« Some Reflections | Main | Seminar with Educational Testing Service on the GRE and other issues »

Tuesday, January 12, 2021

Mootness and nominal damages

The Court on Tuesday heard argument in Uzuegbunam v. Preczewski, on whether a case becomes moot if the government repeals the challenged policy but a claim for nominal damages remain. A few thoughts.

• Chief Justice Roberts hammers everyone on justiciability and merits melding into one another. But he wants to find ways to draw magical lines, rather than recognizing that they collapse into one another because they are the same thing.

• Justice Kavanaugh recognizes that the real issue here is attorney's fees. A plaintiff cannot recover attorney's fees if the government moots the case by repealing the challenged policy; the real point of the nominal damages claim is to keep the case alive through a claim for retroactive relief on which the plaintiff can prevail.

• There was no discussion of qualified immunity, which also enters this picture. If the nominal damages claim keeps the case alive, it also is subject to an immunity defense. This helps the government avoid paying $ 1, which avoids attorney's fees.

• The case is a weird vehicle for this issue, because the challenged policy was never enforced against one of the plaintiffs prior to its repeal. The "injury" the plaintiff claims is for the past chilling effect of wanting to speak but not feeling able to for fear of enforcement. Chilling effect can be a basis for standing for prospective relief; it is strange to see it as a past injury.

• There was some confusion among a number of concepts--prospective v. retroactive relief, compensatory v. non-compensatory remedies, claims v. remedies. It seems to me the answer to this case is that a plaintiff can bring a claim for a past injury caused by the policy while the policy was in effect--a retroactive injury seeking a retroactive remedy. Having proved past injury, the question is one of remedy--actual damages (however small) or nominal damages in their stead. Counsel for the government seemed to acknowledge the last pairing, insisting that nominal damages is not a claim but a remedy once that claim has been proven. But that should cut against the government's position.

• The case highlights the problems with Buckhannon, in which the Court rejected the "catalyst theory" of attorney's fees, under which a plaintiff prevails if the lawsuit is the catalyst for the government repealing the challenged policy. A plaintiff does not prevail when the policy change is not reduced to a judgment. At the same time, Buckhannon left this case open--whether a claim for retroactive relief can keep the case, and thus fees, alive.

But counsel for Georgia made this point in his closing:

[T]he way that this case was resolved is a good thing. Litigation prompted college officials to review their policies, and just ten weeks later to revise them in a way that maximizes and respected First Amendment rights on campus, not just for Petitioners but for all students. And it even led to an enduring state-wide policy change for every public college in Georgia. That kind of early out-of-court resolution should be encouraged.

Except such a resolution requires that plaintiffs are able to obtain counsel to bring litigation. This is why Congress provides for fees in civil rights cases--to incentivize counsel to bring these cases. But there will be no such change if individuals are unable to bring litigation because they are unable to get counsel because counsel knows that the "good" solution for the government will be to repeal its policy, preempting fees, and thus will not agree to bring the case.

My best guess is that the Court reverses, at least where the plaintiff has suffered past harm from enforcement. But I am always wrong.

Posted by Howard Wasserman on January 12, 2021 at 08:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

Comments

The vindication of federal rights is deemed so important a constitutional value that SCOTUS has recognized for over a hundred years the "fiction" of Ex parte Young relief.

If SCOTUS is looking for an appropriate line to draw, perhaps it should be declaratory relief + nominal damages + reasonable attorneys fees and costs through the date the challenged policy was reversed. This line would work, however, only when the defendant acknowledged legal responsibility to pay the plaintiff reasonable attorneys fees and costs through that date. If the defendant continued to challenge the legal position of the plaintiff in the action, however, it should also be responsible for payment of reasonable attorneys fees through the conclusion of the case.

That is a bright line that could be equitably drawn (assuming a majority of the Court sees the issue the way I do).

Posted by: JAMES A GUSTINO | Jan 13, 2021 10:21:42 PM

The vindication of federal rights is deemed so important a constitutional value that SCOTUS has recognized for over a hundred years the "fiction" of Ex parte Young relief.

If SCOTUS is looking for an appropriate line to draw, perhaps it should be declaratory relief + nominal damages + reasonable attorneys fees and costs through the date the challenged policy was reversed. This line would work, however, only when the defendant acknowledged legal responsibility to pay the plaintiff reasonable attorneys fees and costs through that date. If the defendant continued to challenge the legal position of the plaintiff in the action, however, it should also be responsible for payment of reasonable attorneys fees through the conclusion of the case.

That is a bright line that could be equitably drawn (assuming a majority of the Court sees the issue the way I do).

Posted by: JAMES A GUSTINO | Jan 13, 2021 10:21:42 PM

Interesting and important issue. Justice Ginsburg in her excellent dissenting in the case of "Buckhannon" correctly argued, that the "prevailing party", is not necessarily the party which wins in the full or plain meaning of it. The test is not formal, but, in law, it is rather the effective test that should prevail.

I quote:

" A lawsuit's ultimate purpose is to achieve actual relief from an opponent. Favorable judgment may be instrumental in gaining that relief. Generally, however, "the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant . . . ." Hewitt v. Helms, 482 U. S. 755, 761 (1987). On this common understanding, if a party reaches the "sought-after destination," then the party "prevails" regardless of the "route taken."

End of quotation:

So, if there is clear nexus between the lawsuit, and the action taken by defendant to remedy the situation, we have public and social argument, in favor of broadening the scope of the definition of "prevailing party" and granting fees reward or other financial reward in such case.

Let alone, while, at the time of the wrongdoing, the conduct was clearly illegal. The correction, can't fully remedy the tort. Because the wrongdoing stands on its own ground. So, we have also educational issue. Public and law officers, can't get away with it, simply because of "after the fact" correction. For, they are finally in the "right side" that has power to change and correct it retrospectively. That is surly not a method.

Thanks

Posted by: El roam | Jan 13, 2021 9:10:56 AM

Post a comment