*Mr. Rosdeitcher is Senior Policy Advisor at the Brennan Center for Justice at New York University Law School and Of Counsel to Paul, Weiss, Rifkind, Wharton and Garrison LLP. Mr. Beha is an associate at Paul, Weiss.
On November 26, 2012, the Supreme Court will begin its third oral argument session of the 2012 Term. In this preview, we highlight two important cases on the Court’s calendar for this session involving issues of fundamental justice and access to the courts.
First, on November 28, in Henderson v. United States, No. 11–9307, the Court will hear argument on whether a criminal defendant may take advantage on appeal of a favorable Supreme Court decision occurring after his trial on a point of sentencing law that he failed to raise at trial, if the law at the time of trial was unsettled. The government’s position in this case that he may not do so, if accepted, would force the defendant to serve two additional years in prison under a sentence that is indisputably unlawful under a Supreme Court decision announced between the defendant’s trial and his appeal. Last term, realism and the demands of justice triumphed over narrow legalism and formalism in several of the Supreme Court’s decisions.[1] The same spirit should apply here.
Second, the Court will hear argument, on December 3, in Genesis Healthcare v. Symczyk, as to whether a defendant can moot a “collective action” under the Fair Labor Standards Act (FLSA) by making a settlement offer under Federal Rule of Civil Procedure 68 to the named plaintiff equal to the amount of compensation she claimed. The FLSA permits a court to certify an action for violations of the Act as a “collective action” on behalf of similarly situated employees who “opt in” to the action. In this case, Genesis made the Rule 68 offer of judgment before the process for certification of the action as a “collective action” had been initiated.
Genesis argues that the case should have been dismissed because there is no longer a “case or controversy” under Article III of the Constitution, even though the named plaintiff rejected the Rule 68 offer and no judgment was entered and notwithstanding that other employees would lose the benefit of the collective action if it had been certified. This case could have adverse consequences on the ability of workers to vindicate their rights under the FLSA. And, more broadly, while collective actions under the FLSA differ in certain material respects from class actions under Federal Rule of Civil Procedure 23, the Court’s decision in Genesis Healthcare could have adverse implications for class actions, especially those seeking to protect employees’ and consumers’ rights.
In recent times, the Supreme Court has been hostile to class actions[2] and to actions performing the function of private attorneys generals to complement government enforcement of civil rights and civil liberties.[3] Genesis Healthcare, therefore, should be carefully watched.
Here are the details.
Henderson v. United States – When is an Error Plain?
Under Federal Rule of Criminal Procedure 52 (a), a defendant in a federal criminal case is precluded from challenging on appeal an error to which he did not timely object during trial or sentencing. Federal Rule of Criminal Procedure 52(b), however, codifies the long-standing “plain error” exception that an appeals court may consider on appeal “[a] plain error that affects substantial rights” even if was not raised or objected to below. To be considered a plain error, “the error must, at a minimum, be clear under current law.”[4] On Wednesday, November 28, the Court will hear argument in Henderson v. United States, presenting the question whether an error is “plain” for purposes of review under Rule 52(b) when the law is unsettled at the time the error is committed but becomes clear by the time of the appeal.
Armarcion Henderson pleaded guilty to being a felon in possession of a firearm. The probation department’s pre-sentence report concluded that the sentencing guideline range for Mr. Henderson’s offense was 33–41 months and that nothing in the record warranted a departure from that range. After a sentencing hearing, the district court sentenced Mr. Henderson to 60 months in prison, noting that the extra time in prison was intended to ensure that Mr. Henderson was in prison long enough to complete a 500-hour drug treatment program. Mr. Henderson did not object at the hearing. But several days later he filed a motion under Federal Rule of Criminal Procedure 35(a) to correct his sentence for clear error. In that motion, he argued that his sentence violated 18 U.S.C. § 3582(a), requiring that a court fashioning a sentence must “recognize that imprisonment is not an appropriate means of promoting correction and rehabilitation.” The court denied the motion and Mr. Henderson appealed denial of his motion to the Fifth Circuit.
