The Supreme Court this morning handed down its decision in Genesis Health Care Corp v. Symczyk, which I’ve written about in the past. Sadly, I’m in the midst of deposition madness right now and don’t have time to write a proper analysis.
Instead, I’m just going to post the entirety of Justice Elena Kagan’s dissent below, in all its snarky brilliant glory. Enjoy!
JUSTICE KAGAN, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join, dissenting.
The Court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it. The issue here, the majority tells us, is whether a “‘collective action’” brought under the Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. §201 et seq., “is justiciable when the lone plaintiff’s individual claim becomes moot.” Ante, at 1. Embedded within that question is a crucial premise: that the individual claim has become moot, as the lower courts held and the majority assumes without deciding. But what if that premise is bogus? What if the plaintiff’s individual claim here never became moot? And what if, in addition, no similar claim for damages will ever become moot? In that event, the majority’s decision—founded as it is on an unfounded assumption—would have no real-world meaning or application. The decision would turn out to be the most one-off of one-offs, explaining only what (the majority thinks) should happen to a proposed collective FLSA action when something that in fact never happens to an individual FLSA claim is errantly thought to have done so. That is the case here, for reasons I’ll describe. Feel free to relegate the majority’s decision to the furthest reaches of your mind: The situation it addresses should never again arise.
Consider the facts of this case, keeping an eye out for anything that would render any part of it moot. Respondent Laura Symczyk brought suit under a provision of the FLSA, 29 U. S. C. §216(b), “on behalf of herself and others similarly situated.” App. 21. Her complaint alleged that her former employer, petitioner Genesis Healthcare Corporation (Genesis), violated the FLSA by treating 30 minutes of every shift as an unpaid meal break, even when an employee worked during that time. Genesis answered the complaint and simultaneously made an offer of judgment under Federal Rule of Civil Procedure 68. That settlement proposal covered only Symczyk’s individual claim, to the tune of $7,500 in lost wages. The offer, according to its terms, would “be deemed withdrawn” if Symczyk did not accept it within 10 days. App. 79. That deadline came and went without any reply. The case then proceeded in the normal fashion, with the District Court setting a schedule for discovery. Pause here for a moment to ask whether you’ve seen anything yet that would moot Symczyk’s individual claim. No? Neither have I.
Nevertheless, Genesis moved to dismiss Symczyk’s suit on the ground that it was moot. The supposed logic went like this: We (i.e., Genesis) offered Symczyk complete relief on her individual damages claim; she “effectively reject[ed] the [o]ffer” by failing to respond; because she did so, she “no longer has a personal stake or legally cognizable interest in the outcome of this action”; accordingly, the court “should dismiss her claims.” Id., at 67. Relying on Circuit precedent, the District Court agreed; it dismissed the case for lack of jurisdiction—without awarding Symczyk any damages or other relief—based solely on the unaccepted offer Genesis had made. See App. to Pet. for Cert. 35 (citing Weiss v. Regal Collections, 385 F. 3d 337, 340 (CA3 2004)). And finally, the Court of Appeals for the Third
Circuit concurred that Genesis’s offer mooted Symczyk’s individual claim (though also holding that she could still proceed with a collective action). See 656 F. 3d 189 (2011).
That thrice-asserted view is wrong, wrong, and wrong again. We made clear earlier this Term that “[a]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Chafin v. Chafin, 568 U. S. ___, ___ (2012) (slip op., at 6) (internal quotation marks omitted). “[A] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Ibid. (internal quotation marks omitted). By those measures, an unaccepted offer of judgment cannot moot a case. When a plaintiff rejects such an offer—however good the terms—
her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief. An unaccepted settlement offer—like any unaccepted contract offer—is a legal nullity, with no operative effect. As every first-year law student learns, the recipient’s rejection of an offer “leaves the matter as if no offer had ever been made.” Minneapolis & St. Louis R. Co. v. Columbus Rolling Mill, 119 U. S. 149, 151 (1886). Nothing in Rule 68 alters that basic principle; to the contrary, that rule specifies that “[a]n unaccepted offer is considered withdrawn.” Fed. Rule Civ. Proc. 68(b). So assuming the case was live before—because the plaintiff had a stake and the court could grant relief—the litigation carries on, unmooted.
For this reason, Symczyk’s individual claim was alive and well when the District Court dismissed her suit. Recall: Genesis made a settlement offer under Rule 68; Symczyk decided not to accept it; after 10 days, it expired and the suit went forward. Symczyk’s individual stake in the lawsuit thus remained what it had always been, and ditto the court’s capacity to grant her relief. After the offer lapsed, just as before, Symczyk possessed an unsatisfied claim, which the court could redress by awarding her damages. As long as that remained true, Symczyk’s claim was not moot, and the District Court could not send her away empty-handed. So a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory. And a note to all other courts of appeals: Don’t try this at home.
