Petition for Writ of Certiorari — Chike Uzuegbunam, et al., Petitioners v. Stanley C. Preczewski, et al.

Supreme Court briefJan 31, 2020

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NO. __________

IN THE

Supreme Court of the United States

CHIKE UZUEGBUNAM AND JOSEPH BRADFORD,

Petitioners,

STANLEY C. PRECZEWSKI, JANN L. JOSEPH, LOIS C.

RICHARDSON, JIM B. FATZINGER, TOMAS JIMINEZ,

AILEEN C. DOWELL, GENE RUFFIN, CATHERINE

JANNICK DOWNEY, TERRANCE SCHNEIDER, COREY

HUGHES, REBECCA A. LAWLER, AND SHENNA PERRY,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID A. CORTMAN

TRAVIS C. BARHAM

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals Rd.

N.E., Suite D-1100

Lawrenceville, GA 30043

(770) 339–0774

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

TYSON C. LANGHOFER

ALLIANCE DEFENDING

FREEDOM

440 First Street, N.W.

Suite 600

Washington, D.C. 20001

(616) 450–4235

jbursch@ADFlegal.org

Counsel for Petitioners

QUESTION PRESENTED

While a student at Georgia Gwinnett College,

Petitioner Chike Uzuegbunam began distributing

religious literature on campus. College officials

stopped him because he was outside the 0.0015% of

campus where “free speech expression” was allowed.

When Chike reserved a free-speech space and again

tried to evangelize, officials stopped him because

someone complained which, under College policy, converted Chike’s speech to “disorderly conduct” (i.e.,

“disturb[ing] the peace and/or comfort of person(s)”).

Facing discipline if he continued, Chike sued. Another

student, Petitioner Joseph Bradford, self-censored

after hearing how officials mistreated Chike.

Chike and Joseph raised constitutional claims

against Respondents’ enforcement of their policies,

seeking damages and prospective equitable relief to

remedy the censorship and chill. After Respondents

changed their speech policies post-filing, mooting all

equitable claims, the lower courts held that Chike and

Joseph did not adequately plead compensatory damages, and their nominal-damages claims were moot.

Six circuits hold that a government’s policy change

does not moot nominal-damages claims. Two circuits

hold such claims moot if the government changes a

policy it has never enforced against the plaintiff. The

Eleventh Circuit alone holds that, absent compensatory damages, government officials are never liable

for violating constitutional rights if they change their

policy after being sued. The question presented is:

Whether a government’s post-filing change of an

unconstitutional policy moots nominal-damages

claims that vindicate the government’s past, completed violation of a plaintiff’s constitutional right.

PARTIES TO THE PROCEEDING &

CORPORATE DISCLOSURE

Petitioners are Chike Uzuegbunam (pronounced

“CHEE’-kay Oo-zah-BUN’-um”) and Joseph Bradford.

When this case began, both were students at Georgia

Gwinnett College. Both are individual persons.

Respondents are Stanley C. Preczewski, Lois C.

Richardson, Jim B. Fatzinger, Tomas Jiminez, Aileen

C. Dowell, Gene Ruffin, Catherine Jannick Downey,

Terrance Schneider, Corey Hughes, Rebecca A.

Lawler, and Shenna Perry. All are or were officials at

Georgia Gwinnett College involved in enforcing the

challenged policies, and Chike and Joseph sued them

in their official and individual capacities. During this

lawsuit, Respondent Preczewski left the employ of

Georgia Gwinnett College, and Respondent Jann L.

Joseph took his place as president. Under FED. R. CIV.

P. 25(d), Respondent Joseph is automatically substituted for the official capacity claims against Respondent Preczweski. The individual capacity claims

against Respondent Preczewski remain.

LIST OF ALL PROCEEDINGS

U.S. Court of Appeals for the Eleventh Circuit, No.

18-12676, Uzuegbunam v. Preczewski, judgment entered July 1, 2019, rehearing en banc denied September 4, 2019, mandate issued September 12, 2019.

U.S. Court of Appeals for the Eleventh Circuit, No.

18-12676, Uzuegbunam v. Preczewski, initial hearing

en banc denied February 21, 2019.

U.S. District Court for the Northern District of

Georgia, No. 1:16-cv-04658-ELR, Uzuegbunam v.

Preczewski, final judgment entered May 25, 2018.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDING &

CORPORATE DISCLOSURE .............................. ii

LIST OF ALL PROCEEDINGS ................................. ii

TABLE OF AUTHORITIES .................................... vii

DECISIONS BELOW................................................. 1

STATEMENT OF JURISDICTION .......................... 1

PERTINENT CONSTITUTIONAL PROVISIONS ... 1

INTRODUCTION ...................................................... 2

STATEMENT OF THE CASE ................................... 3

Censorship through Speech Policies ............ 3

A. Censorship by Speech Zones .................... 3

B. Censorship by Speech Codes ................... 4

II.

Lower Court Proceedings ............................. 5

REASONS FOR GRANTING THE WRIT................. 8

The Eleventh Circuit’s decision

exacerbates a circuit conflict. ..................... 10

A. The Second, Fifth, Sixth, Seventh,

Ninth, and Tenth Circuits hold that

standalone nominal-damages claims

avoid mootness. ..................................... 11

B. The Fourth and Eighth Circuits hold

that standalone nominal-damages

claims avoid mootness unless the

challenged policy was never enforced

against the plaintiff. .............................. 17

C. The Eleventh Circuit’s outlier view

holds that standalone nominal-damages

claims do not prevent mootness, even in

a challenge to past enforcement of a

policy against the plaintiff. ..................... 20

II.

The Eleventh Circuit’s ruling conflicts

with this Court’s precedent on nominal

damages. ...................................................... 22

A. Unlike the Eleventh Circuit, this

Court has ruled that nominal damages

have significant practical effects. .......... 23

B. Unlike the Eleventh Circuit, this

Court has ruled that nominal-damages

claims vindicate priceless freedoms....... 26

III. This case is an ideal vehicle to address

the relationship between nominal

damages and mootness, an issue with

serious ramifications for students and

other civil rights plaintiffs.......................... 28

CONCLUSION ......................................................... 31

APPENDIX TABLE OF CONTENTS

United States Court of Appeals for the

Eleventh Circuit,

Opinion in 18-12676

Issued July 1, 2019 .................................................. 1a

United States District Court for the

Northern District of Georgia,

Judgment in 1:16-cv-04658

Issued May 25, 2018 .............................................. 20a

United States District Court for the

Northern District of Georgia,

Order Granting Motions to Dismiss

in 1:16-cv-04658

Issued May 25, 2018 .............................................. 22a

United States Court of Appeals for the

Eleventh Circuit,

Order Denying Petition for Rehearing En Banc

in 18-12676

Issued September 4, 2019 ...................................... 47a

United States Court of Appeals for the

Eleventh Circuit,

Order Denying Initial Hearing En Banc

in 18-12676

Issued February 21, 2019 ...................................... 50a

United States Court of Appeals for the

Eleventh Circuit,

Mandate in 18-12676

Issued September 12, 2019 .................................... 53a

U.S. Constitutional Provisions .............................. 55a

United States District Court for the

Northern District of Georgia,

First Amended Verified Complaint

in 1:16-cv-04658

Filed February 15, 2017 ......................................... 56a

Excerpts from Georgia Gwinnett College’s

“At a Glance” Website, Containing the

College’s Speech Zone Policies

Filed as an Exhibit to the First Amended

Complaint on February 15, 2017 ......................... 137a

Georgia Gwinnett College’s

“Free Speech Area Request Form”

Filed as an Exhibit to the First Amended

Complaint on February 15, 2017 ......................... 142a

Excerpts from Georgia Gwinnett College’s

2016–2017 Student Handbook, Containing the

College’s Speech Zone and Speech Code Policies

Filed as an Exhibit to the First Amended

Complaint on February 15, 2017 ......................... 145a

Excerpts from Defendants’ Memorandum of Law

in Support of Motion to Dismiss

Filed in 1:16-cv-04658 on February 1, 2017........ 152a

Excerpts from U.S. District Court Docket

Northern District of Georgia

Case No. 1:16-cv-04658 ........................................ 157a

vii

TABLE OF AUTHORITIES

Cases

Advantage Media, LLC v. City of Eden Prairie,

456 F.3d 793 (8th Cir. 2006)............................... 19

American Humanist Association v.

Greenville County School District,

652 F. App’x 224 (4th Cir. 2016) ......................... 18

Baca v. Colorado Department of State,

935 F.3d 887 (10th Cir. 2019),

cert. granted, __ S. Ct. __, 2020 WL 254162

(Jan. 17, 2020) (No. 19-518) ............................... 15

Bernhardt v. County of Los Angeles,

279 F.3d 862 (9th Cir. 2002)............................... 15

Brinsdon v. McAllen Independent School District,

863 F.3d 338 (5th Cir. 2017)............................... 12

C.F. ex rel. Farnan v.

Capistrano Unified School District,

654 F.3d 975 (9th Cir. 2011)............................... 14

Carey v. Piphus,

435 U.S. 247 (1978) ...................................... passim

Carver Middle School Gay-Straight Alliance v.

School Board of Lake County,

842 F.3d 1324 (11th Cir. 2016)........................... 20

Central Radio Co. v. City of Norfolk,

811 F.3d 625 (4th Cir. 2016)............................... 18

viii

Chapin Furniture Outlet Inc. v. Town of Chapin,

252 F. App’x 566 (4th Cir. 2007) ........................ 19

Committee for First Amendment v. Campbell,

962 F.2d 1517 (10th Cir. 1992)..................... 15, 16

Coral Springs Street Systems, Inc. v.

City of Sunrise,

371 F.3d 1320 (11th Cir. 2004)............................. 8

Corder v. Lewis Palmer School District No. 38,

566 F.3d 1219 (10th Cir. 2009)........................... 16

Covenant Christian Ministries, Inc. v.

City of Marietta,

654 F.3d 1231 (11th Cir. 2011)........................... 20

Crue v. Aiken,

370 F.3d 668 (7th Cir. 2004)............................... 14

Davis v. Village Park II Realty Co.,

578 F.2d 461 (2d Cir. 1978) ................................ 11

Doe v. Delie,

257 F.3d 309 (3d Cir. 2001) ................................ 17

Ellis v. Brotherhood of Railway, Airline &

Steamship Clerks, Freight Handlers, Express

& Station Employees,

466 U.S. 435 (1984) ............................................. 28

Farrar v. Hobby,

506 U.S. 103 (1992) ..............................9, 24, 25, 27

Flanigan’s Enterprises, Inc. v.

City of Sandy Springs,

868 F.3d 1248 (11th Cir. 2017) (en banc).... passim

Henson v. Honor Committee of the

University of Virginia,

719 F.2d 69 (4th Cir. 1983)................................. 18

Husain v. Springer,

494 F.3d 108 (2d Cir. 2007) ................................ 11

Jacobs v. Clark County School District,

526 F.3d 419 (9th Cir. 2008)............................... 14

Jacobs v. Tempur-Pedic International, Inc.,

626 F.3d 1327 (11th Cir. 2010)............................. 6

Keup v. Hopkins,

596 F.3d 899 (8th Cir. 2010)............................... 19

Koger v. Bryan,

523 F.3d 789 (7th Cir. 2008)............................... 14

Mellen v. Bunting,

327 F.3d 355 (4th Cir. 2003)............................... 18

Memphis Community School District v. Stachura,

477 U.S. 299 (1986) ....................................... 23, 26

Miller v. City of Cincinnati,

622 F.3d 524 (6th Cir. 2010)............................... 13

Morgan v. Plano Independent School District,

589 F.3d 740 (5th Cir. 2009)............................... 12

Morrison v. Board of Education of Boyd County,

521 F.3d 602 (6th Cir. 2008)............................... 13

Mosley v. Hairston,

920 F.2d 409 (6th Cir. 1990)................................. 8

Murray v. Board of Trustees,

University of Louisville,

659 F.2d 77 (6th Cir. 1981)................................. 13

O’Connor v. City & County of Denver,

894 F.2d 1210 (10th Cir. 1990)........................... 16

O’Connor v. Washburn University,

416 F.3d 1216 (10th Cir. 2005)........................... 16

Phelps-Roper v. City of Manchester,

697 F.3d 678 (8th Cir. 2012)............................... 20

Praise Christian Center v.

City of Huntington Beach,

352 F. App’x 196 (9th Cir. 2009) ........................ 15

Robinson v. Lord Byron,

2 Cox 4, 30 Eng. Rep. 3 (1788) ........................... 23

Rock for Life-UMBC v. Hrabowski,

411 F. App’x 541 (4th Cir. 2010) ......................... 18

Shelton v. Tucker,

364 U.S. 479 (1960) ............................................... 3

United States v. Students Challenging Regulatory

Agency Procedures,

412 U.S. 669 (1973) ............................................. 28

Utah Animal Rights Coalition v.

Salt Lake City Corp.,

371 F.3d 1248 (10th Cir. 2004)..................... 16, 17

Uzuegbunam v. Preczewski,

781 F. App’x 824 (11th Cir. 2019) ........................ 1

Uzuegbunam v. Prezewski,

378 F. Supp. 3d 1195 (N.D. Ga. 2018) ................. 1

Van Wie v. Pataki,

267 F.3d 109 (2d Cir. 2001) ................................ 11

Ward v. Santa Fe Independent School District,

2002 WL 494510 (5th Cir. Mar. 14, 2002) ......... 12

Ward v. Santa Fe Independent School District,

2002 WL 753502 (5th Cir. Apr. 9, 2002) ............ 12

Ward v. Santa Fe Independent School District,

393 F.3d 599 (5th Cir. 2004)............................... 12

Webb v. Portland Manufacturing,

29 F. Cas. 506 (Story, Circuit Justice, C.C.D.

Me. 1838) (No. 17,322) ........................................ 23

Yniguez v. Arizona,

975 F.2d 646 (9th Cir. 1992)............................... 15

Statutes

28 U.S.C. 1254(1) ....................................................... 1

42 U.S.C. 1983 .......................................................... 11

Other Authorities

United States’ Statement of Interest,

No. 1:16-cv-04658, Sept. 26, 2017,

ECF No. 37 ...................................................... 5, 29

Rules

FED. R. CIV. P. 25(d) ................................................... ii

xii

Treatises

1 J.G. SUTHERLAND,

A TREATISE ON THE LAW OF DAMAGES §§ 9–10

(John R. Berryman ed., 4th ed. 1916) ................ 23

13C WRIGHT & MILLER,

FEDERAL PRACTICE & PROCEDURE

JURISDICTION § 3533.3 (3d ed. 2018)................... 11

DECISIONS BELOW

The Eleventh Circuit’s unpublished decision

affirming judgment for Respondents is reported at

781 F. App’x 824 (11th Cir. 2019), and reprinted at

App.1a–19a. Its orders denying en banc review are

reprinted at App.47a–49a and App.50a–52a.

The district court’s decision granting Respondents’

motion to dismiss is reported at 378 F. Supp. 3d 1195

(N.D. Ga. 2018), and reprinted at App.22a–46a.

STATEMENT OF JURISDICTION

On July 1, 2019, the Eleventh Circuit entered its

judgment. On September 4, it denied rehearing en

banc. On October 29, Justice Thomas extended the

time to file this petition until January 31, 2020. This

Court has jurisdiction under 28 U.S.C. 1254(1).

PERTINENT CONSTITUTIONAL PROVISIONS

Relevant portions of Article III and the First and

Fourteenth Amendments to the United States Constitution are reprinted at App.55a.

INTRODUCTION

Two students, Chike Uzuegbunam and Joseph

Bradford, sought to exercise free speech rights on

their college campus—the quintessential marketplace

of ideas. Chike was silenced twice; both were chilled,

entitling the students to nominal damages. But they

were never given a chance to prove the constitutional

violations. The lower courts held that once College

officials changed their unconstitutional policies, they

mooted not only the students’ request for prospective

equitable relief, but also their nominal-damages

claims for past, completed constitutional violations.

Six circuits hold that nominal-damages claims

challenging the past enforcement of unconstitutional

laws or policies present justiciable controversies. Two

circuits agree, unless the policies have not been

applied against the plaintiff. Only the Eleventh Circuit—which admits that all “the circuit courts that

have reached this issue have taken a position contrary” to its own—declares nominal-damages claims

moot, closing the courthouse to plaintiffs whose constitutional rights have been violated. Flanigan’s

Enters., Inc. v. City of Sandy Springs, 868 F.3d 1248,

1267 n.19 (11th Cir. 2017) (en banc).

This is not the first time the Eleventh Circuit has

applied its novel rule, but it is the most troublesome.

In Flanigan’s, the en banc Eleventh Circuit held that

the government’s repeal of an ordinance it never

enforced mooted plaintiffs’ requests for prospective

equitable relief and nominal damages. Now, the Eleventh Circuit extended its rule to moot nominaldamages claims involving a policy that College officials enforced repeatedly against two students to

censor them, a clear First Amendment violation.

Nominal damages hold government officials

accountable when constitutional violations occur but

do not inflict compensable injuries. The Eleventh

Circuit should not treat nominal damages—and the

violations they vindicate—as worthless.

The “vigilant protection of constitutional freedoms

is nowhere more vital” than at public colleges. Shelton

v. Tucker, 364 U.S. 479, 487 (1960). Yet the Eleventh

Circuit’s outlier view allows these institutions to

violate constitutional rights with impunity—avoiding

judicial review through a well-timed policy shift. This

rule sends a clear message to students when school

officials trample their freedoms: “Don’t bother retaining counsel; we know how to game the legal system.”

And it signals that colleges can censor students without consequence, without clarifying the law, and with

the cover of qualified immunity. This Court should

intervene and declare that federal courts remain open

when colleges violate students’ constitutional rights.

STATEMENT OF THE CASE

Censorship through Speech Policies

A. Censorship by Speech Zones

In 2016, Chike was sharing his Christian faith by

leafleting and conversing outdoors on campus.

