GENESIS HEALTHCARE v. SYMCZYK

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, Washington, 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

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No. 11–1059

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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, 52Stat. 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 specified 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 –170 (1989).

In 2009, respondent, who was formerly employed by 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 simultaneously served upon respondent an offer of judgment under Federal Rule of Civil Procedure 68. The offer included $7,500 for alleged unpaid wages, in addition to “such reasonable attorneys’ fees, costs, and expenses . . . as the Court may determine.” Id., at 77. Petitioners 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 because they offered respondent complete relief on her individual 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 plaintiff 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 judgment mooted respondent’s suit, which it dismissed for lack of subject-matter jurisdiction.

The Court of Appeals reversed. 656 F. 3d 189 (CA3 2011). The court agreed that no other potential plaintiff had opted into the suit, that petitioners’ offer fully satisfied 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 strategic 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 restricts the authority of federal courts to resolving “ ‘the legal rights of litigants in actual controversies,’ ” Valley Forge Christian College v. Americans United for Separation 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 interest, 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 resolutions 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 lawsuit,” 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 –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 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 , 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 concession 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 respondent’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 application of well-settled mootness principles compels our answer. 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,” 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.

A

Respondent contends that she has a sufficient personal stake in this case based on a statutorily created collectiveaction 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 rendered 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 plaintiff],” with the result that a live controversy may continue to exist, even after the claim of the named plaintiff becomes 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 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 certification” 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 consent 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 plaintiff’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. McLaughlin, 500 U. S. 44, 52 (1991) (quoting Geraghty, supra, at 399), in turn citing Gerstein v. Pugh, 420 U. S. 103 , 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 challenging the constitutionality of temporary pretrial detentions. In doing so, the named plaintiff would face the considerable 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 address 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 , n. 11 (1978); Spencer v. Kemna, 523 U. S. 1 –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 review; it remains live until it is settled, judicially resolved, or barred by a statute of limitations. Nor can a defendant’s attempt to obtain settlement insulate such a claim from review, for a full settlement offer addresses plaintiff’s alleged harm by making the plaintiff whole. While settlement may have the collateral effect of foreclosing unjoined 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 particular 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 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 actions.” 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, respondent conceded that petitioners’ offer “provided complete 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 certification” may have in §216(b) proceedings, it is not tantamount to class certification under Rule 23.

*  *  *

The Court of Appeals concluded that respondent’s individual 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.

The judgment of the Court of Appeals for the Third Circuit is reversed.

It is so ordered.

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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 –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 certification decision may relate back to the time of the denial. See United States Parole Comm’n v. Geraghty, 445 U. S. 388, 404 (1980) .

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).

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 unaccepted 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.

5  Because Roper is distinguishable on the facts, we need not consider its continuing validity in light of our subsequent decision in Lewis v. 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 underlying claim”).

SUPREME COURT OF THE UNITED STATES

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No. 11–1059

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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 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.

Consider the facts of this case, keeping an eye out for anything that would render any part of it moot. Respondent 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 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. 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 interest 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 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 unaccepted 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 before. 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 rejection of an offer “leaves the matter as if no offer had ever been made.” Minneapolis & St. Louis R. Co. v. Columbus 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 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.

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 settlement 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 opposition to the petition for certiorari; she contested it first in her merits brief before this Court. That enables the majority to “assume, without deciding,” the mootness of Symczyk’s individual claim and reach the oh-so-much-more-interesting question relating to her proposed collective action. Ante, at 5. 1

But as this Court noted in a similar case, “assum[ing] what the facts will show to be ridiculous” about a predicate question—just because a party did not think to challenge 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 resolution 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 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.

To see why, consider how a collective FLSA action seeking 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 notification, and then “oversee[s] the joinder” of any who want Smith to represent them. Hoffman La-Roche Inc. v. Sperling, 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 survive even Smith’s own demise, belonging then to her estate. 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: Assume 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 additionally 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 offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment”). And the Rule prohibits a court from considering an unaccepted offer for any purpose other than allocating 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 unconditionally 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 capitulation 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 certification, eliminate the entire suit by acceding to a defendant’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 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. 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 misconception, in a way that aids no one, now or ever. I respectfully dissent.

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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 satisfied 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 –259, n. 5 (1980).

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”).

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 individual 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 –52 (1991); Swisher v. Brady, 438 U. S. 204 –214, n. 11 (1978); Gerstein v. Pugh, 420 U. S. 103 –111, n. 11 (1975); see also United States Parole Comm’n v. Geraghty, 445 U. S. 388 , 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).

Print this transcript Transcript: 

ORAL ARGUMENT OF RONALD MANN ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-1059, Genesis HealthCare v. Symczyk.

Mr. Mann.

Ronald Mann: Thank you, Mr. Chief Justice, and may it please the Court:

The decision of the Court of Appeals deprives the Defendant of the ability to free itself from litigation even when it is willing to pay complete relief to the sole Plaintiff.

Thus, as long as the Plaintiff refuses to accept full and complete payment, a putative collective action must continue onward to certification.

Justice Ruth Bader Ginsburg: Did that offer include admission of liability, or was it just that it was going to pay the amount of damages requested?

Ronald Mann: That's a good question, Justice Ginsburg.

Because it was an offer of judgment, if the offer had been accepted, the result would have been a judgment by the Federal Court imposing liability under the statute, under the Fair Labor Standards Act, on the Defendant, and requiring the Defendant to pay full and complete relief, including costs and attorneys' fees, to the Plaintiffs.

So there would have been a judgment of the Federal Court imposing liability under the statute.

Justice Ruth Bader Ginsburg: So if -- if there were judgment of liability, then that would be preclusive for all other people similarly situated?

Ronald Mann: Well, I think there is rules of issuing claim conclusion that would flow from the judgment, and it would have--

Justice Ruth Bader Ginsburg: Well, that -- so the next case is another employee who claims uncompensated work time, and that's brought on behalf of similarly situated people.

Then that next case, the employer would be -- would be subject to summary judgment because the liability has been established.

Ronald Mann: --Well, there would be a variety of fact questions that would have to be resolved to determine the extent of the preclusion from the first judgment.

But the rules of issue and claim preclusion would apply, and to the extent those rules call for matters that were comprehended within the judgment to bind, in a later case they would.

I think the way that I would put it, looking back to Justice Kagan's opinion in the Smith v. Bayer case, it's common for there to be preclusive effect of a judgment in one case against people that are not parties.

And this would have been a judgment imposing liability under the Fair Labor Standards Act based on the allegations made in the complaint.

And that's--

Justice Sonia Sotomayor: Counsel, so what am I to make of your transmittal letter which says, in the offer itself, that -- JA 5556, that Petitioners make clear that the offer of judgment, quote,

"was not to be construed as an admission that Petitioners are liable in this action or that respondent has suffered any damage? "

What -- what are we to make of that--

Ronald Mann: --Well, let me--

Justice Sonia Sotomayor: --when you're now claiming that you would have accepted a judgment of liability?

Ronald Mann: --Well, I don't think that you have to rely on my statements here to say that we would have accepted judgment of liability at that time.

The -- the offer itself was a formal offer of judgment on a form promulgated by the trial court.

The offer itself is not an admission of liability.

The offer itself is not a judgment against the Defendant.

The offer is a statement that, under the ordinary rules for Rule 68, if -- if they accept the offer, it would be a judgment against our client.

