LIVE: Supreme Court Oral Arguments | Younge v. Fulton Judicial Circuit District Attorney’s Office

Next in case 25352, Young v. Fulton Judicial Circuit District Attorney's Office Mr. Schnapper. Thank you. Mr. Chief Justice, and may it please the Court. Pleading an affirmative defense is ordinarily a precondition for invoking that defense to prevent or limit a claim. Contra held that ordinarily, under the civil rules, a defense is lost. if it is not included in an amended defense or in the original defense. There is no reason to depart in this case. from those established rules. The 11th Circuit's Hassan decision improperly permits a defendant to assert an affirmative defense that it has never pleaded It has several fatal flaws. First, it effectively rewrites Rules 8 and 12 to create categories. of affirmative defenses that need not be pleaded despite the fact that the plain text of those rules provides that any affirmative defense, and every affirmative defense must be pleaded. Secondly, if a defendant has not yet included an affirmative defense in its response and the deadline under a scheduling order for amendments... If the answer has passed, a defendant would normally have to meet the good faith standard in Rule 16b-4, but under Hassan, a defendant It can exempt itself from that rule simply by moving for summary judgment. Third, where a defendant has inadvertently omitted an affirmative defense Rules 15a-2 and 16b-4 establish the standard. Nevertheless, by raising that affirmative defense, Hassan substitutes a non-discrimination standard. In addition, in its justifications for the Hassan rule, or some variant of it defendants have offered arguments that reach far beyond just the question of what happens with an unpled affirmative defense and raises a host of issues regarding the standards that would emerge. Ruling for us would simply apply the established rules in... Standards and Rules 15A2 and 16B4 that would not require the court to become involved in shaping new standards as was aired In the previous case, I welcome the court's questions. Mr. Schnapper, what Was the prejudice to your client? The standard, what We argued that there was prejudice below. And we didn't... And what was it? Well, the claim was that we wanted would have sought further discovery. For what? I mean that was admitted that What additional facts did you need? Well, there were two who were raised there, Your Honor. One was concerned whether the public regarded the plaintiff as speaking on behalf of the district attorney. We proposed a discovery regarding that matter. The judge would not allow us to do so. We also sought a revelation from the chief. of staff regarding the extent to which he supervised her. The court also refused to allow us to do that. But I don't see what that had to do with it. I thought it was admitted that she was a member of his personal staff. No, Your Honor. Whether someone is a member of the personal staff was subject to a six-part test in this case, and a third of the factors, There was clearly evidence that it was not satisfying. Whether she was personal staff was indeed the point of contention. We sought discovery on that, and the court, I need to express it differently. The question that was put to us was, would we have sought discovery regarding that, had this been an issue a year or two earlier, we would have argued that we would have and the court indicated it wouldn't have allowed us to obtain that discovery. So it's all speculative, right? I mean, your point is that... It's hard to know whether or whether there is prejudice in a situation like this, because if this affirmative defense had been raised in the response, or if the answer had been amended, then you might well have requested discovery that was specified in this manner, and the court might have granted it because it went to an affirmative defense. But it's very hard to figure out afterward the extent to which the road not taken affected your case. That's correct, Your Honor. That was a point made by Chief Judge Edwards. made in the Harris decision many years ago, that we're somewhat constructing a counterfactual conditional world and try to figure out what would happen. But that's just a question of whether You would have obtained leave. to amend the complaint, even if you had faced a Rule 15 motion to amend. The undue prejudice the portion of the argument would have been the same under Foman. I mean, there may have been others factors such as undue delay, and so forth, as well but essentially what you're arguing is that you were prejudiced, so the district court or the magistrate judge's decision That you weren't prejudiced is incorrect. but that does not go to the form by which the other party had to seek to amend the complaint. If they had sought to amend the complaint, it would have been governed by the standards in Rule 16(b)(4) and Rule 15(a)(2), both of which would have to be satisfied. 16(b)(4) would have required that they show good cause. for not having raised this. I agree, but you were just talking about undue prejudice. And you were saying why, in fact, you were unfairly prejudiced. That would have been another contributing factor as well. that the court would consider under Rule 15, and it did consider it under the 11th Circuit's test. So I guess what I'm saying is, going back back and forth about whether you were prejudiced or not does not help your fundamental argument Which is, procedurally, not done correctly. Bias had to be shown in one direction or the other. As far as I understand your point is that prejudice would be an issue under 15(a)(2), and these complexities would exist. I think that's fair. but But one of the things that happens under the 11th Circuit standard that we have to have a very specific... standard of what constitutes prejudice. That's not as important under Rule 15(a)(2), because The court may consider anything. There is considerable disagreement. even now, four decades after Hassan, in the Eleventh Circuit, about what the word prejudice means in this context There are three lines of cases, At least one of them holds that the need for For discovery earlier is never prejudicial, thus the court can simply reopen discovery, which essentially causes the exception to swallow the rule. On the other end of the spectrum, other lines of cases that hold that the fact that the discovery deadline had closed is without enough to block Hassan, and then there's this intermediate view, which is you try to figure out what the discovery would have been, and how important it would have been. In this case, that was an issue. Let me stop you right there to ask you—what would the problem be? be really, with something like the Tenth