Genesis HealthCare Corp. v. Symczyk

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GENESIS HEALTHCARE CORP. ET AL. v. SYMCZYK
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 11–1059. Argued December 3, 2012—Decided April 16, 2013
Respondent brought a collective action under the Fair Labor Standards
Act of 1938 (FLSA) on behalf of herself and “other employees similar-
ly situated.” 29 U.S. C. §216(b). After she ignored petitioners’ offer
of judgment under Federal Rule of Civil Procedure 68, the District
Court, finding that no other individuals had joined her suit and that
the Rule 68 offer fully satisfied her claim, concluded that respond-
ent’s suit was moot and dismissed it for lack of subject-matter juris-
diction. The Third Circuit reversed. It held that respondent’s indi-
vidual claim was moot but that her collective action was not,
explaining that allowing defendants to “pick off” named plaintiffs be-
fore certification with calculated Rule 68 offers would frustrate the
goals of collective actions. The case was remanded to the District
Court to allow respondent to seek “conditional certification,” which, if
successful, would relate back to the date of her complaint.
Held: Because respondent had no personal interest in representing pu-
tative, unnamed claimants, nor any other continuing interest that
would preserve her suit from mootness, her suit was appropriately
dismissed for lack of subject-matter jurisdiction. Pp. 3–12.
(a) While the Courts of Appeals disagree whether an unaccepted
Rule 68 offer that fully satisfies a plaintiff’s individual claim is suffi-
cient to render that claim moot, respondent conceded the issue below
and did not properly raise it here. Thus, this Court assumes, without
deciding, that petitioners’ offer mooted her individual claim. Pp. 3–5.
(b) Well-settled mootness principles control the outcome of this
case. After respondent’s individual claim became moot, the suit be-
came moot because she had no personal interest in representing oth-
ers in the action. To avoid that outcome, respondent relies on cases
that arose in the context of Rule 23 class actions, but they are inap-
2 GENESIS HEALTHCARE CORP. v. SYMCZYK
Syllabus
posite, both because Rule 23 actions are fundamentally different from
FLSA collective actions and because the cases are inapplicable to the
facts here. Pp. 5–11.
(1) Neither Sosna v. Iowa, 419 U.S. 393, nor United States Pa-
role Comm’n v. Geraghty, 445 U.S. 388, support respondent’s posi-
tion. Geraghty extended the principles of Sosna—which held that a
class action is not rendered moot when the named plaintiff’s individ-
ual claim becomes moot after the class has been duly certified—to
denials of class certification motions; and it provided that, where an
action would have acquired independent legal status but for the dis-
trict court’s erroneous denial of class certification, a corrected ruling
on appeal “relates back” to the time of the erroneous denial. 445
U. S., at 404, and n. 11. However, Geraghty’s holding was explicitly
limited to cases in which the named plaintiff ’s claim remains live at
the time the district court denies class certification. See id., at 407,
n. 11. Here, respondent had not yet moved for “conditional certifica-
tion” when her claim became moot, nor had the District Court antici-
patorily ruled on any such request. She thus has no certification de-
cision to which her claim could have related back. More
fundamentally, essential to Sosna and Geraghty was the fact that a
putative class acquires an independent legal status once it is certified
under Rule 23. By contrast, under the FLSA, “conditional certifica-
tion” does not produce a class with an independent legal status, or
join additional parties to the action. Pp. 7–8.
(2) A line of cases holding that an “inherently transitory” class-
action claim is not necessarily moot upon the termination of the
named plaintiff’s claim, see, e.g., County of Riverside v. McLaughlin,
500 U.S. 44, 52, is similarly inapplicable. Respondent argues that a
defendant’s use of Rule 68 offers to “pick off” a named plaintiff before
the collective-action process is complete renders the action “inherent-
ly transitory.” But this rationale was developed to address circum-
stances in which the challenged conduct was effectively unreviewable
because no plaintiff possessed a personal stake in the suit long
enough for litigation to run its course, and it has invariably focused
on the fleeting nature of the challenged conduct giving rise to the
claim, not on the defendant’s litigation strategy. Unlike a claim for
injunctive relief, a damages claim cannot evade review, nor can an of-
fer of full settlement insulate such a claim from review. Putative
plaintiffs may be foreclosed from vindicating their rights in respond-
ent’s suit, but they remain free to do so in their own suits. Pp. 8–10.
