JODY LUTTER, Appellant v. JNESO, an incorporated employees labor organization; COUNTY OF ESSEX; PHIL MURPHY, in his official capacity as Governor of New Jersey; GURBIR S. GREWAL, in his official capacity as Attorney General of New Jersey; JOEL M. WEISBLATT; PAUL BOUDREAU; PAULA B. VOOS; JOHN BONANNI; DAVID JONES; PASQUALE V. PAPERO, in their official capacities as members of the New Jersey Public Employment Relations Commission
No. 21-2205
United States Court of Appeals for the Third Circuit
Filed: November 6, 2023
PRECEDENTIAL
Argued: May 25, 2022
Patrick J. Wright [Argued]
MACKINAC CENTER LEGAL FOUNDATION
140 West Main Street
Midland, MI 48640
Matthew C. Moench
KING MOENCH & COLLINS
51 Gibraltar Drive
Suite 2F
Moore Plains, NJ 07950
Counsel for Appellant
Seth Ptasiewicz [Argued]
KROLL HEINEMAN PTASIEWICZ & PARSONS
91 Fieldcrest Avenue
Suite 35
Edison, NJ 08837
Counsel for Appellee JNESO
Alan Ruddy
OFFICE OF COUNTY COUNSEL
COUNTY OF ESSEX
465 Martin Luther King Boulevard
Hall of Records, Room 535
Newark, NJ 07102
Counsel for Appellee County of Essex
Angela Cai [Argued]
Ryan J. Silver
OFFICE OF ATTORNEY GENERAL OF NEW JERSEY
25 Market Street
Richard J. Hughes Justice Complex
P.O. Box 112
Trenton, NJ 08625
Caroline G. Jones
OFFICE OF ATTORNEY GENERAL OF NEW JERSEY
DIVISION OF LAW
25 Market Street
Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellees Governor Phil Murphy and Attorney General Gurbir S. Grewal
Christine R. Lucarelli
PUBLIC EMPLOYMENT RELATIONS COMMISSION
495 West State Street
P.O. Box 429
Trenton, NJ 08625
Counsel for Appellees Joel M. Weisblatt, Paul Boudreau, Paula B. Voos, John Bonanni, Pasquale V. Papero, and David Jones
OPINION OF THE COURT
PHIPPS, Circuit Judge.
In late June 2018, the Supreme Court held that public-sector unions could not
Within a week of her second request, the nurse filed this suit against the union, the county, and several state officials under
About nine months later, in March 2020, the union sent her a check in the amount of the deducted union dues plus interest. By then, the nurse was no longer a member of the union, and she did not cash or deposit that check. But the union, along with other defendants, used her receipt of that check along with her resignation from the union as grounds for requesting dismissal of the suit as moot - an outcome that would eliminate their exposure to liability for attorney‘s fees. The defendants also argued for dismissal on other grounds, including the nurse‘s lack of Article III standing. The District Court granted those motions and dismissed the case through two separate orders.
The nurse has now appealed, and on de novo review, the check she received after her resignation from the union did not moot her damages claims against the union. But the nurse - as a non-union member no longer subject to payroll deductions of union dues - lacks standing for her claims against the other parties and for her additional requests for relief against the union. Accordingly, we will affirm the District Court‘s orders in part, vacate them in part, and remand the damages claim against the union to the District Court for resolution.
FACTUAL BACKGROUND (AS ALLEGED IN THE PLEADINGS)
On May 31, 2011, Jody Lutter began her employment with Essex County, New Jersey, as a nurse at the Essex County Hospital. She worked in a position within a bargaining unit represented by JNESO, a labor union.
At that time, under Abood v. Detroit Board of Education, 431 U.S. 209 (1977), a public-sector union could charge fees from non-union members whom the union represented in collective bargaining without offending the First Amendment‘s prohibition on the compelled subsidization of speech. Id. at 235-36. And under a New Jersey statute, public-sector unions could deduct a “representation fee” from the wages of non-union employees whom it
Thus, when Lutter began working for Essex County in 2011, she had to contribute to JNESO, and she had two options for doing so. She could join JNESO and pay full dues. Or she could not join JNESO and pay a portion of those dues as an agency fee. Lutter chose the former: she joined JNESO and authorized payroll deductions of her union dues within a month of her start date.
