Friday, May 10, 2013

SCOTUS Justice Kagan Ridicules Roberts Court's "Make-Believe" Problems

The Supreme Court is certainly not without humor these days. In a dissent worthy of the best writings of the late Molly Ivins, Justice Elena Kagan puts the corporatist Roberts Court to ridicule in her dissent of Genesis Healthcare vs. Symczyk. Ridiculing the Roberts Court for setting up a make-believe problem, she claims in her dissent that they make errors that even a first-year law student would avoid. The ruling was issued on April 16th of this year.
John Roberts seeks to leave his mark on the court. First and foremost, he sees the American Corporation as the ultimate force for good. This is based on his signature decision, Citizens United, as well as his consistent pattern of ruling in favor of the corporation over the individual in suits brought before the body. For instance, there have been four recent cases since March 27th involving corporations versus individuals and Roberts has sided with the corporation in all of them.
Roberts' view is similar to those of John Ashcroft and Donald Trump. On his show The Apprentice, Donald Trump sometimes touts the number of jobs that certain corporations have created in this country. And Ashcroft, during his time as George Bush's attorney general, nearly always sided with the corporation in court cases over individuals.
Roberts' second priority is preserving the Supreme Court as an institution. This is evident in two things. His second signature decision is the one upholding Obamacare. He is pragmatic enough to realize that if the Supreme Court decisions sound too much like propaganda pieces from the Republican Party, it will fatally undermine the legitimacy of the court as an institution. The other pattern that we see is efforts to break up the tribalism within the court. Many of the rulings this term have not broken along the 5-4 lines that many observers would expect. But when a corporation has a case before the Supreme Court, Roberts welds the other four Republican-appointed justices as a voting bloc in an effort to create government by the corporation for the corporation.
This devotion to the cause of government by and for the corporation has led detractors like Justice John Paul Stevens in Citizens United and Kagan in Genesis HealthCare to accuse him of acting sua sponte, or considering matters that were never argued by the parties.
In Genesis, respondent Symczyk brought a collective action under the Fair Labor Standards Act of 1938 on behalf of herself and "other employees similarly situated." Genesis subsequently offered a consent judgment to her under the case; however, Symczyk, believing the offer an attempt to pick her off, turned it down. The District Court ruled that since no other individuals had joined her suit, that her suit was therefore moot and dismissed it for lack of subject matter jurisdiction.
However, the Third Circuit reversed, saying that her individual claim was moot but that her collective action was not, saying that Genesis' attempt to pick her off went against the goal of collective actions.
In a 5-4 ruling, the Supreme Court held that because Symczyk had no personal interest in representing "putative unnamed claimants nor any other continuing interest," the suit was appropriately dismissed.
Genesis would deduct 30 minutes of time worked per shift for meal breaks for certain employees even when the employees performed work during those breaks. Symczyk sought damages for the alleged violations. The offer, which she turned down, included $7,500 for unpaid wages as well as attorney's fees, costs, and expenses as the Court may determine. After Symczyk failed to respond to the offer, Genesis turned around and claimed that because they had offered her complete relief on her individual damages claim, she no longer possessed a personal stake. The Roberts Bloc agreed. However, the danger in this ruling is that it will undermine the Fair Labor Standards Act, the intent of which was to compel wholesale changes to bring large corporations into compliance with the act. Under this ruling, a corporation could offer to settle with someone for the full amount under future actions brought under this act and then turn around and continue the same practices that led to the suit elsewhere.
But Justice Clarence Thomas, speaking for the majority, said that the court was simply doing its job by restricting itself to actual controversies in accordance with the Constitution.
This requirement ensures that the Federal Judiciary confines itself to its constitutionally limited roleof 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.’”
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.
Thomas then reasoned that since nobody else had joined the suit, the collective action clause did not save Symczyk:
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.
Thomas then turned to similar cases decided in the past. The Supreme Court has ruled in the past that since an independent class action has been certified, the class action takes on a life of its own even if Symczyk's case had become moot. And the court has ruled in the past that if Symczyk's individual case had not been moot, then her case would still be active even if the courts were to deny class action. But Thomas argued that the Fair Labor Standards Act did not apply:
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 con- sent with the court, §216(b). So even if respondent were to secure a conditional certification ruling on remand, nothing in that ruling would preserve her suit from mootness.
Thomas said that settlement offers such as the one made by Genesis do not foreclose others from filing their own suits:
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.
However, the unintended consequence of this ruling will be to clog the courts with lawsuits. Collective suits under the Fair Labor Standards Act as well as Class Action suits were specifically designed to avoid the clogging of courts with many similar actions that set no valid legal precedent. But Justice Elena Kagan, speaking for the minority, opens with this broadside:
The Court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it.
She accuses the majority of substituting political activism for determining the facts of the case at hand:
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.
She then takes both lower courts to task:
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.”
In other words, implying that Roberts is breaking his own precedent, contrary to what he promised the Senate during his confirmation hearings. Kagan then takes the court to task for what she says are mistakes that even a first-year law student would avoid:
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.”
She reasoned that since Symczyk's suit was not negated by the settlement offer, she still had a personal interest in the case:
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.
The consequences, she says, involve plunging into a world of make-believe:
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.
The spirit of Molly Ivins lives on.

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