(3) Finally, Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326,
does not support respondent’s claim that the purposes served by the
FLSA’s collective-action provisions would be frustrated by defend-
ants’ use of Rule 68 to “pick off” named plaintiffs before the collective-
Cite as: 569 U.S. ____ (2013) 3
Syllabus
action process has run its course. In Roper, where the named plain-
tiffs’ individual claims became moot after the District Court denied
their Rule 23 class certification motion and entered judgment in their
favor based on defendant’s offer of judgment, this Court found that
the named plaintiffs could appeal the denial of certification because
they possessed an ongoing, personal economic stake in the substan-
tive controversy, namely, to shift a portion of attorney’s fees and ex-
penses to successful class litigants. Here, respondent conceded that
petitioners’ offer provided complete relief, and she asserted no con-
tinuing economic interest in shifting attorney’s fees and costs. More-
over, Roper was tethered to the unique significance of Rule 23 class
certification decisions. Pp. 10–11.
656 F.3d 189, reversed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. KAGAN, J., filed a
dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ.,
joined.
Cite as: 569 U.S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–1059
_________________
GENESIS HEALTHCARE CORPORATION, ET AL.,
PETITIONERS v. LAURA SYMCZYK
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 16, 2013]
JUSTICE THOMAS delivered the opinion of the Court.
The Fair Labor Standards Act of 1938 (FLSA), 29
U.S. C. §201 et seq., provides that an employee may bring
an action to recover damages for specified violations of the
Act on behalf of himself and other “similarly situated”
employees. We granted certiorari to resolve whether such
a case is justiciable when the lone plaintiff ’s individual
claim becomes moot. 567 U. S. ___ (2012). We hold that it
is not justiciable.
I
The FLSA establishes federal minimum-wage, maximum-
hour, and overtime guarantees that cannot be modified
by contract. Section 16(b) of the FLSA, 52 Stat. 1060, as
amended, 29 U.S. C. §216(b), gives employees the right
to bring a private cause of action on their own behalf and
on behalf of “other employees similarly situated” for speci-
fied violations of the FLSA. A suit brought on behalf of
other employees is known as a “collective action.” See
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169–
170 (1989).
In 2009, respondent, who was formerly employed by
2 GENESIS HEALTHCARE CORP. v. SYMCZYK
Opinion of the Court
petitioners as a registered nurse at Pennypack Center in
Philadelphia, Pennsylvania, filed a complaint on behalf of
herself and “all other persons similarly situated.” App.
115–116. Respondent alleged that petitioners violated the
FLSA by automatically deducting 30 minutes of time
worked per shift for meal breaks for certain employees,
even when the employees performed compensable work
during those breaks. Respondent, who remained the sole
plaintiff throughout these proceedings, sought statutory
damages for the alleged violations.
When petitioners answered the complaint, they simul-
taneously served upon respondent an offer of judgment
under Federal Rule of Civil Procedure 68. The offer in-
cluded $7,500 for alleged unpaid wages, in addition to
“such reasonable attorneys’ fees, costs, and expenses . . .
as the Court may determine.” Id., at 77. Petition-
ers stipulated that if respondent did not accept the offer
within 10 days after service, the offer would be deemed
withdrawn.
After respondent failed to respond in the allotted time
period, petitioners filed a motion to dismiss for lack of
subject-matter jurisdiction. Petitioners argued that be-
cause they offered respondent complete relief on her indi-
vidual damages claim, she no longer possessed a personal
stake in the outcome of the suit, rendering the action
moot. Respondent objected, arguing that petitioners were
inappropriately attempting to “pick off ” the named plain-
tiff before the collective-action process could unfold. Id., at
91.
