EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. GILBARCO, INC., Appellee

K. K. HALL, Circuit Judge:

The primary question on this appeal is whether an age discrimination suit brought by the Secretary of Labor under the authority of § 17 of the Fair Labor Standards Act is effectively commenced, for statute of limitations purposes, with the filing of a complaint which does not name the aggrieved individuals. We believe that a § 17 action is commenced for all purposes when the complaint is filed, regardless of whether the individuals are named in it. Accordingly, we vacate the order of the district court granting summary judgment for defendant on the Secretary’s § 17 claim, and remand this case for further proceedings.

I.

In enacting the Age Discrimination in Employment Act of 1967 [ADEA], 29 U.S.C. §§ 621-634, Congress created an enforcement scheme which is “something of a hybrid”, Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 869, 55 L.Ed.2d 40 (1978), combining features of several other federal statutes.¹ Judicial enforcement of the Act’s provisions is generally governed by the enforcement provisions of the Fair Labor Standards Act [FLSA], with some modifications:

Sec. 7.(b) The provisions of this Act shall be enforced in accordance with the powers, remedies, and procedures provided in sections 11(b), 16 (except for subsection (a) thereof), and 17 of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. §§ 211(b), 216, 217), and subsection (c) of this section. . . . Amounts owing to a person as a result of a violation of this Act shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 16 and 17 of the Fair Labor Standards Act . . . : Provided, That liquidated damages shall be payable only in cases of willful violations of this Act. In any action brought to enforce this Act the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this Act, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.

(c) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this Act: Provided, That the right of any person to bring such action shall terminate upon the commencement, of an action by the Secretary to enforce the right of such employee under this Act. ADEA § 7, 29 U.S.C. § 626.

Two of the incorporated Fair Labor Standards Act sections, FLSA §§ 16(c) and 17, apply to actions brought by the Secretary of Labor on behalf of aggrieved individuals. Section 17 authorizes the Secretary to seek injunctive relief to restrain violations of the Act, including:

the restraint of any withholding of payment of minimum wages or overtime compensation found by the court to be due to employees under this chapter (except sums which employees are barred from recovering, at the time of the commencement of the action to restrain the violations, by virtue of [the applicable statute of limitations]).

FLSA § 17, 29 U.S.C. § 217 (emphasis supplied). Section 16(c) also authorizes the Secretary to sue on behalf of individual employees to recover sums due them, and under this section an employee may be awarded “an additional equal amount as liquidated damages.” However, an action under § 16(c) is subject to a unique definition of “commencement”:

. In determining when an action is commenced by the Secretary of Labor under this subsection for the purposes of the statutes of limitations . . . , it shall be considered to be commenced in the case of any individual claimant on the date when the complaint is filed if he is specifically named as a party plaintiff in the complaint, or if his name did not so appear, on the subsequent date on which his name is added as a party plaintiff in such action. FLSA § 16(c), 29 U.S.C. § 216(e).

The primary question in this case is whether this special definition of commencement of an action, or some variation of it, applies in an age discrimination case seeking back pay for individuals, brought by the Secretary under § 17 alone.

II.

The complaint in this action was filed by the Secretary on February 11, 1976, and sought broad injunctive relief, including both restraint of future violations of the ADEA and the “restraint of any withholding” of sums due to individuals as a result of past violations, all as authorized under FLSA § 17. The complaint also sought liquidated damages, available only under

FLSA § 16(c), for the victims of past discrimination. The alleged victims were not named in the complaint or in any amendments to it, although they were identified during the following months through the use of discovery and pre-trial stipulations. On June 30, 1976, defendant moved for dismissal or summary judgment, contending that the filing of the complaint, without naming the individuals involved, had not served to “commence” the action, and that the statute of limitations on all the individuals’ claims had since run.²

The district court granted the motion, upon the recommendation of a magistrate, and entered summary judgment for defendant on all claims, including those for prospective injunctive relief. The court reasoned that, by specifying that the ADEA shall be enforced in accordance with the provisions of “sections 11(b), 16 . . . , and 17 of the Fair Labor Standards Act” (emphasis supplied), Congress intended that the Secretary comply with the requirements of both § 16 and § 17 in any suit brought under the ADEA. Applying the special § 16(c) definition of “commencement” to the Secretary’s complaint, the court concluded that the action had never been properly commenced.

