Amicus Curiae Brief — Chike Uzuegbunam, et al., Petitioners v. Stanley C. Preczewski, et al.

No. 19-968

In The

Supreme Court of the United States

____________________

CHIKE UZUEGBUNAM and JOSEPH BRADFORD,

Petitioners,

v.

STANLEY C. PRECZEWSKI, et al.,

Respondents.

____________________

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

____________________

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION, DELANEY WYSINGLE,

RENTBERRY, INC., LUIS RAMIREZ, MICHAEL

JACKSON, TORY SMITH, AND JILLIAN

OSTREWICH IN SUPPORT OF PETITIONERS

____________________

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

DLafetra@pacificlegal.org

Counsel for Amici Curiae

i

QUESTION PRESENTED

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

rights.

ii

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ...................................... iii

IDENTITY AND INTEREST OF AMICI CURIAE .. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 5

ARGUMENT ............................................................... 6

I.

ALL SUCCESSFUL CIVIL RIGHTS

PLAINTIFFS SHOULD RECOVER

NOMINAL DAMAGES AS A MATTER

OF LAW ............................................................ 6

A.

Nominal Damages Serve Key Functions in

Constitutional Litigation ............................ 6

B.

Rule 54(c) Allows Recovery of Nominal

Damages Without Special Pleading ........... 8

II. NOMINAL DAMAGES ENCOURAGE

LITIGATION TO CHALLENGE STATE

ACTION THAT VIOLATES

CIVIL RIGHTS............................................... 12

CONCLUSION.......................................................... 16

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Alabama State Conf. of Nat’l Ass’n for the

Adv. of Colored People v. Alabama,

949 F.3d 647 (11th Cir. 2020) ........................... 12

Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) ............................................. 8

Alden v. Maine, 527 U.S. 706 (1999) ...................... 12

Amato v. City of Saratoga Springs,

170 F.3d 311 (2d Cir. 1999) ................................. 7

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ............................................. 12

Butler v. Dowd,

979 F.2d 661 (8th Cir. 1992) ............................. 14

Calhoun v. DeTella,

319 F.3d 936 (7th Cir. 2003) ............................. 13

Carey v. Piphus,

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

City of Riverside v. Rivera,

477 U.S. 561 (1986) ........................................... 13

Comm. for First Amendment v. Campbell,

962 F.2d 1517 (10th Cir. 1992) ......................... 14

Connecticut Bd. of Pardons v. Dumschat,

452 U.S. 458 (1981) ........................................... 10

Cummings v. Connell,

402 F.3d 936 (9th Cir. 2005) ............................... 7

Doe v. United States Dep’t of Justice,

753 F.2d 1092 (D.C. Cir. 1985) ........................... 9

iv

Equal Employment Opportunity

Commission v. Massey-Ferguson, Inc.,

622 F.2d 271 (7th Cir. 1980) ............................... 9

Fairmont Creamery Co. v. Minn.,

275 U.S. 70 (1927) ............................................ 13

Farrar v. Hobby,

506 U.S. 103 (1992) ........................... 6, 10, 15, 16

Fast v. School Dist. of City of Ladue,

728 F.2d 1030 (8th Cir. 1984) .......................... 15

Fed. Sav. and Loan Ins. Corp. v. Texas Real

Estate Counselors, Inc.,

955 F.2d 261 (5th Cir. 1992) ............................... 8

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ........................................... 12

Floyd v. Laws,

929 F.2d 1390 (9th Cir. 1991) ............................ 2

George v. City of Long Beach,

973 F.2d 706 (9th Cir. 1992) ............................... 7

Gibeau v. Nellis,

18 F.3d 107 (2d Cir. 1994) ................................... 7

Guzman v. City of Chicago,

689 F.3d 740 (7th Cir. 2012) ............................... 7

Harris v. City of Houston,

151 F.3d 186 (5th Cir. 1998) ............................... 9

Hewitt v. Helms,

482 U.S. 755 (1987) ............................................. 7

Holt Civic Club v. City of Tuscaloosa,

439 U.S. 60 (1978) ............................................... 9

v

Innovation Ventures, LLC v. Custom

Nutrition Laboratories, LLC,

912 F.3d 316 (6th Cir. 2018) ............................... 8

Jackson v. Napolitano, Order Granting in

Part Motion to Dismiss,

No. 3:19-cv-01427-LAB-AHG, docket no.

