Spriggs & Henderson, Kent Spriggs, Thomas A. Warren, Tallahassee, Fla., for plaintiff-appellant.

Schulte, Roth & Zabel, Robert G. Haile, Jr., Palm Beach, Fla., for third party defendant-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before JOHNSON and ANDERSON, Circuit Judges, and HUNTER*, District Judge.

Arthur Haynes, on behalf of himself and others similarly situated, brought this action against his former employer, The Singer Company, pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 201, et seq. The suit was filed in June of 1979. Under the FLSA, a member of the class who is not individually named in the complaint is not a party to the lawsuit unless he affirmatively "opts in" by filing a written consent with the Court. 29 U.S.C. Sec. 216(b).

In August, 1979, plaintiffs filed a motion seeking certification of "a class of all present and past employees of Singer in the State of Florida." The motion requested that a court-approved notice be sent to "all Singer employees in the State of Florida, notifying them of their right to 'opt in' this litigation."¹ On that date, the only person who had "opted in" was Jarrell, another former employee of the Tallahassee store. On January 4, 1980 the district court held a hearing on this motion, and subsequently entered an order denying it, utilizing this language:

"Without precise guidance from the United States Congress, or controlling precedents in this Circuit, Sec. 216(b) will not authorize notice under the instant facts."

Although denying permission for a mass mailing of the judicially-approved notice, the district court allowed contact with potential plaintiffs in accordance with local practice and allowed one month from the date of the denial for absent parties to file written consents to join in the action. Not one single additional person did so.

The case as between the two plaintiffs and Singer was tried on April 16-17, 1981. Singer was found liable to Haynes and Jarrell for uncompensated overtime. These judgments have been satisfied.

The sole issue on appeal is whether the district court was correct in denying plaintiffs' motion for the circulation of the court-approved notice requested by plaintiffs. The broad general issue briefed and argued poses a question of power. Does a district court have the power to order that notice be given to other potential members of a plaintiff class advising them of their right to "opt in" to a 216(b) action? Two courts of appeal have addressed the issue and reached opposite results. Kinney Shoe Corp. v. Vorhes, 564 F.2d 859 (9th Cir.1977) (notice not permitted), and Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335 (2nd Cir.1978), cert. denied 441 U.S. 944, 99 S. Ct. 2162, 60 L. Ed. 2d 1046 (1979) (notice permitted). This circuit has not been called upon to decide the question.2

If federal courts are empowered to authorize notice under 216(b), that power must be inferred from statutory interpretation. The pertinent language is:

Section 216(b) of Title 29 U.S.C.

"An action to recover the liability prescribed ... 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."

The Fifth Circuit Court of Appeals, in LaChappelle v. Owens-Illinois, Inc., elaborated on the purpose and effect of this statutory provision. There the Court made clear that

[t]here is a fundamental, irreconcilable difference between the class actions described by Rule 23 and that provided by FLSA Sec. 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 the judgment, whether favorable or unfavorable, unless he has 'opted out' of the suit. Under Sec. 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. 513 F.2d 286, 288 (5th Cir.1975).

Defendant seeks to characterize the sending of notice to potential plaintiffs identifying plaintiffs' counsel as attorneys to be consulted about "opting in" as an unethical solicitation of clients. They resist the sending of any notice and would have this court adopt the approach of the Ninth Circuit in Kinney Shoe, which prohibited court-sponsored notice in FLSA cases. Kinney Shoe was followed by the Ninth Circuit in Partlow v. Jewish Orphan House of Southern California, 645 F.2d 757 (9th Cir.1981) and by numerous district courts. McGinley v. Burroughs Corporation, 407 F. Supp. 903, 911 (E.D.Pa.1975); Roshto v. Chrysler Corporation, 67 F.R.D. 28, 29-30 (E.D.La.1975); Baker v. Michie Co., 93 F.R.D. 494 (W.D.Va.1982). Alternatively, Singer correctly argues that even under the rationale adopted by the Second Circuit in Braunstein, and embraced by appellants here, the power to authorize notice must be exercised with discretion and only in appropriate cases.

Appellants insist that we follow the path approved by the Second Circuit in Braunstein.3 There, the Court rejected Kinney Shoe and reasoned:

We believe that Judge Daly took the proper course in authorizing notice to other potential plaintiffs in this action under the Fair Labor Standards Act. Although one might read the Act, by deliberate omission, as not providing for notice, we hold that it makes more sense, in light of the "opt-in" provision of Sec. 16(b) of the Act, 29 U.S.C. Sec. 216(b), to read the statute as permitting, rather than prohibiting, notice in an appropriate case. Although we agree with Judge Choy's view in Kinney that due process does not require notice, we do not agree with his conclusion that there is no power in the district court to order it in a proper case.

By no stretch of the imagination can the foregoing remarks be interpreted as being supportive of appellants' position.

With these cases and principles in mind, we must decide whether the instant case is an appropriate one for a resolution of that conflict. The district judge's opinion must be construed as holding that even if he was empowered to authorize notice, he would not, under the facts of this case, grant plaintiffs' request.

As a preliminary matter, it is not disputed that plaintiffs have the burden of demonstrating a reasonable basis for crediting their assertions that aggrieved individuals existed in the broad class that they proposed. The motion was filed in August of 1979. A hearing was held on January 4, 1980. The decision denying notice was rendered in February of 1980. Our review of that decision must be premised upon the evidence that was before the district court at that time. There was none. The judge had before him only counsel's unsupported assertions that FLSA violations were widespread and that additional plaintiffs would come from other stores.4

At oral argument, counsel for appellants suggested that the trial in 1981 revealed facts that showed there may have been other violations by Singer in the State of Florida. We do not, of course, judge the propriety of a class notification by hindsight. We must consider the evidence which was before the District Judge when he rendered his decision fourteen months earlier. No effort was made by the plaintiffs to amend or renew their notice request after the 1981 trial. We note that appellants in their reply brief have abandoned any claim that the notice should have been circulated throughout the State of Florida, and suggest that this Court now define an area based upon the 1981 trial testimony.CONCLUSION

The District Judge declined to make a choice between the Kinney Shoe and Braunstein approach. He declared in essence that even if he was empowered to authorize notice, the requested authorization would not have been appropriate in this case. There was no evidence before him in February of 1980 that would have justified his doing so. We appreciate the serious disagreement among various federal courts as to whether notice may be given in FLSA section 16(b) cases. But, as the issue applies to the facts of this case, there can be no question about the result. Even using a Braunstein analysis it is entirely clear on this record that no notice should have been certified in this case. Surely, there was no abuse of discretion on the part of the trial court; or to put it another way, we are not left with the impression that any mistake has been committed.5

We affirm the decision of the trial court and find it inappropriate to choose between the various approaches, until there are better reasons to address them than are evident here.

AFFIRMED.