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

Supreme Court briefSep 28, 2020

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No. 19-968

IN THE

Supreme Court of the United States

CHIKE UZUEGBUNAM, ET AL.,

Petitioners,

STANLEY C. PREZEWSKI, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

BRIEF OF AMICUS CURIAE PUBLIC CITIZEN

IN SUPPORT OF PETITIONERS

MATTHEW A. SELIGMAN

Counsel of Record

ALLISON M. ZIEVE

SCOTT L. NELSON

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

mseligman@citizen.org

Counsel for Amicus Curiae

September 2020

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT ............................................................... 3

A claim for nominal damages to remedy

unquantifiable injuries attributable to a past

violation of a right confers standing and defeats

mootness. .............................................................. 4

II. The court of appeals’ contrary conclusion

undermines the adjudicatory role of Article III

courts. ................................................................. 11

CONCLUSION.......................................................... 14

TABLE OF AUTHORITIES

Cases

Pages

Aetna Life Insurance Co. v. Haworth,

300 U.S. 227 (1937) ............................................ 10

Amato v. Saratoga Springs,

170 F.3d 311 (2d Cir. 1999) ................................ 12

Baker & Hostetler LLP v. U.S. Department of

Commerce,

473 F.3d 312 (D.C. Cir. 2006) ............................ 14

Bank Markazi v. Peterson,

136 S. Ct. 1310 (2016) ......................................... 11

Buckhannon Board & Care Home v. West Virginia

Department of Health & Human Resources,

532 U.S. 598 (2001) ................................... 2, 11, 13

Carey v. Piphus,

435 U.S. 247 (1978) ........................................ 7, 12

Chafin v. Chafin,

568 U.S. 165 (2013) ...................................... 1, 4, 8

Christian Legal Society v. Martinez,

561 U.S. 661 (2010) .............................................. 9

City of Riverside v. Rivera,

477 U.S. 561 (1986) ............................................... 6

Ellis v. Brotherhood of Railway Employees,

466 U.S. 435 (1984) ............................................... 5

Farrar v. Hobby,

506 U.S. 103 (1992) ................................. 5, 6, 8, 13

Firefighters v. Stotts,

467 U.S. 561 (1984) .............................................. 5

Flanigan’s Enterprises, Inc. v. City of

Sandy Springs,

868 F.3d 1248 (11th Cir. 2017) ............................ 9

iii

Friends of the Earth, Inc. v. Laidlaw,

528 U.S. 167 (2000) .................................... 2, 4, 10

Genesis HealthCare Corp. v. Symczyk,

569 U.S. 66 (2013) ............................................... 11

Golden v. Zwickler,

394 U.S. 103 (1968) ............................................. 10

Hewitt v. Helms,

482 U.S. 755 (1987) .............................................. 6

Kirtsaeng v. John Wiley & Sons, Inc.,

136 S. Ct. 1979 (2016) ......................................... 14

Klein v. Laguna Beach,

810 F.3d 693 (9th Cir. 2016) ............................... 12

Knox v. Service Employees International Union,

Local 1000,

567 U.S. 298 (2012) ............................................... 5

Los Angeles County, CA v. Humphries,

562 U.S. 29 (2010) ................................................. 9

Lance v. Coffman,

549 U.S. 437 (2007) .............................................. 6

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .......................................... 4, 6

Marbury v. Madison,

1 Cranch 137 (1803) ........................................... 11

Medimmune, Inc. v. GenenTech, Inc.,

549 U.S. 118 (2007) ............................................ 10

Memphis Community School District v. Stachura,

477 U.S. 299 (1986) ....................................... 7, 8, 9

Mission Product Holdings, Inc. v.

Tempnology, LLC,

139 S. Ct. 1652 (2019) ........................................... 5

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) ............................................... 8

Nashville, Chattanooga & St. Louis Railway Co.

v. Wallace,

288 U.S. 249 (1933) ............................................ 10

New York State Rifle & Pistol Ass’n v.