The District Court found that it was undisputed that no
other individuals had joined respondent’s suit and that the
Rule 68 offer of judgment fully satisfied her individual
claim. It concluded that petitioners’ Rule 68 offer of judg-
ment mooted respondent’s suit, which it dismissed for lack
of subject-matter jurisdiction.
The Court of Appeals reversed. 656 F.3d 189 (CA3
Cite as: 569 U.S. ____ (2013) 3
Opinion of the Court
2011). The court agreed that no other potential plaintiff
had opted into the suit, that petitioners’ offer fully satis-
fied respondent’s individual claim, and that, under its
precedents, whether or not such an offer is accepted, it
generally moots a plaintiff ’s claim. Id., at 195. But the
court nevertheless held that respondent’s collective action
was not moot. It explained that calculated attempts by
some defendants to “pick off ” named plaintiffs with stra-
tegic Rule 68 offers before certification could short circuit
the process, and, thereby, frustrate the goals of collective
actions. Id., at 196–198. The court determined that the
case must be remanded in order to allow respondent to
seek “conditional certification”1 in the District Court. If
respondent were successful, the District Court was to
relate the certification motion back to the date on which
respondent filed her complaint.2 Ibid.
II
Article III, §2, of the Constitution limits the jurisdiction
of federal courts to “Cases” and “Controversies,” which
——————
1 Lower courts have borrowed class-action terminology to describe the
process of joining co-plaintiffs under 29 U.S. C. §216(b). While we do
not express an opinion on the propriety of this use of class-action
nomenclature, we do note that there are significant differences between
certification under Federal Rule of Civil Procedure 23 and the joinder
process under §216(b).
2 The “relation back” doctrine was developed in the context of class
actions under Rule 23 to address the circumstance in which a named
plaintiff’s claim becomes moot prior to certification of the class. This
case raises two circumstances in which the Court has applied this
doctrine. First, where a named plaintiff’s claim is “inherently transi-
tory,” and becomes moot prior to certification, a motion for certification
may “relate back” to the filing of the complaint. See, e.g., County of
Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991). Second, we have
held that where a certification motion is denied and a named plaintiff’s
claim subsequently becomes moot, an appellate reversal of the certifica-
tion decision may relate back to the time of the denial. See United
States Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980).
4 GENESIS HEALTHCARE CORP. v. SYMCZYK
Opinion of the Court
restricts the authority of federal courts to resolving “ ‘the
legal rights of litigants in actual controversies,’ ” Valley
Forge Christian College v. Americans United for Separa-
tion of Church and State, Inc., 454 U.S. 464, 471 (1982)
(quoting Liverpool, New York & Philadelphia S. S. Co. v.
Commissioners of Emigration, 113 U.S. 33, 39 (1885)). In
order to invoke federal-court jurisdiction, a plaintiff must
demonstrate that he possesses a legally cognizable inter-
est, or “ ‘personal stake,’ ” in the outcome of the action. See
Camreta v. Greene, 563 U.S. ___, ___ (2011) (slip op., at 5)
(quoting Summers v. Earth Island Institute, 555 U.S. 488,
493 (2009)). This requirement ensures that the Federal
Judiciary confines itself to its constitutionally limited role
of adjudicating actual and concrete disputes, the resolu-
tions of which have direct consequences on the parties
involved.
A corollary to this case-or-controversy requirement is
that “ ‘an actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed.’ ”
Arizonans for Official English v. Arizona, 520 U.S. 43, 67
(1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401
(1975)). If an intervening circumstance deprives the
plaintiff of a “personal stake in the outcome of the law-
suit,” at any point during litigation, the action can no
longer proceed and must be dismissed as moot. Lewis v.
Continental Bank Corp., 494 U.S. 472, 477–478 (1990)
(internal quotation marks omitted).
In the proceedings below, both courts concluded that
petitioners’ Rule 68 offer afforded respondent complete
relief on—and thus mooted—her FLSA claim. See 656
F. 3d, at 201; No. 09–5782, 2010 WL 2038676, *4 (ED Pa.,
May 19, 2010). Respondent now contends that these
rulings were erroneous, because petitioners’ Rule 68 offer
lapsed without entry of judgment. Brief for Respondent
12–16. The United States, as amicus curiae, similarly
urges the Court to hold that petitioners’ unaccepted offer
Cite as: 569 U.S. ____ (2013) 5
Opinion of the Court
did not moot her FLSA claim and to affirm the Court of
Appeals on this basis. Brief for United States 10–15.