Justice Sonia Sotomayor: How did you pick the $7,500?

Ronald Mann: That's detailed later in the joint appendix at pages 77 to 79.

But, essentially, what our client did is they took the amount of time for breaks during the Respondent's period of employment and offered her full wages for all of the break time, so that whatever amount of break time was appropriately charged for her--

Justice Sonia Sotomayor: I see in the -- in the FLSA that it also requires an amount for liquidated damages.

Did you include that amount as well?

Ronald Mann: --Yes, your Honor -- yes, Justice Sotomayor.

Chief Justice John G. Roberts: Counsel, what if the district court -- this proceeding -- you filed the suggestion of -- of mootness, whatever, and the judge says, okay, I have this suggestion of mootness; I also want to address the certification issue; the mootness argument is scheduled for three months down the road, the certification issue for two months down the road; isn't this just a question of what order the district court wants to address these two issues?

Ronald Mann: Okay.

So there is two things I want to say about that.

The first one is to talk about what happened in this particular case, which is the case that's before the court; and, the second is to discuss the practical consequences of what could have happened in some other case.

So what happened in this case is that it was uncontested that the offer provided complete relief.

And so the Respondent suffered a judgment to be entered against her because of the conceded acts of the offer.

And at the time that judgment was entered, nothing had been done about certification.

At the time the offer was entered -- had made, nothing had been done about certification.

So what we--

Justice Ruth Bader Ginsburg: It was not possible for anything to be done about the certification because you moved immediately.

The complaint is filed, and then you moved -- then you immediately offered the judgment that you did.

Ronald Mann: --Well, I think there is two questions to unpack here that -- that are implicit in both what the Chief Justice is commenting on and what you're commenting on, Justice Ginsburg.

One is the question that was presented in the petition, which is: What is the effect on a collective action if, before certification or any motion for collective process has been determined, the sole plaintiff loses the case.

The second one is: How do you deal with the housekeeping issues of terminating the interest of a plaintiff when there's no longer controversy between the plaintiff and the defendant.

And so--

Justice Elena Kagan: Well, it seems as though it's more than housekeeping issue that's involved here because -- I mean, I realize that you have an argument about what happens when the plaintiff's individual claims have been fully satisfied, but the plaintiff continues to want to represent other individuals.

But, here, the plaintiff's individual claims have not been fully satisfied.

She walked away with nothing.

She walked away with no judgment, and she walked away with no $7,500.

And the question is: How can it possibly be that her individual claim was moot?

Ronald Mann: --Okay.

So I think there is two -- again, there's two things to say.

One is, we view it as a housekeeping question because it seems to us clear that, if the Defendant no longer wishes to contest liability and formally offers to pay all of the relief that the person could possibly win in any formal litigation, it has to be the case that the individual's interest is moot.

Now, it might be that the appropriate response is, as is consistent with the Third Circuit, is that the district court should just dismiss the case, because if the person won't take yes for an answer, the Federal Court doesn't need anything further--

Justice Ruth Bader Ginsburg: But there is nothing in Rule 68 -- you're basing the -- your position on a rule that provides as the only sanction if the plaintiff continues and gets less than the offer of proof, then the plaintiff has to pay the costs.

Rule 68 doesn't say anything about dismissing suits.

Ronald Mann: --Well, I don't think our position depends on Rule 68 at all for the mootness.

Our position for the mootness is that if there's no further controversy about the relief that is created by the cause of action, there's nothing more for the trial court to do--

Justice Anthony Kennedy: Let me ask you this--

Chief Justice John G. Roberts: Justice Kennedy.

Justice Anthony Kennedy: --Let me ask you just this question.

Just tell me as a matter of common practice, do district courts enter judgments against plaintiffs routinely when a full offer of settlement has been made and the defendant just is silent?

I mean, does this happen?

I just can't remember seeing a -- but this--

Ronald Mann: --There's--

Justice Anthony Kennedy: --It may be that it's common practice, if the plaintiff doesn't reply and there's an offer that's filed with the court, the court says, I haven't heard anything, I'm going to enter judgment.

Ronald Mann: --I think -- I think that the courts of appeals have taken a variety of approaches to what I'm characterizing as a housekeeping question of, if there's no further controversy between the plaintiff and the defendant how do we move the case off our docket?

One approach which is followed by some of the courts of appeals is that you enter a judgment against the plaintiff, whether they like it or not.

Justice Anthony Kennedy: As a matter of housekeeping, you could--

Ronald Mann: In favor of the plaintiff -- you enter a judgment in favor of the plaintiff -- that needs to be clear -- in favor of the plaintiff--

Justice Anthony Kennedy: --Right.

Ronald Mann: --Whether they want a judgment or not, you say: Here's everything you asked for; you must take it.

Another approach is to say, if they're willing to give you everything to which you're entitled and you won't take it, then there's no reason we should continue to adjudicate your case because there's not really a controversy.

Justice Elena Kagan: Here is what the Court said last in Knox last year, when it said: “ What makes a case moot ”?

It says:

"A case becomes moot when it's impossible for a court to grant any effectual relief whatever to the prevailing party. "

Now, here the judge says: Okay, is this case moot?

Well, it's not moot because I could give -- at the very least, I could give the plaintiff $7500; but, I didn't give the plaintiff $7500, so she still has her claim for at least $7500, regardless of the collective side of this action.

I mean, she hasn't been satisfied.

Ronald Mann: Okay, so let -- let me respond to that.

I think Knox flows naturally from Friends of the Earth, and I think they're both saying exactly the same thing.

And the -- what's going on in those cases, and I suppose in the Nike case from last month, is this general problem of a defendant is faced with a piece of litigation and they no longer wish to contest it.

If the action seeks prospective relief, it's quite difficult, once the case has begun, for the defendant to convince the court that they are going to change their conduct in a way that moots the claim for prospective relief.

And this Court's had a series of cases and has often not been convinced of that.

In a case that only seeks retrospective relief, it's somewhat easier to convince the court of that.

One way would be to formally offer to pay everything the person could get.

What happened in this case and what's before the Court is simply if that happens.

So what happened here is there was an offer that was conceded to be adequate and the plaintiff suffered a judgment to be entered against her on the premise that she had no further claim.

And the question is if that interest is gone, which has been conceded at all stages of the litigation until the bottom side briefing on the merits in this Court, what's the consequences for the collective action.

And so what the parties have litigated about, because this was conceded repeatedly over the course of several years, is what happens when that interest is moot.

Now, we believe that it is correct that a defendant faced with litigation that it does not wish to contest can terminate the litigation.

Justice Ruth Bader Ginsburg: What do you do when -- when you have a governing statute that says that an employee may bring suit for and in behalf of himself and other employees similarly situated?

Can you use a mere rule, Rule 68, to carve out what the statute authors -- authorizes, that is that the employee can seek relief on behalf of himself and others similarly situated?

Mustn't you give a chance for the statutory provision to work, which you didn't.

By filing immediately, you didn't allow the normal process of inviting opt-ins to occur.

Ronald Mann: I think that the language of the statute, section 216(b) of the Fair Labor Standards Act, provides compelling guidance for the case that the court of appeals ignored.

In this case, because it's under the Fair Labor Standards Act, the very paragraph you're looking at, Congress has opined -- and I'll say it's only an opinion because the lower courts ignored it.