At the time of Mr. Henderson’s sentencing, notwithstanding Section 3582(a)’s seemingly unequivocal language, the federal courts of appeals were divided on the question whether a district court could impose a sentence to promote rehabilitation. The Fifth Circuit had not addressed the issue. While Mr. Henderson’s appeal was pending, the Supreme Court decided Tapia v. United States, 131 S.Ct. 2382 (2011), holding that under Section 3582(a) “a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” After Tapia was decided, the Fifth Circuit affirmed Mr. Henderson’s sentence.[5] While the Fifth Circuit recognized that the district court erred by giving Mr. Henderson a longer sentence to promote his rehabilitation, it found that, the error was not a “plain error” at time of the sentencing, in view of the circuit split existing at that time. The Court, therefore, found that Mr. Henderson could not rely on Tapia because it was decided after the sentencing decision was made.[6] After the Fifth Circuit denied his petitions for re-hearing and rehearing en banc, the Supreme Court accepted Mr. Henderson’s petition for review.
Henderson and amicus curiae the National Association of Criminal Defense Lawyers (NACDL) note that, under Supreme Court precedent, when the law is settled adversely to the defendant at the time of trial but is later reversed, an error may be reviewed if it is “plain” at the time of the appeal. See Johnson v. United States, 520 U.S. 461 (1997). Henderson argues that neither the language of Rule 52(b) nor its underlying policies require a different rule when the law was unsettled at the time of trial. First, nothing in the text of the rule suggests that the meaning of the term “plain” should vary depending on the state of the law at the time of trial. Second, Henderson and the NACDL argue that adopting the “time of appeal” furthers the policy goals of permitting obvious injustice to be corrected on appeal, treating similarly situated defendants equally, and avoiding wasteful appellate litigation of whether particular issues were settled at the time of trial. Finally, Henderson and the NADCL argue that the goal of encouraging contemporaneous objections furthered by a “time of trial” rule would still be adequately served because there is no incentive to deliberately fail to object merely because the law is unsettled.
In response, the United States argues that “Rule 52(b) provides a limited and strictly circumscribed exception to [the] general rule [that appellate courts may not review forfeited errors] by allowing courts to correct forfeited errors in exceptional circumstances involving particularly egregious mistakes.” As a result, the government argues, Rule 52(b) is not meant to address the relatively unremarkable situation where a district court makes a judgment on an unsettled question of law and the Court of Appeals ultimately makes a different determination. The government also argues that a “time of trial” rule would further the policy goals of Rule 52(b) by promoting judicial efficiency, ensuring development of the record, safeguarding the district court’s role as the court of first instance, minimizing strategic timing of objections, and allowing for the correction of obvious miscarriages of justice.
Finally, the government notes that Johnson relaxed the plain-error standard and allowed a defendant to raise a forfeited objection when there has been a change in settled law because in such a situation an objection would be futile at the time of trial in the face of contrary precedent.
While we appreciate the importance of encouraging timely objections to allow the district court the opportunity to correct errors in the first instance, it is not evident why the fact that the law is unsettled would encourage a defendant to fail to object. Moreover, the plain error rule plays an important role in correcting manifest injustices. Permitting an appellate court to review an error that has become plain since the trial fosters this important goal. Importantly, under plain error review, a defendant would still have to show that any error affected a substantial right. Given this limitation, we believe that the governments’ concerns about the negative effects of a “time of appeal” rule are overstated. Application of a “time of trial” rule would be particularly inappropriate in Mr. Henderson case, where he stands to serve an additional two years in prison because of a sentencing determination now acknowledged by all to be in error.
Genesis Healthcare v. Symczyk – Does Article III of the Constitution require dismissal of a collective action under the FLSA as moot following an offer to pay the monetary claims of the named plaintiff?
Under the Fair Labor Standards Act, an employee whose minimum wage or overtime compensation rights have been violated may bring a “collective action” against her employer on behalf of herself and other employees similarly situated. Notably, unlike a class action under Rule 23 in which eligible plaintiffs would be members of the class upon certification unless they affirmatively opt out, similarly situated employees must opt in to an FLSA collective action. On Monday, December 3, the Court will hear argument in Genesis Healthcare v. Symczyk, presenting the question whether a collective action under the FLSA becomes moot under Article III when, before the action can be certified as a “collective action,” the named plaintiff receives an offer from the defendants under Federal Rule of Civil Procedure 68, satisfying her monetary claims. If so, employers would be able to nullify FLSA collective actions by making such an offer to the named plaintiff.