To this point, what I have said conflicts with nothing in the Court’s opinion. The majority does not attempt to argue, à la the Third Circuit, that the unaccepted settlement offer mooted Symczyk’s individual damages claim. Instead, the majority hangs its hat on a finding of waiver. See ante, at 5, 11. The majority notes—correctly—that Symczyk accepted the Third Circuit’s rule in her briefs below, and also failed to challenge it in her brief in opposition to the petition for certiorari; she contested it first in her merits brief before this Court. That enables the majority to “assume, without deciding,” the mootness of Symczyk’s individual claim and reach the oh-so-much-more-interesting question relating to her proposed collective action. Ante, at 5.1
But as this Court noted in a similar case, “assum[ing] what the facts will show to be ridiculous” about a predicate question—just because a party did not think to challenge settled Circuit precedent—runs “a risk that ought to be avoided.” Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 382 (1995). The question Symczyk now raises (“Did an unaccepted settlement offer moot my individual FLSA claim?”) is logically prior to—and thus inextricably intertwined with—the question the majority rushes to resolve (“If an unaccepted settlement offer mooted Symczyk’s individual FLSA claim, could a court proceed to consider her proposed collective action?”). Indeed, the former is so much part and parcel of the latter that the question Genesis presented for our review—and on which we granted certiorari—actually looks more like Symczyk’s than like the majority’s. Genesis asked: “Whether a case becomes moot . . . when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s claims.” Pet. for Cert. i. Symczyk, of course, would respond “no,” because merely receiving an offer does not moot any claim. The majority’s refusal to consider that obviously correct answer impedes “intelligent resolution of the question presented.” Ohio v. Robinette, 519 U. S. 33, 38 (1996) (internal quotation marks omitted). By taking a fallacy as its premise, the majority ensures it will reach the wrong decision.
Still, you might think, the majority’s approach has at least this benefit: In a future FLSA case, when an individual claim for damages in fact becomes moot, a court will know what to do with the collective allegations. But no, even that much cannot be said for the majority’s opinion. That is because the individual claims in such cases will never become moot, and a court will therefore never need to reach the issue the majority resolves. The majority’s decision is fit for nothing: Aside from getting this case wrong, it serves only to address a make-believe problem.
To see why, consider how a collective FLSA action seeking damages unfolds. A plaintiff (just like Symczyk, but let us now call her Smith, to highlight her typicality) sues under §216(b) on behalf of both herself and others. To determine whether Smith can serve as a representative party, the court considers whether the workplace policy her suit challenges has similarly affected other employees. If it has, the court supervises their discovery and notification and then “oversee[s] the joinder” of any who want Smith to represent them. Hoffman La-Roche Inc. v. Sperling, 493 U. S. 165, 171 (1989). During that period, as
the majority observes, the class has no “independent legal status.” Ante, at 7. At the same time, Smith’s own claim is in perfect health. Because it is a damages claim for past conduct, the employer cannot extinguish it by adopting new employment practices. Indeed, the claim would survive even Smith’s own demise, belonging then to her estate. Smith’s individual claim, in short, is not going away on its own; it can easily wait out the time involved in assembling a collective action. Accord, ante, at 9 (“[A] claim for damages cannot evade review; it remains live until it is settled [or] judicially resolved”).
Now introduce a settlement offer into the picture: Assume that before the court finally decides whether to permit a collective action, the defendant proposes to pay Smith the value of her individual claim in exchange for her abandonment of the entire litigation. If Smith agrees,of course, all is over; like any plaintiff, she can assent to a settlement ending her suit. But assuming Smith does not agree, because she wishes to proceed on behalf of other employees, could the offer ever succeed in mooting her case? I have already shown that it cannot do so in the circumstances here, where the defendant makes an offer, the plaintiff declines it, and nothing else occurs: On those facts, Smith’s claim is as it ever was, and the lawsuit continues onward. But suppose the defendant additionally requests that the court enter judgment in Smith’s favor—though over her objection—for the amount offered to satisfy her individual claim. Could a court approve that motion and then declare the case over on the ground that Smith has no further stake in it? That course would be less preposterous than what the court did here; at least Smith, unlike Symczyk, would get some money. But it would be impermissible as well.
For starters, Rule 68 precludes a court from imposing judgment for a plaintiff like Smith based on an unaccepted settlement offer made pursuant to its terms. The text of the Rule contemplates that a court will enter judgment only when a plaintiff accepts an offer. See Rule 68(a) (“If. . . the [plaintiff] serves written notice accepting the offer, either party may then file the offer and notice of acceptance plus proof of service. The clerk must then enter judgment”). And the Rule prohibits a court from considering an unaccepted offer for any purpose other than allocating litigation costs—including for the purpose of entering judgment for either party. See Rule 68(b) (“Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs”). That injunction accords with Rule 68’s exclusive purpose: to promote voluntary cessation of litigation by imposing costs on plaintiffs who spurn certain settlement offers. See Marek v. Chesny, 473 U. S. 1, 5 (1985). The Rule provides no appropriate mechanism for a court to terminate a lawsuit without the plaintiff’s consent.