54 (S.D. Cal. Sept. 24, 2020) ............................... 3

Janus v. AFSCME Council 31,

138 S. Ct. 2448 (2018) ......................................... 3

Larez v. City of Los Angeles,

946 F.2d 630 (9th Cir. 1991) ............................. 13

Lewis v. County of San Diego,

798 Fed. App’x 58 (9th Cir. 2019) ..................... 15

Lowry v. Watson Chapel Sch. Dist.,

540 F.3d 752 (8th Cir. 2008) ............................. 15

Memphis Community School Dist. v.

Stachura, 477 U.S. 299 (1986) ...................... 6, 13

Metro-North Commuter R. Co. v. Buckley,

521 U.S. 424 (1997) ............................................. 8

New York State Rifle & Pistol Ass’n v. City

of New York,

140 S. Ct. 1525 (2020) ................................. 10, 11

Ostrewich v. Trautman,

Memorandum Opinion and Order, No.

4:19-cv-00715 (S.D. Tex. April 30, 2020) ............ 4

Owen v. City of Independence, Mo.,

445 U.S. 622 (1980) ........................................... 13

Pagan v. Village of Glendale, Ohio,

559 F.3d 477 (6th Cir. 2009) ............................. 14

vi

Rentberry v. City of Seattle,

No. 19-35308, 2020 WL 4364016

(9th Cir. July 30, 2020) ....................................... 2

Risdal v. Halford,

209 F.3d 1071 (8th Cir. 2000) ........................... 10

Robinson v. Cattaraugus County,

147 F.3d 153 (2d Cir. 1998) ............................... 15

Savage v. Toan,

636 F. Supp. 156 (W.D. Mo. 1986) ................... 16

Searles v. Van Bebber,

251 F.3d 869 (10th Cir. 2001) ........................... 10

Sheet Metal Workers’ Int’l Ass’n Local 19 v.

Herre Bros., Inc.,

201 F.3d 231 (3d Cir. 1999) ................................. 8

State of Idaho Potato Comm’n v. G&T

Terminal Packaging, Inc.,

425 F.3d 708 (9th Cir. 2005) ............................... 9

Town of Portsmouth, R.I. v. Lewis,

813 F.3d 54 (1st Cir. 2016) .................................. 9

USX Corp. v. Barnhart,

395 F.3d 161 (3d Cir. 2004) ................................. 8

Ex parte Young,

209 U.S. 123 (1908) ........................................... 14

Z Channel Ltd. P’ship v. Home Box Office,

Inc., 931 F.2d 1338 (9th Cir. 1991) ..................... 9

Statutes

42 U.S.C. § 1983 .............................................. passim

42 U.S.C. § 1988 ................................................ 15, 16

vii

Constitutional Provisions

U.S. Const. amend. XIV, § 5 ................................... 13

U.S. Const. art. VI, cl. 2 .......................................... 12

Rule

Fed. R. Civ. P. 54(c) .................................... 5, 7, 9, 10

Other Authorities

Cambre, Megan E., Note, A Single Symbolic

Dollar: How Nominal Damages Can

Keep Lawsuits Alive, 52 Ga. L. Rev. 933

(2018) ................................................................. 14

13A Wright, Miller & Cooper, Federal

Practice and Procedure: Jurisdiction 2d

§ 3533.3 (2d ed. 1984) ........................................ 14

1

IDENTITY AND INTEREST

OF AMICI CURIAE 1

Pacific Legal Foundation (PLF) is a nonprofit

501(c)(3) organization that provides pro bono

assistance to individuals seeking to challenge

government infringement on their constitutional

rights. PLF attorneys represent the additional amici

who join this brief in cases raising a variety of

constitutional claims. In each of their respective cases,

these amici should be entitled to nominal damages as

“symbolic vindication” of various constitutional rights

if they prevail. These cases raise issues well beyond

the campus speech and religious liberty contexts, but,

as in this case, government defendants have moved to

dismiss their claims as moot, notwithstanding the

availability of nominal damages for past, completed

constitutional violations.