Respondent Laura Symczyk worked as a nurse for petitioner Genesis Healthcare. She alleged that during her employment she was regularly required to work during unpaid meal breaks. Symczyk filed a collective action under the FLSA, alleging that Genesis violated the FLSA by deducting half an hour for meal breaks from employee’s work time, irrespective of whether they actually received a break for meals. Genesis served Symczyk with an offer of judgment under Federal Rule of Civil Procedure 68 asking that judgment be entered in her favor for $7,500, the full amount of monetary relief Symczyk sought. When Symczyk declined the offer, Genesis moved to dismiss the complaint for lack of subject matter jurisdiction based on the offer of judgment. The district court granted the motion and dismissed the complaint with prejudice.[7] Symczyk appealed and the Third Circuit reversed.[8]
The Third Circuit reversed the district court and reinstated the complaint. The Third Circuit explained that while “[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,” an offer to the named plaintiff in a collective action, made before the plaintiff moves for collective certification or other plaintiffs opt in, does not moot the case. In so deciding, the court explained that although Rule 68 was “designed to encourage settlement and avoid litigation,” in the context of class or collective actions, it “can be manipulated to frustrate rather than to serve these salutary ends.”[9]
In the class action context, when a defendant seeks to “short circuit” the class action process by mooting the case with respect to the named plaintiff before the district court can rule on a class certification motion, many courts will deem the class certification motion to “relate back” to the filing of the complaint, preserving the court’s authority to rule on the class certification motion by treating it as though it had been filed contemporaneously with the class complaint. In Genesis Healthcare, the Third Circuit joined the Fifth Circuit in applying this same relation back doctrine to FLSA collective action complaints. While the Third Circuit recognized the differences between a Rule 23 class action and an FLSA collective action, it noted that an FLSA collective action, like a Rule 23 class action, is “acutely susceptible to mootness while the action [is] in its early stages and the court has yet to determine whether to facilitate notice to prospective plaintiffs.”[10] Genesis petitioned for certiorari.
Before the Court, Genesis argues that because it made an offer of judgment to Symczyk mooting her claim at a time when no other plaintiff had opted to join the suit, the suit does not meet Article III’s requirement that federal courts may only hear “cases or controversies” involving parties with a personal stake in the outcome. Genesis acknowledges that the Supreme Court allowed an appeal of denial of class certification under Rule 23 to proceed following an offer of judgment to the named plaintiffs in Deposit Guaranty Nat’l Bank v. Roper[11], based on concerns that permitting defendants to “pick off” plaintiffs would frustrate the purpose of Rule 23. But Genesis argues that the Court’s concern about “picking off” plaintiffs in Roper rested on the fact that a motion for class certification had already been filed and, therefore, absent class members had a personal stake in the litigation. Here, no motion for certification had yet been filed. Moreover, Genesis argues, even if the Court were to extend the holdings of Roper and Geraghty to pre-class certification class actions, it should not extend it to FLSA collective actions because named plaintiffs have “no power to join other claimants or otherwise affect their interests” and, thus, “no cognizable stake in the potential interests of as-yet unidentified claimants.”
In response, Symczyk argues first that Genesis’s offer of judgment did not moot her claim because she did not accept it and the district court never entered judgment in her favor. The United States filed an amicus brief joining in this argument. Symczyk and the government argue that Genesis’s offer did not fully satisfy Symczyk’s claim because while she brought suit on behalf of herself and others similarly situated, the offer only covered her own claimed damages. Moreover, irrespective of whether the district court would have had the power to enter judgment in Symczyk’s favor over her objection, it did not, in fact, do so.
