Genesis HealthCare Corp. v. Symczyk

(Slip Opinion) OCTOBER TERM, 2012 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GENESIS HEALTHCARE CORP. ET AL. v. SYMCZYK

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 11–1059. Argued December 3, 2012—Decided April 16, 2013

Respondent brought a collective action under the Fair Labor Standards

Act of 1938 (FLSA) on behalf of herself and “other employees similar-

ly situated.” 29 U. S. C. §216(b). After she ignored petitioners’ offer

of judgment under Federal Rule of Civil Procedure 68, the District

Court, finding that no other individuals had joined her suit and that

the Rule 68 offer fully satisfied her claim, concluded that respond-

ent’s suit was moot and dismissed it for lack of subject-matter juris-

diction. The Third Circuit reversed. It held that respondent’s indi-

vidual claim was moot but that her collective action was not,

explaining that allowing defendants to “pick off” named plaintiffs be-

fore certification with calculated Rule 68 offers would frustrate the

goals of collective actions. The case was remanded to the District

Court to allow respondent to seek “conditional certification,” which, if

successful, would relate back to the date of her complaint.

Held: Because respondent had no personal interest in representing pu-

tative, unnamed claimants, nor any other continuing interest that

would preserve her suit from mootness, her suit was appropriately

dismissed for lack of subject-matter jurisdiction. Pp. 3–12.

(a) While the Courts of Appeals disagree whether an unaccepted

Rule 68 offer that fully satisfies a plaintiff’s individual claim is suffi-

cient to render that claim moot, respondent conceded the issue below

and did not properly raise it here. Thus, this Court assumes, without

deciding, that petitioners’ offer mooted her individual claim. Pp. 3–5.

(b) Well-settled mootness principles control the outcome of this

case. After respondent’s individual claim became moot, the suit be-

came moot because she had no personal interest in representing oth-

ers in the action. To avoid that outcome, respondent relies on cases

that arose in the context of Rule 23 class actions, but they are inap-

2 GENESIS HEALTHCARE CORP. v. SYMCZYK

Syllabus

posite, both because Rule 23 actions are fundamentally different from

FLSA collective actions and because the cases are inapplicable to the

facts here. Pp. 5–11.

(1) Neither Sosna v. Iowa, 419 U. S. 393, nor United States Pa-

role Comm’n v. Geraghty, 445 U. S. 388, support respondent’s posi-

tion. Geraghty extended the principles of Sosna—which held that a

class action is not rendered moot when the named plaintiff’s individ-

ual claim becomes moot after the class has been duly certified—to

denials of class certification motions; and it provided that, where an

action would have acquired independent legal status but for the dis-

trict court’s erroneous denial of class certification, a corrected ruling

on appeal “relates back” to the time of the erroneous denial. 445

U. S., at 404, and n. 11. However, Geraghty’s holding was explicitly

limited to cases in which the named plaintiff ’s claim remains live at

the time the district court denies class certification. See id., at 407,

n. 11. Here, respondent had not yet moved for “conditional certifica-

tion” when her claim became moot, nor had the District Court antici-

patorily ruled on any such request. She thus has no certification de-

cision to which her claim could have related back. More

fundamentally, essential to Sosna and Geraghty was the fact that a

putative class acquires an independent legal status once it is certified

under Rule 23. By contrast, under the FLSA, “conditional certifica-

tion” does not produce a class with an independent legal status, or

join additional parties to the action. Pp. 7–8.

(2) A line of cases holding that an “inherently transitory” class-

action claim is not necessarily moot upon the termination of the

named plaintiff’s claim, see, e.g., County of Riverside v. McLaughlin,

500 U. S. 44, 52, is similarly inapplicable. Respondent argues that a

defendant’s use of Rule 68 offers to “pick off” a named plaintiff before

the collective-action process is complete renders the action “inherent-

ly transitory.” But this rationale was developed to address circum-

stances in which the challenged conduct was effectively unreviewable

because no plaintiff possessed a personal stake in the suit long

enough for litigation to run its course, and it has invariably focused

on the fleeting nature of the challenged conduct giving rise to the

claim, not on the defendant’s litigation strategy. Unlike a claim for

injunctive relief, a damages claim cannot evade review, nor can an of-

fer of full settlement insulate such a claim from review. Putative

plaintiffs may be foreclosed from vindicating their rights in respond-

ent’s suit, but they remain free to do so in their own suits. Pp. 8–10.

(3) Finally, Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326,

does not support respondent’s claim that the purposes served by the

FLSA’s collective-action provisions would be frustrated by defend-

ants’ use of Rule 68 to “pick off” named plaintiffs before the collective-

Cite as: 569 U. S. ____ (2013) 3

Syllabus

action process has run its course. In Roper, where the named plain-

tiffs’ individual claims became moot after the District Court denied

their Rule 23 class certification motion and entered judgment in their

favor based on defendant’s offer of judgment, this Court found that

the named plaintiffs could appeal the denial of certification because

they possessed an ongoing, personal economic stake in the substan-

tive controversy, namely, to shift a portion of attorney’s fees and ex-

penses to successful class litigants. Here, respondent conceded that

petitioners’ offer provided complete relief, and she asserted no con-

tinuing economic interest in shifting attorney’s fees and costs. More-

over, Roper was tethered to the unique significance of Rule 23 class

certification decisions. Pp. 10–11.

656 F. 3d 189, reversed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. KAGAN, J., filed a

dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ.,

joined.