Delaney Wysingle owns a single rental property in

the City of Seattle. He would have used Rentberry, a

rent-bidding website, to fill a vacancy but for a city

ordinance that banned landlords from using such

platforms. Wysingle and Rentberry sued to strike

down the ordinance as a violation of their First

Amendment rights. The federal district court

dismissed the case and Wysingle and Rentberry

appealed. On the eve of oral argument before the

Ninth Circuit, Seattle repealed the ban and replaced

1 Amici Curiae affirm that no counsel for any party authored this

brief in whole or in part, and no counsel or party made a

monetary contribution intended to fund the preparation or

submission of this brief. No person other than Amici Curiae, their

members, or their counsel made a monetary contribution to the

brief’s preparation or submission. Both petitioners and

respondents have given blanket consent to the filing of amicus

briefs.

2

it with an ordinance to study the effects of rentbidding. Legislative history underlying the new

ordinance anticipates future action up to and

including a total ban on rent-bidding websites in

perpetuity. Upon enacting this new ordinance, the city

moved to dismiss the case. In supplemental briefing

on mootness before the Ninth Circuit, Wysingle

argued that he would be entitled to recover nominal

damages, even though he did not specifically request

them, as symbolic vindication of his First Amendment

rights because the ban prevented him from speaking

via a rent-bidding website. See Floyd v. Laws, 929

F.2d 1390, 1401 (9th Cir. 1991) (In the Ninth Circuit,

a plaintiff who prevails in a civil rights action under

section 1983 “is entitled to nominal damages as a

matter of law.”). The Ninth Circuit nonetheless

vacated the decision below and ordered the district

court to dismiss the case as moot. Rentberry v. City of

Seattle, No. 19-35308, 2020 WL 4364016 (9th Cir.

July 30, 2020) (mem.).

Luis Ramirez owns Roxy Nails Design, LLC, a nail

salon in Hartford, Connecticut. His salon was shut

down by arbitrary regulations and executive orders

issued by the Connecticut Department of Economic

and Community Development and Connecticut

Governor Ned Lamont ostensibly in response to

Covid-19. Ramirez sued under state and federal

statutes, including 42 U.S.C. § 1983, alleging federal

equal protection and substantive due process claims.

He seeks to enjoin the state defendants’ abusive use of

emergency power that arbitrarily selected which

businesses were “essential” and could safely reopen

and which would remain shuttered. The state moved

to dismiss based, in part, on grounds of mootness

because the closure orders were lifted after Ramirez

3

sued. Ramirez’s prayer for relief specifically seeks

nominal damages as symbolic vindication for the past

violation of his federal constitutional rights. The

motion is pending. Roxy Nails Design, LLC v. Lamont,

Connecticut Superior Court, Hartford Judicial

District docket no. HHD-CV20-61128585-S.

Michael Jackson and Tory Smith work in the

Parking Management department at the University of

California, San Diego (UCSD). After they learned

about this Court’s decision in Janus v. AFSCME

Council 31, 138 S. Ct. 2448 (2018), they tried to ask

their employer how they could assert their First

Amendment right to refrain from paying union dues.

Under a California law enacted the same day that

Janus issued, public employers in the state are

forbidden to communicate with their employees about

Janus or First Amendment rights related to the

payment of union dues (the Gag Rule statute). The law

requires all public employees to communicate solely

with the public employee union about the potential

exercise of their First Amendment rights. Jackson and

Smith filed First and Fourteenth Amendment claims

under 42 U.S.C. § 1983. They seek invalidation of the

Gag Rule statute and other relief—including nominal

and actual damages. The defendant Teamsters union

filed a motion to dismiss based on mootness allegedly

caused by an unaccepted settlement offer. The union’s

motion ignores the noneconomic harm caused by the

Gag Rule statute, for which Jackson and Smith would

be entitled to nominal damages if they prevail. The

court granted the union’s motion to dismiss with leave

to amend. Jackson v. Napolitano, Order Granting in

Part Motion to Dismiss, No. 3:19-cv-01427-LAB-AHG,

docket no. 54 (S.D. Cal. Sept. 24, 2020).

4

Jillian Ostrewich is a self-described “fire wife.” Her

husband is a fireman who serves in the Houston Fire

Department and is a member of the International

Association of Fire Fighters, affiliated with the AFLCIO. On the November 2018 ballot, Houston voters

were presented with an initiative measure affecting

firefighter pay, Proposition B. During the early voting

period, Ostrewich went to vote while wearing an

IAFF/AFL-CIO Houston Fire Fighters t-shirt.