But Congress at least has opined as to how you tell when people that are not yet before the court can be treated as relevant.

And the answer is the non-party plaintiffs cannot be part of the case until they formally opt-in--

Justice Ruth Bader Ginsburg: Yes, but you have to give the plaintiff an opportunity.

Ronald Mann: --The statute does not say, if a plaintiff files a case and alleges that other people are similarly situated, the case shall not be dismissed until the court has proceeded to conclusively determine the propriety of certification.

It doesn't say that.

Justice Ruth Bader Ginsburg: Suppose -- suppose the plaintiff had simultaneously with the filing of the complaint moved to have it preliminarily certified as on behalf of other employees situated; so, instead of having the complaint, which was labelled a collective complaint, separate from a motion for certification, they came together; that the plaintiff filed a complaint and immediately filed a motion for certification and a request to discover the names of other people similarly situated.

Ronald Mann: I think the answer to that would flow directly from this Court's decision in Geraghty.

The first question would be, at the time that the defendant's interest becomes moot who is a party to the case, and the answer would be, well, there's just this one person.

The next question would be, has the district court ruled on certification in a way that could have erroneously caused the mootness?

Well, the answer would be no because it became moot not because of an erroneous district court ruling on certification, which was the situation in Geraghty--

Justice Ruth Bader Ginsburg: So your answer is it wouldn't make any difference.

Ronald Mann: --It wouldn't make any difference.

What Geraghty turns on, and -- and I encourage you to look at the portion of footnote 11 that -- the last two paragraphs of that footnote that goes over onto page 407, the court emphasizes, all we're saying here, all we're saying here is that if the basis of mootness is an error by the district court and if we later ascertain that error, we will not only correct the error about certification, but we will forgive the mootness that flowed from that error.

In this court case, there's no suggestion that the district court error caused mootness to occur.

Chief Justice John G. Roberts: Counsel, I don't know that you've answered my question sometime ago, but what -- if the judge can simply order the two determinations in a way that certification is addressed before mootness, does that take care of your problem?

Obviously, if you grant certification, there is an ongoing controversy.

And under Roper and Geraghty if you deny certification the relation back doctrine applies.

Ronald Mann: I think that -- that those cases provide a way to analyze that situation.

So one possibility is that the district judge grants certification at some moment after the plaintiffs filed, and then later in time the sole person who is in the case at that time loses their interest in the case for one reason or another--

Chief Justice John G. Roberts: Well, there's no doubt that--

Justice Sonia Sotomayor: Counsel, I have--

Chief Justice John G. Roberts: --I'm sorry.

There's no doubt that that -- in that situation, the case goes forward, right?

Ronald Mann: --There is doubt in that case.

And we would suggest that it's clear that it doesn't go forward.

Under the Fair Labor Standards Act, as opposed to Rule 23, which was at issue in Geraghty, even after the district judge signs an order saying, pursuant to Justice Kennedy's opinion in Hoffman, we should send notices out to see if we can find some new plaintiffs, if none of those people have yet appeared before the court and signed into the case, there is still only one plaintiff.

So in Geraghty, it was important to the Court that when the case got here, although the interest of the named prisoner had been vitiated, there were several people who had filed motions to intervene.

And so it appeared that at all times there were other people.

In this case, by contrast, there's every reason to think that after the person's interest was vitiated, there were no other plaintiffs because--

Chief Justice John G. Roberts: Well, what do you--

Justice Sonia Sotomayor: --Counsel, can I ask a fundamental question under Rule 68?

When I was a district court judge, if parties told me about their settlement discussions I would get quite upset.

But, it says explicitly -- explicitly:

"Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs. "

What authorizes you to use evidence of that offer to argue anything--

Ronald Mann: --So again--

Justice Sonia Sotomayor: --especially when the statute gives the plaintiff an absolute statutory right to refuse it at a specific penalty?

What permits you to use it as evidence of anything, mootness, I don't care what you're using it for, except in cost?

Ronald Mann: --Okay.

So I would say two things.

The first thing is, of course, the plaintiff did not challenge the use of the offer in the trial court.

The second thing responsive to your question on the merits is, trial courts have considered this question, have generally considered that the offer is admissible by analogy to Rule 408, which deals with settlement discussions more generally, and the Advisory Committee Notes discuss this.

And the general idea is the offer is being admitted for a purpose other than to prove the validity or amount of the disputed claim, and so--

Justice Elena Kagan: This makes no sense to me because if the offer is for judgment, it has to be proof of validity and amount, because at least you have -- you should be able to get a judgment.

Ronald Mann: --Well, I think that the offer is not being admitted to prove the validity of the plaintiff's claim or the amount of the plaintiff's claim.

The offer is being admitted to prove that the plaintiff has no--

Justice Elena Kagan: But didn't you just tell me that an offer results in an admission of liability and a judgment for a particular amount?

Ronald Mann: --If the plaintiff accepts the offer, then the district judge will enter offer -- will enter judgment for the plaintiff in the amount of the offer.

The district courts that have considered this have ordinarily concluded that, in cases where the offer is not accepted and the defendant contends that the offer is complete, that the offer can be admitted for the purpose of proving that there is no controversy between the parties, which is distinct from admitting it for the purpose of proving the validity or amount of the claim.

Justice Antonin Scalia: Mr. Mann, could I come back to your response to the question of Knox, the statement in Knox that -- you know, where the court can issue -- can provide no relief, there is -- there is no standing.

That -- I would have thought your answer to that is -- is not -- I mean, you -- you answered it on the facts, but that statement was not meant to be exclusive, that that's the only situation in which there -- there is no standing.

It was addressing just the third prong of our -- of our standing doctrine, namely the prong that where the court can issue no relief, the remedial -- the remedial prong, that one of -- one of the elements of standing is the court has to be able to provide relief.

But there are other elements to standing as well, including whether there is injury in fact, and whether the injury is -- you know, springs from the action that is challenged.

And those -- those prongs would continue to exist.

I didn't think Knox's statement was meant to be all inclusive, that that's the only -- only way in which standing can be eliminated.

Ronald Mann: I think that's correct, Justice Scalia.

And so the problem that we face here is the -- the questioning relates to something that was not disputed below.

And our position is a relatively simple one, which is that, under the doctrine of mootness, it has to be correct that if there is not a controversy between the plaintiff and the defendant about a cause of action that's authorized by law, then the case is over.

And that was all conceded below.

The plaintiff suffered a judgment to be entered against her.

She did not challenge that judgment on appeal.

Justice Elena Kagan: But, Mr. Mann--

Justice Samuel Alito: Can I ask this question?

Does the district court have the authority when an offer of judgment is made to hold a hearing as to whether the offer of judgment actually gives the plaintiff everything that the plaintiff could possibly get under the complaint?

Ronald Mann: We think that's the appropriate response.

We think that what should happen is that if the defendant makes an offer of judgment and -- and files a motion to dismiss suggesting that it provides complete relief, that if the plaintiff doesn't concede that the case should be dismissed, the district judge should hold a hearing, as the district judge did here--

Justice Samuel Alito: But where -- where does it say that in Rule 68?

Ronald Mann: --The proceeding isn't under Rule 68.

Justice Samuel Alito: What is it under?

Ronald Mann: The proceeding is under Rule 12(b) as a motion to dismiss for lack of jurisdiction because the case is moot.