City of New York,

140 S. Ct. 1525 (2020) ..................................... 6, 14

Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400 (1968) ............................................ 13

Price v. Charlotte,

93 F.3d 1241 (4th Cir. 1996) ............................... 12

Project Vote/Voting for America, Inc. v. Dickerson,

444 F. App’x 660 (4th Cir. 2011) … .................... 12

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016) ........................................... 4

Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998) ................................................ 5

Steffel v. Thompson,

415 U.S. 452 (1974) ............................................ 10

Stoedter v. Gates,

704 F. App’x 748 (10th Cir. 2017) ...................... 12

United States v. Students Challenging Regulatory

Agency Procedures,

412 U.S. 669 (1973) ............................................... 4

Utah Animal Rights v. Salt Lake City Corp.,

371 F.3d 1248 (10th Cir. 2004) ............................. 9

Vermont Agency of Natural Resources. v.

United States ex rel. Stevens,

529 U.S. 765 (2000) .............................................. 6

Statutes and Legislative Materials

42 U.S.C. § 1988 ................................................. 12, 13

H.R. Rep. No. 94-1558 (1976) ................................... 13

S. Rep. No. 94-1011 (1976) ....................................... 13

Miscellaneous

Samuel L. Bray, The Myth of the Mild Declaratory

Judgment,

63 Duke L.J. 1091 (2014) .................................... 10

D. Dobbs, Law of Remedies (1973) ............................. 7

D. Dobbs, Restatement of Torts (1939) ...................... 7

C. McCormick, Law of Damages (1935) ..................... 7

C. Wright, A. Miller, & E. Cooper,

Federal Practice & Procedure

(3d ed. Supp. 2019) ................................................ 6

INTEREST OF AMICUS CURIAE1

Public Citizen is a nonprofit consumer advocacy

organization with members and supporters in all 50

states. Public Citizen appears before Congress,

administrative agencies, and courts on a wide range

of issues, and works for the enactment and enforcement of laws protecting consumers, workers, and the

public. Reflecting its longstanding interest in preserving access to the courts in civil litigation, Public

Citizen has filed many briefs in this Court and the

lower courts on the doctrines of standing and

mootness. Public Citizen submits this brief because it

believes that a proper understanding of the standing

and mootness doctrines recognizes that claims for

nominal damages redressing injuries already

sustained are not mooted by a change in circumstances, and that claims for nominal damages play a

critical role in securing important constitutional

rights.

SUMMARY OF ARGUMENT

A claim for nominal damages as a remedy for past

injuries is not moot, regardless of whether a change

in circumstances would moot claims for prospective

relief. A claim becomes moot only if a court can no

longer order any effectual relief. Chafin v. Chafin,

568 U.S. 165, 172 (2013). Respondents here cannot

meet that demanding standard with respect to

petitioners’ claim for nominal damages, which seeks

1 This brief was not authored in whole or part by counsel for

a party, and no one other than amicus curiae or its counsel

made a monetary contribution to preparation or submission of

the brief. Counsel for both parties have consented in writing to

its filing, through blanket consents filed with the Court.

redress for constitutional injuries that cannot be

valued in solely monetary terms. An award of

nominal damages would alter the legal relationship

between the parties in a way that would redress the

injuries petitioners suffered due to respondents’

policies. That is all that this Court’s cases require.

A claim for nominal damages is fundamentally

different from a claim for declaratory relief. A claim

for declaratory relief seeks to determine the legal

rights and obligations of the parties with prospective

effect. Because it is prospective, such a claim may be

mooted by changed circumstances, including changes

in a defendant’s policies that make it “absolutely

clear that the allegedly wrongful behavior could not

reasonably be expected to recur.” Friends of the

Earth, Inc. v. Laidlaw, 528 U.S. 167, 189 (2000). By

contrast, claims for retrospective relief, including

claims for nominal damages, are unaffected by such a

change in circumstances. “[S]o long as the plaintiff

has a cause of action for damages, a defendant’s

change in conduct will not moot the case.”