Cite as: 569 U. S. ____ (2013) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–1059

_________________

GENESIS HEALTHCARE CORPORATION, ET AL.,

PETITIONERS v. LAURA SYMCZYK

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[April 16, 2013]

JUSTICE THOMAS delivered the opinion of the Court.

The Fair Labor Standards Act of 1938 (FLSA), 29

U. S. C. §201 et seq., provides that an employee may bring

an action to recover damages for specified violations of the

Act on behalf of himself and other “similarly situated”

employees. We granted certiorari to resolve whether such

a case is justiciable when the lone plaintiff ’s individual

claim becomes moot. 567 U. S. ___ (2012). We hold that it

is not justiciable.

I

The FLSA establishes federal minimum-wage, maximum-

hour, and overtime guarantees that cannot be modified

by contract. Section 16(b) of the FLSA, 52 Stat. 1060, as

amended, 29 U. S. C. §216(b), gives employees the right

to bring a private cause of action on their own behalf and

on behalf of “other employees similarly situated” for speci-

fied violations of the FLSA. A suit brought on behalf of

other employees is known as a “collective action.” See

Hoffmann-La Roche Inc. v. Sperling, 493 U. S. 165, 169–

170 (1989).

In 2009, respondent, who was formerly employed by

2 GENESIS HEALTHCARE CORP. v. SYMCZYK

Opinion of the Court

petitioners as a registered nurse at Pennypack Center in

Philadelphia, Pennsylvania, filed a complaint on behalf of

herself and “all other persons similarly situated.” App.

115–116. Respondent alleged that petitioners violated the

FLSA by automatically deducting 30 minutes of time

worked per shift for meal breaks for certain employees,

even when the employees performed compensable work

during those breaks. Respondent, who remained the sole

plaintiff throughout these proceedings, sought statutory

damages for the alleged violations.

When petitioners answered the complaint, they simul-

taneously served upon respondent an offer of judgment

under Federal Rule of Civil Procedure 68. The offer in-

cluded $7,500 for alleged unpaid wages, in addition to

“such reasonable attorneys’ fees, costs, and expenses . . .

as the Court may determine.” Id., at 77. Petition-

ers stipulated that if respondent did not accept the offer

within 10 days after service, the offer would be deemed

withdrawn.

After respondent failed to respond in the allotted time

period, petitioners filed a motion to dismiss for lack of

subject-matter jurisdiction. Petitioners argued that be-

cause they offered respondent complete relief on her indi-

vidual damages claim, she no longer possessed a personal

stake in the outcome of the suit, rendering the action

moot. Respondent objected, arguing that petitioners were

inappropriately attempting to “pick off ” the named plain-

tiff before the collective-action process could unfold. Id., at

91.

The District Court found that it was undisputed that no

other individuals had joined respondent’s suit and that the

Rule 68 offer of judgment fully satisfied her individual

claim. It concluded that petitioners’ Rule 68 offer of judg-

ment mooted respondent’s suit, which it dismissed for lack

of subject-matter jurisdiction.

The Court of Appeals reversed. 656 F. 3d 189 (CA3

Cite as: 569 U. S. ____ (2013) 3

Opinion of the Court

2011). The court agreed that no other potential plaintiff

had opted into the suit, that petitioners’ offer fully satis-

fied respondent’s individual claim, and that, under its

precedents, whether or not such an offer is accepted, it

generally moots a plaintiff ’s claim. Id., at 195. But the

court nevertheless held that respondent’s collective action

was not moot. It explained that calculated attempts by

some defendants to “pick off ” named plaintiffs with stra-

tegic Rule 68 offers before certification could short circuit

the process, and, thereby, frustrate the goals of collective

actions. Id., at 196–198. The court determined that the

case must be remanded in order to allow respondent to

seek “conditional certification”1 in the District Court. If

respondent were successful, the District Court was to

relate the certification motion back to the date on which

respondent filed her complaint.2 Ibid.

II

Article III, §2, of the Constitution limits the jurisdiction

of federal courts to “Cases” and “Controversies,” which

——————

1 Lower courts have borrowed class-action terminology to describe the

process of joining co-plaintiffs under 29 U. S. C. §216(b). While we do

not express an opinion on the propriety of this use of class-action

nomenclature, we do note that there are significant differences between

certification under Federal Rule of Civil Procedure 23 and the joinder

process under §216(b).

2 The “relation back” doctrine was developed in the context of class

actions under Rule 23 to address the circumstance in which a named

plaintiff’s claim becomes moot prior to certification of the class. This

case raises two circumstances in which the Court has applied this

doctrine. First, where a named plaintiff’s claim is “inherently transi-

tory,” and becomes moot prior to certification, a motion for certification

may “relate back” to the filing of the complaint. See, e.g., County of

Riverside v. McLaughlin, 500 U. S. 44, 51–52 (1991). Second, we have

held that where a certification motion is denied and a named plaintiff’s

claim subsequently becomes moot, an appellate reversal of the certifica-

tion decision may relate back to the time of the denial. See United

States Parole Comm’n v. Geraghty, 445 U. S. 388, 404 (1980).

4 GENESIS HEALTHCARE CORP. v. SYMCZYK

Opinion of the Court

restricts the authority of federal courts to resolving “ ‘the

legal rights of litigants in actual controversies,’ ” Valley

Forge Christian College v. Americans United for Separa-

tion of Church and State, Inc., 454 U. S. 464, 471 (1982)

(quoting Liverpool, New York & Philadelphia S. S. Co. v.