Circuit's rule, which states, well, we will interpret this summary judgment motion as... A motion under Rule 15 and Rule 16, and we will apply those standards. It's just that we're not going to make them go through it. the formalist exercise of actually filing a Rule 15 or Rule 16 motion. That would solve your problem, wouldn't it? Because the standards for undue prejudice would be identical. It would just be that they would also have to satisfy The other factors. What would be your objection to that? That would solve that problem. You would have to make sure to allow the parties to brief that. Now, there's a difference. Among the courts that do not follow Hassan, There are different viewpoints. The Tenth Circuit's view is that it treats a reference to an unpled affirmative defense or reference to an unpled claim as a motion for leave to add The Second Circuit, as I believe, holds that this is permissible. and then And then the Eleventh Circuit doesn't do that. Thank you I suggest that the court not take a position. on whether treating an unpled affirmative defense In summary judgment, as a motion, is something courts have to do. shall I'm not really familiar with that experience. in the Tenth Circuit about whether that's worth it I'm sorry, technically it's sufficient. but whether it's a practical good idea Don't have a position, I mean I suppose to understand your argument, let's assume Ha. that the defendant here, instead of filing a motion for summary judgment, but at that very moment, waited a long, long time, and then said Oh, we realize we have this affirmative defense, Came in and said we'd like to amend. Perfectly fine, then, for the court to apply Rule 15 or Rule 16 to the extent that it is applicable. And say, okay, despite the fact that a lot of time has passed You can amend, can't you? So there's no such thing as like, I'm sorry you've waited so long—do you think there is anything in your view? I mean, maybe there's an undue delay standard, but, you know A court might find, well, it wasn't undue, you can amend now. Exactly what I'm saying is that this is never waived in the sense some of which are waived if you fail to file on time because there is a provision in the rule allowing you to amend your pleading. I'm having a hard time finding something with which you said that I disagree. Okay. But let me make clear what I'm saying Therefore, our position is that the court should reverse. Its decision, send it back and tell the defendant, if he wishes, for instance, to request a move To amend. That's all we're asking this court to hold. Yeah, so if that's correct, right, if you can, even now there could be an amendment to the pleading, and then I think that Justice Barrett was asking a similar kind of question, You know, maybe the court would say, well rather than going through all the trouble of amending the pleading, When I know exactly what your amendment motion is going to say It should also be within my discretion. just to construe your motion for summary judgment as a motion to amend. You know, maybe not. That's up to the court. The court could say, go back and just give me the correct document. Or the court could say, like, that's a lot of trouble. Let me just construe this as a motion to amend. But either way, I guess the court can do that right now. There are at least two things raised by your questions. The first one is, would it be permissible for a court to do that? It continues in the Tenth Circuit. I don't see why a court couldn't do that here. We are not raising an objection to it. I'm only adding a word of caution that I wouldn't advise The court told judges they have to do that. With regard to time, time does matter under both 15A2 and 16B4. Under Rule 16B4, once the deadline for amending a complaint or an answer Passes, the standard is different, and it is a more demanding standard. Even under Rule 15(a)(2), undue delay could be a basis for denying leave to amend. And this could be the kind of case where that would make a difference. That seems to me, if I may, I'm sorry to interrupt, But, Mr. Schnapper, that seems to me to be the heart of the matter. Under the 11th Circuit rule, they examine prejudice in kind. of a harmless error, the first sentence of Rule 61 kind of circumstance. It applies to trials, I know. But that's how I imagine they perceive it. Would anything have been different? What is your argument, if I may ask? if you go back and look at Rule 15 and 16, There are going to be other considerations. that a court may wish to take into account. Like the 20-year litigation that continues ongoing, that outlasts generations. And they move for summary judgment, And then they drop this thing in there. A court might say, Hey, you might have done exactly the same thing. Mr. Plaintiff, I don't know. Perhaps it wouldn't make any difference. On the merits, but it's just too late. Unreasonable delay, since Fulman holds that this is not an abuse of discretion, I suspect So is that really the delta where this dispute makes a difference? The fundamental difference lies in our assertion that they would have to comply with standards 15.8.2 and 16.B.4 That's the only thing we're arguing about. I understand, but ultimately, that's where the real test comes. The real test comes when it comes to undue delay, I think. It's one thing to say, hey, the case would have looked the same, You are not biased in terms of the merits. But there are other considerations regarding Rule 15. and 16 may take into account, including matters such as undue delay. Yes, yes, that's right. And I think the Harris decision by the D.C. Circuit made at that point, in several paragraphs, that the standard under Rule 15.8.2 is multifactorial And the Hassan standard is just one factor. So basically... I'm sorry. Isn't the question whether the delay was unreasonable... very closely related in most instances to whether there was prejudice. What does it mean for it to be undue? If no one was prejudiced, the opposing side was also not prejudiced. If the court was not biased, then why would it be excessive? I mean, such cases could indeed exist. What I'm saying is, I think we're talking about a sliver, a sliver of cases where that's going to be, There is going to be an undue delay without prejudice. Fulman describes these as different standards. and I think it would be difficult sitting here to imagine all The different ways in which this problem of amendment arises. But in this context, for example, the underlying issue here whether the plaintiff is in the proper forum. A substantive Title VII right may be litigated either under the traditional Title VII methodology of filing a lawsuit in district court, or if an employee is personal