Buckhannon Bd. & Care Home v. W. Va. Dep’t of

Health & Human Res., 532 U.S. 598, 608–09 (2001).

Claims seeking nominal damages as a

retrospective remedy for past violations serve two

important additional purposes. First, they facilitate

the sound development of constitutional law in

contexts in which traditional compensatory damages

may not be appropriate. Second, they enable cases to

reach judgment on the merits, thus providing an

opportunity for the plaintiff to obtain an award of

attorney’s fees, which this Court has recognized is

often essential to enable plaintiffs to bring claims for

the violation of their constitutional rights.

ARGUMENT

Petitioners allege that, while they were students

at Georgia Gwinnett College, respondents’ unconstitutional policies prevented them from exercising

their rights under the First Amendment. Their suit

initially sought injunctive and declaratory relief to

prevent those unconstitutional violations of their

rights from continuing or recurring, as well as

nominal damages. After respondents formally revised

their policies to allow the speech that had previously

been prohibited and one of petitioners graduated, the

district court held that the claims for prospective

relief were moot. See Pet. App. 26a, 40a. Petitioners

do not challenge that holding here. The court of

appeals subsequently held that the claim for nominal

damages “cannot save their otherwise moot constitutional challenge.” Pet. App. 16a. That holding, at

issue here, was incorrect.

Contrary to the ruling of the court of appeals, a

claim seeking retrospective relief that provides

genuine redress for injuries caused by past unlawful

conduct is not mooted by circumstances that foreclose

prospective relief. That conclusion holds true both for

claims seeking compensatory damages and, as here,

for claims seeking nominal damages as a retrospective remedy for a past violation of a right that

defies monetary quantification.

I. A claim for nominal damages to remedy

unquantifiable injuries attributable to a

past violation of a right confers standing

and defeats mootness.

A. Under well-settled principles of standing and

mootness, petitioners’ claim for nominal damages is

not moot. That claim seeks a remedy that would

meaningfully redress the injury they allegedly

suffered due to respondents’ unconstitutional

policies.

To satisfy Article III’s standing requirements, “a

plaintiff must show (1) it has suffered an ‘injury in

fact’ that is (a) concrete and particularized and (b)

actual or imminent, not conjectural or hypothetical;

(2) the injury is fairly traceable to the challenged

action of the defendant; and (3) it is likely, as

opposed to merely speculative, that the injury will be

redressed by a favorable decision.” Laidlaw, 528 U.S.

at 180–81 (citing Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–61 (1992)). The injury need not be

large. See United States v. Students Challenging

Regulatory Agency Procedures, 412 U.S. 669, 689

n.14 (1973) (“[A]n identifiable trifle is enough for

standing.”). Nor need the injury be tangible, such as

physical or pecuniary harm. Spokeo, Inc. v. Robins,

136 S. Ct. 1540, 1549 (2016) (“[This Court] has

confirmed in many of [its] previous cases that

intangible injuries can nevertheless be concrete.”).

A case that initially satisfied the requirements of

standing “becomes moot only when it is impossible

for a court to grant any effectual relief whatever to

the prevailing party.” Chafin, 568 U.S. at 172

(emphases added). Just as at the outset of a case,

“[a]s long as the parties have a concrete interest,

however small, in the outcome of the litigation, the

case is not moot.” Knox v. Serv. Emps. Int’l Union,

Local 1000, 567 U.S. 298, 307–08 (2012); see also

Ellis v. Bhd. of Ry. Emps., 466 U.S. 435, 442 (1984)

(“The amount at issue [in damages] is undeniably

minute. But as long as the parties have a concrete

interest, however small, in the outcome of the

litigation, the case is not moot.”); Firefighters Local

Union No. 1784 v. Stotts, 467 U.S. 561, 571 (1984)

(“[T]he parties have a concrete interest in the

outcome [and] the case is not moot notwithstanding

the size of the dispute.”). When a claim seeks a

remedy that would “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), and would “remedy the injury suffered” by

the plaintiff, Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 107 (1998), it is not moot regardless of

whether the defendant has ceased its unlawful

conduct. In particular, “[i]f there is any chance of

money changing hands, [the] suit remains live.”