Six years later, in September 2017, the Supreme Court granted a petition for certiorari to reconsider Abood and the constitutionality of agency fees. See Janus v. Am. Fed‘n, 582 U.S. 966 (2017) (mem.) (granting petition for certiorari). That issue, if resolved against the rule of Abood, had the potential to significantly decrease the revenues of public-sector unions because employees, by resigning from the union, could avoid paying not only union dues but also agency fees.
With the looming possibility that the Supreme Court in Janus would overrule Abood and by so doing prompt a membership exodus from public-sector unions, the New Jersey Legislature enacted the Workplace Democracy Enhancement Act (the “WDEA“). Under that statute, which became effective on May 18, 2018, a union member could revoke an authorization for payroll deductions only during the ten days following the anniversary of that member‘s employment start date. See
A little over a month after the WDEA‘s enactment, the Supreme Court, on June 27, 2018, decided Janus. It overturned Abood and held that the First Amendment prohibits public-sector unions from collecting agency fees from nonmembers without their clear and affirmative consent. Janus v. Am. Fed‘n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2486 (2018).
By operation of the WDEA, however, Lutter could not immediately avail herself of the flexibility that Janus afforded. Instead, because her May 31 anniversary date had passed less than a month beforehand, she would have to wait nearly a year to be eligible to revoke her authorization for the payroll deductions of her union dues. And even after that notice, those union dues could still be deducted from her paycheck for thirty days after her anniversary date.
Lutter attempted to avoid that expensive wait. In a letter dated July 12, 2018, to Essex County, with a copy to JNESO, she requested that the payroll deductions of her union dues cease and she announced her resignation from JNESO. In an email
On June 1, 2019, as soon as her ten-day revocation window under the WDEA re-opened, Lutter sent a letter to Essex County, with a copy to JNESO, indicating that she wanted the payroll deductions of union dues to cease. Her next paycheck, dated June 14, 2019, which covered the two-week pay period beginning on May 25 and ending on June 7, did not have any union dues deducted.
PROCEDURAL HISTORY
On June 6, 2019, within a week of sending her second letter, Lutter filed this lawsuit under
In her prayer, Lutter sought several forms of relief. She requested compensatory damages from JNESO for the union dues that were deducted from her paycheck for the ten months after her attempted resignation on July 12, 2018.1 She also sought an order enjoining JNESO from collecting further dues from her and preventing the New Jersey officials from enforcing the WDEA. In addition, she sought declaratory judgments that (i) the WDEA is void and unenforceable and (ii) members of public-sector unions have a constitutional right
to resign from the union and cease paying union dues at any time. Lutter sought the ancillary relief of attorney‘s fees and costs, see
Shortly after Lutter filed her second complaint, JNESO attempted to refund the dues that she had requested. In correspondence sent to Lutter‘s counsel on
JNESO then relied on that correspondence and Lutter‘s resignation from the union in moving to dismiss Lutter‘s second complaint. Based on those developments, JNESO asserted that Lutter‘s claims for compensatory damages were moot. Also, because Lutter was not a member of JNESO when she filed her second complaint, JNESO argued that she lacked
Article III standing for her requests for injunctive and declaratory relief.2
In subsequent filings, the other defendants joined JNESO‘s mootness argument. Essex County gave notice that it agreed with JNESO that the case was moot. In their separate motion to dismiss, the members of the Public Employment Relations Commission argued that Lutter‘s case should be dismissed on mootness grounds as well.3 Although they initially responded to Lutter‘s second complaint by filing an answer, the Governor and Attorney General later filed a brief supporting JNESO‘s mootness and standing arguments.