Although the shirt made no reference to Proposition

B, an election worker confronted Ostrewich and told

her she could not wear her shirt because they were

“voting on that.” The worker instructed Ostrewich to

go to the restroom and turn her shirt inside-out before

she would be allowed to vote. Ostrewich complied and

voted. She then sued to invalidate the Texas

electioneering statutes that were enforced against her

as violating her First Amendment rights. She seeks

nominal damages in addition to declaratory and

injunctive relief. The county and state defendants

moved to dismiss her case as moot because the

election was over and, they claimed, it was unlikely

that an initiative similar to Proposition B would again

be on the ballot. The court denied the motions to

dismiss, noting that the Fifth Circuit consistently

holds that a claim for nominal damages avoids

mootness. Ostrewich v. Trautman, Memorandum

Opinion and Order, No. 4:19-cv-00715 (S.D. Tex.

April 30, 2020) (citing Duarte ex rel. Duarte v. City of

Lewisville, Tex., 759 F.3d 514, 521 (5th Cir. 2014)).

The court’s order permitted the defendants to raise

this issue again when the parties filed cross-motions

for summary judgment and they have done so.

5

INTRODUCTION AND

SUMMARY OF ARGUMENT

Amici ask this Court to make two clear statements

in an opinion reversing the Eleventh Circuit. First,

successful civil rights plaintiffs proceeding under 42

U.S.C. § 1983 are entitled to recover nominal damages

as symbolic vindication of their rights regardless of

whether they specifically request them in the prayer

for relief. See Fed. R. Civ. P. 54(c) (“[F]inal judgment

should grant the relief to which each party is entitled,

even if the party has not demanded that relief in its

pleadings.”). Second, an award of nominal damages

furthers the goals of the Civil Rights Act, encourages

plaintiffs to challenge unconstitutional government

action, and does not violate sovereign immunity.

Each of the civil rights plaintiffs on this brief are

currently challenging government infringement of

their constitutional rights. Their cases arise in

contexts well beyond the campus speech and religious

liberty issues presented by Petitioners. Instead, they

are public employees challenging state laws that

forbid communications with their employer about

their First Amendment rights; a landlord seeking to

speak to potential tenants via an online rent-bidding

platform; a small businessman trying to stay afloat in

the face of arbitrary business closure orders that

violate due process and equal protection; and a voter

confronted by election officials and ordered to the

bathroom to turn her shirt inside-out because she

wore a union shirt to the polls. While compensatory

damages may be available for some constitutional

injuries, many are intangible and cannot be

monetized. It is precisely to account for these types of

constitutional injuries that nominal damages are

6

available without proof of any monetary harm. Carey

v. Piphus, 435 U.S. 247, 266 (1978); Memphis

Community School Dist. v. Stachura, 477 U.S. 299,

308 n.11 (1986).

The proposed statements that amici urge this

Court to adopt reflect the majority view among the

Circuit courts and would bring clarity and consistency

to litigants nationwide. They also promote the express

legislative purpose underlying civil rights laws to

encourage private enforcement of constitutional

rights and pro bono representation of those brave

plaintiffs willing to challenge their own government.

ARGUMENT

I

ALL SUCCESSFUL CIVIL RIGHTS

PLAINTIFFS SHOULD RECOVER NOMINAL

DAMAGES AS A MATTER OF LAW

A.

Nominal Damages Serve Key Functions in

Constitutional Litigation

When the government violates a plaintiff’s

constitutional rights, courts may award nominal

damages without proof of any additional injury. See

Carey, 435 U.S. at 266 (violation of procedural rights);

Stachura, 477 U.S. at 308 n.11 (violation of

substantive rights). While Carey used the

discretionary “may,” the Court later suggested that

Carey required an award of nominal damages in cases

of proven constitutional injury. Farrar v. Hobby, 506

U.S. 103, 112 (1992) (“Carey obligates a court to award

nominal damages when a plaintiff establishes the

violation of his right to procedural due process but

cannot prove actual injury.”).

7

Recognizing the importance of nominal damages,

several circuit courts adopted this mandatory

approach, establishing nominal damages as an

entitlement for successful civil rights plaintiffs. See,

e.g., George v. City of Long Beach, 973 F.2d 706, 708

(9th Cir. 1992) (“In this Circuit, nominal damages

must be awarded if a plaintiff proves a violation of his

constitutional rights.”) (emphasis added); Gibeau v.

