Younge v. Fulton opened a Supreme Court debate this week over how strictly courts must apply pretrial procedure when a party invokes an unpled affirmative defense at summary judgment. At argument on Nov. 2, several justices signaled that the Federal Rules of Civil Procedure exist to be followed and questioned whether a failure to amend pleadings should bar reliance on a new defense at the summary judgment stage.
The dispute arises from a civil rights case brought by Jasmine Younge, who served in a senior role in the Fulton County District Attorney’s Office for roughly two months before District Attorney Paul Howard dismissed her in July 2019. Younge alleges she was fired about two weeks after informing Howard that she was pregnant, and she sued the office asserting several civil rights claims, including that her termination violated Title VII of the Civil Rights Act of 1964.
The office answered the complaint but did not plead the Title VII personal-staff exemption, the defense on which it later prevailed at summary judgment. The exemption removes from Title VII’s definition of employee certain members of an elected official’s personal staff. Younge objected, arguing that because the office never amended its pleading to add that affirmative defense, it could not rely on it at summary judgment.
Her objection invoked Federal Rule of Civil Procedure 16(b)(4), which requires a scheduling order that may be modified only for good cause, including deadlines to amend pleadings. She also cited Rule 15(a)(2), which governs amendments with the court’s leave. Under Foman v. Davis, courts weigh factors such as undue delay, bad faith, repeated failure to cure deficiencies, and undue prejudice to the opposing party.
The lower courts, including the U.S. Court of Appeals for the 11th Circuit, focused on whether Younge suffered prejudice from allowing the personal-staff defense and concluded she did not. They then determined on the merits that Younge was part of the district attorney’s personal staff and therefore outside Title VII’s coverage.
Younge sought Supreme Court review on whether a defendant must amend its pleading before moving for summary judgment based on an unpled affirmative defense. Eric Schnapper argued for Younge. Early questions from Justices Clarence Thomas and Ketanji Brown Jackson centered on prejudice, pressing why the absence of an amendment mattered if there was no undue prejudice under Foman and the 11th Circuit had found none.
Justice Amy Coney Barrett highlighted the procedural core of Younge’s position, noting that the key argument was that the process was not followed. After follow-ups from Justice Elena Kagan, Schnapper urged a narrow ruling: reverse and remand with instructions that if the defendant wishes to raise an affirmative defense, it must seek leave to amend. He indicated that approach seemed to gain traction as argument proceeded.
Procedural pathways in Younge v. Fulton
Barrett asked whether a court could treat a summary judgment motion as including a request to amend, pointing to a 10th Circuit practice of applying Rule 15 or 16 standards without requiring a separate motion. Schnapper did not endorse that approach outright but said the parties should be allowed to brief whether amendment is proper. He maintained that Younge should prevail because the office never sought amendment in any form.
Several justices questioned whether reversal was necessary given the no-prejudice finding. Justice Thomas asked what prejudice Younge suffered and suggested it was admitted that she was on personal staff. Justice Samuel Alito also appeared skeptical of imposing a rigid requirement to file a motion to amend for an affirmative defense.
Arguing for the Fulton County District Attorney’s Office, Stephen Petrany faced questions about relying solely on a prejudice inquiry without requiring amendment. Justice Neil Gorsuch asked about defenses raised in an incredibly dilatory fashion or in bad faith and why those would be acceptable. When Petrany responded that courts have inherent authority to reject such motions, Gorsuch observed that this effectively concedes that Rule 15 applies, since it allows courts to consider delay, motive, and prejudice in deciding whether to permit amendment. Justice Jackson added that Petrany’s approach could disincentivize parties from filing motions to amend at all.
The justices also examined Rule 16(b)(4), which limits modifications to the scheduling order to good cause and judicial consent. Because the summary judgment motion came after discovery closed and after the amendment deadline, Younge argued that both Rule 16(b)(4) and Rule 15(a)(2) apply.
Although some questioned whether Rule 16 must be resolved to decide the case, the Court appeared inclined toward Kagan’s suggested resolution: reverse and remand with instructions to require the office to amend its answer to add the personal-staff defense, then have the lower court determine whether to permit that amendment under Rule 15(a)(2) and the Foman factors.
That outcome could leave the ultimate merits unchanged. The lower courts might still allow amendment and uphold summary judgment for the office. But as Kagan put it, the rules supply the standards. A majority of the justices seemed receptive to applying them.