While the Courts of Appeals disagree whether an un-
accepted offer that fully satisfies a plaintiff ’s claim is
sufficient to render the claim moot,3 we do not reach this
question, or resolve the split, because the issue is not
properly before us. The Third Circuit clearly held in this
case that respondent’s individual claim was moot. 656
F. 3d, at 201. Acceptance of respondent’s argument to the
contrary now would alter the Court of Appeals’ judgment,
which is impermissible in the absence of a cross-petition
from respondent. See Northwest Airlines, Inc. v. County of
Kent, 510 U.S. 355, 364 (1994); Trans World Airlines, Inc.
v. Thurston, 469 U.S. 111, 119, n. 14 (1985). Moreover,
even if the cross-petition rule did not apply, respondent’s
waiver of the issue would still prevent us from reaching it.
In the District Court, respondent conceded that “[a]n offer
of complete relief will generally moot the [plaintiff ’s]
claim, as at that point the plaintiff retains no personal
interest in the outcome of the litigation.” App. 93; 2010
WL 2038676, at *4. Respondent made a similar conces-
sion in her brief to the Court of Appeals, see App. 193, and
failed to raise the argument in her brief in opposition to
the petition for certiorari. We, therefore, assume, without
deciding, that petitioners’ Rule 68 offer mooted respond-
ent’s individual claim. See Baldwin v. Reese, 541 U.S. 27,
34 (2004).
III
We turn, then, to the question whether respondent’s
action remained justiciable based on the collective-action
allegations in her complaint. A straightforward applica-
tion of well-settled mootness principles compels our an-
——————
3 Compare, e.g., Weiss v. Regal Collections, 385 F.3d 337, 340 (CA3
2004), with McCauley v. Trans Union, LLC, 402 F.3d 340, 342 (CA2
2005).
6 GENESIS HEALTHCARE CORP. v. SYMCZYK
Opinion of the Court
swer. In the absence of any claimant’s opting in, respond-
ent’s suit became moot when her individual claim became
moot, because she lacked any personal interest in repre-
senting others in this action. While the FLSA authorizes
an aggrieved employee to bring an action on behalf of
himself and “other employees similarly situated,” 29
U.S. C. §216(b), the mere presence of collective-action
allegations in the complaint cannot save the suit from
mootness once the individual claim is satisfied.4 In order
to avoid this outcome, respondent relies almost entirely
upon cases that arose in the context of Federal Rule of
Civil Procedure 23 class actions, particularly United
States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980);
Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326(1980); and Sosna v. Iowa, 419 U.S. 393 (1975). But these
cases are inapposite, both because Rule 23 actions are
fundamentally different from collective actions under the
FLSA, see Hoffmann-La Roche Inc., 493 U. S., at 177–178
(SCALIA, J., dissenting), and because these cases are, by
their own terms, inapplicable to these facts. It follows
that this action was appropriately dismissed as moot.
——————
4 While we do not resolve the question whether a Rule 68 offer that
fully satisfies the plaintiff’s claims is sufficient by itself to moot the
action, supra, at 5, we note that Courts of Appeals on both sides of that
issue have recognized that a plaintiff’s claim may be satisfied even
without the plaintiff’s consent. Some courts maintain that an unac-
cepted offer of complete relief alone is sufficient to moot the individual’s
claim. E.g., Weiss, supra, at 340; Greisz v. Household Bank (Ill.), N. A.,
176 F.3d 1012, 1015 (CA7 1999). Other courts have held that, in the
face of an unaccepted offer of complete relief, district courts may “enter
judgment in favor of the plaintiffs in accordance with the defendants’
Rule 68 offer of judgment.” O’Brien v. Ed Donnelly Enters., Inc., 575
F.3d 567, 575 (CA6 2009); see also McCauley v. Trans Union, LLC, 402
F.3d 340, 342 (CA2 2005). Contrary to the dissent’s assertion, see post,
at 8 (opinion of Kagan, J.), nothing in the nature of FLSA actions
precludes satisfaction—and thus the mooting—of the individual’s claim
before the collective-action component of the suit has run its course.