Commissioners of Emigration, 113 U. S. 33, 39 (1885)). In

order to invoke federal-court jurisdiction, a plaintiff must

demonstrate that he possesses a legally cognizable inter-

est, or “ ‘personal stake,’ ” in the outcome of the action. See

Camreta v. Greene, 563 U. S. ___, ___ (2011) (slip op., at 5)

(quoting Summers v. Earth Island Institute, 555 U. S. 488,

493 (2009)). This requirement ensures that the Federal

Judiciary confines itself to its constitutionally limited role

of adjudicating actual and concrete disputes, the resolu-

tions of which have direct consequences on the parties

involved.

A corollary to this case-or-controversy requirement is

that “ ‘an actual controversy must be extant at all stages of

review, not merely at the time the complaint is filed.’ ”

Arizonans for Official English v. Arizona, 520 U. S. 43, 67

(1997) (quoting Preiser v. Newkirk, 422 U. S. 395, 401

(1975)). If an intervening circumstance deprives the

plaintiff of a “personal stake in the outcome of the law-

suit,” at any point during litigation, the action can no

longer proceed and must be dismissed as moot. Lewis v.

Continental Bank Corp., 494 U. S. 472, 477–478 (1990)

(internal quotation marks omitted).

In the proceedings below, both courts concluded that

petitioners’ Rule 68 offer afforded respondent complete

relief on—and thus mooted—her FLSA claim. See 656

F. 3d, at 201; No. 09–5782, 2010 WL 2038676, *4 (ED Pa.,

May 19, 2010). Respondent now contends that these

rulings were erroneous, because petitioners’ Rule 68 offer

lapsed without entry of judgment. Brief for Respondent

12–16. The United States, as amicus curiae, similarly

urges the Court to hold that petitioners’ unaccepted offer

Cite as: 569 U. S. ____ (2013) 5

Opinion of the Court

did not moot her FLSA claim and to affirm the Court of

Appeals on this basis. Brief for United States 10–15.

While the Courts of Appeals disagree whether an un-

accepted offer that fully satisfies a plaintiff ’s claim is

sufficient to render the claim moot,3 we do not reach this

question, or resolve the split, because the issue is not

properly before us. The Third Circuit clearly held in this

case that respondent’s individual claim was moot. 656

F. 3d, at 201. Acceptance of respondent’s argument to the

contrary now would alter the Court of Appeals’ judgment,

which is impermissible in the absence of a cross-petition

from respondent. See Northwest Airlines, Inc. v. County of

Kent, 510 U. S. 355, 364 (1994); Trans World Airlines, Inc.

v. Thurston, 469 U. S. 111, 119, n. 14 (1985). Moreover,

even if the cross-petition rule did not apply, respondent’s

waiver of the issue would still prevent us from reaching it.

In the District Court, respondent conceded that “[a]n offer

of complete relief will generally moot the [plaintiff ’s]

claim, as at that point the plaintiff retains no personal

interest in the outcome of the litigation.” App. 93; 2010

WL 2038676, at *4. Respondent made a similar conces-

sion in her brief to the Court of Appeals, see App. 193, and

failed to raise the argument in her brief in opposition to

the petition for certiorari. We, therefore, assume, without

deciding, that petitioners’ Rule 68 offer mooted respond-

ent’s individual claim. See Baldwin v. Reese, 541 U. S. 27,

34 (2004).

III

We turn, then, to the question whether respondent’s

action remained justiciable based on the collective-action

allegations in her complaint. A straightforward applica-

tion of well-settled mootness principles compels our an-

——————

3 Compare, e.g., Weiss v. Regal Collections, 385 F. 3d 337, 340 (CA3

2004), with McCauley v. Trans Union, LLC, 402 F. 3d 340, 342 (CA2

2005).

6 GENESIS HEALTHCARE CORP. v. SYMCZYK

Opinion of the Court

swer. In the absence of any claimant’s opting in, respond-

ent’s suit became moot when her individual claim became

moot, because she lacked any personal interest in repre-

senting others in this action. While the FLSA authorizes

an aggrieved employee to bring an action on behalf of

himself and “other employees similarly situated,” 29

U. S. C. §216(b), the mere presence of collective-action

allegations in the complaint cannot save the suit from

mootness once the individual claim is satisfied.4 In order

to avoid this outcome, respondent relies almost entirely

upon cases that arose in the context of Federal Rule of

Civil Procedure 23 class actions, particularly United

States Parole Comm’n v. Geraghty, 445 U. S. 388 (1980);

Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326

(1980); and Sosna v. Iowa, 419 U. S. 393 (1975). But these

cases are inapposite, both because Rule 23 actions are

fundamentally different from collective actions under the

FLSA, see Hoffmann-La Roche Inc., 493 U. S., at 177–178

(SCALIA, J., dissenting), and because these cases are, by

their own terms, inapplicable to these facts. It follows

that this action was appropriately dismissed as moot.

