How rigidly to apply the Federal Rules of Civil Procedure surfaced this week in Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia, argued on Nov. 2, in which the Supreme Court addressed whether a defendant’s failure to amend its pleading and present an affirmative defense prevents that party from moving for summary judgment on the basis of that defense. To put it perhaps a bit too simply, a number of justices made clear that rules exist for a reason and should be followed.
As detailed in my preview of the case, the pretrial procedural issues arise in the context of a civil rights suit in which the plaintiff asserts that she was improperly dismissed from her job. Jasmine Younge held a high-level position in the Fulton County District Attorney’s Office for about two months until she was fired in July 2019 by District Attorney Paul Howard. Younge says she was dismissed from her job about two weeks after telling Howard that she was pregnant. Subsequently, she sued the Fulton County District Attorney’s Office for a number of civil rights violations, including the claim that she was terminated because of her pregnancy in violation of Title VII of the Civil Rights Act of 1964.
The DA’s office answered the complaint but never asserted in its pleadings the personal-staff exemption defense upon which it prevailed at summary judgment. (Under Title VII, certain officials are exempted from the statutory definition of employee, including members of an elected official’s “personal staff.”) Younge objected unsuccessfully to the motion, arguing as a procedural matter that it had been too late for the DA’s office to assert new affirmative defenses given that it had not amended its pleading.
Younge based her argument on Federal Rule of Civil Procedure 16(b)(4), which requires the district court to issue a pretrial scheduling order that may be modified only upon a showing of “good cause.” The pretrial scheduling order sets deadlines for the parties and, as relevant here, limits the time for parties to amend their pleadings.
Younge’s objection also was supported by Rule 15(a)(2), which sets out the standard for a litigant to amend a pleading. Under the 1962 case of Foman v. Davis, still the leading Supreme Court case on amendment under Federal Rules of Civil Procedure 15(a), the court is required to consider a number of factors, including “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, [and] undue prejudice to the opposing party by virtue of allowance of the amendment.”
The lower courts, including the U.S. Court of Appeals for the 11th Circuit, analyzed only whether Younge would be prejudiced by allowing the personal-staff defense to be asserted. They found that there was no prejudice and concluded on the merits that Younge was a member of the district attorney’s personal staff and therefore not covered by Title VII.
Younge successfully petitioned for review of the 11th Circuit’s judgment regarding whether amendment is required before a defendant may move for summary judgment on the basis of an unpled affirmative defense.
Eric Schnapper, an experienced Supreme Court advocate, argued on behalf of Younge at the Supreme Court. The initial questions from Justices Clarence Thomas and Justice Ketanji Brown Jackson focused on prejudice. That seems to be because even if, as Younge argued, the DA’s office did not follow Rule 15(a)(2) and amend its pleading before moving for summary judgment, the question remained: Why did the failure to amend matter when “undue prejudice” was a factor to be considered under Foman and the 11th Circuit found that Younge was not prejudiced by the DA’s failure to amend?
Yet Justice Amy Coney Barrett homed in on the core point of Younge’s argument when she stated, “going back and forth about whether you were prejudiced or not doesn't help you in your fundamental argument, which is that, procedurally, this wasn't done right.”
After several follow-up questions from Justice Elena Kagan, Schnapper responded by adopting a modest but clear position: “[T]he Court should reverse this decision, send it back, and tell the defendant if it wants to raise [an] affirmative defense to move to amend. That’s all we’re asking this Court to hold.” Over the course of the argument, his approach seemed to grow in its appeal to the justices.
Barrett also asked whether the defendant would have to file a separate motion to amend its answer or the court effectively could “construe” the defendant’s summary judgment motion as a motion to amend. She noted that the 10th Circuit has such a rule in which the court applies the standards for whether amendment is allowed without requiring the defendant to “go through the formalist exercise of actually filing a Rule 15 or 16 motion” to amend.
Schnapper did not reject the approach suggested by Barrett, commenting, “You would have to be sure to let the parties brief” whether amendment was proper. To be sure, Schnapper did not endorse the 10th Circuit’s approach. But so long as the district court is required to be asked for leave to amend, whether in a separate motion to amend or as part of a summary judgment motion, Younge would prevail in the Supreme Court because the DA’s office never sought amendment.
Several justices questioned the need for reversal and remand given the 11th Circuit’s finding that Younge had not shown prejudice by the DA office’s failure to bring this defense in its pleadings. Thomas asked what prejudice Younge suffered, commenting at one point, “I thought it was admitted that she was a member of his personal staff.” Justice Samuel Alito also seemed to resist the requirement of “a formalistic rule about filing a motion to amend for an affirmative defense.”
Stephen Petrany argued on behalf of the Fulton County DA’s office. During his argument, several justices expressed discomfort about adopting the 11th Circuit’s prejudice standard without requiring amendment. Justice Neil Gorsuch inquired about an “incredibly dilatory” affirmative defense, such as one asserted “because of reasons of bad faith,” and why that would be acceptable.
When Petrany replied that the court “has the inherent authority” to reject a summary judgment motion on that basis, Gorusch said “[t]hat seems to be an admission that Rule 15 … applies,” requiring a request to file an amended pleading so that the court can consider the conduct of the party moving for summary judgment (which may have been dilatory) as well as the actual or claimed prejudice on the nonmoving party. Shortly after that exchange, Justice Ketanji Brown Jackson expressed her concern that Petrany’s position would “disincentivize parties to actually bring motions to amend.”
The court’s order granting certiorari included a question about Rule 16(b)(4), which provides that the pretrial schedule “may be modified only for good cause and with the judge's consent.” In this case, because the DA’s office moved for summary judgment after the discovery period had closed (which would have been after the deadline in the pretrial schedule for amending pleadings had passed), Younge argued that Rule 16(b)(4) applies in addition to Rule 15(a)(2), which generally governs amendment of the pleadings.
There were a number of questions about Rule 16(b)(4) during the argument, including whether it was necessary to consider this rule in order to decide the case. But the court seems likely to land where Kagan did during an exchange with Petrany: To reverse and remand the 11th Circuit with instructions to require the DA’s office to amend its answer to include the personal-staff defense and for the lower court to determine whether to allow that amendment under Rule 15(a)(2) and the factors in Foman.
Of course, it may be the case that the lower courts will allow the amendment and that the DA’s office will again prevail on its summary judgment motion. But, even if they would not have changed the ultimate outcome in this case, as Kagan put it, “The rules provide standards here. Why not just use them?” A majority of the justices seemed to agree.
Continue reading...
[ H/T SCOTUSblog ]