We disagree. The “selectivity that Congress exhibited in incorporating provisions and in modifying certain FLSA practices strongly suggests that but for those changes Congress expressly made, it intended to incorporate fully the remedies and procedures of the FLSA.” Lorillard v. Pons, supra, 98 S.Ct. at 871 (emphasis supplied). We are totally unpersuaded that, by utilizing the connective word “and” in the listing of FLSA sections which it incorporated into the ADEA, Congress “expressly” manifested an intent to meld the historically distinct FLSA remedies into one conglomerate action. Further, we are convinced that the usual definition of “commencement”, that is, the filing of a complaint, see F.R.C.P. 3, applies to an action brought by the Secretary under § 17.

III.

In enacting the ADEA in 1967, Congress was well aware of the judicial interpretations which had been given to the FLSA sections it was adopting, and is presumed to have incorporated those interpretations as well. Lorillard v. Pons, supra, 98 S.Ct. at 870. The pre-1967 interpretations of §§ 16 and 17 were uniform in holding that the two sections provided distinct and alternative remedies, and that the peculiar requirements of § 16 had no application to an action brought under § 17.³ In particular, at least two courts had held prior to 1967 that a § 17 complaint did not have to name the individuals on whose behalf the Secretary was proceeding in order to effectively commence the action for statute of limitations purposes. Wirtz v. Novinger’s, Inc., 261 F.Supp. 698 (M.D.Pa.1966); Wirtz v. W. G. Lockhart Construction Co., 230 F.Supp. 823 (N.D.Ohio 1964). See also Wirtz v. Harper Buffing Machine Co., 280 F.Supp. 376 (D.Conn.1968), aff’d as modified, 18 Wage & Hour Cas. 894 (2d Cir. 1968). We know of no court, before or after 1967, which has ever held to the contrary.

“Commencement of the action” is a term of art with an established common meaning, i.e., the filing of a complaint. “ ‘[WJhere words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country, they are presumed to have been used in that sense unless the context compels to the contrary’ ”. Lorillard v. Pons, supra, 98 S.Ct. at 871 (citations omitted).

The detailed definition of “commencement” provided in FLSA § 16(c), which is limited by its own terms to an action brought “under this subsection”, indicates that where Congress wished to deviate from the common meaning of the term, it did so explicitly. Section 16 is the only provision applicable to the ADEA which distinguishes between the filing of a complaint and the commencement of an action. We find nothing in the language or histories of the ADEA and FLSA to indicate that, in employing this common term in other statutory sections without amplification, Congress intended to vest it with an extraordinary meaning. Cf. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758, 99 S.Ct. 2066, 2073, 60 L.Ed.2d 609 (1979) (under ADEA § 14(b), 29 U.S.C. § 633(b), “commencement” means the filing of a complaint). We therefore hold that an age discrimination action brought by the Secretary of Labor under the authority of FLSA § 17 is effectively commenced for all purposes with the filing of the complaint, regardless of whether the complaint names the aggrieved individuals.

We recognize that, where the Secretary commences an action by filing a complaint which does not identify the individuals whose rights he seeks to enforce, there. may be some uncertainty as to whether a particular employee’s right to bring a private action has been terminated.⁴ However, this potential for uncertainty also exists in FLSA actions,⁵ and the paucity of cases dealing with the issue indicates that the problem rarely arises. Any uncertainty which does exist can be eliminated, as it was in this case and has been in FLSA cases, through the use of discovery procedures. See Hodgson v. Brookhaven General Hospital, 436 F.2d 719, 722 (5th Cir. 1970); James v. General Tire & Rubber Co., 63 LC ¶ 32,373 (E.D.Va.1970).

IV.

Finally, the district court also held that, by including a claim for liquidated damages in his prayer for relief, the Secretary had elected to proceed under both § 16(c) and § 17, and that the § 16 provisions were therefore applicable to the entire action. The Secretary contends that the action was brought under § 17 alone, and should be judged solely according to the requirements of that section.

We do not believe that the request for liquidated damages infected the entire action with the special requirements of § 16(c). However, liquidated damages are not available in a suit by the Secretary under § 17. See S.Rep.No.145, 87th Cong., 1st Sess., reprinted in 1961 U.S.Code Cong. & Admin.News, pp. 1620, 1659. Therefore, in view of the Secretary’s insistence that the action was brought under § 17 only, we believe that the claim for liquidated damages should be denied.⁶

V.

We affirm the judgment of the district court only insofar as it grants judgment for defendant on the liquidated damages claim. Since the claims cognizable in a § 17 action, including those for employment, reinstatement and back pay, were not time barred when the Secretary’s complaint was filed, we vacate the district court’s grant of summary judgment on these claims, and remand for further proceedings.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

1 . The statutes of limitations contained in § 6 of the Portal-to-Portal Pay Act of 1947, 29 U.S.C. § 255, apply to ADEA actions, and establish a three-year limitation period for willful violations and a two-year period for other violations. The ADEA includes some provisions patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq., including a requirement that the Secretary attempt conciliation before litigation is begun, and a provision mandating utilization of available state remedies.