App.90a–92a. Respondents stopped him for violating

their Speech Zone Policy. App.92a. Under that policy,

expressive activities could occur by “reserving” one of

two speech zones. App.75a, 79a–80a, 138a, 146a–47a.

Open about 10% of the week, the zones comprised one

patio and one sidewalk—0.0015% of campus.

App.76a–78a, 138a, 146a. To speak their views at all

other times or places, inside or outside the speech

zones, students needed a “permit.” App.78a–79a.

To reserve the zones, students had to submit a

form and any leaflets three business days in advance.

App.79a–80a, 138a, 142a–44a, 147a. Four officials

reviewed them with no limits on their discretion to

approve or deny. App.81a–82a, 139a, 147a–48a. The

policy listed 15 criteria all speakers “must meet.”

App.81a, 138a–41a, 147a–50a. But it never said that

officials must grant requests satisfying every requirement; even those requests could be denied. App.81a.

College officials also prohibited Chike from discussing his faith orally outside the speech zones.

App.93a–94a. Given these threats, he stopped any

such expression anywhere on campus. App.94a.

B. Censorship by Speech Codes

Chike later reserved a speech zone to speak

publicly about his faith. App.94a–96a. But College

officials, including campus police, stopped him yet

again, saying that because someone had complained,

his expression constituted “disorderly conduct.”

App.96a–97a, 99a–101a. Under the College’s Speech

Code, “disorderly conduct” included anything that

“disturbs the peace and/or comfort of person(s).”

App.84a, 151a. These officials threatened to punish

Chike if he kept speaking, enforcing a heckler’s veto

that silenced Chike. App.100a–03a.

This left Chike unable to speak about his faith

anywhere on campus. Without a permit, he was

banned from speaking in the over 99.99% of campus

outside the speech zones. Even with a reservation in

the zones, open only about 10% of the time, he could

avoid discipline if he said only those things that made

no one uncomfortable.

II.

Lower Court Proceedings

In December 2016, Chike sued, seeking prospective equitable relief and damages. App.157a–58a.

Respondents moved to dismiss, defending their

speech policies, invoking qualified immunity, and

claiming that Chike’s speech—the basic tenets of the

Christian faith—“arguably rose to the level of

‘fighting words.’” App.155a. Petitioners then filed an

amended complaint that added Joseph as a plaintiff,

since he also desired to discuss his faith and Respondents’ policies and actions chilled his speech.

App.158a–59a; App.56a–136a.

Respondents again moved to dismiss, raising

nearly identical arguments. App.159a–60a. Then

they eliminated their Speech Code, revised their

Speech Zone Policy, and moved to dismiss Petitioners’

requests for injunctive and declaratory relief as moot.

App.160a. Three months later, the en banc Eleventh

Circuit decided Flanigan’s, which held that the government’s repeal of an ordinance it never enforced

mooted the plaintiffs’ nominal-damages claims. 868

F.3d at 1263–70. (The majority noted that its holding

conflicted with other circuits, id. at 1267 n.19, and a

five-judge dissent reiterated the same, citing contrary

cases from seven circuits, id. at 1271 (Wilson, J. dissenting).) Meanwhile, the U.S. Department of Justice

filed a statement of interest in this case, noting its

satisfaction “that Plaintiffs have stated claims for

violations of the First and Fourteenth Amendments.”

United States’ Statement of Interest at 9, No. 1:16-cv04658, Sept. 26, 2017, ECF No. 37; App.162a.

Eight months after Flanigan’s, Respondents

argued that it mooted Chike’s and Joseph’s nominaldamages claims. App.163a. In response, Petitioners

explained why Flanigan’s neither controlled nor

required dismissal of their claims. App.163a.

The court waited to rule until May 2018, more

than a year after briefing was complete and also after

Chike graduated. App.163a. It held that Chike’s graduation mooted his request for prospective relief, and

that Respondents’ policy changes mooted Joseph’s.

App.26a–40a. In support, the court explained that the

students’ amended complaint did not request compensatory damages, and their nominal-damages claims

were moot under Flanigan’s, even though College

officials had actually enforced their unconstitutional

policies against Chike. App.40a–46a. The court

rejected Chike and Joseph’s request in their briefing

to amend the complaint to clarify that they also

sought compensatory damages, faulting them for not

moving to amend, as if they should have anticipated

their compensatory-damages argument would be

rejected and their nominal-damages claim would be

mooted. App.45a n.11. The court dismissed the case

without prejudice, then entered judgment minutes

later, App.20a, 163a, preventing Petitioners from

filing a motion to amend. Jacobs v. Tempur-Pedic

Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010) (Rule

15(a), authorizing motions to amend, has “no application” after final judgment).

After denying initial hearing en banc, App.50a–

52a, the Eleventh Circuit affirmed, relying on Flanigan’s to declare the case moot. App.12a–16a. Chike’s

and Joseph’s nominal-damages claims, the panel

reasoned, could not keep the case alive because

nominal damages would not “have a practical effect

on the parties’ rights or obligations.” App.13a, 15a–

16a. Chike and Joseph argued that nominal damages

would lead to a determination whether their rights

had been violated. App.14a–15a. But per the panel,

Flanigan’s categorically established that nominal

damages have no practical effect absent “a well-pled

request for compensatory damages.” App.15a.

Flanigan’s had included a caveat that courts have

“Article III powers to award nominal damages” when

they “determine[ ] that a constitutional violation

occurred, but that no actual damages were proven.”

App.13a. But the panel here went much further, holding that Flanigan’s “limited” its caveat “to cases in

which both compensatory and nominal damages were

pled.” App.13a. According to the panel, nominaldamages claims are useless unless combined with a

request for compensatory damages. App.13a–16a.

The Eleventh Circuit also eliminated any nominaldamages distinction between claims based on unconstitutional policies that have been enforced and those

that have not. (As noted above, Flanigan’s involved a

policy that had not been enforced. 868 F.3d at 1262–

65.) Chike’s “right to receive nominal damages as the

result of any unconstitutional conduct . . . would

[still] have to flow from a well-pled request for

compensatory damages,” said the panel. App.15a.

In sum, the Eleventh Circuit’s decision below

renders standalone nominal-damages claims—those

unaccompanied by requests for compensatory

damages—worthless in maintaining a case once

prospective injunctive relief is unavailable. According

to the Eleventh Circuit, requests for nominal

damages do not prevent a case from becoming moot

even when the government has already enforced a

challenged policy and violated the plaintiffs’ rights.

Chike and Joseph sought rehearing en banc, a

request the Eleventh Circuit denied. App.47a–49a.

REASONS FOR GRANTING THE WRIT

Nominal damages are critical to ensure that

federal courts remain open to litigants, especially in

civil-rights cases. That is because constitutional

violations often do not inflict financial injuries, and

governments often moot equitable claims by changing

unconstitutional policies. Many circuits review these

mid-litigation tweaks with “more solicitude” than a

private defendant’s, as if politicians and bureaucrats

were somehow less inclined to dodge accountability by

manipulating jurisdiction than anyone else.1 Without

nominal damages, bureaucrats can trample constitutional freedoms, then deprive citizens of a way to

vindicate their rights. The Eleventh Circuit’s rule

slams the door on many civil-rights plaintiffs and

makes future challenges less likely.

This is particularly true for college students. At

graduation, their equitable claims evaporate, giving

them four to five years (at most) to obtain relief. And

when courts, like the district court, take more than a

year to rule on a motion to dismiss, that narrow

window of opportunity closes rapidly. Without

nominal damages, universities and schools can violate

students’ rights with impunity, without clarifying the

law, and with the cover of qualified immunity. This

Court should not allow that. Review is warranted for

three reasons.

E.g., Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990)

(“[C]essation of . . . allegedly illegal conduct by government officials has been treated with more solicitude by the courts than

similar action by private parties.”); Coral Springs St. Sys., Inc.

v. City of Sunrise, 371 F.3d 1320, 1328–29 (11th Cir. 2004)

(“[G]overnmental entities and officials have been given considerably more leeway than private parties in the presumption that

they are unlikely to resume illegal activities.”).

First, the circuits are now split into three camps

over whether standalone nominal-damages claims

preserve an ongoing controversy once later events

moot a plaintiff’s request for prospective equitable

relief. Six circuits—the Second, Fifth, Sixth, Seventh,

Ninth, and Tenth Circuits—hold that nominaldamages claims preserve a controversy. Two more,

the Fourth and Eighth, agree but also recognize a

limited exception: when the government changes an

unconstitutional policy before enforcing it against the

plaintiffs. The Eleventh Circuit alone holds that

plaintiffs can never pursue a standalone nominaldamages claim, even when an unconstitutional policy

has been enforced against them. Litigants in the

Eleventh Circuit have no way to adjudicate past

constitutional violations unless they can prove

compensatory damages.

Second, the Eleventh Circuit’s outlier rule conflicts with this Court’s precedent. According to the

Eleventh Circuit, nominal damages have no “practical

effect” on parties’ rights and obligations. But this

Court, when concluding that a nominal-damages

award confers prevailing-party status, has held that

nominal damages “materially alter[ ] the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the

plaintiff,” Farrar v. Hobby, 506 U.S. 103, 111–12

(1992), deterring colleges from recycling bad policies.

And this Court has also recognized the important

power to “vindicate[ ] deprivations of certain ‘absolute’ rights . . . through the award of a nominal sum

of money.” Carey v. Piphus, 435 U.S. 247, 266 (1978).

The Eleventh Circuit’s nominal-damages rule diminishes constitutional rights and cannot be squared

with this Court’s precedents.

Third, this case is an excellent vehicle to affirm the

indispensable role of nominal damages. The facts are

undisputed, and the legal issue is cleanly presented.

The university speech context—where nominal

damages play an essential role because of student

graduations, frequent policy changes, and the all-toocommon absence of financial loss—is an ideal backdrop for resolving the question presented. And the

error below is especially troubling because the Eleventh Circuit has done what no other circuit has:

declared that a standalone nominal-damages claim

cannot preserve a challenge to the past unconstitutional enforcement of a government policy. Review is

warranted.

The Eleventh Circuit’s decision exacerbates a circuit conflict.

The Eleventh Circuit’s ruling deepens an existing

circuit split. When the en banc Eleventh Circuit

decided Flanigan’s, it recognized that its holding

created a split with many other circuits over whether

a nominal-damages claim saves a case from mootness.

868 F.3d at 1265, 1267 n.19. Accord id. at 1271

(Wilson, J. dissenting). But Flanigan’s involved an

unconstitutional policy that government officials

changed (in response to litigation) without ever

having enforced it against the plaintiff or anyone else.

The Eleventh Circuit here went further and held that

even when bureaucrats have applied a policy and

violated a plaintiff’s constitutional rights, a nominaldamages claim is insufficient for the plaintiff to

vindicate the violation with a court ruling. In so holding, the Eleventh Circuit transformed what had been

a 6–3 circuit split, after Flanigan’s, into a 6–2–1 split,

with the Eleventh Circuit standing alone.

A. The Second, Fifth, Sixth, Seventh, Ninth,

and Tenth Circuits hold that standalone

nominal-damages claims avoid mootness.

Following the view of distinguished scholars, six

circuits hold that nominal-damages claims preserve a

live case or controversy once claims for prospective

equitable relief are moot. 13C WRIGHT & MILLER, FED.

PRAC. & PROC. JURIS. § 3533.3 (3d ed. 2018) (“Nominal

damages . . . suffice to deflect mootness.”).

Second Circuit. In a constitutional challenge to an

election law, the Second Circuit explained that “for

suits alleging constitutional violations under 42

U.S.C. § 1983, it is enough [to preclude mootness] that

the parties merely request nominal damages.” Van

Wie v. Pataki, 267 F.3d 109, 115 n.4 (2d Cir. 2001). In

fact, that court encouraged plaintiffs to “avoid the

potential for mootness by . . . expressly pleading . . .

nominal money damages.” Ibid. Accord Davis v. Vill.

Park II Realty Co., 578 F.2d 461, 463 (2d Cir. 1978)

(“The availability of . . . nominal . . . damages is

sufficient to prevent this case from becoming moot.”);

Flanigan’s, 868 F.3d at 1265 n.17 (en banc) (recognizing its decision conflicts with the Second Circuit).

The Second Circuit applies these principles to

college students. When students challenged restrictions on the student newspaper and interference in

student elections, the district court held their equitable claims moot. Husain v. Springer, 494 F.3d 108,

120 (2d Cir. 2007). On appeal, the students waived

those equitable claims, id. at 121 n.10, and sought

“only . . . nominal damages.” Id. at 135 n.17. The

Second Circuit entertained the claim and denied

defendants qualified immunity. Id. at 134.

Fifth Circuit. The Fifth Circuit agrees with the

Second. It reversed a district-court ruling dismissing

as moot a student’s case against her high school

because the school altered a challenged policy.

Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 744

(5th Cir. 2009). The court agreed the equitable claims

were moot, but it faulted the district court for ignoring

nominal damages. Id. at 748. After all, the Fifth

Circuit and its “sister circuits” have “consistently held

that a claim for nominal damages avoids mootness.”

Id. at 748 & n.32 (collecting cases). Accord Flanigan’s,

868 F.3d at 1265 n.17 (en banc) (recognizing its decision conflicts with the Fifth Circuit).

Similarly, the Fifth Circuit held that a student’s

graduation mooted her equitable claims against her

school, but not her claim for nominal damages—the

only kind of damages she sought. Brinsdon v. McAllen

Indep. Sch. Dist., 863 F.3d 338, 345 (5th Cir. 2017).

“The mootness doctrine,” the court explained, “will

not bar any claim for . . . nominal damages.” Ibid.

And after a Fifth Circuit decision mooted a high

school graduate’s nominal-damages claim contesting

a later-rescinded policy, Ward v. Santa Fe Indep. Sch.

Dist., 2002 WL 494510, *1 (5th Cir. Mar. 14, 2002)

(per curiam), the panel promptly corrected itself,

Ward v. Santa Fe Indep. Sch. Dist., 2002 WL 753502,

*1 (5th Cir. Apr. 9, 2002) (per curiam). Fifth Circuit

law authorizing plaintiffs to “seek nominal damages

for [constitutional] violation[s] in the absence of other

damages” “necessarily implie[s] that a case is not

moot so long as the plaintiff seeks to vindicate his

constitutional rights through a claim for nominal

damages.” Ibid. Accord Ward v. Santa Fe Indep. Sch.

Dist., 393 F.3d 599, 601–02 (5th Cir. 2004).

Sixth Circuit. In Murray v. Board of Trustees,

University of Louisville, 659 F.2d 77 (6th Cir. 1981), a

fired student-newspaper editor sued his university,

raising First Amendment claims and seeking “injunctive relief and money damages.” Id. at 78. The district

court dismissed the case after the request for injunctive relief became moot and the plaintiff failed to

prove “actual damages for the firing.” Ibid. On appeal,

the Sixth Circuit agreed that the injunctive claim was

moot and that the “plaintiff failed to prove actual

damages.” Id. at 78–79. But the Sixth Circuit

reversed the dismissal of the “entire” case “as moot”

because the district court still needed to resolve

“plaintiff’s claims for nominal damages.” Id. at 79.

The court remanded for consideration of the nominaldamages claim. Ibid.

The Sixth Circuit has created some ambiguity

about nominal damages and standing. It once found

no standing for a plaintiff challenging a high school

speech policy when the government had not enforced

the policy against him, and the only alleged injury

was subjective chill. Morrison v. Bd. of Educ. of Boyd

Cty., 521 F.3d 602, 608 (6th Cir. 2008). But shifting

from standing to mootness, the court clarified that its

circuit precedent allows “nominal-damages claim[s] to

go forward in . . . otherwise-moot case[s].” Id. at 611.

Since then, the Sixth Circuit has reiterated that

nominal-damages claims for past constitutional violations are not moot, even when the challenged policy

changes. E.g., Miller v. City of Cincinnati, 622 F.3d

524, 533 (6th Cir. 2010) (“[P]laintiffs’ claims remain

viable to the extent that they seek nominal damages

as a remedy for past wrongs.”).

Seventh Circuit. The Seventh Circuit also allows

plaintiffs to litigate standalone nominal-damages

claims after injunctive relief is no longer available. In

Crue v. Aiken, 370 F.3d 668, 674 (7th Cir. 2004), the

district court awarded declaratory relief and nominal

damages to professors and a graduate teaching assistant who challenged restrictions on their speech. Id.

at 677. On appeal, the Seventh Circuit ruled that the

school’s removal of the speech restraints mooted

injunctive relief, but that “the requests for declaratory relief and for [nominal] damages remain,” keeping the case alive. Ibid. And in another case, the

Seventh Circuit ruled for a prisoner plaintiff because

nominal damages remained available even though

injunctive relief was “rendered moot by his release

from prison” and governing statutes foreclosed

compensatory and punitive damages. Koger v. Bryan,

523 F.3d 789, 803–04 (7th Cir. 2008).

Ninth Circuit. The Ninth Circuit also embraces

the rule that a nominal-damages claim alone avoids

mootness. In C.F. ex rel. Farnan v. Capistrano Unified

School District, 654 F.3d 975, 982–84 (9th Cir. 2011),

a student challenged his high school teacher’s in-class

comments. While the student’s graduation mooted his

claims for equitable relief, the Ninth Circuit ruled

that his nominal-damages claim was viable because a

“live claim for even nominal damages will prevent

dismissal for mootness.” Id. at 983 (cleaned up).

Accord Jacobs v. Clark Cty. Sch. Dist., 526 F.3d 419,

425–27 (9th Cir. 2008) (although students challenging a school policy “may be entitled to collect only

nominal damages were they to succeed on their free

speech claims, they nonetheless present[ed] justiciable challenges” to the policy).

The Ninth Circuit similarly allowed a state

employee who brought constitutional claims against a

workplace speech policy to continue her case even

after she left state employment. Yniguez v. Arizona,

975 F.2d 646, 647 (9th Cir. 1992) (per curiam).

“Although the plaintiff may no longer be affected by

the [policy],” said the court, “that d[id] not render her

action moot.” Ibid. Her “constitutional claims may

entitle her to an award of nominal damages,” and the

“pursuit of nominal damages . . . prevents mootness.”

