Judicial Sarcasm and Rule 68

Genesis Healthcare Corp. v. Symczyk,  133 S.Ct. 1523 (2013).  Of all the current sitting Justices of the Supreme Court of the United States, Justice Scalia is the one who would normally come to mind when the subject of sarcasm in Supreme Court opinions comes up.  Yesterday, however, Justice Kagan perhaps outdid even him in her dissent in this case. 

A 5-4 majority, in an opinion by Justice Thomas, held that a plaintiff in a collective action under the Fair Labor Standards Act, 29 U.S.C. ß216(b) (“FLSA”), who ignored a Federal Rule of Civil Procedure 68 offer of judgment made by the defense that purported to satisfy her individual claim, and who then conceded that her claim was moot as a result of the Rule 68 offer, had no ability to pursue the collective action because she had no valid personal interest in representing others.  The entire case was therefore moot. 

The linchpin of the Court’s ruling was its decision to assume, based on plaintiff’s concession, that her case was moot.  The Court expressly did not decide the issue of whether, absent that concession, an unaccepted offer of judgment of full individual relief to the named plaintiff moots the entire case.  [Disclosure:  I represented the defense in one of the key cases in this area, Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004), cited by both the majority and the dissent].  The majority also rejected plaintiff’s reliance on class action decisions, stating that “Rule 23 [class] actions are fundamentally different from collective actions under the FLSA.”

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, dissented.  The essence of the dissent was that plaintiff’s case never became moot because the offer of judgment, once it was not accepted, was to “be deemed withdrawn” by virtue of the express terms of Rule 68 itself.  An unaccepted, withdrawn offer did not change or eliminate plaintiff’s continuing interest in the case.  As a result, her case was not moot, and the majority, Justice Kagan asserted, erred in founding its decision on the “bogus” assumption (not a holding by the Court) that the case was moot.

As she narrated the facts, Justice Kagan paused after her first paragraph to address readers directly, saying “Pause here for a moment to ask whether you’ve seen anything yet that would moot Symczyk’s invididual claim.  No?  Neither have I.”  Having completed her recap of the case’s background, and having concluded that “[a]n unaccepted offer [of judgment]– like any unaccepted contract offer– is a legal nullity, with no operative effect,” Justice Kagan addressed “a friendly suggestion to the Third Circuit [the court below]: rethink your mootness-by-unaccepted-offer theory.  And a note to all other courts of appeals:  Don’t try this at home.”  She also criticized the majority for its decision to “assume, without deciding” that plaintiff’s individual claim was moot in order to reach “the oh-so-much-more interesting question relating to her proposed collective action.”  In a footnote, she noted the recent, “similarly questionable deployment of this Court’s adjudicatory authority” in Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013), a class action case where the majority reached out to decide an issue not actually presented, as discussed here.

Justice Kagan summed up by urging readers to “[f]eel free to relegate the majority’s decision to the furthese reaches of your mind:  The situtation it addresses should never happen again….  The majority’s decision is fit for nothing:  Aside from getting this case wrong, it serves only to address a make-believe problem.”  And, to the extent that the majority addressed the relation back doctrine in connection with the mootness issue, Justice Kagan said that “the relation-back doctrine has no relevance.  Neither, then, does the majority’s decision.”  In a parting shot, Justice Kagan appended a footnote, saying “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.”

Whew!  Sarcasm is not normally useful or appropriate in judicial decisions.  Dissents, such as this one or those of Justice Scalia, are more likely to employ sarcasm, as a means of expressing the frustration of the dissenter(s).  But Justice Kagan appears to be correct.  Future plaintiffs will surely decline to concede that their cases are mooted by an unaccepted Rule 68 offer of judgment.  The lower courts will then have to decide the issue that the Court did not reach in this case:  whether an unaccepted offer moots a collective action.  Moreover, since the Court was careful to distinguish class actions from collective actions, the ultimate result on that legal question may or may not be the same in both types of case.