A Prosecutor's Office Left Its Winning Defense Out of Its Answer and Found It After Discovery Closed. A Justice Asked Whether "My Bad" Is Good Cause.

On the first Monday of November, at 11:12 in the morning, the Supreme Court sat down to fifty-six minutes on a question that sounds engineered to clear a room: what happens when a defendant forgets to write its winning defense down. Nobody left. By the end, eight justices had asked questions, one had gotten a laugh, a lawyer had been told to "try anyway," and the two sides had drifted so close together that Justice Alito asked for one lawyer's position to be clarified on rebuttal.

First the holding, and whose it is. The Supreme Court has held nothing. It granted review on March 30 and heard argument on November 2, and an argument is not a ruling. The holding on the books belongs to the Eleventh Circuit, which decided in an unpublished, unsigned opinion in April 2025 that a district court may consider an affirmative defense the defendant never pleaded, raised for the first time at summary judgment, so long as the plaintiff was not prejudiced by the lateness. There was no dissent to quote. Three judges, one voice, thirty pages.

All day, every day

The plaintiff is Dr. Jasmine Younge. In April 2019 Paul Howard, then the elected district attorney of Fulton County, Georgia, hired her as deputy chief of staff and director of policy and programs at a salary of $120,282. She started in May. She supervised more than thirty people and ranked third in the office. She testified that she talked with Howard about her programs "all day every day," that his schedule was her schedule, and that she was one of the few people who could walk into his office without an appointment. He sent her messages on weekends. He was, she agreed under oath, "absolutely" a micromanager.

Around July 1 she told him she was pregnant. What followed, in the Eleventh Circuit's own telling of the record, is that Howard stopped meeting with her, left her out of his meetings with others, treated her dismissively and reassigned some of her duties. "Two weeks later, he fired Younge."

She sued under Title VII in 2020. The office moved to dismiss, lost on the pregnancy claim, and filed an answer listing several affirmative defenses. The one that would eventually win the case was not among them. Title VII's definition of "employee" leaves out anyone elected to state or local office and "any person chosen by such officer to be on such officer's personal staff." Discovery opened and closed. Then, on March 14, 2022, the office told the court it intended to argue that Younge had been personal staff all along. It had not, the opinion reports, "realize[d] this was an issue" until it began drafting its summary judgment motion.

You can see the cruelty in the logic before you get to the procedure. Every warm thing Younge testified to about the job, the open door, the constant availability, the go-to person, was testimony she gave in a case about pregnancy discrimination. It was then read back to her as proof that she was too close to the boss to be protected at all. She argued that the closeness ended the day she announced the pregnancy, so that by the time she was fired she was personal staff in name only. The Eleventh Circuit answered that being frozen out is "behavior that precedes most terminations," and that to count it as a demotion would erase the exemption. Five of six factors went against her. No court has ever reached the question she filed the lawsuit to ask.

Seven words

Rule 8(c) of the Federal Rules of Civil Procedure says that a party responding to a pleading "must affirmatively state any avoidance or affirmative defense." The rules also say what to do if you forget. Rule 15 lets you amend with the court's leave, which the court "should freely give" when "justice so requires." If a scheduling order's deadline has passed, Rule 16 adds a harder step: the schedule "may be modified only for good cause and with the judge's consent." The district attorney's office used neither. It simply made the argument, and the Eleventh Circuit said that was fine, in a footnote that deserves to be read slowly: "we simply treat unpleaded affirmative defenses differently from late motions to amend pleadings. The former requires a showing of no prejudice, while the latter requires a showing of good cause."

Read that again as a litigant would. The defendant who asks permission must explain itself. The defendant who does not ask is excused from explaining. The question the Court agreed to decide is whether that can be right.

Stephen Petrany, arguing for the office, did not pretend the omission was strategy. "To be sure," he said in his second sentence, "the DA's office mistakenly failed to plead this defense in its answer." His point was that the mistake cost Younge nothing. The record was complete, her own testimony made it, and amending now would be "empty paper-shuffling." All an amendment would do, he said later, "is add seven words to the answer."

Justice Thomas opened by asking Eric Schnapper, for Younge, what the prejudice to his client had been, and the answer (more discovery, on two of the six factors, which the trial court indicated it would not have allowed anyway) was not the strongest moment of the morning. The Eleventh Circuit had noted that Younge never moved to reopen discovery when the magistrate judge was willing to let her. Justice Jackson then supplied the sentence I expect to see quoted for years by people who lose procedural motions: "it's very hard in the aftermath to figure out the extent to which the road not taken affected your case."