Ibid. Accord Bernhardt v. Cty. of L.A., 279 F.3d 862,

871–73 (9th Cir. 2002) (while plaintiff’s “claims for

prospective relief” against a challenged government

policy “are moot,” “her possible entitlement to nominal damages creates a continuing live controversy”);

Flanigan’s, 868 F.3d at 1265 n.17 (en banc) (acknowledging its decision conflicts with the Ninth Circuit).

Like the Fifth Circuit, the Ninth has rejected

Flanigan’s nominal damages rule as error. A panel

once dismissed a RLUIPA appeal as moot after the

plaintiff church moved. Praise Christian Ctr. v. City

of Huntington Beach, 352 F. App’x 196, 198 (9th Cir.

2009). On rehearing, the court corrected itself, holding that a “claim for nominal damages creates the

requisite personal interest necessary to maintain a

claim’s justiciability.” Ibid.

Tenth Circuit. The Tenth Circuit confirms that “a

complaint for nominal damages survives mootness

even where prospective relief is no longer available.”

Baca v. Colo. Dep’t of State, 935 F.3d 887, 924 (10th

Cir. 2019), cert. granted, __ S. Ct. __, 2020 WL 254162

(Jan. 17, 2020) (No. 19-518). Consider Committee for

First Amendment v. Campbell, 962 F.2d 1517 (10th

Cir. 1992), where an association of students requested

damages and equitable relief when challenging a

university’s decision to censor a controversial film. Id.

at 1519–20. The university later changed course,

allowed the film, and adopted new policies, mooting

equitable relief. Id. at 1524–26. Those actions did not

“erase[ ] the slate” of “alleged First Amendment

violations in connection with the film.” Id. at 1526.

“[T]he district court erred in dismissing the nominal

damages claim which relates to past (not future)

conduct.” Id. at 1526–27.

In another case, the Tenth Circuit held that

removing an allegedly unconstitutional statue from

campus mooted the plaintiffs’ equitable claims, but

not their request for nominal damages. O’Connor v.

Washburn Univ., 416 F.3d 1216, 1221–22 (10th Cir.

2005). “Unlike the claims for injunctive and declaratory relief,” the nominal-damages claim—the only

remaining claim in the case—was “not mooted by the

removal of the statue from campus.” Id. at 1222. Similarly, the Tenth Circuit adjudicated the free-speech

claims of a high school valedictorian, though her graduation speech was completed and “[o]nly [her] claim

for nominal damages . . . remain[ed].” Corder v.

Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1225

(10th Cir. 2009). Accord O’Connor v. City & Cty. of

Denver, 894 F.2d 1210, 1216 (10th Cir. 1990) (nominal

damages—the only relief still available—“were past

damages not affected by any changes in the [law]”).

While the Tenth Circuit’s rule on nominal damages and mootness is unambiguous and unbroken, it

has sparked debate among some on that court.

Compare Utah Animal Rights Coal. v. Salt Lake City

Corp., 371 F.3d 1248, 1262–71 (10th Cir. 2004)

(McConnell, J., concurring) (questioning the Tenth

Circuit’s rule while recognizing its consistency with

“the views of a distinguished commentator”), with id.

at 1271–75 (Henry, J., concurring) (defending the

rule). In fact, one (now former) Tenth Circuit judge

called for this Court to “examine the question”

whether nominal-damages claims, by themselves,

prevent a case from becoming moot. Id. at 1271

(McConnell, J., concurring). This Court should grant

the petition and provide the guidance lower courts are

seeking in situations where government officials

change a policy to avoid liability, and the plaintiff

continues to pursue a ruling vindicating the violation

of constitutional rights.2

B. The Fourth and Eighth Circuits hold that

standalone nominal-damages claims

avoid mootness unless the challenged

policy was never enforced against the

plaintiff.

The Fourth and Eighth Circuits agree with the

general rule that a standalone nominal-damages

claim keeps a case alive once prospective equitable

relief is no longer available. But those circuits have

recognized a narrow exception: nominal damages

alone cannot preserve a challenge to a rescinded law

or policy when the government never enforced it

against the plaintiffs.

It does not appear that the Third Circuit has squarely

addressed whether a nominal-damages request—standing

alone—can preserve a case once equitable relief is moot. The

closest that court came to addressing that issue was when it held

that even though later events mooted a prisoner’s “claims for

declaratory and injunctive relief,” his remaining claims for

nominal and punitive damages kept the case alive. Doe v. Delie,

257 F.3d 309, 314 & n.3 (3d Cir. 2001).

Fourth Circuit. The Fourth Circuit generally

allows a standalone nominal-damages claim to preserve justiciability. In a case reminiscent of this one,

that court relied on a nominal-damages claim in

allowing two students to continue their challenge to

university policies after the policies changed and the

students graduated. Mellen v. Bunting, 327 F.3d 355,

363–65 (4th Cir. 2003). The Fourth Circuit ruled that

the students’ standalone nominal-damages claim

“continue[d] to present a live controversy,” id. at 365,

and considered the merits, id. at 365–77. Accord

Henson v. Honor Comm. of Univ. of Va., 719 F.2d 69,

72 n.5 (4th Cir. 1983) (expelled student’s case

“remained a live controversy even after the disciplinary proceedings were dropped” because he had a

“right to seek . . . nominal damages”).3

The Fourth Circuit applied these principles when

commercial property owners brought free-speech

claims against a sign ordinance. Cent. Radio Co. v.

City of Norfolk, 811 F.3d 625, 631–32 (4th Cir. 2016).

Although the city’s changes to its ordinance mooted

an injunction request, the “request for retrospective

relief in the form of nominal damages, based on an

alleged unconstitutional . . . restriction on speech”—

the only remaining relief that the plaintiffs

requested—was “not moot.” Id. at 632.

3 Accord Am. Humanist Ass’n v. Greenville Cty. Sch. Dist., 652 F.

App’x 224, 228, 231 (4th Cir. 2016) (graduate “typically continues

to have a live claim for damages against a school for a past constitutional violation” and “claim for nominal damages based on a

prior constitutional violation is not moot because the plaintiffs’

injury was complete at the time the violation occurred”); Rock for

Life-UMBC v. Hrabowski, 411 F. App’x 541, 550 (4th Cir. 2010)

(“[E]ven permanent remedial measures will not moot the [student

organization’s compensatory or nominal damages] claim.”).

The Fourth Circuit, in an unpublished decision,

has recognized a narrow exception to the general rule.

Chapin Furniture Outlet Inc. v. Town of Chapin, 252

F. App’x 566, 571–72 (4th Cir. 2007) (per curiam).

Ruling on a store’s free-speech challenge to a sign

ordinance, the court started with the “normal[ ]” rule

that “a defendant’s change in conduct will not moot

the case” “so long as the plaintiff has a cause of action

for damages,” even just “nominal damages.” Id. at

571. But the Fourth Circuit held that the plaintiff’s

“assertion of a nominal damages claim alone is insufficient to preserve a live controversy” because “the

[o]rdinance was never enforced against it.” Ibid.

Eighth Circuit. The Eighth Circuit follows that

same approach. When the government “remedie[s]”

flaws in its policies after suit is filed, those remedial

efforts “moot any claim for injunctive relief,” but the

entire case is “not moot” if the plaintiff maintains a

claim for “nominal damages.” Advantage Media, LLC

v. City of Eden Prairie, 456 F.3d 793, 803 (8th Cir.

2006). Accord Flanigan’s, 868 F.3d at 1265 n.17 (en

banc) (recognizing that its decision conflicts with the

Eighth Circuit).

And in another case, the Eighth Circuit ruled that

while a policy change mooted a prisoner’s request for

prospective equitable relief, it “did not deprive [him]

of the opportunity to seek monetary damages for prior

violations of his constitutional rights.” Keup v. Hopkins, 596 F.3d 899, 904 (8th Cir. 2010). Although the

plaintiff there at first sought compensatory and punitive damages, id. at 902, the district court awarded

only nominal damages, id. at 903. Because the plaintiff did not appeal the denial of compensatory and punitive damages, only nominal damages were at issue

on appeal.

But the Eight Circuit, like the Fourth, has recognized that nominal damages do not prevent mootness

when the government defendants have never enforced

the challenged law against the plaintiff. For example,

the Eighth Circuit held that a request for nominal

damages did not allow protesters to contest the prior

version of a speech ordinance in a city where they

never engaged in their protest activities and were

never prosecuted. Phelps-Roper v. City of Manchester,

697 F.3d 678, 684, 687 (8th Cir. 2012).

C. The Eleventh Circuit’s outlier view

holds that standalone nominal-damages

claims do not prevent mootness, even in

a challenge to past enforcement of a

policy against the plaintiff.

Eleventh Circuit law on nominal damages and

mootness has morphed. With each step, its position

becomes more extreme, and it closes the door on more

plaintiffs seeking to vindicate their constitutional

rights. This Court should use this case to realign not

only the Eleventh, but all the courts of appeal.

Just a few years ago, the Eleventh Circuit followed

the prevailing view. In Carver Middle School GayStraight Alliance v. School Board of Lake County, 842

F.3d 1324 (11th Cir. 2016), after a middle school

denied a student’s request to form an LGBT group,

the student and group sued seeking equitable relief

and nominal damages. Id. at 1328, 1330. When the

student left the school, his equitable claims became

moot, but his “demands for nominal damages” did not.

Id. at 1330. Accord Covenant Christian Ministries,

Inc. v. City of Marietta, 654 F.3d 1231, 1244 (11th Cir.

2011) (though injunctive relief was moot, case was not

because plaintiffs requested nominal damages).

The year after, the en banc Eleventh Circuit in

Flanigan’s drastically shifted the circuit’s default

rule. There, businesses challenged an ordinance

prohibiting the sale of sexual devices, before the law

was enforced against them. Flanigan’s, 868 F.3d at

1253 (en banc). After an Eleventh Circuit panel ruled

for the city, the court granted en banc review, putting

the city on the defensive and prompting it to repeal

the ordinance. Id. at 1254. The city then argued the

case was moot, and the court agreed. Id. at 1253–54.

After concluding that the plaintiffs’ requests for

equitable relief were moot, id. at 1255–63, the court

held that their nominal-damages claim was of no

effect, id. at 1263–70. No longer a well-accepted

remedy that preserves justiciability when government defendants change contested laws or policies, “a

prayer for nominal damages will not save [such a]

case from dismissal,” the Eleventh Circuit held. Id. at

1264. The Eleventh Circuit admitted that “the circuit

courts that have reached this issue have taken a position contrary to” what Flanigan’s announced, id. at

1267 n.19, citing cases from five circuits to show the

conflict, id. at 1265 n.17.

Judge Wilson penned a five-judge dissent. Id. at

1271–75. He began by citing case law from seven

circuits whose views contradicted the majority’s new

rule. Id. at 1271. He then explained that the majority’s holding conflicts with this Court’s precedent, id.

at 1272–73; is “unworkable” in that it undermines the

purpose of nominal damages, id. at 1272–74; and

ignores the “practical effect” that nominal damages

have “on the parties’ rights [and] obligations,” id. at

1274–75. “Under the majority opinion,” “the government gets one free pass at violating your constitutional rights.” Id. at 1275.

Any hope that the Eleventh Circuit would quickly

cabin or correct Flanigan’s vanished here. While the

government defendants in Flanigan’s never enforced

the law against the plaintiffs, Respondents have twice

enforced the challenged policies against Chike. Had

the Eleventh Circuit held that Chike’s and Joseph’s

nominal-damages claims preserve their challenge to

Respondents’ past enforcement of the policies, the

court could have at least aligned itself with the

Fourth and Eighth Circuits. It could have limited

Flanigan’s rule to cases in which government defendants have never enforced the challenged law or policy

against the plaintiffs. Instead, the Eleventh Circuit

adopted an extreme position that leaves no judicial

forum for many plaintiffs, such as the college students

here, who have suffered an actual violation of their

constitutional rights.

In sum, the Eleventh Circuit is the lone outlier in

a deep, three-way circuit conflict over an important

issue about access to justice. In eight circuits, Chike’s

and Joseph’s nominal-damages claims would have

kept this case alive. Only the Eleventh Circuit maintains a position that allows government officials to

evade accountability for their misconduct and closes

federal courts to many citizens who seek to vindicate

their priceless constitutional rights. This Court

should grant review and resolve the circuit conflict.

II.

The Eleventh Circuit’s ruling conflicts with

this Court’s precedent on nominal damages.

For over four decades, this Court has affirmed the

importance, role, and effect of nominal damages. The

Eleventh Circuit has sidestepped and diminished

these rulings. Because that court’s position conflicts

with this Court’s precedent, review is needed.

A. Unlike the Eleventh Circuit, this Court

has ruled that nominal damages have

significant practical effects.

Courts have long recognized the importance of

awarding nominal damages for the violation of

private legal rights. E.g., Robinson v. Lord Byron, 2

Cox 4, 30 Eng. Rep. 3, 3 (1788) (awarding nominal

damages where plaintiff provided invasion of riparian

rights but did not offer proof of damages); Webb v.

Portland Mfg., 29 F. Cas. 506, 508 (Story, Circuit

Justice, C.C.D. Me. 1838) (No. 17,322) (if there has

been a violation of a right, “the party injured is entitled to maintain his action for nominal damages, in

vindication of his right, if no other damages are fit

and proper to remunerate him.”); 1 J.G. SUTHERLAND,

A TREATISE ON THE LAW OF DAMAGES §§ 9–10 (John R.

Berryman ed., 4th ed. 1916) (collecting hundreds of

cases awarding nominal damages in response to a

violation of rights).

Thus, in Carey v. Piphus, 435 U.S. 247 (1978), this

Court held that plaintiff students pursuing a § 1983

action after a school suspension could pursue a

nominal-damages claim for the deprivation of their

constitutional rights “[e]ven if [the] suspensions were

justified, and even if [plaintiffs] did not suffer any

other actual injury.” Id. at 266–67. “By making the

deprivation of [absolute] rights actionable for nominal

damages without proof of actual injury, the law recognizes the importance to organized society that those

rights be scrupulously observed.” Id. at 266. Later,

the Court held that the same reasoning applies to

other individual constitutional rights, including those

in the First Amendment. E.g., Memphis Cmty. Sch.

Dist. v. Stachura, 477 U.S. 299, 305–08 & n.11 (1986)

(free speech).

So when the Eleventh Circuit held that the “right

to a single dollar in nominal damages is not the type

of ‘practical effect’ that should, standing alone,” keep

a case from becoming moot, Flanigan’s, 868 F.3d at

1270 (en banc), the dissent said this conclusion was

“difficult, if not impossible, to square with” Farrar v.

Hobby, 506 U.S. 103 (1992), Flanigan’s, 868 F.3d at

1274 n.4 (Wilson, J., dissenting). In Farrar, a jury

found that a government official violated a citizen’s

rights but awarded him no relief. 506 U.S. at 106–07.

The Fifth Circuit remanded for entry of a nominaldamages award. Id. at 107. After the district court did

that and granted attorney fees to plaintiffs, the Fifth

Circuit held that the plaintiffs did not prevail because

“the jury gave them nothing. No money damages. No

declaratory relief. No injunctive relief.” Ibid. In its

view, the “nominal award of one dollar . . . did not in

any meaningful sense change the legal relationship”

between the parties. Ibid. It was too “technical” and

“insignificant” a victory “to support prevailing party

status.” Id. at 108.

This Court reversed, holding that “a plaintiff who

wins nominal damages is a prevailing party.” Id. at

112. That is, such a plaintiff obtains “actual relief on

the merits of his claim materially alter[ing] the legal

relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the

plaintiff.” Id. at 111–12. “A judgment for damages in

any amount, whether compensatory or nominal, modifies the defendant’s behavior for the plaintiff’s benefit

by forcing the defendant to pay an amount of money he

otherwise would not pay.” Id. at 113 (emphasis

added). Unlike the Eleventh Circuit, this Court recognized the importance—and deterrent effect—of judgments awarding nominal damages.

The Eleventh Circuit would have resolved Farrar

the opposite way. After the jury verdict, the Eleventh

Circuit would have mooted the case because only

nominal damages remained. Yet the Fifth Circuit and

this Court exercised jurisdiction over the standalone

nominal-damages claim in Farrar. Likewise, the

Eleventh Circuit would have withheld prevailingparty status because nominal damages have no “practical effect.” Flanigan’s, 868 F.3d at 1269–70 (en

banc). But this Court conferred that status because

nominal damages have the practical effect of

“modif[ying] the defendant’s behavior for the plaintiff’s benefit by forcing the defendant to pay” and—as

in Carey—upholding the “scrupulous[ ]” observance

of constitutional rights so “importan[t] to organized

society.” Farrar, 506 U.S. at 112–13.

Citing Flanigan’s, the Eleventh Circuit here

denied that a nominal-damages award would have “a

practical effect on” Chike’s or Joseph’s “rights or obligations.” App.19–21a. But as Farrar recognized,

nominal damages would have modified Respondents’

behavior by forcing them to pay money to the

students. 506 U.S. at 113. And a nominal-damages

award—with its accompanying judgment holding that

Respondents violated Chike’s and Joseph’s First

Amendment rights—would prevent Respondents

from “reenacting” the policies and enforcing them as

they did here. Flanigan’s, 868 F.3d at 1275 (Wilson,

J., dissenting). “That is a practical effect on [Respondents’] obligations sufficient to save the case from

mootness,” ibid., one that flows from a formal recognition that the College wronged Chike and Joseph.

Nominal-damages claims are critical to protect

constitutional freedoms and to confer prevailingparty status. They must be justiciable.

B. Unlike the Eleventh Circuit, this Court

has ruled that nominal-damages claims

vindicate priceless freedoms.

This Court has recognized that under both the

common law and our constitutional traditions, nominal damages ensure that government officials respect

priceless freedoms, even when their violation does not

inflict financial injury. In stark contrast, the Eleventh

Circuit sees no value in nominal-damages claims,

rending those claims worthless.