staff of an elected official, that claim is adjudicated before the EEOC under The Government Employee Rights Act. So the question here is, were we in the right forum? I can imagine if they were to move to amend, and they'd have to also satisfy Rule 15(a)(2), our argument would be that we wasted And the court wasted two years on this case, litigating it in the district court, And now you're telling us we should have been in a different forum. And that should have just happened. A practical problem, it seems to me with any rule that makes, with a formalistic rule regarding the filing of a motion to amend in order to assert an affirmative defense. The problem with that is that it puts, it makes it very important to determine whether something is in fact an affirmative defense or an element of the claim. That is not the issue before us here. But I don't know that this constitutes an affirmative defense. And if the rules differ significantly, then plaintiffs will simply choose to, they are going to plead every element of the claim as an affirmative defense to ensure they haven't missed anything. problem, to the extent that it is There, and it's raised by one of the amici. briefs, it's true no matter what. I mean, That's kind of a proposal. to abolish the requirement that you plead from your defenses that that issue is potentially There. With regard to... No, it's not an argument to Abolish the requirement. It's an argument. to not to draw, not to make it very difficult to assert an affirmative defense later where no one has been prejudiced. Well, I could make two points here. The first one is, is... That might be an argument. that a defendant could raise in support of a motion to amend and, but But if... An answer has not included an affirmative defense. The solution is to revise the answer. And any arguments of that nature would fall under that category, not some special rule to simply ignore. Why is this an affirmative defense? I know it's not the issue before us. Why is this an affirmative defense regarding an element of the claim? Well, just to give you the background on this issue, Five circuits have addressed that question. Four of the circuits have held that it is an affirmative defense. The only circuit that's contrary is from 1982. But the prevailing view of this is that this functions essentially as exempting certain types of activities from the scope of the statute. It is widely referred to, including in the court below, as an exemption. The decision of this court in... I believe it was E.D. several years ago regarding exemptions. under the Fair Labor Standards Act. It states that they are all affirmative defenses. This is one of the exemptions under the Fair Labor Standards Act. But as you said, that issue is not here. It's a fine line to draw. Suppose a private individual is sued under § 1983. Is that an affirmative defense? I am not a government employee. I am a private individual. Is that an affirmative defense? Never mind. It's a different matter. It's a fine line to draw. Can I ask you about that line, though? Because, I mean, I thought your argument was that that line gets taken. taking into account in the context of a motion to amend Under Rule 15, if a person says, or even in this case, if they hadn't brought it up earlier, and suddenly they put it forward in a motion for summary judgment, and their response to the court stating, Why is this here? We didn't think it was an affirmative defense. so we didn't need to include it in our answer or amend it as a result, We can have litigation about that. But that is not the claim. That is not the argument being made here. They're basically saying... We concede for the purpose of this argument that this constitutes an affirmative defense, that we were supposed to include it in our answer according to the rules. We're simply stating the fact that we didn't include it in our answer. The standard is too bad. It doesn't matter because it didn't harm anyone. That is our position. To the extent that there is an argument here, It should be made in the context of a... Can I ask you a little bit about, Justice Gorsuch says that undue delay is really the heart of the matter. I'm wondering whether your argument isn't Also, under Rule 16, there is a requirement of good cause. So it's not just the idea that we're arguing about whether the delay was undue, which, as Justice Alito suggests, could seep into prejudice. There is also, I think, under Rule 16, the requirement that if you are I'm going to try raising this now—you must have a good reason. That is correct. As we have mentioned repeatedly in our brief, There is a serious 16B4 issue. The question for the court is not whether, We are not asking the court to decide that they cannot amend their complaint. their answer, all we are asking the court to decide That is because they have to do it under 15A2 and 16B4. And counsel, may I just clarify that? because I took your argument to be that you had to, a formal one that you actually had to file the piece of paper, the motion under Rule 15 to amend, motion under Rule 16 to amend the scheduling order. But I took you to respond to my earlier questions. that you really don't care if the court interprets the motion for summary judgment as a motion to amend the complaint in the scheduling order as long as the court is applying the same standards that would apply under 15 or 16. That's our perspective. Can I put that... I want to wrap that up with a period. Because I understood things the same way Judge Barrett did. There are three different approaches. The D.C. Circuit says you cannot file a motion. for summary judgment adding an affirmative defense You must first file a motion to amend. You don't think that rule is necessary. You don't want me to say that D.C. can't have it, But you don't want us to say it's required. If it were up to me, I'd simply refrain from taking a stance on the matter. Because it's a matter between the circuits, and it's not relevant. Yes, we kind of have to. But we're not saying you couldn't. We kind of have to, I mean, because I think what the 11th Circuit did here something along those lines, like a version of saying, I mean, not applying the same standards across the board, but saying, like, we're not going to go through all this hassle, we are applying just the undue prejudice standard, And I'm not saying I agree with that. But I suppose there's a significant difference in the way I read. your brief and what you're saying now because I think there is a difference in saying, No, you must formally submit this as a motion. It's just different. The essence of our argument is the standard that must be applied. We don't really take a position on whether there