——————

4 While we do not resolve the question whether a Rule 68 offer that

fully satisfies the plaintiff’s claims is sufficient by itself to moot the

action, supra, at 5, we note that Courts of Appeals on both sides of that

issue have recognized that a plaintiff’s claim may be satisfied even

without the plaintiff’s consent. Some courts maintain that an unac-

cepted offer of complete relief alone is sufficient to moot the individual’s

claim. E.g., Weiss, supra, at 340; Greisz v. Household Bank (Ill.), N. A.,

176 F. 3d 1012, 1015 (CA7 1999). Other courts have held that, in the

face of an unaccepted offer of complete relief, district courts may “enter

judgment in favor of the plaintiffs in accordance with the defendants’

Rule 68 offer of judgment.” O’Brien v. Ed Donnelly Enters., Inc., 575

F. 3d 567, 575 (CA6 2009); see also McCauley v. Trans Union, LLC, 402

F. 3d 340, 342 (CA2 2005). Contrary to the dissent’s assertion, see post,

at 8 (opinion of Kagan, J.), nothing in the nature of FLSA actions

precludes satisfaction—and thus the mooting—of the individual’s claim

before the collective-action component of the suit has run its course.

Cite as: 569 U. S. ____ (2013) 7

Opinion of the Court

A

Respondent contends that she has a sufficient personal

stake in this case based on a statutorily created collective-

action interest in representing other similarly situated

employees under §216(b). Brief for Respondent 47–48. In

support of her argument, respondent cites our decision in

Geraghty, which in turn has its roots in Sosna. Neither

case supports her position.

In Sosna, the Court held that a class action is not ren-

dered moot when the named plaintiff ’s individual claim

becomes moot after the class has been duly certified. 419

U. S., at 399. The Court reasoned that when a district

court certifies a class, “the class of unnamed persons

described in the certification acquire[s] a legal status

separate from the interest asserted by [the named plain-

tiff],” with the result that a live controversy may continue

to exist, even after the claim of the named plaintiff be-

comes moot. Id., at 399–402. Geraghty narrowly extended

this principle to denials of class certification motions. The

Court held that where an action would have acquired the

independent legal status described in Sosna but for the

district court’s erroneous denial of class certification, a

corrected ruling on appeal “relates back” to the time of the

erroneous denial of the certification motion. 445 U. S., at

404, and n. 11.

Geraghty is inapposite, because the Court explicitly

limited its holding to cases in which the named plaintiff ’s

claim remains live at the time the district court denies

class certification. See id., at 407, n. 11. Here, respondent

had not yet moved for “conditional certification” when her

claim became moot, nor had the District Court anticipa-

torily ruled on any such request. Her claim instead became

moot prior to these events, foreclosing any recourse to

Geraghty. There is simply no certification decision to

which respondent’s claim could have related back.

More fundamentally, essential to our decisions in Sosna

8 GENESIS HEALTHCARE CORP. v. SYMCZYK

Opinion of the Court

and Geraghty was the fact that a putative class acquires

an independent legal status once it is certified under Rule

23. Under the FLSA, by contrast, “conditional certifica-

tion” does not produce a class with an independent legal

status, or join additional parties to the action. The sole

consequence of conditional certification is the sending of

court-approved written notice to employees, see Hoffmann-

La Roche Inc., supra, at 171–172, who in turn become

parties to a collective action only by filing written con-

sent with the court, §216(b). So even if respondent were

to secure a conditional certification ruling on remand,

nothing in that ruling would preserve her suit from

mootness.

B

Respondent also advances an argument based on a

separate, but related, line of cases in which the Court held

that an “inherently transitory” class-action claim is not

necessarily moot upon the termination of the named plain-

tiff ’s claim. Like our decision in Geraghty, this line of

cases began with Sosna and is similarly inapplicable here.

After concluding that the expiration of a named plain-

tiff ’s claim following certification does not moot the class

action, Sosna suggested that, where a named plaintiff’s

individual claim becomes moot before the district court

has an opportunity to rule on the certification motion, and

the issue would otherwise evade review, the certification

might “relate back” to the filing of the complaint. 419

U. S., at 402, n. 11. The Court has since held that the

relation-back doctrine may apply in Rule 23 cases where it

is “certain that other persons similarly situated” will

continue to be subject to the challenged conduct and the

claims raised are “ ‘so inherently transitory that the trial

court will not have even enough time to rule on a motion

for class certification before the proposed representative’s

individual interest expires.’ ” County of Riverside v.

Cite as: 569 U. S. ____ (2013) 9

Opinion of the Court

McLaughlin, 500 U. S. 44, 52 (1991) (quoting Geraghty,

supra, at 399), in turn citing Gerstein v. Pugh, 420 U. S.

103, 110, n. 11 (1975)). Invoking this doctrine, respondent

argues that defendants can strategically use Rule 68 offers

to “pick off ” named plaintiffs before the collective-action

process is complete, rendering collective actions “inher-

ently transitory” in effect. Brief for Respondent 37.

Our cases invoking the “inherently transitory” relation-

back rationale do not apply. The “inherently transitory”

rationale was developed to address circumstances in which

the challenged conduct was effectively unreviewable,

because no plaintiff possessed a personal stake in the suit

long enough for litigation to run its course. A plaintiff

might seek, for instance, to bring a class action challeng-

ing the constitutionality of temporary pretrial detentions.

In doing so, the named plaintiff would face the considera-

ble challenge of preserving his individual claim from

mootness, since pretrial custody likely would end prior to

the resolution of his claim. See Gerstein, supra. To ad-

dress this problem, the Court explained that in cases

where the transitory nature of the conduct giving rise to

the suit would effectively insulate defendants’ conduct

from review, certification could potentially “relate back” to

the filing of the complaint. Id., at 110, n. 11; McLaughlin,

supra, at 52. But this doctrine has invariably focused on

the fleeting nature of the challenged conduct giving rise to

the claim, not on the defendant’s litigation strategy. See,

e.g., Swisher v. Brady, 438 U. S. 204, 214, n. 11 (1978);

Spencer v. Kemna, 523 U. S. 1, 17–18 (1998).