When the students in Carey challenged the lack of

due process their school provided them before imposing discipline, this Court confirmed that “[c]ommonlaw courts traditionally have vindicated deprivations

of certain ‘absolute’ rights,” including constitutional

rights, “through the award of a nominal sum of

money.” Carey, 435 U.S. at 266 & n.24.

Nearly ten years later, in another school case, this

Court reiterated that while compensatory damages

require “proof of actual injury,” “nominal damages . . .

are the appropriate means of ‘vindicating’ [constitutional] rights whose deprivation has not caused

actual, provable injury.” Stachura, 477 U.S. at 308 &

n.11. Awarding nominal damages when a plaintiff

suffers no monetary loss is essential to “recognize[ ]

the importance to organized society that those rights

be scrupulously observed.” Id. at 308 n.11.

The Eleventh Circuit tries to sidestep these cases

by saying they involved “a live claim for actual

damages,” Flanigan’s, 868 F.3d at 1265–66 & n.18—

as though actual damages are a necessary predicate

to make constitutional freedoms meaningful. But that

reading does not square with what this Court said in

Carey and Stachura. While the plaintiffs in those

cases did seek compensatory damages with nominal

damages, nowhere in the opinions did this Court even

hint that nominal damages remained live only

because compensatory claims were also sought. To the

contrary, this Court instructed in Carey that “if, upon

remand, the District Court determines that [the

plaintiffs’] suspensions were justified, [they] nevertheless will be entitled to recover nominal damages”

even if they fail to prove their compensatory damages.

435 U.S. at 267. Accord Farrar, 506 U.S. at 105.

The Eleventh Circuit’s novel approach also invites

“jurisdictional manipulation.” Flanigan’s, 868 F.3d at

1272 (Wilson, J., dissenting). If the Carey plaintiffs

could not prove compensatory damages, they could

have pled them anyway to bootstrap their nominaldamages claim. Or if a plaintiff seeks injunctive relief

and nominal damages against a government defendant, the government can escape liability simply by

changing an unconstitutional policy.

The Eleventh Circuit’s rule also creates unjustifiable inconsistencies. A student who suffers a constitutional violation but cannot in good faith allege any

compensable loss could not litigate a nominaldamages claim. But a student who endures the same

constitutional violation may raise a nominal-damages

claim if he experienced any economic injury, no

matter how trifling.

So if a university violates the free-speech rights of

two similarly-situated students by unconstitutionally

forcing them into a speech zone, the one who paid a

few dollars in gas to drive to the zone can seek vindication through a court judgment while the one who

walked to the zone cannot. Cf. United States v.

Students Challenging Regulatory Agency Procedures,

412 U.S. 669, 689 n.14 (1973) (“[A]n identifiable

trifle,” such as a $1.50 tax or $5.00 fine, “is enough for

standing to fight out a question of principle”).

The Eleventh Circuit suggests that a standalone

request for nominal damages cannot preserve justiciability because nominal damages are so small. Flanigan’s, 868 F.3d at 1270. But this Court has held that

even when plaintiffs’ claims for injunctive relief are

moot, their right to recover a “minute” amount of

compensatory damages keeps the case alive. Ellis v.

Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers,

Express & Station Emps., 466 U.S. 435, 442 (1984).

Courts should treat a nominal-damages award no

differently. Indeed, the priceless constitutional freedoms at issue here are far more valuable than the

“undeniably minute” dollar damages that the plaintiffs recovered in Ellis. Ibid.

III. This case is an ideal vehicle to address the

relationship between nominal damages

and mootness, an issue with serious ramifications for students and other civil rights

plaintiffs.

This case is an excellent vehicle to decide whether

a standalone nominal-damages claim keeps a case

alive after later events moot a plaintiff’s request for

prospective equitable relief. Six factors highlight this.

First, the record cleanly frames the question

presented. The facts are not disputed because the

district court ruled on a motion to dismiss. All the

facts in the complaint must be accepted as true, and

those facts state a claim for constitutional violations.

United States’ Statement of Interest at 9, No. 1:16-cv04658, Sept. 26, 2017, ECF No. 37 (“[T]he United

States is satisfied . . . that Plaintiffs have stated

claims for violations of the First and Fourteenth

Amendments.”); App.162a. No one disputes that

Chike and Joseph seek nominal damages. App.15a;

App.133a. And they have not appealed the ruling that

their request for prospective equitable relief is moot.

Nor are Chike and Joseph contesting the lower court’s

determination that they did not request compensatory damages. The only question is clean and purely

legal: Are standalone nominal-damages claims moot?

Second, a lawsuit against a college’s policy abridging free speech is an ideal context to consider the

mootness of nominal-damages claims. Student plaintiffs are particularly vulnerable under the Eleventh

Circuit’s rule. Their claims for prospective equitable

relief are highly susceptible to mootness because students graduate and colleges often change offending

policies when sued. Nor are students likely to suffer

compensable harm from speech-suppressing policies,

so they must rely on nominal-damages claims. If

standalone nominal-damages claims cannot keep a

case like this alive, students will be all too often left

with no way to challenge violations of their First

Amendment rights on campus. That will lead to fewer

suits and more frequent constitutional violations.

Allowing standalone nominal-damages claims is the

only way to ensure that constitutional rights are

“scrupulously observed.” Carey, 435 U.S. at 266.

Third, the College officials’ actual enforcement of

the challenged policies against these students makes

this case an especially suitable vehicle. The ordinance

in Flanigan’s was never enforced, and the Fourth and

Eighth Circuits agree that nominal-damages do not

preserve justiciability under those circumstances. But

no circuit—save the Eleventh Circuit here—has held

that nominal-damages claims are moot even when

government defendants have already enforced a

contested law or policy against the plaintiff. The need

for nominal-damages claims is obvious in that context

because, without them, government defendants can

insulate already-completed constitutional violations

from judicial review. Facing this harsh consequence

head on is the best way to explore nominal damages’

crucial role in preserving justiciability.

Fourth, the facts involving Chike and Joseph are

different, which expands the options for deciding this

case and the guidance afforded lower courts. College

officials silenced Chike by enforcing their speech

policies against him; their actions chilled Joseph’s

speech. Addressing the nominal-damages claims of

both students—and their slightly different circumstances—will broaden the counsel that this Court gives

lower courts, making this a choice vehicle for review.

Fifth, the issue presented is not one where the

Court will benefit from further percolation. The en

banc Eleventh Circuit in Flanigan’s already chose to

set itself apart from other circuits, acknowledging

that it was creating a circuit conflict in so doing. By

denying en banc review here, the Eleventh Circuit

ensured that its nominal-damages approach would

not only remain in the minority, but would stand

apart even from the Fourth and the Eighth Circuits.

Last, this Court should act to prevent the Eleventh

Circuit’s rule from spreading. If students sue for

constitutional violations, officials can quickly tweak

their policies, mooting both prospective relief and

retrospective nominal damages. As a result, the law

is never clarified, and the cycle can repeat itself, both

on that campus and others. Should something interrupt this cycle, officials can still say the law was never

clear, giving them enough plausible deniability to

invoke qualified immunity. Immediate review is

needed.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

TYSON C. LANGHOFER

ALLIANCE DEFENDING FREEDOM

440 First Street, N.W., Ste. 600

Washington, D.C. 20001

(616) 450–4235

jbursch@ADFlegal.org

DAVID A. CORTMAN

TRAVIS C. BARHAM

ALLIANCE DEFENDING FREEDOM

1000 Hurricane Shoals Rd. N.E.,

Ste. D-1100

Lawrenceville, GA 30043

(770) 339–0774

JANUARY 2020

Counsel for Petitioners

APPENDIX

APPENDIX TABLE OF CONTENTS

United States Court of Appeals for the

Eleventh Circuit,

Opinion in 18-12676

Issued July 1, 2019 .................................................. 1a

United States District Court for the

Northern District of Georgia,

Judgment in 1:16-cv-04658

Issued May 25, 2018 .............................................. 20a

United States District Court for the

Northern District of Georgia,

Order Granting Motions to Dismiss

in 1:16-cv-04658

Issued May 25, 2018 .............................................. 22a

United States Court of Appeals for the

Eleventh Circuit,

Order Denying Petition for Rehearing En Banc

in 18-12676

Issued September 4, 2019 ...................................... 47a

United States Court of Appeals for the

Eleventh Circuit,

Order Denying Initial Hearing En Banc

in 18-12676

Issued February 21, 2019 ...................................... 50a

United States Court of Appeals for the

Eleventh Circuit,

Mandate in 18-12676

Issued September 12, 2019 .................................... 53a

U.S. Constitutional Provisions .............................. 55a

iia

United States District Court for the

Northern District of Georgia,

First Amended Verified Complaint

in 1:16-cv-04658

Filed February 15, 2017 ......................................... 56a

Excerpts from Georgia Gwinnett College’s

“At a Glance” Website, Containing the

College’s Speech Zone Policies

Filed as an Exhibit to the First Amended

Complaint on February 15, 2017 ......................... 137a

Georgia Gwinnett College’s

“Free Speech Area Request Form”

Filed as an Exhibit to the First Amended

Complaint on February 15, 2017 ......................... 142a

Excerpts from Georgia Gwinnett College’s

2016–2017 Student Handbook, Containing the

College’s Speech Zone and Speech Code Policies

Filed as an Exhibit to the First Amended

Complaint on February 15, 2017 ......................... 145a

Excerpts from Defendants’ Memorandum of Law

in Support of Motion to Dismiss

Filed in 1:16-cv-04658 on February 1, 2017........ 152a

Excerpts from U.S. District Court Docket

Northern District of Georgia

Case No. 1:16-cv-04658 ........................................ 157a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

______________

No. 18-12676

______________

D.C. Docket No. 1:16-cv-04658-ELR

CHIKE UZUEGBUNAM,

JOSEPH BRADFORD,

Plaintiffs–Appellants,

versus

STANLEY C. PRECZEWSKI,

President of Georgia Gwinnett College, in

his official and individual capacities,

LOIS C. RICHARDSON,

Acting Senior Vice President of Academic

and Student Affairs and Provost at Georgia

Gwinnett College, in her official and

individual capacities,

JIM B. FATZINGER,

Senior Associate Provost for Student Affairs

for Georgia Gwinnett College, in his official

and individual capacities,

TOMAS JIMINEZ,

Dean of Students at Georgia Gwinnett

College, in his official and individual

capacities,

AILEEN C. DOWELL,

Director of the Office of Student Integrity at

Georgia Gwinnett College, in her official

and individual capacities,

GENE RUFFIN,

Dean of Library Services at Georgia

Gwinnett College, in his official and

individual capacities,

CATHERINE JANNICK DOWNEY,

Head of Access Services and Information

Commons, in her official and individual

capacities,

TERRANCE SCHNEIDER,

Associate Vice President of Public Safety

and Emergency Preparedness/Chief of

Police at Georgia Gwinnett College, in his

official and individual capacities,

COREY HUGHES,

Campus Police Lieutenant at Georgia

Gwinnett College, in his official and

individual capacities,

REBECCA A. LAWLER,

Community Outreach and Crime

Prevention Sergeant at Georgia Gwinnett

College, in her official and individual

capacities,

SHENNA PERRY, Campus Safety/Security

Officer at Georgia Gwinnett College, in her

official and individual capacities,

Defendants–Appellees.

__________________________________________

Appeal from the United States District Court

for the Northern District of Georgia

__________________________________________

(July 1, 2019)

Before MARCUS and BLACK, Circuit Judges, and

RESTANI,* Judge.

PER CURIAM:

Appellants Chike Uzuegbunam and Joseph

Bradford, both students at Georgia Gwinnett College

(GGC) at the time they filed this lawsuit, sued multiple GGC officials, pursuant to 42 U.S.C. § 1983, asserting facial and as-applied challenges to the constitutionality of two policies included in GGC’s Student

Handbook: the “Freedom of Expression Policy” and

the “Student Code of Conduct” (the Prior Policies).

While the case was pending before the district court,

GGC revised both policies and Uzuegbunam graduated, rendering the claims for declaratory and injunctive relief moot. The district court dismissed the case

as moot, concluding Appellants’ claims for nominal

damages could not save their otherwise moot constitutional challenges to the Prior Policies. After review,

and with the benefit of oral argument, we affirm.

I. BACKGROUND

A. Factual Allegations in the First Amended

Complaint

In July 2016, Uzuegbunam began distributing religious literature in an open, outdoor plaza on GGC’s

campus. Shortly after he began these activities, he

was stopped by a member of Campus Police who explained Uzuegbunam was not allowed to distribute

religious literature (or any literature) at that location,

in accordance with GGC’s “Freedom of Expression

Policy.” Specifically, the policy stated students were

generally permitted to engage in expressive activities

* Honorable Jane A. Restani, Judge for the United States

Court of International Trade, sitting by designation.

only in two designated speech zones and often only after reserving them.

Some time later, Uzuegbunam reserved one of the

designated speech zones in order to distribute religious literature and speak to students about his religious beliefs. However, soon after Uzuegbunam began

speaking, a member of Campus Police approached

him and asked him to stop, explaining they had received “some calls” complaining about his speech. The

officer informed Uzuegbunam he had only reserved

the speech zone for certain specific purposes, not including “open-air speaking,” and that he was in

violation of GGC’s “Student Code of Conduct” because

his speech constituted “disorderly conduct.”

Given the warnings from GGC Campus Police and

the threat of disciplinary action, Uzuegbunam elected

to stop speaking entirely and leave the designated

speech zone. After this incident, neither Uzuegbunam

nor Bradford—another GGC student who shares

Uzuegbunam’s religious beliefs and desire to speak

publicly concerning those beliefs—have attempted to

speak publicly or distribute literature in any open,

outdoor, generally accessible areas of the GGC campus outside the two speech zones, nor have they engaged in any “open-air speaking” or other expressive

activities in the speech zones.

B. Requests for Relief in the First Amended

Complaint

In the section of the complaint entitled “Prayer for

Relief,” Appellants requested: (1) a declaratory judgment that the Speech Zone and Speech Code Policies,

facially and as-applied, violated their First and Fourteenth Amendment rights; (2) a declaratory judgment

that Appellees’ restriction of their literature distribution violated their First and Fourteenth Amendment

rights; (3) a declaratory judgment that Appellees’ restriction of their open-air speaking violated their First

and Fourteenth Amendment rights; (4) a preliminary

and permanent injunction prohibiting Appellees from

enforcing the challenged policies; (5) nominal damages;

(6) reasonable costs and attorneys’ fees; and (7) “[a]ll

other further relief to which [they] may be entitled.”

Additionally, at the end of each of the four sections

describing the individual causes of action, Appellants

asserted “they [were] entitled to an award of monetary damages and equitable relief.” They also stated

they were “entitled to damages in an amount to be determined by the evidence and this Court.”

C. The Motions to Dismiss

Appellees filed a motion, pursuant to Fed. R. Civ.

P. 12(b)(6), to dismiss the First Amended Complaint

for failure to state a claim. While that motion was

pending, GGC revised its “Freedom of Expression Policy” such that students would be permitted to speak

anywhere on campus without having to obtain a permit except in certain limited circumstances. GGC also

removed the challenged portion of its “Student Code

of Conduct.” Both revised policies superseded the

Prior Policies and have been in full force and effect

since February 28, 2017.

As a result of these changes to the Prior Policies,

Appellees filed a motion to dismiss the First Amended

Complaint as moot. Approximately one year later, the

district court having taken no action on the pending

motions, Appellees filed a supplemental brief on the issue of mootness. Specifically, Appellees apprised the

district court of two significant developments: (1)

Uzuegbunam’s graduation from GGC; and (2) this

Court’s decision in Flanigan’s Enterprises, Inc. of Georgia v. City of Sandy Springs, 868 F.3d 1248 (11th Cir.

2017) (en banc), in which we held a prayer for nominal

damages generally will not save an otherwise moot

challenge to an allegedly unconstitutional policy or law.

In their response to Appellees’ supplemental brief,

Appellants insisted that, even assuming their claims

for declaratory and injunctive relief were moot, a live

controversy remained ongoing, in part because the

First Amended Complaint, properly construed in

their favor, in fact included a request for compensatory damages. At the end of their response, they indicated that, if the district court disagreed, they should

be permitted to amend their complaint to “clarify[]”

their request for damages. Such a clarification, they

assured the court, “would be simple, would pose no

prejudice, and would allow this dispute to be decided

on the merits, rather than technicalities.”

D. The District Court’s Order

The district court granted both of Appellees’ motions to dismiss, though it based its decision entirely

on mootness and did not address whether the First

Amended Complaint otherwise stated a claim on

which relief could be granted. The court concluded

Uzuegbunam’s graduation had mooted his claims for

declaratory and injunctive relief, and GGC’s revised

policies mooted Bradford’s claims. Specifically, the

court concluded GGC had “unambiguously terminated the Prior Policies and there is no reasonable basis to expect that it will return to them.”1

1 The district court engaged in a lengthy analysis concerning

whether GGC’s change in its policies in fact rendered Bradford’s

The court then turned to whether the remaining

damages claim was “sufficient to support standing and

save this case.” The court ultimately concluded Appellants sought only nominal damages, rejecting what it

characterized as their “after-the-fact contentions” that

they in fact sought compensatory damages. Applying

Flanigan’s, the district court then concluded such a

claim for nominal damages could not save the otherwise moot complaint, rejecting Appellants’ contentions

that their case was distinguishable from Flanigan’s or

fell within any of the exceptions discussed in, or contemplated by, our opinion in that case.

Finally, the court denied Appellants’ request for

leave to amend their complaint on the ground it was

not procedurally proper to seek leave to amend

through a response to a motion to dismiss. The court

agreed to dismiss the claims without prejudice, but it

declined to “go as far as to direct the [Appellants] to

file a motion for leave to amend,” noting it was “up to

[Appellants] to decide how to litigate their case.”

On the same day the district court entered its order, the clerk entered judgment in favor of Appellees,

dismissing the action without prejudice. The instant

appeal followed.