Mission Prod. Holdings, Inc. v. Tempnology, LLC,

139 S. Ct. 1652, 1660 (2019).

Here, petitioners’ claim for nominal damages for

the past violation of their First Amendment rights

satisfies these requirements. Their injury is clear

and concrete: One petitioner alleges that he actively

attempted to exercise his First Amendment rights

but respondents prevented him from doing so; the

other alleges that he would have exercised his First

Amendment rights but was chilled from doing so by

respondents’ policies. Pet. App. 23a–24a. Because

neither alleged physical or pecuniary injury, and

their claim is not based on emotional distress or

other psychological harm, their concrete but

intangible injury is not quantifiable as traditional

compensatory damages. Accordingly, they sought

nominal damages as a retrospective remedy. In

seeking a remedy that would “directly and tangibly

benefit[]” them by awarding them damages that

would provide a measure of real redress for their

injuries, Lance v. Coffman, 549 U.S. 437, 439 (2007)

(per curiam), petitioners have a “‘concrete private

interest in the outcome of [the] suit,’” Vermont

Agency of Nat. Res. v. United States ex rel. Stevens,

529 U.S. 765, 772 (2000) (quoting Lujan, 504 U.S. at

573).

Defendants, too, have a concrete stake in the

controversy over plaintiffs’ entitlement to nominal

damages. This Court has explained that 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”

pursuant to a court order. Farrar, 506 U.S. at 113;

see also Hewitt v. Helms, 482 U.S. 755, 761 (1987)

(“The real value of the judicial pronouncement … is

in the settling of some dispute which affects the

behavior of the defendant towards the plaintiff.”

(emphasis in original)).

Thus, “it is widely recognized that a claim for

nominal damages precludes mootness.” N.Y. State

Rifle & Pistol Ass’n v. City of New York, 140 S. Ct.

1525, 1536 (2020) (Alito, J., dissenting) (citing 13C

Charles A. Wright, Arthur R. Miller, & Edward H.

Cooper, Federal Practice & Procedure § 3533.3 n.47

(3d ed. Supp. 2019)). That conclusion is no mere

technicality. When a “civil rights plaintiff seeks to

vindicate important civil and constitutional rights,”

the violation of those rights frequently “cannot be

valued solely in monetary terms.” City of Riverside v.

Rivera, 477 U.S. 561, 574 (1986). As a result,

“nominal damages, and not damages based on some

undefined ‘value’ of infringed rights, are the

appropriate means of ‘vindicating’ rights” when the

injury caused by their deprivation is not quantifiable

in monetary terms. Memphis Cmty. Sch. Dist. v.

Stachura, 477 U.S. 299, 308 n.11 (1986). Accordingly,

courts “traditionally have vindicated deprivations of

certain ‘absolute’ rights … through the award of a

nominal sum of money.” Carey v. Piphus, 435 U.S.

247, 266 & n.23 (1978) (citing Dan B. Dobbs, Law of

Remedies § 3.8, pp. 191–93 (1973); Charles T.

McCormick, Law of Damages §§ 20–22 (1935);

Restatement of Torts § 907 (1939)).

This Court’s cases, although not squarely

answering the question presented here, illustrate

these principles. In Carey v. Piphus, the Court

“consider[ed] the … prerequisites for recovery of

damages by students who were suspended from

public … schools without procedural due process.”