In this case, respondent’s complaint requested statutory

damages. Unlike claims for injunctive relief challenging

ongoing conduct, a claim for damages cannot evade re-

view; it remains live until it is settled, judicially resolved,

or barred by a statute of limitations. Nor can a defend-

ant’s attempt to obtain settlement insulate such a claim

from review, for a full settlement offer addresses plaintiff ’s

10 GENESIS HEALTHCARE CORP. v. SYMCZYK

Opinion of the Court

alleged harm by making the plaintiff whole. While set-

tlement may have the collateral effect of foreclosing un-

joined claimants from having their rights vindicated in

respondent’s suit, such putative plaintiffs remain free to

vindicate their rights in their own suits. They are no less

able to have their claims settled or adjudicated following

respondent’s suit than if her suit had never been filed at

all.

C

Finally, respondent argues that the purposes served

by the FLSA’s collective-action provisions—for example,

efficient resolution of common claims and lower individual

costs associated with litigation—would be frustrated by

defendants’ use of Rule 68 to “pick off ” named plaintiffs

before the collective-action process has run its course.

Both respondent and the Court of Appeals purported to

find support for this position in our decision in Roper, 445

U. S., at 339.

In Roper, the named plaintiffs’ individual claims became

moot after the District Court denied their motion for class

certification under Rule 23 and subsequently entered

judgment in their favor, based on the defendant bank’s

offer of judgment for the maximum recoverable amount of

damages, in addition to interest and court costs. Id., at

329–330. The Court held that even though the District

Court had entered judgment in the named plaintiffs’ favor,

they could nevertheless appeal the denial of their motion

to certify the class. The Court found that, under the par-

ticular circumstances of that case, the named plaintiffs

possessed an ongoing, personal economic stake in the

substantive controversy—namely, to shift a portion of

attorney’s fees and expenses to successful class litigants.5

——————

5 Because Roper is distinguishable on the facts, we need not consider

its continuing validity in light of our subsequent decision in Lewis v.

Cite as: 569 U. S. ____ (2013) 11

Opinion of the Court

Id., at 332–334, and n. 6. Only then, in dicta, did the

Court underscore the importance of a district court’s class

certification decision and observe that allowing defendants

to “ ‘pic[k] off’” party plaintiffs before an affirmative ruling

was achieved “would frustrate the objectives of class ac-

tions.” Id., at 339.

Roper’s holding turned on a specific factual finding that

the plaintiffs’ possessed a continuing personal economic

stake in the litigation, even after the defendants’ offer of

judgment. Id., at 336. As already explained, here, re-

spondent conceded that petitioners’ offer “provided com-

plete relief on her individual claims,” Brief in Opposition i,

and she failed to assert any continuing economic interest

in shifting attorney’s fees and costs to others. Moreover,

Roper’s dictum was tethered to the unique significance of

certification decisions in class-action proceedings. 445

U. S., at 339. Whatever significance “conditional certifica-

tion” may have in §216(b) proceedings, it is not tanta-

mount to class certification under Rule 23.

* * *

The Court of Appeals concluded that respondent’s indi-

vidual claim became moot following petitioners’ Rule 68

offer of judgment. We have assumed, without deciding,

that this is correct.

Reaching the question on which we granted certiorari,

we conclude that respondent has no personal interest in

representing putative, unnamed claimants, nor any other

continuing interest that would preserve her suit from

mootness. Respondent’s suit was, therefore, appropriately

dismissed for lack of subject-matter jurisdiction.

——————

Continental Bank Corp., 494 U. S. 472 (1990). See id., at 480 (“[An]

interest in attorney’s fees is, of course, insufficient to create an Article

III case or controversy where none exists on the merits of the underly-

ing claim”).

12 GENESIS HEALTHCARE CORP. v. SYMCZYK

Opinion of the Court

The judgment of the Court of Appeals for the Third

Circuit is reversed.

It is so ordered.

Cite as: 569 U. S. ____ (2013) 1

KAGAN, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–1059

_________________

GENESIS HEALTHCARE CORPORATION, ET AL.,

PETITIONERS v. LAURA SYMCZYK

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[April 16, 2013]

JUSTICE KAGAN, with whom JUSTICE GINSBURG,

JUSTICE BREYER, and JUSTICE SOTOMAYOR join,

dissenting.

The Court today resolves an imaginary question, based

on a mistake the courts below made about this case and

others like it. The issue here, the majority tells us, is

whether a “ ‘ collective action’ ” brought under the Fair

Labor Standards Act of 1938 (FLSA), 29 U. S. C. §201

et seq., “is justiciable when the lone plaintiff’s individual

claim becomes moot.” Ante, at 1. Embedded within that

question is a crucial premise: that the individual claim has

become moot, as the lower courts held and the majority

assumes without deciding. But what if that premise is

bogus? What if the plaintiff’s individual claim here never

became moot? And what if, in addition, no similar claim

for damages will ever become moot? In that event, the

majority’s decision—founded as it is on an unfounded

assumption—would have no real-world meaning or appli­

cation. The decision would turn out to be the most one-off

of one-offs, explaining only what (the majority thinks)

should happen to a proposed collective FLSA action when

something that in fact never happens to an individual

FLSA claim is errantly thought to have done so. That is

the case here, for reasons I’ll describe. Feel free to rele­

gate the majority’s decision to the furthest reaches of your

2 GENESIS HEALTHCARE CORP. v. SYMCZYK

KAGAN, J., dissenting

mind: The situation it addresses should never again arise.