II. DISCUSSION

We review the dismissal of a case for mootness de

claims for declaratory and injunctive relief moot, applying the

three-part test this Court identified in Flanigan’s. Appellants do

not challenge this portion of the district court’s analysis on appeal. That is, they do not contest the district court’s conclusion

that their claims for injunctive and declaratory relief are moot.

As such, we will not address this portion of the district court’s

analysis here.

novo. Flanigan’s, 868 F.3d at 1255. Appellants raise

three issues on appeal concerning the district court’s

dismissal of the First Amended Complaint. First, they

argue the district court erred in concluding the First

Amended Complaint did not include a request for

compensatory damages. Second, they argue that,

even assuming the First Amended Complaint included only a request for nominal damages, this case

is distinguishable from Flanigan’s and dismissal was

not required. Finally, they argue we should reverse

the district court’s dismissal on the ground it abused

its discretion when it denied them the opportunity to

amend their complaint to add an explicit request for

compensatory damages.2 We will address each argument in turn.

A. Damages Allegations in the First Amended

Complaint

Appellants assert the district court erred in concluding their amended complaint did not request compensatory damages because the court (1) construed

the complaint against them, and (2) focused solely on

the prayer for relief, rather than considering the complaint as a whole.

As Appellants note, at the motion to dismiss stage,

the district court was required to “accept[] the complaint’s allegations as true and constru[e] them in the

2 Appellants also argue extensively that Flanigan’s was

wrongly decided. However, “[u]nder the prior precedent rule, we

are bound to follow a prior binding precedent ‘unless and until it

is overruled by this Court en banc or by the Supreme Court.’”

United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.

2008) (quoting United States v. Brown, 342 F.3d 1245, 1246

(11th Cir. 2003)). Accordingly, we limit our review to whether

the district court properly applied Flanigan’s when it dismissed

the First Amended Complaint as moot.

light most favorable to [Appellants].” Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012) (internal quotation marks omitted). They contend the

district court failed to do so when it construed the allegations that they were entitled to “monetary damages” and “damages in an amount to be determined by

the evidence and this Court” against them by concluding those phrases referred solely to nominal damages.

The district court did, as Appellants note, acknowledge the somewhat ambiguous nature of the term

“monetary damages” and of Appellants’ requests for

“damages in an amount to be determined by the evidence and this Court” and “[a]ll other further relief to

which [they] may be entitled.” But the court did not

then, as Appellants contend, arbitrarily construe

those admittedly ambiguous phrases against them.

Instead, it viewed the allegations in the context of the

rest of the complaint and concluded Appellants could

not have been requesting compensatory damages. We

agree with that assessment.

In particular, the district court looked to the

prayer for relief—which requested only nominal damages in addition to injunctive and declaratory relief—

and to the factual allegations in the complaint. As to

the latter, the court correctly noted that “compensatory damages in a § 1983 suit [must] be based on actual injury caused by the defendant rather than on

the ‘abstract value’ of the constitutional rights that

may have been violated.” Slicker v. Jackson, 215 F.3d

1225, 1230 (11th Cir. 2000). Such “actual injury” can

include monetary loss, physical pain and suffering,

mental and emotional distress, impairment of reputation, and personal humiliation. Id. at 1231.

10a

But Appellants did not allege they suffered any actual injury, instead resting their complaint—and request for damages—on the abstract injury suffered as

the result of the violation of their constitutional rights.

In fact, the First Amended Complaint mentions “injury” only twice, and in neither instance does it specify

what the injury was. It also states, at the conclusion

of each cause of action, that Appellants “suffered, and

continue to suffer, irreparable harm,” though, again,

without specifying what that harm was.

On appeal, Appellants insist, largely through oral

argument, that Uzuegbunam, at least, suffered any

number of concrete injuries as a result of Appellees’

enforcement of the Prior Policies, including loss of

time and money traveling to GGC’s campus to speak,

as well as harm to his reputation and personal humiliation stemming from the actions taken by GGC officials to stop him from speaking. However, Appellants

never identified these injuries to the district court,

resting instead on their argument that the district

court should broadly construe their vague requests for

monetary damages as including unspecified compensatory damages, and they make only passing reference in their brief on appeal to the reputational harm

suffered by Uzuegbunam. As a result, these arguments are not properly before us, as they were not

raised in the district court or, indeed, properly briefed

on appeal. See Hurley v. Moore, 233 F.3d 1295, 1297

(11th Cir. 2000) (“Arguments raised for the first time

on appeal are not properly before this Court.”). Because these injuries were not specifically pled in the

complaint or articulated to the district court, we cannot fault the court for failing to infer these injuries

from the other allegations in the complaint.

Thus, this is not a case in which the court took

11a

phrases susceptible to more than one interpretation—

e.g., “monetary damages”—and construed them

against Appellants. Rather, the district court simply

read those phrases in context and concluded they

could have only one meaning: nominal damages.

Appellants further assert the district court erroneously focused “solely on the prayer for relief” in concluding the First Amended Complaint did not include

a well-pled request for compensatory damages. They

claim this was inconsistent with Fed. R. Civ. P. 54(c),

which states federal courts “should grant the relief to

which each party is entitled, even if the party has not

demanded that relief in its pleadings.”

The Supreme Court has instructed federal courts

not to “dismiss a meritorious constitutional claim because the complaint seeks one remedy rather than another plainly appropriate one.” Holt Civic Club v. City

of Tuscaloosa, 439 U.S. 60, 65 (1978). It has further

reminded those courts that “although the prayer for

relief may be looked to for illumination when there is

doubt as to the substantive theory under which a

plaintiff is proceeding, its omissions are not in and of

themselves a barrier to redress of a meritorious

claim.” Id. at 66.

Here, contrary to Appellants’ assertions, the district court did not “solely” look to the prayer for relief.

Instead, it did what Holt expressly permits: it “looked

to [the prayer for relief] for illumination” because Appellants’ other vague requests for “monetary” and

other appropriate damages created “doubt as to the

substantive theory under which [they were] proceeding.” Id. There was no other “plainly appropriate”

remedy available here beyond the injunctive relief

and nominal damages Appellants expressly requested

12a

because, as previously discussed, the allegations in

the complaint simply did not support a claim for compensatory damages.

B. Applying Flanigan’s

Appellants further argue that, even assuming the

First Amended Complaint cannot be read to include

an implicit request for compensatory damages, their

nominal damages claim presents an ongoing case or

controversy notwithstanding our decision in Flanigan’s. They argue the district court ignored portions

of Flanigan’s suggesting not all claims for nominal

damages are necessarily moot.

Briefly, Flanigan’s involved a challenge to a municipal ordinance that prohibited the sale of sexual

devices. 868 F.3d at 1253-54. The plaintiffs alleged

the ordinance violated their rights under the Fourteenth Amendment. Id. Though the challenged

ordinance was never actually enforced against any of

the plaintiffs, they nonetheless preemptively challenged the constitutionality of the ordinance, seeking

injunctive and declaratory relief and asking the district court to strike down the ordinance as unconstitutional and permanently enjoin its enforcement. Id.

at 1254. Two of the plaintiffs also sought an award of

nominal damages but did not seek compensatory

damages. Id. at 1254, 1265. While the case was pending before this Court, the city repealed the challenged

ordinance, mooting the claims for declaratory and injunctive relief and leaving nominal damages as the

only requested relief. Id. at 1254, 1263.

Turning to “whether a prayer for nominal damages . . . is sufficient to save [an] otherwise moot constitutional challenge,” we first acknowledged there

were certain cases in which a claim solely for nominal

13a

damages would present a live case or controversy:

To be sure, there are cases in which a judgment

in favor of a plaintiff requesting only nominal

damages would have a practical effect on the

parties’ rights or obligations. Likewise, there

are situations in which nominal damages will

be the only appropriate remedy to be awarded

to a victorious plaintiff in a live case or controversy. In such circumstances, the exercise of jurisdiction is plainly proper.

Id. at 1263-64 (footnotes omitted). We juxtaposed

those cases with those in which an award of nominal

damages “would serve no purpose other than to affix

a judicial seal of approval to an outcome that has already been realized.” Id. at 1264. We concluded the

plaintiffs’ case fell decidedly in the latter category because they, in effect, had “already won” by “reciev[ing]

all the relief they requested.” Id.

We reiterated our holding “does not imply that a

case in which nominal damages are the only available

remedy is always or necessarily moot,” and we noted

that where a “court determines that a constitutional

violation occurred, but that no actual damages were

proven, it is within Article III powers to award nominal damages.” Id. at 1270 n.23. Notably, we limited our

discussion in this regard to cases in which both

compensatory and nominal damages were pled, but the

only available remedy was nominal damages. See id.

Appellants argue the district court ignored this apparent limitation on the core holding of Flanigan’s,

“brushing aside the portions of Flanigan’s that show

that nominal damages claims are not automatically

moot.” Specifically, Appellants take issue with the

14a

district court’s conclusions that there was no live controversy regarding compensatory damages and that

nominal damages would have no practical effect on

the parties’ rights or obligations. Appellants insist the

district court was wrong in both respects.

First, they insist a live dispute about compensatory damages remains ongoing as to Uzuegbunam’s

challenges to the “enforcement” of the policies against

him, noting that if the specific “conduct” of the GGC

officials were found to be illegal, Uzuegbunam “could

be entitled to compensatory damages.” This appears

to concern the “as-applied” portion of Uzuegbunam’s

challenge to the Prior Policies. However, as discussed

above, the First Amended Complaint did not include

a well-pled request for compensatory damages, in

part because it failed to allege any concrete injuries

arising from the allegedly unconstitutional conduct of

the GGC officials.

Second, Appellants argue that, in any case, awarding nominal damages here “would have a practical effect on the parties’ rights or obligations.” They identify two such “practical effects”: (1) “determin[ing] the

disputed boundary over how public colleges can restrict student expression”; and (2) answering the “important question” of whether “GGC officials violate[d]

Mr. Uzuegbunam’s rights when they censored him.”

The first of these is plainly at odds with Flanigan’s,

as any opinion we or the district court issued that did

little more than delineate the “boundar[ies]” around

public colleges’ regulation of student speech would

constitute exactly the sort of impermissible advisory

opinion Flanigan’s sought to avoid. See Flanigan’s,

868 F.3d at 1269-70.

15a

As to the second “practical effect” Appellants identify, they again focus on the allegedly unconstitutional actions GGC officials took in enforcing the policies, as distinct from the facial challenge to the policies themselves, asserting it would be appropriate for

a court to adjudicate whether and to what extent the

specific actions taken by GGC officials violated

Uzuegbunam’s constitutional rights. But under the

explicit exception in Flanigan’s implicated by Appellants’ argument, Appellants’ right to receive nominal

damages as the result of any unconstitutional conduct

on the part of GGC officials would have to flow from a

well-pled request for compensatory damages. The

cases we sought to distinguish from Flanigan’s—

cases in which a claim for nominal damages was adequate, on its own, to sustain an action—involved an

ongoing controversy regarding compensatory damages throughout the entire litigation. See id. at 126467 & n.18, 1270 n.23. In other words, they all involved

a well-pled complaint for compensatory damages,

though no actual damages were ultimately proven.

See id. at 1270 n.23 (“This Court has long recognized

that ‘[n]ominal damages are appropriate if a plaintiff

establishes a violation of a fundamental constitutional right, even if he cannot prove actual injury sufficient to entitle him to compensatory damages.’” (alteration in original) (emphasis added) (quoting KH

Outdoor, LLC v. City of Trussville, 465 F.3d 1256,

1260 (11th Cir. 2006))).

Here, in contrast, the only relief Appellants actually requested, other than declaratory and injunctive

relief, was nominal damages, and there has never

been any controversy over compensatory damages.

While Flanigan’s contemplates a class of cases in

16a

which a claim for nominal damages would be sufficient to maintain a case or controversy, this is not that

case, and we decline to carve out any new exception

here.3 Accordingly, we agree with the district court

that this case is “strikingly similar” to Flanigan’s and

apply our precedent to conclude Appellants’ claim for

nominal damages cannot save their otherwise moot

constitutional challenge to the Prior Policies.

C. Leave to Amend

Notwithstanding the above mootness analysis, Appellants insist that, even if we agree with the district

court’s application of Flanigan’s, we should reverse

the district court’s dismissal of their complaint on the

ground it improperly denied them the opportunity to

amend their complaint to add an explicit request for

compensatory damages. We review a district court’s

decision to deny leave to amend for abuse of discretion. See Santiago v. Wood, 904 F.2d 673, 675 (11th

3 Notably, Appellants do not explicitly request we carve out

any new exception here for cases involving an as-applied challenge to an allegedly unconstitutional law or policy that has been

enforced against a plaintiff, instead arguing their case falls

within the category of cases Flanigan’s explicitly distinguishes.

To the extent it would be appropriate for us to identify such an

exception, this is not the case to do so. The issue is not well-developed in the record below, as Appellants never presented the

district court with the argument that their case was distinguishable from Flanigan’s on the ground it involved an as-applied—

as opposed to solely a facial—challenge to the Prior Policies.

Moreover, in accordance with our description of Flanigan’s, their

argument to the district court that their case falls within the category of cases distinguished in Flanigan’s presumes their complaint included a well-pled request for compensatory damages,

insisting they could recover nominal damages whether or not

“they ultimately receive compensatory damages.”

17a

Cir. 1990).

On appeal, Appellants primarily take issue with

the district court’s assertion that it was not procedurally proper for them to seek leave to amend via a response to Appellees’ motion to dismiss. However, as

our precedent makes clear, the district court was

right to be concerned about the procedural mechanism by which Appellants sought to amend their

complaint. See, e.g., Cita Tr. Co. AG v. Fifth Third

Bank, 879 F.3d 1151, 1157 (11th Cir. 2018) (“[T]his

Court has clearly held that ‘[w]here a request for

leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has

not been raised properly.’” (second alteration in original) (quoting Rosenberg v. Gould, 554 F.3d 962, 967

(11th Cir. 2009))).

As they did in the district court, Appellants continue to focus on the simplicity of the proposed

amendment, noting it would have involved simply

“adding ‘compensatory and’ to the prayer for relief

and a paragraph describing [their] financial injuries.”

But even assuming the relative complexity of the proposed amendment would have any bearing on Appellants’ responsibility to seek amendment via a

properly filed motion, they failed to specifically inform

the district court of the substance of their proposed

amendment, other than to indicate they would “clarify” that they sought compensatory damages. See

Newton v. Duke Energy Fla., LLC, 895 F.3d 1270,

1277 (11th Cir. 2018) (“When moving the district

court for leave to amend its complaint, the plaintiff

must ‘set forth the substance of the proposed amendment or attach a copy of the proposed amendment’ to

its motion.” (quoting Cita Tr., 879 F.3d at 1157)).

18a

They did not, for example, specify what additional factual allegations they would have included to support

their request for compensatory damages.

To the extent that Appellants argue the district

court abused its discretion when it entered judgment

so soon after issuing its order dismissing the First

Amended Complaint as moot, we find such an argument unavailing. Appellants contend they were deprived of the ability to file a procedurally proper motion to amend “[a]fter the district court entered judgment immediately.” But even assuming they were

precluded from proceeding under Rule 15, see Jacobs

v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th

Cir. 2010) (noting that Fed. R. Civ. P. 15(a)(2)

“governs amendment of pleadings before judgment is

entered; it has no application after judgment is entered”), Appellants could still have moved under Rule

60(b) or 59(e) on the ground they could rectify the

pleading issues in the First Amendment Complaint

through further proposed amendments. Czeremcha v.

Int’l Ass’n of Machinists & Aerospace Workers, AFLCIO, 724 F.2d 1552, 1556 (11th Cir. 1984).

[A]fter a complaint is dismissed the right to

amend under Rule 15(a) terminates; the plaintiff, however, may still move the court for leave

to amend, and such amendments should be

granted liberally. The plaintiff may also move

for relief under Rules 59(e) or 60(b) on the basis

of proposed amendments even after the action

is dismissed and final judgment is entered.

Id. (footnotes and citation omitted). The district court

never acted to prevent Appellants from seeking leave

to amend following its dismissal of the First Amended

Complaint without prejudice, expressly leaving that

19a

decision in the hands of Appellants. Accordingly, we

can discern no abuse of discretion by the district court

in its handing of Appellants’ request to amend—a request they only expressed in response to a motion to

dismiss.

III. CONCLUSION

For the reasons discussed above, we affirm the district court’s dismissal of the First Amended Complaint as moot.

AFFIRMED.

20a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

CHIKE UZUEGBUNAM and

JOSEPH BRADFORD,

Plaintiffs,

CIVIL ACTION

FILE

STANLEY C. PRECZEWSKI,

President of Georgia

Gwinnett College, in his

official and individual

capacities, et al.,

NO. 1:6-CV-04658ELR

Defendants.

JUDGMENT

This action having come before the Court, Honorable Eleanor L. Ross, United States District Judge,

and the Court having granted Defendants’ [18] Motion to Dismiss and [21] Motion to Dismiss for Mootness, it is hereby

ORDERED AND ADJUDGED that this action

be DISMISSED WITHOUT PREJUDICE.

Dated at Atlanta, Georgia this 25th day of May, 2018.

JAMES N. HATTEN

CLERK OF COURT

By: s/ Charlotte Diggs

Deputy Clerk

21a

Prepared, Filed and Entered

In the Clerk’s Office

May 25, 2018

James N. Hatten

Clerk of Court

By: s/ Charlotte Diggs

Deputy Clerk

22a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

GEORGIA

ATLANTA DIVISION

CHIKE UZUEGBUNAM and

JOSEPH BRADFORD,

Plaintiffs,

STANLEY C. PRECZEWSKI,

President of Georgia

Gwinnett College, in his

official and individual

capacities, et al.,

Defendants.

1:16-CV-04658ELR

______________________

ORDER

______________________

Presently before the Court are Defendants’ Motion

to Dismiss and Motion to Dismiss for Mootness. As

explained below, because the Court finds that this

case is now moot, the Court grants both of Defendants’ Motions and dismisses this case.