Cite as: 569 U.S. ____ (2013) 7
Opinion of the Court
A
Respondent contends that she has a sufficient personal
stake in this case based on a statutorily created collective-
action interest in representing other similarly situated
employees under §216(b). Brief for Respondent 47–48. In
support of her argument, respondent cites our decision in
Geraghty, which in turn has its roots in Sosna. Neither
case supports her position.
In Sosna, the Court held that a class action is not ren-
dered moot when the named plaintiff ’s individual claim
becomes moot after the class has been duly certified. 419
U. S., at 399. The Court reasoned that when a district
court certifies a class, “the class of unnamed persons
described in the certification acquire[s] a legal status
separate from the interest asserted by [the named plain-
tiff],” with the result that a live controversy may continue
to exist, even after the claim of the named plaintiff be-
comes moot. Id., at 399–402. Geraghty narrowly extended
this principle to denials of class certification motions. The
Court held that where an action would have acquired the
independent legal status described in Sosna but for the
district court’s erroneous denial of class certification, a
corrected ruling on appeal “relates back” to the time of the
erroneous denial of the certification motion. 445 U. S., at
404, and n. 11.
Geraghty is inapposite, because the Court explicitly
limited its holding to cases in which the named plaintiff ’s
claim remains live at the time the district court denies
class certification. See id., at 407, n. 11. Here, respondent
had not yet moved for “conditional certification” when her
claim became moot, nor had the District Court anticipa-
torily ruled on any such request. Her claim instead became
moot prior to these events, foreclosing any recourse to
Geraghty. There is simply no certification decision to
which respondent’s claim could have related back.
More fundamentally, essential to our decisions in Sosna
8 GENESIS HEALTHCARE CORP. v. SYMCZYK
Opinion of the Court
and Geraghty was the fact that a putative class acquires
an independent legal status once it is certified under Rule
23. Under the FLSA, by contrast, “conditional certifica-
tion” does not produce a class with an independent legal
status, or join additional parties to the action. The sole
consequence of conditional certification is the sending of
court-approved written notice to employees, see Hoffmann-
La Roche Inc., supra, at 171–172, who in turn become
parties to a collective action only by filing written con-
sent with the court, §216(b). So even if respondent were
to secure a conditional certification ruling on remand,
nothing in that ruling would preserve her suit from
mootness.
B
Respondent also advances an argument based on a
separate, but related, line of cases in which the Court held
that an “inherently transitory” class-action claim is not
necessarily moot upon the termination of the named plain-
tiff ’s claim. Like our decision in Geraghty, this line of
cases began with Sosna and is similarly inapplicable here.
After concluding that the expiration of a named plain-
tiff ’s claim following certification does not moot the class
action, Sosna suggested that, where a named plaintiff’s
individual claim becomes moot before the district court
has an opportunity to rule on the certification motion, and
the issue would otherwise evade review, the certification
might “relate back” to the filing of the complaint. 419
U. S., at 402, n. 11. The Court has since held that the
relation-back doctrine may apply in Rule 23 cases where it
is “certain that other persons similarly situated” will
continue to be subject to the challenged conduct and the
claims raised are “ ‘so inherently transitory that the trial
court will not have even enough time to rule on a motion
for class certification before the proposed representative’s
individual interest expires.’ ” County of Riverside v.
Cite as: 569 U.S. ____ (2013) 9
Opinion of the Court
McLaughlin, 500 U.S. 44, 52 (1991) (quoting Geraghty,
supra, at 399), in turn citing Gerstein v. Pugh, 420 U.S.