Nellis, 18 F.3d 107, 111 (2d Cir. 1994) (nominal

damages are “compelled by law upon proof of a

substantive constitutional violation”) (emphasis

added); Guzman v. City of Chicago, 689 F.3d 740, 748

(7th Cir. 2012) (nominal damages available when

there is no possibility of compensatory damages

related to a constitutional injury).

Treating nominal damages as mandatory for

vindication of constitutional rights elevates their role

beyond a trivial sum of money. “Recovery of nominal

damages is important not for the amount of the award,

but for the fact of the award.” Cummings v. Connell,

402 F.3d 936, 945 (9th Cir. 2005). First, nominal

damages provide “moral satisfaction” to a plaintiff

that a federal court agrees that his or her

constitutional rights were violated. Hewitt v. Helms,

482 U.S. 755, 761 (1987). Second, an award of nominal

damages “holds [the government] responsible for its

actions and inactions,” Amato v. City of Saratoga

Springs, 170 F.3d 311, 318 (2d Cir. 1999), and creates

an “enforceable judgment requiring the alteration of

defendant’s behavior.” Cummings, 402 F.3d at 946

(nominal damages must be paid to each member of a

plaintiff class).

8

B.

Rule 54(c) Allows Recovery of Nominal

Damages Without Special Pleading

Federal Rule of Civil Procedure 54(c) explicitly

permits courts to award relief to which a prevailing

plaintiff is “entitled” regardless of whether such relief

is specifically requested in the complaint. The rule is

meant to protect plaintiffs from a “technical oversight”

in a pleading that “might deprive [them] of a deserved

recovery,” such as damages, attorneys’ fees, costs, and

interest, USX Corp. v. Barnhart, 395 F.3d 161, 165 (3d

Cir. 2004), and to ensure “a just result in light of the

circumstances of the case.” Albemarle Paper Co. v.

Moody, 422 U.S. 405, 424–25 (1975) (internal quotes

omitted). 2 Under this rule, a “party should experience

little difficulty in securing a remedy other than that

demanded in his pleadings when he shows he is

entitled to it.” Metro-North Commuter R. Co. v.

Buckley, 521 U.S. 424, 455 (1997) (Ginsburg, J.,

concurring in the judgment and dissenting in part)

(citing 10 Charles A. Wright, Arthur R. Miller, & Mary

Kay Kane, Federal Practice and Procedure § 2662, at

135 (2d ed. 1983)). See also Sheet Metal Workers’ Int’l

Ass’n Local 19 v. Herre Bros., Inc., 201 F.3d 231, 249

(3d Cir. 1999) (awarding specific performance as “just

and proper” relief); Fed. Sav. and Loan Ins. Corp. v.

Texas Real Estate Counselors, Inc., 955 F.2d 261, 269–

70 (5th Cir. 1992) (prejudgment interest included in

“any other relief, both special and general, to which

[plaintiff] may be justly entitled”).

2 Courts may decline to make a nonrequested award if it would

be prejudicial to the opposing party. Albermarle, 422 U.S. at 424.

However, an award of nominal damages alone cannot be

prejudicial. See Innovation Ventures, LLC v. Custom Nutrition

Laboratories, LLC, 912 F.3d 316, 331 (6th Cir. 2018).

9

Seeking to cover all bases, complaints frequently

contain a prayer for “other such additional relief as

may be just and proper.” This is not mere boilerplate;

it provides notice that the plaintiff seeks other relief—

as authorized by Rule 54—to which he or she would

be entitled to recover under the law. Holt Civic Club

v. City of Tuscaloosa, 439 U.S. 60, 66 (1978) (Per Rule

54(c), “a federal court should not dismiss a meritorious

constitutional claim because the complaint seeks one

remedy rather than another plainly appropriate

one.”); Z Channel Ltd. P’ship v. Home Box Office, Inc.,

931 F.2d 1338, 1341 (9th Cir. 1991) (a party does “not

foreclose relief in damages by failing to ask for them”);

Equal Employment Opportunity Commission v.

Massey-Ferguson, Inc., 622 F.2d 271, 277 (7th Cir.

1980) (applying Rule 54(c) to authorize backpay

during conciliation in Title VII case although no such

relief sought in the complaint); Doe v. United States

Dep’t of Justice, 753 F.2d 1092, 1104 (D.C. Cir. 1985)

(“it need not appear that the plaintiff can obtain the

specific relief demanded as long as the court can

ascertain from the face of the complaint that some

relief can be granted”).