I. Background

Plaintiffs Chike Uzuegbunam and Joseph Bradford

bring this suit against Defendants Stanley C. Preczewski, Lois C. Richardson, Jim B. Fatzinger, Tomas

Jiminez, Aileen C. Dowell, Gene Ruffin, Catherine

Jannick Downey, Terrance Schneider, Corey Hughes,

Rebecca A. Lawler, and Shenna Perry (collectively,

“Defendants”) in their individual and official capacities

23a

pursuant to 42 U.S.C. § 1983 for violation of Plaintiffs’

constitutional rights. As alleged in the 83-page, 470paragraph First Amended Complaint, at the time of filing this suit, Plaintiffs were students at Georgia Gwinnett College (“GGC”). [Doc. 13]. Defendants each have

official roles at GGC; for example, Defendant Preczewski is the President and Defendant Dowell is the

Director of the Office of Student Integrity.1

As alleged in the First Amended Complaint, in

July 2016, Plaintiff Uzuegbunam, while a student at

GGC, began distributing religious literature (or leafleting) in a plaza on the GGC campus, and a short

time later, Defendant Perry, a Campus Safety/ Security Officer for Campus Police, stopped Plaintiff

Uzuegbunam and explained that he was not allowed

to distribute literature at that location. Upon Plaintiff

Uzuegbunam’s inquiry, Defendant Downey, the Head

of Access Services and Information Commons at GGC,

later explained to Plaintiff Uzuegbunam that he could

not distribute written materials outside of GGC’s two

speech areas and that he would need to reserve a

speech area before he could distribute his literature.

In August 2016, Plaintiff Uzuegbunam applied for,

and was granted, a reservation of the speech area for

three separate dates, including August 25, 2016.

Thereafter, on August 25, 2016, Plaintiff Uzuegbunam went to the reserved speech area, stood on a

stool, verbally shared his religious views, and distributed his religious literature. After approximately

thirty minutes, Defendant Hughes, a Lieutenant for

Campus Police, informed Plaintiff Uzuegbunam that

1 While the parties debate whether some Defendants can be held

liable in this case, the Court need not address this issue because

the case is moot.

24a

he could not speak publicly in the area because GGC

had received calls from people complaining about

Plaintiff Uzuegbunam’s expression. Defendant

Hughes further explained that Plaintiff Uzuegbunam’s speaking constituted “disorderly conduct”

because it was disturbing the peace and tranquility of

individuals in the area, was in violation of GGC policy, and that if Plaintiff Uzuegbunam continued to

speak, he could be prosecuted. Plaintiff Uzuegbunam

stopped speaking publicly and left the area.

Plaintiff Bradford desires to engage in similar·expressive activities on campus like Plaintiff

Uzuegbunam, including literature distribution and

public speaking, but claims that Defendants’ policies

and practices prevent him from doing so.

There were two GGC policies at the time that

these events occurred: (1) Prior Speech Zone Policy

and (2) Prior Speech Code Policy (collectively, “Prior

Policies”).2 These Prior Policies are discussed in detail

below, but for background, the Court summarizes the

Prior Policies here. The Prior Speech Zone Policy limited public speech to speech zones on campus, which

were available only on certain days and times. The

Prior Speech Zone Policy did not allow public speech

on campus, including leafleting, unless the speaker

applied for a reservation with GGC and received permission from GGC to speak in the speech zone. If GGC

granted permission, then the speech was regulated to

the speech zone at a specific date and time. The Prior

2 These Prior Policies are titled, “GGC Freedom of Expression

Policy” and “Student Code of Conduct” respectively. However, for

consistency, the Court has referred to the Prior Policies using

the same language as Plaintiffs.

25a

Speech Code Policy prohibited behavior which disturbed the peace and/or comfort of persons.

Plaintiffs bring facial and as applied challenges to

the Prior Policies, alleging that the Prior Policies violate their freedom of speech and exercise of religion

under the First Amendment to the United States Constitution and due process and equal protection under

the Fourteenth Amendment. Plaintiffs seek declaratory and injunctive relief as well as damages, as discussed more fully infra.

Importantly, after Plaintiffs filed suit against

Defendants, GGC amended its Speech Zone and

Speech Code Policies. The Court will refer to these

amended policies collectively as “Amended Policies”

and individually as the “Amended Speech Zone Policy” and “Amended Speech Code Policy.”

Defendants move to dismiss Plaintiffs’ claims pursuant to Fed. R. Civ. P. 12(b)(6). Defendants also

move to dismiss Plaintiffs’ claims due to mootness.3

II. Discussion

It is well established that “[u]nder Article

III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies.” Lewis v. Cont’l Bank Corp., 494 U.S.

472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400

(1990). At a minimum, this requirement means

that “a litigant must have suffered, or be

threatened with, an actual injury traceable to

3 The United States filed a Statement of Interest arguing that

the Prior Policies violated Plaintiffs’ constitutional rights. [Doc.

37]. Importantly, however, the United States specifically stated

that it “does not advance any position as to whether Plaintiffs’

claims are moot,” on which the Court’s opinion turns. [Id. at 9].

26a

the defendant and likely to be redressed by a

favorable judicial decision.” Id. at 477, 110

S.Ct. at 1253. Moreover, this “actual controversy must be extant at all stages of review, not

merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S.

43, 67, 117 S.Ct. 1055, 1068, 137 L.Ed.2d 170

(1997) (quoting Preiser v. Newkirk, 422 U.S.

395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272

(1975)). As a result, the Supreme Court has

routinely cautioned that a case becomes moot

“if an event occurs while a case is pending on

appeal that makes it impossible for the court to

grant ‘any effectual relief whatever’ to a prevailing party.” Church of Scientology of Cal. v.

United States, 506 U.S. 9, 12, 113 S.Ct. 447,

449, 121 L.Ed.2d 313 (1992) (quoting Mills v.

Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40

L.Ed. 293 (1895)). Thus, even a once-justiciable

case becomes moot and must be dismissed

“when the issues presented are no longer ‘live’

or the parties lack a legally cognizable interest

in the outcome.” Powell v. McCormack, 395

U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d

491 (1969).

Flanigan’s Enters. Inc. of Georgia v. City of Sandy

Springs, Ga., 868 F.3d 1248, 1255 (11th Cir. 2017)

(hereinafter “Flanigan’s”).

In supplemental responses filed by the parties,

there is no dispute that Plaintiff Uzuegbunam graduated from GGC in August 2017. Therefore, there is no

reasonable expectation that he will be subjected to the

same alleged injury again, such that the Court could

grant him declaratory or injunctive relief, and as a result, his claims for declaratory and injunctive relief

27a

are moot. Adler v. Duval Cty. Sch. Bd., 112 F.3d 1475,

1478 (11th Cir. 1997) (upon graduation from high

school, students’ claims for a violation of their First

and Fourteenth Amendment rights became moot).

Plaintiffs acknowledge as much. Pls.’ Resp. in Opp’n

to Defs’ Suppl. Br. at 1 [Doc. 40].

Therefore, as to Plaintiff Bradford only, first, the

Court must determine whether GGC’s amendments

to the Prior Speech Zone and Prior Speech Code Policies have rendered Plaintiff Bradford’s claims for declaratory judgment and injunctive relief moot. See

Flanigan’s, 868 F.3d at 1255. Then, if these claims are

moot, the Court must determine whether Plaintiffs’

claim for damages will save this case. See id.

A. Declaratory and Injunctive Relief

As noted above, a case generally becomes moot

when the issues are no longer “live or the parties lack

a legally cognizable interest in the outcome.” Id. (quotation omitted). This may result when “subsequent

events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected

to recur.” Id. (quotation omitted). “[I]ntervening

events will render a case moot only when [the Court

has] ‘no reasonable expectation that the challenged

practice will resume after the lawsuit is dismissed.’”

Id. at 1255-56 (quoting Jews for Jesus, Inc. v. Hillsborough Cty. Aviation Auth., 162 F.3d 627, 629 (11th

Cir. 1998)) (further quotation omitted). “The key inquiry in this mootness analysis therefore is whether

the evidence leads [the Court] to a reasonable expectation that [Defendants] will reverse course and reenact the allegedly offensive portion of its [Prior Policies] should this Court grant [Defendants’] motion to

dismiss.” Id. at 1256.

28a

In conducting this mootness analysis, the Court

considers three broad factors as follows:

First, [the Court] ask[s] whether the change in

conduct resulted from substantial deliberation

or is merely an attempt to manipulate [the

Court’s] jurisdiction. Thus [the Court] will examine the timing of the repeal, the procedures

used in enacting it, and any explanations independent of this litigation which may have motivated it. Second, [the Court] ask[s] whether

the government’s decision to terminate the

challenged conduct was “unambiguous.” This

requires [the Court] to consider whether the actions that have been taken to allegedly moot

the case reflect a rejection of the challenged

conduct that is both permanent and complete.

Third, [the Court] ask[s] whether the government has consistently maintained its commitment to the new policy or legislative scheme.

When considering a full legislative repeal of a

challenged law—or an amendment to remove

portions thereof—these factors should not be

viewed as exclusive nor should any single factor be viewed as dispositive. Rather, the entirety of the relevant circumstances should be

considered and a mootness finding should follow when the totality of those circumstances

persuades the court that there is no reasonable

expectation that the government entity will

reenact the challenged legislation.

Id. at 1257 (citation omitted).4

4 The parties debate who has the burden of proof in this analysis.

The Court need not decide this issue because even if Defendants

have the burden, they have met it.

29a

While some of the language quoted above refers

specifically to government legislation, which is not at

issue here, intervening governmental action need not

rise to the level of legislation for this mootness analysis

to apply. Id. at 1256. “Indeed, even where the intervening governmental action does not rise to the level of a

full legislative repeal,” court have held that “‘a challenge to a government policy that has been unambiguously terminated will be moot in the absence of some

reasonable basis to believe that the policy will be reinstated if the suit is terminated.’” Id. (quoting Troiano

v. Supervisor of Elections, 382 F.3d 1276, 1285 (11th

Cir. 2004) (emphasis added)); see Harrell v. The Fla.

Bar, 608 F.3d 1241, 1266 (11th Cir. 2010) (applying the

same reasonable basis standard even where the government action at issue falls “short of so weighty a legislative act”); Students for Life USA v. Waldrop, 90 F.

Supp. 3d 1265, 1271 (S.D. Ala. 2015) (applying this

mootness analysis to a state university policy).

The Court now turns to apply these foregoing principles to the facts of this case to determine whether

the totality of the circumstances indicates that there

is a reasonable expectation that GGC will reenact or

reinforce the Prior Speech Zone and Prior Speech

Code Policies. In conducting this analysis, the Court

will rely on two affidavits presented by Defendants.

First is the Affidavit of Defendant Dowell, who is the

Director of Student Integrity at GGC. Dowell Aff. at ¶

2 [Doc. 21-2]. Defendant Dowell is “responsible for implementing programmatic and policy changes, supervising the Office of Student Integrity staff, and adjudicating all disciplinary and non-disciplinary infractions for GGC, including academic integrity

violations, disorderly conduct, etc.” Id. at ¶ 3. Second

30a

is the Affidavit of Marc Cadinalli, who is the Executive Director of Legal Affairs at GGC. Cardinalli Aff.

at ¶ 2 [Doc. 21-3].

1. Substantial Deliberation

As for the first factor, substantial deliberation,

both Defendant Dowell and Mr. Cardinalli state in

their affidavits that “[o]n February 28, 2017, the GGC

Cabinet approved revisions to GGC’s Freedom of Expression Policy [Prior Speech Zone Policy], as well as

revisions to the Student Code of Conduct Section

[Prior Speech Code Policy] in the GGC Student Handbook for 2016-2017.” Dowell Aff. at ¶ 4; Cardinalli Aff.

at ¶ 3. While these statements at a minimum inform

the Court that there is a GGC Cabinet and the revisions to the Prior Policies were approved by that Cabinet, it is unclear what deliberation may have occurred. Importantly, however, there is no allegation

or evidence to suggest that GGC acted in secrecy or

departed from its own procedures, such that the Court

has “pause about the level of deliberation attending a

change in policy.” Flanigan’s, 868 F.3d at 1260 (citing

to cases where policy was changed in secrecy behind

closed doors and where the governmental actors departed from their own procedures).

The Court also considers the timing of the changes

to the Prior Policies. Plaintiffs filed suit on December

19, 2016. GGC changed the Prior Policies on February

28, 2017, or approximately 10 weeks later. Such a

quick change to the Prior Policies, while not dispositive, counts in Defendants’ favor.5 See id. at 1259-60

5 Plaintiffs argue that the delay was actually much longer be-

cause GGC was aware at least in 2013 that its Prior Policies

were unconstitutional, having received a letter from Plaintiffs’

counsel at that time. As Defendants argue, this may have been

31a

(timing was not dispositive but finding case was moot

when repeal occurred three years into the litigation

after the appellate court agreed to hear the case en

banc); Nat’l Advert. Co. v. City of Miami, 402 F.3d

1329, 1331 (11th Cir. 2005) (finding controversy was

moot where city began process of amending its regulations ten months after litigation began); Jews for Jesus, Inc., 162 F.3d at 629 (finding case was moot

where policy was changed one month after the commencement of the lawsuit).

The motivation for GGC’s changes to its Prior Policies is unclear. While motivation is a consideration,

it is not dispositive nor the Court’s focus. Nat’l Advert.

Co., 402 F.3d at 1334. Rather, the most important inquiry is whether the Court believes that GGC will

reenact the Prior Policies. Id. Because the Court ultimately concludes based on the totality of the circumstances that GGC will not reenact these Prior Policies, discussed infra, the Court need not dwell on

GGC’s motivation. Id. at 1331 n.3.

2. Unambiguous Change to Prior Policies

Next, the Court considers whether GGC’s changes

to its Prior Policies are “plainly an unambiguous termination of the challenged conduct.” Flanigan’s, 868

F.3d at 1261.

a routine letter from Plaintiffs’ counsel, evidenced by the fact

that it refers to “ABAC,” an acronym for Abraham Baldwin Agricultural College, rather than GGC. [Doc. 1-16, at 3]. Moreover,

under Plaintiffs’ theory, anytime counsel sends a demand letter

suggesting that policies are unconstitutional, the recipient

would be required to change its policies immediately.

32a

i. Termination of Challenged Conduct

[W]hen an ordinance is repealed by the enactment of a superseding statute, then the ‘superseding statute or regulation moots a case

only to the extent that it removes challenged

features of the prior law. To the extent that

those features remain in place, and changes in

the law have not so fundamentally altered the

statutory framework as to render the ·original

controversy a mere abstraction, the case [is]

not moot.’

Coal. for the Abolition of Marijuana Prohibition v.

City of Atlanta, 219 F.3d 1301, 1310 (11th Cir. 2000)

(quoting Naturist Soc., Inc. v. Fillyaw, 958 F.2d 1515,

1520 (11th Cir. 1992)). “If the repeal is such that the

allegedly unconstitutional portions of the [challenged]

ordinance no longer exist, the appeal is rendered moot

because any decision [the Court] would render would

clearly constitute an impermissible advisory opinion.”

Tanner Advert. Grp., L.L.C. v. Fayette Cty., GA, 451

F.3d 777, 790 (11th Cir. 2006) (quotation omitted) (alteration in original). Therefore, the Court must examine whether the features of the Prior Policies – challenged by Plaintiffs – have been substantially altered

by the Amended Policies. Coal. for the Abolition of

Marijuana Prohibition, 219 F.3d at 1312. In other

words, the Court examines whether the alleged constitutional violations of which Plaintiffs originally

complained in the Prior Policies will continue with the

enforcement of the Amended Policies. Id. at 1315.

1. Speech Zone Policy

The Prior Speech Zone Policy applied to students,

like Plaintiffs, and the non-GGC community. Prior

Speech Zone Policy at 1 [Doc. 13-3]. It identified “free

33a

speech expression areas” on campus and limited the

availability of these areas to certain hours and days.

Id. at 2. GGC reserved the right to modify the speech

areas, and the Policy allowed for other areas and

times to be authorized, upon written request. Id. A

designated GGC official was responsible for authorizing the use of the free speech expression area and the

reservation. Id. The Prior Speech Zone Policy set forth

a reservation procedure. Id. An individual was required to submit to a GGC official a specific form at

least three business days prior to the requested use of

the area and attach any publicity materials to their

form. Id. The Prior Speech Zone Policy then listed fifteen criteria that must be met for GGC to authorize

the speech, event, or demonstration. Id. at 3-5. An individual could also appeal the GGC official’s decision

regarding authorization to the Dean of Students. Id.

at 2. Individuals “failing to comply with the [Prior

Speech Zone Policy] may be asked to leave.” Id. at 5.

In short, if individuals wanted to engage in public

speech on campus, including leafleting, they had to

receive authorization from GGC, and upon approval,

their speech would then be limited to the assigned

speech area at a certain time of day.

The Amended Speech Zone Policy provides as follows:

This policy in no way prohibits members of the

GGC community from engaging in conversations on campus and does not apply to Collegesponsored activities or classroom instruction or

participation, but rather only establishes as

designated public forums certain outdoor areas

of GGC’s campus and sets forth requirements

for forum reservations in the following limited

34a

circumstances: (1) members of the GGC community who plan an event with 30 or more persons; and, (2) individuals or groups who are not

members of the GGC community who wish to

speak on GGC’s campus. By placing reasonable

limitations on time, place, and manner of

speech, GGC does not take a position on the

content or viewpoint of the expression, but allows for a diversity of viewpoints to be expressed in an academic setting.

Amended Speech Zone Policy at 1 [Doc. 21-2].

The Amended Speech Zone Policy further provides

that for GGC community members “who plan to engage in expressive activity on campus in a group that

is expected to consist of 30 or more persons” or individuals who are not enrolled or employed at GGC, individuals are required to submit a reservation request

form to GGC two business days prior to the speech.