See, we don't think that it matters that the offer happened to be made under Rule 68.

There are obvious--

Justice Anthony Kennedy: Your offer says you hereby offer to allow entry of judgment under Rule 68.

Ronald Mann: --But we don't think that the mootness of the case flows from Rule 68.

The mootness of the case flows from the fact that there is not a dispute between the parties about anything a Federal court can handle.

Justice Anthony Kennedy: But the question from Justice Alito was, what happens; does the court have authority to have a hearing?

Ronald Mann: But the court--

Justice Anthony Kennedy: And you said, oh, well, this is not under Rule 68; but, you offered to allow entry of judgment under Rule 68.

And incidentally, you never did follow up and say that you wanted an entry of judgment.

You just wanted a dismissal.

And that's another point.

Ronald Mann: --Well, because the plaintiff didn't accept the offer.

One course of action is we make an offer under Rule 68, and the plaintiff says, all right, let's have a judgment under Rule 68, in which case there would be a judgment under Rule 68.

In this case, the plaintiff said, I'm not interested in Rule 68.

And we said, all right.

Well, now what we see is a cause of action under Federal law Congress has created that specifies certain forms of relief that are available to the plaintiff.

And in this case there are damages, some liquidated damages, some attorney's fees and costs.

There is no injunctive or declaratory relief.

And we have a defendant that is willing to give more than you could possibly get if you win.

Justice Ruth Bader Ginsburg: Was there attorney's fees in that offer?

I thought there wasn't in--

Ronald Mann: Yes.

Yes, there were.

The offer specifically provides for attorney's fees.

And even if the offer didn't provide for attorney's fees, they would be avail under Section 216(b)--

Justice Stephen G. Breyer: This, I take it, is a statutory case, not a constitutional case.

That is, do you have any constitutional objection if Congress had said in 216(b) that Joe Smith and other people similarly situated to Miss Laura Symczyk have a genuine dispute with the employer, and the way they file their case is Miss Symczyk's case will be deemed to be their case as well, though it ceases to be their case unless they confirm within 60 days of such and such in writing that it is their case.

If Congress passed that statute, there couldn't be a constitutional objection to it, could there?

Ronald Mann: --Well, I think there could be constitutional objections depending on the details of the statute--

Justice Stephen G. Breyer: No, no, no.

You see what I'm driving at?

In other words, if Congress had explicitly said in 216(b) that the Third Circuit's procedure is the correct procedure for Mr. Joe Smith to bring his case in such circumstances, if they had said that explicitly, is there a constitutional objection; if so, what could it be?

Ronald Mann: --I think the constitutional issues that proposals like that might raise would flow from the decision in Vermont Agency.

And the question has to be whether there is a person before the court--

Justice Stephen G. Breyer: Oh, we know at least, since we are doing -- I looked up a little bit, but Article III is what was a case or controversy in Westminster in 1788 or 1750 or whenever, that in Westminster, in a court of equity, I found at least two instances, a person dies, there is no case with that person, but it remained in equity on the docket until the other person, the estate, came in.

A woman could not bring a case if she was married.

She starts as a single person.

She gets married.

Lo and behold, the case remains on the docket until her husband comes in.

That's not a happy example, but nonetheless it's in point.

Now, I could find nothing the other way, so I thought of the canon of interpretation that equity deems to have been done what ought to have been done, or something like that.

Others on the Court -- but the -- the point is that there are instances--

Justice Antonin Scalia: Equity is wonderful.

Justice Stephen G. Breyer: --What?

Yes.

It remained on the docket in the Westminster courts, even though there was no plaintiff.

So I would ask you again, is there any counter example?

Is there any instance from equity or elsewhere where there is a constitutional objection, had they said it, at which point our question is have they said it.

Ronald Mann: --I think the problem is in that case there is an identifiable person to substitute.

In this case, it's not substituting somebody for the plaintiff.

It's leaving the Federal--

Justice Stephen G. Breyer: No, no.

It's Mr. Joe Smith, if he confirms it in writing.

Ronald Mann: --The problem in this type of case would be that the Federal proceeding would be moving along for a substantial period of time with no plaintiffs, and the district judge's role would be simply to assist the plaintiff in trying to find -- plaintiff's counsel in trying to find new plaintiffs.

Justice Antonin Scalia: I'll bet you equity could have considered the husband to have been substituted automatically and could have been considered the estate to have been substituted automatically.

That -- that happens when that particular element is eliminated.

But there is nothing automatic about discovering some new plaintiff who is out -- we don't know who is out there.

Ronald Mann: On that note, I'd like to reserve the remainder of my time.

Chief Justice John G. Roberts: --Thank you, counsel.

Mr. Katyal.

ORAL ARGUMENT OF NEAL KUMAR KATYAL ON BEHALF OF THE RESPONDENT

Neal Kumar Katyal: Thank you, Mr. Chief Justice and may it please the Court:

I'd like to begin with the question of whether a withdrawn Rule 68 offer could moot a case.

It cannot.

This Court has said that Article III's case and controversy requirement demands both a plaintiff with a concrete injury and a matter where the Court is fully capable of providing relief.

Chief Justice John G. Roberts: I'd like to begin with the question of whether or not you waived that argument.

Neal Kumar Katyal: Absolutely, Your Honor.

Chief Justice John G. Roberts: No -- did you waive it or not?

Neal Kumar Katyal: We did not waive -- we did not waive the -- we did not waive it.

We do think that the brief in opposition should have pointed it out absolutely.

It was a mistake on our part not to -- not to bring to the Court's attention the impact of an unaccepted Rule 68 offer.

However, we do think that this Court can consider that, and the reason for that is that it is an answer to the question presented.

Indeed, it is literally the question presented.

Here is the question presented as my friend Mr. Mann wrote it: Whether a court --

"Whether a case becomes moot and thus beyond the judicial power of Article III when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims. "

And we submit that the answer to that question is no, that the mere receipt of an offer without more cannot possibly moot a case.

Chief Justice John G. Roberts: Well, that was not the way the case was presented in the body of the petition and I would suppose, if that were your objection, that it wasn't received, wasn't accepted, we might have heard about that, as you suggest.

Neal Kumar Katyal: And--

Chief Justice John G. Roberts: And if in fact we thought we were dealing with a case in which the Rule 68 offer was not accepted, we might have thought differently about whether to grant it.

Neal Kumar Katyal: --I completely understand that, Mr. Chief Justice.

I guess I would say, however, this Court in Lebron confronted a similar situation in which the matter of whether Amtrak was a State actor was not present in the cert papers; indeed, it had been disavowed, as Justice Scalia's opinion for the Court said.

Nonetheless, the Court considered it and got into the merits of that question.

And we think here actually it's an easier case for the Court to get into than Lebron.

Both--

Justice Sonia Sotomayor: I have a question for you, counsel.

Chief Justice John G. Roberts: You rely on the question presented.

Your reformulated question doesn't have that feature in it.

Neal Kumar Katyal: --It does have the unaccepted offer feature in the question, and of course this Court's decision in Bray does say that it is the question presented as the Court -- as the Court granted it, that controls.

Justice Sonia Sotomayor: Counsel, there is -- from the beginning, you never accepted the offer.

Neal Kumar Katyal: That's exactly right, Justice Sotomayor.

