Proc. 23(c)(3). It is not at all extraordinary for courts to supervise and regulate the participation of existing parties in actions that are pending. The Rules specifically provide, for example, that courts may, and in some instances must, notify absent class members of the pendency of the litigation. See Fed. Rule Civ. Proc. 23(c)(2) (requiring court in 23(b)(3) action to notify absent class members that they will be bound by judgment unless they opt out by a certain date); Fed. Rule Civ. Proc. 23(d) (authorizing court in 23(b)(1) or (b)(2) actions to notify class members of pendency of litigation). But what courts may do with respect to absent parties says nothing about what they may do with respect to members of the public at large.

Nor do I agree with the Court that the Federal Rules Of Civil Procedure themselves provide the authority claimed by the District Court. To begin with, authorization from that source may be expressly foreclosed by Rule 82, which provides that the Rules “shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein.” Authority for the courts to use their power for a purpose that neither achieves nor assists the resolution of claims before them appears to violate that prohibition — and the urgings of judicial efficiency are no justification for ignoring it. Cf. Finley v. United States, 490 U. S. 545, 553, n. 6 (1989) (plaintiff in Federal Tort Claims Act action against United States may not, through impleader and joinder provisions of Rules 14 and 20, bring pendent third-party claim over which there is no independent grant of federal jurisdiction); Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365, 370 (1978) (Rule 14’s authorization of third-party claims does not affect the statutory requirement of complete diversity among parties in diversity actions). But even if the Federal Rules could expand judicial power in this fashion, nothing in their language suggests that they have done so. The Court relies upon Rule 16, which, in authorizing pretrial conferences to facilitate the disposition of cases, admonishes the court to address “the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems.” Fed. Rule Civ. Proc. 16(c)(10). It would certainly be strange to confer an unusual new power by simply mentioning that power (as one of the subjects that can be considered) in a provision designed to authorize pretrial conferences. But in any case, the authority to “manage actions” cannot reasonably be read to refer to the management of claims and parties not before the court. This is made entirely clear by the Rule’s catchall provision, which admonishes the court to address “such other matters as may aid in the disposition of the action” Fed. Rule Civ. Proc. 16(c)(H) (emphasis added).

The Court’s repeated reliance upon Rule 83 is so strained that it snaps. Rule 83 states: “In all cases not provided for by rule, the district judges . . . may regulate their practice in any manner not inconsistent with these rules or those of the district in which they act.” The contention here is that this is not a “regulation of practice” pertinent to resolution of the controversy before the court. To respond to that contention by pointing out that the court has been given authority to “regulate practice” is not to respond at all — unless the Court means that “regulating practice” includes impositions upon the parties and their counsel for any purpose whatever.

In addition to being void because of lack of authority to act for a purpose unrelated to adjudication of the case before it, one of the court’s orders, the discovery order, was invalid because the purpose for which it was issued was not a purpose permitted by Rule 26. Rule 26(b), entitled “Discovery Scope and Limits,” provides:

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
“(1) . . . Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reason ably calculated to lead to the discovery of admissible evidence.” (Emphasis added.)

The discovery order here had nothing to do with “the subject matter involved in the pending action,” in the plainly intended sense of constituting, or “lead[ing] to the discovery of,” admissible evidence. To the contrary, it was entered by the District Court solely to “facilitate notice of an ADEA suit to absent class members,” 118 F. R. D. 392, 402 (NJ 1988), and was sustained by the Third Circuit as an exercise of “the authority of the district court in an ADEA action to facilitate joinder of the putative class members,” 862 F. 2d 439, 444 (1988). Discovery for that purpose is simply not authorized. The Court notes casually that it does not “paus[e] to explore alternative bases for the discovery, for instance that the employees might have knowledge of other discoverable matter.” Ante, at 170. I suggest that those are not “alternative bases for the discovery,” but the only permissible bases for discovery. And the speculation that they “might” exist will not support affirmance of an order that was squarely based on another ground. Thus, to reach its disposition the Court not only bends traditionally understood case-or-controversy limitations but invents a discovery power beyond what the Rules confer.

In the end, the only serious justification for today’s decision is that it makes for more efficient and economical adjudication of cases — not more efficient and economical adjudication of the pending case, but of other cases that might later be filed separately on behalf of plaintiffs who would have been perfectly willing to join the present suit instead. I concede that this justification, at least, is entirely valid. The problem is that it is a justification in policy but not in law.

If the benefits of judicial efficiency and economy constitute sufficient warrant for the District Court’s action, then one can imagine numerous areas in which district courts should similarly take on the function of litigation touts —whenever, in fact, they have before them a claim that is similar to claims which other identifiable individuals might possess. The Court’s suggestion that ADEA suits are rendered distinctive by §216(b)’s “explicit statutory direction of a single ADEA action for multiple ADEA plaintiffs,” ante, at 172, is entirely unpersuasive. Section 216 no more directs a single action in ADEA litigation than Rule 20 (permissive joinder) directs a single action in all other litigation. Both provisions permit (in the words of Rule 20) that persons may “join in one action as plaintiffs [who] assert [a] right to relief... in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.” Fed. Rule Civ. Proc. 20(a).

There is more than a little historical irony in the Court’s decision today. “Stirring up litigation” was once exclusively the occupation of disreputable lawyers, roundly condemned by this and all American courts. See, e. g., Peck v. Heurich, 167 U. S. 624, 629-630 (1897); Grinnell v. Railroad Company, 103 U. S. 739, 744 (1881). But in the age of the “case managing” judicial bureaucracy, our perceptions have changed. Seeking out and notifying sleeping potential plaintiffs yields such economies of scale that what was once demeaned as a drain on judicial resources is now praised as a cutting-edge tool of efficient judicial administration. Perhaps it is. But that does not justify our taking it in hand when Congress has not authorized it. Even less does it justify our rush to abandon (not only without compulsion but without invitation) what the Court deprecatingly calls the courts’ “passive” role in determining which claims come before them, but which I regard as one of the natural components of a system in which courts are not inquisitors of justice but arbiters of adversarial claims.

I respectfully dissent.

       Compare Braunstein v. Eastern Photographic Laboratories, Inc., 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), cert. denied, 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, 795 F. 2d 987, 993 (CA Fed. 1986), with McKenna v. Champion International Corp., 747 F. 2d 1211, 1213-1217 (CA8 1984) (disapproving court-authorized notice); Dolan v. Project Construction Corp., 725 F. 2d 1263, 1267-1269 (CA10 1984); Partlow v. Jewish Orphans’ Home of Southern Cal., Inc., 645 F. 2d 757, 758-759 (CA9 1981); and Kinney Shoe Corp. v. Vorhes, 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. S. 466 (1988), as these issues are not implicated in the case before us.