So long as a complaint gives notice of a plaintiff’s

claims and their grounds, omissions in a prayer for

relief are no barrier to redress of meritorious claims.

As Judge DeMoss explained in Harris v. City of

Houston, 151 F.3d 186, 195 (5th Cir. 1998) (DeMoss,

J., dissenting), because federal courts “operate under

a system of notice pleading,” the general, catch-all

relief prayer ensures that the “failure to recite magic

words should not preclude relief.” See also Town of

Portsmouth, R.I. v. Lewis, 813 F.3d 54, 61 (1st Cir.

2016) (Under Rule 54(c) and pursuant to the

complaint’s “general prayer for relief,” a court may

10

award restitution not specifically requested.). Thus, in

State of Idaho Potato Comm’n v. G&T Terminal

Packaging, Inc., 425 F.3d 708, 720 (9th Cir. 2005), a

district court erred in awarding one dollar as a “civil

penalty” because it lacked authority under the civil

penalty statute. However, the Ninth Circuit held that

the dollar could be “viewed as nominal damages” and

was therefore within the court’s power to award even

though nominal damages were not requested in the

complaint.

Beyond relief that is “noticed,” Rule 54 covers relief

to which a plaintiff is “entitled,” and that must include

relief that is mandatory upon proving the plaintiff’s

case. See Connecticut Bd. of Pardons v. Dumschat, 452

U.S. 458, 466 (1981) (equating the definition of a

“constitutional entitlement” with a “mandated

‘shall’’’). As noted above, supra at 6–7, many lower

courts apply a general rule based on Carey and Farrar

that nominal damages are mandatory upon a finding

of a constitutional violation. Additionally, in Risdal v.

Halford, the Eighth Circuit held that “the rationale of

Farrar requires an award of nominal damages upon

proof of an infringement of the first amendment right

to speak.” 209 F.3d 1071, 1072 (8th Cir. 2000)

(emphasis added) (plain error to give the jury

discretion not to award nominal damages on a finding

of a violation of free speech rights). See also Searles v.

Van Bebber, 251 F.3d 869, 879 (10th Cir. 2001)

(nominal damages are mandatory upon a finding of a

constitutional violation, even in the absence of

compensatory or punitive damages, and with no

explicit request for nominal damages).

This Court’s decision in New York State Rifle &

Pistol Ass’n (NYSRPA) v. City of New York, 140 S. Ct.

11

1525 (2020), foreshadows this result. There, the Court

considered whether a government’s strategic reversal

of policy, intended to deprive this Court of jurisdiction,

mooted the case. The per curiam decision remanded

the case to the lower courts to consider whether

petitioners could claim damages, even though “they

have not previously asked for damages with respect to

the City’s old rule.” Id. at 1526. The remand order

makes sense only if the Court presumed both that

nominal damages are available for past constitutional

violations and that allegations of actual injuries are

not required to establish entitlement for damages in a

Section 1983 case. Had these presumptions not

underlie the per curiam opinion (and Justice

Kavanaugh’s concurrence), the Court would have

simply dismissed the case as moot since a majority of

justices agreed that injunctive relief was unavailable

and the only request for damages was implicit, via the

general pleading for such other relief. Id. at 1526–27.

The dissenting opinion in NYSRPA does not

conflict with the majority’s approach—it would have

gone further and turned these presumptions into

explicit holdings that eliminated the need for a

remand. The dissenting justices noted that the

operative complaint’s prayer for relief sought to enjoin

New York’s travel restrictions, a declaration that the

challenged

restrictions

violated

the

Second

Amendment, attorneys’ fees, costs of suit, and “[a]ny

such further relief as the [c]ourt deems just and

proper.” NYSRPA, 140 S. Ct. at 1535 (Alito, J.,

dissenting) (citation omitted). Based on this last claim

for relief, the dissenters explained that should the

petitioners prevail, they would be entitled to damages

under 42 U.S.C. § 1983 even without expressly

requesting them. Id. The dissent’s opinion on this

12

point—which reflects the majority view of the lower

courts—was not addressed in the NYSRPA per curiam

majority opinion or Justice Kavanaugh’s concurrence

and should be adopted by the full Court in this case. 3

II

NOMINAL DAMAGES ENCOURAGE

LITIGATION TO CHALLENGE STATE ACTION

THAT VIOLATES CIVIL RIGHTS

State sovereign immunity is not unlimited. Most

fundamentally, the United States Constitution is the

supreme law of the land, and state judges are required

to enforce it as such. U.S. Const. art. VI, cl. 2. The

Fourteenth Amendment “embod[ies] significant

limitations on state authority.” Fitzpatrick v. Bitzer,

427 U.S. 445, 456 (1976). It specifically authorizes

citizens to initiate private lawsuits against “States or

state

officials

which

are

constitutionally

impermissible in other contexts.” Id.; Alabama State

Conf. of Nat’l Ass’n for the Adv. of Colored People v.

