U S Supreme Court Hands Down FLSA Pick Off Opinion Genesis Healthcare Corp. v. SymczykBy Sunshine Fellows On April 29, 2013
On April 16, 2013, the United States Supreme Court decided Genesis Healthcare Corp. v. Symcyzk, a case in which Gary F. Lynch served as Counsel of Record on behalf of Respondent Laura Symczyk. In a 5-4 decision, the Court held that a collective action under the Fair Labor Standards Act (“FLSA”) is not justiciable and may not proceed when the lone plaintiff’s individual claim becomes moot.
The FLSA authorizes a private cause of action against employers violating certain FLSA provisions. 29 U.S.C. § 216(b). Employees may sue on their own behalf and on behalf of “other employees similarly situated.” Id. Respondent, a registered nurse, brought such a “collective action,” alleging that petitioners, her former employers, violated the FLSA by deducting a 30-minute unpaid meal break from each shift even if the employee worked during that time. Petitioners made Respondent an offer of judgment under Federal Rule of Civil Procedure 68: $7,500 for alleged unpaid wages and reasonable attorneys’ fees, costs and expenses. When Respondent failed to respond to the offer, Petitioners moved to dismiss for lack of subject-matter jurisdiction, arguing that their offer of complete relief rendered Respondent’s FLSA claim moot. Noting that no other employees had yet joined Respondent’s suit, the district court agreed with Petitioners and dismissed the suit. The Third Circuit reversed. Although recognizing that Petitioners had offered complete relief, thus mooting the individual FLSA claim, the appellate court held that using strategic Rule 68 offers to “pick off” aggrieved employee-plaintiffs would frustrate the FLSA’s collective-action process. The Third Circuit therefore remanded for the Respondent to seek conditional certification, which, if successful, would relate back to the date of the Complaint.
The Supreme Court reversed. The Court refused to decide whether the unaccepted Rule 68 offer actually mooted Respondent’s individual FLSA claim, instead simply noting that the two lower courts agreed that it did and that Respondent waived the argument. The only question, then, was whether Respondent’s suit remained justiciable based on the collective-action allegations she raised. The Court held that it did not because “the mere presence of [such] allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied.” Because Respondent’s claim was mooted before any other employees had joined, she had no “personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness.” In applying these “well-settled mootness principles,” the Court explicitly distinguished its Rule 23 precedent – on which Respondent had relied – as legally and factually inapposite. Although the Rule 68 offer prevented additional claimants from seeking relief in Respondent’s suit, the Court reasoned, those claimants “are no less able to have their claims settled or adjudicated following Respondent’s suit than if her suit had never been filed at all.”
Justice Thomas delivered the opinion for the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, and Alito joined. Justices Ginsburg, Breyer, and Sotomayor, led by Justice Kagan, delivered a spirited dissent both as to what the majority did and did not decide. The dissent did not find the distinctions between collective and class actions sufficient to warrant limiting the relation-back doctrine to traditional class actions. Indeed, to do so, the dissent explained, would allow defendants to short-circuit collective actions and frustrate the objectives of the FLSA. The dissent also disagreed with the majority’s choice to evade ruling on the impact of an unaccepted Rule 68 offer of judgment. It considered this issue to be “inextricably intertwined” with the issue the majority did address, making both appropriate for the court’s consideration.
Justice Kagan focused her dissent on arguing that an unaccepted Rule 68 offer could never moot an individual claim. She relied upon traditional contract principles, arguing that an unaccepted offer of judgment, like any withdrawn offer, is a “legal nullity” that cannot moot a case. She also grounded the dissent in Rule 68 itself, stressing that it permits entry of judgment, thus mooting the plaintiff’s claim, only when the offer is accepted. If the offer is not accepted, the offer is deemed withdrawn, so a live controversy does – and always will in those circumstances – remain. The majority, as noted above, did not weigh in on this latter question, i.e., whether a case becomes moot after an unaccepted Rule 68 offer of full relief. Should the issue be brought before the Court, one can only speculate as to how a majority of the court would resolve it.
“We are disappointed in the Court’s decision, but we see this as an extremely narrow opinion that will have little effect on future FLSA cases,” said Gary F. Lynch of CARLSON LYNCH LTD., who represented Symczyk. “Ironically, the Court closed the courthouse doors in front of Laura Symczyk on mootness grounds, despite the fact that she has never been and now never will be compensated for her stolen wages,” Lynch said. “This procedural oddity, while fundamentally unfair to Ms. Symczyk, limits the application of this opinion.”
As one commentator observed: “This 5-4 decision is best described by Justice Kagan in her dissenting opinion as ‘wrong, wrong and wrong again.’ A case where a plaintiff never accepted an employer-defendant’s offer of judgment and the majority concludes not only is her claim ‘moot,’ but anyone who may be similarly situated with a FLSA claim is also ‘moot?’ Furthermore, as Justice Kagan correctly stated, ‘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….That is the case here.’ Justice Kagan (joined by Justices [Ruth Bader] Ginsburg, [Stephen] Breyer and [Sonia] Sotomayor) correctly conclude that today’s opinion in Genesis has virtually no practical application to the practice of law in the FLSA arena.”