Through two separate rulings, the District Court dismissed all of Lutter‘s claims. It concluded that by providing the check to Lutter, JNESO mooted her damages claim. It also dismissed her requests for injunctive relief because by the time of her second complaint, she had resigned from the union. After receiving supplemental briefing, the District Court further dismissed Lutter‘s requests for declaratory relief because, as a non-union employee, she lacked Article III standing to litigate whether the WDEA is unconstitutional and whether a member of a public-sector union has a constitutional right to immediately resign from the union. Lutter timely appealed,
bringing her suit within this Court‘s appellate jurisdiction. See
During the pendency of this appeal, on January 18, 2022, New Jersey enacted the Responsible Collective Negotiations Act. That legislation eliminated the WDEA‘s ten-day window for a public-sector union member to revoke a prior authorization for the payroll deductions of union dues. See
DISCUSSION
On appeal, the lines of argument mirror those presented in the District Court. Lutter asserts that her claims and requests for damages, injunctions, and declaratory judgments are justiciable. The defendants dispute Lutter‘s standing to seek injunctive and declaratory relief, and they argue that her claim for damages has been mooted by JNESO‘s presentment of the check to Lutter‘s counsel.4
A. Article III Standing
In partial effectuation of the Preamble, which announced the intention to “establish Justice,” Article III of the Constitution creates and defines the judicial power of the United States.
adversity among at least two parties to the litigation,6 and they prevent advisory opinions.7
The doctrine of Article III standing represents an additional limitation on the federal judicial power derived from the case-
or-controversy requirement. See Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016) (recognizing that “the doctrine of standing derives from the case-or-controversy requirement“); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (“[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.“). At the pleading stage, to have Article III standing, a litigant invoking the power of a federal court must plausibly allege (i) an injury-in-fact (ii) that is fairly traceable to the conduct of the party sued, and (iii) that is judicially redressable. See Spokeo, 578 U.S. at 338; Lujan, 504 U.S. at 560-61; see also Lutz v. Portfolio Recovery Assocs., LLC, 49 F.4th 323, 327-28 (3d Cir. 2022) (summarizing the plausibility pleading standard). Such a party must meet those requirements “for each claim that [it] press[es] and for each form of relief that [it] seek[s].” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021) (citing Davis v. Fed. Election Comm‘n, 554 U.S. 724, 734 (2008)); Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996) (“[S]tanding is not dispensed in gross.“).
As far as timing, the general rule is that a plaintiff in federal court must have Article III standing on the date the lawsuit was commenced. See Davis, 554 U.S. at 734 (“[T]he standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.“). But under Rule 15, the complaint initiating the lawsuit may later be amended and supplemented. See
claims, and prayers for relief in a complaint to reflect the state of things as of the date the action was commenced. See Garrett v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019) (explaining that amendment allows the inclusion
Amended complaints and supplemental complaints differ in their treatment of the date upon which a plaintiff must establish Article III standing. An amended complaint - while the operative pleading for purposes of evaluating the sufficiency of the allegations, the viability of the claims, and the requested relief10 - does not restart the date for assessing
standing. See Conolly v. Taylor, 27 U.S. (2 Pet.) 556, 565 (1829) (Marshall, C.J.) (“Where there is no change of party, a jurisdiction depending on the condition of the party is governed by that condition, as it was at the commencement of the suit.” (emphasis added)).11 Rather, an amended complaint provides additional information that can be used to evaluate standing as of the date that the lawsuit was filed. See Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824) (Marshall, C.J.) (explaining that subject-matter jurisdiction “depends upon the state of things at the time of the action brought“).12 That is so because an amended complaint revises the prior pleading only to reflect a more accurate understanding of the state of things when the action was filed - not to update the pleading with later occurring facts. But, if a district court permits a supplemental complaint,13 then for the
relief substantively affected by the alleged post-suit developments,14 a plaintiff‘s Article III standing is evaluated as of the date of the supplemental pleading. See, e.g., Greenberg v. Lehocky, 81 F.4th 376, 384 n.4 (3d Cir. 2023) (evaluating a plaintiff‘s standing - and not mootness - based on a later-filed complaint that challenged a revision to a rule that occurred after the original complaint); Common Cause/Ga. v. Billups, 554 F.3d 1340, 1347-52 (11th Cir. 2009) (evaluating plaintiffs’ Article III standing based on a subsequent complaint challenging a revised statute).15
Here, Lutter labeled her second complaint as an “amended complaint,” but that is not entirely precise: that pleading amended and supplemented the original complaint. It added the date that she submitted a dues deduction authorization card, June 30, 2011. It also dropped another union as a party. Those revisions reflect the state of things as of her original complaint, and thus they are amendments. But Lutter‘s second complaint removed the original allegation that Lutter “is a member of the JNESO.” Compare Compl. ¶ 19 (JA44), with Am. Compl. ¶¶ 21-25 (JA56-57). It also added factual allegations that arose after the original complaint: that Lutter did not have any
opportunity to cease paying dues for nearly a year and that such dues were deducted from her paycheck during that time. Because those alterations reflect post-filing developments, they supplement the original complaint. Accordingly, Lutter‘s second complaint, although labeled as an ‘amended complaint,’ is actually an amended and supplemental complaint.