435 U.S. at 248. The complication was that, although

it was undisputed by the time the case came to this

Court that the students were denied procedural due

process, the trial court had not yet decided whether

their suspensions were substantively unjustified. Id.

at 252. The Court concluded that “substantial

damages,” id. at 266, would be inappropriate if the

suspensions were justified—that is, if the students

would have been suspended even if they had been

accorded procedural due process—but that the

students would nonetheless be entitled to recover

“nominal damages” to redress the undisputed

violation of their procedural rights. Id. at 248. The

Court’s conclusion relies on the premise that the

proper remedy for the violation of a constitutional

right that does not give rise to traditional

compensatory damages is nominal damages. See also

Memphis Cmty. Sch. Dist., 477 U.S. at 309 (applying

Carey’s holding to deprivation of “substantive [First

Amendment] constitutional right”).

This Court confirmed the importance of nominal

damages as a form of meaningful relief in Farrar v.

Hobby. The Court explained that a “plaintiff

‘prevails’ when actual relief on the merits of his claim

materially alters the legal relationship between the

parties by modifying the defendant’s behavior in a

way that directly benefits the plaintiff.” 506 U.S. at

111–12 (emphasis added). And it went on to hold that

“a plaintiff who wins nominal damages is a

prevailing party.” Id. at 112. That conclusion is

inconsistent with the decision below, because a

plaintiff cannot qualify as a “prevailing party”

without securing a remedy that also suffices to

ground that party’s standing. A plaintiff who asserts

a claim for nominal damages seeks “actual relief”

that establishes standing and the parties’ stake in

the outcome of the litigation is “enough to save [it]

from mootness.” Chafin, 568 U.S. at 176.

Petitioners here allege precisely the sort of injury

that is properly redressed by nominal damages. The

alleged restriction of their freedom to exercise their

First Amendment rights to speak on a public college

campus is without question a “constitutionally

cognizable injury.” Monsanto Co. v. Geertson Seed

Farms, 561 U.S. 139, 153 (2010). The nature of that

injury, like the violation of procedural due process

rights in Carey, nonetheless defies monetary quantification. Thus, as this Court has recognized, the

appropriate retrospective remedy for the violation of

the right to free speech is nominal damages. See

Memphis Cmty. Sch. Dist., 477 U.S. at 309–10

(holding that “damages based on the abstract ‘value’

or ‘importance’ of constitutional rights are not a

permissible element of compensatory damages” for

violation of the right of free speech). In such cases,

nominal damages provide concrete redress for the

actual injury inherent in a past deprivation of a

constitutional right.

B. The court of appeals’ contrary conclusion

rested on its view that nominal damages serve no

function other than providing abstract declarations

about the lawfulness of past actions that have no

current or ongoing consequences. The court relied on

circuit precedent that “s[aw] no reason to treat

nominal damages and declaratory relief differently”

because they “may be closely analogized.” Flanigan’s

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

1268 & n.22 (11th Cir. 2017) (en banc) (quoting Utah

Animal Rights v. Salt Lake City Corp., 371 F.3d

1248, 1265 (10th Cir. 2004) (McConnell, J.,

concurring)). On the basis of that analogy, the court

of appeals stated that, “given the similarities

between the two remedies,” a “prayer for nominal

damages” alone is moot just as “a prayer for

declaratory relief—by itself and in an otherwise moot

case—is insufficient to give a federal court

jurisdiction.” Id. at 1268–69.

The analogy between declaratory relief and the

nominal damages sought in this case, however, is

fundamentally flawed. Claims for declaratory relief

typically seek a declaration of the legal rights or

obligations of the parties with some prospective

impact. See L.A. Cty. v. Humphries, 562 U.S. 29, 31

(2010) (discussing “prospective relief, such as an

injunction or a declaratory judgment”); Christian

Legal Soc’y v. Martinez, 561 U.S. 661, 676 n.6 (2010)

(lawsuit “seeks only declaratory and injunctive—that

is, prospective—relief”); Samuel L. Bray, The Myth of

the Mild Declaratory Judgment, 63 Duke L.J. 1091,

1123 (2014) (“[I]n many cases in which a plaintiff

seeks prospective relief, a declaratory judgment and

an injunction are interchangeable.”). In such cases,

as this Court has made clear, “an appropriate action

for declaratory relief can be a case or controversy

under Article III.” Medimmune, Inc. v. GenenTech,

Inc., 549 U.S. 118, 126 (2007) (emphasis in original)

(citing Nashville, Chattanooga & St. Louis Ry. Co. v.