103, 110, n. 11 (1975)). Invoking this doctrine, respondent
argues that defendants can strategically use Rule 68 offers
to “pick off ” named plaintiffs before the collective-action
process is complete, rendering collective actions “inher-
ently transitory” in effect. Brief for Respondent 37.
Our cases invoking the “inherently transitory” relation-
back rationale do not apply. The “inherently transitory”
rationale was developed to address circumstances in which
the challenged conduct was effectively unreviewable,
because no plaintiff possessed a personal stake in the suit
long enough for litigation to run its course. A plaintiff
might seek, for instance, to bring a class action challeng-
ing the constitutionality of temporary pretrial detentions.
In doing so, the named plaintiff would face the considera-
ble challenge of preserving his individual claim from
mootness, since pretrial custody likely would end prior to
the resolution of his claim. See Gerstein, supra. To ad-
dress this problem, the Court explained that in cases
where the transitory nature of the conduct giving rise to
the suit would effectively insulate defendants’ conduct
from review, certification could potentially “relate back” to
the filing of the complaint. Id., at 110, n. 11; McLaughlin,
supra, at 52. But this doctrine has invariably focused on
the fleeting nature of the challenged conduct giving rise to
the claim, not on the defendant’s litigation strategy. See,
e.g., Swisher v. Brady, 438 U.S. 204, 214, n. 11 (1978);
Spencer v. Kemna, 523 U.S. 1, 17–18 (1998).
In this case, respondent’s complaint requested statutory
damages. Unlike claims for injunctive relief challenging
ongoing conduct, a claim for damages cannot evade re-
view; it remains live until it is settled, judicially resolved,
or barred by a statute of limitations. Nor can a defend-
ant’s attempt to obtain settlement insulate such a claim
from review, for a full settlement offer addresses plaintiff ’s
10 GENESIS HEALTHCARE CORP. v. SYMCZYK
Opinion of the Court
alleged harm by making the plaintiff whole. While set-
tlement may have the collateral effect of foreclosing un-
joined claimants from having their rights vindicated in
respondent’s suit, such putative plaintiffs remain free to
vindicate their rights in their own suits. They 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.
C
Finally, respondent argues that the purposes served
by the FLSA’s collective-action provisions—for example,
efficient resolution of common claims and lower individual
costs associated with litigation—would be frustrated by
defendants’ use of Rule 68 to “pick off ” named plaintiffs
before the collective-action process has run its course.
Both respondent and the Court of Appeals purported to
find support for this position in our decision in Roper, 445
U. S., at 339.
In Roper, the named plaintiffs’ individual claims became
moot after the District Court denied their motion for class
certification under Rule 23 and subsequently entered
judgment in their favor, based on the defendant bank’s
offer of judgment for the maximum recoverable amount of
damages, in addition to interest and court costs. Id., at
329–330. The Court held that even though the District
Court had entered judgment in the named plaintiffs’ favor,
they could nevertheless appeal the denial of their motion
to certify the class. The Court found that, under the par-
ticular circumstances of that case, the named plaintiffs
possessed an ongoing, personal economic stake in the
substantive controversy—namely, to shift a portion of
attorney’s fees and expenses to successful class litigants.5
——————
5 Because Roper is distinguishable on the facts, we need not consider
its continuing validity in light of our subsequent decision in Lewis v.
Cite as: 569 U.S. ____ (2013) 11
Opinion of the Court
Id., at 332–334, and n. 6. Only then, in dicta, did the
Court underscore the importance of a district court’s class
certification decision and observe that allowing defendants
to “ ‘pic[k] off’” party plaintiffs before an affirmative ruling
was achieved “would frustrate the objectives of class ac-
tions.” Id., at 339.
Roper’s holding turned on a specific factual finding that
the plaintiffs’ possessed a continuing personal economic
stake in the litigation, even after the defendants’ offer of
judgment. Id., at 336. As already explained, here, re-
spondent conceded that petitioners’ offer “provided com-
plete relief on her individual claims,” Brief in Opposition i,
and she failed to assert any continuing economic interest
in shifting attorney’s fees and costs to others. Moreover,
Roper’s dictum was tethered to the unique significance of
certification decisions in class-action proceedings. 445
U. S., at 339. Whatever significance “conditional certifica-
tion” may have in §216(b) proceedings, it is not tanta-
mount to class certification under Rule 23.