Consider the facts of this case, keeping an eye out for

anything that would render any part of it moot. Respond­

ent Laura Symczyk brought suit under a provision of the

FLSA, 29 U. S. C. §216(b), “on behalf of herself and others

similarly situated.” App. 21. Her complaint alleged

that her former employer, petitioner Genesis Healthcare

Corporation (Genesis), violated the FLSA by treating

30 minutes of every shift as an unpaid meal break, even

when an employee worked during that time. Genesis

answered the complaint and simultaneously made an offer

of judgment under Federal Rule of Civil Procedure 68.

That settlement proposal covered only Symczyk’s individ­

ual claim, to the tune of $7,500 in lost wages. The offer,

according to its terms, would “be deemed withdrawn” if

Symczyk did not accept it within 10 days. App. 79. That

deadline came and went without any reply. The case then

proceeded in the normal fashion, with the District Court

setting a schedule for discovery. Pause here for a moment

to ask whether you’ve seen anything yet that would moot

Symczyk’s individual claim. No? Neither have I.

Nevertheless, Genesis moved to dismiss Symczyk’s suit

on the ground that it was moot. The supposed logic went

like this: We (i.e., Genesis) offered Symczyk complete relief

on her individual damages claim; she “effectively reject[ed]

the [o]ffer” by failing to respond; because she did so, she

“no longer has a personal stake or legally cognizable inter­

est in the outcome of this action”; accordingly, the court

“should dismiss her claims.” Id., at 67. Relying on Circuit

precedent, the District Court agreed; it dismissed the case

for lack of jurisdiction—without awarding Symczyk any

damages or other relief—based solely on the unaccepted

offer Genesis had made. See App. to Pet. for Cert. 35

(citing Weiss v. Regal Collections, 385 F. 3d 337, 340 (CA3

2004)). And finally, the Court of Appeals for the Third

Circuit concurred that Genesis’s offer mooted Symczyk’s

Cite as: 569 U. S. ____ (2013) 3

KAGAN, J., dissenting

individual claim (though also holding that she could still

proceed with a collective action). See 656 F. 3d 189 (2011).

That thrice-asserted view is wrong, wrong, and wrong

again. We made clear earlier this Term that “[a]s long as

the parties have a concrete interest, however small, in the

outcome of the litigation, the case is not moot.” Chafin v.

Chafin, 568 U. S. ___, ___ (2012) (slip op., at 6) (internal

quotation marks omitted). “[A] case becomes moot only

when it is impossible for a court to grant any effectual

relief whatever to the prevailing party.” Ibid. (internal

quotation marks omitted). By those measures, an unac­

cepted offer of judgment cannot moot a case. When a

plaintiff rejects such an offer—however good the terms—

her interest in the lawsuit remains just what it was be­

fore. And so too does the court’s ability to grant her relief.

An unaccepted settlement offer—like any unaccepted

contract offer—is a legal nullity, with no operative effect.

As every first-year law student learns, the recipient’s re-

jection of an offer “leaves the matter as if no offer had

ever been made.” Minneapolis & St. Louis R. Co. v. Co-

lumbus Rolling Mill, 119 U. S. 149, 151 (1886). Nothing

in Rule 68 alters that basic principle; to the contrary, that

rule specifies that “[a]n unaccepted offer is considered

withdrawn.” Fed. Rule Civ. Proc. 68(b). So assuming the

case was live before—because the plaintiff had a stake and

the court could grant relief—the litigation carries on,

unmooted.

For this reason, Symczyk’s individual claim was alive

and well when the District Court dismissed her suit.

Recall: Genesis made a settlement offer under Rule 68;

Symczyk decided not to accept it; after 10 days, it expired

and the suit went forward. Symczyk’s individual stake in

the lawsuit thus remained what it had always been, and

ditto the court’s capacity to grant her relief. After the

offer lapsed, just as before, Symczyk possessed an unsatis­

fied claim, which the court could redress by awarding her

4 GENESIS HEALTHCARE CORP. v. SYMCZYK

KAGAN, J., dissenting

damages. As long as that remained true, Symczyk’s claim

was not moot, and the District Court could not send her

away empty-handed. So a friendly suggestion to the Third

Circuit: Rethink your mootness-by-unaccepted-offer theo­

ry. And a note to all other courts of appeals: Don’t try this

at home.

To this point, what I have said conflicts with nothing in

the Court’s opinion. The majority does not attempt to

argue, à la the Third Circuit, that the unaccepted settle­

ment offer mooted Symczyk’s individual damages claim.

Instead, the majority hangs its hat on a finding of waiver.

See ante, at 5, 11. The majority notes—correctly—that

Symczyk accepted the Third Circuit’s rule in her briefs

below, and also failed to challenge it in her brief in opposi­

tion to the petition for certiorari; she contested it first in

her merits brief before this Court. That enables the ma­

jority to “assume, without deciding,” the mootness of

Symczyk’s individual claim and reach the oh-so-much­

more-interesting question relating to her proposed collec­

tive action. Ante, at 5.1

——————

1 The majority also justifies this approach on the ground that

Symczyk did not file a cross-petition for certiorari objecting to the Third

Circuit’s decision. But that is because Symczyk got the judgment she

wanted in the Third Circuit. As the majority agrees, a cross-petition is

necessary only when a respondent seeks to “alter” the judgment below.