Critically for purposes of Article III standing, the supplemental allegations substantively affect all of Lutter‘s claims and requested relief. She now proceeds as a non-member of a union who seeks relief for the prior deduction of union dues from her paycheck for nearly a year. Because the supplemented allegations substantively affect the entirety of her claims and relief sought, Lutter‘s Article III standing should be evaluated as of February 28, 2020, the date she filed the second complaint.
Using that date to evaluate her standing, Lutter has failed to plausibly allege standing except with respect to her claims against JNESO for a refund of her union dues.16
1. Injury-in-Fact
Lutter‘s claims satisfy the injury-in-fact requirement. An injury-in-fact is “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Spokeo, 578 U.S. at 339 (citing Lujan, 504 U.S. at 560). Her operative complaint
For completeness, and relevant for evaluating fairly traceable causation and redressability, which both depend on the nature of the injury-in-fact, see TransUnion LLC, 141 S. Ct. at 2203, Lutter does not plausibly allege an imminent injury-in-fact. At the time of her second complaint, Lutter was no longer a member of JNESO, so neither her inability to immediately resign from a union nor the deduction of future JNESO union dues from her paycheck was “certainly impending” or subject to a “substantial risk” of reoccurring. Clapper, 568 U.S. at 409, 414 n.5 (quoting Lujan, 504 U.S. at 565 n.2); see also Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (“A threatened injury must be certainly impending to constitute [an] injury in fact.” (quotations and citation omitted)). Thus, Lutter alleges standing only for an actual injury-in-fact.
2. Fairly Traceable Causation
Lutter‘s operative complaint plausibly alleges a fairly traceable causal connection between her injury-in-fact and two of the defendants, but not the others. Fair traceability requires a causal connection between the injury-in-fact and a defendant‘s conduct; the injury cannot result from “the independent action of some third party not before the court.” Lujan, 504 U.S. at 560 (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41-42 (1976)). Here, Lutter‘s operative complaint alleges that JNESO and Essex County
By contrast, Lutter‘s claims against the other defendants - all of whom are New Jersey officials sued in their official capacities - fail to allege fairly traceable causation. Because the WDEA prolonged the deductions of union dues from her paycheck, she sues the Governor, the Attorney General, and the Members of the Public Employment Relations Commission for declaratory and injunctive relief. Although Lutter alleges a causal nexus to the WDEA, she does not identify any action
taken by these state officials to enforce that statute; she alleges that only Essex County and JNESO were responsible for the dues deductions. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982) (“While private misuse of a state statute does not describe conduct that can be attributed to the State, the procedural scheme created by the statute obviously is the product of state action.”). And without identifying a fairly traceable nexus between her injury-in-fact and conduct by the New Jersey officials, Lutter’s allegations fail the second prong of Article III standing with respect to them.183. Redressability
The redressability requirement ensures that the asserted injury-in-fact is capable of resolution in a manner consistent with the traditional understanding of the judicial process. See United States v. Texas, 143 S. Ct. 1964, 1970 (2023); Raines v. Byrd, 521 U.S. 811, 819 (1997). For requested relief to satisfy this requirement, it “must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Lujan, 504 U.S. at 561 (quoting Simon, 426 U.S. at 38, 43). With respect to claims for legal or equitable relief, a favorable opinion need not relieve every injury; the judgment need only relieve “a discrete injury.” Larson v. Valente, 456 U.S. 228, 243 n.15 (1982). However, for a declaratory judgment to provide redress, it must “completely resolve[] a concrete controversy susceptible to conclusive judicial determination.” Calderon v. Ashmus, 523 U.S. 740, 749 (1998); see also Coffman v. Breeze Corps., 323 U.S. 316, 323–24 (1945) (holding that a plaintiff lacked standing for a requested declaratory judgment on potential defenses to a claim that could be later adjudicated).
