Back in March, I called Knox v. SEIU “the case that could decide Fisher’s fate.” It could have. But it didn’t.
To review, after the Court granted cert. in Knox, the respondent labor union attempted to moot the case by offering the plaintiff class members a full refund of the disputed fees.
In a scant four paragraphs, the Court ruled this morning that the union’s proffered refund did not moot the case. The concurring and dissenting Justices did not take issue with that conclusion, perhaps implying that it was unanimous.
The Court began ominously with a warning that “postcertiorari maneuvers designed to insulate a decision from review by this Court must be viewed with a critical eye.” (With an opening like that, is there any need to read further?)
The Court then flirts with deploying the “voluntary cessation” exception to mootness, but it backtracks when it acknowledges that the petitioners do not seek prospective relief.
The Court’s mootness ruling then comes to rest on the Court’s view that the union wasn’t sufficiently accommodating in offering its refunds. The Court points to the plaintiffs’ allegations that “the union has refused to accept refund requests by fax or e-mail and has made refunds conditional upon the provision of an original signature and a Social Security number.” Essentially, the Court is not pleased that the union is dictating “unilaterally” how the refunds will be disbursed. Based on that thin reed of controversy (no e-mail!), the Court plunges headfirst into the merits.
What does this mean for Fisher v. University of Texas, the hotly anticipated affirmative action case on next Term’s docket? Recall that my prior comparison of Knox and Fisher depended on Texas’s offering Fisher $101 to settle her case, a move that Texas has not indicated it will make. (Just the opposite, actually.) But if it did, and if the Court had found Knox to be moot, then Texas would have had a near-bulletproof argument on mootness. Texas didn’t get that ruling in Knox. Still, the Knox rationale does very little to undermine Texas’s potential mootness argument.
For one thing, the Court implied today, without deciding, that in a purely retrospective money-damages case like Knox and Fisher, the “voluntary cessation” exception might not apply. That’s perhaps a small notch in Texas’s favor. (It’s not clear that the exception would apply in Fisher anyway because the university has not ceased considering race in admissions.)
The larger take-away lesson from Knox is that Texas must bend over backward to get Fisher that $101. If she wants a money order, give it to her. PayPal? Sure. Farmville cash? Why not. If she wants a jar full of pennies stashed under the Golden Gate Bridge, just do it. If she refuses all possible forms of payment, as we might expect her (lawyers) to, then the Court will have to decide whether an unconditional offer on its own is good enough, a question not resolved in Knox.
Like I said, Texas has shown no interest in attempting to moot the case beyond asserting in its brief in opposition to cert. that it could. Maybe they’ve been waiting to see what the Court would do with Knox. If so, today’s decision does little to change the calculus.