Alabama, 949 F.3d 647, 649 (11th Cir. 2020)

(acknowledging the Voting Rights Act as “among the

most effective civil rights statutes . . . largely due to

the work of private litigants”). In Alden v. Maine, 527

U.S. 706, 756 (1999), the Court explained that in

ratifying the Fourteenth Amendment the states

3 On a related note, the Court should clarify that Arizonans for

Official English v. Arizona, 520 U.S. 43, 71 (1997), does not

preclude an award of nominal damages to successful civil rights

plaintiffs. Arizonans noted in dicta that a claim for damages

“asserted solely to avoid otherwise certain mootness” should be

inspected closely. But rarely would there exist a reason that

nominal damages could not be awarded to civil rights plaintiffs

should they ultimately prevail in proving a completed, past

constitutional violation.

13

understood that “federal interests are paramount”

and “surrender[ed] a portion of the sovereignty that

had been preserved to them by the original

Constitution.” Cf. Fairmont Creamery Co. v. Minn.,

275 U.S. 70, 77 (1927) (Supreme Court may assess

costs against state that is losing party).

The Civil Rights Act of 1871, enacted pursuant to

U.S. Const. amend. XIV, § 5 and codified as 42 U.S.C.

§ 1983, gives citizens authority to sue state actors who

violate their federally protected rights. Owen v. City

of Independence, Mo., 445 U.S. 622, 651 (1980) (“How

‘uniquely amiss’ it would be, therefore, if the

government itself—‘the social organ to which all in

our society look for the promotion of liberty, justice,

fair and equal treatment, and the setting of worthy

norms and goals for social conduct’—were permitted

to disavow liability for the injury it has begotten.”)

(citation omitted). Section 1983 thus provides an

avenue by which civil rights plaintiffs can “vindicate

important civil and constitutional rights that cannot

be valued solely in monetary terms.” City of Riverside

v. Rivera, 477 U.S. 561, 574 (1986).

Among other relief, under Section 1983, plaintiffs

who prove constitutional civil rights violations are

entitled to recover symbolic nominal damages. E.g.,

id.; Carey, 435 U.S. at 266; Stachura, 477 U.S. at 308

n.11; Calhoun v. DeTella, 319 F.3d 936, 941 (7th Cir.

2003) (“nominal damages ‘are not compensation for

loss or injury, but rather recognition of a violation of

rights”’) (citation omitted); Larez v. City of Los

Angeles, 946 F.2d 630, 640 & n.4 (9th Cir. 1991)

(discussing

the

importance

of

vindicating

constitutional rights through symbolic awards). There

was no formal request for nominal damages

14

mentioned in Carey. Rather, the plaintiffs’ complaint

requested “declaratory and injunctive relief, together

with actual and punitive damages.” Carey, 435 U.S. at

250–51. Despite this omission, the plaintiffs were

entitled to nominal damages, based on the violation of

their constitutional rights, with no apparent

infringement on sovereign immunity. Id. at 248.

The function of nominal damages is similar to that

of declaratory judgment, 4 especially in cases that

“provide needed clarity and prevent stagnation in

constitutional tort law, which helps deter other

violations.” Megan E. Cambre, Note, A Single

Symbolic Dollar: How Nominal Damages Can Keep

Lawsuits Alive, 52 Ga. L. Rev. 933, 962 (2018). See

also Pagan v. Village of Glendale, Ohio, 559 F.3d 477,

478 n.1 (6th Cir. 2009) (“Nominal damages are a

symbolic recognition of harm that may be awarded

without proof of actual harm and ‘have only

declaratory effect.’”) (citation omitted); Butler v.

Dowd, 979 F.2d 661, 673 (8th Cir. 1992) (nominal

damages award “amounts to an implicit declaration of

the same things that plaintiffs are requesting in their

motion for declaratory relief”). They are not identical.