Ante, at 5; see E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E.

Hartnett, Supreme Court Practice 490 (9th ed. 2007) (“[A] party satis­

fied with the action of a lower court should not have to appeal from it in

order to defend a judgment in his or her favor on any ground”). Here,

the Third Circuit reversed the District Court’s dismissal of Sym­

czyk’s FLSA suit, ruling that her collective action could go forward

even though her individual claim was moot; accordingly, accepting

Symczyk’s new argument would lead not to modifying the appellate

judgment, but to affirming it on a different ground. In any event, we

have never held that the cross-petition requirement is jurisdictional.

See id., at 493–494. We can choose to excuse the absence of a cross­

petition for the same reasons, discussed next, that we can consider an

issue not raised below. See Vance v. Terrazas, 444 U. S. 252, 258–259,

n. 5 (1980).

Cite as: 569 U. S. ____ (2013) 5

KAGAN, J., dissenting

But as this Court noted in a similar case, “assum[ing]

what the facts will show to be ridiculous” about a predi­

cate question—just because a party did not think to chal­

lenge settled Circuit precedent—runs “a risk that ought

to be avoided.” Lebron v. National Railroad Passenger

Corporation, 513 U. S. 374, 382 (1995). The question

Symczyk now raises (“Did an unaccepted settlement offer

moot my individual FLSA claim?”) is logically prior to—

and thus inextricably intertwined with—the question the

majority rushes to resolve (“If an unaccepted settlement

offer mooted Symczyk’s individual FLSA claim, could a

court proceed to consider her proposed collective action?”).

Indeed, the former is so much part and parcel of the latter

that the question Genesis presented for our review—

and on which we granted certiorari—actually looks more

like Symczyk’s than like the majority’s. Genesis asked:

“Whether a case becomes moot . . . when the lone plaintiff

receives an offer from the defendants to satisfy all of the

plaintiff’s claims.” Pet. for Cert. i. Symczyk, of course,

would respond “no,” because merely receiving an offer does

not moot any claim. The majority’s refusal to consider

that obviously correct answer impedes “intelligent resolu­

tion of the question presented.” Ohio v. Robinette, 519

U. S. 33, 38 (1996) (internal quotation marks omitted). By

taking a fallacy as its premise, the majority ensures it will

reach the wrong decision.

Still, you might think, the majority’s approach has at

least this benefit: In a future FLSA case, when an individ­

ual claim for damages in fact becomes moot, a court will

know what to do with the collective allegations. But no,

even that much cannot be said for the majority’s opinion.

That is because the individual claims in such cases will

never become moot, and a court will therefore never need

to reach the issue the majority resolves. The majority’s

decision is fit for nothing: Aside from getting this case

wrong, it serves only to address a make-believe problem.

6 GENESIS HEALTHCARE CORP. v. SYMCZYK

KAGAN, J., dissenting

To see why, consider how a collective FLSA action seek­

ing damages unfolds. A plaintiff (just like Symczyk, but

let us now call her Smith, to highlight her typicality) sues

under §216(b) on behalf of both herself and others. To

determine whether Smith can serve as a representative

party, the court considers whether the workplace policy

her suit challenges has similarly affected other employees.

If it has, the court supervises their discovery and notifica­

tion, and then “oversee[s] the joinder” of any who want

Smith to represent them. Hoffman La-Roche Inc. v. Sper-

ling, 493 U. S. 165, 171 (1989). During that period, as

the majority observes, the class has no “independent legal

status.” Ante, at 7. At the same time, Smith’s own claim

is in perfect health. Because it is a damages claim for past

conduct, the employer cannot extinguish it by adopting

new employment practices. Indeed, the claim would sur­

vive even Smith’s own demise, belonging then to her es­

tate. Smith’s individual claim, in short, is not going away

on its own; it can easily wait out the time involved in

assembling a collective action. Accord, ante, at 9 (“[A]

claim for damages cannot evade review; it remains live

until it is settled [or] judicially resolved”).

Now introduce a settlement offer into the picture: As­

sume that before the court finally decides whether to

permit a collective action, the defendant proposes to pay

Smith the value of her individual claim in exchange for

her abandonment of the entire litigation. If Smith agrees,

of course, all is over; like any plaintiff, she can assent to

a settlement ending her suit. But assuming Smith does

not agree, because she wishes to proceed on behalf of other

employees, could the offer ever succeed in mooting her

case? I have already shown that it cannot do so in the

circumstances here, where the defendant makes an offer,

the plaintiff declines it, and nothing else occurs: On those

facts, Smith’s claim is as it ever was, and the lawsuit

continues onward. But suppose the defendant addition­

Cite as: 569 U. S. ____ (2013) 7

KAGAN, J., dissenting

ally requests that the court enter judgment in Smith’s

favor—though over her objection—for the amount offered

to satisfy her individual claim. Could a court approve that

motion and then declare the case over on the ground that

Smith has no further stake in it? That course would be

less preposterous than what the court did here; at least

Smith, unlike Symczyk, would get some money. But it

would be impermissible as well.