Justice Sonia Sotomayor: What you appear to have conceded and -- is that the amount of the offer would settle your personal claim.

Neal Kumar Katyal: I don't quite think we conceded even that.

That's a separate matter.

That's about what the terms of the offer were, and our first point to you is to say this offer wasn't even accepted.

Mr. Mann is waxing nostalgic about an offer that literally has not given Ms. Symczyk a dime.

She is as injured today as she was the day she filed her complaint.

Justice Elena Kagan: What do you think the court should do in that circumstance, where a defendant comes forward and says, I'm willing to satisfy the entire claim?

What should happen?

Neal Kumar Katyal: We think that, just like the Solicitor General, we think that in that circumstance it is possible for the court to enter a default judgment and force relief upon the plaintiff.

And we think--

Justice Elena Kagan: Is this under Rule 68 or is this under some inherent authority?

Neal Kumar Katyal: --I think it could work either way so long as the forcing happened within the time period of Rule 68.

I don't think the court can, like Lazarus, raise this after it has already been withdrawn.

The text of Rule 68 says the offer is now dead.

If they had, I imagine, moved for the court to enforce that order, enforce that offer and enter a default judgment within the 14-day period, then I think that would have been something that might have been possible to do.

Chief Justice John G. Roberts: What, what benefit does this -- why are you arguing so much?

You will have an entry of judgment in the favor of your client who is, according to you, simply situated to lots of others.

Why don't you just, if somebody comes forward, just take them in, go in, you get a check for $7500 or whatever it is, you get attorney's fees, and you can do that as often as you want?

Neal Kumar Katyal: For two reasons, Your Honor.

The first is, of course, that is precisely what didn't happen here.

Ms. Symczyk has zero, not even the $7500.

Chief Justice John G. Roberts: Well, I know.

But that's the fortuity of the fact that she didn't accept the offer, and we are dealing perhaps with a case on the record as presented to us where she did accept the offer, if you waive that argument.

So assume the case where the offer is accepted.

Neal Kumar Katyal: And I think it goes back to what then-Justice Rehnquist said in Roper, because what he said is it's not then just about the individual plaintiff.

You can't force an offer onto a plaintiff that doesn't have all -- it doesn't award complete relief, because if you do so it undermines the collective action aspect of the claim.

Justice Antonin Scalia: Well, it undermines the collective aspect if she never brings the suit in the first place.

I mean, I must say I'm not terribly impressed by the fact that, you know, if she drops out there is -- there is no collective suit for these other people.

There is also no collective suit for these other people if she never appeared in the first place.

I don't know that the law demands that there be a collective suit.

If she doesn't bring suit or if she brings suit and is given everything she wants, the case is over unless other people have come in.

Neal Kumar Katyal: Justice Scalia, we think that the Congress has answered that question at least in 216(b) by providing for both the opportunity to file a complaint on her own behalf, as well as for those that are similarly situated.

And so I think that, as Justice Ginsburg said to my friend, if you adopt their rule, essentially you truncate that process and eliminate the ability of people to opt in, in any given situation, and for that reason it's very much -- assuming that we get to this question, that it is very much like Gerstein or Sosna or Roper in that circumstance.

Justice Sonia Sotomayor: Mr. Katyal, I'm a little troubled that you have given up or argue that the ability to enter a forced judgment is permissible under Rule 68.

There is nothing in that rule that gives the court that power, certainly not stated explicitly or even implicitly, because it talks about an entire procedure of accepting the offer or rejecting it, all of it in the hands of the parties, none of it until the entry of the judgment in the hands of the court and only after the plaintiff has accepted the offer in writing.

So I can't see anything but an inherent power.

So, for me, if there is an inherent power, it has to be under a default judgment because the other side is saying, “ I give up ”.

Neal Kumar Katyal: Exactly.

Justice Sonia Sotomayor: All right.

Neal Kumar Katyal: That's precisely right.

Justice Sonia Sotomayor: Let's go from there, at least with me, and that may answer an earlier question about an inquest on damages, because that is a part of the requirements for a default judgment, so that if there is a dispute about damages that can be resolved.

But my point is that liability is admitted.

Now let's deal with the Chief's question and Justice Scalia's question, which is in what ways is this comparable to a shared cost like what motivated our decision in class actions, that the settlement of one existing plaintiff doesn't settle the collective action.

How is this similar to that?

Neal Kumar Katyal: So we think that the corpus of cases that this Court has handled in the class action area such as Geraghty and Gerstein and the like, we don't think that they absolutely control this question.

I don't want to say that.

But we think that they set up two principles that help inform the Court's judgment.

The first is that when you have circumstances like this, in which a claim has gone away as moot because the named representative of the claim has gone away for one reason or another, there is play in the joints.

Essentially, you can have a bridge plaintiff who acts to keep the case alive for purposes of letting the class unfold.

That's really what then -- Justice Rehnquist was getting at in his decision in Roper, and we think there is a lot of force to that because otherwise, as Justice Ginsburg mentioned, the collective action mechanism doesn't even get off the ground.

Justice Ruth Bader Ginsburg: Well, you don't accept the argument that I suggested, that is Rule 16 -- 216, the Fair Labor Standards Act, in saying that you can commence a suit on behalf of others similarly situated, and implicit in that is that there be some decent interval for you to find similarly-situated people?

Neal Kumar Katyal: We absolutely agree with that and we think that's precisely the problem.

And this case illustrates it, Justice Ginsburg, because they -- we filed their complaint and 75 days later they filed their preemptive Rule 68 offer.

And now they are coming before the Court and saying something even more radical than I think any court has accepted to my knowledge, which is even filing a class certification motion along with the complaint wouldn't be enough.

That is something that would essentially cut the heart out of the collective action mechanism altogether.

Justice Ruth Bader Ginsburg: Why didn't -- why didn't you file the motion for certification along with the complaint?

Neal Kumar Katyal: Because the text of 216(b) provides for two different processes, both the filing of the complaint and then a subsequent opt-in process.

I suppose we could have done that.

That's what the Seventh Circuit has said to do in a case called Damasco, but this Court's decision in Hoffman-LaRoche says the entire collective action mechanism depends on notice and discovery to find out who those people are, to find out and make sure that they are similarly--

Justice Ruth Bader Ginsburg: But you could have done that with the complaint and I don't -- you say you want to get joiners, so why do you have to wait?

Why wouldn't you -- why wouldn't the most logical thing be to say, court, we have labelled this a collective action and now we want to start the ball rolling in getting certification.

Neal Kumar Katyal: --Your Honor, that is what we did.

We asked the district court right after the Rule 68 offer expired, within 4 days, to say: Please set up a class certification process.

And that process was then interrupted by their subsequent motion after the Rule 68 offer had expired to say: This case is moot.

Chief Justice John G. Roberts: It doesn't matter in terms of what the judge is supposed to do with your motion to certify if nobody else is in the case?

I mean, isn't that one of the factors.

I don't know if it's even a sort of good-faith pleading if -- if -- you want certification, but there is no nobody else there.

Neal Kumar Katyal: That's precisely, Mr. Chief Justice, why we think the Seventh Circuit rule doesn't make much sense.

To come in and to ask for certification before you've conducted the discovery and gotten the names, we think is really not the right way to go.

Rather, I think this Court's decisions in Iqbal and Twombly suggest that you've got to have some good-faith belief before you go and file a motion for class certification.