A declaratory judgment may be considered more

forward-looking, as it describes the legal relationship

between the parties whether in the past, present, or

future. Nominal damages serve as acknowledgement

for a past, completed constitutional violation that

caused (at a minimum) a nonmonetary injury that

demands and deserves redress. See, e.g., Comm. for

4 The Eleventh Amendment does not bar suits for injunctive or

declaratory relief against individual state officers acting in

violation of federal law. Ex parte Young, 209 U.S. 123, 155–56

(1908).

15

First Amendment v. Campbell, 962 F.2d 1517, 1526

(10th Cir. 1992) (“The nominal damages claim . . .

relates to past (not future) conduct.”); 13A Wright,

Miller & Cooper, Federal Practice and Procedure:

Jurisdiction 2d § 3533.3, at 266 (“The very

determination that nominal damages are an

appropriate remedy for a particular wrong implies a

ruling that the wrong is worthy of vindication by an

essentially declaratory judgment.”). 5

An award of nominal damages also furthers the

goals of civil rights legislation by changing the legal

relationship between the parties and making it

possible for prevailing civil rights plaintiffs to seek

attorneys’ fees under 42 U.S.C. § 1988. Farrar, 506

U.S. at 112; Lewis v. County of San Diego, 798 Fed.

App’x 58, 62 (9th Cir. 2019) (awarding fees after a case

resulted in nominal damages and “a deterrent effect”

against the county’s continuing an unconstitutional

policy); Fast v. School Dist. of City of Ladue, 728 F.2d

1030, 1033–35 (8th Cir. 1984) (Section 1983 plaintiff

who proves a constitutional violation is entitled to

nominal damages and attorneys’ fees). The potential

for fees promotes Congress’s goal of protecting civil

rights, even when—perhaps especially when—

5 Because the nature of nominal damages is more equitable than

compensatory, a court can add them to a jury award without

running afoul of the Seventh Amendment prohibition on

augmenting a jury’s award. Lowry v. Watson Chapel Sch. Dist.,

540 F.3d 752, 762 (8th Cir. 2008) (“The jury was required to

award plaintiffs nominal damages, and therefore the district

court did not abuse its discretion in amending the judgment to

reflect a nominal damage award as a matter of law.”). See also

Robinson v. Cattaraugus County, 147 F.3d 153, 162 (2d Cir. 1998)

(because a plaintiff who proves a constitutional violation is

entitled to nominal damages “as a matter of law,” it is “plain

error” to instruct the jury that it “may” award nominal damages).

16

plaintiffs could not otherwise afford to litigate to

defend their rights. As Justice O’Connor explained,

Section 1988 is “a tool that ensures the vindication of

important rights, even when large sums of money are

not at stake, by making attorney’s fees available

under a private attorney general theory.” Farrar, 506

U.S. at 122 (O’Connor, J., concurring). See also Savage

v. Toan, 636 F. Supp. 156, 157 (W.D. Mo. 1986)

(Section 1988 fees properly assessed against state

defendants even though they agreed with plaintiffs’

claims because the state bowed to the federal

government’s pressure to enact constitutionally

invalid regulations and, in doing so, “threw the

monkey onto plaintiffs’ backs and forced plaintiffs to

take the initiative”). Thus, potential liability for

attorneys’ fees under 42 U.S.C. § 1988 “provides

additional—and by no means inconsequential—

assurance that the agents of the State will not

deliberately ignore [constitutional] rights.” Carey, 435

U.S. at 257 n.11.

CONCLUSION

Completed, past constitutional violations always

justify an award of nominal damages and should

prevent dismissal of a case for mootness. The

Eleventh Circuit’s ruling to the contrary should be

reversed and, in so doing, this Court should hold that

successful civil rights plaintiffs proceeding under 42

U.S.C. § 1983 always are entitled to recover nominal

damages as symbolic vindication of their rights

regardless of whether they specifically request them

in the prayer for relief and that a civil rights plaintiff’s

explicit demand for nominal damages does not

implicate sovereign immunity under the Eleventh

Amendment.

17

DATED: September, 2020.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

DLafetra@pacificlegal.org

Counsel for Amici Curiae Pacific Legal Foundation,

Delaney Wysingle, Rentberry, Inc., Luis Ramirez,

Michael Jackson, Tory Smith, and Jillian Ostrewich