Symczyk also argues that the logic of Roper applies equally to an FLSA collective action. In both cases, an individual plaintiff has a personal stake in the claims of the class and allowing defendants to “pick off” plaintiffs is contrary to the principles of sound judicial administration. She also argues that Congress included a collective action mechanism in the FLSA to facilitate the efficient resolution of claims, the same objective served by Rule 23 class actions. Congressional intent would, thus, be frustrated by allowing defendants to make an offer to an individual and avoid collective adjudication of the class’s claims. Finally, the relation-back doctrine applies not only where a class certification motion has been decided, but also where an offer of judgment has been made before the court could reasonably rule on it. Ms. Symczyk argues that the “relation back” doctrine applies here, as well. While Symczyk acknowledges collective and class actions use different procedures to determine the composition of the class, she argues that those differences have no bearing on the relation back doctrine.
We believe that Ms. Symczyk has the better argument. Congress created the FLSA collective action to allow employees to bring claims on behalf of others similarly situated. Congress’s purpose in doing so—to achieve efficiency in the disposition of like claims—would be frustrated if defendants could dispose of cases without having the absent employees’ claims heard. Accepting Genesis’s argument could severely undermine enforcement of the FLSA. Many claims for violations of the Act, while large on a collective basis, may be too small to pursue through individual litigation. Smaller individual claims may be insufficient to attract counsel or justify the burdens and risks of retaliation that a named plaintiff must be willing to bear. Allowing employees to “pick off” plaintiffs who are willing to step forward, therefore, may enable employers to escape the great bulk of liability to similarly situated employees. Moreover, extension of Genesis’s argument to Rule 23 class actions could have a devastating impact on consumer and civil rights cases. It would encourage similar efforts to pick off plaintiffs before they are able to move for class certification in actions where individual claims are too small to pursue except on a class-wide basis.
[1] See Maples v. Thomas, 132 S.Ct 912 (2012) (refusing to allow a missed appellate deadline, due entirely to defense counsels’ abdication of their professional responsibilities, to deprive a death row inmate of his opportunity to challenge through habeas, constitutional errors he claimed infected his trial and sentence); Dorsey v. United States, 132 S. Ct. 2321(2012) (applying retroactively the law reducing the crack /cocaine sentencing disparity to persons committing offenses before the law’s effective date but sentenced after that date); Lafler v. Cooper, 132 S. Ct. 1376 (2012) and Missouri v. Frye, 132 S. Ct. 1399 (2012) (counsel’s deficient advice causing the rejection or lapse of a plea bargain that would have resulted in a more favorable sentence than the outcome of a subsequent jury trial or subsequent guilty plea violated defendants’ rights to effective assistance of counsel).
[2] See, e.g., AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011) (Federal Arbitration Act preempted state law rule that rendered unconscionable and unenforceable a waiver of class treatment in arbitration clause of contract of adhesion and therefore consumer class treatment of a claim for $30 per consumer was barred); Walmart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) (imposing heightened burdens to meet class certification requirements). See generally Judith Resnik, Fairness in Numbers: Comment on AT&T v. Concepcion, Walmart v. Dukes, and Turner v. Rogers, 125 Harv. L. Rev. 78 (2011).
[3] See Pamela S. Karlan, Foreword: Democracy and Disdain, 126 Harv. L. Rev. 2, 57 and n. 343 (2011); Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. Ill. L. Rev. 183.
[4] United States v. Olano, 507 U.S. 725, 734 (1993).
[5] Henderson v. United States, 646 F.3d 223 (5th Cir. 2011).
[6] Id. at 225.
[7] Symczyk v. Genesis Healthcare Corp., No. Civ. A 09–5782, 2010 WL 2038676, at *4 (E.D. Pa. May 19, 2010).
[8] Symczyk v. Genesis Healthcare Corp., 656 F.3d 189 (3d Cir. 2011).
[9] Id. at 195.
[10] Id. at 196.
[11] 445 U.S. 326 (1980). Similarly, in another case decided at the same time as Roper, United States Parole Comm’n v. Geraghty, the Court permitted an appeal of denial of class certification to proceed despite the fact that the named plaintiff’s claim challenging the federal parole guidelines had expired when he was released from prison. 445 U.S. 388 (1980).