And I'd be very hesitant for this Court to -- to recommend a rule to litigants that says go and file your motion for class certification right away.

This Court, in McLaughlin, I think, essentially said that it's not about the timing of when that motion for certification unfolds.

At 500 US 68, the Court said,

"The fact the class was not certified until after the named plaintiffs' claims had become moot does not deprive the Court of jurisdiction. "

"We recognize in Gerstein that some claims are so transitory -- inherently transitory that the trial court will not even have enough time to rule on a motion for class certification. "

Justice Stephen G. Breyer: Well, you're interpreting -- I think it's true that we're interpreting the statute, and -- and I'm trying to look at what document are we interpreting?

Is there a different rule or a different -- what -- what rule?

So I could come back to the statute.

And Congress could deprive -- could provide exactly the system that you suggest.

I don't see anything unconstitutional about it.

But isn't it a little hard to read this statute as providing that mechanism, since what it says is no party shall -- no -- you know, it says what it says in the last two sentences.

How do we read that to foresee the mechanism that you're talking about?

Neal Kumar Katyal: Right.

I take it this is Mr. Mann's point, that people who aren't yet opted into a class are not parties, and, therefore, the Court can't properly consider them.

And I think that's the same exact thing in the class action context, is this question--

Justice Stephen G. Breyer: Well, he says the difference in the class action context is, in the class action context you can consider them there, but there isn't a specific sentence somewhere in a statute which says no one shall be a party unless he signs in writing.

Neal Kumar Katyal: --Your Honor, I think nothing turns on their designation as party status or not; rather, the relation-back doctrine, to the extent the Court wants to get into it and deem this offer where we got nothing, somehow they want to deem it against us, but if it does, and wants to get into the relation-back doctrine, I think it would find that it is based on the idea that the cases would otherwise go away, and that you need a bridge plaintiff.

Justice Stephen G. Breyer: Well, why?

Why?

Neal Kumar Katyal: And it's a very important reason--

Justice Stephen G. Breyer: Because that's -- why?

Why is my question?

Neal Kumar Katyal: --The reason for that goes back to this Court's decision in Flast -- in Flast, in which it said that in the kinds of cases we're talking about here, it's not as if we're risking a merits judgment in which relief is going to be imposed against one party and possibly trench on the separation of powers.

Rather, the worst that happens if you rule for us, or if you rule for the plaintiffs in those cases, is that the case goes back down on remand to find out whether or not any of those parties can be identified and come forward.

If they do, then you can reach the merits.

But this is a very different separation of powers inquiry than the one -- in the case in controversy inquiry than the one that the Court traditionally handles.

Justice Antonin Scalia: It -- it's hard for me to accept the relation-back doctrine for your purposes when -- when it's clear under the statute that if parties come in beyond the statute of limitations period, they're not in.

Their -- their entry is not deemed to relate back to the filing of the original complaint, is it?

Neal Kumar Katyal: It -- for purposes of the statute of limitations, exactly.

Justice Antonin Scalia: For purposes of the statute of -- so you want one relation-back doctrine for the statute and a different one for what we're discussing here.

Neal Kumar Katyal: Absolutely.

And we think, actually--

Justice Antonin Scalia: I know you do.

Neal Kumar Katyal: --And -- and, Justice Scalia, we think that that statute of limitations argument cuts the other way.

So the statute of limitations provision, which is section 255, says that,

"in determining when an act is commenced for purposes of the statute. "

And so we don't think it bears on the question or not of whether relation back applies.

Much to the contrary, the real worry in the class action context, and, indeed, my friend's opening line is,

"These cases are going to linger forever, and the defendants are going to have no tool. "

But in the Fair Labor Standards Act context, actually, it's the very reverse because every day counts against the plaintiffs and their counsel.

They are incentivized to bring these cases quickly because the clock is literally ticking.

And so you don't have, I think, the same worry that you do in the regular class action context of one plaintiff who can essentially save the day for all of the different -- for all of the different parties.

Justice Elena Kagan: Mr. Katyal, if we do get to the question that Mr. Mann wants us to raise, you spend a lot of time talking about McLaughlin and talking about Gerstein.

Those cases were about prospective relief.

You're asking for retrospective relief.

Why doesn't that make a difference?

Neal Kumar Katyal: We think that it is a difference, but we don't think it's enough to change this.

And it's for the reasons that then-Justice Rehnquist said in Roper.

Here -- here is what he said.

This is at 445 U.S. 341.

"The distinguishing feature here is that the Defendant has made an unaccepted offer. "

"The action is moot in the Article III sense only if this Court adopts a rule an individual seeking to proceed as class representative is required to accept a tender of only his individual claims. "

"acceptance need not be mandated under our precedents since the Defendant has not been offered all that has been requested in the complaint, i.e., relief for the class, and any other rule. "

"would make the questions unreviewable. "

And it's the same point.

He is talking there about a retrospective action for damages.

The rule that we are seeking here is no different than what then-Justice Rehnquist said in Roper.

Justice Anthony Kennedy: Do we take this case on the premise that you would have objected if a judgment had been entered in your favor for the full amount plus attorney's fees?

Neal Kumar Katyal: I think you should.

And this is in response to what Justice Alito had said in the first part of the argument.

It is not as if we didn't ask for a hearing.

Absolutely, we asked for a fairness hearing at joint appendix page 110 in the district court, and then again at the Third Circuit.

And what we asked for specifically was review of the contours of the offer.

This is at joint appendix page 110.

We said, quote -- excuse me, 111,

"there has been no review and/or approval by this Court of defendant's offer of judgment to the plaintiff. "

and for that reason we said, quote,

"dismissal is inappropriate at this early procedural juncture. "

So this case comes to the Court having asked that particular question about the contours of the offer.

We think that an offer that never gave Miss Symczyk anything is one that didn't make her whole, and for that--

Justice Samuel Alito: If I were to -- I'm sorry.

If I were to think that the individual plaintiff's claim isn't moot until a judgment is entered into her favor, but that -- but that, that issue, was not preserved, can you give me an analog that I should think about with respect to the second question?

Neal Kumar Katyal: --Sure.

Justice Samuel Alito: Should I -- yes.

Neal Kumar Katyal: I think that the best way to think about it is the -- the category of cases from Geraghty, Gerstein and Swisher suggest that if the -- if you wanted to hold that offer against us, that you would then say, as Judge Sirica did, the relation-back doctrine looks similar enough to the 216(b) context in this specific area.

Because, otherwise, the 216(b) collective actions won't work the way Congress intended them to work.

Justice Samuel Alito: Well, should I assume that this is the same -- the case would then be the same as if a default judgment had been entered in your favor for that amount?

Neal Kumar Katyal: I think -- well, it's hard to know how you'd hold that offer against us in that -- and the way in which you did so, I think, informs that second question.

And that's part of the reason why we think it is a predicate question.

I suppose that yes, you could say -- one path available is to say it is a default judgment now that is imposed on us, along the lines of the Second Circuit decision; and, if so, then, as the Solicitor General says at pages 15 to 18, the then-appropriate course would have been for the district court to evaluate whether other people could opt into the class using the procedures of Hoffman-LaRoche.

Justice Sonia Sotomayor: --to get the point -- the Court had to evaluate whether the offer actually met your personal damages claim, too.

Neal Kumar Katyal: Oh, absolutely, Justice Sotomayor.