needs to be a formal motion or the district judge could. treat a summary judgment motion as a motion to amend. So basically what you want us to say is, if you're going to treat it as a motion to, if you are going to, in summary judgment, permit an amendment to the pleadings You must apply the Foman factor. That's the question. And the Foman factors include prejudice, but they are not exclusive. Right. That's it, plain and simple. And good reason, right? Isn't that your argument? Yes. I mean, I thought, I guess, to pick up on Justice Jackson, At this point, I thought the question whether good cause is also required is critical. It's quite different. They are pregnant. Not doing a good enough job incorporating that. As I've said, there are two standards. those that would have to be met in this case, 15A2 and 16B4. In some cases, it would only be 15A2. It would depend on the time. Well, Mr. Schnapper, you'll correct me. I don't see why 16B4 is relevant in this case at all. The district court's scheduling order. stated that the parties must comply with the time limits established in the Federal Rules of Civil Procedure That's Rule 15. And this court's local rules, and I don't see anything in the local rules of the Northern District of Georgia that address the deadline issue at all. The local rules require motions to be filed within 30 days. That's why we end up with the deadline in this case. It's a rule of the Northern District of Georgia. Do we really need to decide that? I mean, whether 15 or 16? Do we need to determine whether 15 or 16 applies? Can't we just say, go look at one or both of them? depending on the circumstances of the case? You need to decide very little to resolve the case in our favor. All we're asking to uphold is the standard that must be met. It is the 15A2 and 16B4 standard. as a 15 15A and 16, if applicable. Right, both of them. Both low and on 16. I mean, I thought again, going back, Do you think a good cause is a requirement or not? Because that's a significant difference. I mean, prejudice affects the other party. Good cause is whether, you know, you have something better than, to pick up on the previous case, Something better than my mess when you come in, right? That would be a different component. 16b-4 is clearly different from the Hassan standard. Even 15a-2 differs from the Hassan standard. And that is our complaint about this law. I guess the question is, why should we require A good cause on top of prejudice? That's what the rule states. Because you think 16b-4 does apply. Well... That's our position. Thank you. I suppose the defendant on remand could argue that it did not. but I think it's fairly clear how the local rules work That was the deadline. you Thomas, anything further? Alito? very I am told that you acknowledged below Much. District Court Docket 132 at 8. You wrote, quote, This court's local rules do not address the deadline for amending pleadings Is that inaccurate? Well, I'll go back. I don't have that in front of me, but... I'll go back and check. But that would be an issue upon remand. They could argue that. I understand that. The general understanding In the Northern District, it's due when it was due. But they could raise it on their own. Just to clarify what you said about Rule 16, what you're saying is that if Rule 16 applies in this case, Then there is a good cause standard that must be met. But you're not asking us to decide whether Rule 16 applies in this case. We are not asking you to decide that at all. You're just saying that if it is, then that requirement must be fulfilled. the good cause standard, in the same manner that the requirement of Rule 15 regarding undue delay must be satisfied. That's all we're asking for. It's just like the rules are the rules. You take the standard from the rules, whichever rules apply, one or both. Exactly. Thank you, counsel. Mr. Petrani? Mr. Chief Justice, it may please the Court. Petitioner Young's Title VII claim fails because, as her own testimony helped to establish, She was unquestionably personal staff to an elected official. Now, to be sure, the DA's office mistakenly failed to plead this defense in its answer. The failure to comply with the pleading rules And the consequences of that mistake are two separate issues. And nothing in the federal rules holds, not 15 or 16 or anything else. But the consequence of this type of pleading error That a litigant cannot raise a legal argument at summary judgment on an undisputable record where there is no prejudice to the plaintiff. Nothing would have been materially different had the mistake not occurred. On the contrary, the text, structure, background, and principles support a prejudice test. A stringent prejudice test, yet a prejudice test under these circumstances. That includes Rule 61, but it also includes the numerous rules that provide specific consequences, like waiver, like bars on raising arguments, from 12H to 71.1, 72A and conspicuously absent here is anything of the sort. And that silence is especially compelling. Because the rules used to establish that a defendant waives all defenses and objections not included in the answer. But that was removed in 1966. Young would reinsert that textually into the rules. Young essentially insists that a defendant must first amend the pleadings to raise a legal argument at summary judgment. But that's not just wrong. It misunderstands what pleadings are and what they do. They provide notice of factual issues to be resolved, discovered, investigated, and ultimately tried. But legal arguments are the domain of motions. And so demanding an amendment here, Where the record is already established, it would be empty paper shuffling. That's what the bias test led you to. We have a record. What is the correct answer? I think the court should affirm. I welcome the court's question. Petitioners... ...suggesting that there was prejudice, and I didn't quite understand it. What is the petitioner's argument regarding prejudice? I believe they have virtually no basis for prejudice, Your Honor. And it makes this case, I think, relatively easy. The Eleventh Circuit identified three arguments. that the Petitioner made on prejudice. They said, well, we could take a closer look at the regulations. The Eleventh Circuit stated, that's legal analysis. that you are not biased by... They had an argument that, well, actually, after the pregnancy It was disclosed, and she was no longer treated as personal staff. But once again, the 11th Circuit stated, that is a legal question. As for when you consider whether they are personal staff. That is not factual or supported by evidence. Their final argument was, maybe we could poll, you know, find some members