Recent Supreme Court Decision Highlights Some Pitfalls Of Federal Appellate Procedure

Rarely do dissenting Justices advise practitioners to ignore a majority opinion. But, because the five Justice majority in Genesis Healthcare Corp. v. Symczyk, No. 11-1059, 569 U.S. __ (2013), assumed without deciding an issue that the plaintiff-respondent did not challenge in a cross-petition for a writ of certiorari and had conceded below, the majority addressed a situation that the dissenting Justices said will never arise again. Notwithstanding the advice of the dissenters (Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor) to "[f]eel free to relegate the majority's decision to the furthest reaches of your mind," Genesis Healthcare should be remembered as a cautionary tale on the dangers of waiver, at all levels of the judicial system, including failing to file a cross petition for certiorari.

Plaintiff-respondent Symczyk sued Genesis, alleging violations of the Fair Labor Standards Act, ("FLSA"). She sought both individual relief and relief on behalf of similarly situated employees — a "collective action," in FLSA parlance. Genesis made Symczyk an offer of judgment under Federal Rule of Civil Procedure 68, offering all the relief that she would be entitled to under the FLSA. When Symczyk did not respond to the offer, it lapsed. Genesis then filed a motion to dismiss for lack of subject-matter jurisdiction, arguing that because it had offered Symczyk complete relief, Symczyk no longer had a personal stake in the case, rendering both her individual action and the collective action moot. Symczyk opposed the motion, arguing that even if her individual action was moot, her collective action survived.

The Eastern District of Pennsylvania held that because no other individuals had joined Symczyk's suit, the Rule 68 offer of judgment not only satisfied her individual claim, but also the claims of others similarly situated. The Third Circuit agreed that because Symczyk did not accept the Rule 68 offer, the offer of judgment mooted her individual claim. However, it reversed on the collective aspect of the case, holding that the collective action was not moot because defendants cannot "pick off" named plaintiffs under the FLSA with strategic Rule 68 offers. The Supreme Court granted Genesis' petition for a writ of certiorari.

Justice Thomas, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Alito, observed that although the circuits are split on whether an unaccepted offer of judgment that fully satisfies a...