See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979).

Although litigation under the ADEA is generally governed by provisions of the Fair Labor Standards Act, Congress made several express modifications in incorporating the FLSA enforcement provisions. The criminal sanctions applicable to willful violations of the FLSA, § 16(a), 29 U.S.C. § 216(a), for example, do not apply to ADEA violations. ADEA § 7(b), 29 U.S.C. § 626(b). However, the ADEA’s provisions for civil actions are significantly broader than those of the FLSA. The remedy in FLSA actions brought by the Secretary or by individuals under § 16 of that Act is limited to the legal relief of an award of unpaid wages due plus an equal sum as “liquidated damages.” Injunctive relief under the FLSA may be obtained only in an action brought under § 17, and only the Secretary is authorized to bring such an action. FLSA § 11(a), 29 U.S.C. § 211(a). Under the ADEA, the court may grant legal or equitable relief in any action brought to enforce the statute’s provisions. ADEA § 7, 29 U.S.C. § 626.

The explicit manner in which Congress modified existing statutory provisions which were incorporated into the ADEA indicates that the courts should not infer additional modifications. Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 871, 55 L.Ed. 40 (1978).

2 . Of the twenty-five individuals involved in this case, twenty-one had been discharged by defendant between February 28, 1973, and June 1, 1973. One of these was subsequently rehired but was discharged again on January 24, 1975. Of the remaining four employees, one is still employed and the others were discharged on July 1, 1973, March 22, 1974, and February 28, 1975. The complaint alleges that the discharges were willful violations of the ADEA, to which a three-year statute of limitations applies. 29 U.S.C. § 255.

3 . In addition to the unusual definition of commencement, which still applies to § 16(c) actions, the 1967 version of § 16(c) contained several restrictions which were deleted in 1974 amendments to the FLSA. These included provisions making the written request of employees a prerequisite to a § 16(c) action by the Secretary, and forbidding the Secretary from bringing suit “in any case involving an issue of law which has not been settled finally by the courts.” The courts have consistently rejected attempts by defendants in FLSA cases to apply these § 16(c) limitations to actions brought by the Secretary under § 17. E. g., Hodgson v. Wheaton Glass Co., 446 F.2d 527 (3d Cir. 1971); Hodgson v. Ewing, 451 F.2d 526 (5th Cir. 1971); Hodgson v. American Can Co., 440 F.2d 916 (8th Cir. 1971); Shultz v. Mistletoe Express Service, 434 F.2d 1267 (10th Cir. 1970). The view that §§ 16(c) and 17 provided totally distinct remedies was well established by the time the ADEA was. enacted. Wirtz v. Jones, 340 F.2d 901 (5th Cir. 1965), Wirtz v. Novinger’s, Inc., 261 F.Supp. 698 (M.D.Pa.1966); Wirtz v. English, 245 F.Supp. 628 (D.Kan. 1965); Wirtz v. Lockhart, 230 F.Supp. 823 (N.D.Ohio 1964); Wirtz v. Wimpy, 48 LC ¶ 31,525 (M.D.Fla.1963); Jones v. American Window Cleaning Co., 210 F.Supp. 921 (E.D.Va.1962).

Further, Congress itself clearly did not intend for the peculiar § 16(c) requirements to apply to § 17 actions by the Secretary. The 1961 amendments to the FLSA, which first authorized the Secretary to collect unpaid wages in a § 17 action, were enacted specifically to allow the Secretary to sue free of the § 16(c) requirement that the employees first request him to do so. S.Rep.No.145, 87th Cong., 1st Sess., reprinted in 1961 U.S.Code Cong. & Admin.News, pp. 1620, 1658.

4 . ADEA § 7(c), 29 U.S.C. § 626(c), provides that an individual’s right to bring a private action “shall terminate upon the commencement of an action by the Secretary to enforce the right of such employee under this Act.”

5 . Section 16(b) and (c) provide that private rights of action under the FLSA terminate “upon the filing of a complaint” under either § 16(c) or § 17 by the Secretary of Labor. The § 16(c) identification requirement does not preclude the Secretary from filing a complaint which does not name the individuals, but merely provides that the statute of limitations will continue to run until the employees are named.

6 . We express no opinion as to whether the eventual identification of the employees through discovery procedures would have been sufficient to meet the § 16(c) requirements. See Prickett v. Consolidated Liquidating Corp., 197 F.2d 67 (9th Cir. 1952).