of the public and poll them as to whether or whether a petitioner was seen as speaking on behalf of the district attorney. And what the 11th Circuit said, and this is the essence of our position. That wouldn't make any difference. You could actually do that. You could go find those people, and even if they said, Well, we didn't think she was speaking on behalf of the DA. It doesn't matter, because the evidence is so overwhelming. Her own testimony was so clear, that no matter what, she fails under the personal staff exemption. And so the question is, the mere fact that we made a mistake, this, well... Assuming it's an affirmative defense, I do want to mention that, but assuming this is an affirmative defense, There was a mistake, and that the DA's office did Do not include this in its answer. But there is nothing that says that that kind A mistake means you cannot raise a legal argument at summary judgment. I think there is. I mean, I think Rule 15, and possibly Rule 16 in some cases, tells you what to do when you've made a mistake. There's a rule. You broke the rule. You did so unintentionally. But now the question is, what happens? And it turns out Rules 15 and 16 say... It's not irreversible at all. You can correct your mistake. But then, those rules provide the standard for when you can, Under what circumstances can you correct your mistake? So, they address the question precisely here. Under what circumstances will we allow you to make corrections? The error of failing to include your affirmative defense in your answer? Your Honor, I have three points I wish to make on that. The first is, Your Honor said, well, you can correct your mistake. But Young's argument has been, And I take Young's argument to still be, actually, that you can't. If you merely made a mistake, that cannot meet the good cause standard. That is an argument. Well, first off, that's Rule 16. Rule 16 might not even apply to this case. The question is, let's assume it were Rule 15. I mean, you're right—if there were a Rule 16 issue, Rule 16 would apply the standard. But in any case, Rule 15 and Rule 16... One or both address this question of what do we do when an answer fails to include what it is supposed to include Hey, we have a standard for determining when you can make corrections. Well, respectfully, Your Honor, Rule 15 is not really aimed at corrections. It is directed at amendments, to be sure. Because as the case progresses, circumstances change. The amendment is a way of correcting what you failed to do beforehand. But I want to make a point about Rule 15 and Rule 16. Under Rule 15... Our standard, I think, is actually stricter than the Rule 15 standard. because I think, as Justice Gorsuch was pointing out, and what the lower courts virtually unanimously agree on, undue delay really means prejudicial delay, and so really what you're talking about When you're talking about Rule 15, it is... Well, not always advice, okay? I often agree, but let's focus solely on Rule 15. when justice so requires That's the standard. And let's say this lawsuit has been going on forever... Let's say it wasn't a mistake. Let's say you waited in bad faith. Why does a court need to consider prejudice under those circumstances? Why couldn't a court say justice does do not require an amendment under these circumstances, does not permit an amendment under these circumstances, due to bad faith and dilatory tactics by the defendant? I'm not going to look at prejudice. Well, Your Honor, two points. First, we have acknowledged from the beginning, and I don't take Young to disagree, that courts can examine bad faith. They inherently have the authority to always examine bad faith. Why can't they just stop there? Oh, they absolutely could. They wouldn't need to go any further. I would have thought so. They would not need to go any further. But that is not at all in conflict with our rule. Our point is simply that. The assumption from Young's position is There is an inference, it is an inference. that because it is not in your pleading, You cannot raise a legal argument at summary judgment based on undisputed and indisputable facts. And we simply believe that the inference is incorrect. The inference to draw is, you certainly can't be talking about facts that are potentially indisputable. Now, then we get into the affirmative defense versus what's an element of the claim, and that is simply not before us. So, I'm talking about an affirmative defense, You admit you're trying to pursue an affirmative defense; work with me. Yeah, we can assume that. And the affirmative defense is incredibly dilatory and may even be. delaying due to bad faith reasons. I'm not suggesting that's the case here. Why couldn't I think your rule would mean the district court could not assert. No, respectfully, Your Honor, that is not our rule. As we pointed out in our brief, the court has the inherent authority to look and say, Look, you delayed on purpose. or you've known about this all along, and this was merely a bad-faith strategy, or something along those lines. And it could absolutely reject it for that reason. Our point is simply that. Well, it appears to be an acknowledgment that Rule 15 applies. I mean, what Foman takes into account all of those factors, I guess, what would your objection be to the Second? and Tenth Circuit approach, which I was discussing with your friend on the other side, simply says, sure, construe the summary judgment motion as a motion for leave to amend, apply the standards under Rule 15 and Rule 16, as Justice Kagan suggested doesn't mean you can't make amendments, it just means Here are the standards that apply. Two points, Your Honor. If the court were to rule in such a manner, I think it should simply affirm, Because I think the 11th Circuit did apply a strict prejudice test. There was no suggestion... Say we don't want to do that. What's the problem with the rule? Because all we've been asked to do is decide... I thought this case was about whether you had to go through the exercise of actually filing the motion to amend. We found out that that is not the plaintiff's position. So, what is your objection? We can send it back, and if that is in What the 11th Circuit thinks The 11th Circuit will reach the same result. But what is your objection to the 10th and the 10th? I think the main objection would be... Young has argued consistently throughout, and continues to argue in this court, that 16b-4 should apply, and that making a mistake is not good cause. So, setting aside the fact that we simply consider it wrong, that would be the objection in practice... That is a separate legal argument. That's not what we granted cert on. We granted cert on whether you have