Wallace, 288 U.S. 249 (1933); Aetna Life Ins. Co. v.

Haworth, 300 U.S. 227 (1937)); see also, e.g., Steffel v.

Thompson, 415 U.S. 452, 458–60 (1974). However, a

claim for declaratory relief that will not resolve an

ongoing dispute in a way that has concrete practical

consequences for the parties does not present an

Article III case or controversy. See, e.g., Golden v.

Zwickler, 394 U.S. 103, 108–09 (1968).

Thus, for example, a defendant’s voluntary

cessation of its unlawful conduct may moot a claim

for prospective relief, whether injunctive or

declaratory, “if subsequent events make it absolutely

clear that the allegedly wrongful behavior could not

reasonably be expected to recur.” Laidlaw, 528 U.S.

at 189 (citation omitted). In that circumstance, a

declaratory judgment would provide no meaningful

relief for the plaintiff because the judgment would

have no additional effect on the defendant’s future

conduct toward the plaintiff or the likelihood that the

conduct will injure the plaintiff.

A claim for nominal damages, as a retrospective

remedy, is inherently different from a claim for

prospective declaratory relief. A plaintiff seeking

nominal damages does not ask the court to command

the defendant to cease its unlawful conduct in the

future—at least, not any more than any claim for

compensatory damages asks that—and instead asks

the court to provide relief to redress the injury

inflicted by the defendant’s past misconduct. A

defendant’s cessation of its unlawful conduct does not

remedy the injuries that the defendant already

inflicted. Likewise, a change in circumstances, such

as a student’s graduation, that might moot a claim

for prospective relief does not resolve a claim seeking

redress for those past injuries. Only a retrospective

remedy can provide that relief. See Genesis

HealthCare Corp. v. Symczyk, 569 U.S. 66, 77 (2013)

(“[A] claim for damages cannot evade review; it

remains live until it is settled [or] judicially

resolved.”); Buckhannon, 532 U.S. at 608–09 (“[S]o

long as the plaintiff has a cause of action for

damages, a defendant’s change in conduct will not

moot the case.”). For that reason, respondents’

voluntary cessation of their policies does not moot

petitioners’ claim for nominal damages as a remedy

for their past injuries.

II. The court of appeals’ contrary conclusion

undermines the adjudicatory role of Article

III courts.

Adjudication of the merits of claims for nominal

damages is critical to fulfilling the federal courts’

constitutional obligation to “say what the law is.”

Bank Markazi v. Peterson, 136 S. Ct. 1310, 1322

(2016) (quoting Marbury v. Madison, 1 Cranch 137,

177 (1803)). The rule adopted by every other circuit,

holding that claims for nominal damages present an

Article III case or controversy, serves that purpose in

two ways.

First, adjudicating claims for nominal damages

facilitates the development of aspects of constitutional law that might otherwise languish. Claims of

constitutional violations that give rise to no

compensatory damages frequently arise across a

diverse range of doctrinal contexts. Such claims arise

under the First Amendment. See, e.g., Klein v.

Laguna Beach, 810 F.3d 693, 697 (9th Cir. 2016)

(free speech); Project Vote/Voting for America, Inc. v.

Dickerson, 444 F. App’x. 660, 661 (4th Cir. 2011) (per

curiam) (free speech). They arise under the

Fourteenth Amendment’s Due Process Clause and

Equal Protection Clause. See, e.g., Carey v. Piphus,

435 U.S. 247 (procedural due process); Price v.

Charlotte, 93 F.3d 1241, 1257 (4th Cir. 1996) (equal

protection). They arise under the Fourth Amendment’s prohibition on unreasonable searches and

seizures. See, e.g., Stoedter v. Gates, 704 F. App’x

748, 762 (10th Cir. 2017); Amato v. Saratoga

Springs, 170 F.3d 311, 317 (2d Cir. 1999). In each of

these contexts, declining to proceed to judgment on

the basis of a claim for nominal damages both leaves

real injuries unredressed and also deprives courts,

the government, and the public of important guidance on the contours of constitutional requirements.