Justice Sonia Sotomayor: And what you're saying--

Neal Kumar Katyal: We were proceeding on the hypothetical.

Justice Sonia Sotomayor: --in those pages is the Court didn't even do that.

Neal Kumar Katyal: Exactly.

I was proceeding on the hypothetical that -- that for one reason or another, the Court can't reach that question.

And we think Lebron absolutely permits this Court to do so, and we think it's prudent for this Court to reach that question first, because you can side step and avoid what is undoubtedly a very difficult constitutional question about exceptions to Article III mootness and the relation-back doctrine.

Chief Justice John G. Roberts: Thank you, counsel.

We'll hear from Mr. Yang now.

ORAL ARGUMENT OF ANTHONY A. YANG, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING RESPONDENT

Anthony A. Yang: Mr. Chief Justice, and may it please the Court:

Respondent has never been compensated for her individual damage claim, nor has she received a court judgment favorably adjudicating that claim.

It follows that her individual claim remains live, as does this collective action.

More generally, a settlement offer does not moot a claim if it is not accepted.

Individual freedom of contract is basic to our legal system, and mutual assent is always a necessary element for any settlement.

Rule 68 embodies those principles.

Justice Stephen G. Breyer: How does that differ from an employee who says -- he is annoyed for a variety of reasons at the employer and he sues the employer for his pay, for his pay for the month of October.

The employer says: He got his pay; I -- I sent him the check; I mean, he gets it every month.

And he says: Yes, but I didn't cash the check.

Is there a case for controversy?

He can go sue for his paycheck that he didn't cash?

Anthony A. Yang: Well, if you're -- you're -- I'm not sure what the injury would be in that case.

Justice Stephen G. Breyer: Okay.

So why is it any different when the -- the defendant employer says, here's the check.

Anthony A. Yang: Well, there's a difference--

Justice Stephen G. Breyer: And he says: Oh, I didn't cash it.

Anthony A. Yang: --This -- this I think speaks somewhat to Justice Scalia's point earlier on, which is there -- there are three elements to Article III standing and it also carries through a bit to mootness.

One is an injury in fact.

When we are talking about retrospective claims, there is a past injury.

If you get a payment or court redress, it doesn't eliminate the injury.

The injury continues to exist.

Redressability--

Justice Stephen G. Breyer: Now we have a case if the employer for some reason, a mistake in bookkeeping or something, didn't send the check on time, so it arrived 3 days late.

And he says: Ha, I'm not cashing the check; now I can sue him.

Right?

That's your theory.

Anthony A. Yang: --Well, if there is a violation of the Fair Labor Standards Act -- and I'm not sure that that would be a violation of the Fair Labor Standards Act--

Justice Stephen G. Breyer: No, no.

He -- he -- it's a contract.

You know.

He -- he is paid every month, the end of the month.

Anthony A. Yang: --Well, if there is a breach of a contract, that is an injury.

And it is a past--

Justice Stephen G. Breyer: Even though the -- the employer gave him the paycheck.

He just didn't cash it.

Plus the damage is for the 3 days.

Anthony A. Yang: --If I can just finish, I think it is a past injury.

It is traceable to the defendant, and it is redressable because the requested relief would redress it.

There may well be a defense on the merits.

It may well be that there was payment.

It could -- there could be accord and satisfaction.

Chief Justice John G. Roberts: I'm not sure I understand.

You think there is a live case, not if he doesn't cash it, but I guess as Justice Breyer was asking, if it's a day late?

You -- you said, well, there was a past injury, it was a day late, it -- it, you know, could be redressed by telling him what?

Pay him again?

Or--

Anthony A. Yang: Well, no.

I -- I guess there is a few questions.

If they -- if the defendant had played the plaintiff, then you would have what is traditionally known as -- and it's accepted -- you would have accord and satisfaction.

It is an affirmative defense in Rule 8(c).

Chief Justice John G. Roberts: --Well, you would also have what's usually known as no injury.

Anthony A. Yang: Well, again, I think it's important to distinguish between injury and something that redresses an injury.

Redress of an injury, like a court redress, which is the only question that's relevant in Article III, whether the requested relief from the court would redress the injury.

Now--

Chief Justice John G. Roberts: So you think a court has to go through the whole process of a trial if the check is a day late and the employer says, I'm sorry, here's, you know, whatever the interest is on the check?

Anthony A. Yang: --No, certainly not.

And this is what -- what we say is the right approach, although it's not a question of mootness: If an employer comes in and throws up their hands in court and says, it's not worth it, I want to forfeit, I want to just pay the judgment -- and -- and by the way, this would not have the issue preclusive effect notwithstanding my friend's statement earlier.

Chief Justice John G. Roberts: I'm sorry.

Could you directly answer my question about--

Anthony A. Yang: The court can simply enter judgment.

It can simply enter judgment to -- to stop pointless litigation.

That's the normal course, is that if there is a past injury, it's redressable, but the defendant comes in and either says accord and satisfaction and says that there is no merits claim--

Chief Justice John G. Roberts: --Yes.

Anthony A. Yang: --or I just give up on the merits--

Chief Justice John G. Roberts: Or the plaintiff says no -- no standing.

Anthony A. Yang: --Well, no.

Again, I -- I don't think it's a question of standing because there is two issues going on.

Standing has to exist at the beginning of the suit.

It's assessed at the date that the complaint is filed.

Chief Justice John G. Roberts: And -- and, as we've said, at every stage of the litigation.

Anthony A. Yang: Right.

That's the -- the mootness inquiry, then.

It has to continue to persist throughout the litigation.

Now, the fact that you have had some redress of some sort in the form of a private contract, that doesn't eliminate the past injury, nor does it mean that the court could not, if the court were to give additional damages relief--

Chief Justice John G. Roberts: So if you're due -- if you're due $100 from your employer, it's a day late, he gives you $100, and he says, well, here's another dollar for interest, that, as you said, doesn't eliminate the past injury?

Anthony A. Yang: --It doesn't eliminate the injury.

It might be compensation for the injury.

The injury would -- once a past injury occurs, it's there.

It's unlike a prospective injury, which can be stopped.

When you -- when you seek injunctive relief, you need have to have an imminent on ongoing injury.

If the defendant stops, that can eliminate the injury and then you go into questions of voluntary cessation.

But with respect to past injury, it's quite different.

Now, I think the possibility of courts wasting their time on this cases is quite small.

There is all sorts of incentives for a plaintiff not to bring these suits.

There is questions of vexatious litigation.

But that's not what we have here.

We have in the Fair Labor Standards Act a judgment by Congress that employees are to have a right in the -- to -- to go forward in the collective form.

And as Justice Kennedy's opinion for the Court in Hoffman-LaRoche recognizes, section 216 imposes upon district courts a managerial responsibility to join plaintiffs in an orderly way.

And the -- the collective action ties in with other aspects of the Fair Labor Standards Act.

The action is designed, as Hoffman-LaRoche says, to serve the important function of preventing violations.

It also says that the -- the collective action is to be enforced to the full extent of its terms.

These are judgments that Congress made because they were trying to protect particularly vulnerable employees in our society.

These are nonunionized generally, low-wage employees without bargaining power.

Congress created liquidated damages in order to provide a strong deterrent for employers to comply with the law.