to, in making a motion to amend, whether it is now independent from a motion for summary judgment, or a portion of summary judgment. that you essentially have to comply with the Foman factors. Your Honor. Or that the Foman factors guide the decision-making process. Your Honor, the question presented specifically asks whether or not you can make the argument even if you were unable to comply with 16b4. So I've been taking Young to be arguing this entire time. I'll do it. That if... If you need to amend the pleadings to make this work, that we couldn't make it work because we don't have the budget. Only if 16B is added. But I would just like to go back to... Can I ask a quick question? Oh, go ahead. Do you think she does, assuming she's personal staff? Was there any remedy she had? Any alternative remedy? Well, she could have gone through the EEOC, for sure. All right. And would she have had time to do it? Oh, absolutely. In fact, she had... No, no, no. I mean, by the time she filed the complaint, If you had raised your defense earlier, Would she have been within the statute? Limitations on returning to the EFC? No, Your Honor. The statute of limitations is 180 days. She didn't even file the First Amendment complaint until after that. All right. That was my own... And we did not submit the response until after that. I should have asked the other side that. Can I ask you a question? I'm sorry. Can I ask you a question? Yes. I guess what's bothering me about your position is that it seems to discourage parties from actually filing motions to amend. And maybe I don't understand your perspective, but to the extent that if you wait until summary judgment, once you've realized you made the mistake, and you don't as Justice Kagan suggests, follow what the rules say about amending, and you just go for summary judgment, if the standard there is merely prejudice, Then why aren't you incentivizing parties to do things in that manner? rather than going through the motions of amending, which is exactly what the rules say you're supposed to do? Two responses, Your Honor. The first is... Our standard, we believe, is stricter than Rule 15. So Rule 15 is as justice requires. and the court has described this as undue prejudice, and the lower courts have all recognized that means there can be prejudice, It just can't be too much or unfair. But our test is, would there be any difference? Would anything have been different? Was there any possibility? But to the extent that there is a difference... You're saying that because your standard is the one you think is harder, Wouldn't that actually discourage people from taking that path? Will people still attempt to amend? Well, they would absolutely amend it if they had the ability. To do so, because once again, we are looking at this retrospectively. But you didn't offer to amend, so why would they? I don't understand. Well, because in the 11th Circuit the rule was already clear. that if the record is set, if there is nothing that could have been changed, Then certainly, you can present the argument at summary judgment. I mean, I guess I don't understand why we wouldn't just equalize, Why wouldn't the standards just be equalized? You know, whether you choose to move to amend, or whether, as Justice Barrett suggests, You wait, you include it in the summary judgment motion, and we interpret it, courts interpret it, as a motion to amend and apply the same standards. Why shouldn't that be the way this rule system works? If you have a different standard, it seems unusual. Well, it's because you're addressing a different question, Your Honor. So, when you're amending the pleadings... You're opening up potentially a whole world of the difference in how the litigation is going to proceed. You can add claims, retract claims. I don't know whether that helps you or hurts you. I don't know whether that helps you or hurts you, because it is clear that the motion to amend is what is supposed to happen according to the rules, precisely because it could result in different litigation outcomes. So, to the extent that we follow your approach, It seems to me that a person would be inherently prejudiced by your refusal to amend because those same litigation outcomes wouldn't necessarily occur. No, our whole point is, We are not making an amendment in any meaningful sense. because we are merely attempting to raise an argument that was not originally presented, but we receive none of the benefits of amendment, expanding, changing discovery, new discovery compelling discovery, changing the schedule, etc. But you deprive the other side of the benefits of amendment by not doing it. If you had put this, you know, the counsel on the other side says, We spent two years litigating this case. and you say it's such a clear-cut affirmative defense, if it was in the answer Perhaps we would never have wasted all of those resources. There's a reason why Congress wants these things, or why the rule drafters want affirmative defenses to be pleaded upfront. It is significant to the litigation. I don't understand how you can say on the one hand it does, On the other hand, it doesn't. Your Honor, it certainly matters in most instances, That is why our rule is narrow and strictly enforced. The idea here isn't that, well, I can just raise something at summary judgment and be done with it. The idea is, if you raise an argument at summary judgment, It must be a legal argument where the record is established. and nothing could have been any different. There would have been nothing materially different in the litigation. That is much tougher than the Rule 15 standard. Much tougher. And the reason for that is precisely because we're not attempting to do the things that amending a pleading does. We're just trying to make an argument. This is directly analogous to, for example, raising this affirmative defense in a motion to dismiss. If the facts are stated in the complaint, you can do that. even though it has not been pleaded. And in this particular case, just to use this as an example, Two examples from this case. First of all, this is not something. that we could have won on a motion to dismiss. And if we put it in the answer, There would have been no difference from Young's side. Young has consistently maintained throughout that she is not personal staff. So Young wasn't just going to, you know, throw her hands up and say, you know, Oops, I shouldn't have done this. But here's another example. In this very case, there was a different affirmative defense, or at least a purported affirmative defense, the policymaking appointee exception, that the court said, look, You would need to make changes to do this. because the facts are not in the