Then Justice Barrett began doing something that looked like mediation. Suppose a judge just treats the summary judgment motion as a motion to amend, and applies the Rule 15 and Rule 16 standards without making anyone file a new piece of paper. Would that solve Schnapper's problem? It would. Justice Kagan came at it from the other side: a defense left out of an answer is never simply gone, she said, because the rules themselves provide for amending. Schnapper allowed that he was "hard-pressed to find something in what you said that I disagree with." Justice Barrett: "Try anyway." He could not, much. Justice Kagan then picked up Justice Barrett's idea herself, Schnapper said he did not see why a court could not do that, and by rebuttal he had put it on the record that no formal motion is required. Petrany, for his part, told Justice Barrett he did not "really see a problem" with applying the Rule 15 factors, since he thinks his own test is tougher.

Which left Rule 16 and its two words, good cause. Justice Kavanaugh, borrowing a phrase from the argument that had preceded this one, asked whether a defendant must come in with "something better than 'my bad.'" The transcript records laughter. It was the question of the day, because the office's only account of the delay is that it did not notice, and Petrany said out loud what worries him: if a mistake can never be good cause, the door is shut. Justice Alito, who doubted aloud that the exemption is an affirmative defense in the first place, suggested the trial court's schedule may never have set an amendment deadline, in which case Rule 16 is not in the case at all.

The rules are the rules

I do not count votes from a transcript. I will say where I come down. Justice Kagan put it in two sentences that sound like a truism until you notice who has to live by them: "The rules provide standards here. Why not just use them, whether they're more strict or less strict than the ones that would suit your client?"

Plaintiffs meet the unforgiving version of that sentence constantly, and this case has a specimen. People on an elected official's personal staff are not without a remedy. Congress gave them one in the Government Employee Rights Act, but it runs through the Equal Employment Opportunity Commission, and the complaint must be filed "not later than 180 days after the occurrence of the alleged violation." Justice Sotomayor asked whether Younge could still have gone there if the office had spoken up on time. No, Petrany said. The 180 days had run before the office's answer was even filed. I report that because it cuts for him on prejudice: a punctual answer would not have reopened that door. It also shows the asymmetry I cannot get past. Her clock was a number, and it ran. His was a rule that says "must," and the question before the Court is whether "must" comes with a consequence.

Fair notice is not paper-shuffling. Justice Jackson made the point that the answer is where a case finds out what it is about; had the exemption been there, she said, perhaps two years of litigation would never have happened in that courtroom. A legal system that forgives an office full of lawyers for skipping the rule, and does it through a side entrance with a lower threshold than the front door, has told everyone which rules are decorative.

Monday morning in Illinois

Few Illinois companies will ever plead the personal-staff exemption. Every one of them that gets sued will file an answer, and Rule 8(c) lists eighteen defenses by name, release, payment, estoppel, waiver and the statute of limitations among them, after the word "including." Schnapper told the justices that exemptions from the Fair Labor Standards Act are treated as affirmative defenses too. That was a lawyer speaking from memory at the lectern, and I pass it along as such. If he is right, the overtime exemption a company is counting on belongs in that first document. About the release an employee signed on the way out there is no if; "release" is on the list.

The federal courts in Chicago answer to the Seventh Circuit, and I should be exact about what that court has said, because it is not Younge's rule. Its test also turns on harm to the plaintiff: an unpleaded defense is forfeited only if the delay hurt the other side, and the forfeiture rule, the court has written, is "not to be applied rigidly." What the Seventh Circuit has shown is that a harm test can have teeth. In 2019 it reversed a hospital's summary judgment win on a disability claim, in an appeal from Wisconsin, because the hospital had raised a statutory exemption for the first time at that stage, after discovery had closed, with "no excuse or explanation" for the delay. The trial court had abused its discretion by considering the defense at all. Judge Hamilton wrote that a defendant invoking such a defense "must plead it in the answer," and that the plaintiff "was entitled to rely on Rule 8(c) and the hospital's silence in its pleadings."

So the lesson was available before anyone stood up on November 2. An answer is read the way a contract is read, by someone who would like to hold its author to it. The amendment deadline in a scheduling order is a date, and Younge can tell you how dates behave. And when the omission surfaces in month twenty, as it does, the rules already name the cure: a motion, and a reason. Whether the reason has to be better than "my bad" is the part the Court has not told us. Seven words are cheap on the day the answer is due. The Court should tell us by summer what they cost after that.

Columns are the views of their authors. They are not legal advice and not the position of the firm.