Conservative Supremes thwart fair wages claim, and Kagan lets 'em have it.

[ProSense]

Conservative Supremes thwart fair wages claim, and Kagan lets 'em have it.

by Adam B

Yet again, in a 5-4 decision, the Supreme Court of the United States has closed the courthouse doors to an individual seeking redress against a corporation. A registered nurse had sued the Northeast Philly nursing home where she worked because she was being docked pay for lunchtime hours during which she was in fact working, and the Court has barred her claim on behalf of herself and her coworkers because she refused to accept a settlement offer from her employer for the full extent of her personal claim (including attorney's fees) because it only covered her, and not others similarly situated.

There's a lot of procedural mumbo-jumbo involved in today's Supreme Court decision in Genesis HealthCare Corp. v. Symczyk, so I'll try to make things as simple (and easy to pronounce: it's sim-chick) as possible so we can leap ahead to an absolutely badass dissent by Justice Kagan.

Justice Thomas' decision for the majority (the five you'd expect) relies on the fact that while Laurie Symczyk pleaded on behalf of herself and others similarly situated, no such person had formally entered parallel FLSA claims in this case, such that once Symczyk received an official offer covering the entirety of her claims it mooted any "case or controversy" which had existed:

In the absence of any claimant’s opting in, respondent’s suit became moot when her individual claim became moot, because she lacked any personal interest in representing others in this action. While the FLSA authorizes an aggrieved employee to bring an action on behalf of himself and “other employees similarly situated,” the mere presence of collective-action allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied.

Yeah, yeah, whatever. Now read the Justice Kagan dissent. There's something rhetorically here which reminded one friend from law school of Judge Richard Posner, or Prof. Richard Epstein, in terms of possessing and sustaining a tone of this is easy, and you people are idiots for thinking otherwise. Shame on you. From the top, then:

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) “is justiciable when the lone plaintiff’s individual claim becomes moot.” 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.

Let's continue, shall we?

... 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. 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.” ...

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.”

...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.

(Or as Josiah Bartlet once said, "Just be wrong. Just stand there in your wrongness and be wrong and get used to it.&quot Is there more? Yes, there's more:

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.” 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.” 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.

(She explains why. It takes a few paragraphs. Trust me, she's right, but go read the opinion if you doubt me. Or her.) Big finish!

And so, the question the majority answers should never arise—which means the analysis the majority propounds should never apply. 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.

The Court could have resolved this case .... 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.

Would you like to know more? SCOTUSblog has more than you can possibly imagine.

http://www.dailykos.com/story/2013/04/16/1202200/-Conservative-Supremes-thwart-fair-wages-claim-and-Kagan-lets-em-have-it

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[Initech]

1. The government no longer represents us. It's of, by, and for the rich.

[1StrongBlackMan]

2. Saw this earlier ...

two thoughts came to mind ...

First, the dissent is exactly correct ... if a Plaintiff's individual claim can be extinguished by extending a settlement offer, with a deadline that expires prior to the commencement of the collective action claim, what's to stop the employer from extending a ridiculously low-ball offer and discouraging (paying off or intimidating) others from signing on the collective action the day after the settlement offer expires ... then, the employer pays pretty much nothing but a couple $1,000 in fines.

My second thought ... I'm betting the Plaintiff's attorney all but promised others would sign on and the case would go off ... but in the back of the Plaintiff's attorney's mind was: "Let's see ... 40% of $7,500 or 40% of $7,500 times the number of affected employees that could sign on ..." I hope his/her malpractice insurance is paid up AND he/she was smart enough to have the "Believe me ... We're gonna win this" conversation in his/her office, with no one around.

[Jim Lane]

7. The employer has to be a little cagier than what you imply, but not much.

The tactic of "extending a ridiculously low-ball offer" wouldn't bring an employer within this decision. In that case it would be clear that the named plaintiff's claim wasn't moot. What was necessary to the majority's position was that the offer to Symczyk was for the full amount of the lost wages that she sought.

The problem is that an employer who makes such an offer to the named plaintiff can, still at relatively low cost, torpedo the whole suit. As Lyle Denniston wrote in SCOTUSblog, "Opinion recap: A 'pick off' strategy works".

As a practical matter, such cases are often brought by one person or a few people who is/are ticked off enough and pugnacious enough to put up with the hassle of bringing the suit. They slug it out, sometimes for years, and then the outcome benefits a lot of other people (too complacent or too discouraged or too whatever to bring suit for themselves). If the defendant can pick off those few leaders, then the defendant can indeed end the case for a relatively small amount.

[1StrongBlackMan]

8. Good Point ...

I hadn't read the decision ... Just made a cynical remark, thinking along the lines of your third paragraph.

[JDPriestly]

3. This is the second time that I have been extremely impressed with Kagan.

Her questions in the oral argument of the Prop. 8 case also impressed me.

She is a very smart woman. Very smart. Maybe the most intelligent member of the Court, at this time. I haven't seen enough of her to have made up my mind for sure, but I am really impressed.

[Chan790]

4. Me, as well.

I am consistently critical of the post-Berger courts as being composed of intellectual lightweights and devoid of the great legal theorists and minds of our age. I admit I may have underestimated Kagan in that respect...it's very easy to forget she was Dean of Harvard Law and clerked for Thurgood Marshall, arguably the last great legal mind on SCOTUS...until she lays the smack down.

[ProSense]

5. Kick! n/t

[byeya]

6. Only one mistake: The next to last word "respectfully" - The Filthy Five deserve no respect.