record. We don't have a set record. We can't simply apply the law to the facts and know that we're right. And so our test is detecting only one thing. It's about recognizing a situation in which you made a mistake. The facts are utterly indisputable. The other side is not biased. Nothing would have been any different. And so you simply address the argument at summary judgment. And once again, the inference from the other side is You cannot address an argument on summary judgment if it is not in the pleadings, But that is simply not true. It's handled during motions to dismiss. Rule 15(b)(2) even permits factual issues, when tried by consent, to then become part of the case, even if the pleadings are not amended. Rule 54 allows plaintiffs to obtain their entitlements, or the relief to which they are entitled even if they didn't ask for it. The rules are... to anthropomorphize them are okay with the idea that in rare circumstances Something is not going to be in the pleadings. But you can still raise it. In fact, this court has used that very language. in its decisions when it acknowledged that the failure to include something in your pleadings in Day, Milliard, and elsewhere is more akin to forfeiture. It's not the same as a waiver. It's not something you can't recover from. And it's not enough to say, well, You could come back from it if you amended your pleading. where the wall and the door that Youngs would install are Yeah, but you can't do that because you made a mistake. And a mistake is never going to happen to serve as a valid reason for amending a pleading. And I would put on, and add on top of that, if it were true. Can I just, can I just? Yes. While Young might be making that argument, that is not what is before us here. That would be a remand issue. In this particular circumstance, correct? Well, the 11th Circuit has stated in other cases Just making a mistake is not good. No, I understand, but in this case, the court's ruling in Young's favor, for example would not necessarily have to determine whether or whether there was sufficient justification in this situation. If I understand Your Honor's question, no, I think that's precisely what the question would be. because there is absolutely no question that there was no prejudice here. I mean, we have no problem applying the Foman factors. We easily meet all of their demands. I thought your argument was that Rule 16 doesn't apply at all. So, if Rule 16 does not apply at all, according to your argument, We don't even address the question of the good cause. The question of the good cause does not apply. I agree, Your Honor, but that is contingent upon our winning. I took the question to you. Well, presumably, you would do that during remand. You would have every opportunity to say that Rule 16 does not apply here. And then you're back to... Only the undue delay, undue prejudice delta, which is a rather narrow margin. And mostly, I think what I want to say to you, Mr. Petrani, is that you? Well, then, Our standard is less strict; our standard is more strict. It seems to me that it's less strict in certain circumstances. and it is stricter under other circumstances, is truly what your standard is. But the point of the matter is that your standard is not the standard of the rule. The rules provide... Why not just use the standards here, even if they're stricter? or less strict than those that would suit your client very well, respectfully Justice Kagan, I think we are going with the I think the rule's standard would have it that been young standard if we had been in 1963 at that time Any defense or objection not included in an answer was waived. But that is not the case today. Well, if that is not the case today, then there must be instances where You may raise defenses or legal arguments that are not included in your pleading. Otherwise, removing it would have been completely meaningless. and all other uses of that term and others would be useless. There is no doubt that you have greater ability to amend. That's not the issue. The issue is, Is that ability still limited in some way? Both Rule 15 and Rule 16 contain certain limiting factors. It's different from your no-prejudice standard. Now, Justice Sotomayor, as the rule used to be, you could still amend. That was still the same thing. But the rule stated that if it wasn't in your answer, it was waived. It didn't say you couldn't make amendments. You were allowed to amend. So removing that according to Young's perspective and under this interpretation would be completely useless. It would have achieved nothing. And all the other locations, Rule 12h specifically outlines... I'm not sure I understand your argument. Would your argument remain the same if Rule 16 were not present in this case? I mean, I understand you're most worried about the good cause standard of 16b4, but let's imagine that we're just talking about Rule 15. You have no... You're telling us that you're completely Confident you can meet the Foman standard. So, you don't seem to have a real objection to saying that even if we construe your motion for summary judgment Under Rule 15, the Foman factors apply to a motion to amend. You don't really care about that, do you? Well, I think under the circumstances, yes, I believe in this particular case, Yeah, I don't really see a problem with that in the abstract. I don't think it's the best way to understand what's happening. but I, yeah, I think our test is harder than... I think it's inherently more difficult than that. So I don't think it's a problem. If that's the standard, you can make amendments. There's a way to do it, well, 15—there's a standard. So your objection is really, wow, 16b4 is good because "standard" would essentially mean that nobody can ever amend because good cause is truly difficult. Well, I think what it would mean is that no one could ever amend or raise a knockdown legal argument on summary judgment if they made a mistake. You know, if there were some other reason then perhaps. This just seems like a different argument. This just seems like an argument, like, hey, listen, if you interpret good cause in 16b4 to be too strict, Then it completely undermines your Rule 15 right to amend. That is not really the same question we have. Well, of course, Your Honor. That is not the main point I am making. My point is simply that if the court wants to say, look, let's just... You know, kind of don't worry about the label but just apply the Rule 15 standard, I think our The standard is stricter than that, so I don't have a problem with that, I think, however, the The key question after that is, well, if we have To apply 16 before 2, why aren't we doing 16 before again? It is about amending a