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Argument recap: Will sympathy or technicality prevail?


It doesn’t happen very often, but the Supreme Court sometimes finds itself caught squarely between sympathy for someone in a case before the Court and the dry, unsentimental rigors of legal procedure.   That happened on Monday, putting the Court’s more liberal judges on the sympathy side — no surprise — and its conservatives on the procedural side — again, that was expected.   The outcome probably depends upon which side can attract the swing vote of Justice Anthony M. Kennedy, who mostly kept his own inclinations to himself.

The case is Genesis HealthCare Corp. v. Symczyk (docket 11-1059), involving a Philadelphia nurse who refused to be bought off with a $7,500 check for back pay that she claimed she was owed, and thereby provoked what might turn out to be a constitutional dispute, as well as a hard case over legal process.  The core issue: does an offer to settle a case actually end the case, if that would give the individual who sued the money she had sued for, even though she wanted something for her co-workers, too?

From the outset of the argument by Genesis HealthCare’s lawyer, Columbia professor Ronald J. Mann, his woes at the lectern came from tough questioning by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, and he did not help himself with those Justices when he dismissed the question of taking care of the co-workers as “a housekeeping issue” for the courts.   Even by then, early in the argument, he ought to have known that the women on the bench were quite sympathetic not only to nurse Laura Symczyk, but also to her co-workers, all of whom had been docked thirty minutes of pay per shift for a lunch break that many of them simply did not take.

Although Mann was insisting that his client had been fully willing to pay the entire $7,500 that it figured it owed Symczyk, that was not reassuring to Ginsburg and Sotomayor, both of whom wondered whether the nursing home’s management was slyly trying to escape liability for her co-workers, to Sotomayor, who seemed skeptical of even the $7,500 figure, or to Kagan, who bluntly told Mann that Symczyk herself wound up with “nothing.”  That, Kagan said, was hardly just “a housekeeping issue.”  Even if one left aside the lack of a remedy for the co-workers, Kagan said, Symczyk “still has her claim.”   Ginsburg also accused Genesis HealthCare of failing even to give the court in the case a chance to deal with the co-workers’ claim, rushing in to scuttle it at the earliest opportunity.

The professor, it appeared, was getting nowhere with his attempt to persuade those Justices that Symczyk “could not take ‘yes’ for an answer.”  Those three saw an obvious injustice, both in Symczyk’s own loss, and in what they perceived as lawyerly manipulation of the case to get it out of court for little more than $7,500 and attorney’s fees.

Justice Antonin Scalia momentarily tried to come to Mann’s rescue, suggesting an argument that the professor had not made at the lectern– that is, that Symczyk probably did not even have “standing”to make a case, for herself or her co-workers, because she could have accepted Genesis HealthCare’s offer, and didn’t.  Where’s the legal injury? Scalia asked.

Justice Stephen G. Breyer tested Mann on whether the case really had any constitutional dimensions to it, because of the requirement under Article III that a case must have an ongoing “live controversy” before a judge may decide it.  It depends, the professor replied.  Breyer lost almost everybody in the courtroom, though, with trying to draw some meaning out of a couple of English cases he had read, from the eighteenth century.   Only Justice Scalia understood enough of Breyer’s point to put it down with a dose of sarcasm.

When Symczyk’s lawyer, Washington attorney Neal Kumar Katyal, took his turn, the Court’s conservatives then took theirs.   It began with Chief Justice John G. Roberts, Jr., suggesting that Symczyk’s lawyers had actually failed to make the legal point that Katyal began with, that an unaccepted settlement offer can never make a lawsuit “moot.”   Soon, Justice Sotomayor got involved again, trying to bolster Katyal’s points by getting him to acknowledge that at no point had Symczyk accepted the pay-off offer, nor had she ever conceded that the offer was adequate.

Chief Justice Roberts then took over again, joined by Justice Scalia, in challenging Katyal on legal procedure.   Once more, however, Justice Sotomayor and then Ginsburg entered, this time to do battle on those very points.

The Chief Justice came back with a suggestion that, with none of Symczyk’s co-workers formally in the case at the time the management made its offer to Symczyk, there were no other parties whose interests the judge could weigh.  Katyal countered that it would make no sense to have a case filed partly on behalf of Symczyk’s co-workers to be scuttled before there was even time to find out if any of those employees wanted to join in Symczyk’s lawsuit.   Moreover, he told Scalia, there was no reason for workers bringing a collective action pay suit to slow-walk the pursuit of their case, “because the clock is ticking.”

Justice Kennedy entered the argument at that point to test Katyal on whether the workers would have objected if the judge had had a chance, and took it, to rule that the offer to Symczyk was full relief that had to be enforced.  Katyal replied that Symczyk had asked for a “fairness hearing” about the offer’s adequacy, but never got it; at any event, he added, “an offer that never gave Ms Symczyk anything is never whole.”

Symczyk’s side of the case got some support from a federal government attorney, Anthony A. Yang, an Assistant to the U.S. Solicitor General.  The government was in the case to make the argument that, if a settlement offer is not actually accepted, there is no basis for ending the case as “moot.”   While at the lectern briefly, he never got the chance to make the argument, as he was occupied with narrower procedural issues raised by the Chief Justice and Justice Scalia.

Recommended Citation: Lyle Denniston, Argument recap: Will sympathy or technicality prevail?, SCOTUSblog (Dec. 3, 2012, 5:52 PM),