Applying these principles, Lutter’s claim for compensatory damages against JNESO is redressable. Damages, which operate as a “substitute for a suffered loss,” are a recognized form of judicial redress for past injuries. Bowen v. Massachusetts, 487 U.S. 879, 895 (1988) (citing D. Dobbs, Handbook on the Law of Remedies 135 (1973)); see also Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796 (2021) (holding that even nominal damages provide redress for a past injury-in-fact).
The other forms of relief that Lutter requests will not redress her injury-in-fact. She seeks a preventive injunction against JNESO and Essex County to enjoin
Lutter’s requests for declaratory judgments also fail the redressability requirement. She seeks declarations that the WDEA is unconstitutional and that she has a constitutional right to immediately resign from public-sector unions. But for a declaratory judgment to redress an injury-in-fact, as opposed to serving as an advisory opinion, it must provide something other than the “emotional satisfaction” of a favorable ruling. Ashcroft v. Mattis, 431 U.S. 171, 172 (1977); see also Diamond v. Charles, 476 U.S. 54, 62 (1986) (“The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet [Article] III’s requirements.”). Instead, to redress an injury-in-fact, a declaratory judgment must provide conclusive resolution of a concrete controversy related to a prospective course of action by one of the adverse parties. See Calderon, 523 U.S. at 749 (holding that a declaratory judgment was not justiciable because it “would not completely resolve [all] challenges but would simply carve out one issue in the dispute for separate adjudication”); Aetna Life Ins. Co. of Hartford v. Haworth, 300 U.S. 227, 240–41 (1937) (holding that a request for a declaratory judgment regarding an insured’s disability was justiciable). Yet Lutter does not identify any prospective course of action of her own or by JNESO or Essex County for which she needs legal resolution through declaratory judgments. See Hendrickson v. AFSCME Council 18, 992 F.3d 950, 958 (10th Cir. 2021) (holding that a former-union-member plaintiff lacks standing for “a declaration [of the] constitutionality of the Union’s opt-out window as applied to him”). If anything, Lutter’s operative complaint, by alleging that she has resigned her JNESO membership and that the payroll deductions of union dues had ceased, confirms that resolution of either the constitutionality of the WDEA or her putative constitutional right to immediately resign from a public-sector union would have nothing more than an abstract value to her.
In short, based on her supplemental allegations, Lutter’s operative complaint plausibly alleges Article III standing for only her damages claim against JNESO (as well as for her ancillary request for attorney’s fees and costs from JNESO).