* * *
The Court of Appeals concluded that respondent’s indi-
vidual claim became moot following petitioners’ Rule 68
offer of judgment. We have assumed, without deciding,
that this is correct.
Reaching the question on which we granted certiorari,
we conclude that respondent has no personal interest in
representing putative, unnamed claimants, nor any other
continuing interest that would preserve her suit from
mootness. Respondent’s suit was, therefore, appropriately
dismissed for lack of subject-matter jurisdiction.
——————
Continental Bank Corp., 494 U.S. 472 (1990). See id., at 480 (“[An]
interest in attorney’s fees is, of course, insufficient to create an Article
III case or controversy where none exists on the merits of the underly-
ing claim”).
12 GENESIS HEALTHCARE CORP. v. SYMCZYK
Opinion of the Court
The judgment of the Court of Appeals for the Third
Circuit is reversed.
It is so ordered.
Cite as: 569 U.S. ____ (2013) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–1059
_________________
GENESIS HEALTHCARE CORPORATION, ET AL.,
PETITIONERS v. LAURA SYMCZYK
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 16, 2013]
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 appli­
cation. 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 rele­
gate the majority’s decision to the furthest reaches of your
2 GENESIS HEALTHCARE CORP. v. SYMCZYK
KAGAN, J., dissenting
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. Respond­
ent 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 individ­
ual 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 inter­
est 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
Cite as: 569 U.S. ____ (2013) 3
KAGAN, J., dissenting
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 unac­
cepted 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 be­
fore. 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 re-
jection of an offer “leaves the matter as if no offer had
ever been made.” Minneapolis & St. Louis R. Co. v. Co-
lumbus 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 unsatis­
fied claim, which the court could redress by awarding her
4 GENESIS HEALTHCARE CORP. v. SYMCZYK
KAGAN, J., dissenting
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 theo­
ry. 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 settle­
ment 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 opposi­
tion to the petition for certiorari; she contested it first in
her merits brief before this Court. That enables the ma­
jority to “assume, without deciding,” the mootness of
Symczyk’s individual claim and reach the oh-so-much­
more-interesting question relating to her proposed collec­
tive action. Ante, at 5.1
——————
1 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).
Cite as: 569 U.S. ____ (2013) 5
KAGAN, J., dissenting
But as this Court noted in a similar case, “assum[ing]
what the facts will show to be ridiculous” about a predi­
cate question—just because a party did not think to chal­
lenge 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 resolu­
tion 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 individ­
ual 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.
6 GENESIS HEALTHCARE CORP. v. SYMCZYK
KAGAN, J., dissenting
To see why, consider how a collective FLSA action seek­
ing 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 notifica­
tion, and then “oversee[s] the joinder” of any who want
Smith to represent them. Hoffman La-Roche Inc. v. Sper-
ling, 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 sur­
vive even Smith’s own demise, belonging then to her es­
tate. 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: As­
sume 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 addition­
Cite as: 569 U.S. ____ (2013) 7
KAGAN, J., dissenting
ally 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 of-
fer, either party may then file the offer and notice of ac­
ceptance, plus proof of service. The clerk must then enter
judgment”). And the Rule prohibits a court from consider­
ing an unaccepted offer for any purpose other than allocat­
ing 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 uncondi­
tionally 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 ca­
8 GENESIS HEALTHCARE CORP. v. SYMCZYK
KAGAN, J., dissenting
pitulation 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 certifi­
cation, eliminate the entire suit by acceding to a defend­
ant’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 indi­
vidual 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 indi­
vidual 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
——————
2 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”).
Cite as: 569 U.S. ____ (2013) 9
KAGAN, J., dissenting
whether to join new plaintiffs to the litigation. Without
any gap to span, the relation-back doctrine has no rele­
vance. 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 misconcep­
tion, in a way that aids no one, now or ever. I respectfully
dissent.
——————
3 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
marks omitted).