scheduling order; it is about amending. a complaint that includes all kinds of costs associated with it that merely raising A legal argument at summary judgment does not that is Directly analogous to raising, once again an affirmative defense at a motion to dismiss where you just have the facts there, so just apply the law. Justice Alito asked you, would the amendment Even here, is the scheduling order being violated? Justice Alito read some things from the record in the local rules to you. that suggested you hadn't even violated any kind of timeline. Your Honor, my understanding is that there was a 30-day period, After the scheduling order, a 30-day deadline for amendment. If there's something hidden in the record That says otherwise, I haven't found it. But I think, once again, that simply gets to the point that once upon At one time, there was a rule that if it was not in your answer, it was waived. But that is no longer there. And so if the answer, if the... If the rule is nevertheless something you have to amend, That is a rule: if it is not in your answer, it is waived. Because it's saying that the only way you can Do this by revising your answer. And I think there are too many examples of where this court and the The rules make it clear that you actually don't have to do that to hold that here. And I think if you're open to the idea that, look, we can raise an argument on summary judgment because the facts are entirely established. And that's what the 11th Circuit stated. There is no prejudice here. Not only are these undisputed. But they are undeniable. No one could Have you ever found anything that would change them? If you're open to the idea that you can raise an argument outside the pleadings This would be exactly the situation to do it. Where there is no prejudice, nothing would have been different. and the only thing that amending a complaint would do, or sorry, correcting an answer would suffice, Add seven words to the answer to state that you fail under 2000 EF. It doesn't achieve anything worthwhile. Can I return to the original question? Which review was granted It has two parts. The first part, I assume, refers to Rule 15. And what I understand The Rule 15 question That was presented to us To be, is this Is it, can an affirmative defense The basis for summary judgment Where there has not in fact been A formal amendment of the complaint I understand, Mr. Schnapper. It would be helpful if Mr. Schnapper clarified this during his rebuttal. But I understood him to say that it isn't necessary. There doesn't necessarily have to be a formal amendment to the complaint. It is permissible for the district court to say we don't need to go through all this hassle. I am just going to consider your summary judgment motion as a motion to amend. Is that a misinterpretation of the question? No, I think that's correct, and I do think that. at least as far as I can tell Young's position has shifted slightly since the briefing. and oral argument, because I understood Young's position to be, no, You really do have to make amendments, even if it's just for the sake of having a rule. and formalism for the sake of formality, you truly do have to amend, and our point is, there are at least circumstances where The federal rules themselves acknowledge there are times when you don't have to make changes just for the sake of making changes. And we consider this the prime example of that circumstance. I will go as well On to the structural reason for this. There are pleadings that address factual issues, And there are motions that cover legal arguments. This court has summarily reversed lower courts. for requiring legal provisions in complaints. I think you would be seriously undermining that understanding. how the federal rules of civil procedure work if you say you cannot raise this legal argument on summary judgment with a fully developed record where everything is unquestionable, just because it was not in the pleading, just because this legal argument was not in the pleading. An affirmative defense is a combination of two things: facts and law. In this case, the 11th Circuit held that there is nothing To dispute about the facts here and there could never be. That means we have the record. So what is the point of amending? a plea to say, oh, we have the record? The only thing left is, is there a legal argument? And legal arguments are presented through motions, They generally do not come through pleadings. So I think it makes perfect sense, not only the text, but the structure of the rules that in the rare circumstances where someone has made a mistake, but it turns out that the factual record is abundant, it's settled, it's done, and there's nothing else you could do to it. At that point, you simply treat the factual record as the factual record. And there is no reason to demand the utterly formalistic step. Go amend your pleading so that it now reflects the factual record. The rules themselves reject that in 15b2. And so I don't see why the court would essentially invent a requirement of that nature where the rules, once again, do not require it. They used to, but they no longer do. Thank you, counsel. Rebuttal, Mr. Snapper? Mr. Chief Justice, two quick points. First of all, once again, to make our position clear. It is that in order to raise an unpled affirmative defense, The answer needs to be revised. It doesn't have to be a formal motion. The court could treat a motion for summary judgment as a motion to amend. Amen. And I think, I would have thought, If that wasn't clear from our opening brief, I'm making it clear now. The opening brief criticized the 11th Circuit. because its standard was different from that of 15a2 and 16a4. One other point, my friend noted that there are some provisions in the rules which permit a defendant to assert an affirmative defense without pleading it, and suggested that there's no need to plead it at all. Those exceptions actually demonstrate the opposite. because they are explicitly exceptions. The first one is an unpled affirmative defense. be raised in a 12B6 motion, if the affirmative defense is evident from the face of the complaint. That's because in the second sentence of Rule 12b, after stating that every affirmative defense must be pleaded, It says, but you may raise a defense by motion. So the "but" makes it clear that it's an exception in regard to to Section 15b-2, which my friend referred to. That expressly states that an issue tried by consent, and that would include The defense is before the court. and gets resolved, even though not pleading. Again, the whole point to say that is to make clear that It would ordinarily have to be pleaded. Thank you. Counsel. The case is submitted.