Second, the rule adopted by the court below could

significantly impair the ability of victims of constitutional wrongs to vindicate their rights by undermining the availability of attorney’s fees. To secure

counsel, plaintiffs in cases like this one often rely on

Congress’s determination to provide attorney’s fees to

prevailing plaintiffs in suits under Section 1983. See

42 U.S.C. § 1988. Congress intended Section 1988 to

facilitate plaintiffs’ vindication of constitutional

rights by providing a financial incentive to attorneys

to take cases for clients who otherwise would be

unable to afford representation. See H.R. Rep. No.

94-1558, at 1 (1976) (“Because a vast majority of the

victims of civil rights violations cannot afford legal

counsel, they are unable to present their cases to the

courts. … [Section 1988] is designed to give such

persons effective access to the judicial process.”); S.

Rep. No. 94-1011, at 2 (1976) (“If private citizens are

to be able to assert their civil rights, and if those who

violate the Nation’s fundamental laws are not to

proceed with impunity, then citizens must have the

opportunity to recover what it costs them to vindicate

these rights in court.”); see also Newman v. Piggie

Park Enters., Inc., 390 U.S. 400, 402 (1968) (per

curiam) (Congress “enacted the provision for counsel

fees … to encourage individuals injured by racial

discrimination to seek judicial relief.”).

The decision below, by preventing meritorious

claims for nominal damages from proceeding to

judgment, undermines Congress’s statutory scheme.

To be eligible for an award of attorney’s fees under

Section 1988, a plaintiff must be a “prevailing party.”

Farrar, 506 U.S. at 109. But under Section 1988 and

other civil rights statutes, a plaintiff who has “failed

to secure a judgment on the merits or a court-ordered

consent decree” does not qualify as a prevailing

party, even if she has “nonetheless achieved the

desired result because the lawsuit brought about a

voluntary change in the defendant’s conduct.”

Buckhannon, 532 U.S. at 600. As a result, under the

rule of the court below, petitioners here would not be

eligible for an award of attorney’s fees,

notwithstanding the merits of their claim for

retrospective relief for past injuries, simply because

respondents will not injure them again.

As Congress and this Court have recognized, such

a rule would impede meritorious cases from being

brought in the first place, thereby denying effective

relief to plaintiffs who suffer violations of their

constitutional rights. Every member of this Court

has authored or joined opinions recognizing the

essential role of attorney’s fee awards in enabling the

proper resolution of litigation about constitutional

and other rights.2 That unanimous recognition of the

importance of attorney’s fees in cases seeking

vindication of constitutional rights under Section

1983 applies in full force in this case.

CONCLUSION

For the foregoing reasons, the decision below

should be reversed.

2 See, e.g., Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct.

1979, 1986 (2016) (Kagan, J.) (unanimous opinion of the Court)

(adopting test for fee awards “because it both encourages

parties with strong legal positions to stand on their rights and

deters those with weak ones from proceeding with litigation”);

N.Y. State Rifle & Pistol Ass’n, 140 S. Ct. at 1538 (Alito, J.,

dissenting, joined by Gorsuch, J. and Thomas, J.) (“Relief would

be particularly appropriate here because the City’s litigation

strategy caused petitioners to incur what are surely very

substantial attorney’s fees in challenging the constitutionality

of a City ordinance that the City went to great lengths to

defend.”); Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473

F.3d 312, 325 (D.C. Cir. 2006) (Kavanaugh, J.) (“The attorney’s

fees provision was designed … to ‘enable potential plaintiffs to

obtain the assistance of competent counsel in vindicating their

rights.’”).

Respectfully submitted,