Id. at 2. GGC officials must respond to the request

within one business day of receipt of the request. Id.

at 2-3. A denial of the request is appealable to GGC’s

Senior Vice President for Academic and Student

Affairs and Provost, and these officials or their designee must respond to the appeal within one business day. Id. at 3. The individual must attach any

written materials in connection with the speech to the

reservation request form. Id. The Amended Speech

Zone Policy provides that GGC “may not deny any request to distribute written materials based on the

content or viewpoint of the expression.” Id. The

Amended Speech Zone Policy further states that a

GGC official may only deny a reservation request for

seven specific reasons, summarized as follows: (1) the

form is not fully completed; (2) the form contains a

material falsehood or misrepresentation; (3) the area

35a

has been previously reserved, in which case, an alternate location, date or time will be provided; (4) the

speech would conflict or disturb previously planned

programs by GGC; (5) the area is not large enough to

accommodate the group, in which case GGC will provide an alternate location to safely accommodate the

applicant if the applicant is a member of the GGC

community; (6) the speech intended would present a

danger to the applicant, GGC community, or the public; and (7) the speech is prohibited by law or GGC

policy. Id. at 3-4. The Amended Speech Zone Policy

further provides that “[w]hen assessing a reservation

request, the Student Affairs official must not consider

or impose restrictions based on the content or viewpoint of the expression.” Id. at 4. If the reservation request is granted, the Amended Speech Zone designates two zones as the GGC public forums, and makes

these areas available from 9:00 a.m. to 7:00 p.m.,

Monday through Friday, provided that the area is not

already reserved. Id. at 1.

Additionally, the Amended Speech Zone Policy sets

forth that if a GGC community member attracts a

group of 30 or more persons while engaged in the expressive activity, a representative from the group is to

provide GGC with as much notice as possible. Id. at 2.

GGC reserves the right to direct the group to an available area of campus to provide for safety and crowd

control and limit disruption to GGC operations. Id.

The Amended Speech Zone Policy specifically

states that GGC community members may distribute

non-commercial pamphlets and other written materials “on a person-to-person basis in open outdoor areas

of the campus.” Id. at 4. In short, the Amended Speech

Zone Policy provides that students may speak on campus and distribute literature on a person-to-person

36a

basis in open outdoor areas of the campus. Prior reservations to speak and the limiting of that speech to

the speech areas are only required for GGC community members who plan to speak in a group expected

to consist of 30 or more persons or by non-GGC community members.

In order for the changes to the Prior Policies to

moot the issues presented by Plaintiffs, the “‘gravamen of [Plaintiffs’] complaint’ must have been

changed in some fundamental respect.” Coal. for the

Abolition of Marijuana Prohibition, 219 F.3d at 1311

(quoting Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656,

662 (1993)). The gravamen of Plaintiffs’ First

Amended Complaint is that Plaintiffs want to distribute religious literature and exclaim their religious beliefs anywhere on campus at any time, without first

having to obtain a permit. See Pls.’ First Am. Compl.

at ¶ 2 (Prior Policies restrict all speech to two small

areas of campus, prohibit students from speaking on

campus spontaneously, and require students to obtain a permit before engaging in expressive activity).

As a student,6 Plaintiff Bradford wants to engage in

spontaneous speech and spontaneous leafleting. Pls.’

Resp. to Defs.’ Mot. to Dismiss for Mootness at 23.

6 The Amended Speech Zone Policy provides that an “individual

who is not a member of the GGC community may only distribute

written materials within the Public Forum Areas and only during the time in which the individual has reserved Public Forum

Area.” Amended Speech Zone Policy at 4-5. However, Plaintiffs’

First Amended Complaint is based on their positions as students, and they have not argued the Prior Policies’ constitutionality with respect to non-GGC community members, including

Plaintiff Uzuegbunam’s status as a non-GGC community member upon his graduation.

37a

[Doc. 27]. This is now allowed under the Amended

Speech Zone Policy, and thus, the gravamen of Plaintiffs’ First Amended Complaint has been changed in a

fundamental respect.7 See Jews for Jesus, Inc., 162

F.3d at 629 (finding case was moot where “the airport’s change of policy has already given Jews for Jesus the relief they seek—the ability to distribute literature at the airport—and there is therefore no

meaningful relief left for the court to give. The only

remaining issue is whether the airport’s policy was

constitutional—which, at this stage, is a purely academic point.”).

2. Speech Code Policy

The Prior Speech Code Policy which Plaintiffs challenged prohibited “behavior which disrupts the peace

and/or comfort of person(s).” Prior Speech Code Policy

Plaintiffs spend considerable time attacking the Amended

Speech Zone Policy as unconstitutional. Importantly, the Court

refrains from deciding whether the changes to the Prior Policies

“would nullify any potential constitutional infirmities in the”

Amended Policies. Nat’l Advert. Co., 402 F.3d at 1335 (emphasis

in original). Instead, the Court holds that the changes to the

Prior Policies “rendered all the complaints raised by [Plaintiffs]

in this suit moot. Whatever defects may remain in the [Amended

Policies] are not properly before [the Court] and [the Court]

do[es] not address them.” Id. The Court is mindful of the restraint it must exercise, such that it must “generally decline to

pass on the constitutionality of [policies] unless ‘as a necessity in

the determination of real, earnest, and vital controversy between

individuals.’” Flanigan’s, 868 F.3d at 1269 (quoting Ashwander

v. Tennessee Valley Auth., 297 U.S. 288, 346 (1936)). “It is not

the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”

Ashwander, 297 U.S. at 347. Rendering opinions on whether all

parts of the Amended Policies are constitutional are not “absolutely necessary” to a decision of this case.

38a

at 23 [Doc. 13-15]. The Amended Speech Code Policy

deletes this provision entirely, making no reference to

behavior that might disturb the peace. Once again, the

gravamen of Plaintiffs’ First Amended Complaint has

been changed in a fundamental respect.

ii. Ambiguity

Because the Court finds that the challenged conduct has been terminated by the Amended Policies,

the Court must now examine whether that termination is unambiguous. First, GGC has assured the

Court that it has no intention of reenacting the Prior

Policies. In her affidavit, Defendant Dowell states

that “GGC has no intention of returning to or enforcing the former policies.” Dowell Aff. at ¶ 14; see Flanigan’s, 868 F.3d at 1262-63 (finding strong evidence of

mootness from the defendant’s representation in filings with the court that it disavowed any intent to

adopt the challenged regulation in the future or reenact it); Coral Springs St. Sys., Inc. v, City of Sunrise,

371 F.3d 1320, 1332-33 (11th Cir. 2004). Second, rather than keep the Prior Policies in place, GGC has

fundamentally changed them, including for the Prior

Speech Code Policy, removing the challenged portion

altogether. See Flanigan’s, 868 F.3d at 1261. Third,

Defendant Dowell states that the Amended Policies

are available to the public and have been published

on GGC’s website. Dowell Aff. at ¶ 14; cf. Flanigan’s,

868 F.3d at 1262-63 (finding mootness based in part

on the defendant’s public commitment not to reenact

the repealed provision).

Plaintiffs argue that Defendants have continued

to defend the Prior Policies, including in this litigation

and by filing a motion to dismiss. However, this is

39a

“weak evidence,” at best, that the changes were ambiguous and GGC will return to the Prior Policies.

Flanigan’s, 868 F.3d at 1262. Instead, GGC’s actions

in changing the Prior Policies and proclaiming. that it

has no intention of returning to them suggests an unambiguous termination from which the Court is “unable to draw a reasonable expectation that [GGC] will

reenact the challenged [Prior Policies].” Id.

3. Commitment to the Amended Policies

The Court next considers whether GGC has maintained its commitment to the Amended Policies. GGC

adopted the Amended Policies over a year ago, on February 28, 2017. Plaintiffs have not presented any evidence that GGC has changed the Amended Policies or

reenacted or enforced the Prior Policies. In addition,

GGC has taken actions to implement the Amended

Policies. Mr. Cardinalli states in his affidavit that legal counsel for the Georgia Board of Regents has provided GGC employees with four training sessions on

the Prior Speech Zone Policy. Cardinalli Aff. at ¶ 5.

He further states that approximately forty-nine GGC

employees attended this training, including employees from offices and departments encompassing Defendants. Id. at ¶ 6. See Troiano, 382 F.3d at 1285

(government official consistently followed new policy

and took actions to implement it). Additionally, Mr.

Cardinalli states that “[a]dditional training will be

on-going as needed.” Cardinalli Aff. at ¶ 8. All of this,

together with GGC’s stated intention of not returning

to or enforcing the Prior Policies, sufficiently show

GGC’s commitment to the Amended Policies. Flanigan’s, 868 F.3d at 1262-63.

After consideration of all of these factors and viewing the totality of the circumstances, the Court finds

40a

that GGC has unambiguously terminated the Prior

Policies and there is no reasonable basis to expect that

it will return to them. See id. at 1263; Jews for Jesus,

Inc., 162 F.3d at 629. Therefore, Plaintiff Bradford’s

claims for injunctive and declaratory relief are moot.

B. Nominal Damages

Having found that Plaintiffs’ claims for declaratory

and injunctive relief are moot, the Court must now determine whether Plaintiffs’ remaining claim for damages is sufficient to support standing and save this

case. Plaintiffs argue that the Court may still render

an opinion on the Prior Policies and whether they violated Plaintiffs’ constitutional rights because Plaintiffs

have alleged damages. Defendants argue that Plaintiffs have only prayed for nominal damages and attorneys’ fees, and neither is sufficient to save this case

from being dismissed as moot. Plaintiffs argue in

response that they pleaded in their First Amended

Complaint for an award of monetary damages and for

damages in an amount to be determined by the

evidence and the Court. Plaintiffs assert that the

Court must construe their First Amended Complaint

broadly for a claim of actual, compensatory damages.

Plaintiffs are correct that in several instances in

their First Amended Complaint they request “monetary damages and equitable relief.” First Am. Compl.

at ¶¶ 417-418, 434-435, 450-451, 469-470. However,

monetary damages can encompass both compensatory

and nominal damages. Quinlan v. Pers. Transp. Servs.

Co., 329 F. App’x 246, 249 (11th Cir. 2009) (defining

monetary damages to include compensatory or punitive damages); Virdi v. DeKalb Cty. Sch. Dist., 216 F.

App’x 867, 873 (11th Cir. 2007) (finding request for

monetary damages to include nominal damages).

41a

Throughout their First Amended Complaint, Plaintiffs

do not elaborate on the type of damages they seek. Instead, the only place where they specify the type of

damages sought is in their Prayer for Relief, as follows:

“Nominal damages for the violation of Plaintiffs’ First

and Fourteenth Amendment rights from the Defendants sued in their individual capacities.” First Am.

Compl. at 79, ¶ G. Thus, in their Prayer for Relief,

wherein they set forth the exact relief they seek including an injunction and declaratory relief, Plaintiffs

specify that they are seeking nominal damages.

Furthermore, Plaintiffs’ after-the-fact contentions

now – that they are seeking compensatory damages –

are not supported by the First Amended Complaint.

“[C]ompensatory damages in a § 1983 suit [must] be

based on actual injury caused by the defendant rather

than on the ‘abstract value’ of the constitutional

rights that may have been violated.” Slicker v. Jackson, 215 F.3d 1225, 1230 (11th Cir. 2000). Plaintiffs

do not allege in their First Amended Complaint that

they suffered an actual injury, and instead, they plead

that their constitutional rights have been violated.8

Plaintiffs argue that they pleaded in their First

8 For example, in the context of a § 1983 case, such as this one,

compensatory damages can encompass monetary loss, physical

pain and suffering, mental and emotional distress, impairment of

reputation, and personal humiliation. Slicker, 215 F.3d at 1231.

Plaintiffs have alleged no such injuries. Instead, Plaintiffs mention an “injury” two times in their First Amended Complaint, and

neither time do they set forth any facts that would support a compensatory damages claim. See First Am. Compl. at ¶ 6 (“In taking

these actions, [Defendants] implemented the challenged GGC policies, violated Mr. Uzuegbunam’s constitutional rights, and inflicted irreparable injury upon him.”); ¶ 368 (“Unless the policies

and conduct of Defendants are enjoined, Mr. Uzuegbunam and

Mr. Bradford will continue to suffer irreparable injury.”).

42a

Amended Complaint that they were entitled to “damages in an amount to be determined by the evidence

and this Court” and “[a]ll other further relief to which

Plaintiffs may be entitled.” First Am. Compl. at ¶¶

418, 435, 451, 470, I. However, such blanket statements do not automatically lend themselves to a claim

for compensatory damages and instead could also

support a claim for nominal damages. See Flanigan’s,

868 F.3d at 1254 n.3.

Thus, the Court concludes that upon viewing Plaintiffs’ First Amended Complaint in its entirety, Plaintiffs only sought nominal damages, rather than compensatory damages. To find otherwise would require

ignoring Plaintiffs’ own Prayer for Relief. Even construing Plaintiffs’ First Amended Complaint in their

favor, the Court cannot stretch or interpret a complaint to find allegations or relief that are not there.

In this particular case, where Plaintiffs’ constitutional challenges to the governmental policies are now

moot, where the Court can grant Plaintiffs no practical relief in the form of an injunction or a declaratory

judgment, and where Plaintiffs did not plead for compensatory damages, the lone remaining claim of nominal damages is insufficient to save this otherwise

moot case. Flanigan’s, 868 F.3d at 1264-70.9

Plaintiffs argue that the United States Court of Appeals for the Eleventh Circuit in Flanigan’s left open

the possibility that a claim for nominal damages will

not moot a case and can still be adjudicated, even where

other claims are moot. While such an exception may be

true, this case is not the exception. Instead, this case is

9 Additionally, Plaintiffs seek attorneys’ fees pursuant to 42 U.S.C.

§ 1988, but this is insufficient to create a case or controversy. See

Flanigan’s Enters. Inc. of Georgia, 868 F.3d at 1263 n.11.

43a

akin to Flanigan’s, and therefore, Plaintiffs’ sole claim

for nominal damages will not sustain this case.

First, this case is strikingly similar to Flanigan’s.

In Flanigan’s, the plaintiffs challenged a municipal

ordinance, alleging that the ordinance violated their

First Amendment and Fourteenth Amendment

rights. 868 F.3d at 1253-54; see also Flanigan’s Enters. Inc. v. City of Sandy Springs, GA, No. 1:13-CV03573-HLM, 2014 WL 12685907, at *3 (N.D. Ga. Oct.

20, 2014). The plaintiffs sought declaratory and injunctive relief, striking down the ordinance as unconstitutional and permanently enjoining its enforcement. Flanigan’s, 868 F.3d at 1254. They also specifically requested an award of nominal damages, and

they did not seek compensatory damages. Id. at 1254,

1263 n.11, 1265. The Eleventh Circuit Court of Appeals found that the claims for declaratory and injunctive relief were moot after the challenged ordinance was repealed. Id. at 1255-63.

The remaining claim was for nominal damages,

and the Eleventh Circuit held that such a lone prayer

for nominal damages was insufficient to sustain the

case. Id. at 1263-1270. The appellate court determined that because the challenged ordinance had

been repealed with no likelihood of reenactment, the

plaintiffs had received all the relief that they had requested. Id. at 1264. Thus, the appellate court could

offer the plaintiffs no practical remedy that would affect the rights or obligations of the parties. Id. The

availability of a practical remedy is a prerequisite to

Article III jurisdiction, and therefore, because no such

remedy was available, the plaintiffs could not proceed

before the court on a claim solely for nominal damages. Id. at 1264, 1270.

44a

The same is true here. Plaintiffs contend that the

Prior Policies violated their First and Fourteenth

Amendment rights. They sought declaratory and injunctive relief, along with nominal damages, and they

did not seek compensatory damages. The Court has

found that Plaintiff Uzuegbunam’s claims for declaratory and injunctive relief are moot because he has

graduated from GGC. The Court has also found that

Plaintiff Bradford’s claims for declaratory and injunctive relief are moot because GGC has unambiguously

terminated the Prior Policies and there is no reasonable basis to expect that GGC will return to them. As

explained above, a fair reading of Plaintiffs’ First

Amended Complaint reveals that all of their alleged

injuries would be remedied by the removal of the Prior

Policies. See Flanigan’s, 868 F.3d at 265. The Prior

Policies have been removed with no reasonable basis

to believe that GGC will reenact them. As a result,

there is no practical remedy for this Court to offer

Plaintiffs. See id. at 1264. “There is simply nothing

left for [the Court] to do.” Id. at 1265. Just as in Flanigan’s, the only redress the Court could possibly offer

Plaintiffs is “judicial validation, through nominal

damages, of an outcome that has already been determined,” and perhaps joy in seeing the Court vindicate

their cause. 868 F.3d at 1268. Yet, “absent an accompanying practical effect on the legal rights or responsibilities of the parties[, the Court is] without jurisdiction to give them that satisfaction.” Id. Finally, any

opinion the Court would render now on the constitutionality of the Prior Policies would be an impermissible advisory one. Id. The Prior Policies, and with

them, the necessity of deciding their constitutionality,

“has ceased to exist and [are] now no more real than

any other hypothetical statute on which the federal

45a

courts should routinely decline to pass judgment.” Id.

at 1269. As well stated in Flanigan’s, to allow Plaintiffs’ remaining claim for nominal damages to sustain

this case would result in a manipulation of the

jurisdiction of the Court, a circumvention of the mootness doctrine, and a requirement that the Court decide

a case that could have no practical effect on the legal

rights or obligations of the parties. 868 F.3d at 1270.

Second, contrary to Plaintiffs’ arguments, this case

does not present the exceptions discussed or contemplated in Flanigan’s. In these exceptional cases, a live

controversy existed regarding compensatory damages

throughout the entire litigation or an award of nominal

damages would have a practical effect on the parties’

rights or obligations. Id. at 1263-67, n.18, 1270, n.23.

This case presents neither of those situations.10

Therefore, the Court concludes that Plaintiffs’

“prayer for nominal damages will not save the case

from dismissal.” Id. at 1264.11

10 To the extent there are any other exceptions or the Eleventh

Circuit wants to create an exception for this case, those are matters for the Eleventh Circuit to decide. This Court is bound by

precedent in Flanigan’s and finds that this case is moot pursuant

to this precedent.