B. Article III Mootness
Like standing, Article III mootness derives from the case-or-controversy requirement. See Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964) (“Our lack of jurisdiction to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial
Despite its similarities to standing, mootness is not merely the post-suit absence of standing. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (“Careful reflection on the long-recognized exceptions to mootness, however, reveals that the description of mootness as ‘standing set in a time frame’ is not comprehensive.”); Hartnett, 963 F.3d at 306. The other case-or-controversy considerations—the genuine-adversity requirement and the prohibition on advisory opinions—also influence the mootness analysis. For instance, if a defendant ceases conduct that resulted in an actual or imminent injury-in-fact, the parties may remain genuine adversaries if the defendant, upon dismissal of the case, were “free to return to his old ways.” United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953).19 Thus, a defendant’s voluntary cessation of the complained-of conduct does not moot claims for prospective relief unless that defendant meets the “heavy” burden of establishing that “there is no reasonable expectation that the wrong will be repeated,” id. at 633 (quotation omitted), and “interim relief or events
standing, a court ruling may not be an advisory opinion if the plaintiff establishes that the defendant’s conduct was capable of repetition yet evading review. See County of Butler v. Governor of Pa., 8 F.4th 226, 231 (3d Cir. 2021) (“A plaintiff bears the burden to show that the ‘capable of repetition yet evading review’ exception applies.” (citations omitted)); N.J. Tpk. Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 33 (3d Cir. 1985). In sum, the absence of Article III standing is a necessary condition for mootness, but due to the voluntary-cessation and capable-of-repetition-yet-evading-review exceptions, it is not always a sufficient condition.
In challenging mootness, JNESO bears the burden of establishing that Lutter lost Article III standing after the filing of her supplemental complaint on February 28, 2020. As far as its burden of production, JNESO relies on correspondence from its counsel to Lutter’s attorney dated March 12, 2020. Enclosed therein was a check, which JNESO’s counsel described in the cover letter as being in the amount of the union dues collected from Lutter “after she declared her desire to resign from membership in JNESO,” plus interest. Letter from Ptasiewicz (JA85). There is, however, no evidence that Lutter ever cashed or deposited the check. Also, during the pendency of this appeal, New Jersey enacted the Responsible Collective Negotiations Act, which eliminated the ten-day window provided by the WDEA for public-sector employees to revoke their authorizations for payroll deductions of union dues. See 2021 N.J. Sess. Law Serv. Ch. 411 (West) (codified at
For the first and second elements of standing, those intervening events do not undo Lutter’s injury-in-fact or its fair traceability to JNESO. Lutter’s alleged injury-in-fact was the invasion of her First Amendment right protecting her from the compelled subsidization of speech through the operation of the WDEA, which, at the time, governed the deduction of union dues from her paycheck. See Janus, 138 S. Ct. at 2464 (“When speech is compelled, . . . additional damage is done. In that situation, individuals are coerced into betraying their convictions.”). But neither JNESO’s check for Lutter’s dues plus interest nor the repeal of the WDEA’s ten-day window changed Lutter’s allegations that she had subsidized JNESO’s speech against her will. See id. (“Because the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed.”). So her injury-in-fact persists, and it remains fairly traceable to JNESO, which received union dues from Lutter’s paycheck after she requested that the deductions cease and that she resign from the union. Cf. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 81 (2013) (Kagan, J., dissenting) (explaining that after an unaccepted offer of judgment, the plaintiff’s “stake in the lawsuit . . . remained
Like the other two elements, the third, redressability, is “rooted in the traditional understanding of a case or controversy.” Spokeo, 578 U.S. at 338; see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998); Raines, 521 U.S. at 818–19. Relevant here, the mechanism of contract has been traditionally understood to limit the scope of judicial redress. It is firmly entrenched in American jurisprudence that parties can contractually agree not to resolve disputes in court but proceed instead through arbitration. See Bel-Ray Co. v. Chemrite (Pty) Ltd., 181 F.3d 435, 444 (3d Cir. 1999) (“Arbitration is strictly a matter of contract.”); see also United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960) (“[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.”). Once in court, parties may still alter their rights relative to one another by agreeing to resolve pending claims. Yet, from the founding, it has been understood that “courts ‘render a judgment or decree upon the rights of the litigant[s].’” Texas, 143 S. Ct. at 1980 (Gorsuch, J., concurring) (alterations in original) (quoting Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 718 (1838)). So when parties alter their rights relative to one another through a settlement agreement, they typically eliminate the necessity of judicial redress with respect to the settled matters. See Alvarez v. Smith, 558 U.S. 87, 94 (2009) (recognizing that “where mootness results from settlement rather than happenstance, the losing party has voluntarily forfeited his legal remedy” (quotations and citations omitted)). But cf. Keefe v. Prudential Prop. & Cas. Ins. Co., 203 F.3d 218, 224 (3d Cir. 2000) (holding that a case subject to a “high-low settlement agreement” was not moot). And by settling a dispute, the parties dramatically diminish the likelihood that a favorable decision would redress the injury-in-fact.21
But here there was no settlement contract to alter the parties’ rights relative to each other and affect the scope of traditionally permissible judicial relief. JNESO’S correspondence is not a valid settlement offer. In its cover letter, JNESO sought no promise or performance in return for the check. See Restatement (Second) of Contracts § 24 (Am. L. Inst. 1981) (“An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”); id. § 3 (“A bargain is an agreement to exchange promises or to exchange a promise for a performance or to exchange performances.” (emphasis added)). To the contrary, JNESO disavowed “seeking any conditions or promises
JNESO’s correspondence to Lutter, inclusive of the check for union dues plus interest, does not, by itself, moot her case.
