The Supreme Court’s minimum requirements for standing are that a plaintiff show an injury, traceable to defendant, that the court can redress. If at any point in a litigation, these three requirements are no longer satisfied, the case becomes moot.

The Court recently held that a claim for nominal damages, standing alone, satisfies the redressability prong of these requirements. This holding came in a case with what may be, for monolingual speakers of English, the most unpronounceable case caption in Supreme Court history: Uzuegbunam v. Preczewski, 2021 WL 850106 (March 8, 2021). With the assistance of plaintiff’s counsel, I can report that the case is pronounced:  ū-zah-būn′-um  v.  prĕh-shĕv′-skē.

Plaintiff was a student at Georgia Gwinnett College. He wanted to speak to other students about his religious beliefs. But Georgia Gwinnett had absurdly restrictive speech rules, and every time he tried to speak publicly about religion, college officials stopped him from speaking. He sued college officials for nominal damages and for an injunction against enforcement of their rules restricting speech. He alleged no compensatory damages.

The college soon surrendered and adopted much less restrictive rules. Plaintiff abandoned his claim for an injunction. That left only the claim for nominal damages. Both sides agreed that he had suffered a legal injury—he had been stopped from speaking—and that defendants had caused that injury. The Court held, 8-1, that nominal damages of $1 would redress that injury, and therefore, that the case was not moot. Chief Justice Roberts dissented, fearing that federal courts would now be issuing large numbers of advisory opinions in the course of deciding whether to award nominal damages.

The majority cited practice in the early national period and in England before the American founding. The Chief said the American authorities were inconsistent, and somewhat surprisingly, that our federal courts are so different from English courts that English precedent doesn’t matter.

Uzuegbunam is an important win for a narrow set of plaintiffs. Defendants often maneuver to moot cases seeking injunctions, and a claim for nominal damages is one possible way for plaintiff to keep a case alive. But there are other and often better ways; there was much less at stake here than the Chief feared.

First, this result had long been the substantially unanimous rule in the lower courts, and the rule has not been a source of difficulty. Michael McConnell, then on the Tenth Circuit, questioned the consensus in a concurring opinion in Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248 (10th Cir. 2004). But it was only in 2017 that the Eleventh Circuit broke ranks and held that a case becomes moot when only a claim for nominal damages remains and there is no continuing controversy that would support a claim for a declaratory judgment. Flanigan’s Enterprises, Inc. v. City of Sandy Springs, 868 F.3d 1248 (11th Cir. 2017) (en banc). Both sides in Uzuegbunam recognized that nominal damages were an early way of granting what amounted to a declaratory judgment, and both sides agreed that a case is not moot when nominal damages serve that function. The Eleventh Circuit applied its new rule in Uzuegbunam, and the Supreme Court reversed, adopting the traditional rule.

Second, plaintiffs still have to prove a legally cognizable injury, and prove that defendant caused that injury. Uzuegbunam addresses only the redressability prong of the three requirements for standing.

Third, the Court’s rule on “voluntary cessation” of allegedly illegal practices reduces the frequency of fact patterns like the one in Uzuegbunam. When a plaintiff challenges a law or a defendant’s ongoing practice, and the defendant repeals the law or abandons the practice in the face of litigation, the case is not necessarily moot. The plaintiff can still ask for an injunction, and a defendant who resists that request must persuade the court that there is essentially no chance that it will return to its old ways once the lawsuit is dismissed. Like all standing rules, this one is unevenly enforced, but often it is enforced with considerable rigor. See, e.g., Trinity Lutheran Church v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017). Voluntary cessation was not at issue in Uzuegbunam, because the plaintiff had dropped his injunction claim.

Fourth, Uzuegbunam is not an open door to fee awards in moot cases. The Court has held that when a defendant surrenders before judgment, abandoning its challenged practice because of plaintiff’s lawsuit, the plaintiff is not a prevailing party entitled to attorneys’ fees under fee-shifting statutes. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001).

The voluntary-cessation rule is one potential way around Buckhannon. Nominal damages are another, but the way is narrow. The Court has held that a plaintiff who recovers only nominal damages is a prevailing party, but that the reasonable award of attorneys’ fees for such a plaintiff is “usually” zero. Farrar v. Hobby, 506 U.S. 103 (1992). Justice O’Connor, concurring, thought a more substantial fee award might be reasonable if plaintiff prevailed on an important legal issue, and that proposed exception has had some life in the lower courts. But those cases are exceptional, and often they are cases in which there is a continuing dispute between the parties—in which nominal damages are not moot because they serve their declaratory function.

When nominal damages will not lead to a fee award, the plaintiff’s attorney has little incentive to plead and pursue a claim for nominal damages. Some attorneys will pursue the nominal-damages claim just to establish a precedent that the court views as unimportant, but many will not.

Fifth, everyone agreed that even a tiny claim for compensatory damages would avoid mootness. If plaintiff claimed damages for a wasted bus ticket to campus on a day he was stopped from speaking, or for the wasted gas in his car that day, he would present a justiciable controversy even though these compensatory damages are nominal in amount. A plaintiff concerned to avoid mootness can often think of at least some kind of minimal damages.

Sixth, defendants and the Eleventh Circuit agreed that if plaintiff claimed both compensatory and nominal damages, but failed to prove the compensatories, the claim for nominal damages would not become moot. The logical basis for this concession is obscure, but it had support in precedent. So a plaintiff can allege emotional distress from the violation of his rights, and while he may fail to prove compensable distress, he will present a live controversy until that claim is finally resolved. He will then be entitled to nominal damages as a substitute for his unproven compensatories, and that claim will not be moot.

And seventh, the Chief’s dissent, Justice Kavanaugh’s concurrence, and the Trump Administration’s amicus brief all suggested that defendants can moot a nominal-damages claim by offering the plaintiff a dollar. The majority did not comment on this dodge, and as of two weeks past the decision, Georgia Gwinnett hasn’t tried it, but no doubt some defendants will. The Court has not let defendants buy off class representatives in this way. Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016). But when a plaintiff sues only for himself and owes no fiduciary duty to a class, the result may be different. Time will tell. Whether or not plaintiff accepts the dollar, a defendant could consent to a default judgment for a dollar and likely avoid a ruling on the merits.

So the Supreme Court has now approved the longstanding rule in the lower courts. This rule matters in cases that fall into none of the categories just described—to a claim only to nominal damages, where plaintiff proves a legal injury caused by defendant, where there is no continuing controversy, where any injunction claim is moot despite the voluntary-cessation rule, where the plaintiff’s lawyer is willing to litigate for the principle of the thing, where there is no claim for compensatory damages and never was one, and where the defendant does not moot the case by offering the plaintiff a dollar. All of these things must be true for Uzuegbunam to be the key to avoiding mootness. How many cases is that?

A rule that matters only in this narrow set of cases is not going to change the system. Despite the Chief’s flamboyant fears, federal judges are not about to become advice columnists.

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Douglas Laycock

Reporter, Torts: Remedies

Douglas Laycock is perhaps the nation’s leading authority on the law of religious liberty and also on the law of remedies. He has taught and written about these topics for four decades. He is currently the Robert E. Scott Distinguished Professor of Law and Professor of Religious Studies at the University of Virginia School of Law, and the Alice McKean Young Regents Chair in Law Emeritus at the University of Texas School of Law.

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