Nor does a court have inherent authority to enter an unwanted judgment for Smith on her individual claim, in service of wiping out her proposed collective action. To be sure, a court has discretion to halt a lawsuit by entering judgment for the plaintiff when the defendant unconditionally surrenders and only the plaintiff’s obstinacy or madness prevents her from accepting total victory. But the court may not take that tack when the supposed capitulation in fact fails to give the plaintiff all the law authorizes and she has sought. And a judgment satisfying an individual claim does not give a plaintiff like Smith, exercising her right to sue on behalf of other employees, “all that [she] has . . . requested in the complaint (i.e., relief for the class).” Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 341 (1980) (Rehnquist, J., concurring).No more in a collective action brought under the FLSA than in any other class action may a court, prior to certification eliminate the entire suit by acceding to a defendant’s proposal to make only the named plaintiff whole.That course would short-circuit a collective action before it could begin, and thereby frustrate Congress’s decision to give FLSA plaintiffs “the opportunity to proceed collectively.” Hoffman La-Roche, 493 U. S., at 170; see Roper, 445 U. S., at 339. It is our plaintiff Smith’s choice, and not the defendant’s or the court’s, whether satisfaction of her individual claim, without redress of her viable classwide allegations, is sufficient to bring the lawsuit to an end. And so, the question the majority answers should never arise—which means the analysis the majority propounds should never apply.2 The majority assumes that an individual claim has become moot, and then asks whether collective allegations can still proceed by virtue of the relation-back doctrine. But that doctrine comes into play only when a court confronts a jurisdictional gap—an individual claim becoming moot before the court can certify a representative action. And in an FLSA case for damages,that gap cannot occur (unless a court, as here, mistakenly creates it): As I have explained, the plaintiff’s individual claim remains live all the way through the court’s decision whether to join new plaintiffs to the litigation. Without any gap to span, the relation-back doctrine has no relevance. Neither, then, does the majority’s decision.3
The Court could have resolved this case (along with a Circuit split, see ante, at 5, and n. 3) by correcting the Third Circuit’s view that an unaccepted settlement offer mooted Symczyk’s individual claim. Instead, the Court chose to address an issue predicated on that misconception, in a way that aids no one, now or ever. I respectfully dissent.
The majority also justifies this approach on the ground that
Symczyk did not file a cross-petition for certiorari objecting to the Third
Circuit’s decision. But that is because Symczyk got the judgment she
wanted in the Third Circuit. As the majority agrees, a cross-petition is
necessary only when a respondent seeks to “alter” the judgment below.
Ante, at 5; see E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E.
Hartnett, Supreme Court Practice 490 (9th ed. 2007) (“[A] party satis
fied with the action of a lower court should not have to appeal from it in
order to defend a judgment in his or her favor on any ground”). Here,
the Third Circuit reversed the District Court’s dismissal of Sym
czyk’s FLSA suit, ruling that her collective action could go forward
even though her individual claim was moot; accordingly, accepting
Symczyk’s new argument would lead not to modifying the appellate
judgment, but to affirming it on a different ground. In any event, we
have never held that the cross-petition requirement is jurisdictional.
See id., at 493–494. We can choose to excuse the absence of a cross
petition for the same reasons, discussed next, that we can consider an
issue not raised below. See Vance v. Terrazas, 444 U. S. 252, 258–259,
n. 5 (1980).
For similarly questionable deployment of this Court’s adjudicatory
authority, see Comcast Corp. v. Behrend, 569 U. S. ___, ___ (2013) (joint
opinion of GINSBURG and BREYER, JJ.) (observing in dissent that “[t]he
Court’s ruling is good for this day and case only”).
And that is a good thing, because (just as a by-the-by) the majority’s
opinion also misconceives our decisions applying the relation-back
doctrine. The majority painstakingly distinguishes those decisions on
their individual facts, but misses their common take-away. In each, we
confronted a situation where a would-be class representative’s individ
ual claim became moot before a court could make a final decision about
the propriety of class litigation; and in each, we used relation-back
principles to preserve the court’s ability to adjudicate on the merits
the classwide questions the representative raised. See, e.g., County of
Riverside v. McLaughlin, 500 U. S. 44, 51–52 (1991); Swisher v. Brady,
438 U. S. 204, 213–214, n. 11 (1978); Gerstein v. Pugh, 420 U. S. 103,
110–111, n. 11 (1975); see also United States Parole Comm’n v.
Geraghty, 445 U. S. 388, 399, 404, n. 11 (1980); Sosna v. Iowa, 419 U. S.
393, 402, n. 11 (1975). If, counter-factually, Symczyk’s individual claim
became moot when she failed to accept Genesis’s offer of judgment, her
case would fit comfortably alongside those precedents. Because the
District Court would not then have had “enough time to rule on a
motion” for certification under §216(b), “the ‘relation back’ doctrine
[would be] properly invoked to preserve the merits of the case for
judicial resolution.” McLaughlin, 500 U. S., at 52 (internal quotation