For starters, Rule 68 precludes a court from imposing

judgment for a plaintiff like Smith based on an unaccepted

settlement offer made pursuant to its terms. The text of

the Rule contemplates that a court will enter judgment

only when a plaintiff accepts an offer. See Rule 68(a) (“If

. . . the [plaintiff] serves written notice accepting the of-

fer, either party may then file the offer and notice of ac­

ceptance, plus proof of service. The clerk must then enter

judgment”). And the Rule prohibits a court from consider­

ing an unaccepted offer for any purpose other than allocat­

ing litigation costs—including for the purpose of entering

judgment for either party. See Rule 68(b) (“Evidence of an

unaccepted offer is not admissible except in a proceeding

to determine costs”). That injunction accords with Rule

68’s exclusive purpose: to promote voluntary cessation of

litigation by imposing costs on plaintiffs who spurn certain

settlement offers. See Marek v. Chesny, 473 U. S. 1, 5

(1985). The Rule provides no appropriate mechanism for

a court to terminate a lawsuit without the plaintiff’s

consent.

Nor does a court have inherent authority to enter an

unwanted judgment for Smith on her individual claim, in

service of wiping out her proposed collective action. To be

sure, a court has discretion to halt a lawsuit by entering

judgment for the plaintiff when the defendant uncondi­

tionally surrenders and only the plaintiff’s obstinacy or

madness prevents her from accepting total victory. But

the court may not take that tack when the supposed ca­

8 GENESIS HEALTHCARE CORP. v. SYMCZYK

KAGAN, J., dissenting

pitulation in fact fails to give the plaintiff all the law

authorizes and she has sought. And a judgment satisfying

an individual claim does not give a plaintiff like Smith,

exercising her right to sue on behalf of other employees,

“all that [she] has . . . requested in the complaint (i.e.,

relief for the class).” Deposit Guaranty Nat. Bank v. Roper,

445 U. S. 326, 341 (1980) (Rehnquist, J., concurring).

No more in a collective action brought under the FLSA

than in any other class action may a court, prior to certifi­

cation, eliminate the entire suit by acceding to a defend­

ant’s proposal to make only the named plaintiff whole.

That course would short-circuit a collective action before it

could begin, and thereby frustrate Congress’s decision to give

FLSA plaintiffs “the opportunity to proceed collectively.”

Hoffman La-Roche, 493 U. S., at 170; see Roper, 445

U. S., at 339. It is our plaintiff Smith’s choice, and not the

defendant’s or the court’s, whether satisfaction of her

individual claim, without redress of her viable classwide

allegations, is sufficient to bring the lawsuit to an end.

And so, the question the majority answers should never

arise—which means the analysis the majority propounds

should never apply.2 The majority assumes that an indi­

vidual claim has become moot, and then asks whether

collective allegations can still proceed by virtue of the

relation-back doctrine. But that doctrine comes into play

only when a court confronts a jurisdictional gap—an indi­

vidual claim becoming moot before the court can certify a

representative action. And in an FLSA case for damages,

that gap cannot occur (unless a court, as here, mistakenly

creates it): As I have explained, the plaintiff’s individual

claim remains live all the way through the court’s decision

——————

2 For

similarly questionable deployment of this Court’s adjudicatory

authority, see Comcast Corp. v. Behrend, 569 U. S. ___, ___ (2013) (joint

opinion of GINSBURG and BREYER, JJ.) (observing in dissent that “[t]he

Court’s ruling is good for this day and case only”).

Cite as: 569 U. S. ____ (2013) 9

KAGAN, J., dissenting

whether to join new plaintiffs to the litigation. Without

any gap to span, the relation-back doctrine has no rele­

vance. Neither, then, does the majority’s decision.3

The Court could have resolved this case (along with a

Circuit split, see ante, at 5, and n. 3) by correcting the

Third Circuit’s view that an unaccepted settlement offer

mooted Symczyk’s individual claim. Instead, the Court

chose to address an issue predicated on that misconcep­

tion, in a way that aids no one, now or ever. I respectfully

dissent.

——————

3 And that is a good thing, because (just as a by-the-by) the majority’s

opinion also misconceives our decisions applying the relation-back

doctrine. The majority painstakingly distinguishes those decisions on

their individual facts, but misses their common take-away. In each, we

confronted a situation where a would-be class representative’s individ­

ual claim became moot before a court could make a final decision about

the propriety of class litigation; and in each, we used relation-back

principles to preserve the court’s ability to adjudicate on the merits

the classwide questions the representative raised. See, e.g., County of

Riverside v. McLaughlin, 500 U. S. 44, 51–52 (1991); Swisher v. Brady,

438 U. S. 204, 213–214, n. 11 (1978); Gerstein v. Pugh, 420 U. S. 103,

110–111, n. 11 (1975); see also United States Parole Comm’n v.

Geraghty, 445 U. S. 388, 399, 404, n. 11 (1980); Sosna v. Iowa, 419 U. S.

393, 402, n. 11 (1975). If, counter-factually, Symczyk’s individual claim

became moot when she failed to accept Genesis’s offer of judgment, her

case would fit comfortably alongside those precedents. Because the

District Court would not then have had “enough time to rule on a

motion” for certification under §216(b), “the ‘relation back’ doctrine

[would be] properly invoked to preserve the merits of the case for

judicial resolution.” McLaughlin, 500 U. S., at 52 (internal quotation

marks omitted).