11 In their Response in Opposition to Defendants’ Supplemental

Brief, while Plaintiffs maintain that their case should not be dismissed, they assert that any dismissal must be without prejudice

and they request leave to amend if the Court deems it necessary.

The Court denies Plaintiffs’ request for leave to amend. Burgess

v. Religious Tech. Ctr., Inc., 600 F. App’x 657, 665 (11th Cir.

2015) (“We repeatedly have held that plaintiffs cannot amend

their complaint through a response to a motion to dismiss . . .

our precedent is clear: the proper method to request leave to

amend is through filing a motion, and such motion for leave to

amend should either set forth the substance of the proposed

46a

III.

Conclusion

For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss for Mootness [Doc. 21];

GRANTS Defendants’ Motion to Dismiss [Doc. 18];

DENIES Plaintiffs’ Motion for Oral Argument [Doc.

35]; and DISMISSES WITHOUT PREJUDICE this

case.

SO ORDERED, this 25th day of May, 2018.

amendment or attach a copy of the proposed amendment.”); Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009) (“Where a

request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been

raised properly.”). For the reasons stated herein, the Court will

dismiss Plaintiffs’ claims without prejudice but need not go as

far as to direct Plaintiffs to file a motion for leave to amend.

Quinlan, 329 F. App’x at 250 (court did not have to give the plaintiff an opportunity to amend where the court dismissed the complaint without prejudice). It is up to Plaintiffs to decide how to

litigate their case.

47a

IN THE UNITED STATES COURT OF

APPEALS

FOR THE ELEVENTH CIRCUIT

______________

No. 18-12676-AA

______________

CHIKE UZUEGBUNAM,

JOSEPH BRADFORD

versus

Plaintiffs – Appellants,

STANLEY C. PRECZEWSKI,

President of Gerogia Gwinnett College, in

his official and individual capacities,

LOIS C. RICHARDSON,

Acting Senior Vice President of Academic

and Student Affairs and Provost at Georgia

Gwinnett College, in her official and

individual capacities,

JIM B. FATZINGER,

Senior Associate Provost for Student Affairs

for Georgia Gwinnett College, in his official

and individual capacities,

TOMAS JIMINEZ,

Dean of Students at Georgia Gwinnett

College, in his official and individual

capacities,

AILEEN C. DOWELL,

Director of the Office of Student Integrity at

Georgia Gwinnett College, in her official

and individual capacities,

GENE RUFFIN,

Dean of Library Services at Georgia

Gwinnett College, in his official and

individual capacities,

CATHERINE JANNICK DOWNEY,

Head of Access Services and Information

Commons, in her official and individual

48a

capacities,

TERRANCE SCHNEIDER,

Associate Vice President of Public Safety

and Emergency Preparedness/Chief of

Police at Georgia Gwinnett College, in his

official and individual capacities,

COREY HUGHES,

Campus Police Lieutenant at Georgia

Gwinnett College, in his official and

individual capacities,

REBECCA A. LAWLER,

Community Outreach and Crime

Prevention Sergeant at Georgia Gwinnett

College, in her official and individual

capacities,

SHENNA PERRY,

Campus Safety/Security Officer at Georgia

Gwinnett College, in her official and

individual capacities,

Defendants – Appellees.

__________________________________________

Appeal from the United States District Court

for the Northern District of Georgia

__________________________________________

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

BEFORE: MARCUS and BLACK, Circuit Judges, and

RESTANI, * Judge.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no

* Honorable Jane A. Restani, Judge for the United States Court

of International Trade, sitting by designation.

49a

judge in regular active service on the Court having requested that the Court be polled on rehearing en banc.

(FRAP 35) The Petition for Rehearing En Banc is also

treated as a Petition for Rehearing before the panel

and is DENIED. (FRAP 35, IOP2)

ENTERED FOR THE COURT:

50a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

______________

No. 18-12676-AA

______________

CHIKE UZUEGBUNAM,

JOSEPH BRADFORD

Plaintiffs – Appellants,

versus

STANLEY C. PRECZEWSKI,

President of Gerogia Gwinnett College, in

his official and individual capacities,

LOIS C. RICHARDSON,

Acting Senior Vice President of Academic

and Student Affairs and Provost at Georgia

Gwinnett College, in her official and

individual capacities,

JIM B. FATZINGER,

Senior Associate Provost for Student Affairs

for Georgia Gwinnett College, in his official

and individual capacities,

TOMAS JIMINEZ,

Dean of Students at Georgia Gwinnett

College, in his official and individual

capacities,

AILEEN C. DOWELL,

Director of the Office of Student Integrity at

Georgia Gwinnett College, in her official

and individual capacities,

GENE RUFFIN,

51a

Dean of Library Services at Georgia

Gwinnett College, in his official and

individual capacities,

CATHERINE JANNICK DOWNEY,

Head of Access Services and Information

Commons, in her official and individual

capacities,

TERRANCE SCHNEIDER,

Associate Vice President of Public Safety

and Emergency Preparedness/Chief of

Police at Georgia Gwinnett College, in his

official and individual capacities,

COREY HUGHES,

Campus Police Lieutenant at Georgia

Gwinnett College, in his official and

individual capacities,

REBECCA A. LAWLER,

Community Outreach and Crime

Prevention Sergeant at Georgia Gwinnett

College, in her official and individual

capacities,

SHENNA PERRY,

Campus Safety/Security Officer at Georgia

Gwinnett College, in her official and

individual capacities,

Defendants – Appellees.

__________________________________________

On Petition for Hearing En Banc from the

United States District Court

for the Northern District of Georgia

__________________________________________

52a

ORDER:

No Judge in regular active service on the Court having requested that the Court be polled on hearing en

banc (Rule 35 Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-1), the petition for hearing

en banc is DENIED.

53a

UNITED STATES COURT OF APPEALS

For the Eleventh Circuit

______________

No. 18-12676

______________

District Court Docket No.

1:16-cv-04658-ELR

CHIKE UZUEGBUNAM,

JOSEPH BRADFORD

Plaintiffs – Appellants,

versus

STANLEY C. PRECZEWSKI,

President of Gerogia Gwinnett College, in

his official and individual capacities,

LOIS C. RICHARDSON,

Acting Senior Vice President of Academic

and Student Affairs and Provost at Georgia

Gwinnett College, in her official and

individual capacities,

JIM B. FATZINGER,

Senior Associate Provost for Student Affairs

for Georgia Gwinnett College, in his official

and individual capacities,

TOMAS JIMINEZ,

Dean of Students at Georgia Gwinnett

College, in his official and individual

capacities,

AILEEN C. DOWELL,

Director of the Office of Student Integrity at

Georgia Gwinnett College, in her official

and individual capacities,

GENE RUFFIN,

Dean of Library Services at Georgia

Gwinnett College, in his official and

individual capacities,

54a

CATHERINE JANNICK DOWNEY,

Head of Access Services and Information

Commons, in her official and individual

capacities,

TERRANCE SCHNEIDER,

Associate Vice President of Public Safety

and Emergency Preparedness/Chief of

Police at Georgia Gwinnett College, in his

official and individual capacities,

COREY HUGHES,

Campus Police Lieutenant at Georgia

Gwinnett College, in his official and

individual capacities,

REBECCA A. LAWLER,

Community Outreach and Crime

Prevention Sergeant at Georgia Gwinnett

College, in her official and individual

capacities,

SHENNA PERRY,

Campus Safety/Security Officer at Georgia

Gwinnett College, in her official and

individual capacities,

Defendants – Appellees.

__________________________________________

Appeal from the United States District Court for the

Northern District of Georgia

__________________________________________

JUDGMENT

It is hereby ordered, adjudged, and decreed that the

opinion issued on this date in this appeal is entered

as the judgment of this Court.

Entered: July 01, 2019

For the Court: DAVID J. SMITH, Clerk of Court

By: Djuanna Clark

55a

Excerpts from United States Constitution

Article III, Section 2, Paragraph 1

The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made, or which

shall be made, under their Authority; —to all Cases

affecting Ambassadors, other public Ministers and

Consuls; —to all Cases of admiralty and maritime Jurisdiction; —to Controversies to which the United

States shall be a Party; —to Controversies between

two or more States; —between a State and Citizens of

another State, —between Citizens of different States,

—between Citizens of the same State claiming Lands

under Grants of different States, and between a State,

or the Citizens thereof, and foreign States, Citizens or

Subjects.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.

Amendment XIV, Section 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside. No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

56a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

CHIKE

UZUEGBUNAM

JOSEPH BRADFORD,

and

Plaintiffs,

STANLEY C. PRECZEWSKI, President of Georgia Gwinnett College, in his official and individual

capacities; LOIS C. RICHARDSON,

Acting Senior Vice President of

Academic and Student Affairs

and Provost at Georgia Gwinnett

College, in her official and individual

capacities;

JIM

FATZINGER, Senior Associate

Provost for Student Affairs for

Georgia Gwinnett College, in his

official and individual capacities;

TOMAS JIMINEZ, Dean of Students at Georgia Gwinnett College, in his official and individual

capacities; AILEEN C. DOWELL,

Director of the Office of Student

Integrity at Georgia Gwinnett

College, in her official and individual capacities; GENE RUFFIN,

Dean of Library Services at Georgia Gwinnett College, in his official and individual capacities;

CATHERINE JANNICK DOWNEY,

Case No. 1:16cv-04658-ELR

THE

HONORABLE

ELEANOR L.

ROSS

JURY TRIAL

DEMANDED

57a

Head of Access Services and Information Commons, in her official and individual capacities;

TERRANCE SCHNEIDER, Associate Vice President of Public

Safety and Emergency Preparedness/Chief of Police at Georgia

Gwinnett College, in his official

and individual capacities; COREY

HUGHES, Campus Police Lieutenant at Georgia Gwinnett College, in his individual and official

capacities; REBECCA A. LAWLER,

Community Outreach and Crime

Prevention Sergeant at Georgia

Gwinnett College, in her official

and

individual

capacities;

SHENNA

PERRY,

Campus

Safety/Security Officer at Georgia Gwinnett College, in her official and individual capacities.

Defendants.

FIRST AMENDED VERIFIED COMPLAINT

Plaintiffs Chike Uzuegbunam and Joseph Bradford, by and through counsel, and for their First

Amended Verified Complaint against Defendants,

hereby states as follows:

INTRODUCTION

The cornerstone of higher education is the

ability of students to participate in the “marketplace

of ideas” on campus. That marketplace depends on

free and vigorous debate and expression between students—debate and expression that is spontaneous,

58a

ubiquitous, and often anonymous—and is carried out

through spoken word, flyers, signs, and displays.

By policy and practice, Georgia Gwinnett

College (“GGC” or “College”) claims the unchecked

right to restrict the free speech rights of students and

to regulate the location of student expression and assembly on campus. The College claims to encourage

free discourse and debate on campus, but its Freedom

of Expression Policy restricts all types of student

speech to two small speech zones that occupy less than

0.0015% of campus. To use these speech zones, students must submit a “free speech area request” form

three days in advance and submit any publicity materials and literature they want to distribute to administrators for review. If students want to speak—

whether through oral or written communication—anywhere else on campus, then they must obtain a permit from College officials. Thus, students may not

speak spontaneously anywhere on campus. If students

violate this policy, they violate the College’s Student

Code of Conduct and expose themselves to a variety of

sanctions, including expulsion. Through the permitting process, GGC retains unfettered discretion to determine both whether students may speak at all and

where they may speak. In so doing, it fails to protect

students against content and viewpoint discrimination. These policies and practices chill protected student speech and disable spontaneous student speech

on campus.

By policy and practice, Georgia Gwinnett

College claims the unchecked right to restrict the content and viewpoint of what students say on campus.

Despite their claims to celebrate free speech, Defendants’ Student Code of Conduct defines “disorderly conduct” to include any expression “which disturbs the

59a

peace and/or comfort of person(s).” Defendants enforce this speech code to prohibit students from saying

anything that prompts complaints from listeners. In

so doing, Defendants have created and have enforced

a heckler’s veto that effectuates content and viewpoint discrimination. This policy and its related practices chill protected student speech on campus.

When Plaintiff Chike Uzuegbunam, a student at GGC, sought to distribute religious literature

in an open, generally accessible area of the campus

outside the library, Defendants required him to stop

because he was outside of the two tiny speech zones

and because he had not first obtained a permit.

When Mr. Uzuegbunam tried to share his

religious views in one of the speech zones after reserving it for this purpose, Defendants required him to

stop because his speech had generated complaints, informed him that his speech constituted “disorderly

conduct” because it had generated complaints, and instructed him to use the methods of other religious denominations to communicate his beliefs and viewpoints.

Defendants took these actions because of

the content and viewpoint of Mr. Uzuegbunam’s expression, because his expression prompted complaints and they believed it would continue to do so,

and because they wanted to pacify those who were or

might be offended by his expression. In taking these

actions, they implemented the challenged GGC policies, violated Mr. Uzuegbunam’s constitutional

rights, and inflicted irreparable injury upon him.

Plaintiff Joseph Bradford, a student at

GGC, desires to engage in similar expressive activities on campus, including literature distribution and

60a

public speaking, but Defendants’ policies and practices prevent him from doing so, thus chilling his exercise of his constitutional rights.

This action is premised on the United

States Constitution and concerns the denial of Mr.

Uzuegbunam’s and Mr. Bradford’s fundamental and

clearly established rights under the Free Speech and

Free Exercise Clauses of the First Amendment and

the Due Process and Equal Protection Clauses of the

Fourteenth Amendment.

The aforementioned policies and practices

are challenged on their face and as applied.

10.

Defendants’ policies and practices have deprived and will continue to deprive Plaintiffs of their

paramount rights and guarantees under the United

States Constitution.

11.

Each and every act of Defendants alleged

herein was committed by Defendants, each and every

one of them, under the color of state law and authority.

JURISDICTION & VENUE

12.

This civil rights action raises federal questions under the United States Constitution, particularly the First and Fourteenth Amendments, and the

Civil Rights Act of 1871, 42 U.S.C. § 1983.

13.

This Court has original jurisdiction over

these federal claims pursuant to 28 U.S.C. §§ 1331

and 1343.

14.

This Court has authority to award the requested damages pursuant to 28 U.S.C. § 1343; the

requested declaratory relief pursuant to 28 U.S.C.

§§ 2201–02; the requested injunctive relief pursuant

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to 28 U.S.C. § 1343 and FED. R. CIV. P. 65; and costs

and attorneys’ fees under 42 U.S.C. § 1988.

15.

This Court has supplemental jurisdiction

over the state law claims made herein pursuant to 28

U.S.C. § 1367.

16.

Venue is proper in this district and division

pursuant to 28 U.S.C. § 1391(b) and L.R. 3.1, N.D.

Ga., because Defendants reside in this district and division and/or all of the acts described in this Complaint occurred in this district and division.

PLAINTIFFS

17.

Mr. Chike Uzuegbunam and Mr. Joseph

Bradford are residents of the State of Georgia and students at GGC.

18.

Mr. Uzuegbunam and Mr. Bradford are professing evangelical Christians who strive to live out

their faith on a daily basis.

19.

Their Christian faith governs the way Mr.

Uzuegbunam and Mr. Bradford think about marriage,

morality, politics, and social issues, and it causes them

to hold sincerely-held religious beliefs in these areas.

20.

As evangelical Christians, Mr. Uzuegbunam and Mr. Bradford believe that the Bible is

God’s Word and sets out the plan of salvation for all

people. They believe that the Bible teaches that all

people are sinners and therefore deserve God’s wrath,

but that anyone can receive salvation and eternal life

by believing in Jesus Christ.

21.

Because of their firmly-held Christian beliefs, Mr. Uzuegbunam and Mr. Bradford believe it is

their duty to inform others, including members of the

GGC community, for their own benefit, that they have

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sinned and need salvation through Jesus Christ. They

look for opportunities to share their beliefs with their

fellow students and community members.

22.

Mr. Uzuegbunam’s message is purely evangelistic in nature. Through personal conversations, the

distribution of religious tracts, and open-air speaking,

he communicates in a loving way that all people

(including himself) are sinners and that salvation and

eternal life are available only through Jesus Christ.

23.

Mr. Bradford’s message is both evangelistic

and apologetic in nature. That is, through personal

conversations, the distribution of religious tracts, and

open-air speaking, he communicates in a loving way

that all people (including himself) are sinners and that

salvation and eternal life are available only through

Jesus Christ. In addition, he desires to convince others

of the truth of the Bible and to persuade others to

approach all areas of life from a Biblical worldview.

24.

Mr. Uzuegbunam and Mr. Bradford do not

seek monetary gain with their expressive activities.

They do not try to sell products or services, seek donations, or solicit signatures. They merely wish to expose others to their religious beliefs.

25.

Mr. Uzuegbunam’s and Mr. Bradford’s

expressive activities do not create a disturbance or

cause congestion. They merely wish to express their

religious beliefs peacefully, without being confrontational and without using amplification devices, to

those who are willing to listen.

DEFENDANTS

26.

Defendant Stanley C. Preczewski is, and

was at all times relevant to this Complaint, the Pres-

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ident of Georgia Gwinnett College, a public college organized and existing under the laws of the State of

Georgia.

27.

As president, Defendant Preczewski is the

Chief Executive Officer of GGC.

28.

Defendant Preczewski’s duties include,

among others, authorizing, executing, enforcing, and

implementing the policies governing students at GGC

and overseeing the operation and management of

GGC.

29.

Defendant Preczewski has the responsibility for final policymaking authority concerning students at GGC.

30.

Defendant Preczewski is responsible for the

enactment, amendment, enforcement, execution, and

implementation of College policies, including policies

challenged herein, and their application to students

in restricting their ability to speak freely and without

a permit on campus.

31.

As president of the College, Defendant Preczewski possesses the authority to change and enforce

the policies challenged herein.

32.

Defendant Preczewski possesses the authority and responsibility for coordination and approval of campus expression by students on campus.

33.

All changes in campus policies concerning

student expression are made only with the prior approval of Defendant Preczewski.

34.

Defendant Preczewski has not instructed

GGC personnel, includin

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