And also--

Justice Antonin Scalia: Mr. Yang, would -- would you continue with what you started speaking to, issue preclusion, because I'm -- I'm also -- I think it's questionable whether there would be issue preclusion on the basis of a judgment issued with the concession of the defendant.

Anthony A. Yang: --Yeah.

This -- this is page 14, footnote 2 of our brief.

Issue -- there might be claim preclusion in that the defendant would not be able to bring other claims associated, res -- traditional res judicata.

But for a judgment entered by a concession, the actual issue is not litigated and necessary to the judgment.

And so it's well established that that would not serve any issue preclusive effect, and in fact I think if it did it would put a chill on the ability of people to settle their disputes through offers of judgment.

So our solution that we provide the Court, we think, is the only solution that provides a practical way to accommodate the very important interests that are at issue in this case.

One, it recognizes the district court's discretion to resolve the case in a sensible way in order to--

Justice Elena Kagan: So, Mr. Yang, do you think it would be -- I -- I mean, I take the point completely that judgment was rendered against the wrong party here.

But if the judgment had been rendered against Ms. Symczyk -- for Ms. Symczyk, but -- but the court had done so prior to looking at the whole class question--

Anthony A. Yang: --Right.

Justice Elena Kagan: --do you think that that would be an abuse of the court's discretion?

Do you think that the court has to look at the class question before rendering judgment for an individual plaintiff?

Anthony A. Yang: In the context of a collective action, yes, because of the congressional policy that gives plaintiffs a right to proceed collectively.

That said, the collective process does not have to be a burdensome one.

There are certain small claim, idiosyncratic claims that a court can simply look at the -- the allegations and say, there are not going to be similarly situated people here.

But when we have an allegation like we have here, which there is a widespread policy of deducting 30 minutes a day, notwithstanding the employer's knowledge that the employers -- employees are working through that lunch break, there is every reason to think that there is a substantial body of -- of employees similarly situated, and it would be an abuse of discretion for the Court not to proceed at least down that road, provide some discovery, facilitate class notice -- as the Court in Hoffman-LaRoche recognizes is the appropriate thing to do under Section 216 -- and at the end of that process, which could be short for some cases, a little longer for some, should be, of course, always exercised in the Court's sound discretion.

At the end of the case, if there are more plaintiffs who opt in, then it proceeds as a collective action.

If it remains the single plaintiff, the Court might decide to enter judgment.

Now, we don't think that follows, Justice Sotomayor, from Rule 68.

It simply follows from the fact that the Defendant is willing to just to pay, to give up.

It won't have issue-preclusive effect; it resolves the dispute: Judgment in the amount of $7,500, attorneys' fees, costs.

Justice Sonia Sotomayor: But what you're talking about is imputing into this process a fairness hearing, essentially, to see, by the district court, to determine whether this is a quirky case where you entered a judgment and you don't need collective action or whether or not this is a genuine case that requires joining plaintiffs.

Anthony A. Yang: May I answer the question?

Chief Justice John G. Roberts: Certainly.

Anthony A. Yang: I don't think it's a fairness hearing.

I think what it does is -- it -- it's a question about whether there are people similarly situated, and if there are plaintiffs similarly situated, the case should proceed.

If, at that point, the defendant wants to pay everyone, it certainly could do so.

But my guess is usually the -- the claims would be litigated on the merits of that.

Chief Justice John G. Roberts: Thank you, counsel.

Anthony A. Yang: Thank you.

Chief Justice John G. Roberts: Mr. Mann, you have four minutes remaining.

REBUTTAL ARGUMENT OF RONALD MANN ON BEHALF OF THE PETITIONERS

Ronald Mann: Thank you, Mr. Chief Justice, and may it please the Court:

I think the most useful thing to do is to address the point that Justice Breyer has raised several times because I think it's important to discuss the relationship between what I would call the statutory facts and the constitutional questions that they might raise.

And so I do think it's fair in a sense to think about this as a statutory case.

When a plaintiff files suit in a Federal court, often the cause of action rests on a statute that Congress has adopted.

Those statutes have a lot of attributes that Congress can control to make it easier or harder for a defendant to make an offer of complete relief.

They can provide for mandatory seeking of attorney's fees, as this one does.

They can alter the rules for shifting costs, as perhaps the Fair Debt Collection Practices Act does from last month.

They can provide for injunctive or declaratory relief, which makes it basically impossible.

But Congress gets to decide, when they write a statute, whether they want to make it a statute for which it--

Justice Stephen G. Breyer: All right.

That's true.

And so what we would be reading into this statute is a relation-back doctrine, which happens every day of the week in class action cases and has historical analogies.

So I understand the difference you're pointing to, but why not read that in?

It would be fair, and it would get the job done that Congress sets up in the statute.

That's the argument the other way.

Ronald Mann: --Well, that leads me to the second point I wanted to make, which is exactly what is the constitutional problem.

And I think the way to get to it is when my colleague, Mr. Katyal, refers to the worst that happens, well, the worst that happens, I think it's -- it's important to understand what the worst thing is that happens.

The worst thing is -- that happens is the case is on the docket of the Federal district judge, and there is no plaintiff with an interest.

And the procedure in the district court is we should spend some time, have some discovery, look around to see if we can find another plaintiff.

And so I think that that's a different problem from how the district court should decide the order of hearing -- of deciding motions.

If the problem is--

Justice Ruth Bader Ginsburg: Mr. Mann, if this is -- if what Mr. Yang just told us is so, then there would be no issue preclusion because there has been no adjudication of anything.

Then it seems to me that this case falls into a classic exception to mootness, which is defendant's voluntary cessation doesn't moot a controversy; and, this controversy is capable of repetition yet evasive review because every time -- so the plaintiff's got this judgment, not preclusive.

The employer continues in the old ways.

The plaintiff sues again.

This seems to me to fit exactly into that category of cases.

If there is no issue preclusion, defendant doesn't have to stop the practice, can continue the practice, and then every time there is a suit say, okay, we'll pay the judgment.

Ronald Mann: --So I spoke unartfully before.

Obviously, there is a difference between claim preclusion and issue preclusion.

And what I was attempting to say, unartfully I will agree, was the extent of preclusion will depend on the issues that are actually litigated in the proceeding.

And so I don't--

Justice Ruth Bader Ginsburg: But there is nothing litigated when you have--

Ronald Mann: --Claim preclusion is going to apply because there's a judgment by--

Justice Ruth Bader Ginsburg: --Claim preclusion, but the claim is, for this period of time I wasn't given the compensation.

That's the claim.

Ronald Mann: --But it is--

Justice Ruth Bader Ginsburg: And then there is another period of time, and there is no issue preclusion.

Ronald Mann: --But in this particular case, there's no further dispute likely to occur between these parties.

These -- she no longer works for us.

There is no reason to think she is going to work for us again.

The Court has extended the capable of repetition and -- review to class actions in three cases: Gerstein, Riverside, and Swisher.

But in those cases, what happened was the plaintiff sought prospective injunctive relief.

The case became moot.

If the Court has held that those cases were outside of Article III, the result would have been that the defendant could have been engaging in the conduct that allegedly violated Federal law and would never have had to change.

In this case, what happened -- in this case and in the cases like this, what happens is someone seeks purely prospective -- retrospective relief for something, an injury that is complete.

Except for their attorneys, she would have received complete relief.

We didn't engage in our conduct any longer.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.