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Monday, March 08, 2021

Nominal damages, past injury, and a morass to come

SCOTUS decided Uzuegbunam v. Preczewski Monday, holding 8-1 (Thomas for the Court, Roberts dissenting) that nominal damages are a retrospective remedy and plaintiffs can pursue them as the sole remedy for a past constitutional violation. The decision allows plaintiffs to vindicate rights (e.g., the right to protest in a time, place, and manner to which the plaintiff was entitled) that are easily violated but rarely, if ever, worth a lot of money. It also strips government of the power to moot cases after they have begun by repealing the challenged policies, at least where the plaintiff can show an injury from when the policy was in effect.

But the decision leaves many issues open and to be resolved by lower courts going forward.

One is how prevalent this practice will become. Will every plaintiff challenging the validity of a policy include a nominal-damages claim to guard against the government mooting the case? And how will this affect the willingness of courts to say the prospective claim is moot if there is a retroactive claim keeping the case alive? Courts are all over the map on when the repeal of an executive or department policy moots a case and when it is the sort of voluntary cessation that does not moot the case. On one hand, a court may hold the prospective claim not moot, since the nominal-damages claim will keep the case in court. On the other, it may be happy to dump the prospective claim and focus on a small-money claim for a likely de minimis past injury.

Second is how this affects attorney's fees, which was the hidden import of this case. A plaintiff who recovers nominal damages is a prevailing plaintiff entitled to fees under § 1988. Had this case come out the other way, it would have upped the incentive for government to repeal challenged policies, mooting the case and immunizing itself from fees.

But even if fees are available, the amount of recovery may be limited where the plaintiff only receives nominal damages after seeking more--when a plaintiff recovers nominal damages but nothing else, the reasonable fee may be "nothing." Courts might narrow the degree to which the plaintiff prevails, and the amount of fees she recovers, where the government repeals the challenged policy; the plaintiff prevails "only" on the past violation and can recover only for that legal work. An increase in nominal-damages actions may produce a drawback in the amount of fees courts are willing to award.

Third, Jim Pfander proposes that Congress should amend § 1983 to allow plaintiffs to bring claims seeking nominal damages--foregoing compensatory, punitive, and other substantial damages in exchange for the defendant being unable to assert qualified immunity. On one hand, this case treats nominal damages as a remedy consistent with Article III and thus within Congress' power to enact by statute. But the logic of Pfander's proposal is that nominal damages function like an injunction or declaratory judgment, neither of which is subject to qualified immunity. But today's decision paints nominal damages as s a retrospective remedy. Of course, the policy concern for an officer paying out of his own pocket disappears if he only will pay $ 1. But the validity of the proposal turns on that policy, not on the analogy between injunctions and nominal damages.

Fourth, the case illustrates the Court ongoing use of Article III to constitutionalize all sorts of merits questions. The majority talks about the need to show standing and a cognizable cause of action, assuming they are obviously distinct and never recognizing their unavoidable overlap. The Justices continue to make Article III and justiciability as a vehicle to discuss what injuries plaintiffs can recover for and what remedies they can get for those injuries, which should be core merits issues.

Roberts' dissent is worse. He argues (adopting the position of the United States and echoing his dissent in Campbell-Ewald) that a defendant can moot a nominal-damages case by depositing $ 1, avoiding a resolution on the merits. But an action for past injury (as the majority characterizes a claim for nominal damages) never becomes moot. Unlike an ongoing injury that ends when the policy causing injury is repealed, the past injury occurred and does not disappear with payment of money. The payment remedies the injury, putting the plaintiff where she would have been had the past violation of her rights not occurred. But the injury does not disappear and it does not become moot. Unfortunately, Kavanaugh wrote a one-paragraph concurrence to agree with that point in Roberts' dissent, meaning two members of the Court for that absurd position.

Finally, whether characterized as merits or mootness, the question remains whether government can do what the U.S. and Roberts/Kavanaugh would allow: Render the claims recognized in this case meaningless by depositing that $ 1 and demanding the government enter judgment, even if the plaintiff would rather not accept the settlement.

Posted by Howard Wasserman on March 8, 2021 at 01:53 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Fyi, the SG brief did not say the case would be moot by merely tendering a dollar- rather, it said that the deft could acquiesce in entry of judgment of a dollar on the merits, and the court should resolve the case on the basis of the concession without adjudicating the constitutional issue. Indeed, the brief dropped a footnote distinguishing that from the tender issue left open by Campbell ewald

Posted by: Hash | Mar 9, 2021 10:59:36 AM

Professor Michael Dorf at his blog notes:

"I agree with CJ Roberts and Justice Kavanaugh that the majority opinion is open to the reading they offer, but it is at least a little odd that Justice Thomas doesn't even mention the possibility. Moreover, in stating that nominal damages cases were a kind of early version of the more modern declaratory judgment action, Justice Thomas arguably implies that perhaps a voluntary entry of judgment against the defendant does not redress a plaintiff's wrong as well as actual proof followed by nominal damages--and could thus be rejected. Accordingly, the practical significance of Uzuegbunam remains to be seen."

but then shifts to another issue.

Posted by: Joe | Mar 8, 2021 5:14:49 PM

Just clarifying it (my comment down there):

My first point, concerning sitting president, about to pardon himself:

Suppose, while there is no one, no party, having standing right, bearing concrete injury etc... Suppose, that public petitioner would petition court. Would it contradict article III ? not at all as explained.So, even if it would look like classic advisory opinion, it doesn't contradict, the elements of: case, controversy.

Posted by: El roam | Mar 8, 2021 5:03:12 PM

Interesting case indeed. Many complications here. Just some few:

First, Justice Roberts, relies on the issue of advisory opinions ( that courts should avoid). And why ? Simply because of article III which insists on controversy and cases. Yet, he doesn't explain, why advisory opinions, contradict, dealing with cases and controversies.

Suppose that one US sitting president, would want to pardon himself. Can he do that ? Some would say yes, others not. Yet, we have a case (of sitting president about to pardon himself) and we have federal issue, representing controversy. Means, whether he can pardon himself or not.

Later, he justifies or differentiate it, from common law doctrines, by arguing that the US constitutional principles, insist rather on separation of powers. But how it does contradict it, he doesn't really explain it. For courts, need to interpret the law. And in our case (pardoning himself) the constitution is silent.

So, advisory opinion with all due respect, doesn't contradict article III at first place. Although, this is definitely the jurisprudence of course.

Second, what is moot, or can bear mootness, is not injury, but rather, controversy. So, why to claim that " the injury does not disappear and it does not become moot" as in the post, we couldn't understand.

Third, worth noting, that in many common law states in the world, such case, can become simple tort claim, based on injury to the autonomy of free will (by preventing petitioners, free speech). Then it would become far beyond issue of fees and costs etc.... But, payment for tort simply. Then we wouldn't have any issue of mootness etc.... But, paying for damages, as body injury etc.... Not in the US unfortunately.


Posted by: El roam | Mar 8, 2021 3:23:52 PM

How is the offer of judgment position absurd? The payment, you say, "remedies the injury." So what is a court doing hearing the case once the injury's been remedied? It's like hearing a claim for replevin of my umbrella if before I sue the defendant returns the umbrella. The injury doesn't disappear as an historical fact, but the ability to remedy it (bracketing remedies I don't seek in this hypothetical, like damages for being rained on) has.

Posted by: Asher Steinberg | Mar 8, 2021 2:27:32 PM

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