Still, a settlement agreement is not necessary to moot a case. See Campbell-Ewald, 577 U.S. at 180 (Roberts, C.J., dissenting) (“Article III does not require the parties to affirmatively agree on a settlement before a case becomes moot.”). The unilateral action of one party may eliminate a plaintiff’s Article III standing, but that commonly occurs when some unilateral action abates the asserted injury-in-fact, especially for injuries that are ongoing or imminent. See Burke v. Barnes, 479 U.S. 361, 364 n* (1987) (concluding that the expiration of a statute extinguished any “judicially cognizable injury”); cf. Lewis, 494 U.S. at 481 (permitting “suits for prospective relief to go forward despite abatement of the underlying injury only in the ‘exceptional situations’ of an injury capable of repetition yet evading review (quoting Lyons, 461 U.S. at 109)); DeFunis v. Odegaard, 416 U.S. 312, 318 (1974) (recognizing the usual applicability of voluntary cessation concerns in response to a defendant’s “unilateral change” that eliminates the claimed injury).
But this case involves an actual injury-in-fact inflicted in the past that remains. So to show that Lutter’s claim is presently non-redressable, JNESO must demonstrate that even without a settlement agreement to alter the rights of the parties,
Altogether, in the absence of a settlement agreement or some other alteration of the litigants’ relative rights, JNESO has not demonstrated that the traditional damages remedy would not likely provide some redress to Lutter. See 13C Federal Practice and Procedure § 3533.3 (“The availability of damages or other monetary relief almost always avoids mootness.”). And without proof that Lutter lost Article III standing during the litigation, this case is not moot. See Wheeling-Pittsburgh Steel Corp. v. United Steelworkers of Am., 791 F.2d 1074, 1080 (3d Cir. 1986) (recognizing that one party’s “motivating interest in securing a precedent does not render the case nonjusticiable as long as there are, in fact, stakes at issue”).23
This holding—that the post-suit provision of a check for the amount owed for the underlying claims plus interest does not moot Lutter’s claims—aligns well with the fee-shifting consequences of dismissals on mootness grounds. Even when a statute authorizes the recovery of attorney’s fees, a plaintiff cannot recover fees for a mooted claim because such a disposition lacks the “judicial imprimatur” of a change in the legal relationship of the parties. Buckhannon Bd. & Care Home, Inc. v. W.V. Dep’t of Health & Hum. Res., 532 U.S. 598, 605 (2001) (emphasis removed); see also Lewis, 494 U.S. at 480. Under that rule, a dismissal on mootness grounds is an attractive disposition for a defendant who is subject to liability for attorney’s fees but who does not wish to contest liability for the underlying claims. In contrast to the other options commonly available to such a defendant for resolving the case expeditiously—settling it,24 defaulting,25 or making an offer of judgment26—which require an accounting for fee liability at some point, a dismissal on mootness grounds does not. So if a check in the amount owed for the underlying claims (but not fees and costs) sufficed for
CONCLUSION
For the foregoing reasons, the orders of the District Court will be affirmed in part and vacated in part, and this case will be remanded for resolution of Lutter’s claims for damages (and potentially attorney’s fees and costs) against JNESO.